International Organizations Before National Courts Part 7 pot

no territory of their own.78 The authors proposing this argument usually

do not elaborate or explain it in more detail. Thus, it remains unclear

what the underlying rationale is.

It is not disputed that international organizations have no territory

and that they consequently do not enact their own private law (contracts,

torts, etc.) apart from administrative rules and organizational law. How￾ever, this merely seems to exclude a potential choice of law (as a result of

rules of private international law). There simply is no tort law or con￾tracts law of international organizations. Thus, it will be the law of the

commission of the act or of an international organization’s seat or of the

other contracting party which will govern.79 However, this has nothing to

do with the procedural issue of jurisdiction over international organiz￾ations. A limitation based on governing laws seems to be no reason for

denying jurisdiction over a suit against an international organization

which is clearly subject to a certain legal order.

One author develops the argument somewhat further by explaining

that states could regulate by their internal law the possible legal re￾courses of private persons against them, e.g. whether by administrative

or judicial procedure, and thereby influence their accountability and

protect themselves. Because they have no comparable legal order of their

own this option would not be open to international organizations.80 This

reasoning based on a comparison with the situation of states operating

on foreign soil or with another jurisdictional link to a foreign sovereign

is, however, not fully convincing. It is precisely in such situations that the

78 Morgenstern is of the opinion that international organizations having no territory of

their own and ‘thus necessarily operating within the jurisdiction of other legal systems’

should receive different treatment from states and consequently enjoy ‘absolute immun￾ity’. Morgenstern, Legal Problems, 6. A similar argument is made by Lalive, who holds the

distinction between iure imperii and iure gestionis acts to be inapplicable in the case of

international organizations because they have no territory of their own and thus necess￾arily have to contract under a ‘foreign’ private law. Lalive, ‘L’immunite´ de juridiction’,

296ff. The ‘lack of territory’ argument also appears in the ILC Special Rapporteur’s report,

but not as a separate justification for granting immunity to international organizations,

but rather as a subsidiary rationale. Noting that international organizations have to be

based in the territory of a state, he recounts the need to afford them some protection

against local judicial or administrative interference by granting immunity. Yearbook of the

International Law Commission (1989), vol. II, Part One, 153 at 158. 79 A rare exemption to this generally acknowledged fact – and again very limited in its scope

– is the UN’s 1986 legislation limiting its liability for tortious acts occurring within the

headquarters premises. This UN-created law partly derogates from the otherwise appli￾cable US law. Cf. Regulation No. 4, General Assembly Resolution 41/210. See also pp. 15f

above. 80 Lalive, ‘L’immunite´ de juridiction’, 298.

rationales for judicial abstention 249

issue of their immunity is raised. Whether they will enjoy it or not

depends upon the qualification of their acts, but it is undisputed that

they are subject to the foreign law and to foreign procedural rules

although they had no opportunity to influence them in order to ‘protect’

themselves.

In fact, the ‘lack of territory’ argument could be reversed and used

against granting immunity to international organizations. While the

respect of immunity from suit of states might be justified, because

possessing territory they can be regularly sued in their own courts, these

alternative fora are usually not available in respect of international

organizations. Thus, it is not the absence of territory, but the concomi￾tant lack of courts of international organizations which might militate

against their immunity. It seems that in the Greek decision of X v.

International Centre for Superior Mediterranean Agricultural Studies,

81 the

Court of Appeals of Crete might have been aware of this relationship. It

thought its denial of the Centre’s immunity from suit in an employment

dispute was ‘reinforced’ by the fact that otherwise there would have been

no alternative forum for claims against the organization, ‘since [it] enjoys

jurisdictional immunity within all member states, does not possess its

own territory’ and could hardly be brought before courts in third

countries.

It might be that the true, but unexpressed, reason for granting im￾munity to international organizations as a consequence of their lack of

territory is in fact ‘compensatory’ in nature. Since international organ￾izations have the disadvantage of lacking territory they should benefit

from immunity. While states could protect themselves against unwar￾ranted legal recourse against them under foreign laws by simply

avoiding any contacts with foreign countries, international organiz￾ations by definition can only operate on the territory of a state. To

compensate for this structural weakness immunity from suit might be

justified.82

Precedent and prestige

Among other reasons to grant special rights to international organiz￾ations, the existence of precedents, the principle of reciprocity and the

81 Court of Appeals of Crete, 1991 (unpublished). 82 Cf. the argument made by Morgenstern, Legal Problems, 6, about the ‘vulnerability’ of

international organizations lacking territory and thus necessarily operating within the

jurisdiction of other legal systems. See also p. 238 above.

250 policy issues

prestige of an international organization are sometimes discussed.83 A

wide variety of such prerogatives is likely to underline the importance of

an international organization. Although frequently considered not to

legitimately deserve consideration,84 it seems that, in practice, prestige

and precedent are among the dominant purposes of according privileges

and immunities to international organizations.85 The reasons for these

privileges and immunities may not lie solely in a organization’s self￾interest in special and preferential treatment. As an indication of an

international organization’s international legal personality,86 a certain

range of privileges and immunities may be important for it to attain.

Nevertheless, prestige and precedent are hardly reasons to be taken

seriously in an inquiry of legitimate grounds warranting the exemption

of international organizations from the jurisdiction of national courts.

83 Conseil de l’Europe, 13ff; Bekker, The Legal Position, 107ff. 84 Conseil de l’Europe, 13ff. 85 See the Memorandum of the UK on the privileges and immunities of international

organizations, in Conseil de l’Europe, 75, appendix. 86 See pp. 141 and 247 above.

rationales for judicial abstention 251

5 Reasons for asserting jurisdiction

The following discussion looks at the rationales that are or should be

used by courts in asserting jurisdiction over international organizations.

It will focus on the reasons for denying or at least restricting the jurisdic￾tional immunity of international organizations as the major abstention

rationale.

It starts with a contextual argument,1 and progresses via systematic

reasoning2 to material policy grounds addressing the interests of interna￾tional organizations3 and of third parties potentially affected by an

organizations’ immunity.4

Judicial protection as a public good sought by and against

international organizations

The availability of judicial assistance to safeguard one’s rights can be

viewed as a ‘public good’ sought not only by individuals against interna￾tional organizations,5 but also by international organizations in assert￾ing their rights against individuals. Further, the jurisdiction of domestic

courts is in the interest not only of an individual or organization seeking

their assistance but may also be in the broader interest of the forum state

in exercising jurisdiction as a manifestation of public authority.

In Arab Monetary Fund v. Hashim (No. 3),6 where the judicial protection of

1 Making sense of immunity qualifications. See pp. 253ff below. 2 Encroachment on territorial sovereignty and higher degree of integration. See pp. 254f

below.

3 Enhancing the creditworthiness of international organizations. See pp. 255ff below. 4 Fairness to third parties and human rights – constitutional limits. See pp. 262ff below. 5 See pp. 280ff below as to a potential right of access to courts. 6 Chancery Division, 9–12 October, 14 November 1989; Court of Appeal, 26–27 March, 9

April 1990; House of Lords, 26–28 November 1990, 21 February 1991.

252

an international organization was almost denied on the technical reason

of the perceived lack of its domestic legal personality,7 this interest was

clearly spelled out. Closing the door of justice to ‘foreign’ international

organizations would not only have caused embarrassment to the foreign

ministry of the UK, which had apparently assumed that courts would

implicitly recognize the AMF’s legal personality, but would also lead to a

‘potential loss of commercial dealings in London’8 if international organ￾izations felt that they would be denied judicial protection in England

when they sought it.9

On a more general level, the existence of an advanced legal system,

frequently advertised as an important element for the use of New York

and London for international commercial litigation, might certainly also

be a consideration for international organizations in choosing a particu￾lar seat state.

Making sense of immunity qualifications

Whenever a customary or conventional rule is applicable that prescribes

a standard of ‘necessary’ or ‘functional’, or in some other way qualifies

immunity, there are strong arguments to conclude that these qualifica￾tions signify a different and consequently lower degree of immunity than

an unqualified ‘immunity from suit’ or an express ‘absolute immunity’.10

It is submitted that the view that these qualified immunities in fact

embody the same standard as absolute immunity11 ignores the relevance

of the qualifications.

In particular, the term ‘necessary’ signifies a restrictive concept. Its

connotations with ‘essential’, ‘key’, ‘indispensable’, ‘urgent’, ‘needed’,

etc., imply that not everything is ‘necessary’. Rather only a limited numb￾er of things might be. Referring to the classic functional immunity

standard, as expressed, for instance, in Article 105 of the UN Charter

speaking of the organization’s immunity ‘necessary for the fulfilment of

its purposes’, such a literal reading has led commentators to argue that,

since the activities of an international organization are prescribed by its

7 See pp. 65ff above. 8 Ilona Cheyne, ‘Status of International Organisations in English Law’ (1991) 40 International

and Comparative Law Quarterly 981–4 at 982. 9 See also Jeremy P. Carver, ‘International Organisations After Arab Monetary Fund’ (1991) 6

Butterworths Journal of International Banking and Financial Law 215–18 at 217. 10 See, however, p. 334 below as to the potential meaning of ‘functional’ or ‘necessary’ as

characterizing only the rationale for immunity and not qualifying its scope. 11 See pp. 332ff below.

reasons for asserting jurisdiction 253