International Organizations Before National Courts Part 9 ppsx

international community suggests the ultimate possibility of substitu￾ting some kind of joint sovereignty, the supremacy of the common will,

for the old single state sovereignty.’135 There is no need to equalize the

actions of international organizations with governmental actions, but

one could at least regard some of them, for instance ‘the UN as a form of

government’.136 More futuristic thoughts appear to be particularly en

vogue at a time when the UN – having just celebrated its first fifty years –

sets out to prepare for the next fifty years, even though – at the same time

– it faces one of its most troubling financial crises.137 For instance, the

Center for War/Peace Studies, under a ‘Binding Triad Concept’, calls for a

far-reaching delegation of legislative powers upon the UN General Assem￾bly, etc.138 Also more cautious, ‘realistic’ voices – calling for a change in

the UN system as a matter of ‘global survival’ – advocate the transfer of

powers to international organizations.139

The current discussion on the issue of ‘global governance’ is also

illustrative in this respect. By propagating this term, the report of the UN

Commission on Global Governance takes great care to avoid the expres￾sion ‘government’. ‘Governance’ is obviously meant to supplant the no￾tion of ‘government’ by a more horizontal, issue-related way of tackling

modern-day problems. According to the report, ‘[g]overnance is the sum

of the many ways individuals and institutions, public and private, man￾age their common affairs’.140 Thus, it rather appears like a regime, a

system whereby interested players interact in solving problems. However,

a closer description of what is meant by governance points in the direc￾tion of regulatory action. The examples given by the Commission range

from local waste-recycling schemes and multi-urban transport plans, to

regional initiatives to control deforestation, culminating in ‘effective

135 Philip C. Jessup, A Modern Law of Nations (New York, 1956), 13. 136 Ian Brownlie, ‘The United Nations as a Form of Government’ in J. E. S. Fawcett and R.

Higgins (eds.), International Organization. Law in Movement. Essays in Honour of John McMahon

(London, New York and Toronto, 1974), 26–36 at 26ff. 137 See Ruben P. Mendez, ‘Financing the United Nations and the International Public Sector:

Problems and Reform’ (1997) 3 Global Governance 283–310 at 283ff. 138 Under its most recent version the Binding Triad concept calls for an amendment of

Article 13 of the UN Charter, which would bestow the General Assembly with legislative

powers requiring a two-thirds majority of its members’ votes, a simple majority of votes

assigned according to the population of the members and a simple majority of votes

assigned according to the members’ financial contributions. Cf. Richard Hudson, Quick

Calculator for Estimating Outcomes of Votes in the UN General Assembly under the Binding Triad

System for Global Decision-Making (CW/PS Special Study No. 8, New York, 1995), 1ff. 139 Cf. Benjamin B. Ferencz, New Legal Foundations for Global Survival (Dobbs Ferry, NY, 1994). 140 Commission on Global Governance, Our Global Neighborhood. The Report of the Commission on

Global Governance (Oxford, 1995), 2.

do national courts provide an appropriate forum? 355

global decision-making’.141 The report clearly disclaims any super-state

tendencies by stating that, even if global necessity requires closer interna￾tional cooperation, ‘[t]his does not imply, however, world government or

world federalism’.142 Elsewhere the less authority-based aspect of govern￾ance has also been stressed while at the same time maintaining that it

has to do with tasks of governing.143

Against this background it appears plausible to regard international

organizations as sovereign or at least quasi-sovereign in a sense that

would make the application of state immunity principles plausible.

A sovereign immunity standard for international organizations exercising

sovereign powers?

If one accepts that the modern restrictive state immunity standard ratione

materiae protects exactly those state powers of a ‘public’, ‘governmental’,

‘iure imperii’, or ‘administrative’ nature (as opposed to commercial activ￾ities) and if one realizes that many international organizations largely

engage in such ‘sovereign’ or ‘quasi-sovereign’ activities, it appears diffi￾cult to maintain that the ‘lack of sovereignty of international organiz￾ations’, as a conceptual matter of principle, should prevent the applica￾tion of sovereign immunity standards.

Another development seems to have been even more important for the

possibility to ‘transfer’ the rationale for state immunity to the problem of

the immunity of international organizations: the emergence of a restrict￾ive sovereign immunity concept which underlines the predominance of

the ‘internal’ authority aspect of sovereignty over the ‘external’ equality

and independence aspect. It seems that, historically, the justification of

sovereign immunity shifted from protecting the equality aspect to pro￾tecting the internal authority element of sovereignty. It is no longer the

state’s formal existence as a state or its existence as an ‘equal’ that

mandates immunity, but rather the exercise of a state’s internal author￾ity that requires domestic courts of other states to refrain from adjudica￾tion.144

141 Ibid., at 2 and 4. 142 Ibid., 4. 143 Cf. Rosenau speaking of ‘control or steering mechanisms, terms that highlight the purpose￾ful nature of governance without presuming the presence of hierarchy’. James N.

Rosenau, ‘Governance in the Twenty-First Century’ (1995) 1 Global Governance 13–43 at 14.

See also Lawrence S. Finkelstein, ‘What is Global Governance’ (1995) 1 Global Governance

367–72 at 369: ‘Global governance is governing, without sovereign authority, relation￾ships that transcend national frontiers. Global governance is doing internationally what

governments do at home.’ 144 See p. 373 below.

356 future developments

To regard the distinction between sovereign states and international

organizations, which are not sovereign entities, as a primary justification

for not applying sovereign immunity principles to international organiz￾ations would leave a certain logical inconsistency. Such a reasoning tried

to justify a broader scope of jurisdictional immunity for organizations

than for states, although the former do not come close to the plenitude of

sovereignty of the latter. Of course, there might be different reasons for

providing for a larger scope of immunity (to protect their weakness,145

because they act in the common interest,146 in order to compensate for

their lesser status,147 etc.), but – to remain in an intra-systematic critique

– it is hard to understand how and why the lack of sovereignty should

lead to a broader scope of immunity.

Sometimes the fact that international organizations act in the

common interest – be it of its member states or of the international

community at large – also serves as a justification for regarding their

immunity protection as an absolute one. In rejecting the possibility of

adopting a restrictive immunity standard from state immunity for inter￾national organizations, some authors explicitly refer to the non-egotistic

purpose of an international organization’s activities.148 It appears, how￾ever, that these views rely heavily on the old ‘purpose test’ justifying

sovereign immunity for activities believed to be ‘in the general inter￾est’.149 Under the modern ‘nature’ test, the common interest of state or

organizational activity should not be a decisive factor when delimiting

the scope of jurisdictional immunity.

In a somewhat related reasoning, some authors maintain that the

145 See p. 238 above. 146 See below on this page. 147 See pp. 248ff above. 148 For Dominice´, for instance, it is ‘de´terminant’ that international organizations are

‘organismes de service’ and not political bodies only pursuing their own interests in

order to justify their different treatment. Christian Dominice´, ‘L’immunite´ de juridic￾tion et d’exe´cution des organisations internationales’ (1984 IV) 187 Recueil des Cours

145–238 at 179. Similarly, and partly relying on Dominice´, the ILC Special Rapporteur

believes that the ‘ample immunity’ granted to international organizations – in contrast

to the increasingly restricted immunity of states – is fully justified, because interna￾tional organizations are ‘service agencies operating on behalf of all their member states’.

Dı´az-Gonza´lez, ‘Fourth Report’, 158. 149 Cf. the argument by Balanda in the course of the ILC deliberations on the subject:

‘whenever states established an international organization in order to engage in an

activity at the international level, they did so in the general interest, which might of

course be of a commercial nature. The fact that an international organization engaged

in commercial activities did not, however, mean that it was not performing an interna￾tional public service, and it was precisely because it performed such a service that it

required protection.’ Yearbook of the International Law Commission (1985), vol. I, 294, para.

44.

do national courts provide an appropriate forum? 357

‘functionally limited personality’ of international organizations justifies

an absolute immunity standard because international organizations can

only act within the scope of their functional personality and because

they enjoy functional immunity for these acts.150 Sometimes there

seems to be an underlying notion that international organizations – as

opposed to states – do not engage in commercial activities at all.151 Thus,

it is argued, there should be no need at all to adapt principles developed

in the context of state immunity. However, this argument is open to

factual falsification and has in fact been contradicted. Most interna￾tional organizations do engage in some kind of commercial activity,

some – like commodity agreements – even in order to carry out their

main functions.

In other instances, practical difficulties likely to be encountered in the

application of a sovereign immunity standard led commentators to the

conclusion that the, admittedly easier, rule of absolute immunity should

govern.152 This reason for upholding an absolute immunity standard,

however, is far from convincing. One could equally well argue that

sovereign immunity should revert to the more ‘user-friendly’ rule of

absolute immunity.

Turning now to actual practice, cases decided so far on the basis of an

150 Cf. Seidl-Hohenveldern and Loibl, Das Recht der Internationalen Organisationen, 275. See p.

343 note 88 above. 151 See Morgenstern arguing that the fact ‘that the capacity of international organizations

is directly related to their public functions seems to imply that, as a matter of principle,

the problem of acts iure gestionis should remain unimportant’. Morgenstern, Legal Prob￾lems, 6. A version of that attitude finds its expression within the UN. In advising against a

profit-making joint venture with a private publishing firm, the Office of Legal Affairs

noted that – given that the UN is an international organization ‘with a noble mandate of

immense importance set out in the Charter of the United Nations’ – the planned joint

venture ‘could put the status and character of the Organization in question’. UN Office of

Legal Affairs, ‘Memorandum to the Executive Officer, Department of Public Information

of 23 July 1990’ (1990) United Nations Juridical Yearbook 257 at 258. 152 Harders, for instance, writes that the adoption of the categories of public (hoheitliche) and

commercial (fiskalische) acts for the evaluation of the liability of international organiz￾ations under domestic law would lead to substantial difficulties; consequently, it would

not be clear why the treaty- and custom-based, well-accepted unlimited (absolute)

immunity standard should not remain in force. In his view, the classic international

organization could not sufficiently fulfil its task, if its commercial acts were not pro￾tected by immunity. Enno J. Harders, ‘Haftung und Verantwortlichkeit Internationaler

Organisationen’ in Ru¨diger Wolfrum (ed.), Handbuch Vereinte Nationen (2nd edn, Munich,

1991), 248–58 at 256. The practical difficulty in adopting the official/commercial activity

distinction for international organizations is also underlined by Bekker who – for other

reasons – dismisses such a possibility. He notes ‘the puzzling ambiguities caused by

applying this concept (i.e., the commercial activity concept) of sovereign immunity law

to international organizations’. Bekker, The Legal Position, 160.

358 future developments

approximation between functional and restrictive immunity153 show

that the principal danger, possibly rendering a iure imperii/iure gestionis

test for international organizations worthless, lies in its uncontrolled

affirmation of official purposes justifying immunity from jurisdiction.

Attempts that tried to assimilate ‘functional’ to iure imperii standards

were frequently very broad in their application. Such an encompassing

cloak of immunity is in effect spread over international organizations

when courts return to a purpose test in order to determine the iure imperii

character of the basis of a dispute.154 As in older state immunity cases

there will almost always be an official purpose to justify a specific legal

relationship’s iure imperii character. Thus, it may be more promising to

revert to attempts to restrict immunity like that of the Italian Supreme

Court in United States v. Porciello155 which has held that one cannot main￾tain ‘that any act whatsoever of a foreign State, or of an international

organization which is endowed with sovereign powers, which has any

connection at all, even if only indirectly (as is the case with the procure￾ment of goods and services), with the functioning of the organs of that

State or organization in Italy ought to be considered as exempt from the

jurisdiction of an Italian court’.156

The existing case law demonstrates that the most problematic aspect of

the equation of functional to restrictive immunity lies in the fact that a

simple parallel between functional and iure imperii acts, as well as be￾tween non-functional and iure gestionis acts, cannot be drawn. Certainly,

iure imperii activity can be identified as the main purpose of most tradi￾tional international/intergovernmental organizations. As far as such or￾ganizations are concerned, one could rather easily differentiate between

functional/official (iure imperii) acts and iure gestionis acts also for immun￾ity purposes. The differentiation between iure gestionis and public activ￾ities becomes more problematic where the tasks to be fulfilled by an

international organization are mainly of a private nature, i.e. activities

normally described as acta iure gestionis. This is apparent in a number of

instrumental international organizations in the economic and develop￾153 See pp. 192ff above. 154 See for example the ICEM v. Di Banella Schirone case, Corte di Cassazione, 8 April 1975. See

p. 190 above. 155 Corte di Cassazione, 27 January 1977. This unfair dismissal action by an Italian employee

of the US forces stationed in Italy under the NATO agreement was upheld despite the

defendant’s claim to immunity; the Italian Supreme Court qualified the plaintiff as part

of the local civilian labour force whose employment relationships were subject to Italian

jurisdiction. 156 (1978–9) 4 Italian Yearbook of International Law 174 at 175.

do national courts provide an appropriate forum? 359