11 Jun Privileges and Immunities of International Organizations
I’ve spent the last days at the University of Leiden in the Netherlands attending a terrific conference on privileges and immunities of IOs. (In addition to Leiden’s history of excellence in international law, there were some wonderful revelations at the conference about the university’s history — like the fact that Albert Einstein taught there).
The discussions shed light on the complex and sometimes conflicting caselaw regarding why and when IOs are immune from court jurisdiction, and on areas in which this immunity might be waived by IOs themselves, or limited by courts. This topic is timely: there is increasing litigation against IOs generally, prompted in part by the expansion of IO mandates, and in part by more developed litigation culture, particularly where human rights are concerned. A notable example is the so-called “Mothers of Srebrenica” case brought in Dutch courts against the UN regarding the genocide in Srebrenica. So far, Dutch courts have found the UN to be immune, although the Dutch state has been found responsible in separate litigation. For an analysis of recent developments in this latter litigation, see Andre Nollkaemper’s analysis here.
Privileges and Immunities are meant to protect the independent functioning of IOs and shield them from vexatious litigation. Most of the sources of law on this topic, however, are dated: the General Convention on Privileges and Immunities of the UN was drawn up in 1946 for example, and more recent instruments, such as the Agreement on Privileges and Immunities of the ICC, contain fairly standard provisions that draw on this general approach. It is sometimes contended that immunities have a basis in customary international law as well, although it appears that the UN is the organization viewed as being most clearly protected in this regard.
Speakers suggested that there has been an erosion of IO immunities at the margins, and that complex tort cases are amongst the most difficult to resolve. Following Waite and Kennedy, an employment dispute involving the European Space Agency, courts have often linked immunities to “reasonable alternative means.” Nonetheless, there is little guidance on what standards should be applied to evaluating those alternatives. Moreover, it is far from clear that claims arising in other contexts – for example under Art. 29 of the Agreement on Privileges and Immunities (see e.g. Haiti Cholera Claim) would be treated in the same way as an employment case that rests upon Article 6 of the European Convention on Human Rights.
Lower courts tend to be more willing to restrict immunities, but on appeal, higher courts generally confirm the absolute immunity of IOs. The bread and butter of P & I litigation involves rather routine questions of contract disputes, employment litigation, and claims against staff members of organizations for traffic violations or damage to property. Ultimately, the issue is one of balancing the right of access to courts (or other review mechanisms) with the independence of IOs. At present, its not clear that the key instruments on privileges and immunities always get that balance right however.