International Organizations' Immunity: Legal Basis and Significance

‘Immunity of International Organisations'

Introduction

What is the significance of immunity of international organisations?

The key issue is that absolute immunity of international organisations may deny individuals or states recourse to legal measures, sometimes leading to unfair outcomes.

However, immunity is justified on the grounds of functionality or institutional efficiency of international organisations.

Immunity of International Organisations: Meaning and Scope

The immunities of international organisations are generally derived from treaty law (Wickeremasinghe, 2014). For instance, the immunities enjoyed by the UN are derived from the UN Charter and other treaties. Article 105 of the Charter of the United Nations provides that the Organisation shall enjoy in the territory of each of its Members such privileges and immunities. Furthermore, the Convention on Privileges and Immunities of the United Nations 1946, Article II, Section 2 provides immunity to the UN from every form of legal process, unless specifically waived by the UN. Representatives of the members to the UN organs, be these principal or subsidiary, also enjoy immunity from legal process when exercising their functions related to a conference organized by the UN (Article IV, Section 11).

Thus, use of phrases such as “immunity from jurisdiction”, or “immunity from every from of legal process”, is done to signify immunity with respect to the organisation with respect to which such phrases are used.

The question of jurisdictional immunity of the international organisation may arise at the point when the international organisation comes into contact with a municipal legal system. Certain theories have evolved to justify the immunity of the international organisations.

Justification for Immunity of International Organisations

The functional theory is used by the international organisations to justify their claims to immunities as being necessary if the international organisations are to achieve the functions for which they are established. It is pertinent to note that the international organisations have no territory of their own and function from the territory of member states. In order to ensure the smooth functioning of the international organisations, states agree not to use their legal processes against these international organisations. This can be done through treaties as well as domestic legislation. An example of such domestic legislation is the American legislation, the International Organizations Immunities Act 1945 (IOIA 1945). This law grants some international organisations the same immunity from suits and legal or judicial processes as that which is enjoyed by foreign governments (Young, 2012). Immunity to the international organisations ensures institutional efficiency by not impeding the work of the organisations.

Absolute Immunity: Some Issues with Respect to Fairness

The question of fairness of immunity given to international organisations can be raised with respect to the principle of Rule of Law; human rights of individuals and access to courts in case rights violated by international organisation; and possibility of increasing economic costs of transactions with the international organisations due to need to insure against the fall outs of such transactions without the option of recourse to courts.

Beer and Regan v. Germany, (Beer and Regan v. Germany, Application No. 28934/95, [1999] ECHR 6, 1999) Whether the attribution of immunity to an international organization in a municipal court violated the applicants' right of access to a court under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’). The court held that the immunity given does not violate the rights of the individuals.

Waite and Kennedy v. Germany (Waite and Kennedy v. Germany, Application No. 26083/94, 1999), immunity given to the European Space Agency was questioned in the ECtHR. In this case, Germany had granted immunity to the European Space Agency and this was challenged by the petitioner because ESA had immunity from being sued.

At times organisations are given absolute immunity. The Haiti Cholera case, where more than 5000 Haitian died due to contaminations that they blamed on the UN is an example of absolute immunity. In this case, the US courts have refused to hear the cases against the UN because UN has immunity. This is in keeping with the European principle on this issue as exemplified in the cases of Waite and Kennedy v. Germany and Beer and Regan v. Germany.

International organizations regularly enjoy immunity from suit in employment-related cases. Instead of litigation before various national courts, staff members are supposed to bring their complaints before internal grievance mechanisms and ultimately before administrative tribunals set up by the organizations (Reinisch, 2008).

The US Court of Appeals for the Circuit of the District of Columbia, held in (Marvin R.Broadbent et al. v. OAS et al 628 F. 2d 27 at 35 (1980), 1980) that “relationship of an international organization with its internal administrative staff is non-commercial, and, absent waiver, activities defining or arising out of that relationship may not be the basis of an action against the organization” (Neumann, 2006).

Conclusion

Tie up the themes of the essay.

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Bibliography

• Beer and Regan v. Germany, Application No. 28934/95, [1999] ECHR 6 (1999).
• Marvin R.Broadbent et al. v. OAS et al 628 F. 2d 27 at 35 (1980) (1980).
• Neumann, P., 2006. IMMUNITY OF INTERNATIONAL ORGANISATIONS AND ALTERNATIVE REMEDIES AGAINST THE UNITED NATIONS. Vienna, Vienna University.
• Reinisch, A., 2008. The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals. Chinese Journal of International Law , 7(2), pp. 285-306.
• Waite and Kennedy v. Germany, Application No. 26083/94 (1999).
• Wickeremasinghe, C., 2014. The Jurisdictional Immunities of International Organisations and their Officials. Ann Arbor: Proquest.
• Young, A. I., 2012. Deconstructing International Organization Immunity. Georgetown Journal of International Law, Volume 44, pp. 311-364.