International Organizations Before National Courts Part 9 ppsx

In rejecting the possibility ofadopting a restrictive immunity standard from state immunity for inter-national organizations, some authors explicitly refer to the non-egotisticpurpose of

international community suggests the ultimate possibility of ting some kind of joint sovereignty, the supremacy of the common will,for the old single state sovereignty.’135There is no need to equalize theactions of international organizations with governmental actions, butone could at least regard some of them, for instance ‘the UN as a form ofgovernment’.136 More futuristic thoughts appear to be particularly en

substitu-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.137For instance, theCenter for War/Peace Studies, under a ‘Binding Triad Concept’, calls for afar-reaching delegation of legislative powers upon the UN General Assem-bly, etc.138Also more cautious, ‘realistic’ voices – calling for a change inthe UN system as a matter of ‘global survival’ – advocate the transfer ofpowers to international organizations.139

The current discussion on the issue of ‘global governance’ is alsoillustrative in this respect By propagating this term, the report of the UNCommission 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 tacklingmodern-day problems According to the report, ‘[g]overnance is the sum

of the many ways individuals and institutions, public and private, age their common affairs’.140 Thus, it rather appears like a regime, asystem whereby interested players interact in solving problems However,

man-a closer description of whman-at is meman-ant by governman-ance points in the tion of regulatory action The examples given by the Commission rangefrom local waste-recycling schemes and multi-urban transport plans, toregional initiatives to control deforestation, culminating in ‘effective

direc-135Philip 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.

139Cf Benjamin B Ferencz, New Legal Foundations for Global Survival (Dobbs Ferry, NY, 1994).

140Commission on Global Governance, Our Global Neighborhood The Report of the Commission on

Global Governance (Oxford, 1995), 2.

global decision-making’.141 The report clearly disclaims any super-statetendencies by stating that, even if global necessity requires closer interna-tional cooperation, ‘[t]his does not imply, however, world government orworld federalism’.142Elsewhere the less authority-based aspect of govern-ance has also been stressed while at the same time maintaining that ithas to do with tasks of governing.143

Against this background it appears plausible to regard internationalorganizations as sovereign or at least quasi-sovereign in a sense thatwould 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 largelyengage 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 thepossibility to ‘transfer’ the rationale for state immunity to the problem ofthe immunity of international organizations: the emergence of a restrict-ive sovereign immunity concept which underlines the predominance ofthe ‘internal’ authority aspect of sovereignty over the ‘external’ equalityand independence aspect It seems that, historically, the justification ofsovereign immunity shifted from protecting the equality aspect to pro-tecting the internal authority element of sovereignty It is no longer thestate’s formal existence as a state or its existence as an ‘equal’ thatmandates 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

141Ibid., at 2 and 4. 142Ibid., 4.

143Cf 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, ships that transcend national frontiers Global governance is doing internationally what governments do at home.’

relation-144 See p 373 below.

To regard the distinction between sovereign states and internationalorganizations, which are not sovereign entities, as a primary justificationfor 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 organizationsthan for states, although the former do not come close to the plenitude ofsovereignty of the latter Of course, there might be different reasons forproviding for a larger scope of immunity (to protect their weakness,145because they act in the common interest,146in order to compensate fortheir lesser status,147etc.), but – to remain in an intra-systematic critique– it is hard to understand how and why the lack of sovereignty shouldlead to a broader scope of immunity

Sometimes the fact that international organizations act in thecommon interest – be it of its member states or of the internationalcommunity at large – also serves as a justification for regarding theirimmunity protection as an absolute one In rejecting the possibility ofadopting a restrictive immunity standard from state immunity for inter-national organizations, some authors explicitly refer to the non-egotisticpurpose of an international organization’s activities.148It appears, how-ever, that these views rely heavily on the old ‘purpose test’ justifyingsovereign immunity for activities believed to be ‘in the general inter-est’.149Under the modern ‘nature’ test, the common interest of state ororganizational activity should not be a decisive factor when delimitingthe 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 tional organizations are ‘service agencies operating on behalf of all their member states’ Dı´az-Gonza ´lez, ‘Fourth Report’, 158.

interna-149Cf 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 tional public service, and it was precisely because it performed such a service that it

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

44.

‘functionally limited personality’ of international organizations justifies

an absolute immunity standard because international organizations canonly act within the scope of their functional personality and becausethey enjoy functional immunity for these acts.150 Sometimes thereseems to be an underlying notion that international organizations – asopposed to states – do not engage in commercial activities at all.151Thus,

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 tofactual 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 theirmain functions

In other instances, practical difficulties likely to be encountered in theapplication of a sovereign immunity standard led commentators to theconclusion that the, admittedly easier, rule of absolute immunity shouldgovern.152 This reason for upholding an absolute immunity standard,however, is far from convincing One could equally well argue thatsovereign immunity should revert to the more ‘user-friendly’ rule ofabsolute immunity

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

150Cf 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.

152Harders, 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.

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 uncontrolledaffirmation 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 encompassingcloak 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.154As in older state immunity casesthere 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 Porciello155which has held that one cannot tain ‘that any act whatsoever of a foreign State, or of an internationalorganization which is endowed with sovereign powers, which has anyconnection 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 thatState or organization in Italy ought to be considered as exempt from thejurisdiction of an Italian court’.156

main-The existing case law demonstrates that the most problematic aspect ofthe equation of functional to restrictive immunity lies in the fact that a

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

be-iure imperii activity can be identified as the main purpose of most

tradi-tional internatradi-tional/intergovernmental organizations As far as such ganizations are concerned, one could rather easily differentiate between

or-functional/official (iure imperii) acts and iure gestionis acts also for ity purposes The differentiation between iure gestionis and public activ-

immun-ities becomes more problematic where the tasks to be fulfilled by aninternational 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-153See pp 192ff above.

154See 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.

ment sphere Among their official functions may be the conclusion ofsales contracts, loans, etc with private parties under an applicable pri-vate law The fact that some organizations’ instruments expressly providefor partial exceptions from immunity in such situations157 appears to

evidence that these activities are considered iure gestionis, not requiring

immunity from suit Considering the activities of some of the tional commodity organizations, the differentiation between official andnon-official functions along the private/public activity distinction be-comes even more problematic They regularly serve a public purpose(stabilization of world market prices) by carrying out private acts (buyingand selling).158This insight points towards the distinction between pur-pose and nature of the acts in question If one followed a ‘nature’ test,prevailing among Western states’ interpretation of sovereign immunitystandards, one would thus deny immunity for the main activities of suchorganizations If one adhered to a ‘purpose’ approach, one might at leastqualify the activities concerning a specific commodity covered by therespective organization’s immunity Furthermore – what is true for alltypes of international organizations – commercial activities are normallycomplementary to the fulfilment of official functions.159 Thus, many

interna-activities clearly of a iure gestionis character might easily be qualified as

‘necessary’ for the fulfilment of an international organization’s tions This leads to another problem of delimiting the functional scope of

func-such international organizations along lines alien to traditional iure

gestionis/iure imperii distinctions The fact that they are regularly

estab-lished with regard to a specific commodity implies that only activitiesconcerning this commodity could be regarded as covered by their func-tional purposes For instance, the International Tin Council would actwithin its functions only if it engaged in commercial transactions involv-ing tin; if it chose to deal in coffee or sugar, it would act non-functionally.Granting immunity in the first case and denying it in the second, appar-

157Cf the provisions allowing lawsuits brought by private creditors of international

finan-cial institutions such as the World Bank and other international banks See p 141 note

545 above.

158 Pierre Michel Eisemann, ‘Crise du conseil international de l’etain et insolvabilite ´ d’une

organisation intergouvernmental’ (1985) 31 Annuaire franc¸ais de droit international 730–46

at 743.

159One only needs to be reminded of Szasz’s characterization of the UN ‘which, inter alia, is a

large multinational enterprise, operating in well over a hundred countries and carrying out many types of transactions involving money or goods valued at some billions of dollars and employing tens of thousands of staff members, plus a multitude of con- tractors’ Paul C Szasz, ‘The United Nations Legislates to Limit its Liability’ (1987) 81

American Journal of International Law 739–44 at 740.

ently required by a functional concept, would hardly fit into a

differenti-ation along the normal iure gestionis/iure imperii distinction.

These considerations demonstrate how difficult the distinction maybecome in the specific case; they cannot contradict, however, the basic

premise that a large number of ordinary iure gestionis acts performed by

international organizations in their dealings with private parties hardlymerit immunity from suit

Alternative functional restrictions of the scope of immunity: analogies to diplomatic and consular law

The law of diplomatic and consular immunities may be a source ofinspiration in order to find a meaningful interpretation of the scope offunctional immunity In particular, one might consider applying some ofthe highly developed rules of the law of diplomatic immunity to interna-tional organizations Such an approach seems to be justified if similar or

at least comparable rationales for the two kinds of immunity regimes can

be ascertained Contrary to the iure imperii/iure gestionis distinction, the

applicability of which to international organizations has been repeatedlydiscussed,160the potential guidance of the functional immunity ration-ale stemming from diplomatic and consular law is only rarely addressed

in legal writing This is surprising, even more so in view of the fact thatthey share the same notion of functionally restricted immunity In one ofthe few exceptions, a textbook on international institutional law, ananalogy is drawn from diplomatic law to international organizations bysuggesting that a customary ‘refinement of the law’ stemming fromdiplomatic law precludes the invocation of immunity even without awaiver in cases concerning counterclaims.161A casebook on internationallaw, explaining the term ‘functional immunities’ from the fact that suchimmunities are ‘normally limited to the extent necessary for the fulfill-ment of the purposes of the organization’,162further acknowledges thatthere are parallels between the immunities of international organiz-ations and the privileges and immunities of consuls.163Thus, one mightconsider whether a closer consideration of consular immunity, as a trueexpression of functionally limited immunity, might prove useful

160See pp 198ff, 347ff and 356ff above.

161Schermers, International Institutional Law, 796, referring to Article 32 of the Vienna

Convention on Diplomatic Relations 1961.

162C T Oliver, E B Firmage, C L Blakesley, R F Scott and S A Williams, The International

Legal System: Cases and Materials (4th edn, Westbury, NY, 1995), 614.

163Ibid.

The functional immunity rationale, the idea of protecting the

function-ing of an organization, finds a parallel in the principle ne impediatur

legatio and the concept that immunities are necessary to protect the task

of diplomats and consuls.164 If one looks at the resulting immunity,however, one realizes that the scope of diplomatic immunities is ratherbroad, while that of consular immunities comes closer to the concept offunctional limitation

Functional necessity standard in diplomatic and consular law

Diplomatic and consular law broadly differentiates between personsenjoying functional immunity only (consuls and certain staff at diplo-matic missions) and persons enjoying absolute immunity (diplomats).This perception, however, somewhat oversimplifies and neglects the factthat diplomats, seemingly enjoying absolute immunity, are also limited

in this enjoyment along certain functional lines

For the first group of persons, persons of less than full diplomatic rank(covered by the Vienna Convention on Diplomatic Relations) as well asconsular officers, it is clear that they enjoy immunity from suit in prin-ciple only for ‘[official] acts performed in the exercise of [their] func-tions’165which has been characterized as an ‘extremely restricted form ofimmunity’.166Linked to the diplomatic functions listed in Article 3 of theVienna Convention on Diplomatic Relations or to the consular functions

in Article 5 of the Vienna Convention on Consular Relations, it wouldseem that other acts would be regarded as not ‘functional’ and thus notgiving rise to immunity In particular, illegal or tortious acts would falloutside a potential immunity cover.167 Some of the espionage casesinvolving UN staff or members of diplomatic missions to the UN areillustrative of this fact.168For instance, in United States ex relatione Casanova

164 For a recent survey of the importance of functional acts for diplomatic immunities, see Jean J A Salmon, ‘Immunite´s et actes de fonction’ (1992) 38 Annuaire franc¸ais de droit

international 314–57 at 314ff.

165 Article 43 of the Vienna Convention on Consular Relations 1963 and Articles 37 and 38 of the Vienna Convention on Diplomatic Relations 1961.

166 Jonathan Brown, ‘Diplomatic Immunity: State Practice Under the Vienna Convention on

Diplomatic Relations’ (1988) 37 International and Comparative Law Quarterly 53–88 at 76.

167Thus, for instance, in L v The Crown, New Zealand Supreme Court, 12 September 1977, a

vice-consul charged for assault on a national of his sending state applying for passport renewal enjoyed no immunity from suit since ‘[s]uch an act is as unconnected with the duty to be performed by the consular officer as an act of murder It was not required of him in the exercise of his functions.’ (1985) 68 ILR 175 at 179.

168See also United States v Egorov, US District Court EDNY, 7 October 1963; United States v.

Coplon et al., US District Court SDNY, 10 May 1949; United States v Melekh, US District Court

SDNY, 28 November 1960.

v Fitzpatrick,169a US court held that a member of the Cuban mission tothe UN, who was not granted diplomatic immunity, enjoyed only func-tional immunity in the sense of Article 105(2) of the UN Charter and that

‘[c]onspiracy to commit sabotage against the Government of the UnitedStates is not a function of any mission or member of a mission to theUnited Nations’.170In a similar vein, the English Court of Appeal recently

held in Arab Monetary Fund v Hashim and others171that the ‘plea of ity could at best only apply to official acts [T]he proposition that DrHashim was engaged in official acts for the AMF when secretly agreeingand accepting a bribe for his own benefit (and not that of the AMF) hasonly to be stated to be rejected’.172

immun-The immunity of diplomats – which is frequently considered absolute

in its scope – is also in fact limited along functional considerations.Diplomatic law, however, instead of relying on a flexible (but also ratherindeterminate) functionality standard, typifies situations clearly lyingbeyond functional necessity for which diplomats are not granted immun-ity Article 31(1) of the Vienna Convention on Diplomatic Relations 1961lists among these real actions, actions relating to succession and com-mercial activities outside official functions Although these relativelyminor exceptions to immunity from suit of diplomats are certainlynarrower than the functional restriction of the immunity of consularofficers, the underlying acknowledgment of denying immunity for pat-ently non-functional acts is an important fact for immunity theory ingeneral The major advantage for the ‘administration of justice’ of suchtopical exceptions to diplomatic immunity as contained in Article 31(1)

of the Vienna Convention on Diplomatic Relations 1961 lies in the factthat they are generally more accessible and applicable for domesticcourts than abstract principles

Transferability of the rationale for diplomatic and consular immunity

It appears plausible that the rationale of functional immunity common

to diplomatic and consular law and the law of international ations may justify the transfer or incorporation of certain features of theformer to the latter From a historical point of view, privileges andimmunities of international organizations are sometimes viewed as

organiz-a development of diplomorganiz-atic lorganiz-aw Indeed, diplomorganiz-atic lorganiz-aw served organiz-as

an important point of reference and analogy for the development

169 US District Court SDNY, 16 January 1963 170 214 F Supp 425 at 431 (SDNY 1963).

171 Court of Appeal (Civil Division), 1 February 1996.

172[1996] 1 Lloyd’s Reports 589 at 596.

and emergence of privileges and immunities of international ations.173Some relevant constitutional texts even expressly referred todiplomatic law.174However, these parallels primarily concern the privi-leges and immunities enjoyed by officials of international organizations.There an analogy can be easily seen, so that the rationale for accordingdiplomatic privileges and immunities seems to be applicable to interna-tional civil servants.175 On the other hand, a broad analogy betweendiplomatic (or consular) law and the immunities of international organ-izations themselves – despite some national courts calling the immunity

organiz-of international organizations ‘diplomatic immunity’176 – is no longergenerally accepted This rejection of the principles of diplomatic immuni-ties with respect to international organizations is, however, based on theunderstanding that the former require absolute immunity from suit Inthis context, it is frequently stressed that the limitation of the immunity

of international organizations to the extent necessary for the fulfilment

of its functions and purposes is clearly intended For instance, whendrafting the appropriate wording for the UN’s immunity, the notion of

‘diplomatic’ privileges and immunities was deliberately avoided and amore appropriate standard was chosen ‘based, for the purposes of theOrganization, on the necessity of realizing its purposes’.177

The most plausible justification, possibly allowing analogies to matic and consular law, which seems more important than historicalparallels, might lie in their common ‘functional necessity’ rationale.When looking for a modern justification for the grant of privileges and

diplo-173 In surveying the subject, Kunz thought that ‘the problem of privileges and immunities

of international organizations started historically, by analogy, as an extension of matic privileges to non-diplomats’ Kunz, ‘Privileges and Immunities’, 842.

diplo-174 For instance, Article 7(4) of the League of Nations Covenant provided that tives and officials ‘when engaged on the business of the League shall enjoy diplomatic privileges and immunities’.

representa-175Of course, here also times have changed Cf Jenks stating that ‘[t]he law governing

international immunities no longer consists primarily of a general principle resting on

the questionable analogy of diplomatic immunities’ C Wilfred Jenks, International

Immunities (London and New York, 1961), xxxv.

176For instance, the Nigerian Supreme Court in African Reinsurance Corporation v Abate

Fantaye, Supreme Court, 20 June 1986, (1991) 86 ILR 655–91 at 691.

177Cf the drafting history of Article 105 of the UN Charter in Report of the Rapporteur of

Committee IV/2, as approved by the Committee, 13 UNCIO Doc 933, IV/2/42(2) (1945),

704, where a clear distinction between diplomatic and organizational immunity law seems to have been intended: ‘In order to determine the nature of the privileges and immunities, the Committee has seen fit to avoid the term ‘‘diplomatic’’ and has prefer- red to substitute a more appropriate standard, based, for the purposes of the Organiz- ation, on the necessity of realizing its purposes.’

immunities to diplomats, the traditional exterritoriality theory178anddoctrines stressing their representative character are clearly no longerprevalent They have been largely replaced by a ‘functional necessity

theory’, the principle of ne impediatur legatio.179Thus, a comparable

prin-ciple of ne impediatur officia for international organizations could well be

justifiable180and lead to the adoption of diplomatic immunity principles

in the context of international organizations

A result-oriented immunity standard protecting the functioning

of international organizations

In trying to ascertain the scope of an international organization’s tional immunity, commentators usually focus on the activity in questionand attempt to determine whether it falls within the tasks of the organiz-ation Considering that a major rationale for granting immunity fromsuit lies in the purpose of protecting an organization’s functioning, onemight wonder whether the question could not be put differently Instead

func-of looking at the act func-of the international organization in question(whether it is necessary to fulfil its official functions, etc.), it might bemore appropriate to concentrate on the (anticipated) consequences ofdenying immunity If those consequences would impede the organiz-ation’s activities (e.g., court orders to perform specific acts as distin-guished from mere orders to make payment) and thereby threaten itsproper functioning, then they should be refrained from.181

Such a result-oriented immunity test would focus less on the functionsthan on the underlying non-interference rationale as a yardstick for the

178Cf Brownlie, Principles, 348.

179Cf Yearbook of the International Law Commission (1958), vol II, 95 See also Denza,

‘Diplo-matic Agents and Missions’, 1041, characterizing the codification results of the Vienna Convention on Diplomatic Relations 1961 as rules ‘justified by the functional need for ambassadors and their staffs to act without fear of coercion or harassment by enforce- ment of local laws and to communicate freely and securely with their sending govern- ments’.

180Bekker, The Legal Position, 155 See also Max Egger, Die Vorrechte und Befreiungen zugunsten

internationaler Organisationen und ihrer Funktiona ¨re (dissertation, Berne, 1953) (Vienna,

1954), 149; ILC Report of its 41st Session, Yearbook of the International Law Commission

(1989), vol II, Part Two, 136.

181 Cully introduces in her ‘Proposal for Restricted Immunity under the IOIA’ elements of such a non-interference yardstick In her plea for restricted immunity for international organizations she would include only suits for money damages: ‘Because injunctions by their very nature interfere (or have the appearance and capability of interfering) with the organization’s conduct of its public affairs, even restricted immunity should allow only money damages, not injunctive relief.’ Kathleen Cully, ‘Jurisdictional Immunities

of Intergovernmental Organizations’ (1982) 91 Yale Law Journal 1167–95 at 1179, note 106.

scope of immunity It would certainly exclude many petty claims fromimmunity, giving access to court and thereby a means to pursue therights of contractors, persons injured by tortious acts of internationalorganizations, etc At the same time, it could ensure that no judicialaction will be taken that might threaten the work of an internationalorganization Although certainly somewhat unorthodox in the context ofjurisdictional immunity, such a balancing test is not wholly unknown todomestic courts in deciding jurisdictional issues In particular, US courts,when called upon to decide act of state or jurisdiction to adjudicatequestions, are familiar with balancing tests specifically taking into con-sideration the consequences of their jurisdictional decisions.182If it wereapplied as the sole criterion, however, it might lead to problematic, evenarbitrary results: in two otherwise substantially identical claims against

an organization, one might be excluded if it involves a large sum ofmoney potentially endangering the functioning of the organization,while the other would be allowed if it concerned only a small sum ofmoney

The grant of immunity made dependent upon alternative dispute resolution procedures

Another result-oriented method of determining whether immunityshould be granted to an international organization in a particular casewould focus on the availability of alternative means of judicial or quasi-judicial dispute settlement in a specific situation One of the majoradvantages of such an approach seems to lie in the fact that it couldadequately address two important concerns stemming from the grant ordenial of immunity: it might satisfy constitutional or human rightsconcerns for the protection of the private parties involved, in particulartheir right to access to court; and equally it might enable internationalorganizations to protect their interests

Similar balancing of interests tests are used in other jurisdictionalfields For instance, the question of whether domestic courts shoulduphold the extraterritorial jurisdiction to prescribe of the forum state isfrequently determined by a number of factors balanced against eachother Among the factors whether or not, and sometimes to what degree,such legislative jurisdiction should be exercised are considerations con-

182Cf the US Supreme Court’s opinion on the applicability of the act of state doctrine: ‘the

less important the implications of an issue are for our foreign relations, the weaker the

justification for exclusivity in the political branches.’ Banco Nacional de Cuba v Sabbatino,

376 US 398 at 428 (1964) See also pp 86 and 92 above.

cerning the potential interference with other states’ jurisdictions, comityconsiderations, etc.183 However, there are only few and very cautiousexamples of the exercise of a ‘vicarious jurisdiction’ in other fields Forinstance, in the litigation following the disaster at Bhopal, a US district

court in Re Union Carbide Corp Gas Plant Disaster declared itself a forum

non-conveniens on a conditional basis as long as adequate judicial

protec-tion was guaranteed in Indian courts which it considered the appropriateones to exercise jurisdiction.184

To date only a few courts have shown a certain awareness of the lack of

an alternative forum in determining immunity issues.185 In practice,most courts have not been impressed by the argument that they shouldavoid a situation where an aggrieved party would be left without anyforum to which he or she could address his or her complaint and thatthey should therefore declare themselves competent in the absence of analternative forum.186 In other words, the jurisdictional horror vacui of

183According to Restatement (Third), § 403, the exercise of jurisdiction to prescribe is always

limited by a reasonableness test ‘determined by evaluating [a list of] relevant factors’.

Restatement (Third), § 403, para 2.

184On the basis of forum non conveniens, the district court dismissed the action on three

conditions: (1) that the defendant consented to the jurisdiction of the Indian courts and waived any possible statute of limitations defence; (2) that the defendant agreed to satisfy any Indian judgment rendered according to ‘minimal requirements of due process’; and (3) that the defendant agreed to be subject to US discovery rules 634 F Supp 842 (SDNY 1986) The circuit court, however, revoked the second and third of these conditions The revocation of the second condition was based not on a perception that this kind of supervisory jurisdiction might impose US due process concepts upon the Indian courts, but rather on the concern that the condition ‘as it is written imposed

on the erroneous assumption that such a judgment might not otherwise be enforceable

in the United States, may create misunderstandings and problems of construction’ In particular, the court feared that the reference to ‘minimal requirements of due process’ might lessen the ‘due process’ standard required to enforce an Indian judgment in New York courts as a matter of statutory law It thus considered the district court’s condition superfluous 809 F 2d 195 (2d Cir 1987).

185See pp 263ff above.

186Critics of Mendaro v World Bank, US Court of Appeals, 27 September 1983, conclude that

in this particular case, the US court should have exercised jurisdiction ‘especially since Mendaro had nowhere else to turn due to the World Bank’s lack of an internal dispute settlement mechanism at the time’ Norman G Abrahamson, ‘International Organiz- ations – International Organizations Immunity Act – Waiver of Immunity for World

Bank Denied, Mendaro v The World Bank ’ (1984) 8 Suffolk Transnational Law Journal

413–22 at 422 In 1985 the World Bank Administrative Tribunal rejected Mendaro’s complaint as inadmissible because most events giving rise to the applicant’s complaint had occurred before the entry into force of the Tribunal’s Statute and because, to the extent they arose subsequently, the complaint was filed three years after the time limit

had expired Mendaro v IBRD, World Bank Administrative Tribunal, 4 September 1985, (1985) World Bank Administrative Tribunal Reports, Decision No 26.

those courts does not appear to be very strong Sometimes they assurethemselves of the existence of an alternative forum and sometimes –usually in a very generous fashion – they assume that due process isguaranteed by them, but they hardly scrutinize these requirements in amore thorough manner.187It is submitted, however, that courts shouldnot only take into account the availability of alternative dispute settle-ment mechanisms as such, but also ascertain their appropriateness andfairness.188Thereby national courts would have to engage in a meritori-ous interest-balancing process.

What is required is a more imaginative use of legal possibilities Whencourts relinquish their adjudicative power over a specific case, they

normally do so on the basis of an ex ante evaluation of what standard of

procedural fairness they expect the alternative forum to provide There isusually no possibility of resuming jurisdiction where that expectationhas been disappointed Exactly this kind of fall-back guarantee, however,would be of crucial importance for individual litigants It is clear that thismight ultimately imply a danger of domestic supervision of internationaltribunals However, what is legitimately supervised is only the guarantee

of fair judicial proceedings and not the outcome It should, at the most,correspond to the exercise of supervisory powers by the German Constitu-tional Court over the ECJ’s fundamental rights guarantees according to

its Solange jurisprudence189or to the very restricted supervision of

inter-187For instance, in Hetzel v Eurocontrol II, Federal Constitutional Court, 10 November 1981,

BVerfGE 59, 63, the German Constitutional Court did not think that the exclusive competence of the ILO Administrative Tribunal for labour disputes of Eurocontrol with its employees would deprive the affected individual of his or her right to access to court, because the procedure and jurisprudence of that tribunal satisfied the principles of the rule of law/legality See pp 292 and 310 above.

188In Marre´ v Istituto internazionale per l’unificazione del diritto privato (Unidroit), Tribunale

Roma, 12 June 1965, the existence of an administrative tribunal competent to handle employment disputes was one of the reasons taken into consideration by the Tribunale Roma in upholding Unidroit’s immunity from suit It specifically held that the fact that Unidroit was not subject to Italian jurisdiction did not result in its ‘immunity from any jurisdiction’ since such relations could be validly and effectively dealt with

by competent organs of international jurisdiction (i.e., Unidroit’s administrative

tribu-nal) In the earlier case of Institut international pour l’agriculture v Profili, Corte di

Cas-sazione, 26 February 1931 (see pp 117 and 183 above) the Italian Supreme Court – evaluating the Institute’s internal administrative dispute settlement mechanism – noted that ‘[o]pinions may be divided about the adequacy of such a remedy’ It never- theless refrained from adjudicating concluding that ‘though it may be evident that there is a need for a more progressive system, there is nothing which authorises the

intervention of an external jurisdiction’ (1929–30) 5 Annual Digest of Public International

Law Cases 415.

189See pp 292f and 311 above.

national arbitration by domestic courts.190If a conditional renunciation

of jurisdiction like the one used by the US court in the Bhopal case would

be procedurally impossible in many other jurisdictions, a similar

balanc-ing could be undertaken by a more serious ex ante evaluation of the

judicial guarantees provided by an alternative forum

In this sense the question of whether a sort of vicarious jurisdiction ofdomestic courts over disputes involving international organizationsshould be upheld is certainly worth discussing In the final consequence,the legitimate interests of private persons in a judicial forum competent

to decide their claims against an organization may be satisfied in asubsidiary mode by national courts depending on the availability ofinternal procedures Where they are not available or do not offer suffi-ciently fair remedies, domestic courts should step in and engage invicarious dispute settlement This would not only satisfy human rightsconcerns over a right of access to court but would also sufficiently protectthe independence and functioning of international organizations whichare regularly in a position to provide for alternative dispute settlement

Substituting immunity by other concepts

As a radical alternative to attempts to find an appropriate standard ofimmunity below absolute immunity – one that would satisfy the compet-ing interests of international organizations and their potential oppo-nents before a national court – one could look beyond the currentlyprevailing paradigm of immunity and try to discover whether other legalconcepts might form a substitute for immunity

A plea for privileges

Immunity from suit and/or enforcement has the particularly irritatingcharacteristic that the person enjoying such a prerogative cannot be held

to perform whatever he or she may be legally obliged to do The severance

of the usual legal consequence of non-performance of a legal duty, i.e.enforcement through state organs, from the ‘naked legal duty’ leads tosituations which appear even less acceptable than the lack of any substan-

tial right vis-a `-vis certain privileged persons.191Thus, one should considerwhether – from a policy perspective – it would not be better to extend,where appropriate, the scope of privileges – in the sense of substantiveexemptions from the law otherwise applicable192– while at the same timereducing the scope of jurisdictional immunity Such an approach wouldhave the clear advantage that the law is ‘fully’ applied Private parties

190See pp 306ff above. 191 Oppenheim’s International Law, 342.

192See the discussion on the terminology at pp 13ff above.

would no longer be left with the unsatisfactory situation of holding a rightagainst an immune person which they cannot procedurally pursue andenforce The substantive exemptions should sufficiently guarantee thatinternational organizations can function independently.

The granting of privileges to international organizations might alsolead to a more equitable distribution of the overall burden on thirdparties A comparison between the effects of a privilege and an immunityclearly demonstrates this relationship In the case of fiscal privileges, theburden falls on the domestic community as a whole – to all the taxpayers

in an equitable share.193Immunity from legal process, on the other hand,tends to lack such an equitable distributive element, because it burdenssingle persons, those dealing with international organizations, or in thecase of torts even less justifiably third persons, at random Even withinthese groups, not all members will be negatively affected to the samedegree In most cases international organizations will fulfil the obliga-tions they owe as a matter of substantive law Only the normally verysmall and – for that matter – accidentally determined group of personswhose rights are not satisfied will carry a disproportionate share of theburden By eliminating immunity this danger of burdening third parties

by chance would be clearly avoided

An example of an area where privileges should be extended to – and as

a matter of lex lata are regularly accorded – are the regulative aspects of

employment law, law based on national policy considerations ing the job market, affirmative action programmes, collective bargainingrights, etc.194International organizations should remain exempted fromsuch national rules in order to prevent individual attempts to enforcerights based on this body of law The exemption from another type ofregulative legislation, from antitrust law, might equally be a properexample Although private parties may suffer economic harm from theanti-competitive behaviour of international organizations as much asfrom any other competitors, a clarification that national law is notapplicable would clearly be ‘fairer’ than its mere non-enforcement – as aresult of jurisdictional immunity or another jurisdictional abstention

concern-rationale – as practised in International Association of Machinists v OPEC.195A

193 See also p 241 above 194 See pp 101ff above.

195US District Court CD Cal., 18 September 1979, affirmed on other grounds, US Court of Appeals 9th Cir., 6 July–24 August 1981 See pp 90ff above for the details of this case The district court’s decision was based, inter alia, on the fact that certain material anti-trust

law requirements were not met The court held that foreign states were not persons amenable to suit under US anti-trust law; and that indirect purchasers, like plaintiffs, could not seek damages 477 F Supp 553 at 572 and 574.

number of national competition laws make a similar public policy choiceevident by exempting certain economic sectors or public bodies from theapplication of their competition rules.196Such a clarification on the basis

of substantive law would have the additional advantage of avoiding the

difficult iure imperii/gestionis distinction raised in anti-trust/competition

law cases involving states and/or international organizations.197

The view defending (the traditional absolute) immunity as being quired to guarantee the independent functioning of an internationalorganization (and thereby accepting that substantive obligations cannot

re-be enforced) displays some similarities to an argument raised re-before, but

rejected by, the ICJ in the Effect of Awards case.198It was claimed that, even

if one conceded that the UN General Assembly had the implied power toestablish an administrative tribunal, this could not limit the GeneralAssembly’s independent discretion in approving the organization’sbudget As in the case of a domestic court’s adjudication against aninternational organization, the independent decision of an organization

to make payments according to a substantive obligation would surelyalso be limited by an administrative tribunal’s decision However, in the

Effect of Awards opinion itself, the ICJ rejected the claim that the budgetary

power of the General Assembly was ‘absolute’ because ‘some part of [theUN’s] expenditure arises out of obligations already incurred by the organ-ization, and to this extent the General Assembly has no alternative but tohonour these engagements’.199 This shows that the ICJ considered thesubstantive obligation already incurred by the UN (and as expressed in a

196For instance, section 5 of the Austrian Cartel Law exempts, inter alia, state monopolies

from its scope of application.

197The distinction between iure imperii and iure gestionis acts of international organizations

in competition cases has posed considerable difficulties for domestic courts Frequently the courts focus on the underlying activity rather than on the anti-competitive behav- iour itself and thereby qualify what would otherwise be a ‘commercial’ activity (if

performed by a private person) as iure imperii activity In International Association of

Machinists v OPEC, US District Court CD Cal., 18 September 1979, affirmed on other grounds,

US Court of Appeals 9th Cir., 6 July–24 August 1981, OPEC’s activities of controlling their natural resources were considered fundamentally governmental, a qualification that was not changed by the fact that they formed a ‘cartel’ Focusing more on the cartel

aspect of OPEC’s activities, Seidl-Hohenveldern still characterizes them as iure imperii

acts (meriting immunity) for the reason that OPEC obliges its member states to make the price fixed by it binding on all oil-selling companies within their territories Seidl-

Hohenveldern, Corporations, 111 See also p 291 note 177 above for cases concerning the

qualification of the activities of Eurocontrol.

198Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, (1954) ICJ Reports 47.

199Ibid., 59.

binding decision of the UN administrative tribunal) more important thanthe organization’s independence to decide what kind of expenditure itwished to make It is submitted that one might expand this holding andconsider the honouring of substantive obligations more important thanthe fully independent functioning of organizations If an ‘expenditure’ isreally so substantial as to impede the functioning of an internationalorganization, one should rather try to eliminate it as a matter of substan-tive law This, however, leads back to an issue of applicable law.200Theresult again supports the idea that an exemption from the substantivelegal rules may be fairer to international organizations and third partiesthan a procedural impediment of their enforcement.

Immunity or lack of adjudicative power

As already noted, the general development of the law of immunity fromjurisdiction – be it in the field of sovereign immunity or of diplomaticimmunities – seems to evidence a trend away from the personal ‘preroga-tive’ of potential defendants to the protection of a certain kind of activ-ity.201In the sovereign immunity context, the notion of shielding theforeign sovereign from any submission to a domestic court of another

sovereign (par in parem non habet imperium) has been largely replaced by a

perception that only a foreign state’s public/sovereign acts require munity Even in the realm of diplomatic law, the idea that certainpersons are under no condition amenable to legal proceedings before thecourts of host states remains in force only for a small group of persons, i.e.for diplomats,202while most of the staff working at embassies and, as amatter of principle, all consular officers enjoy only functional immun-ity,203 an immunity limited to acts performed in the course of theirofficial functions In essence, this functional immunity standard limitsimmunity to acts which could be qualified as acts performed in thefulfilment of official tasks as opposed to private acts of diplomats.These developments seem to evidence a shift from – what might be

im-200 The UN’s legislation in order to limit its tort liability by its 1986 Regulation No 4 can serve as an illustration for a ‘substantive’ attempt to protect the independent function-

ing of an international organization See pp 15f above.

201 See p 349 above.

202 See Articles 31 and 37(1) of the Vienna Convention on Diplomatic Relations 1961 providing for a sweeping immunity from suit for members of the diplomatic staff and their families.

203 See Articles 37(2)–(4) and 38 of the Vienna Convention on Diplomatic Relations 1961 and Article 43 of the Vienna Convention on Consular Relations 1963, basically limiting immunity to acts ‘performed in the course of their duties’, and, ‘in the exercise of consular functions’.

called in traditional terminology – immunity ratione personae to ity ratione materiae.204If one takes the emerging paramount standard of

immun-an immunity ratione materiae seriously it may be replaced by a concept of

certain activities that will be beyond the adjudicative power of nationalcourts rather than a concept of certain persons beyond their jurisdic-tional reach This in turn might lead to a situation where traditionalimmunity thinking – which is still linked to categories of persons enjoy-ing such immunity – might be replaced by a lack-of-jurisdiction doctrinebased on material reasons.205

The evolution of the law of state immunity illustrates this shift from apersonal prerogative of immunity to a rule of adjudicative abstentiondepending upon the substance of the underlying dispute in an exemplary

fashion According to the restrictive theory of immunity acta iure gestionis

as determined by the nature of the act do not give rise to immunity fromdomestic legal proceedings.206 These are by definition acts where aninternational legal person acts in the same way as a (legal) person ofdomestic law They are thus governed by a specific national law At thecore of the restrictive theory of immunity lies the idea that the mere factthat the defendant in legal proceedings is a subject of international law

by itself should not exclude legal recourse against it This theory does,

however, grant immunity for acta iure imperii, acts of a public character

which can be performed only by someone with official authority Where astate acts with public authority by granting licences, imposing taxes, etc.,

a legal relationship of subordination of the individual legal person ofdomestic law and a subject of international law is in question In thecontext of internationally relevant immunity claims, these are normallyissues of foreign public law relating to the state claiming immunity.Here, a correct understanding of the domestic tribunal’s adjudicativepower would normally lead to the conclusion that this power is lacking

204Cf Brownlie, Principles, 331.

205 James Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune

Transactions’ (1983) 54 British Yearbook of International Law 75–118 at 81; Richard A Falk,

The Role of Domestic Courts in the International Legal Order (Syracuse, NY, 1964), 139ff.

206Cf Gamal Moursi Badr, State Immunity (The Hague, 1984); Helmut Damian, munita ¨t und Gerichtszwang Grundlagen und Grenzen der vo ¨lkerrechtlichen Freiheit fremder Staaten von inla ¨ndischer Gerichtsbarkeit in Verfahren der Zwangsvollstreckung oder Anspruch- ssicherung (Berlin, Heidelberg, New York and Tokyo, 1985); Donald W Greig, ‘Forum State

Staatenim-Jurisdiction and Sovereign Immunity Under the International Law Commission’s Draft

Articles’ (1989) 38 International and Comparative Law Quarterly 243–76 at 243ff; Charles J Lewis, State and Diplomatic Immunity (3rd edn, 1990); Christoph H Schreuer, State Immun-

ity: Some Recent Developments (Cambridge, 1988); and Ian Sinclair, ‘The Law of Sovereign

Immunity: Recent Developments’ (1980 II) 167 Recueil des Cours 113–284.

when confronted with such issues of foreign public law However, if there

is no such adjudicative competence, the issue of immunity does not ariseany more Thus, the restrictive theory of immunity – understood as aquestion basically related to a tribunal’s adjudicative power – may ulti-

mately render any questions of immunity ratione personae superfluous.

If, on the other hand, a tribunal is competent to adjudicate a privatelaw dispute involving a subject of international law as defendant, therestrictive theory of immunity would only affirm this result by denying a

potential immunity for such acts iure gestionis Here again a separate

immunity test becomes superfluous

Lessons for international organizations: which issues should be excluded from domestic adjudication?

The crucial question – if one tried to substitute a lack-of-jurisdictionrationale for immunity – is which issues should be excluded from domes-tic adjudication Again one may seek guidance from inter-state relationsand scrutinize which types of disputes domestic courts usually regard asnot appropriate for them to decide

Lack of jurisdiction over foreign public law

As a rule – in most domestic legal systems – courts will decline to hearcases involving disputes of a ‘constitutional’ law character of foreignstates or ‘administrative’ law cases concerning, for instance, civil ser-vants of another state, etc.207 The legal reasons for this jurisdictionalabstention may be manifold In some countries, particularly in common

207Cf Brownlie, Principles, 334; Otto Kahn-Freund, ‘Review of Foreign Law?’ in Flume, Hahn,

Kegel and Simmonds (eds.), Internationales Recht und Wirtschaftsordnung Festschrift fu ¨r F A Mann (Munich, 1977), 207–25 at 207; and Ignaz Seidl-Hohenveldern, ‘Jurisdiction over

Employment Disputes in International Organizations’ in University of Oviedo (ed.),

Coleccio ´n de Estudios Jurı´dicos en Homenaje al Prof Dr D Jose´ Pe´rez Montero (1988), vol III, Oviedo, 359–72 at 367; cf also Sucharitkul, ‘Fifth Report on Jurisdictional Immunities of

States and Their Property’ in Yearbook of the International Law Commission (1985), vol II, Part

One, 25 at 36, surveying the current practice of states and concluding that ‘[t]here appears to be a general absence of jurisdiction or reluctance to exercise jurisdiction in

the field of labour relations’ See also Michael Akehurst, The Law Governing Employment in

International Organizations (Cambridge, 1967), 12, stressing the parallel between

employ-ment relations within international organizations and the civil service of foreign states:

‘Courts in all countries usually refuse to handle questions of foreign public law and, in the same way, a number of municipal courts have held themselves incompetent to judge claims brought by international civil servants against the organizations which employ then, not on the ground of immunity, but on the grounds of the special law applicable.’

Similarly, see Jean Duffar, Contribution a ` l’e´tude des privile`ges et immunitie´s des organisations internationales (Paris, 1982), 61.

law jurisdictions, it may be the result of a domestic rule such as thejudge-made act of state and non-justiciability doctrines,208or it could bethe consequence of the application of a ‘foreign revenue law’ prin-ciple.209According to the classic eighteenth-century formulation of this

principle in Holman v Johnson,210 ‘no country ever takes notice of therevenue laws of another’ Subsequently, the scope of ‘revenue laws’ hasbeen broadly understood covering various kinds of ‘public’ (or some-times ‘political’) law – as distinct from private law which is and remains

a proper body of law to be applied by foreign courts as is evidenced bythe rules of conflict of laws Next to fiscal provisions, penal laws, expro-priation legislation, etc., have been denied application/recognition byforeign courts.211The revenue rule has been limited, however, in so far

as it has been construed by courts to exclude only the direct or indirect

‘enforcement’ of foreign public laws, which means that they need notalways be totally ignored.212

In civil law countries the non-application of foreign public law isprobably a consequence rather of the general dichotomy of public andprivate law and of the particular scope of conflict of laws.213Internationalprivate law (the civil law equivalent to conflict of laws) is considered to be

a part of private law It contains conflict rules determining which (foreign

or domestic) private law should be applied in a particular situation As a

208See pp 85ff and 96ff above Cf also the English decision Buck v Attorney-General [1965] 1 All

ER 882 at 887, characterizing as one of the rules of comity the principle that one state

‘does not purport to exercise jurisdiction over the internal affairs of any other dent state, or to apply measures of coercion to it or to its property, except in accordance with the rules of public international law’ See also the broad abstention rationale relied

indepen-upon by the court in Westland Helicopters Ltd v Arab Organisation for Industrialisation, High

Court, Queen’s Bench Division, 3 August 1994, [1995] 2 All ER 387 at 397, according to which the ‘adjudication of the question of the validity of the act of a foreign sovereign state measured by the principles of public international law is no more appropriate in the English courts than is adjudication of the validity of the acts within its territory of a foreign sovereign state by reference to its own constitutional powers’.

209Cf P B Carter, ‘Rejection of Foreign Law: Some Private International Law Inhibitions’

(1984) 55 British Yearbook of International Law 111–31 at 114ff; Andreas F Lowenfeld,

International Litigation and Arbitration (St Paul, MN, 1993), 7ff; and Wilhelm Wengler, ‘U¨ber die Maxime von der Unanwendbarkeit ausla¨ndischer politischer Gesetze’ (1956) 1 Inter-

nationales Recht und Diplomatie 191–206 at 191ff.

210 King’s Bench, 1775.

211Cheshire and North, Private International Law (ed by P M North and J J Fawcett, 11th edn, London, 1987), 112ff.

212Ibid., 115; Kegel, Internationales Privatrecht, 673 Cf also P B Carter, ‘Transnational

Recog-nition and Enforcement of Foreign Public Laws’ (1989) 48 Cambridge Law Journal 417–35 at 417ff, as to the problematic distinction between mere (permitted) ‘recognition’ and

(prohibited) ‘indirect enforcement’ of foreign public law under the revenue rule.

213Kegel, Internationales Privatrecht, 675.

rule, public law (foreign or domestic) remains outside its perspective.Even where public law may be taken into consideration, civil law coun-tries also frequently follow an (at least presumed214) conflicts rule of thenon-application of foreign public law.215It seems that this rule is some-times derived from the concept of a purely territorial scope of publiclaw.216

The political reasons for this – almost universally applied – tional abstention principle are easier to explain than its precise content.Claims based on public law are usually closely connected to the interests

jurisdic-of the respective res publica (whether the state is a republic or not is

irrelevant), and it would not serve any self-serving interests of one state

to enforce the public laws (serving the public interests) of anotherstate.217

These exclusionary rules are normally special domestic rules of conflict

of laws It is doubtful whether one could argue that they form part ofinternational law, in particular whether one could deduce an interna-tional duty of domestic courts to abstain from handling disputes involv-ing foreign public law.218However, the assertion that there is no dutyunder international law to enforce the public law of another state usually

214Cf the scepticism shown in the IDI Resolution on ‘The Application of Foreign Public Law’,

adopted at its Wiesbaden Session 1975, (1975) 56 Annuaire de l’Institut de Droit International

551, speaking of a ‘so-called principle of the inapplicability a priori of foreign public law’

(Article II).

215Bernhard Grossfeld, Praxis des Internationalen Privat- und Wirtschaftsrechts (Hamburg, 1975),

95.

216 Pierre Lalive, ‘L’application du droit public e ´tranger, Rapport pre ´liminaire’ (1975) 56

Annuaire de l’Institut de Droit International 157–83 at 168; Kegel, Internationales Privatrecht,

673; see also the cases discussed by F A Mann, Zu den o ¨ffentlichrechtlichen Anspru ¨chen ausla ¨ndischer Staaten, ein Ru ¨ckblick nach 30 Jahren, Festschrift Kegel (1987), 365–88 at 380 It

has been concluded by Seidl-Hohenveldern, ‘Jurisdiction over Employment Disputes’,

367, that ‘[d]omestic courts enjoying jurisdiction on [sic!] disputes concerning acts of a

public law nature possess such power only concerning acts under their domestic public law’ See also the IDI Resolution on ‘The Application of Foreign Public Law’, which

opposes not only the ‘so-called principle of the inapplicability a priori of foreign public

law’, but also ‘that of its absolute territoriality’ (Article II) Nevertheless, its Article IV recognizes among the reasons why ‘foreign law which is regarded as public law is still applied less frequently [are] because the foreign provision is restricted in its scope to the territory of the legislator from whom it originates and because such restriction is in

principle respected’ (1975) 56 Annuaire de l’Institut de Droit International 553.

217Kegel, Internationales Privatrecht, 674.

218 Accordingly, Article I(1) of the IDI Resolution on ‘The Application of Foreign Public Law’ denies such a duty to abstain: ‘The public law character attributed to a provision of foreign law which is designated by the rule of conflict of laws shall not prevent the application of that provision, subject however to the fundamental reservation of public policy.’

rests upon the assumption that it is the foreign state or its organs seekingsuch enforcement.219It may well be that, where an individual seeks toenforce a public law claim against a foreign state, the exercise of jurisdic-tion over such a claim might interfere with that foreign state’s rights andthus warrant an obligation of the forum state to abstain from adjudica-ting.220

Internal law of international organizations as a taboo for national courts

A possible justification for excluding lawsuits against international ganizations without recurring to a wholesale immunity concept mightlie in a kind of specific choice-of-law rule with jurisdictional effect.According to this rule, the internal (i.e., the constitutional and adminis-trative221) law of international organizations could be viewed as un-suited for adjudication by domestic courts Such a rule of excluding theinternal law of an international organization cannot be justified by theformal argument that it is a particular kind of international law Quite

or-a substor-antior-al por-art of internor-ationor-al lor-aw in for-act relies on its enforcement(and thus its application) by national courts Sometimes there is even aconstitutional law obligation for domestic organs to do so.222 A normrequiring abstention from applying certain parts of international lawhas to find some distinguishing trait The non-application or abstentionrationale is more likely to be based on the materially analogous charac-ter of an international organization’s internal law to the constitutionaland administrative law rules of states There are two basic types ofinternational norms in connection with international organizationswhich may require judicial abstention by national courts: on the onehand, those of an ‘administrative’ quality; and, on the other hand,those of a ‘constitutional’ character Both could be considered to form

219 See the IDI Resolution on ‘Public Law Claims Instituted by a Foreign Authority or a

Foreign Public Body’, adopted at its Oslo Session 1977, (1977 II) 57 Annuaire de l’Institut de

Droit International 329, whose Article I(a) states that ‘[p]ublic law claims instituted in legal

proceedings by a foreign authority or a foreign public body should, in principle, be considered inadmissible in so far as, from the viewpoint of the State of the forum, the subject matter of such claims is related to the exercise of Governmental power’.

220 See Crawford, ‘International Law and Foreign Sovereigns’, 88, mentioning the ‘principle that some matters are exclusively or primarily matters for a particular State to deter- mine relat[ing] particularly to the organization and legal relations of the State’ as one

of ‘a number of established international law rules [which] can be regarded as ing the notion of restrictive immunity’.

part of an international organization’s ‘internal law’223 or ‘internalrelations’.224

The ‘administrative’ aspect of the internal law of an internationalorganization would probably find a parallel – if other states were con-cerned and not international organizations – in the concept that aforeign state’s public law or other governmental act cannot be ques-tioned by the courts of another state, thus leading to the incompetence/lack of jurisdiction, etc., of such national courts As already noted above, awholesale and unqualified exclusion of foreign public law from theapplication and recognition by domestic courts no longer seems tenable

as such.225Equally, a broad exclusion of everything that might be termedthe ‘administrative law of international organizations’ may lead to un-welcome results.226It appears correct, however, to maintain that – paral-lel to the development between states227 – the administrative law of

international organizations stricto sensu, i.e employment issues governed

by staff rules and regulations,228 should be excluded from domestic

223 As to the ‘internal law’ of international organizations, see in general Rudolph hardt, ‘International Organizations, Internal Law and Rules’ in Rudolf Bernhardt (ed.),

Bern-Encyclopedia of Public International Law (2nd edn, 1995), vol II, 1314–18 at 1315, who defines

it as the ‘norms for the internal order of the organization contained in the basic treaty as well as the ‘‘secondary’’ rules enacted by the organization’ Although hesitant to de- scribe its content in an abstract and general fashion, he counts among its typical content the purposes and principles of a given organization, its powers and organizational structure, the status and number of its officials and functionaries, etc.

224Seyersted subsumes under ‘internal relations stricto sensu’ over which international

organizations exercise ‘inherent jurisdiction’ ‘in the first place all relations between and within the organisation and its organs and officials as such It comprises also relations with member States (and their representatives) in their capacity as members of the organs of the organisation.’ Seyersted, ‘Jurisdiction over Organs’, 69.

225See pp 374ff above.

226 Sometimes the technical rules developed by international administrative unions are characterized as ‘international administrative law’ leading to broad definitions en-

compassing the law of functional cooperation between states Cf Hans-Joachim Priess,

Internationale Verwaltungsgerichte und Beschwerdeausschu ¨sse, Eine Studie zum gerichtlichen Rechtsschutz fu ¨r Beamte internationaler Organisationen (Berlin, 1989), 166ff This notion of

‘international administrative law’ would clearly transgress the scope of an ation’s internal law.

organiz-227 See p 374 note 207 above.

228Cf Wolfgang Friedmann and Arghyrios A Fatouros, ‘The United Nations Administrative

Tribunal’ (1957) 11 International Organization 13–29 at 29, speaking of ‘international administrative law in the narrow sense’; see also Georges Langrod, The International Civil

Service (Leiden and Dobbs Ferry, NY, 1963), 85; Priess, Internationale Verwaltungsgerichte,

168; and Thomas G Weiss, International Bureaucracy (Lexington, Toronto and London,

1975), xvi It is clear, however, that the exact borderline between ‘administrative’ and

‘private’ issues involving staff members of international organizations is not always easy

to draw For instance, it is not so obvious as the court in Chiriboga v IBRD, US District

adjudication.229Some national judgments demonstrate that courts arequite able to exempt international organizations from domestic adjudi-cation in such administrative matters without recurring to a concept ofimmunity.230Such decisions have been rightly characterized as ‘refusals

of the national courts not based upon the immunity of

intergovern-mental organizations from suit in municipal courts ratione personae – but

on the fact that the suit concerned matters which were within the

exclusive jurisdiction of the organization (incompetence ratione

ma-teriae)’.231

In a similar way, the proposition could be made that ‘constitutional’quarrels of or within international organizations are not proper subjectsfor national courts Disputes between member states or different organs

of an international organization or between members and organs could

be seen as such constitutional issues In this context the non-interferenceand independence argument in favour of abstention has its just place Insuch cases the claim that ‘activities of [an] organization should be carriedout exclusively under the supervision of its governing bodies and shouldnot be subjected to decisions of the national authorities of any single

Court DC, 29 March 1985, obviously thought that the insurance benefits claim by the beneficiaries of a World Bank employee who died in a plane crash was an employment dispute and therefore fell outside the jurisdiction of a national court The OECD Admin-

istrative Tribunal was recently confronted with a similarly difficult issue In Johansson v.

Secretary-General of the OECD, OECD Administrative Tribunal, 25 June 1997, Judgment No.

22, it declined to deal with a dispute between the heirs of a deceased OECD employee concerning her legal guardianship.

229Akehurst, The Law Governing Employment, 12, for instance, is of the opinion that ‘the

special nature of the law governing employment in international organizations, closely linked as it is with delicate questions of administrative policy, makes municipal tribu- nals totally unsuited to deal with it’.

230See the early Italian Supreme Court judgment in Institut international pour l’agriculture v.

Profili, Corte di Cassazione, 26 February 1931 (see pp 117 and 183 above) qualifying the

Institute as an ‘international legal person’ whose ‘power of self-determination or omy include[d] that of arranging its own organisation and controlling the relations of the organisation in their aspects both normal and exceptional, [which] rules out all state

auton-interference and all authority of its laws, substantive and procedural’ (1929–30) 5 Annual

Digest of Public International Law Cases 415 See also the cases discussed at pp 114ff above.

231 Finn Seyersted, ‘Settlement of Judicial Disputes of Intergovernmental Organizations by

Internal and External Courts’ (1963) 24 Zeitschrift fu ¨r ausla ¨ndisches o ¨ffentliches Recht und

Vo ¨lkerrecht 1–121 at 79 See also Werner Gloor, ‘Employeurs titulaires de l’immunite´ de juridiction’ in Universite ´s de Berne, Fribourg, Geneva, Lausanne et Neuchatel, Enseigne-

ment de 3e cycle de droit 1987 (eds.), Le juriste suisse face au droit et aux jugements e´trangers,

ouverture ou repli? (1988), 263–89 at 270 Karl Zemanek, ‘Die Rechtsstellung der

internatio-nalen Organisationen in O¨ sterreich’ (1958) 13 O ¨sterreichische Juristenzeitung 380–81 at 381,

speaks of ‘sachliche[n] internationale[n] Unzusta ¨ndigkeit’ in staff disputes of tional organizations.

interna-Member State’232 can be justly based on functional considerations tempting to ensure the independence of an organization.

at-This proposal for excluding certain constitutional disputes from theadjudicative power of domestic courts also finds some support in treatypractice: for a few international organizations, treaty clauses expresslyprovide for the possibility to be sued before national courts Thoseclauses, however, try to ensure that only traditional private law disputesmay reach domestic fora by excluding constitutional disputes from theadjudicative power of the national courts otherwise competent Theyregularly do so by specifically excluding actions brought by memberstates and sometimes aim at channelling disputes concerning the rela-tionship between members and the organization into special (regularlyintra-organizational) dispute settlement mechanisms While, for in-stance, the constituent regime of the World Bank does not provide for itsimmunity from suit in domestic courts, it expressly excludes actions

‘brought by members or persons acting for or deriving claims frommembers’.233National courts interpreted this exclusion of suits intended

as a safeguard to prevent that member states intruded into ‘essentialpolicy decisions entrusted to [the Bank’s] officers and Board’.234Otherconstituent agreements of international economic organizations – whichcontain the same exemption clause from the organization’s immunity asthe World Bank – expressly provide that constitutional disputes should

be settled in non-national fora.235The immunity regime of the eral Investment Guarantee Agency also demonstrates an increased aware-ness that next to constitutional disputes administrative ones should also

Multilat-be expressly removed from the adjudicative power of domestic courts.236

232See FAO, Office of the Legal Counsel, ‘Constitutional Matters’ (1982) United Nations

Juridical Yearbook 113.

233 Article VII(3) of the IBRD Articles of Agreement See p 141 note 545 above for the entire text.

234Lutcher SA Celulose e Papel v Inter-American Development Bank, US Court of Appeals DC Cir., 13

July 1967, 382 F 2d 454 at 458 (DC Cir 1967).

235 The Agreement on the Common Fund for Commodities makes this clear: ‘Nevertheless, Associated ICOs [International Commodity Organizations], ICBs [International Commod- ity Boards], or their participants shall have recourse to such special procedures to settle controversies between themselves and the Fund as may be prescribed in agreements with the Fund, and, in the case of Members, in this Agreement and in any rules and regulations adopted by the Fund.’ Article 42 of the Common Fund for Commodities Agreement.

236 Article 44 of the MIGA Convention states: ‘Actions other than those within the scope of Articles 57 [disputes between the Agency and members] and 58 [disputes involving holders of a guarantee or reinsurance to be arbitrated] may be brought against the Agency only in a court of competent jurisdiction in the territories of a member in which the Agency has an office or has appointed an agent for the purpose of accepting