# The Author 2011. Published by Oxford University Press. All rights reserved doi: 10.1093/chinesejil/jmr008.......................................................................................................................................

The State of Functional Immunity of International Organizations and Their Officials and Why It Should be Streamlined

Kibrom Tesfagabir*

Abstract

Arguably, international organizations are among the important social inno-vations of the twentieth century. In the last 50 years, they have managed to become global conglomerates by establishing a stake in every facet of human life. Their growing role has brought the efficacy of the legal rules that govern their interaction into spotlight. This article inquires how functional immu-nity, one of the above-mentioned rules, is, arguably, erroneously understood and applied. It also presents arguments that should shape application thereof.

I. Introduction

1. In traditional international law, a sovereign could claim unfettered immunity from the jurisdiction of another sovereign.1 Sovereign immunity, in its classical

Assistant Lecturer, Law School, College of Arts and Social Sciences, Eritrea (email: kibrom82@gmail.com). This article was based on my thesis submitted for my LL.M. degree in international law at Wuhan University Institute of International Law. I wish to thank Professor Sienho Yee for his guidance during the preparation of the thesis and this article. I am also grateful to my friends Diego Santiago Rivero and Luwam G. Dirar for their valuable comments on a first draft of this article. The article employs functional immu-nity and organizational immunity interchangeably. Unless specifically noted, they refer to the immunity enjoyed by international organizations, as institutions, and their officials. This article was completed on 19 January 2011.

Lakshman Marasinghe, The Modern Law of Sovereignty Immunity, 54 The Modern LR (1981), 678. Ernest Angell, Sovereign ImmunityThe Modern Trend, 35 Yale LJ (1925), 150 168.

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10 Chinese Journal of International Law (2011), 97 12898Chinese JIL (2011)

sense, excludes a sovereign from the application of legislative, judicial and adminis-trative fiat of another sovereign.2 This concept is as archaic as the concept of State itself. Primarily forged to serve feudal and monarchial personalities, it took pride of place within Roman, Frankish and later Merovingian establishments.3 It has also undergone the test of philosophy. Within the philosophical discourse of classic juri-political thinkers, like Bodin and Hobbes, immunity has been described as a component of, in Hobbess term, the Leviathan.4Sovereign immunity took its modern shape along the lines of State practice.

States, out of diplomatic courtesy and comity, became willing to partially waive their exclusive power and give another sovereign a license,5 according to The Schooner Exchange, as a manifestation of perfect equality and absolute indepen-dence of sovereigns.6

Absolute immunity, as it was, was built upon the assumption that a States role is limited to police functions.7 Its expansion, in international relations, beyond tra-ditional limits necessitated the orthodoxy of immunity to be revisited.8

The international plane is no more uncharted territory where States, in

solo, interact and take action. International organizations are very much part of international life.9 They facilitate international relations by creating platforms, influencing decisions and monitoring their execution. Generally speaking, they have institutionalized cooperation10 and, according to Klabbers, have come

Malcolm Shaw, International Law (6th edn. 2008), 701. See also Tim Hillier, Sourcebook on Public International Law (1998), 289.

Alexander C. Murray, Immunity, Nobility, and the Edict of Paris, 69 Medieval Academy of America (1994), 18. See also William H. Reeves, Leviathan Bound: Sovereign Immunity in a Modern World, 43 Virginia LR (1957), 529 557. See also Hillier, above n.2, 288. Don Mayer, Sovereign Immunity and the Moral Community, 2 Business Ethics Quarterly (1992), 419. Jerrold Mallory, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 Columbia LR (1986), 169 197.

Mayer, above n.3, 419 428. Bodin remarked it [sovereign immunity] is the distinguishing mark of the sovereign that he cant in anyway be subject to the commands of another. Ibid., 664. See also Charles H. Brower, International Immunities: Some Dissident Views on the Role of Municipal Courts, 41 Virginia JIL (2000), 2 5.

Ian Brownlie, Principles of Public International Law (7th edn. 2008), 323. Brownlie describes sovereign immunity as a license in which the agents of one state may enter the territory of another and there act in their official capacity.

The Schooner Exchange v. MFaddon and Others, 11 US (7 Cranch) 116 1812. C.F. Amer-asinghe, Principles of Institutional Law of International Organizations (2nd edn. 2005), 315.

Brownlie, above n.5, 327.

Mayer, above n.3, 421; Brownlie, above n.5, 336 339; Sienho Yee, Foreign Sovereign Immunities, Acta Jure Imperii and Acta Jure Gestionis: A Recent Exposition from the Cana-dian Supreme Court, 2 Chinese JIL (2003), 649 653.

Brower, above n.4, 3 5.

Gaillard and Pingel-Lenuzza, below n.59, 16.Tesfagabir, The State of Functional Immunity 99

to embody many of the characteristics traditionally associated with big government.11

A fitting example would be the UN. A global enterprise founded to save humanity from the scourge of war,12 it now has a stake in the governance of human rights, the global environment, the health of State bureaucracy and the safety of transportation systems, among other functions.

The increasing role of international organizations may also be seen in the light of their proliferation. The volume and heterogeneity of the tasks that they have come to assume have repercussions not only in increasing the intensity of their inter-action with the outside environment but also in putting rules that govern this inter-action in the spotlight.

Immunity has been the subject of debate both in scholarship and in judicial practice. This article aims to contribute to the ongoing debate with the following mission.

This article discusses that normative and non-normative factors necessitate the existing application of immunity be revisited. It argues that normative norms, mainly human rights and international responsibility, should shape the application of immunity. From a non-normative perspective, it asserts that being close to a level of judicial scrutiny may prevent international organizations from becoming insen-sible species that fail to read and accordingly adjust to the environment within which they operate. Pursuing absolute immunity may backfire as other actors may question the fidelity of these organizations. This is especially important

when many traditional elements of the law of international organization are subject to reconsideration.13

To put the argument in perspective, this article, in Section II, discusses sources of functional immunity. It then briefly deals with arguments that support functional immunity. Section III analyses jurisprudential and practical problems associated with functional immunity. It also lays out normative arguments that may substan-tively affect the application of immunity. Finally, it offers recommendations.

The sources of and reasons for functional immunity

II.A. The sources of functional immunity

10. Compared with sovereign immunity, organizational immunity is a recent phenomenon. It developed, roughly, with the advent of international organizations. Kunz traces immunity-conferring agreements back to the first half of the nineteenth

Jan Klabbers, The Changing Image of International Organizations, in: Jean-Marc Lociaud and Veijo Heiskanem (eds.), The Legitimacy of International Organizations (2001), 222.

UN Charter, Preamble (1945).

Klabbers, above n.11, 255.100Chinese JIL (2011)

century.14 In his assessment, at least until 1939, immunity was a luxury at the disposal of few.15 The 1940s experienced a shift in paradigm as several immu-nity-conferring instruments began to proliferate in the international scene.16

11. This section charts out different conventional sources that confer immunity upon international organizations.

II.A.i. Conventional sources

12. This section discusses conventional sources of organizational immunity. These are constitutions,17 General Multilateral Agreements on Immunity (GMAI) and bilateral agreements. The discussion starts with constitutions [of international organizations] and subsequently deals with multilateral and bilateral agreements.

II.A.i.a. Constitutions

13. Although constitutions may not squarely fit into the ordinary process of inter-national legislation, they may be considered conventional sources.18 Since the 1940s, it has become common for constitutions to contain one or more provisions on immunity.19

14. Article 105 of the UN Charter is by far the notable provision that elucidates the relevance of immunity in constitutive instruments.20 The provision, inter alia,

Josef Kunz, Privileges and Immunities of International Organizations, 41 American JIL (1947), 828 830.

Ibid.

Ibid. See also Michael Singer, Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns, 53 Virginia JIL (1995 1996), 68.

Constitution, in this context, refers to a founding instrument of an international organiz-ation, which is alternatively referred to as constituent instrument.

For a similar analysis on the characteristics of constitutions, see Henry G. Schermers and Niels M. Blokker, International Institutional Law (4th edn. 2003), 724.

H.F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional Neces-sity Analysis of Their Legal Status and Immunities (1994), 123. Bekker states, [. . .] clauses concerning privileges and immunities can be found in the constituent instruments of almost every international organization [. . .] the constituent instruments of most international organizations now existing provide for at least the basic privileges and immunities of the organization [. . .]. Ibid.

Art. 105 of the UN Charter reads:

The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

Representatives of the Members of the United Nations and officials of the Organiz-ation shall similarly enjoy such privileges and immunities as are necessary for the inde-pendent exercise of their functions in connection with the Organization.

The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conven-tions to the Members of the United Nations for this purpose.

Bekker remarks that Article 105 has ever since served as a model for similar provisions in the legal instruments of a wide variety of international organizations. Ibid., 127.Tesfagabir, The State of Functional Immunity 101

confers immunity to the UN as is necessary for the fulfillment of its purposes and independent exercise of its functions.21 A similar, if not identical, provision is sti-pulated in the Charter of OAS. It states that the organization shall enjoy in the ter-ritory of each Member such legal capacity, privileges and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes.22

One can sense in these instruments an ardent desire to clad an organization in a robust immunity. This is the first front of engagement that opponents of absolute immunity must face in their intellectual combat. The following are some of the structural defences that they have to face. Firstly, constitutions are self-contained structures meant to achieve localized expectations. This is evident in the process of negotiation and adoption of constitutions. Constitutions are prepared through a bargaining process where States strive to shape organizations in a way which reflects their orientations. In this process, the interests of a third party is sidelined or, at most, kept minimal.

Few documents would more aptly fit the aforementioned model than the UN Charter. The Charter claims that its goal is to salvage humanity from the plight of war. It would be nave, however, to assume that the drafters prepared it with absol-ute benevolence towards humanity. In the first place, it is a victors charter, which is why only five States have veto power. So how does this fit with the issue of immu-nity? Firstly, one needs to remember the limited number of statesmen behind the

construction of the Charter. Furthermore, Bekker provides analysis on the travaux preparatoires of Article 104 of the Charter.23 According to him, Subcommit-tee IV/2, an offshoot Commission tasked to prepare the functioning provisions of the Organization,24 had to be prudent in designing a provision that would not be as flimsy as that of the League of Nations.25 According to H.F. Bekker:

Ibid.

Charter of the Organization of American States, 1609 U.N.T.S 119, art. 103. Art. 104 further states, the Representatives of the Governments of the Council of the Organization, the Representatives on the Organs of the Council, the personnel of their Delegations, as well as the Secretary General and the Assistant Secretary General of the Organization, shall enjoy the privileges and immunities necessary for the independent performance of their duties.

This is further buttressed by a strong presumption that goes in favour of the Organization. This is explicit in the ICJs advisory opinion in Reparation. The Court, in Reparation, stated that upon examination of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 184.

Ibid.

Art. 7 of the League of Nations, inter alia, states, representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities. The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.102Chinese JIL (2011)

the report of the Rapporteur of Committee IV/2, as approved by the Com-mittee, paragraph 1 laid down a rule binding all member States from the date the Charter would enter into effect. The Committee further opined that the rule set forth in paragraph 1 should apply in any circumstances, its authority being in no way subordinate to the exercise by the General Assembly of its power, under paragraph 3 of draft article 105, to make recommendations or propose con-ventions to the member State for determining the details of the application of paragraphs 1 and 2.26 [Emphasis added.]

17. Bekkers observation brings relevant realities on how immunity provisions are drafted and the stake that organizations attach to them. It would require a modicum of intelligence to sense this from the work of Committee IV/2. The final submission of the Commission is tailored in a way such that States may not question the extent of the Organizations immunity in retrospect. This is what the Rapporteur wrote:

the draft article proposed by the Committee does not specify the privileges and immunities respect for which it imposes on member states [. . .] the terms [. . .] indicate in a general way all that could be necessary to the realiz-ation of the purposes of the Organization [. . .] it would moreover have been impossible to establish a list valid for all the member states [. . .] but if there is one certain principle it is that no member state may hinder in any way the working of the Organization or take any measures the effect of which might be to increase its burdens, financial or other.27

18. One may argue that this is a thing of the past and does not represent the larger segment of international organizations, which were not established to balance deli-cate issues of power and politics as was the UN. It is a legitimate concern and merits consideration. The analysis, however, comes with the following caveat. Firstly, as Bekker has observed, the immunity provision of the UN Charter has been a beacon to many organizations.28 Thus, whether consciously or unconsciously, they bear the stain of the delicate draftsmanship of the provision.

19. Brower, in contrast, remarks, article 105 gave birth to a more limited breed of international immunities based on the functional necessity doctrine. The

Bekker, above n.19, 125.

Ibid., 126 127. According to Bekker, the report of Committee IV/2 was approved by the Coordination Committee and by Commission IV and the recommended draft provision con-tained therein, after its approval by the Conference at its ninth Plenary Session held on 25 June 1945, became Article 105 of the UN Charter. Ibid. See also Singer saying, this prin-ciple has provided the basis for unjustifiably broad claims of jurisdictional immunity on the ground that any judgment against an international organization by a municipal court would constitute a disposition of the organizations collective funds. Singer, above n.16, 85.

Ibid.Tesfagabir, The State of Functional Immunity 103

functional necessity doctrines underlying premise is simple and flows from recipro-cal notions of good faith.29 The article concurs with Brower on the limited breed nature of functional immunity. Functional immunity is supposed to serve limited circumstances. This is, however, not aptly translated in practice. International organizations, as far as immunity goes, have been unfaithfulcontrary to the good faith expectation of Browerin their international dealings. This is evident in the tenacity of international organizations, with the exception of oper-ational or managing30 organizations, in claiming broad immunity.

20. One, thus, needs to look into constitutions to evaluate the status quo of func-tional immunity. Klabbers wrote, the law of international organizations seems to contain a built-in bias in favor of the organizations.31 Although it is difficult to presume what these structures might be, it is rather convincing to assume that con-stitutions are accomplices. Constitutions need to embody caveats in their immunity clauses. This may be also done in secondary instruments such as multilateral agreements.

II.A.i.b. General Multilateral Agreements on Immunity

21. GMAI are platforms whereon States place the nuts and bolts of organizational immunity. They supplement generally constructed constitutional provisions on immunity.32 GMAI incorporate specific rules on how an organization may consum-mate its functional immunity. They also provide insight into the intention of Member States on how they conceive immunity.

The following paragraphs briefly discuss the pertinent provisions of the UN General Convention on the Privileges and Immunities of the UN (herein after the General Convention).

The General Convention is one of the widely ratified immunity instru-ments.33 It was adopted by the General Assembly at its first session on 13 February 1946 and entered into force on 17 September 1946.34 It provides detailed rules on the immunity of the UN, its officials and experts in mission.

Article II, Section 2, of the General Convention confers immunity from every form of legal process to the UN. The article triggered discussions as to its consistency with the UN Charter. It has been mentioned that the Charter confers immunity on the organization as are necessary for the fulfillment of its purposes. Some interpret Article II to broaden the limits set by the Charter. Others oppose

Brower, above n.4, 3 5.

Bekker, above n.19, 128.

Klabbers, above n.11.

Bekker, above n.19, 129.

Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13 February 1946.

Bekker, above n.19, 131.104Chinese JIL (2011)

this and view the General Convention as overlapping with the immunity clause of the Charter. For practical reasons, the latter must prevail over the General Conven-tion. Furthermore, if one refers the travaux preparatoires of Article 105, it supports the fact that the latter is constructed along the lines of functional, thus limited, immunity.

25. The UN maintains that it benefits from absolute immunity. It had voiced this in several cases. Courts, for their part, are largely divided. Some interpret both instruments to provide absolute immunity to the UN. Others maintain that immunity is applicable only in cases that may impede the fulfilment of its functions.

The General Convention also provides immunity to officials and experts in missions of the UN. Article V, Section 18, states that officials enjoy immunity from jurisdiction only with respect to their official acts and words spoken or written in an official capacity. This would include officials who run the daily activity of the organization. Article VI, Sections 22 and 23, confers immunity to experts in missions of the UN. These are officials who assume specific and temporary mandates from the UN. This class of immunity (as in the case of officials) is limited to official functions and is effective for the duration of the mission.

The application of these classes of immunity, as in the case of any immunity regime, presupposes the existence of alternative dispute settlement. The General Convention, in Article III, Section 29, provides that the United Nations shall make provisions for appropriate modes of settlement of [. . .] disputes arising out

of contracts or other disputes of a private law character to which the United Nations is a party.35 It is claimed that the UN has implemented Article 29 by incorporating arbitration clauses into its purchase contracts, lease agreements, estab-

lished public liability insurance against personal injury and other such routine tort claims.36 Fair enough. Yet, these do not address claims that may arise from its public actions. A case in point is the sanction-imposing procedure of the Security Council.37 These and other issues are discussed in the subsequent sections of the article.

It has been mentioned that the UN immunity regime has been a model for other organizations. The General Agreement on Privileges and Immunities of the Council of Europe (1949), for example, incorporates a similar provision. It provides

that [t]he Council, its property and assets, wheresoever located and by whomsoever held, shall enjoy immunity from every form of legal process.38 The Agreement on

General Convention, above n.33, art. III, Section 29.

Singer, above n.16, 85.

See Wilde, below n.118 and the accompanying text.

Privileges and Immunities of the Council of Europe (1949), ETS No. 2, art. 3.Tesfagabir, The State of Functional Immunity 105

Privileges and Immunities of OAS provides an identical provision in Article 2 of the convention.39 Relevant instruments of the AU hold similar provisions.

29. In a manner of reflection, GMAI are important instruments in spelling out the extent and limit of organizational immunity. They set specific rules of engagement for their respective organizations. By the same token, they demonstrate whether organiz-ations are responsible species depending on how fairly they set their internal rules. This may be measured in terms of the efficiency of dispute settlement mechanisms they adopt and the quality of compensatory schemes they provide.

II.A.i.c. Bilateral agreement

30. Bilateral agreement is another conventional source that regulates the interaction of an international organization at a domestic level. It provides detailed and specific accommodating rules. As Bekker puts it:

[. . .] the other legal sources for granting the necessary privileges and immu-nities, i.e., constituent instruments, general agreements, domestic legislation or customary international law, are not sufficiently specific for the regulation of this kind of relationship. In relation to the host State the organization often has a need for privileges and immunities of a wider scope and diversity than those provided for in general multilateral agreements. Moreover, only by means of a headquarters agreement can this special relationship be tuned in to the particular circumstances which characterize a host State.40

The article provides: the Organization and its Organs, their property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case the immunity has been expressly waived. It is under-stood, however, that no such waiver of immunity shall make the said property and assets subject to any measure of execution. Agreement on Privileges and Immunities of the Organ-ization of American States, 05, 1949, 1438 U.N.T.S. 24376, art. 2. See also Amerasinghe, above n.6, 319.

Bekker, above n.19, 136. See also Jan Klabbers, An Introduction to International Insti-tutional Law (2002), 161. In contrast to the idea that headquarters agreement are bilateral agreements, Kunz, supporting Jenks, challenges the conventional nature of these agreements. According to Kunz, an agreement between the organization and the state of its seat, as the Swiss modus vivendi of 1926, is equally not an adequate method. The legal nature of such agreement is doubtful; it is not an international treaty; both parties can at any time renounce it in part or as a whole. It leads only to an agreement with a single Member State and fails to afford a solid legal foundation for the permanent independence of the international organ-ization. Kunz, above n.14, 848. These remarks should, however, be seen in the light of the period they were made. Perhaps, it would be difficult to foresee that international organiz-ations will have such treaty-making powers at the time when Jenks and Kunz made the remarks. Given the adoption of the Vienna Convention on Law of Treaties between Inter-national Organizations and States and existence of wide practice, the status of headquarters agreement, as a binding treaty, is not an issue. See Muller, below n.74; Schermers and Blokker, above n.18, 1072 and 1114.106Chinese JIL (2011)

31. Bilateral agreement may be executed in different fashions.41 Headquarters agree-ment is a common form of bilateral agreement that bears an immunity clause. Among the first generation of bilateral agreements is the bilateral agreement between the League of Nations and the Swiss Federal Council adopted based on Switzerlands restrictive approach towards diplomatic personnel.42 The modus vivendi, as it was, classifies the bureaucracy of the League into first and second categories for immunity purposes.43 A more comprehensive bilateral agreement was concluded between the United States and the UN.44

In terms of design, bilateral agreements may be convenient platforms wherein a State may negotiate a restrictive immunity regime. The context may allow it to be

in a better negotiation position than in a multilateral setting. Practice abounds, however, to show that this is usually not the case.45

Notable bilateral agreements include France International Police Organiz-ation (INTERPOL) and AU Ethiopia headquarters agreements. The newly

revised France INTERPOL agreement provides immunity to INTERPOL except in private interactionsmainly contracts and motor vehicle accidents.46 In an exemplary move, the agreement incorporates dispute settlement procedures,47 which either are absent or loosely framed in other agreements.48

The AU-Ethiopia headquarters agreement, on the other hand, incorporates a

distinct immunity regime. The agreement embodies functional immunity along with mainstream immunity.49 According to the agreement, AU officials enjoy dip-lomatic immunity as accorded to diplomats by virtue of the Vienna Convention on

Ibid., 134 140.

Brower, above n.9, 13. The League initially concluded a provisional agreement with the Swiss Federal Council on 17 July 1921, which gave its officials diplomatic privileges and immu-nities. This was later replaced by the modus vivendi on 18 September 1926. See Kunz, above n.14, 832.

Ibid.

Klabbers, above n.40, 163.

It looks as though international organizations, in many cases, manage to adopt favourable agreements. This is visible in terms of the absence of robust dispute settlement mechanisms.

Agreement between the INTERPOL and the Government of the French Republic regarding INTERPOLs Headquarters in France, 3 November 1982 (as amended), GA Res AGN/51/ RES/1.

Ibid., art. 24. The Permanent Court of Arbitration has jurisdiction over issues that emanate from the headquarters agreement.

Several headquarters agreements provide dispute settlement procedures for issues that arise from the interpretation or application of the agreement itself.

Agreement between the AU and the Federal Democratic Republic of Ethiopia on the Head-quarters of the African Union, 25 April 2008. Art. 4 of the convention states, The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the AU, the Commission, its property, funds and assets, the headquarters, premises, and facilities of the Commission.Tesfagabir, The State of Functional Immunity 107

Diplomatic Relations.50 It has to be noted that adopting such a broad immunity regime may jeopardize local interests.51

II.A.ii. Customary international law

35. The status of customary international law as a source of organizational immu-nity is a controversial subject. It has been observed that immunity developed along conventional sources.52 It has also been noted that its development, as a post-World War II phenomenon, is solidified by the UN immunity regime. As is widely docu-mented, owing to universal ratification of the General Convention, the functional immunity regime of the UN may have attained the status of customary international law.

36. The issue, however, goes beyond examining the customary status of the UN. One must inquire whether the whole discipline, in its own right, has attained similar status. Scholarship is divided. Bekker, for example, argues that the status of the General Convention does not reflect the customary status of functional immunity as a whole. Brower, on the other hand, writes:

In substance, the General Conventions provisions on jurisdictional immunity have been applied to other organizations and non-member states through the development of similar treaties and customary international law. For example, most of the major international organizations adopted the General Conven-tion as a model for their own treaties, which provide for jurisdictional immu-nity on substantially the same terms. Furthermore, some influential writers and courts argue that the General Convention and its progeny have matured into rules of customary international law. For instance, the United Nations Legal Counsel asserts that the General Convention consists part of the customary law governing relations between the United Nations and all member states. Other writers assert that the General Convention reflects a cus-tomary law that presumptively applies to a broader range of international organization.53

Ibid. Art. 14. Art. 14 states that the Chairperson, the Deputy Chairperson, the Commis-sioners, and Officials of the Commission of Professional 4 (P4) rank and above shall have, in respect of themselves, their spouses and dependent children such privileges and immu-nities as are accorded under the Vienna Convention and the General Convention.

Although diplomatic immunity (as enshrined in the Vienna Convention on Diplomatic Relations) and the jurisprudence of organizational immunity share some communality, it is unfitting to put them in one context. Amerasinghe states, the immunities and privileges accorded to this category [international organizations] are generally very similar to those accorded to diplomatic agents but with rather greater emphasis on the functional basis of the privileges and immunities. Amerasinghe, above n.6, 315.

See above n.14 et seq. and the accompanying texts.

Brower, above n.4, 22 23.108Chinese JIL (2011)

37. It is difficult to imagine the bondage that Brower is trying to construct. He tries to tie the customary status of the General Convention to the entire jurisprudence of functional immunity. There is no substantial evidence that establishes that the relationship is more than a borrowing of ideas. This has also to be seen in the light of the cynicism that some hold in relation to the customary nature of the whole immunity regime.

Henry Schermers, for example, writes, the uncertainty about the lack of its precise scope and content decreases somewhat the utility of customary international

law as a solid legal basis for granting privileges and immunities to international organizations in general.54 Singer similarly argues, although customary law on the jurisdictional immunity of the United Nations is relatively well developed, there is little persuasive evidence of customary norms delimiting the jurisdictional

immunities of other specific international organizations, or of international organ-izations in general.55

It must also be carefully considered, including in the case of the UN, which segment of immunity has assumed customary status. In the case of the UN, for example, assume that its immunity has attained customary status. From this, it is difficult to deduce functional immunity, as a whole, has attained the status of cus-tomary international law. Secondly, one needs to differentiate between the custom-ary nature of functional immunity and its scope. This is to note that the assumption of customary international law hardly says anything as to its scope. The customary nature of the UNs immunity, for example, does not necessarily reflect the extent of its immunity.

II.A.iii. Domestic legislation

40. Domestic laws may regulate immunity. As in the case of bilateral agreements, domestic legislation governs the interaction of an organization in a domestic context. Domestic immunity instruments embody principles that are usually enshrined in international immunity instruments. They reiterate standard provisions and domesticate relevant issues that are common to these instruments. One of these instruments is the International Organizations Immunities Act (IOIA).

41. The IOIA governs functional immunity in the United States.56 It sets the pri-vileges and immunities that organizations enjoy within the mentioned jurisdiction. The immunity clause of the instrument has been at the centre of controversy. The provision dictates that international organizations shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.57

Schermers, as quoted in Bekker, above n.19.

Singer, above n.16, 98.

United States International Organizations Immunities Act, 29 December 1945, 22 U.S.C., Section 288.

Ibid. Section 2, para.B.Tesfagabir, The State of Functional Immunity 109

There are discussions over whether the provision bears jure imperi-juri gestionis dis-tinction. At any rate, the governance of immunity at a domestic level is a delicate issue where a government has to maintain a balance between domestic and inter-national interests.

II.B. Reasons for granting functional immunity

42. The rationale for conferring immunity is widely documented. Repeating it in its entirety in this piece is unnecessary. The following paragraphs provide a brief dis-cussion thereof.

II.B.i. Independence of international organizations

43. The necessity of protecting organizational independence is one of the reasons why international organizations claim immunity. Independence is considered both a requirement and a necessity in the jurisprudence of international organiz-ations.58 The requirement of organizational independence is aptly described by James Lorimer, who said, international organizations belong to all member states and to none. According to proponents of organizational immunity, organiz-ational independence may be safeguarded if an organization carries out the common interest of its Member States. To keep this balance, it needs to be free from any form of influence. According to them, being subject to domestic court may vitiate this balance. This is because judiciaries may become proxies by which States gain extra avenues to influence organizational activity.

Independence is also an embodiment of the equality of Member States. Member States may be considered shareholders that maintain separate identities from that of the organization. They own equal shares with equal distribution of power both in terms of management and decision-making. The exercise of judicial authority therefore may run contrary to the maintenance of equality. Immunity therefore serves as a stabilizing mechanism, allowing Member States to exercise sovereign authority on an equal footing.

Maintenance of equality may in turn influence the legitimacy of an inter-national organization. The exercise of judicial power by a domestic court may leave an impression that the international organization is but an instrument of a State. This may overshadow its impartiality and ultimately its legitimacy.

II.B.ii. The functional argument

46. It is widely held that international organizations need immunity to function. Immunity allows them to operate with ease in difficult environments. Absence thereof may place them in a difficult position, as they may be overwhelmed by a flood of cases, in which case many may be baseless.

See Schermers and Blokker, above n.18, 252; Amerasinghe, above n.6, 320; Kunz, above n.14.Chinese JIL (2011)

The functional argument may be tied with efficiency. International organiz-ations are meant to carry out specific objective(s). Thus, they need to be efficient in terms of the resourcesboth temporal and financialthat they spend in dischar-ging their objectives. Immunity, as stated above, allows them to mobilize their resources and live up to expectations of Member States.

II.B.iii. Structural limitations of international organizations

48. International organizations lack many attributes of statehood. They have, inter alia, neither a territory of their own nor a judiciary to which they can resort. As far as territory goes, organizations depend on sovereign States to operate. Dependence comes with limitations. States allow organizations to operate in a limited context, both geographically and operationally. Thus, they do not have the same luxury of space as that of States.

49. Organizations also lack judicial institutions of their own. This limits the possibility of initiating a legal action. It is argued that States may bring legal action in their courts if their interest is violated. Organizations are, however, unable to, or, at the very least, find great difficulty in bringing one.

II.B.iv. Of pride and prejudice

50. Functional immunity is also justified on grounds of pride and prestige. It has been mentioned that lack of immunity may open a floodgate of baseless claims. This, it is claimed, may undermine the pride of international organizations. Fur-thermore, there is an argument that domestic courts may not be neutral in cases that involve international organizations. The concern is that courts may consider organizations as foreign elements whose interest should be secondary to local ones. As it is widely argued, international organizations are justified in claiming restrictive immunity for functional purposes. Nevertheless, it is difficult to read this in the prevailing practice. International organizations often tend to claim absol-ute immunity. The apparent lack of consensus on the very definition and scope of functional immunity further complicates the problem. The following part discusses these issues in length.

III. Jurisprudential and practical problems with functional immunity

III.A. Attendant issues in functional immunity

51. It has been observed that functional immunity is a restrictive concept. It has been also noted that there is a tendency, on the part of international organizations, to claim broad immunity. This defies the basic tenet of functional immunity thatTesfagabir, The State of Functional Immunity 111

dictates immunity must fit the functional needs of an organization.59 Furthermore, waiver is rarely utilized and alternative dispute settlement mechanisms are either weak or non-existent.60 All these factors necessitate a revisit of its legal science to identify its ills.

52. This part first unfolds the discrepancy between law and practice as regards functional immunity. It explains how functional immunity is applied in practice. Furthermore, it illustrates how functional immunity should be understood and applied.

III.A.i. Romanticizing functionality

53. There is a measure of rationality in the function-based argument in favour of immunity. This is explicit in legal instruments, which demand immunity as strictly necessary for the exercise of [organizational] functions.61 This is, however, not necessarily what practice holds. August Reinisch and Ulf Andreas Weber described the phenomenon by saying international organizations are said to enjoy functional immunity, the immunity necessary to ensure their independent functioning. However, what appears like a restrictive concept of immunity, in practice turns out to be a fairly broad and almost unlimited immunity from the jurisdiction of national courts.62

The following paragraphs show the extent to which organizations claim immunity beyond ordinary limits. They also demonstrate how the functionality rationale is losing its validity due to expansive claims.

In Dupree Associates Inc. v. OAS, the plaintiffs brought action against the Secretariat of the OAS seeking damages for breach of service contract.63 The

Secretariat requested that the US District Court dismiss the case on the ground that the organization is immune from judicial action. It based its argu-ment on the IOIA, which, allegedly, provides international organizations the same level of immunityabsolute immunityas sovereigns. The Court rejected the Secretariats argument by saying, inter alia, that the legal action arose from a

Emmanuel Gaillard and Isabelle Pingel-Lenuzza, International Organizations and Immunity from Jurisdiction: To Restrict or to Bypass, 51 ICLQ (2002), 2.

Ibid. Gaillard and Pingel-Lenuzza observe, according to the dominant theory, it is the exist-ence of these alternative means of dispute resolution that justifies the absolute character of the immunity of international organizations, for the reason that they neutralize this absolute charter. Ibid., 2 3.

Singer, above n.16, 101.

August Reinisch and Ulf Andreas Weber, In the Shadow of Waite and Kennedy: The Juris-dictional Immunity of International Organizations, the Individuals Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement, 1 Inter-national Organization LR (2004), 59.

Dupree Associates Inc. v. OAS, US District Court for the District of Columbia, 31 May 1977, 22 June 1977, 63 ILR (1982), 92.112Chinese JIL (2011)

commercial activity of the organization, and it was therefore not immune from suit.64

56. The US District Court for the Southern District of New York revisited the rationale of UN immunity in U.S. v. Melekh.65 The defendant, a Russian citizen, was charged for acts of espionage.66 The Court rejected the application of Article 105 of the UN Charter and the General Convention to the defendant by saying:

The language of Article 105 of the United Nations Charter, its legislative history and the intention of its draftsmen refute completely the defendant Melekhs contention that the immunity granted by Article 105 is similar to the immunities granted to ambassadors and public ministers through the civilized world, including specifically immunity from jurisdiction. Assuming the argument that Article 105 is a decretal provision, the Court is of the view that the defendant Melekh does not come even remotely within its protective reach. The alleged acts forming the subject of the indictment were patently not necessary for the fulfillment of the United Nations purposes, nor were they necessary for the independent exercise of the functions of Member States representatives and United Nations officials in connection with the United Nations) Organization.67

57. Melekh demonstrates the extent to which functional immunity may be taken to illogical limits. By the same token, it endorses a restrictive reading of immunity provision.

Along the same lines, Italian courts have, to a large extent, been vocal in challenging broad immunity claims. In INPDAI v. FAO,68 the defendant rented a building owned by the plaintiff in Rome. The latter requested the Italian Court of Cassation to decide that the organization pay a higher rent. FAO

objected to the jurisdiction of the Court based on, inter alia, the fact that it had immunity from legal action.69 The Court rejected the objection on the ground that the organization cannot claim immunity in private contracts such as the one at issue.

In Cynthia Brazak and Nasr Ishak v. the UN et al., the UN and several top officials were sued, inter alia, for sexual harassment in a US District Court.70 The

Ibid.

U.S. v. Melekh, 190 F. Supp. 67 (S.D.N.Y. 1960).

Ibid.

Ibid.

Istituto Nazionale di Previdenza Per l Dirigent Di AziEnde INDUSTRIALI (INPDAI) v. FAO, Supreme Court of Cassation, 18 October 1982, UNJYB (1982), 234.

Ibid.

Cynthia Brazak and Nasr Ishak v. the UN et al., 06 Civ. 3432 (RWS). In the course of the proceedings, the US District Attorney for Southern District of New York wrote to the CourtTesfagabir, The State of Functional Immunity 113

defendant objected to the jurisdiction of the Court on grounds of absolute immu-nity. The Court ruled in favour of the defendant. On March 2010, the US Court of Appeals for the Second Circuit affirmed the decision on similar grounds. The Court interpreted the UN Charter and the General Convention to confer absolute immu-nity to the UN. It is difficult to relate the Courts ruling to the functionality argu-ment. It becomes absurd if one tries to assess the necessity of the alleged act with the function of the organization. A similar, if not identical, decision was given in

Mothers of Srebrenica.

In Mothers of Srebrenica, the Dutch Government argued that the UN is

immune in a case relating to a compensation claim for an alleged failure of the latter to avert the commission of genocide.71 The Court held that the absolute immunity of the UN is established in international law practice.72 Although few would dispute the customary status of UN immunity (if that is what the Court is referring to), the Court should have, primarily, tried to discern immunity of the UN from conventional sources. This is because, as previously noted, the assumption of customary law may not help in determining the extent of immunity. Secondly, the Court should have rigorously analysed the functional utility, rather than taking a wholesale approach, of immunity in respect of the alleged act.

The foregoing cases highlight an inflated reading, and at times application, of

functional immunity. As one can easily sense, it looks as if there is a delusion on the meaning of functional immunity.73

In the same vein, the romance with functional immunity is not limited to a finite number of cases. It is a syndrome that is noticeable in a long line of cases that involve international organizations. The reader, hopefully, would have sensed this in the following discussions.

III.A.ii. Delusion on the meaning of functionality

63. One of the glaring problems in the discourse of organizational immunity is the absence of uniform understanding of functional immunity. This is noticeable

supporting the immunity claim of the UN and its officials. According to the letter, [. . .] the UN [. . .] is absolutely immune from suit and legal process in the absence of an express waiver.

See below n.94 and the accompanying text. The Dutch Government based its argument on art. 104 of the UN Charter, which mandates Member States to safeguard privileges and immunities in their domestic courts.

Ibid., 5 13.

Klabbers argues, the functional needs of organizations are worthy of protection, and perhaps more so than the needs of others, requires some form of justification, yet none has so far been forthcoming. Of course, the argument may be made (and has been made) that people enga-ging in some sort of relationship with an organization are, and should be, well aware of the organizations immunities, but that answer, if valid at all (it may be seen to ignore economic considerations), surely cannot extend to those who end up on the wrong side, of say, a traffic accident. Klabbers, above n.40, 152.114Chinese JIL (2011)

both in judicial decisions, as unfolded in the last section, and in scholarship. As far scholarship goes, Muller, for example, writes, an international organization is entitled to immunities to the extent that it requires them for the effective fulfillment of its tasks.74 Singer for his part argues, an organization is entitled to no more privileges and immunities than it strictly needs.75 Bekker, on the other hand, favours immunity that is commensurate with the objective of an organization. He envisages an immunity pyramid where the UN sits at the top:

[. . .] the United Nations is at the top of the pyramid of privileges and immu-nities to be accorded to international organizations. The privileges and immu-nities which have been granted to the United Nations may therefore be used as a maximum standard in determining whether a given organization has a similar need for protection. The other extreme is an organization which per-forms purely commercial functions, entering the marketplace seeking custo-mers for its industrial goods and services. The latter type of organization probably has no justified need for any privileges and immunities at all, pro-vided that the exclusion from certain privileges and immunities does not prevent such organization from effectively exercising its functions.76

64. Bekker sets the highs and lows of functional immunity. His proposal may poten-tially lead to the creation of a class of immunities. This may enable an organization to claim immunity, regardless of how necessary it is, due to the fact that a peer organization claimed so. The AU, for example, may claim the same level of immu-nity as, say, the EU regardless of the nature of the specific issue.

One may argue that the word function/al is itself elusive, and thus suscep-tible to different interpretations. This holds a measure of truth. As suggested by some, an epistemological approach does not fill this void. The INPDAI v. FAO Court, for example, could have reached a different, and perhaps an absurd, con-clusion had it analysed the economic implication of paying higher rent to the defen-dant. It is fitting for the FAO to be immune from jurisdiction, say, in a claim that arises from its plan to support an agrarian community in a Member State. The same, however, may not apply to a payment claim brought by an owner of a vehicle which the organization hired to execute its plan in the Member State.

Regrettably, the ICJ has not substantively dealt with the scope of functional immu-nity. Nor has it, on primary bases, decided if it is absolute or restrictive. The closest that the ICJ came to these issues was in the two advisory opinions it rendered relating to the appli-cability of the General Convention to two Special Rapporteurs of the UN.

A.S. Muller, International Organizations and Their Host States (1995), 151.

Singer, above n.16.

Bekker, above n.19, 114.Tesfagabir, The State of Functional Immunity 115

The Mazilu Advisory Opinion does not shed much light on the issue under discussion.77 The Court was limited to providing an opinion on temporal and loci application of the General Convention.78 It nevertheless painted a hazy picture thereof in Cumaraswamy.79

The Cumaraswamy Opinion, as far as immunity goes, is relevant in two aspects: in terms of methodology and standard. As far as methodology is concerned, the Courts opinion that the determination whether an agent of the Organization

has acted in the course of the performance of his mission depends upon the facts of a particular case80 sets a significant precedent in highlighting that there is no whole-sale approach to functional immunity.

In terms of setting standards, the Court took a cautious approach by analysing the Secretary-Generals (SG) findings. It did so by writing81:

As is clear from the written and oral pleadings of the United Nations, the Secretary-General was reinforced in this view by the fact that it has become standard practice of Special Rapporteurs of the Commission to have contact with the media. This practice was confirmed by the High Commissioner for Human Rights who, in a letter dated 2 October 1998, included in the dossier, wrote that: it is more common than not for Special Rappor-teurs to speak to the press about matters pertaining to their investigations, thereby keeping the general public informed of their work.82 [Emphasis added.]

70. This paragraph triggers two questions. Firstly, it looks as if the Court is attaching considerable weight to the role of the SG to decide matters of immunity. It is argu-able to what extent the SG has the power to determine whether an action of a Rap-porteur merits immunity.

71. Bekker, on the other hand, criticizes the opinion for doing little to support the cause of the UN.83 According to him, the opinion sets an unfavourable trend, as it has left the door open for national courts to disagree with the Secretary-

Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 177.

Ibid., 193. See also Bekker, below n.83. Bekker said, [. . .] the Mazilu Opinion did not con-sider the question of the application of section 22 in the case of Mr. Mazilu, the range of privileges and immunities he was entitled to in what circumstances, or who should determine whether a Special Rapporteur enjoys immunity in a given case. Ibid., 919.

Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commis-sion on Human Rights, Advisory Opinion, ICJ Reports 1999, 62.

Ibid., 52.

Ibid., 53.

Ibid.

Peter Bekker, Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Advisory Opinion, 93 American JIL (1999), 919 920.116Chinese JIL (2011)

General.84 He further argues that the Court should have based its opinion on the role assigned to him the SG in the General Convention, his responsibility under the United Nations Charter, international practice binding on United Nations Member States, and international jurisprudence, either explicitly or implicitly.85 Failure to affirm the SGs power would, in Bekkers terms, be usurp-ing responsibilities of the SG under section 23, making a mockery out of that provision.86

It is difficult to establish the connection between Section 23 and the power of the SG, as apparently noted by Bekker.87 Section 23 empowers the SG, exclusively, to waive immunity.88 In the light of this, it seems far-reaching to state that the pro-vision empowers the SG to decide on matters with substantive implication. Setting aside the issue of treaty compliance, the opinion puts functional immunity in unsafe hands.

Empowering (or implying the empowerment of ) the SG to decide on sub-stantive matters potentially leaves immunity unattended at the hands of an inter-national organization (in this case, the UN). The SG may ardently protect the latter with a tight immunity barricade. In the light of this, it may be difficult, if not impossible, to establish a case against the UN, not to mention against the SG himself. Therefore, it should be up to a judiciary and not a bureaucrat to decide substantive issues of immunity. Making it a bureaucratic exercise may encou-rage the adoption of elusive standards that fit local interests.

Generally, the Court, in Cumaraswamy, could have discussed, in length, the standard that has to be employed in deciding when functional immunity may be

Ibid., 919 920.

Ibid., 920.

Ibid., 920 921.

Ibid., 920. Bekker lambasted the Court for failing to establish the power of the SG to decide on matters of immunity. According to him, to answer the central question of the Secretary-Generals authority when asserting immunity, which is not settled by the actual terms of the General Convention. Yet, see his subsequent argument which holds art. 23 as the source of the SGs power to determine questions of immunity.

Section 23 reads, privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Sec-retary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations. In contrast, see Section 30 of the General Convention. It reads, all differences arising out of the interpret-ation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settle-ment. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.Tesfagabir, The State of Functional Immunity 117

claimed. Instead, the Court took a fine thread path by cautiously couching its words.89

III.B. Trading between norms

75. International law is a set of norms. It is also, among other things, a system of hierarchya normative hierarchy. Within this arrangement, a norm has a value. Its value determines its status vis-a`-vis other norms. As a norm of international law, functional immunity must have a place and a value in the hierarchical landscape of international law.

76. The following sections aim at placing functional immunity in its proper loci. It does this by approaching it from two norms of international law which usually come at odds with absolute immunity. These are human rights and international responsibility.

III.B.i. Human rights

77. The field of human rights has been the new frontier for challenging immunity defences. These defences have been triggered in disputes that involve both States and international organizations.90 Arguments are based on the conviction that human rights, as norms of international law, are non-derogable for immunity consider-ations. The following paragraphs continue the discourse by examining how the human rights immunity interface should be managed. It has to be mentioned that these discussions overlap with those made in relation to sovereign immunity. Many have cautioned the inappropriateness of importing either an argument or a conclusion from main stream immunity.91 Suffice it to say that human rights, for many reasons, are a set of values that bridge the rift between the two concepts.

78. It is imperative first to set the context. Human rights, within the context of international organizations, may be triggered at least in two instances. Firstly, an ordinary activity of international organization may fall short of meeting human rights standards. A case in point is the emerging criticism of the Security Councils sanction imposing procedures,92 listing or delisting of terrorist or

Compare this with the Arrest Warrant judgment where the Court made an in-depth exam-ination into the scope of functional immunity of a Foreign Minister.

See Lee M. Caplan, State Immunity, Human Rights and Jus Cogens: A Critique of the Nor-mative Hierarchy Theory, 97 American JIL (2003), 741 791. See also Orakhelashvili, below n.97, 320 358.

Efforts aimed at drawing parallelism between sovereign immunity and organizational immu-nity via jure imperii-jure gestionis have been described by Robert Jennings as unnecessary and illogical.

For a detailed discussion on the issue of due process in the Security Councils sessions, see Bardo Fassbender, Targeted Sanctions Imposed by the United Nations Security Council and Due Process Rights, 3 International Organizations LR (2006), 437 485. See also the World Summit Outcome Document, GA Res 60/1 of September 2005. The Resolution called upon the Security Council with the support of the Secretary-General to ensure118Chinese JIL (2011)

terrorist-supporting entities93 and compensation claims.94 Similarly, the ordinary activity of an organization may indirectly implicate individual or group rights.95 Secondly, the act of claiming immunity itself interfaces with human rights, notably the right of access to court.96

79. It is in the above-stated mode that immunity exists at cross-purposes with human rights. This impasse has to be resolved in the light of the position of these norms in the vertical structure of international law. It goes without saying that human rights are values, to say the least, which are at the forefront of domestic and international protection. Relevant instruments are usually framed in a manda-tory fashion. There is a growing trend that advocates their non-derogable charac-ter.97 Orakhelashvili, for example, argues that the whole corpus of human rights is part of jus cogens. According to him:

The argument that all human rights are part of jus cogens is not without merit and to what extent that is true should be demonstrated by individual examin-ation of rights. Substantive criteria to identify peremptory human rights are the same as general criteria of identification of jus cogens: (1) whether a right protects the community interest transcending the individual State inter-est; (2) whether the derogation from such right is prevented by its non-bilateralizable character. This perspective does not exclude that all human rights can be part of jus cogens. In any case, it is clear that the scope of jus cogens in human rights law is not limited to rights designated as non-derogable under treaty instruments. Therefore, certain derogable rights can be peremp-tory. This is clear with regard to due process guarantees and the right to fair trial, as well as the freedom from illegal deprivation of liberty.98

80. In addition, the fact that the customary status of immunity is, to a considerable extent, disputed entrenches the opposite argument.99 It has to be noted that the

that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions. GA Res 60/1, para.109.

See Ramses A. Wessel, Editorial: The UN, the EU and Jus Cogens, 3 International Organ-izations LR (2006), 1 6.

Mothers of Srebrenica et al. v. State of the Netherlands and UN, The District Court of The Hague, Judgment of 10 July 2008.

Enrique R. Carrasco and Alison K. Guernsey, The World Banks Inspection Panel: Promot-ing True Accountability through Arbitration, 41 Cornell ILJ (2008), 578.

This has been largely the case with employment disputes. For a detailed discussion on due process rights in employment relations, see August Reinisch, The Immunity of International Organizations and the Jurisdiction of Their Administrative Tribunals, 7 Chinese JIL (2008), 285 306.

Alexander Orakhelashvili, Peremptory Norms in International Law (2006), 53.

Ibid., 59 60.

See n.54 et seq. and the accompanying text.Tesfagabir, The State of Functional Immunity 119

assumption of customary law may not necessarily be a litmus for jus cogens. The con-trary, however, proves the ability of States to dissent, a notion alien to jus cogens. The Al-Adsani decision and the criticism that ensued further highlight the elusive nature of immunity.

Al-Adsani triggered discussions on the relationship between human rightsas a jus cogens normand (sovereign) immunity.100 It involved an action, inter alia, for the abrogation of sovereign immunity of the State of Kuwait and held it liable for acts

of torture. The plaintiff based his argument on the jus cogens status of human rights.101 The European Court of Human Rights (ECtHR), in a much criticized way, rejected the plaintiffs argument by affirming the sovereign immunity of the defendant State.102 The Court argued that allowing torture to take precedence in a civil suit would implicate a sovereigns absolute immunity from execution of a judg-ment.103 The Court could take a safe and sensible path by treating jurisdictional and execution immunity separately. Although it is beyond the scope of this article to deal

on immunity from execution, suffice it to say that acknowledgement, on the part of the ECtHR, of the peremptory character of torture could resolve all impasses.104

In an illuminating experience, the human rights nexus of international organ-izations action came under spotlight in Kadi.105 The case relates to a claim made for the abrogation of European Council Regulation that gives effect to Security Council Resolution 1267 (1999).106 The Resolution calls UN Member States to impose sanctions on persons and entities associated with Al-Qaeda and the Afghan (Taliban) Government. The European Council acted upon the Resolution by,

inter alia, freezing the assets of the applicants. The latter submitted that the men-tioned Resolution violates their fundamental right for a fair trial.107

100 Al-Adsani v. The United Kingdom (Appeal No. 35763/97), Judgment of 21 November 2001, ECHR, 34 EHRR (2002), 11.

Lee M. Caplan, above n.90, 741 742.

See Orakhelashvili, above n.97, 326. Orakhelashvili criticized the judgment of the Court by stating, the treatment by the Court of the rationale of State immunity is surprisingly short in space, and represents the Court as thinking of something which is very well and clearly estab-lished in international law, both in scope and effects. Ibid.

Caplan, above n.90, 742. See also his remarks along with his general observation which states, because a violation of jus cogens norm entails absolute illegality, it is wrong to justify it on grounds of sovereign immunity. Ibid.

This position was held by the minority of the Court who opined, the acceptance [. . .] of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules to avoid the consequences of the illegality of its actions. Ibid.

Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Case T-315-01, Judgment of the Court of First Instance (Second Chamber, extended composition) of 21 September 2005.

Ibid., European Council Regulation, No. 881/2002 of 27 May 2002.

Ibid.Chinese JIL (2011)

The Court of First Instance of the ECJ rejected the applicants argument on the ground that the Regulation was ordained by the Security Council. Accordingly,

the Court stated, the Commissions law is subordinate to Security Council Resol-ution pursuant to Articles 24 and 103 of the UN Charter.108 Furthermore, the Court treated the right to a fair trial as a derogable norm. It stated this by reasoning that the relevant Resolution aims at preserving international peace and security.109 The Court then related this with the possibility of derogating the right to a fair trial for emergency reasons in a domestic legal system.110 This line of reasoning could put most Security Council resolutions beyond the reach of judicial scrutiny. This is because the Councils resolutions usually relate to addressing international secur-ity concerns at global hotspots, which usually require the calling of extraordinary or emergency sessions.

The Grand Chamber of the ECJ, in a carefully choreographed decision (to avoid implication of reviewing Security Councils action), criticized the judgment

for considering the claim as a challenge to the Resolution of the Security Council.111 The Court noted that

[. . .] immunity from jurisdiction for the contested regulation with regard to the review of its compatibility with fundamental rights, arising from the alleged absolute primacy of the resolutions of the Security Council to which that measure is designed to give effect, find any basis in the place that obligations under the Charter of the United Nations would occupy in the hierarchy of norms within the community legal order if those obligations were to be classified in that hierarchy.112

85. The Court underscored the absence of opportunity to be heard in the sessions of the Sanctions Committee. It, in a significant move, underscored that neither the possibility of application nor the review and re-examination procedures of the Sanc-tions Committee guarantee the right to a fair trial.113 This resonates with the Waite

108 Yassin Abdeulla Kadi v. Council and Commission, above n.105. In a rather bold approach, the First Instance Court stated, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible. Ibid., 226.

Ibid.

Ibid., 245, 247 and 286 et seq.

Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, C-402/05 P and C-415/05 P (Joined Cases), 3 September 2008, European Court of Justice, para.327.

Ibid., 305.

Ibid., 322.Tesfagabir, The State of Functional Immunity 121

and Kennedy114 rule as developed by the ECtHR, based upon which the Court may exercise jurisdiction in the absence of reasonable alternative dispute settlement.

The Kadi cases, however, do not involve issues of immunity. Yet they show the fact that immunity may have procedural and substantive relevance in cases that involve international organizations. Going back to Kadi, one can see several stains where the Court of Justice has indeed evaluated the relevant resolution in the light of human rights standards. Its reference, inter alia, to the inadequacy of the revised working procedures of the Sanctions Committee attests to this.

Domestic courts may borrow the wisdom of Kadi. August Reinisch has noted

that there are indications that some municipal courts are rethinking the absolute immunity of international organizations.115 Domestic courts need to sense the human rights implications of granting broad immunity. Similarly, individuals should be able to challenge domestic instruments that aim to implement decisions of organizations. This would allow courts not only to safeguard fundamental rights of individuals but also to shape the behaviour of organizations from the shadows.

There are, however, instances which may not squarely fit within the human rights argument. These may arise under the guise of contractual or extra-contractual claims. The next section approaches these issues from the perspective of responsibility.

III.B.ii. International responsibility

89. This section charts out the relevance of international responsibility in shaping absolute immunity claims. It is an established principle of international law that an internationally wrongful act entails responsibility. An embodiment of this is the decades-long work of the International Law Commission (ILC) on States and international organizations responsibility.

90. The ILC, at its 54th session (2002), decided to take up the issue of respon-sibility of international organizations. Accordingly, it managed to adopt, on first reading, 66 articles dealing on the international responsibility of international organizations. It is fair to say that both draft articles share substantial jurisprudential basis, at least on the core provisions. This is, for example, manifest in Articles 3 and 1 of the draft articles on the responsibility of international organizations and States, respectively. Article 3 states, every internationally wrongful act of an international

114 Waite and Kennedy v. Germany of 18 February 1999, Reports of Judgments and Decisions [European Court of Human Rights] 1999. See also August Reinisch and Ulf Andreas Weber, In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organ-izations, the Individuals Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement, 1 International Organizations LR (2004), 59 110, Reinisch, above n.96.

A. Reinisch, Administrative Tribunals and Questions of Jurisdictions and Immunity, United Nations Administrative Tribunal Conference (2007), 71.122Chinese JIL (2011)

organization entails the international responsibility of the international organization.116

There is hardly an implication, in both draft instruments, that the assumption of responsibility is subordinate to other norms of international law, including immunity.

Bestowing absolute immunity runs contrary to the notion of international responsibility. It defies its raison detre by eliminating the possibility of redress.

This might also potentially lead to impunity, a phenomenon ruled out by the ICJ in the Arrest Warrant case.117

Furthermore, the possibility of the state of impunity must be seen from the perspective of the increasing role of international organizations. As pointed out at the outset, international organizations are more active than ever. They are becoming operational and not mere platforms of cooperation. This has the effect of creating a class of victims whose causes may not be addressed by existing legal apparatuses. A fitting example is claims that may arise from the UNs role in the administration of territories in transition.

The UN is assuming an administrative role in territories in transition. It has so far been involved, in the same capacity, in East Timor, Kosovo and Bosnia and Herzegovina. These activities go beyond the traditional role of the UN. Neverthe-

less, these administrative structures tend to claim the immunity that the UN nor-mally claims.118 This is despite the absence of effective alternative dispute settlement procedures.119 When they adopt one, it largely accommodates contrac-tual and tortuous claims, which is hardly compatible with their broad authority.120

116 First Report on Responsibility of International Organizations (Doc.A/CN.4/532), para.2 (untreaty.un.org/ilc/reports/2003/english/chp4.pdf (last accessed 17 January 2011)). The ILC, in its commentary to art. 3, states that the the general principle, as stated in article 3, are modeled on those applicable to States according to articles 1 and 2 of the articles on the responsibility of State for internationally wrongful acts. Araujo states that the need to held international organizations accountable necessitated the adoption of responsibility rules. Such sentiment, which ensued from mistakes. . . based on self-aggrandizement or departure from the core functions and objectives of the institutions that are contained within fundamental texts. These departures have earned increased scrutiny and intensified the call for accountability borrowing from the concept of international responsibility to which other persons under international law, usually States have been held. Robert J. Araujo, Objective Meaning of Constituent Instruments and Responsibility of International Organizations, in: Maurizio Ragazzi (ed.), International Responsibility Today (2005), 343 344.

117 Arrest Warrant, above n.89, para.60.

118 Ralph Wilde, Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor, 7 ILSA JICL (2006), 456.

119 See n.32 et seq. and the accompanying texts.

According to Wilde, the best that the UN did to address claims is by establishing ombuds-man offices in Kosovo and East Timer. Wilde, above n.118, 456.Tesfagabir, The State of Functional Immunity 123

The immunity responsibility nexus has also been haunting the UN in its tra-ditional roles, notably during peacekeeping operations. Peacekeeping operations usually precede civilian administration. In the absence of a legitimate authority (in the area of operation) or a hostile one, the UN may not be required to sign SOFA, peacekeeping rules of engagement with potential dispute settlement clause(s). Although it may not squarely fit to this scenario, Mothers of Srebrenica raises most of these issues.

Mothers of Srebrenica (UN in absentia) relates to a compensation claim against

the Dutch Government and the UN. Families of the 1995 victims of massacre in the Eastern Bosnian enclave of Srebrenica brought the suit.121 Srebrenica was under UN peacekeeping forces (a Dutch battalion) sheltering Bosnian Herzegovinian refu-gees. It was later abandoned and fell into the hands of the Bosnian Serb army. The latter then executed Bosnian Muslim men at the enclave. The Dutch Govern-ment argued in favour of UN immunity. A District Court at The Hague accepted

the Governments argument. An appellate court also confirmed the judgment on similar grounds.122

Speaking on substance, the question whether the UN can be (civilly) liable for failing to avert the commission of genocide may be controversial. The case, potentially, negates ICJs opinion in Cumaraswamy, which says the question of immunity from legal process is distinct from the issue of compensation for any

damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity.123 One can also find similar references in

Reparation.

Reparation is often presented as a source of personality and rights for the UN in particular and international organizations in general. The opinion, nevertheless, attributes duty to international organizations. In the relevant part, the opinion states that [. . .] members, by entrusting certain functions to it, with the attendant duties

and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.124

International personality, largely the creation of Reparation, in its own right, should entail both rights and duties of an international organization. As a result, a claimant should be able to claim reparation from an international organization, just

121 Mothers of Srebrenica, above n.94.

Ibid.

Cumaraswamy, above n.79, para.66.

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174. See the ILC commentary on the Draft articles on Responsibility of States for Internationally Wrongful Acts, which confirms the relevance of the principle of respon-sibility to international organizations by stating, it may be that the notion of responsibility for wrongful conduct is a basic element in the possession of international legal personality. Ibid., 34.124Chinese JIL (2011)

as an international organization should be able to claim reparation from the injuring party. In short, international personality is a double-edged sword.

Perhaps one can rebut these arguments on the ground that organizational immunity, in its strict functional sense, is lex specialis. As such, it derogates the assumption of international responsibility. Nevertheless, as argued in the last section, the non-derogative nature of functional immunity is not established either in treaty or in judicial precedence. As Ian Brownlie persuasively notes, the

formation of an international organization cannot result in some species of erga omnes limitation of responsibility, or immunity, in relation to non-members.125

A policy argument can also be made in relation to the implications of absol-ute immunity to general international law. The absence of a system that allocates responsibility may negatively affect the fragile state of international law. A negative perception may lead to the very situation that it tries to avoid. As Sienho Yee notes in another context, the absence of any ultimate or last resort institution in the anar-

chical international legal system may leave the victims saddled with risks and injury alone.126 In such a circumstance, the role of jurisdictional immunity of inter-national organizations is nothing but a factor that instigates attempts of vengeance and a spiral of violence and chaos.127 Thus, the normative requirement of respon-sibility salvages the international legal order from being dragged into the wilderness. It tames the behaviour of international organizations in such a way that they can soundly interact with other subjects of international law. This is a dividend that is exclusive not only to the international legal order but also to international organ-izations themselves.

III.B.iii. Organizational efficiency

102. This section presents a two-fold quasi-managerial proposition. The first wing of the proposition argues that absolute immunity may create a public-relations flap. The second part analyses how a functionality/efficiency argument may be recon-ciled with immunity.

103. It has been noted that absolute immunity limits access to justice for those who interact with international organizations. This may not be appealing or saleable to an ordinary person. International organizations need to understand the behaviour of the international community. Similarly, they need political and moral endorse-ment from it. A big segment of the international community is not aware of the complex nature of international law. Similarly, few understand the labyrinth of

125 Ian Brownlie, The Responsibility of States for the Acts of International Organizations, in: Maurizio Ragazzi (ed.), International Responsibility Today (2005), 359.

126 Sienho Yee, The Responsibility of States Members of an International Organization for Its Conduct as a Result of Membership or Their Normal Conduct Associated with Member-ship, in: Maurizio Ragazzi (ed.), International Responsibility Today (2005), 448.

127 Ibid.Tesfagabir, The State of Functional Immunity 125

international judicial process. Thus, if the behaviour of international organizations, during a judicial process, fails to appeal to their audience, they may have difficulty in preserving their legitimacy. This is notwithstanding how neatly judgments are deliv-ered. The Mothers of Srebrenica judgment, for example, may not be convincing to an ordinary person. For an ordinary person, the case is all about the UN being impli-cated in a crime which it is founded to prevent. The same can be said about States.

States tend to protect the interests of their nationals. It is natural if they act with a sense of remorse when the values that they stand to protect are compromised. As such, they may let international organizations operate in a difficult environment. A case in point is Kadi. Kadi sets an important precedent in the sense that regional laws may be invalidated if they fail to meet human rights standards, notwithstanding the potency of Security Council Resolutions. Accordingly, if Member States undo laws (or are not willing to) that give effect to the Councils Resolutions, the latter (and the UN at large) may lose an important partner as far as sanctions go.

The same can be said about municipal courts. It goes without saying that public perception has an important role in shaping judicial behaviour. Accordingly, courts may, with time, take a cautious approach to avoid public sensitivity that comes with failure to attribute accountability. Thus, they may opt to systematically establish the responsibility of organizations.

One may challenge the efficiency argument by stating that it potentially opens a floodgate of claims that may cost substantial resource to an international

organization. This is one of the traditional arguments made for retaining immu-nity.128 As widely observed, such assertions are not supported by empirical evidence. In addition, the financial resource that a judicial action requires is by itself a deter-rent factor. Few would dare to institute unfounded claims against an organization, which usually is financially well-placed. Furthermore, the development of the law on sovereign immunity from absolute immunity to restrictive immunity provides a lesson that there is no relationship between restrictive immunity and the prolifer-ation of meritless claims.

It has been mentioned that organizations claim immunity for efficiency reasons. In the absence of immunity, they claim, it is difficult to meet their objec-tives. Thus, they have been endowed with functional immunity. It has been also equally established that some of their actions may violate human rights norms. These issues need to be seen through the lens of the efficiency argument. Efficiency should not only be limited to judicious performance of organizational objectives. It needs to be gauged how efficiently an international organization interacts with its external environment. Compromising human rights and being unwilling to remedy it cannot be, by any measure, a positive indication of efficiency. Defaulting from a legal process, say, an allegation of sexual harassment, runs contrary to the

128 See Singer, above n.16, 130; Reinisch, above n.62.126Chinese JIL (2011)

efficiency interest of the international organization itself. Employing the efficiency argument for the sake of claiming immunity and not utilizing it both internally and externally is not only irrational but also immoral.

III.B.iv. The way forward

108. This section provides general observation on attendant problems in the under-standing and application of organizational immunity. It lays out ways that inter-national organizations have to understand functional immunity. It also proposes how the interface between superior norms of international law and immunity may be managed.

III.B.iv.a. The psychological factor: giving up an old habit

109. It is difficult to give up an old habit. It is also necessary to make rational decisions. Organizations need to consider judicial scrutiny like an audit inspection in a corporate setting. The inspection may not thwart their role as managers or as a board of managers, as the case may be. Instead, judicial accountability enables them to meet statutory and moral expectation of their shareholders and business partners. It harnesses their credibility and assists them in forging better working relationships on the international plane. This finds proof in the impact that Kadi made to the proceedings of the Sanctions Committee.

110. Along the same lines, international organizations need to have faith in judi-cial institutions. The fear of bias or prejudice is unfounded as these institutions (at all jurisdictional levels) are presumed to be neutral. Otherwise, they may resort to the ordinary procedure of appeal or review, as the case may be.

III.B.iv.b. Laying the foundation

111. Institutional instruments have a significant role in setting the bounds of organ-izational immunity. The process of adopting immunity clauses needs to be recon-sidered. It goes without saying that the preparation of organizational instruments is the domain of the sovereigns. Yet, allowing non-State entities to do so may help in forging reasonable immunity standards. In an effort to, say, establish an organization that regulates fishing in a region, the participation of representatives of the fishing community of the area or interest groups may pr