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Working Paper No. 49 - April 2010

CHALLENGING ACTS OF OTHER UNITED NATIONS’ ORGANS, SUBSIDIARY ORGANS AND OFFICIALS

Jan Wouters Pierre Schmitt

CHALLENGING ACTS OF OTHER UNITED NATIONS’ ORGANS, SUBSIDIARY ORGANS AND OFFICIALS

Jan Wouters Pierre Schmitt

ABSTRACT

The case analysis of Jan Wouters and Pierre Schmitt refers to the question to what

extent UN acts other than UN Security Council sanctions have been challenged and

scrutinized by national courts. Particular emphasis is put on peacekeeping

operations and employment disputes. A cross-section of national cases involving the

UN sets the framework in which overcoming the “immunity obstacle” appears to be

the most difficult challenge. One of the most noteworthy instances in which a

national court was asked to adjudicate on the appropriateness of the settlement of

disputes involving the UN was the Manderlier case in which the Belgian Court ruled

that it had no competence. More recent case law does not point into another

direction, although in a number of cases involving other international organizations

than the UN, national courts refused to grant immunity in favour of the right of access

to court.

KEY WORDS

Manderlier Case, UN Peacekeeping Missions, Employment Disputes, Immunity, UN Subsidiary Organs

AUTHORS

Jan Wouters: Jean Monnet Chair Ad Personam, Professor of International Law and International Organisations, Director of the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven (K.U.Leuven). Pierre Schmitt: Research Fellow, Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven (K.U.Leuven).

ADDRESS FOR CORRESPONDENCE

jan.wouters@ggs.kuleuven.be pierre.schmitt@ggs.kuleuven.be

© 2010 by Jan Wouters and Pierre Schmitt. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

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CONTENTS 1. INTRODUCTION 3

2. SUBSIDIARY ORGANS AND UN OFFICIALS 4

3. A CROSS-SECTION OF NATIONAL CASES INVOLVING THE UN 6

4. UN LEGAL PERSONALITY BEFORE NATIONAL COURTS 8

5. UN IMMUNITY BEFORE NATIONAL COURTS 12

5.1 IMMUNITY BASED ON INTERNATIONAL LEGAL INSTRUMENTS 12

5.2 IMMUNITY BASED ON NATIONAL LAW 14

5.3 IMMUNITY, SUBSIDIARY ORGANS AND UN OFFICIALS 16

5.4 IMMUNITY IN PEACEKEEPING CASES 20

5.5 EXPRESS WAIVER 21

5.6 IMMUNITY AND THE RIGHT OF ACCESS TO A COURT 22

6. NATIONAL COURTS: AN APPROPRIATE AVENUE OF SETTLING DISPUTES WITH THE UN? 28

6.1 POSITION OF NATIONAL JURISDICTIONS 28

6.2 POSITION OF THE UNITED NATIONS 30

7. ALTERNATIVE MECHANISMS TO CHALLENGE UN ACTS 31

7.1 ARTICLE VIII, SECTION 29 OF THE GENERAL CONVENTION 31

7.2 INDIRECT WAYS TO CHALLENGE UN ACTS 34

8. CONCLUDING REMARKS 36

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1. INTRODUCTION

In its advisory opinion in the Cumaraswamy case the International Court of Justice

(ICJ) noted that the United Nations (UN) may have the obligation to repair damages

caused by agents or officials acting in their official capacity. However, it immediately

added a caveat:

The United Nations may be required to bear responsibility for the damage

arising from such acts. However, as is clear from Article VIII, Section 29, of

the General Convention, any such claims against the United Nations shall not

be dealt with by national courts but shall be settled in accordance with the

appropriate modes of settlement that “[t]he United Nations shall make

provisions for” pursuant to Section 29. Furthermore, it need hardly be said

that all agents of the United Nations, in whatever officia1 capacity they act,

must take care not to exceed the scope of their functions, and should so

comport themselves as to avoid claims against the United Nations.1

Article VIII, section 29 of the Convention of 13 February 1946 on the Privileges and

Immunities of the UN (‘General Convention’)2 indeed provides that ‘[t]he United

Nations shall make provisions for appropriate modes of settlement of: (a) disputes

arising out of contracts or other disputes of a private law character to which the

United Nations is a party; (b) disputes involving any official of the United Nations who

by reason of his official position enjoys immunity, if immunity has not been waived by

the Secretary-General.’

Certain mechanisms have been established by the UN, such as the local claims

commissions for its peacekeeping operations3 and the administrative jurisdictions for

its employment-related disputes.4 However, these measures have a limited scope.

1 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on

Human Rights, ICJ, 29 April 1999, Advisory Opinion, (1999) ICJ Rep. 62, at 89. 2 Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly

of the United Nations on 13 February 1946 (1 UNTS 15). 3 Financing of the United Nations Protection Force, the United Nations Confidence Restoration

Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/389 (1996) paras 20 – 33; Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) paras 7 – 11; K. Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Maßnahmen und Territorialverwaltungen (Frankfurt am Main: Peter Lang, 2004). 4 Administration of justice at the United Nations, UN General Assembly Resolution 63/253 (2009);

Administration of justice at the United Nations, UN General Assembly Resolution 62/228 (2008);

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No independent and impartial international court has been established before which

private individuals can file claims against the UN. An individual claimant who wants

to challenge an act of the UN has often no real other option than to seek a remedy

before national courts. As a consequence, individuals are dependent on the will and

ability of domestic courts to decide on their case.

The present contribution examines decisions rendered by domestic courts in relation

to UN organs, subsidiary organs and officials, other than the Security Council. We do

not intend to assess the efficiency of the specific mechanisms set up by the UN to

fulfil the requirements of Article VIII, section 29 of the General Convention. Although

we will briefly mention the local claims commissions and the administrative

jurisdictions, we will primarily focus on cases brought before national courts. Our

analysis does not extend to the position of UN specialized agencies before national

courts.

Prior to analyzing the national cases, we specify further the scope of the present

contribution, i.e. the UN organs, subsidiary organs, and officials covered (section B).

To illustrate the broad range of situations involving the UN before national courts, we

then provide a cross-section of national cases (section C). The two following

sections analyze the main issues raised before national courts, namely legal

personality (section D) and immunity (section E). Furthermore, we raise the question

whether national courts constitute an appropriate forum for individual complaints

against the UN (section F). Finally, we assess whether individuals may challenge

acts of UN organs, subsidiary organs and officials through other mechanisms than

national jurisdictions (section G). We close with a number of concluding remarks

(section H).

2. SUBSIDIARY ORGANS AND UN OFFICIALS

Besides the principal organs enumerated in Article 7(1) of the UN Charter (General

Assembly, Security Council, Economic and Social Council, Trusteeship Council5,

International Court of Justice and Secretariat), the UN organogram also – and even

primarily6 – includes a great variety of subsidiary organs. The notion ‘subsidiary

Transitional measures related to the introduction of the new system of administration of justice, SGB/2009/11. 5 The Trusteeship Council suspended its activities on 1 November 1994.

6 This is amply – though still not exhaustively – illustrated by the organizational chart of the United

Nations System, available at http://www.un.org/aboutun/chart_en.pdf (last accessed 25 February 2010).

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organ’ is not defined in the Charter or in the practice of the UN. Reference is

sometimes made to the definition in the Secretary-General’s Summary of Internal

Studies of Constitutional Questions relating to Agencies within the Framework of the

United Nations, according to which ‘[a] subsidiary organ is one which is established

by, or under the authority of, a principal organ of the United Nations in accordance

with Article 7, paragraph 2, of the Charter, by resolution of the appropriate body.

Such an organ is integral part of the Organization.’7

Article 7(2) of the UN Charter indeed allows for the establishment of ‘such subsidiary

organs as may be found necessary’.8 A principal organ is free to determine the

nature and scope of the powers of the subsidiary organ it creates, as long as it acts

within the limits of its own competence.9 As a consequence, the subsidiary organs

established so far vary extensively in terms of composition, functions, duration, and

powers.10

Subsidiary organs enjoy the UN’s status, privileges and immunities before national

jurisdictions. However, our review of national cases has revealed some difficulties for

national courts facing subsidiary organs, notably on the legal personality of these UN

subsidiary organs.

Various national cases directly concern UN officials, both in their official and

individual capacities. Depending on their position within the organization, a different

set of rules is applicable to their situation. The case law involving UN officials

concerns notably UN Secretary-Generals, but also current or former UN officers.

They are generally granted immunity before national jurisdictions for acts performed

in their official capacity. Nevertheless, they have to respect the law of the host

country in which they are operating, in accordance with international law and the UN

Charter.11

7 UN Doc. A/C.1/758.

8 See more specifically for the UN General Assembly, Article 22 of the UN Charter; for the Security

Council, Article 29 of the UN Charter; for ECOSOC the formulation is different, referring to the setting up of ‘commissions’: Article 68 UN Charter. 9 G. Jaenicke, ‘Article 7’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1

(2nd

edn, Oxford: Oxford University Press, 2002) 223. 10

G. Jaenicke, ‘Article 7’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1 (2

nd edn, Oxford: Oxford University Press, 2002) 219. See for an overview with further links:

http://www.un.org/en/aboutun/structure/index.shtml. Among the main subsidiary organs, one may notably mention the United Nations Conference on Trade and Development (UNCTAD), the United Nations Development Programme (UNDP), the United Nations Environmental Programme (UNEP), the United Nations Population Fund (UNPFA), the Office of the UN High Commissioner for Refugees (UNHCR), the United Nations Children’s Fund (UNICEF), the United Nations Relief and Works Agency (UNRWA) and the United Nations World Food Programme (WFP). 11

UN, S/Res. 1502, 26 August 2003, Preamble, 4th consideration.

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3. A CROSS-SECTION OF NATIONAL CASES INVOLVING THE UN

The following provides a cross-section of national cases in order to illustrate the

variety of situations in which the UN has been involved before national jurisdictions.

Cases are presented in a chronological order, from the oldest to the most recent.

In Radicopoulos v United Nations Relief and Works Agency12 (1957) a former

employee of the UNRWA claimed before an Egyptian court a dismissal pay against

the UNRWA according to his labour contract. The UNRWA indicated that an internal

remedy was available for the plaintiff. The plaintiff subsequently withdrew his lawsuit

and launched an action before the UN Administrative Tribunal, which confirmed that

national courts have no jurisdiction for claims directed against UN subsidiary

organs.13

In People v Mark S. Weiner14 (1976) criminal proceedings were brought based on a

complaint by a UN security officer that a private individual had sprayed paint on an

outside wall of the UN headquarters building in New York. The defendant moved to

dismiss the complaint for lack of jurisdiction and sought to file a cross-complaint

charging the UN security officer with assault and harassment. The court considered

that the Criminal Court of the City of New York was the proper forum and it ordered a

preliminary hearing in order to present evidence towards the issuance of the cross-

complaint. It anticipated this potential counterclaim and held that the defence of

immunity of the UN security officer would not bar such an action. Indeed, such

immunity from suit would be ‘so unconscionable that it violates on its face the

concepts of fundamental fairness and equal treatment of all persons who seek

judicial determination of a dispute.’ On 27 February 1976 the case was dismissed on

motion of the Assistant District Attorney.15

In Boimah v United Nations General Assembly16 (1987) the plaintiff brought an action

at the US District Court for the Eastern District of New York (EDNY) against the UN

General Assembly alleging employment discrimination. He claimed that he had been

12

Radicopoulos v UNRWA, Egyptian Court, 1957, Annual Report of the Director of UNRWA, 13 UN GAOR, Supp. (No 14) 41, UN Doc. A/391 (1958); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 16. 13

Radicopoulos v UNRWA, UN Administrative Tribunal, 23 August 1957, Judgment No. 70, (1957) 24 ILR 683. 14

People v Mark S. Weiner, Criminal Court of the City of New York, New York County, 19 January 1976, 378 NYS 2d 966; (1976) United Nations Juridical Yearbook 249. 15

A. E. Evans, ‘Judicial Decisions’, (1976) The American Journal of International Law 573 at 575. 16

Boimah v United Nations General Assembly, US District Court EDNY, 24 July 1987, 664 F. Suppl. 69 (EDNY 1987).

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denied permanent employment as a result of his race and nationality. The case was

dismissed because of the UN’s immunity.

In Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al.17 (1996) the

plaintiff claimed before the US District Court for the Southern District of New York

(SDNY) that during the UN operations in Somalia in April 1992 the UN had unlawfully

taken possession of certain property which he owned in Mogadishu. He claimed

damages against the UN Secretary-General, Boutros Boutros-Ghali, and the Under

Secretary-General for Administration and Management, Joseph E. Connor, in their

official and individual capacities. The plaintiff requested more than $190 million in

damages relating to the alleged unauthorized and unlawful possession of property in

Mogadishu and compensatory damages of $750 million and prejudgment interest at

18 per cent per year compounded daily, and attorney’s fees and costs. The court

dismissed the case on the grounds of the UN’s immunity.

One of the most recent and still pending cases, Mothers of Srebrenica et al. v State

of the Netherlands and the UN18 (2008), concerns the tragic genocidal event in

Srebrenica. In June 1995, some 7,600 male Muslim civilian inhabitants of the

enclave of Srebrenica in Bosnia were murdered by Bosnian Serb forces. A small and

lightly armed Dutch peacekeeping force – part of the UN Protection Force

(UNPROFOR) – had been deployed to guard the enclave as a ‘safe area’. However,

it did not manage to prevent the massacre. Extensive debates on the question of

responsibility took place in the Netherlands but also at the UN level. The question

was raised whether the UN had failed its mission in allowing the Dutch to send a

small military contingent and in refusing air strikes against the Bosnian Serb forces.

UN Secretary-General Kofi Annan admitted that ‘[t]he United Nations experience in

Bosnia was one of the most difficult and painful in our history. It is with the deepest

regret and remorse that we have reviewed our own actions and decisions in the face

of the assault on Srebrenica.’19 In 2007 a group called the ‘Mothers of Srebrenica’

asked the District Court at The Hague to condemn the UN for its failure to prevent

the massacre and to grant financial compensation. In July 2008, the District Court

ruled that it had no jurisdiction as the UN enjoys full immunity from actions before

17

Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996). 18

Mothers of Srebrenica et al. v State of the Netherlands and the UN, District Court in The Hague, 10 July 2008, 295247/HA ZA 07-2973; G. den Dekker, ‘Immunity of the United Nations before the Dutch courts’, 3(2) The Hague Justice Journal (2008), available at http://www.haguejusticeportal.net/eCache/DEF/9/569.TD1GUiZMYW5nPUVO.html (last accessed 27 October 2009). 19

The Fall of Srebrenica, Report of the Secretary-General Pursuant to General Assembly Resolution 53/35, UN Doc A/54/549 (1999) para 503.

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national courts.20 The ‘Mothers of Srebrenica’ appealed this decision. Yet, on 30

March 2010, the Court of Appeal of The Hague upheld the 2008 ruling and

considered that it did not have jurisdiction to hear the case because of the immunity

from prosecution of the UN.21 The lawyers of the group declared that they would

initiate appeal proceedings before the Dutch Supreme Court.22

This overview of national cases triggers certain observations. First, it is interesting to

note that plaintiffs have brought claims not only against the UN itself, but also

against an organ, an official, or a subsidiary organ of the UN. The UN may also be

involved indirectly, as for instance in the Srebrenica case (above). Secondly, the

cases illustrate the wide variety of situations involving the UN before national

jurisdictions, ranging from claims related to peacekeeping operations to claims

concerning employment disputes. Finally, this bird’s-eye view anticipates one of the

main findings in the present contribution, namely that in the near-totality of cases

national courts scrupulously stick to the UN’s immunity.

4. UN LEGAL PERSONALITY BEFORE NATIONAL COURTS

In some cases, national courts have analyzed the question whether the UN has the

legal personality under domestic law necessary to appear before them. As noted by

A. Reinisch, ‘[a]lthough they usually stop short of de-recognizing or failing to

recognize the legal personality of international organizations, their reasoning clearly

demonstrates the essential importance of the personality of an international

organization in order to enable a domestic court to adjudicate the underlying

dispute.’23

The Belgian case Manderlier v Organisation des Nations Unies et l’État Belge (1966)

illustrates this point.24 In January 1962 a Belgian citizen’s property in the Congo was

20

Mothers of Srebrenica et al. v State of the Netherlands and the UN, District Court in The Hague, 10 July 2008, 295247/HA ZA 07-2973. 21

The Association of Citizens Mothers of Srebrenica v The Netherlands and the UN (Appeal), Court of Appeal in The Hague, The Netherlands, 30 March 2010, 200.022.151/01. 22

Van Diepen Van Der Kroef Advocaten, Press Release, ‘Issue of UN Immunity surprisingly not submitted to European Court of Justice by Court of Appeals in The Hague’, available at http://www.vandiepen.com/upload/file/srebrenica/srebrenica-press-20100330.pdf (last accessed 13 April 2010). 23

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 39. 24

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446; Case Note by J. Salmon, ‘De quelques problèmes poses aux tribunaux belges par les actions de citoyens belges contre l’O.N.U. en raison de faits survenus sur le territoire de la République démocratique du Congo,

9

burnt and looted by troops of the UN Force situated there. He lodged a claim for

compensation for the loss, which was estimated at 3,799,675 Belgian francs (i.e.

almost 100,000 Euro). The UN disputed the facts but after intercessions by the

Belgian Government it declared itself prepared to ‘accept financial liability where the

damage is the result of action taken by agents of the United Nations in violation of

the laws of war and the rules of international law.’ The UN Secretary-General agreed

that, ‘without prejudice to the privileges and immunities which the United Nations

enjoys, he will pay the Belgian Government the sum of one million five hundred

thousand United States dollars ($1,500,000) in an outright and final settlement of all

claims’25 filed against the UN by Belgians for damage to persons and property

caused by the UN Force in the Congo. This agreement was enacted in a Belgian law

of 7 May 1965.26 A list was drawn up by the UN of individual claims for which the UN

accepted liability. The Belgian Government divided this lump sum and informed the

victims of their right to receive part of the UN settlement payment. Acceptance of this

sum would not prevent them from receiving any further compensation from the

Belgian State but would waive any further rights of action against the UN. The

plaintiff considered the amount too low and brought an action before the Belgian

courts against both the UN and the Belgian State. The Civil Tribunal of Brussels

noted that the UN was set up by the Charter of the United Nations of 26 June 1945,

approved in Belgium by the Law of 14 December 1945.27 It reasoned: ‘By Article 104

of that Charter the Organization enjoys in the territory of each of its Members such

legal capacity as may be necessary to it. The defendant is consequently competent

to appear in legal proceedings in Belgium.’

In another Belgian case, United Nations v B (1952), the UN instituted judicial actions

against a former employee to recover undue money paid to the dissolved UN Relief

and Rehabilitation Administration (UNRRA). The defendant notably argued that both

(1966) Journal des Tribunaux 713; Court of Appeals of Brussels, 15 September 1969, (1969) 69 ILR 139; Case Note by P. De Visscher, ‘De l’immunité de juridiction de l’Organisation des Nations Unies et du caractère discrétionnaire de la compétence de protection diplomatique’, (1971) 25 Revue critique de jurisprudence belge 456, at 460. 25 Exchange of letters constituting an Agreement between the United Nations and Belgium relating to the settlement of claims filed against the United Nations in the Congo by Belgian nationals. New York, 20 February 1965, (1965) United Nations Juridical Yearbook 39; (1965) Revue belge de droit international, 558. 26

Loi du 7 Mai 1965 portant approbation des actes internationaux suivants: 1° Accord entre le Royaume de Belgique et l'Organisation des Nations-Unies, relatif au règlement des comptes nés de l'administration par les Nations-Unies des anciennes bases militaires belges au Congo; 2° Accord entre le Royaume de Belgique et l'Organisation des Nations-Unies relatif au règlement du problème des réclamations introduites auprès de l'Organisation des Nations-Unies par des ressortissants belges, ayant subis des dommages au Congo, conclus par échanges de lettres, datées à New York, le 20 février 1965, Moniteur Belge, 29 Juillet 1965, 9069. 27

Loi du 14 Décembre 1945 approuvant la Charte des Nations Unies et le Statut de la Cour Internationale de Justice, signée à San Francisco le 26 Juin 1945, Moniteur Belge, 1 January 1946, 1.

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UNRRA and the UN did not have legal personality. However, the Civil Tribunal of

Brussels rejected this argument on the basis that the Washington Agreement setting

up UNRRA was ‘ratified’ (sic) by a Belgian Law of 3 August 194428 and the Charter

of the United Nations was ‘ratified’ (sic) in Belgium by a Law of 14 December 1945.

Moreover, the tribunal considered that the UN had by agreement taken over

UNRRA’s rights and convicted the defendant to restitute the money to the UN.29 The

legal personality of UNRRA was also recognized in UNRRA v Daan (1949) before

the District Court of Utrecht in Holland. The court held that the Agreement

establishing UNRRA – to which the Netherlands was a party – gave UNRRA ‘power

to acquire and transfer property, to conclude contracts and perform all legal acts

appropriate to the fulfillment of its task (…) As a result it must also be considered a

legal person under Dutch law, and as such competent to act as a party to legal

proceedings.’ The defendant seized the Supreme Court, which considered that ‘[t]he

question whether such a body must be recognized as a legal entity in an action in

Holland did not depend on any provision of Netherlands law.’ It found it unnecessary

to analyze UNRRA’s legal personality under national legislation since the latter had

been called into being in 1943 at Washington through the cooperation of states as its

future Member States. Since the review before the Supreme Court was limited to

questions of Netherlands municipal law, it dismissed the appeal.30

The Canadian Superior Court of Montreal also analyzed the legal personality of the

UN in United Nations v Canada Asiatic Lines Limited (1952). It decided that the UN

possessed legal personality and had the right to institute legal proceedings. It

authorized the powers of attorney to be signed by the UN Secretary-General.31

These cases refer to the personality of the UN as a whole. However, as noted

above, besides the principal organs enumerated in the UN Charter, the UN consists

of a great variety of subsidiary organs. Article 104 of the UN Charter refers to the

legal capacity of the ‘Organization’ as a whole and there is no specific provision

relating to the capacity of subsidiary organs.

28

Arrêté-Loi du 3 Août 1944, ‘Accord relatif à l’Administration des Nations unies pour l’Organisation des Secours et de la Reconstruction’, Moniteur Belge, 11 Août 1945, 5062. 29

United Nations v B, Brussels Civil Tribunal, 27 March 1952, (1952) 19 ILR 490. Contra: the Supreme Court of New York decided that the UN was in no sense the successor of UNRRA. Wencak v United States, Supreme Court of New York, Special Term, 18 January 1956, (1956) 22 ILR 509. See infra at note 84. 30

UNRRA v Daan, Cantonal Court Amersfoort, 16 June 1948, District Court Utrecht, 23 February 1949, Supreme Court (Hoge Raad) of the Netherlands, 19 May 1950, (1951) NJ 150; (1955) 82 Journal de droit international (Clunet) 855-87; (1949) 16 ILR 337-8. 31

United Nations v Canada Asiatic Lines Ltd, Superior court Montreal, 2 December 1952, Rapports de Pratique du Québec (1954) 158-60; (1954) 48 AJIL 668; (1958 II) 26 ILR 622.

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Some national jurisdictions refused to recognize the legal personality of UN

subsidiary organs, as illustrated by the case law concerning employment-related

disputes at the UN Relief and Works Agency for Palestine Refugees in the Near East

(URWA). For instance, a Syrian court considered in XX v UNRWA (1955-1956), that

UNRWA was a ‘public body of the Republic of Syria’.32 In another case involving

UNRWA, YY v UNRWA (1957), a court in Gaza decided that UNRWA was not an

organ of the UN, that it did not enjoy immunity from jurisdiction and that

consequently the court was competent to hear the claim.33 However, UNRWA is a

subsidiary organ of the UN34 and this decision ‘clearly amounted to a case of a

judicial de-recognition of the UN’s status as an international organization.’35

Gradually, Middle Eastern courts admitted that UNRWA is a subsidiary organ and

consequently benefits from the immunities and privileges granted to the UN.36

Most resolutions establishing subsidiary organs do not leave space for any doubt

about the capacity of the subsidiary organs as part of the UN according to Article 104

of the UN Charter. Nevertheless, some subsidiary organs, such as UNICEF and

UNRWA, have been entrusted by the General Assembly with direct functions and

have entered into commercial contracts in their own name.37 For instance, section

2(a) of General Assembly Resolution 57(I) establishing UNICEF provides that

UNICEF ‘shall be authorized to receive funds (…) and generally, to acquire, hold or

transfer property, and to take any other legal action necessary or useful in the

performance of its objects and purposes’.38 This type of provision seems to indicate a

distinct capacity from that of the UN. Despite such provisions and the practice

developed by subsidiary organs – which both vary from one organ to another – they

32

XX v UNRWA Syrian Court, 1955-6, Annual Report of the Director of UNRWA, 7 UN GAOR, Supp. (No. 13) 44, UN Doc. A/2171 (1952); ibid. 8 UN GAOR, Supp. (No. 12) 25, UN Doc. A/2470 (1953); ibid. 10 UN GAOR, Supp. (No. 15) 32, UN Doc. A/2978 (1955); ibid. 11 UN GAOR, Supp. (No. 14) 41, UN Doc. A/3212 (1956); ibid. 12 UN GAOR, Supp. (No. 14) 48, UN Doc. A/3686 (1957); ibid. 13 UN GAOR, Supp. (No. 14) 42, UN Doc. A/3931 (1958); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 16. 33

YY v UNRWA, Court in Gaza, 17 August 1957, Annual Report of the Director of UNRWA, 12 UN GAOR, Supp. (No. 14) 47, note 34, UN Doc. 1/3686 (1957); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 17. 34

W. Dale, ‘UNRWA – A Subsidiary Organ of the United Nations’, (1974) 23 International and Comparative Law Quarterly 576-609. 35

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 171. 36

See Section D, Point 3 of this paper. 37

‘The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat’, 8 March – 5 May and 23 May 1967, (1967) ILC Yearbook, vol. 2, 207; K. Rudolph, ‘Article 104’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 2 (2

nd edn, Oxford: Oxford University

Press, 2002) 1308. 38

United Nations General Assembly Resolution 57(1) establishing the United Nations Children’s Fund, 11 December 1946.

12

remain organs of the UN and are consequently included within the scope of Article

104.39 In Balfour, Guthrie & Co. v United States (1950) UNICEF had shipped

powdered milk to Italy and Greece on a US boat, but much of the shipment never

arrived. UNICEF sued the US before the District Court for the Northern District of

California (ND Cal.), which considered the claim as asserted by the UN itself. It found

no compelling reason to deny the UN the right to sue for damages.40 In another case,

UNICEF filed a complaint for criminal fraud (1954) and the French Tribunal

Correctionnel de la Seine (1954) awarded damages ‘to UNICEF in a case arising out

of a contract entered into by UNICEF on behalf of UNRWA’.41 The Secretary-General

of the UN had delegated the authority to sign agreements to the executive director of

UNICEF. Despite these uncertainties, UNICEF has to be considered a subsidiary

organ of the UN and consequently possesses ‘the legal capacity conferred upon the

United Nations by Art. 104 of the Charter.’42

The invariable conclusion of these cases is that national courts consider that the UN

as a whole has legal personality under domestic law and may consequently appear

in legal proceedings before national courts. In more recent cases the legal

personality of the UN has not been questioned before national jurisdictions.

Subsidiary organs are considered as organs of the UN and possess the legal

capacity as conferred upon the UN.

5. UN IMMUNITY BEFORE NATIONAL COURTS

5.1 IMMUNITY BASED ON INTERNATIONAL LEGAL INSTRUMENTS Article 105 of the UN Charter governs the immunities of the UN and its personnel. It

provides that the UN and its officials shall enjoy in the territory of its Member States

such privileges and immunities as necessary for the fulfillment of its purposes. This

limited immunity of the UN rests upon the functional necessity doctrine. The

39

K. Rudolph, ‘Article 104’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 2 (2

nd edn, Oxford: Oxford University Press, 2002) 1308-1310.

40 Balfour, Guthrie & Co. Ltd et al. v United States et al., US District Court ND Cal., 5 May 1950, 90 F.

Supp. 831; (1950) 17 ILR 323. 41

The Secretary General of the UN had delegated the authority to sign agreements to the Executive Director of UNICEF. Tribunal Correctionnel de la Seine, Decision of 18 February 1954, mentioned in ‘The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat’, 8 March – 5 May and 23 May 1967, (1967) ILC Yearbook, vol. 2, 217; K. Rudolph, ‘Article 104’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 2 (2

nd edn, Oxford: Oxford University

Press, 2002) 1309. 42

Memorandum prepared by the UN’s Office of Legal Affairs in 1960 reproduced in ‘The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat’, 8 March – 5 May and 23 May 1967, (1967) ILC Yearbook, vol. 2, 217.

13

‘necessity’ standard is an expression of the UN’s functional immunity, as affirmed by

the ICJ in the Reparation for Injuries case (1949).43

In addition to the UN Charter, provisions on immunity of the UN are also included in

the General Convention44. Pursuant to Article II, section 2 of the Convention, ‘[t]he

United Nations, its 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 it has expressly waived its immunity. It is, however, understood that

no waiver of immunity shall extend to any measure of execution.’ In most ‘regular’

cases, courts generally interpret ‘immunity from every form of legal process’ as

absolute immunity.45 This was confirmed in Boimah v General Assembly of the

United Nations (1987). The US District Court EDNY declared that ‘[u]nder the

Convention the United Nations’ immunity is absolute, subject only to the

organization’s express waiver thereof in particular cases.’46 The same reasoning was

followed in Mark Klyumel v United Nations (1992).47

In Manderlier v Organisation des Nations Unies et l’État Belge (1966) the Belgian

Civil Tribunal noted that

[t]he United Nations Organization is not a sovereign power (…) It follows that

it cannot invoke rights of sovereignty different from the similar, but partial,

rights which the Conventions have expressly and with limited effect given to

it. Immunity from jurisdiction is the absolute privilege of whoever enjoys it. It

can be withdrawn only by a properly effected change in the law which granted

it; and the courts are not judges of when it is expedient for the beneficiary to

invoke it.

However, the tribunal recalled that Article 105 of the UN Charter accords to the UN

only the privileges and immunities which are necessary for the fulfillment of its

purposes enumerated in Article 1 of the Charter. This does not include acts against

private citizens. This statement could be taken as a hint that the tribunal would not

43

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 332. Reparation for Injuries Suffered in the Service of the United Nations, ICJ, 11 April 1949, Advisory Opinion, (1949) ICJ Rep. 174. 44

See supra at note 2. 45

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 162. 46

Boimah v United Nations General Assembly, US District Court EDNY, 24 July 1987, 664 F. Suppl. 69 (EDNY 1987). 47

Mark Klyumel v United Nations, US District Court SDNY, 4 December 1992, 92 Civ 4231 (PKL); 1993 US Dist. Lexis 20876 (SDNY 1992).

14

have granted immunity if it had applied the functional immunity, given that it qualified

the disputed acts of the UN as outside of the UN’s functions.48 The tribunal added

that the provisions of section 2 of the General Convention ‘grant a general immunity

from jurisdiction and do not limit to what necessity strictly demands for the fulfillment

of the defendant’s purposes.’49

The plaintiff appealed the judgment of the tribunal. The Court of Appeals stated in

1969 that the signatories of the UN Charter had determined the privileges and

immunities necessary in adhering to the General Convention. As a consequence,

courts would be acting ultra vires if they assessed the essential nature of immunities

granted by the General Convention to the UN.50

Although national jurisdictions have hinted at the possibility that they could decide on

the case if they had to apply the limited immunity based on Article 105 of the UN

Charter, they appear unanimously to fall back on Article II, section 2 of the General

Convention and accept the absolute immunity of the UN.

5.2 IMMUNITY BASED ON NATIONAL LAW Several national jurisdictions grant immunity to the UN on the basis of national legal

provisions. Examples can be found notably in cases brought before US courts. The

application of such national provisions may give rise to some confusion as to the

extent of the UN’s immunity, as some of these cases indicate.

Some US courts refer to the International Organizations Immunities Act of 1945

(‘IOIA’)51, according to which international organizations ‘shall enjoy the same

immunity from suit and every form of judicial process as is enjoyed by foreign

governments’. However, the Foreign Sovereign Immunities Act of 1976 (‘FSIA’)52

establishes a restrictive immunity system for foreign states, denying immunity for

claims relating to foreign governments’ commercial activities. As the US Federal

Supreme Court explained in Saudi Arabia v Nelson (1993), ‘[u]nder the restrictive, as

opposed to the “absolute”, theory of foreign sovereign immunity, a state is immune

from the jurisdiction of foreign courts as to its sovereign or public acts (jure imperii),

48

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 346. 49

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446. 50

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Court of Appeals of Brussels, 15 September 1969, (1969) 69 ILR 139. 51

International Organizations Immunities Act (IOIA), 1945, 59 Stat. 669, 22 U.S.C.A. §§ 288 et seq. 52

Foreign Sovereign Immunities Act (FSIA), 1976, 28 U.S.C.A. §§ 1330 et seq.

15

but not as to those that are private or commercial in character (jure gestionis)’.53 As

pointed out in Boimah v General Assembly (1987), ‘[i]t is unclear whether the [IOIA],

by granting to international organizations immunity co-extensive with that of foreign

governments, confers the absolute immunity foreign governments enjoyed at the

time of the Act’s passage, or the somewhat restrictive immunity provided for in the

[FSIA]’.54 In that case, the District Court explicitly stated that it did not need to decide

that issue, since the immunity of the UN was absolute under the General Convention

and the international organization’s employment relationship with its internal staff

was not a ‘commercial activity’.

A similar reasoning was followed by the US District Court SDNY in De Luca v United

Nations Organization, Javier Perez de Cuellar, Luis Maria Gomez, Armando Duque,

Kofi Annan, Abdou Ciss, Oleg Bugaez, Susan R. Mills and Frederick Gazzoli (1994).

The case concerned a former UN employee for whom the UN had withheld the

plaintiff’s estimated taxes but which it had never reimbursed. After he left UN

employment, the plaintiff was issued with a ‘final pay statement’ indicating that he

had received retroactive pay. The US Internal Revenue Service subsequently

required him to pay federal, state, and local taxes. The plaintiff sued the UN for

breach of his employment contract, injurious falsehood and employment

discrimination. The court based its finding on the General Convention and

consequently granted immunity to the UN.55

In Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al. (1996) the

plaintiff invoked three arguments against dismissal based on immunity. The first

argument again concerned the restrictive immunity laid down in the FSIA. The

District Court SDNY found it unnecessary to reply since the claims did not arise out

of commercial claims. However, ‘[e]ven if the immunity available to the United

Nations and its officials is only restrictive immunity, the immunity still applies because

the nature of the acts complained of by the plaintiff are the exercise of governmental

functional rather than private commercial activity.’ As a second argument, the plaintiff

maintained that his action arose from the commercial activities of the UN, namely the

leasing and occupation of property. Further, he noted that judicial decisions about

the scope of the General Convention principally related to employment disputes. As

53

Saudia Arabia v Nelson, US Supreme Court, 23 March 1993, 507 U.S. 349 (1993), 359-60. 54

Boimah v United Nations General Assembly, US District Court EDNY, 24 July 1987, 664 F. Suppl. 69 (EDNY 1987). 55

De Luca v United Nations Organization, Javier Perez de Cuellar, Luis Maria Gomez, Armando Duque, Kofi Annan, Abdou Ciss, Oleg Bugaez, Susan R. Mills and Frederick Gazzoli, US District Court SDNY, 10 January 1994, 841 F. Suppl. 531 (SDNY 1994).

16

a consequence, the interpretation of the term ‘immunity’ should exclude commercial

activities. The court replied that there was no limit to the interpretation of immunity

and added that:

[i]n any event, even if there is an exception to the immunity provided by

article 2 of the U.N. Convention based on a distinction between commercial

and noncommercial activity, as explained above, the activities upon which the

lawsuit is based are not commercial. Accordingly, the immunity provided by

the U.N. Convention applies in this case.56

The third argument will be analyzed in the next subsection.

Although the courts deliberated as to the scope of the immunity granted to the UN,

all cases resulted in a dismissal based on such immunity. A similar deliberation may

be perceived among scholars with regard to immunities of international organizations

before national courts. However, as A. Reinisch notes, ‘at least as far as the UN is

concerned – the absolute immunity clause of the General Convention, which entered

into law in the US after the US accession in 1970, in any event superseded the

domestic Act’s questionable extent of immunity.’57

5.3 IMMUNITY, SUBSIDIARY ORGANS AND UN OFFICIALS The above discussion has considered cases directed against the UN itself, the

General Assembly,58 and the Secretariat.59 In the following we will explore national

cases concerning subsidiary organs and UN officials.

Subsidiary organs of the UN enjoy the UN’s status, privileges, and immunities. This

has been confirmed by national courts, notably in employment-related disputes

brought against UNRWA60 and the UN Economic Commission for Latin America.61 In

56

Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996). 57

A. Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) 199. See also F. L. Kirgis, Teacher’s Manual to International Organizations in Their Legal Setting (2

nd edn, St Paul: M.N., 1993) 7.

58 Boimah v United Nations General Assembly, US District Court EDNY, 24 July 1987, 664 F. Suppl. 69

(EDNY 1987). 59

Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996); McGehee v Madeleine Albright, William Richardson, Newt Gingrich, William Clinton and Kofi Annan, US District Court SDNY, 24 June 1999, 201 F. Supp. 2d 210 (SDNY 1999). 60

M. Hardy, ‘L’U.N.R.W.A. et son personnel’, (1962) 8(8) Annuaire français de droit international 576-585. 61 A v UN Economic Commission for Latin America, Supreme Court of Chile, 8 November 1969, (1969) United Nations Juridical Yearbook 237; A.N. Vorkink & M.C. Hakuta, Lawsuits Against International

17

Giurgis v UNRWA (1961), for example, the Cairo Court stated that UNRWA, as a

subsidiary organ of the UN, enjoyed the privileges and immunities of the General

Convention.62 In another Egyptian case, Hilpern v UNRWA (1952), the Secretary-

General requested the court to recognize UNRWA’s immunity and the plaintiff

withdrew his claim before the Egyptian court.63 The case was decided by the UN

Administrative Tribunal.64 Conversely, some domestic courts rejected the immunity

claim of UNRWA, as a Jordanian case, Y v UNRWA (1954)65, two Lebanese cases,

W v UNRWA (1952)66 and X v UNRWA (1953),67 and a Syrian case, WW v UNRWA

(1955-1956).68

In some cases, immunity provisions are included in the headquarters agreement of

the subsidiary organ with the host state. For instance, in A v UN Economic

Commission for Latin America (1969) the headquarters agreement between Chile

and the UN Economic Commission for Latin America included immunity provisions

Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 23. See also Diaz-Diaz v UN Economic Commission for Latin America, Supreme Court Mexico, 28 April 1954, Annual Report of the Secretary-General, 9 UN GAOR, Supp. (No. 1) 105, UN Doc. A/2663 (1954); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 14. 62

Giurgis v UNRWA, Court of First Instance in Cairo, 31 December 1961, The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Administration concerning their Status, Privileges and Immunities, Part 2, UN Doc. A/CN:4/L.118/Add.1, 7 May 1967, 53-54; A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 19. 63

Hilpern v UNRWA, Egyptian Court, 1952, Annual Report of the Director of UNRWA, 8 UN GAOR, Supp. (No. 12) 26, UN Doc. A/2470 (1953); Annual Report of the Secretary-General, 9 UN GAOR, Supp. (No.1) 107, UN Doc. A/2663 (1954); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 11. 64

Hilpern v UNRWA, UN Administrative Tribunal, 7 December 1956, Judgment No. 65, 23 ILR 613 (1954). 65

Y v UNRWA, Magistrate Court in Jordan, January 1954, Annual Report of the Director of UNRWA, 9 UN GAOR, Supp. (No. 17) 31, UN Doc. A/2717 (1954); ibid. 10 UN GAOR, Supp. (No. 15) 35, UN Doc. A/2978 (1955); ibid. 11 UN GAOR, Supp. (No. 14) 40, UN Doc. A/3212 (1956); ibid. 13 UN GAOR, Supp. (No. 14) 42, UN Doc. A/3931 (1958); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 13. 66

W v UNRWA, Labour Tribunal attached to the Lebanese Ministry of National Economy, 1952, Annual Report of the Director of UNRWA, 8 UN GAOR, Supp. (No. 12) 25, UN Doc. A/2470 (1953); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 12. 67

X v UNRWA, Labour Arbitration Tribunal in Lebanon, July 1953, Annual Report of the Secretary-General, 9 UN GAOR, Supp. (No. 1) 106, UN Doc. A/2663 (1954); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 13. 68

WW v UNRWA, Syrian Court, 1955-6, Annual Report of the Director of UNRWA, 7 UN GAOR, Supp. (No. 13) 44, UN Doc. A/2171 (1952); ibid. 8 UN GAOR, Supp. (No. 12) 25, UN Doc. A/2717 (1954); ibid. 10 UN GAOR, Supp. (No. 15) 36, UN Doc. A/2978 (1955); ibid. 11 UN GAOR, Supp. (No. 14) 41, UN Doc. A/3212 (1956); ibid. 12 UN GAOR, Supp. (No. 14) 48, UN Doc. A/3686 (1957); ibid. 13 UN GAOR, Supp. (No. 14) 42, UN Doc. A/3931 (1958); A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 16.

18

which the Chilean Supreme Court considered to be a specific application of the

principles of the General Convention.69

Immunity provisions may also be laid down in special regulations. For example, the

Special Representative of the UN Secretary-General for Kosovo adopted, on 19

August 2000, pursuant to the authority given to him under Security Council

Resolution 1244 (1999), Regulation No. 2000/47 on the Status, Privileges and

Immunities of KFOR and UNMIK and their Personnel in Kosovo.70 This regulation

grants Kosovo Force (KFOR) personnel immunity from jurisdiction before the courts

in Kosovo in respect of any administrative, civil, or criminal act committed by them in

Kosovo. Such personnel remain, however, under the jurisdiction of their respective

home states. UN Interim Administration Mission in Kosovo (UNMIK) personnel are

also immune from legal process in respect of words spoken and acts performed in

their official capacity. The Secretary-General can waive the immunity of UNMIK

personnel.

Individual officials of the UN are the second category of litigants analyzed here. In

De Luca v United Nations Organization, Javier Perez de Cuellar, Luis Maria Gomez,

Armando Duque, Kofi Annan, Abdou Ciss, Oleg Bugaez, Susan R. Mills and

Frederick Gazzoli (1994) the plaintiff sued eight current and former UN officials and

employees. Two of the defendants were at that time serving as Assistant

Secretaries-General – Luis Maria Gomez and Kofi Annan. Article V of the General

Convention grants such officers ‘the privileges and immunities, exemptions and

facilities accorded to diplomatic envoys, in accordance with international law.’ The

Vienna Convention on Diplomatic Relations71, to which the United States is a party,

governs these privileges and immunities. Consequently, these two defendants were

immune. One of the remaining six defendants was a former UN Secretary-General

(Javier Perez de Cuellar) and another was a former Assistant Secretary-General

(Abdou Ciss). The District Court of SDNY noted that they were ‘protected by the

same immunity afforded former diplomatic agents under the Vienna Convention –

immunity “with respect to acts performed by such [ ] persons in the exercise of [their]

69

A v UN Economic Commission for Latin America, Supreme Court of Chile, 8 November 1969, (1969) United Nations Juridical Yearbook 237; A.N. Vorkink & M.C. Hakuta, Lawsuits Against International Organizations – Cases in National Courts Involving Staff and Employment (Washington DC: World Bank Legal Department, 1985) 23. 70

UNMIK, Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000). 71

Vienna Convention on Diplomatic Relations (24 April 1961) 500 UNTS 95.

19

functions as [ ] member[s] of the mission…” Vienna Convention, Art. 38(2).’72 Since

the complaints were based on official activities, these defendants were equally

immune. The remaining four defendants were current or former UN officers. Under

the IOIA, UN officers and employees are immune from suit and legal process

‘relating to acts performed by them in their official capacity and falling within their

functions as [ ] officers or employees, except insofar as such immunity may be

waived by the [UN].’73 These four defendants were also immune because the claims

related to acts performed ‘in their official capacity’.

In Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al. (1996) the

action was directed against the UN Secretary-General, Boutros Boutros-Ghali, and

the Under Secretary-General for Administration and Management, Joseph E.

Connor, in their official and individual capacities. The third argument74 of the plaintiff

was based on the allegedly wrongful nature of the acts of the UN and Connor. The

plaintiff dropped Boutros Boutros-Ghali as defendant in order to remedy a

jurisdictional defect but maintained his claim against Connor. The District Court

SDNY held that ‘the plaintiff acknowledges that the claims against Connor in his

official capacity may be treated as an action against the UN itself. With respect to the

claims against Connor in his individual capacity, none of Connor’s alleged actions

are outside of the scope of his official duties, however, notwithstanding the plaintiff’s

bare allegation to the contrary.’ Consequently, it dismissed the claims against

Connor.75

The immunity of staff members permits an international organization to function

effectively. Although the UN and its personnel enjoy privileges and immunities, they

have an obligation ‘to observe and respect the laws of the country in which they are

operating, in accordance with international law and the Charter of the United

Nations’.76 Immunity from jurisdiction is a procedural immunity and does not exempt

from the applicability of the law of the host country.77

72

De Luca v United Nations Organization, Javier Perez de Cuellar, Luis Maria Gomez, Armando Duque, Kofi Annan, Abdou Ciss, Oleg Bugaez, Susan R. Mills and Frederick Gazzoli, US District Court SDNY, 10 January 1994, 841 F. Suppl. 531 (SDNY 1994). 73

IOIA, 22 U.S.C.A. § 228d(b). 74

The two first arguments were analyzed in the precedent subsection on immunity according to national sources. 75

Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996; 933 F. Suppl. 368 (SDNY 1996). 76

UN, S/Res. 1502, 26 August 2003, Preamble, 4th consideration. 77

E. David, ‘L’immunité de juridiction des organisations internationales’, Case note relating to Bruxelles, 17 Septembre 2003, (2004) Journal des Tribunaux 622.

20

In the above-mentioned case People v Mark S. Weiner (1976), the Criminal Court of

New York relied on ‘equitable considerations which motivate this court to reach its

conclusions’ in order to find that ‘[t]here is a limit to which the international

agreement creating the United Nations can inure to the detriment, disadvantage, and

unequal protection of a citizen of the United States’. ‘A basic concept and motivating

factor of the founders of this Republic was the absolute right of every citizen to

petition for redress in its courts.’ To uphold a UN security officer’s immunity from suit

would be ‘so unconscionable that it violates on its face the concepts of fundamental

fairness and equal treatment of all persons who seek judicial determination of a

dispute.’ The court interpreted Article 104 and paragraph 1 of Article 105 of the UN

Charter as an ‘intentional limitation of immunity.’78

5.4 IMMUNITY IN PEACEKEEPING CASES Peace support operations may cause injury and damage to individuals. National

cases relating to peacekeeping operations often focus on two issues: immunity and

command.

Two recent judgments have been pronounced by the District Court of The Hague in

the Netherlands in relation to the Srebrenica massacre. In addition to the case

Mothers of Srebrenica et al. v State of the Netherlands and the UN (2008) discussed

above, Srebrenica survivors and victims’ families also filed two claims for

compensation against the Dutch Government arguing that Dutch troops failed to take

effective action to prevent the massacre. On 10 September 2008 the Hague District

Court rejected the claims for compensation and ruled that the Dutch Government

could not be held responsible for this since the Dutch battalion was under UN

command. As a consequence, the Dutch State had transferred its security and

freedom competences to the UN and could not be liable for any violation committed

during UN operations.79

In N.K. v Austria (1979)80 the plaintiff had served in the Austrian contingent of the UN

peacekeeping force in the Golan Heights in 1975-1976. His property had been

damaged due to the negligence of another Austrian soldier and he claimed

compensation from Austria. His action was dismissed by the Oberlandesgericht in

78

People v Mark S. Weiner, Criminal Court of the City of New York, New York County, 19 January 1976, 378 NYS 2d 966; (1976) United Nations Juridical Yearbook 249. 79

Hasan Nuhanovic v State of the Netherlands, District Court in The Hague, 10 September 2008, 265618 / HA ZA 06-1672; Rizo Mustafic v State of the Netherlands, District Court in The Hague, 10 September 2008, 265615 / HA ZA 06-1671. 80

N.K. v Austria, Oberlandesgericht in Vienna, 26 February 1979, (1988) 77 ILR 470.

21

Vienna because the court considered that the soldier was acting as an organ of the

UN and not of Austria.

The House of Lords had to decide on a similar issue in Attorney-General v Nissan

(1969).81 It considered that the UK Government was liable for damages caused to a

British national by British troops, notwithstanding the fact that the troops were

serving with the UN: ‘Even forces serving with the UN remain British soldiers for

whom the Crown is exclusively liable.’

5.5 EXPRESS WAIVER Article II, section 2 of the General Convention requires all waivers to be express. The

discretion to ‘waive’ the international immunity lies with the Secretary-General

according to section 20 of the General Convention. The Secretary-General has ‘the

right and the duty to waive the immunity of any official in any case where, in his

opinion, the immunity would impede the course of justice and can be waived without

prejudice to the interests of the United Nations’. Section 21 adds that the UN shall

‘cooperate at all times with the appropriate authorities of Members to facilitate the

proper administration of justice, secure the observance of police regulations and

prevent the occurrence of any abuse in connection with the privileges, immunities

and facilities mentioned in this Article.’

The US District Court EDNY stated in Boimah v United Nations General Assembly

(1987) that the main question under both the General Convention and the IOIA was

whether or not there was an express waiver.82 The court notably quoted the Mendaro

v World Bank case (1983) where the Court of Appeals for the D.C. Circuit had held

that:

[t]his policy underlying the immunity of an international organization also

suggests that the court should be slow to find an “express” waiver (…).

Courts should be reluctant to find that an international organization has

inadvertently waived immunity when the organization might be subjected to a

class of suits which would interfere with its functions.83

81

Attorney-General v Nissan, United Kingdom, House of Lords, 11 February 1969, (1969) United Nations Juridical Yearbook 242; (1972) 44 ILR 359-92. 82

Boimah v United Nations General Assembly, US District Court EDNY, 24 July 1987, 664 F. Suppl. 69 (EDNY 1987). 83

Mendaro v World Bank, US Court of Appeals, 27 September 1983, DC Cir, 717 F.2d 610 (DC Cir 1983).

22

This statement illustrates the difficult position of national courts when they have to

decide on the existence of an express waiver. This issue is mainly political, as

recognized by the New York Supreme Court in Wencak v United Nations (1956). The

plaintiff argued that the UNRRA was responsible for an accident on 1 December

1945. Since UNRRA had been liquidated and the UN had undertaken to settle any

claims against UNRRA subject to certain conditions, the plaintiff sued the UN, which

invoked its immunity. The New York Supreme Court found that the UN did not

succeed to UNRRA and held that ‘immunity remains a political rather than a legal

question, and the extent of it is for the Department of State rather than the courts. As

regards this action the department has indicated no limitation of the immunity to be

conferred.’84

In some cases national courts may find it difficult to identify the UN’s will on the

waiver, as for instance in the above-mentioned case Manderlier v Organisation des

Nations Unies et l’État Belge (1966). The plaintiff argued that the Belgian Minister for

Foreign Affairs declared on 8 April 1965 in the Senate that the UN had waived its

immunity from jurisdiction. As a consequence, the plaintiff maintained that this waiver

permitted the Brussels Civil Tribunal to decide on the case. The tribunal however

found that the Minister ‘cannot bind the United Nations, nor its Secretary-General,

through declarations he makes in the Belgian Legislative Chamber […] His view of

the situation cannot bind the judge in his interpretation of international law.’85

These cases illustrate the prudence of national courts in accepting waivers of

immunity by international organizations and verifying whether these are expressly

made by the competent organ, i.e., in the case of the UN, the Secretary-General.

5.6 IMMUNITY AND THE RIGHT OF ACCESS TO A COURT The right of access to a court has often been invoked by victims seeking to obtain a

remedy against the UN before national courts. Indeed, the right of everyone to

access to a court, as established notably in Article 6 of the European Convention for

the Protection of Human Rights and Fundamental Freedoms (ECHR)86, may be in

conflict with the immunity from jurisdiction for international organizations. In the

parallel cases Waite and Kennedy v Germany (1999) and Beer and Regan v

84

Wencak v United States, US Supreme Court of New York, Special Term, 18 January 1956, (1956) 22 ILR 509. 85

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446. 86

Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.

23

Germany (1999) the European Court of Human Rights ruled on the criteria to be

applied to resolve this conflict. It considered that immunities of international

organizations pursued a legitimate aim and that access to a court might be

restrained. However, this restrain should not be absolute; a rule on immunity of

jurisdiction of international organizations was permissible under the ECHR, insofar

as ‘the applicants had available to them reasonable alternative means to protect

effectively their rights under the Convention’.87

In Mothers of Srebrenica et al. v State of the Netherlands and the UN (2008) before

the District Court in The Hague, the plaintiffs claimed that the right of access to a

court constitutes an exception to the immunity principle.88 The District Court

dismissed their claim on the basis of the decisions of the European Court of

Human Rights in Behrami and Behrami v France (2007) and Saramati v France,

Germany, and Norway (2007),89 in which the European Court held that the ECHR

should not be an impediment to the effective implementation of duties by

international missions under UN responsibility. The District Court of The Hague

applied a similar reasoning to conclude that Article 6 of the ECHR could not be used

as a ground for exception to the UN’s absolute immunity under international law.90

In Manderlier v Organisation des Nations Unies et l’État Belge (1966) the plaintiff

argued that the UN was bound to provide for appropriate methods of settlement for

disputes of a private law character to which it may be a party and to set up courts in

accordance with Article VIII, section 29 of the General Convention. The Belgian Civil

Tribunal recognized that the UN has established certain courts of special jurisdiction:

‘[h]owever, it is an undisputed fact that it has not set up any court with a general and

unlimited jurisdiction. In fact, no independent and impartial international court has

been set up, before which the plaintiff could bring the defendant to have the claim

decided which he has brought before the present Court.’ The plaintiff argued that this

failure was a breach of Article 10 of the Universal Declaration of the Human Rights91

and of Article 6 of the ECHR. The UN countered that the Agreement reached

87

Beer and Regan v Germany, Application No 28934/95 (2001) 33 EHRR 54 para 58; Waite and Kennedy v Germany, Application No 26083/94 (2000) 30 EHRR 261 para 73. 88

Mothers of Srebrenica et al. v State of the Netherlands and the UN, District Court in The Hague, 10 July 2008, 295247/HA ZA 07-2973. 89

Behrami and Behrami v France, Application No 71412/01; Saramati v France, Germany and Norway, Application No 78166/01 (2007) 45 EHRR SE10. 90

For an analysis of this decision: G. den Dekker, ‘Immunity of the United Nations before the Dutch courts’, 3(2) The Hague Justice Journal (2008), available at http://www.haguejusticeportal.net/eCache/DEF/9/569.TD1GUiZMYW5nPUVO.html (last accessed 27 October 2009). 91

Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948) GAOR 3rd Session Part I 71.

24

between the UN and Belgium92 constituted an appropriate method of settlement

provided for by Article VIII, section 29. The tribunal disagreed with this argument and

declared that the Agreement in no sense constituted an appropriate method of

settlement for deciding a dispute. Indeed, ‘the UN took a unilateral decision by which

(…) it believed itself bound to limit its spontaneous intervention.’ However, the

tribunal decided ‘that immunity of the UN was unconditional and had been so since

the conclusion of the Convention in 1946’, without being abrogated by the Universal

Declaration of 1948. The latter was merely ‘a collection of recommendations, without

binding force’ in Belgium. In relation to the ECHR, the tribunal noted that this

Convention was concluded between 14 European States only (at that time) and that

it consequently could not be applied to or imposed to the UN. The Appeals Court

confirmed the legal reasoning of the tribunal but ‘admitted that in the present state of

international institutions there is no court to which the appellant can submit his

dispute with the United Nations’ and that this situation ‘does not seem to be in

keeping with the principles proclaimed in the Universal Declaration of Human

Rights’.93

The US Court of Appeals of the District of Columbia Circuit also expressed its views

on the right of access argument in Urban v United Nations (1985). It held that a

‘court must take great care not to “unduly impair [a litigant’s] constitutional right of

access to courts”’. In this particular case, however, the court did not need to assess

the issue of immunity from suit since it considered the case was launched by a

‘frivolous litigant flooding the court with meritless, fanciful claims.’94

Although national courts have considered that the right of access to a court does not

constitute an exception to the absolute immunity of the UN, they have decided

differently in some cases relating to other international organizations.

The French Cour de Cassation (2005) rejected the immunity of the African

Development Bank in a case opposing this international organization by its former

employee, Mr. Haas.95 Since no tribunal had been established by the organization to

92

See supra note 26. 93

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446; Court of Appeals of Brussels, 15 September 1969, (1969) 69 ILR 139; Case Note by P. De Visscher, ‘De l’immunité de juridiction de l’Organisation des Nations Unies et du caractère discrétionnaire de la compétence de protection diplomatique’, (1971) 25 Revue critique de jurisprudence belge 456, at 460. 94

Urban v United Nations, US Court of Appeals DC Cir, 2 August 1985, 768 F. 2d 1497, 248 US App. DC 64 (DC Cir 1985). 95

African Development Bank v Haas, French Cour de Cassation (soc.), 25 January 2005, (2005) Journal des Tribunaux 454; Case Note by E. David, ‘Observations’, (2005) Journal des Tribunaux 454;

25

decide on such cases, the court noted the impossibility for an individual to exercise a

right belonging to the international public order. This constituted a denial of justice

grounding the competence of French courts in cases with a French connection – in

this case, the French nationality of the plaintiff. The decision represented a change in

the attitude of the French Cour de Cassation, which had decided in a previous case

Hintermann v Western European Union (1995), to grant the Western European

Union (WEU) an absolute immunity.96 In its annual report of 1995, the court justified

the Hintermann decision by its reluctance to disrupt international relations in rejecting

immunity of jurisdiction for the numerous international organizations to which France

was a Member State. It nevertheless invited the European Court of Human Rights to

discuss this issue.97 This was realized in the Waite and Kennedy v Germany and

Beer and Regan v Germany cases (discussed above). Surprisingly however, in the

African Development Bank v Haas case of 2005, the French Cour de Cassation

referred to the right of access to a court as part of the international public order and

did not refer to the aforementioned case law of the European Court of Human Rights

at all.98 At first sight, this reference to the international public order seems to

complicate the position of states regarding their international obligations. Indeed, if

one considers that rules of international public order are purely internal rules99, this

runs counter to the primacy of treaties over national legal rules.100 However, in

essence the Cour de Cassation does nothing else than satisfy the requirements in

the Waite and Kennedy v Germany and Beer and Regan v Germany cases. The

question is not so much a conflict between internal and international rules, but rather

between international rules inter se. The aforementioned case law points to the

emergence of a substantive hierarchy among international norms and the supremacy

of the ECHR over other international treaties.101 Yet, the state setting aside the

immunity of an international organization would breach its international obligations

P. Sands & P. Klein, Bowett’s Law of International Institutions (6th edn, London: Sweet & Maxell, 2009) 498. 96

Hintermann v Western European Union, French Cour de Cassation (civ.), 14 November 1995, (1997) Journal du Droit International 141. 97

French Cour de cassation, Annual Report 1995, (Paris: La Documentation Française, 1996) 418-419. 98

This is all the more astonishing because the civil chamber of the same French Cour de Cassation rendered a decision on 1 February 2005 in relation to State immunity in which it analyzed the denial of justice both under the public international order and the ECHR. State of Israel v National Iranian Oil Company, French Cour de Cassation, 1 February 2005, (2006) Revue critique de Droit international privé 140. 99

French Service de documentation et d’études de la Cour de cassation, Communiqué relating to the decision of 10 May 2006, available at http://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/communique_8860.html (last accessed 22 November 2009). 100

F. Poirat, N. Haupais, P. Jacob & G. Le Floch, ‘Note sous Cour de cassation, chambre sociale, arrêt du 25 janvier 2005, Banque africaine de développement’, (2006) Revue générale de droit international public 217-231, at 229. 101

F. Poirat, N. Haupais, P. Jacob & G. Le Floch, ‘Note sous Cour de cassation, chambre sociale, arrêt du 25 janvier 2005, Banque africaine de développement’, (2006) Revue générale de droit international public 217-231, at 230.

26

towards that organization. Indeed, there is no supremacy of international norms

based upon their object, except for jus cogens norms. The only permissible

justification for states to avoid their responsibility towards the organization would be

to argue that the right to a judge may be considered as jus cogens. They could

notably rely on the case law of the International Criminal Tribunal for the former

Yugoslavia, which held that ‘Article 14 of the International Covenant reflects an

imperative norm of international law to which the Tribunal must adhere’.102

This evolution of case law in favour of individuals must be approved, inasmuch as it

is justified by the human rights principle of access to courts. Some national

jurisdictions have gone further in assessing whether the internal mechanism

established by the international organization meets the guarantees of a fair trial. For

instance, the Brussels Labour Court decided in Siedler v Western European Union

(2003) to set aside the WEU’s immunity from jurisdiction because it was in

contradiction to Article 6 of the ECHR.103 The case had been filed by Ms. Siedler, an

employee who had worked for WEU since 1991 but whose employment was

terminated in June 2000. According to WEU staff rules, she was awarded

compensation by the internal appeals commission. Nevertheless, Belgian labour

legislation guaranteed a higher compensation. She sued WEU before the Labour

Tribunal of Brussels which granted a complementary compensation corresponding to

six months’ salary. She appealed to the Labour Court of Appeals, asking for a higher

supplementary compensation, while WEU filed an incidental appeal, arguing notably

that the Labour Tribunal had violated its immunity of jurisdiction. The Labour Court

considered that, although immunities and privileges of international organizations

pursue a legitimate aim, they may be limited by explicit exceptions in treaties,

waivers by the organization itself, ultra vires acts of the organization, and the lack of

an independent dispute-settlement mechanism for individuals. With regard to the

latter, the organization should be obliged to submit itself to the jurisdiction of the

national courts in order to avoid a denial of justice and to respect the right of every

person to a fair trial contained notably in Article 6 (1) of the ECHR and Article 14 (1)

of the International Covenant on Civil and Political Rights (ICCPR).104 The court

based its reasoning on the Waite and Kennedy v Germany and Beer and Regan v

102

General Comment No 29 of the UN Human Rights Committee, 24 July 2001, Doc. A/56/40, 2001, 191; Vujin v Tadic, ICTY, 27 Febrary 2001, available at http://www.icty.org/x/cases/tadic/acjug/en/vuj-aj010227e.pdf 3. 103

Siedler v Western European Union, Brussels Labour Court of Appeals, 17 September 2003, (2004) Journal des Tribunaux 617; Case Note by E. David, ‘L’immunité de juridiction des organisations internationales’, (2004) Journal des Tribunaux 619; J. Wouters & M. Vidal, Cases van Internationaal Recht (Antwerpen: Intersentia, 2005) 572. 104

International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171.

27

Germany case law. Both the European Court and the Brussels Court found that an

internal procedure was available to individuals within the WEU. However, the

Brussels Court went further than the European Court of Human Rights since it also

examined the quality of the internal appeals procedure of the WEU in order to

assess whether all the guarantees inherent in the notion of a fair trial were met. The

court noted that the internal procedure did not make provision for the enforcement of

the decisions, there was no publicity of the debates, the members of the commission

were appointed by the intergovernmental Council of the WEU, they were appointed

for two years and could be removed, and no disqualification procedure was

foreseen. The court concluded that the guarantees of a fair trial were not met and

consequently held that the WEU’s immunity could not be upheld.

One may wonder whether this human-rights-centred decision is not overzealous.105

Indeed, it transposes rules applicable to national jurisdictions to internal mechanisms

established by international organizations in order to assess whether these meet the

guarantees of the right to a fair trial. However, it fails to take the specificity of

international organizations into account. Indeed, the WEU internal procedure is not

substantially inferior to the practice in other international organizations. For instance,

members of the International Labour Organization Administrative Tribunal are

appointed for renewable mandates of three years.

Besides these national cases concerning the immunity of jurisdiction of international

organizations, some national courts have applied this case law to the field of

immunity of enforcement. This immunity is considered by the European Court of

Human Rights as an integral part of the right of access to a court, since this right

would be illusory if a definitive and obligatory judicial decision could not be

enforced.106 In Lutchmaya v Secretary-General of the African, Caribbean and Pacific

Group of States (2003) the Brussels Court of Appeals had to decide on the immunity

of enforcement of the Secretary-General of the African, Caribbean and Pacific Group

of States. The Secretary-General had been convicted by a decision of the Brussels

Labour Court (1996) to pay compensation to a former employee, Ms. Lutchmaya.

She began legal proceedings to enforce the judicial decision but the Secretary-

General objected and brought the case back to court. The Court of Appeals noted

that there were no alternative mechanisms to oblige the Secretary to enforce the

105

M. Vidal, ‘Siedler v Western European Union’, ILDC 53 (BE 2003). 106

Immobiliare Saffi v Italy, Application No 22774/93 (2000) 30 EHRR 756; Hornsby v Greece, Application No 18357/91 (1997) 24 EHRR 250; R Ergec, ‘Examen de jurisprudence—La Convention européenne des droits de l’homme’ (2002) Revue critique de jurisprudence belge 155.

28

decisions and that the right to a fair trial should consequently take priority over the

immunity.107

These decisions illustrate the will of some national courts to limit the immunity of

international organizations when such immunity runs counter to the right of access to

courts. Various legal bases are invoked, among them Article 6(1) of the ECHR,

Article 14(1) of the ICCPR or the public international order. The question whether

this case law can be transposed to the UN remains open, although national

jurisdictions seem reluctant to dismantle the absolute and unconditional immunity of

the UN.

6. NATIONAL COURTS: AN APPROPRIATE AVENUE OF SETTLING DISPUTES WITH THE UN?

6.1 POSITION OF NATIONAL JURISDICTIONS As transpires from their decisions, national courts do not consider themselves an

appropriate forum for settling disputes between individuals and the UN because of

the jurisdictional immunity of the latter. Some national courts have justified this

immunity in employment-related cases, as for instance in the Mendaro v World Bank

case (1983), where the Court of Appeals for the D.C. Circuit held that:

the purpose of immunity from employee actions is rooted in the need to

protect international organizations from unilateral control by a member nation

over the activities of the international organization within its territory. The

sheer difficulty of administering multiple employment practices in each area in

which an organization operates suggests that the purposes of an

organization could be greatly hampered if it could be subjected to suit by its

employees worldwide.108

The same Court of Appeals noted in Broadbent v Organization of American States

(1980) that:

[a]n attempt by the courts of one nation to adjudicate the personnel claims of

international civil servants would entangle those courts in the internal

107

Lutchmaya v Secretary-General of the African, Caribbean and Pacific Group of States, Brussels Court of Appeals, 4 March 2003, (2003) Journal des Tribunaux 684; Case Note by E. David, ‘Une décision historique?’, (2003) Journal des Tribunaux 686. 108

Mendaro v World Bank case, US Court of Appeals, 27 September 1983, DC Cir, 717 F.2d 610 (DC Cir 1983).

29

administration of those organizations. Denial of immunity opens the door to

divided decisions of the courts of different member states passing judgment

on the rules, regulations, and decisions of the international bodies.

Undercutting uniformity in the application of staff rules or regulations would

undermine the ability of the organization to function effectively.109

In Manderlier v Organisation des Nations Unies et l’État Belge (1966) the plaintiff

argued that Article II, section 2 and Article VIII, section 29 of the General Convention

were closely linked in the way that the UN’s immunity from jurisdiction should be

conditional upon the existence of an appropriate method of settlement for disputes of

a private law character. Since no appropriate methods of settlement had been

established, the plaintiff argued that the tribunal could not grant immunity to the UN.

The Civil Tribunal of Brussels dismissed this argument and affirmed the general and

absolute character of the immunity granted by Article II, section 2 of the General

Convention, except for an express waiver by the UN itself. However, the tribunal

seemed uncomfortable with this decision and added that the UN was bound to set up

courts to decide on disputes arising from its relations in private law: ‘However, it is an

undisputed fact that it has not set up any court with a general and unlimited

jurisdiction. In fact, no independent and impartial international court has been set up,

before which the plaintiff could bring the defendant to have the claim decided which

he has brought before the present Court.’110 The UN maintained that the Agreement

reached between the UN and Belgium constituted an appropriate method of

settlement. The tribunal disagreed and declared that the Agreement in no sense

constituted an appropriate method of settlement for deciding a dispute since the UN

‘took a unilateral decision by which, according to its letter of 20 February 1965, it

believed itself bound to limit its spontaneous intervention.’

In so reasoning, the Brussels Civil Tribunal seems to be at odds with the

interpretation given by national courts to the obligation of the UN under Article VIII,

section 29 of the General Convention. Whereas the tribunal repeatedly refers to the

establishment of a court to settle disputes, the provision at hand requires the

establishment of an ‘appropriate method of settlement’ but not expressly the creation

of an impartial and independent international jurisdiction. It leaves the choice of the

method to the UN.

109

Marvin R. Broadbent et al. v Organization of American States et al., US Court of Appeals, DC Cir, 8 January 1980, 628 F.2d 27, 30-35 (DC Cir 1980). 110

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446.

30

6.2 POSITION OF THE UNITED NATIONS The UN has recently summarized its position in a memorandum of law in support of

its motion to dismiss and to intervene submitted to the US District SDNY in a case

filed by Cynthia Brzak and Nashr Ishak – two employees of the UN High

Commissioner for Refugees – against the UN, Kofi Annan, Wendy Chamberlin, Ruud

Lubbers, et al.111 The plaintiffs brought claims for sexual discrimination and

retaliation, intentional infliction of emotional distress, intentional battery and

violations of civil provisions of the Racketeer Influenced and Corrupt Organizations

Act. In its memorandum, the UN explained that, while in criminal matters it fully

cooperates with national law enforcement authorities, including through the waiver of

immunity:

[i]n civil cases, the uniform practice is to maintain immunity, while offering, in

accord with section 29 of the General Convention, alternative means of

dispute settlement. In disputes with third parties, the alternative means of

dispute settlement offered is usually negotiation, conciliation, mediation

and/or arbitration (…) This practice achieves two fundamental goals: it

ensures the independence of the United Nations and its officials from national

court systems, but at the same time it eliminates the prospect of impunity, as

the United Nations provides the appropriate mechanisms to resolve all

complaints of a private law nature.

Since this case was employment-related, the UN continued its argument on this

specific area by explaining the proceedings before the UN Administrative Tribunal.

The UN asked that the case should be dismissed as to the UN on the ground of

absolute immunity and against the individual defendants on the ground of functional

immunity. To our knowledge, no decision has been published in this case so far.

As indicated in the afore-mentioned memorandum, the UN maintains its immunity

before national jurisdictions while offering alternative means of dispute-settlement.

111

The plaintiffs filed a similar complaint at the Supreme Court. They launched the procedure before the District Court in the event the Supreme Court rejected the motion for leave to file an original action. The memorandum of law in support of the motion of the United Nations to dismiss and to intervene is available at http://iilj.org/courses/documents/BrzakBrzakvUnitedNations-MemorandumofLawoftheUnited Nations.pdf (last accessed 27 October 2009).

31

7. ALTERNATIVE MECHANISMS TO CHALLENGE UN ACTS

7.1 ARTICLE VIII, SECTION 29 OF THE GENERAL CONVENTION

In 1995 the UN Secretary-General issued a report on procedures in place for the

implementation of Article VIII, section 29 of the General Convention. The report

describes various bodies that the UN has utilized to adjudicate disputes.112 For

instance, staff members of the UN who wish to initiate procedures concerning the

employment relations with the UN have at their disposal a special tribunal, the UN

Administrative Tribunal, which will hear and pass judgment upon applications

alleging non-observance of contracts of employment of staff members of the UN

Secretariat or of their terms of appointment as well as applications alleging non-

observance of the regulations and rules of the UN Joint Staff Pension Fund

(UNJSPF), arising out of decisions by the Fund. By its Resolution 62/228 of 6

February 2008, entitled ‘Administration of justice at the United Nations’, the UN

General Assembly decided, inter alia, to establish a two-tier formal system of

administration of justice, comprising a first instance UN Dispute Tribunal and an

appellate instance UN Appeals Tribunal.113 The statutes establishing the Dispute

Tribunal and the Appeals Tribunal were adopted by the General Assembly in its

Resolution 63/253.114 The two Tribunals are operational as from 1 July 2009 and the

UN Administrative Tribunal is abolished as of 31 December 2009.115

In addition, the UN has foreseen specific procedures for third-party claims with a

private law character in peace support operations. Article 51 of the UN Model Status

of Forces Agreement (UN Model SOFA) provides for the establishment of a standing

claims commission in order to settle disputes of a private law character over which

the local courts have no jurisdiction due to the immunity of the UN.116 However, no

UN standing claims commissions have ever been established in practice.117 Instead,

112

Procedures in Place for Implementation of Article VIII, Section 29, of the Convention on the Privileges and Immunities of the United Nations, Report of the Secretary-General, UN Doc. A/C.5/49/65. 113

Administration of Justice at the United Nations, UN General Assembly Resolution 62/228 (2008). 114

Administration of Justice at the United Nations, UN General Assembly Resolution 63/253 (2009). 115

Transitional measures related to the introduction of the new system of administration of justice, SGB/2009/11. 116

Article 51 states that ‘(…) any dispute or claim of a private law character to which the United Nations peacekeeping operation or any member thereof is a party and over which the courts of the [host state/territory] do not have jurisdiction (…) shall be settled by a standing claims commission to be established for that purpose. One member of the commission shall be appointed by the Secretary-General of the United Nations, one member by the Government and a chairman jointly by the Secretary-General and the Government (…) The awards of the commission shall be final and binding, unless the Secretary-General of the United Nations and the Government permit an appeal (…) For instance Art. VII (50) of the Agreement on the status of the United Nations Assistance Mission for Rwanda (UNAMIR), signed at New York on 5 November 1993, 1748 UNTS 16. 117

Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) para 8; M.C. Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty

32

third-party claims are settled by a local claims review board composed of UN officials

and established for each peacekeeping mission.118 Although this procedure may

have been considered by claimants to be expeditious, impartial, and generally

satisfactory,119 the board’s independence and objectivity have been questioned.120

The Secretary-General himself admitted that the UN could be perceived as a judge

acting in its own case.121

Another example of settlement of claims practice by the UN is the compensation of

individuals for the damages caused during the UN operation in the Congo. In the

Belgian case, for instance, the UN considered that 581 out of 1,400 claims were

entitled to compensation. A lump-sum agreement of $1,500,000 was agreed.122 The

Belgian Government distributed the sum among the claimants. One claimant, Mr.

Manderlier, tried to challenge this practice before the national courts but his claim

was dismissed, as we already noted.123 The system of lump sums may be criticized

because this mode of settlement is ‘largely dependent on the State’s willingness to

espouse the claims of its nationals’, as recognized by the Secretary-General

himself.124 Moreover, the examination and selection by the UN itself of the claims

entitled to compensation puts the transparency of the procedure into question.

Conversely, this system prevents excessive costs and permits rapid settlement of

claims. The choice of a lump sum as a mode of settlement seems to have been

based on political considerations in 1965. Indeed, a majority of states within the

General Assembly would not have accepted compensation of Belgian citizens, as

they were considered by many as principally responsible for the situation in Congo.

Organization Peace Support Operations (Leiden: Martinus Nijhoff Publishers, 2004); K. Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Maßnahmen und Territorialverwaltungen (Frankfurt am Main: Peter Lang, 2004). 118

Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/389 (1996) paras 20 – 33; Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) paras 7-11; K. Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Maßnahmen und Territorialverwaltungen (Frankfurt am Main: Peter Lang, 2004) 166-512. 119

Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) para 8. 120

K. Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002) 103. 121

Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) para 10. 122

K. Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002) 162. 123

See supra text at note 93. 124

Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/389 (1996) para 37.

33

Consequently, the agreement reached between the Secretary-General and Belgium

– based on the international responsibility of the UN – appeared to be a pragmatic125

though not ideal solution.

In parallel with the creation of specific mechanisms of dispute-settlement, the UN

has searched for measures to limit the amount it may have to pay as a result of third-

party liability claims.126 The Secretary-General suggested a maximum amount of

US$50,000 for personal injury, death, or illness. Other limitations have been

proposed for damage to property.127 ‘Financial limitations on the liability of the

Organisation, though justified on economic, financial and policy grounds, constitute

an exception to the general principle that when tortious liability is engaged,

compensation should be paid with a view to redressing the situation and restoring it

to what it had been prior to the occurrence of the damage.’128

Another limit to UN liability is the development of the ‘operational necessity’ principle,

i.e. where the damage results from ‘necessary actions taken by a peacekeeping

force in the course of carrying out its operations in pursuance of its mandates’. The

‘Operational necessity’ constitutes an exception to the liability of the UN for property

loss and damage caused by its forces. This principle has been applied for decades

in the practice of the claims review boards and has been incorporated in the Model

SOFA.129

One may conclude that while the UN has established some modes of dispute-

settlement, these certainly do not cover all situations in which individuals may seek

to challenge acts of the UN organs. It may therefore be appropriate to analyze the

general institutional framework of the UN to question whether there are any indirect

ways to challenge UN acts.

125

Case Note by J. Salmon, ‘De quelques problèmes poses aux tribunaux belges par les actions de citoyens belges contre l’O.N.U. en raison de faits survenus sur le territoire de la République démocratique du Congo, (1966) Journal des Tribunaux 713; Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721. 126

F. Mégret, ‘The Vicarious Responsibility of the United Nations for “Unintended Consequences of Peace Operations”’, in C. Aoi, C. de Cooning and R. Thakur (eds), The ‘Unintended’ Consequences of Peace Operations (Tokyo: United Nations University Press, 2007) 250-267. 127

Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/903 (1997) paras 39-41. 128

Ibid. para 37. 129

Financing of the United Nations Protection Force, the United Nations Confidence Restoration Operation in Croatia, the United Nations Preventive Deployment Force and the United Nations Peace Forces headquarters Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, Report of the Secretary-General, UN Doc. A/51/389 (1996) paras 13-15; K. Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Maßnahmen und Territorialverwaltungen (Frankfurt am Main: Peter Lang, 2004) 487-496.

34

7.2 INDIRECT WAYS TO CHALLENGE UN ACTS Among the six principal organs of the United Nations established by Article 7 of the

UN Charter, the ICJ has a particular status since it is the ‘principal judicial organ’ of

the UN, as stated in Article 92 of the Charter. There is no reference in the Charter or

in the Statute of the Court as to the ICJ’s competence to review the validity of other

UN organs’ acts. Article 96 states that the General Assembly and the Security

Council may request an advisory opinion on any legal question. Other organs and

specialized agencies may also request such opinion if they are so authorized by the

General Assembly. The ICJ itself stated in an advisory opinion requested by the

General Assembly, entitled Certain Expenses of the United Nations (1962), that

there is no procedure for determining the validity of an act of an UN organ: ‘As

anticipated in 1945, therefore, each organ must, in the first place at least, determine

its own jurisdiction.’130 Notwithstanding the absence of any reference to the ICJ’s

competence to act as a constitutional court within the UN, the Court has in some

cases reviewed the legality of the acts of UN political organs. We will not enter into a

detailed analysis of these cases here. Reference can be made to the study of

Mohamed Amr, who notes that the ICJ has both explicitly and implicitly conducted a

review of UN acts.131 He considers that ‘it is in the interests of the UN in the first

place and in the interests of its member states, that the political organs’ acts should

be revisable. The most appropriate organ within the UN system to do this is the ICJ

as the principal judicial organ of the UN.’ However, the competence of the ICJ to

review acts of UN organs remains highly controversial. Moreover, the Court may only

act at the request of an organ or a state; individuals are not allowed to file a claim

before the ICJ.

Indirect paths to challenge UN organs’ acts may nevertheless be considered. Article

VIII, section 30 of the General Convention states that ‘[a]ll differences arising out of

the interpretation 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 settlement. 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.’ The request for an advisory

130

Certain Expenses of the United Nations, ICJ, 20 July 1962, Advisory Opinion, (1962) ICJ Rep. 151, at 168. 131

M.S.M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003) 295 and ff.

35

opinion must be made according to Article 96 of the UN Charter, which means that

the right of initiative belongs to the UN organs and not to Member States. However,

‘the remedial potential for the member state is real and could include the whole

range of remedial consequences that would normally flow from a ruling of the Court

on the organisation’s responsibility for non-compliance (that is, abuse) with the

Convention, which has to be accepted as “decisive” by both “parties”’.132 Indeed, this

‘decisive’ feature of the ruling of the ICJ seems to extend the boundaries of the ICJ’s

competences. Nevertheless, the ICJ ruled that this does not change the advisory

nature of the Court’s function.133

It is unfortunate that this mechanism is less than clear for individuals seeking to

challenge acts committed by UN organs. Individuals must depend on the willingness

of their state to defend their interests and to bring the issue to the General Assembly

or the Security Council, which in turn may request an advisory opinion from the ICJ.

Moreover, it is for the UN organ to formulate the question; the Member State may not

control the drafting process.134

One may question whether the same principle applies to subsidiary organs.

Subsidiary organs are created by principal organs, which determine their structure,

composition, functions, powers, and autonomy, and decide on their dissolution. As a

consequence, ‘each subsidiary organ is in a subordinate position vis-à-vis its parent

organ.’135 Many different subsidiary organs have been established and it is not

possible to address them all here. Instead, a general analysis of their autonomy and

of the control of their acts can be made. This issue was debated on the creation of

the UN Administrative Tribunal by General Assembly Resolution 351 (IV) on 24

November 1949 and 9 December 1949. The competence of the Tribunal to

pronounce judgments binding upon the UN was questioned, since the Tribunal was

subordinate to the General Assembly. The ICJ found in its advisory opinion, Effect of

Awards of Compensation made by the United Nations Administrative Tribunal

(1954), that this question depended on the intention of the General Assembly in

establishing the Tribunal and on the nature of the functions conferred upon it by its

Statute.136 As a consequence, each principal organ may determine the nature and

132

K. Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002) 231. 133

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ, 29 April 1999, Advisory Opinion, (1999) ICJ Rep. 62, at 76-7. 134

Ibid., 81. 135

G. Jaenicke, ‘Article 7’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1 (2

nd edn, Oxford: Oxford University Press, 2002) 219.

136 Effect of Awards of Compensation made by the United Nations Administrative Tribunal, ICJ,

Advisory Opinion, 13 July 1954, (1954) ICJ Rep. 47, 61.

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scope of the powers of the subsidiary organ it creates as long as it remains within

the limits of its own competence.137 The mechanisms to challenge acts of subsidiary

organs may therefore be determined by the principal organ or the subsidiary organ

itself. For instance, an Ombudsperson Institution was established in Kosovo in June

2000 according to a regulation adopted by the Special Representative of the

Secretary-General for Kosovo, pursuant to the authority given to him under Security

Council Resolution 1244 (1999). The Ombudsperson was competent to ‘receive and

investigate complaints against any person or entity in Kosovo concerning human

rights violations and actions constituting an abuse of authority by the interim civil

administration or any emerging central and local institution.’138

8. CONCLUDING REMARKS

The main outcome of the analysis in the present contribution is that domestic

accountability is not an option for individuals in the present state of the case law.

One possible argument for individuals seeking to challenge UN acts before national

courts would be based on the UN’s obligation to provide for appropriate methods of

settlement for disputes of a private law character. Since the UN has failed to set up

courts in accordance with Article VIII, section 29 of the General Convention, a

reckless national court could refuse to grant immunity. The UN asserts that it

provides for the appropriate mechanisms to resolve all complaints of a private law

nature. It is true that certain mechanisms have been established, as notably the local

claims commissions for the UN’s peacekeeping operations and the administrative

jurisdictions for its employment-related disputes. In other cases, it offers alternative

means such as negotiation, conciliation, mediation and/or arbitration. Nevertheless, it

may be questioned whether such alternative means are appropriate mechanisms to

resolve complaints of individuals.

This argument was raised by the plaintiff in Manderlier v Organisation des Nations

Unies et l’État Belge (1966). The Civil Tribunal of Brussels stated that ‘it is for the

United Nations, and for it alone, to set up the courts which would produce an

137

G. Jaenicke, ‘Article 7’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1 (2

nd edn, Oxford: Oxford University Press, 2002) 223.

138 UNMIK, Regulation No. 2000/38 on the Establishment of the Ombudsperson in Kosovo (30 June

2000) Section 3.1. Since a UNMIK Regulation of 16 February 2006, the Ombudsperson Institution is a Kosovar institution with local Ombudsperson. Moreover, it no longer has the competence to examine complaints against UNMIK. UNMIK, Regulation No. 2006/6 on the Ombudsperson in Kosovo (16 February 2006).

37

appropriate method of settlement for the disputes which it may have with third

parties. Immunity from jurisdiction has been conferred upon it, however inconvenient

may be its results for litigants.’139 It would consequently be for the UN to set up

appropriate methods of settlement rather than for national jurisdictions to seek

means to circumvent the immunity. There are many additional arguments supporting

this theory, among which are the fear of opening the door to disparate decisions of

the courts of different UN Member States with regard to the UN, and to the possibility

of uncertainty and tensions arising between international actors. Moreover, the

interference of national courts risks threatening the independence of the UN in its

missions. In the context of peacekeeping missions, immunity from local courts

guarantees the independence of the mission, which would otherwise risk judicial

interference.140 A final coup de grace is provided by the argument that an individual

would face huge difficulties in seeking to enforce a national decision convicting the

UN.

However, it should be remembered that the above-mentioned decision dates from

1966, and it is questionable whether it is still relevant today. Following the above

review of national cases, UN immunity is still considered unconditional and absolute,

except for an express waiver. Yet, recent cases have engendered a new perspective

in favour of the right of access to courts. Although it did not concern the UN, the

recent judgment of the French Cour de Cassation (2005)141 discussed above could

breach the wall of immunity of the UN and be followed by other national jurisdictions.

If no tribunal has been established by the organization to decide on disputes with

individuals, it is impossible for an individual to exercise a right under the international

public order. This constitutes a denial of justice grounding the national courts’

competence, provided there is a connecting factor with its jurisdiction.

We approve the evolution of case law in favour of individuals and plead for its

application to the UN. National jurisdictions should not be denied the power to verify

whether the UN has established a dispute-settlement mechanism permitting an

individual to challenge its acts. This assessment is justified by the human rights

principle of access to justice. However, national courts must refrain from referring to

139

Manderlier v Organisation des Nations Unies et l’État Belge (Ministre des Affaires Etrangères), Brussels Civil Tribunal, 11 May 1966, (1966) Journal des Tribunaux 721; (1972) 45 ILR 446 at 452. 140

F. Mégret, ‘The Vicarious Responsibility of the United Nations for “Unintended Consequences of Peace Operations”’, in C. Aoi, C. de Cooning and R. Thakur (eds), The ‘Unintended’ Consequences of Peace Operations (Tokyo: United Nations University Press, 2007). 141

African Development Bank v Haas, French Cour de Cassation (soc.), 25 January 2005, (2005) Journal des Tribunaux 454; Case Note by E. David, ‘Observations’, (2005) Journal des Tribunaux 454; P. Sands & P. Klein, Bowett’s Law of International Institutions (6th edn, London: Sweet & Maxell, 2009) 498.

38

national considerations in decisions on immunity of the UN. As already discussed, in

a case concerning the WEU (2003) the Brussels Labour Court set aside immunity

after noting that although an internal procedure was available to individuals it did not

meet the guarantees inherent in the notion of a fair trial. The court based itself upon

characteristics of national jurisdictions to assess the modalities of the internal

appeals procedure established by the WEU. However, this case law is overzealous

and does not take into account the specificities of international organs.

In conclusion, we believe that an evolution of case law justified by the human rights

principle of access to courts would offer individuals an efficient mechanism to

challenge the UN. In addition, if no alternative mechanisms exist to oblige the UN to

enforce national decisions, jurisdictions could give priority to enforcement as part of

the right of access to a court over immunity.142 However, this evolution must take into

account the specificities of international organizations. Indeed, one should not

compare internal mechanisms established by international organizations to national

jurisdictions to assess the notion of fair trial, but rather to international administrative

tribunals.

142

Lutchmaya v Secretary-General of the African, Caribbean and Pacific Group of States, Brussels Court of Appeals, 4 March 2003, (2003) Journal des Tribunaux 684; Case Note by E. David, ‘Une décision historique?’, (2003) Journal des Tribunaux 686.

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