Diplomatic Privileges and Immunities

Privileges and Immunities

• Privileges and immunities have been accorded to states and their diplomatic personnel by other states as a result of the development of customary international law.
• The law of diplomatic privileges and immunities has been codified in the 1961 Vienna Convention on Diplomatic Relations.
• International organizations and their personnel have been accorded privileges and immunities through treaties and conventions.

International Organizations

• International organizations enjoy privileges and immunities entirely because they are necessary for the fulfillment of their purposes and functions.
• The basis of such privileges and immunities is functional, and organizations are accorded only those privileges and immunities which are necessary for that purpose.
• The nationality of the individual usually has no bearing on whether the privilege or immunity accrues.

UN Charter

• Article 105 of the UN Charter provides for the privileges and immunities of the organization and its personnel in a very general way.
• The article ties privileges and immunities to purposes and functions.

Conventional Law

• The UN Convention of 1946 implements Article 105 of the Charter.
• The Specialized Agencies Convention of 1947 is applicable to the specialized agencies.
• The pattern of the main contents of these agreements was followed in multilateral agreements made by many organizations.

Privileges and Immunities of Organizations

• Four main privileges and immunities merit attention:
  • Immunity from jurisdiction
  • Inviolability of premises and archives
  • Privileges relating to currency and fiscal matters
  • Freedom of communications

Immunity from Jurisdiction

• The UN Convention and the Specialized Agencies Convention provide for immunity from jurisdiction, except insofar as the organization has expressly waived its immunity.
• The financial institutions led by the IBRD have a provision in their constitutions where this general immunity is qualified.
• The immunity of the IBRD is reversed, with a presumption of absence of immunity which is recognized only in certain circumstances.
• The immunity of the IDB is not absolute, and it may be sued in certain circumstances.
• The constitutions of the ADB, AFDB, and CDB provide for limited immunity, with actions only permitted in connection with certain activities.### Immunity of International Organizations (IGOs)
• There is no judicial precedent relating to the interpretation of the UN or Specialized Agencies Convention or instruments with similar provisions.

Immunity of IGOs in National Courts

• The Italian Court of Cassation decided that NATO did not have immunity from jurisdiction in a private contract case (Branno v. Ministry of War, 1955).
• However, in 1992, the Italian Court of Cassation reversed this decision, holding that the FAO was entitled to complete immunity in national courts.
• In the US, the Federal Court held that the OAS did not have immunity in a bidding construction contract case (Dupree Associates Inc. v. OAS, 1977).
• The Malaysian High Court refused immunity to the ITC in a case concerning outstanding loans (Bank Bumiputra Malaysia Bhd. v. ITC, 1987).

Employment-Related Cases

• French courts have recognized the immunity of IGOs in employment-related cases since 1928 (Lamborot and Antin cases).
• Italian courts have also recognized the immunity of IGOs in employment-related cases (International Institute of Agriculture v. Profili, 1931).
• The US Court of Appeals has confirmed that IGOs enjoy immunity from jurisdiction in the USA in cases brought by staff members regarding employment (Broadbent Case, 1980).
• The US Court of Appeals has also recognized the immunity of IGOs in employment-related cases (Mendaro v. The World Bank, 1983).
• Other states that have recognized the immunity of IGOs in employment-related cases include Argentina, Mexico, Chile, Colombia, Syria, Egypt, India, Luxembourg, and the Philippines.

Exceptions to Immunity

• There are a few cases in which national courts have assumed jurisdiction in actions relating to employment matters brought against IGOs (e.g., Lebanon, Jordan, Syria, and Gaza).
• The Italian Court of Cassation held that the administrative courts had jurisdiction in a case brought against an organ of the IRO (Maida v. Administration for International Assistance, 1955).
• A Dutch court found that it had jurisdiction in an employment-related case brought against Eurocontrol (Eckhardt v. Eurocontrol, 1976).

Recent Cases

• A Greek court denied immunity to the International Centre for Superior Mediterranean Agricultural Studies in an employment dispute (X v. International Centre for Superior Mediterranean Agricultural Studies, 1991).
• A US court denied immunity to the IFC in a physical harm and harassment case brought by an employee (Margot Rendall Speranza Case, 1996).

Conclusion

• Despite exceptional instances, recognition is given to the immunity of IGOs from the jurisdiction of national courts in employment-related cases, whether there is an express grant of such immunity or not.
• The decisions of national courts do not reflect a uniform approach to the grant of immunity in employment-related cases.### Immunity and International Organizations
• The Italian court recognized immunity in an execution case, stating that assets destined for international aims cannot be litigated.
• The UK courts have recognized the immunity of the International Tin Council (ITC) in winding-up proceedings.

Waiver of Immunity

• An international organization's immunity from jurisdiction may be waived by the organization.
• Waiver can be express or implicit.
• Examples of waiver of immunity include:
  • Entering into an arbitration agreement (ITC v. Amalgamet Inc.)
  • Agreeing to a condition in a facility letter that the loan is governed by English law and submitting to the jurisdiction of the English courts (Standard Chartered Bank v. ITC and Others)

Property and Assets

• The UN Convention, Specialized Agencies Convention, and financial institutions' constitutions provide that property and assets shall be immune from:
  • All forms of judicial process
  • Execution
  • Search, requisition, confiscation, expropriation, and other forms of interference
• The UN Convention and other agreements provide for the freedom of organizations to:
  • Hold funds, gold, or currency of any kind
  • Operate accounts in any currency
  • Transfer funds, gold, or currency from one country to another or within any country
  • Convert any currency held into any other currency

Premises and Archives

• The inviolability of premises and archives is provided for in all relevant agreements.
• The UN Convention and financial institutions' constitutions provide for:
  • The inviolability of premises
  • The inviolability of archives and all documents belonging to or held by the organization
• The concept of inviolability implies that:
  • Authorities of the host state may not enter the premises without permission
  • The host state must exercise due diligence in protecting the premises

Problems with Inviolability

• International organizations have no sovereign authority over the territory on which their premises are situated.
• Organizations may not have the power to establish a body of law to replace that of the host state in respect of civil or criminal offenses committed within the premises.
• A crime committed on the premises will normally be dealt with by the local courts.

Archives and Confidentiality

• The English courts have held that the inviolability of archives includes protection from perusal and use without the organization's consent.
• The purpose of inviolability is to preserve confidentiality as well as physical preservation of documents.
• Documents communicated to third parties by member states or their representatives cease to be protected by inviolability.
• Documents communicated by organizations with observer status at the organization are not protected by inviolability.

Fiscal Matters

• The UN Convention provides that the organization, its assets, income, and property shall be exempt from direct taxation.
• The organization is not expected to claim exemption from taxes which are, in fact, no more than charges for public utility services.