Public International Law Lecture 3: Privileges and Immunities - 2024-2025 PDF

3 2024-2025 David den Dunnen [email protected] International Bachelor of...

3 2024-2025 David den Dunnen [email protected] International Bachelor of Law Programme Public International Law Lecture #3: Privileges and Immunities of International Organizations  Agenda 1. Privileges and Immunities in General 2. Privileges and Immunities of States 3. Privileges and Immunities of International Organizations 2 Privileges and Immunities 1. Privileges and Immunities in General A privilege exempts you from a rule − It’s not illegal for a diplomat to not pay income tax in the host state An immunity means that one is shielded from legal action. It is an exemption from legal proceedings Privileges and Immunities 3  If a diplomat risks being arrested on frivolous charges at the whim of the host state, international relations can hardly be maintained. Jan Klabbers 4 Privileges and Immunities 2. Privileges and Immunities of States The rules on P&I are among the oldest and most important in international law They are governed by Vienna Convention on Diplomatic Relations (1961) − Universally accepted; largely codifies customary PIL Purpose: allowing diplomatic missions to fulfil their functions Diplomatic protection is founded on principle of reciprocity Privileges and Immunities 5 2. Privileges and Immunities of States State itself State is immune for all state acts (jure imperii): acts performed by state officials in their official capacity Reason: equals have no sovereignty over each other (‘par in parem non habet imperium’) State immunity is rule of PIL recognized by most states, rather than discretionary matter (‘gesture of comity’) for each state to grant another state − ICJ, Case Concerning Arrest Warrant of 11 April 2000 (DRC v Belgium, 2002) However, state practice regarding state immunity has been diverse and complex Privileges and Immunities 6 2. Privileges and Immunities of States Tensions with right to fair trial of persons whose rights have allegedly been violated by a state (official) − Art. 14 ICCPR; art. 6 ECHR ECtHR judgments (e.g. Al-Adsani v UK ): state immunity from civil lawsuits cannot be struck down perse as contrary to art. 6 ECHR ICJ Jurisdictional immunities of the state (Germany v Italy, 2012): customary PIL hardly supports claim that gross violations of international human rights law or intl humanitarian law would remove a state’s entitlement to immunity before a foreign court State is not immune for its private/commercial acts (jure gestionis) − E.g. when it acts as a company, it is not exempt from lawsuit → state immunity is nowadays generally considered restricted rather than absolute Privileges and Immunities 7 2. Privileges and Immunities of States Diplomats and consular staff Heads of state through to ambassador in office have absolute immunity: personal immunity. They are immune for everything (public and private) they do as person while in office Immunities are not granted for diplomats’ personal benefits, but to ensure the effective performance of their functions on behalf of their state ICJ ‘Arrest Warrant’ case: a minister is shielded by personal immunity when in office, incl for acts committed before becoming minister. Because if a serving minister would be arrested in another state on a criminal charge, he would be prevented from exercising his functions as foreign minister Even for international crimes there is no exception to this absolute immunity Privileges and Immunities 8 2. Privileges and Immunities of States ICJ ‘DRC v Rwanda’ (2006): breach of jus cogens norm does not suffice to confer jurisdiction ECtHR Jones and others v UK (2014): despite “emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign state officials,” immunity may not be circumvented ICJ: such immunity should not equal impunity → justice should be served in minister’s home state’s courts. Or home state should waive his immunity. And once minister ceases to hold the position, immunity becomes more limited (‘functional’) → he can be tried for acts committed not in his official capacity, and before and after it. Also, intl criminal tribunals may have jurisdiction Same people out of office remain immune only for all official acts done while in office (functional immunity) Privileges and Immunities 9  Since he is no longer the representative of the foreign State he merits no particular privileges or immunities as a person. However, in order to preserve the integrity of the activities of the foreign State during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador’s time. (…) [However,] it cannot be part of the functions of the head of state to commit a crime. [Moreover,] the implementation of torture as defined by the Torture Convention cannot be a State function. UK House of Lords, ‘Pinochet’ case, 1999 10 Privileges and Immunities 2. Privileges and Immunities of States Law on heads of state immunity is in flux. There has been move away from absolute immunity for (current and former) heads of state. Exceptions have been developed in ICL All officers below ambassadorial level enjoy functional immunity: immune only for actions being part of their official duties If the host state fails to apply immunity to diplomat → triggers state responsibility Privileges and Immunities 11 2. Privileges and Immunities of States If diplomats misuse their immunity, there are several rules and remedies available − ICJ U.S. Diplomatic and Consular Staff in Iran case (1980) points at the rules and remedies of 1961 Vienna Convention in such cases: o Diplomats have a duty to respect the laws and regulations of the receiving state, and to not interfere with the internal affairs of that state o If a diplomat does not comply, the host state can declare them persona non grata → sending state shall recall that person or terminate their functions with the mission. If the sending state doesn’t do so, the receiving state may refuse to recognize the diplomat concerned o If that doesn’t work, the receiving state can sever diplomatic ties with the sending state, and call for closure of the mission Criticism on diplomatic P&I Privileges and Immunities 12 3. Privileges and Immunities of International Organizations IO’s immunities vis-à-vis the host state jurisdiction allows its independence towards that state Privileges and Immunities 13  To bring [UN] operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in [the field of securing international peace and security], including with the effective conduct of its operations. ECtHR, Stichting Mothers of Srebrenica and others v NL, 2013 14 Privileges and Immunities 3. Privileges and Immunities of International Organizations Art. 105 UN Charter: privileges and immunities of the IO are necessary for the effective exercise of its functions and the fulfilment of its purposes Principles & rules on IO immunities typically reflect those of states. Yet as IOs are different from states, their P&I (need to) differ somewhat Immunity from local courts’ jurisdiction does not mean that local law doesn’t apply to IOs. They have – and are expected - to comply with specific local regulations − Otherwise IOs would have to create their own vast legal systems IO-host state relationships are not governed by a general treaty such as for state immunity, so one has to consult IO’s specific treaties/agreements with host state(s) Privileges and Immunities 15 3. Privileges and Immunities of International Organizations United Nations Art. 105(3) UNC → General Assembly adopted the General Convention on Privileges and Immunities of the UN (1946) Supplementing 1946 Convention: headquarters agreements UN has entered into with individual host states − E.g. 1947 UN-U.S. Headquarters Agreement: U.S. law continues to apply in New York’s UN Headquarters district. U.S. courts have jurisdiction Privileges and Immunities 16 3. Privileges and Immunities of International Organizations UN enjoys absolute immunity 1946 UN Convention − Art. II s. 7: UN is exempt from local taxes and customs − S. 3: UN’s property, assets, premises, archives, etc. are immune from legal action Inviolability of IO’s premises means that host state authorities cannot enter them, even if crime has taken place. They need approval of the administrative head of IO. So UNSG needs to invite police in − If IO allows host state to arrest someone, host state can prosecute the suspect in its local courts − Host state has duty of due diligence to protect IO’s premises (and staff) on its territory. Vice versa, UN has duty to prevent HQ district to serve as refuge for people avoiding arrest UN can waive its own immunity − For what reason would one waive one’s immunity? Privileges and Immunities 17 3. Privileges and Immunities of International Organizations P&I for member states’ representatives Art. IV ss 11ff. MS can and must waive its reps’ immunity when it considers that immunity would impede the course of justice (s. 14) P&I for IO officials Art. V Top employees enjoy personal immunity (s. 19) The rest has functional immunity Secretary-General needs to waive official’s immunity in case of them misbehaving (‘impeding course of justice’) − For SG himself, UN Security Council can waive it (s. 20) UN has disciplinary measures at disposal for its staff Privileges and Immunities 18 3. Privileges and Immunities of International Organizations P&I for experts on mission Experts on mission: people without employment contract with IO, but doing work for it, decided by SG/head of mission Art. VI ss 22-23, 1946 General Convention P&I for troops on mission Military troops on peacekeeping operation are not subject to host state’s jurisdiction The law governing troops from troop-contributing nations is the applicable Status-of- Forces-Agreement (SOFA) 1990 UN model SOFA: such troops enjoy immunity from local jurisdiction over crimes committed by them. Instead they fall under TCN’s exclusive jurisdiction This may not be satisfactory to locals having suffered injury Privileges and Immunities 19  [The Secretary-General] will obtain assurances from Governments of participating States that they will be prepared to exercise jurisdiction with respect to crimes or offences which may be committed by members of their national contingents serving with the peace-keeping operation UN model SOFA 1990 20 Privileges and Immunities 3. Privileges and Immunities of International Organizations This has hardly happened, and prosecution has not or insufficiently happened 2003: Secretary-General issued ‘Bulletin on Special Measures for Protection from Sexual Abuse,’ directly applying to UN personnel as part of their employment law. However, it’s not considered binding on the troops from troop-contributing nations Troops in peacekeeping operations are issued a pocketcard with prescribed behaviour. It explicitly invokes principles of international human rights law and IHL Privileges and Immunities 21  … we must consciously be prepared to accept special constraints in our public and private lives in order to do the work and to pursue the ideals of the United Nations Organization. UN pocketcard for peacekeeping troops 22 Privileges and Immunities 3. Privileges and Immunities of International Organizations Does immunity equal impunity? ECtHR decision ‘Mothers of Srebrenica’ upheld Dutch Supreme Court’s decision of UN immunity, even in face of the claim that the UN’s failure to prevent genocide was a breach of a jus cogens norm See also other ECtHR judgments, incl ‘Behrami.’ Cases filed against UN were found inadmissible because of its immunity Immunities are a justifiable exception to art. 6-ECHR fair trial rights ‘Mothers of Srebrenica’: immunity is different from compensation for damage incurred as a result of acts by UN (agents) in their official capacity. UN may be responsible → requiring settlement − S. 29 General Convention 1946 Privileges and Immunities 23 3. Privileges and Immunities of International Organizations ECtHR Waite and Kennedy v Germany (1999): IO’s immunity from lawsuit may have implications for protection of human rights → IOs should have their own dispute settlement mechanisms in place Fair trial requirements of art. 6 ECHR are satisfied when the IO has reasonable alternative means in place to effectively protect the rights under the ECHR, with a satisfactory dispute settlement system 1. For internal disputes: many IOs have their own administrative tribunals − Internal disputes in UN: its judicial system consists of the UN Dispute Tribunal and the UN Appeal Tribunal − Many IOs not having their own borrow the International Labour Organization’s one (ILOAT) Privileges and Immunities 24 3. Privileges and Immunities of International Organizations 2. For affected/injured 3rd parties: UN model SOFA provides for claims commissions for disputes of a private law character. However, they do not address human rights or PIL infringements IO’s absolute immunity is not conditioned on such alternative modes of settlement. So having no claims commission in place does not mean the IO is no longer immune UN peacekeepers have repeatedly caused harm − The case of MINUSTAH, Haiti (2010) If IO does not willingly comply, it can waive immunity. Immunities must be waived in certain cases, incl to promote justice, prevent abuse. However, it’s a political call by the SG Privileges and Immunities 25 3. Privileges and Immunities of International Organizations UNGA has called on member states to criminalize behaviour of their nationals serving the UN and committing crimes As we realize that IO’s work and operations sometimes adversely affect millions of people, IO’s immunity from lawsuit (only necessary to exercise its functions) has become increasingly controversial. “[A]nother approach may well need to be developed” (Klabbers) Risk: if UN would continue to push responsibility to troop-contributing nations the latter may become reluctant to contribute troops in the future Privileges and Immunities 26  Workshop Privileges and immunities of experts on mission The cases of Mazilu, Cumaraswamy and Erlinder 27 Privileges and Immunities