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10 Privileges and immunities Privileges and immunities have been accorded to states and their diplo- matic personnel by other states as a result of the development of custom- ary international law.1 These were largely based on a theory of equality, supported by the principle of reciprocit...

10 Privileges and immunities Privileges and immunities have been accorded to states and their diplo- matic personnel by other states as a result of the development of custom- ary international law.1 These were largely based on a theory of equality, supported by the principle of reciprocity, and historically reflected the respect states had for each other’s sovereignty. Now the law of diplomatic privileges and immunities has been largely codified in the 1961 Vienna Convention on Diplomatic Relations.2 Customary international law, how- ever, had nothing originally to say on the privileges and immunities of international organizations and their personnel which are a recent phenomenon. These privileges and immunities have, consequently, been largely accorded through treaties and conventions.3 It has come to be rec- ognized that for the effective exercise of the functions of international 1 For a discussion of state immunities see Badr, State Immunity (1984), and Jennings and Watts, Oppenheim’s International Law (1992) vol. I, pp. 341ff. and literature cited therein, particularly p. 341, note 2, p. 346, note 20 and p. 357, note 8. On diplomatic privileges and immunities see particularly Mclanahan, Diplomatic Immunity (1989); Lewis, State and Diplomatic Immunity (1990); Jennings and Watts, Oppenheim’s International Law (1992) vol. 1, pp. 1090ff. and literature there cited. 2 500 UNTS p. 95. The Convention entered into force on 24 April 1964. The Convention is referred to hereinafter as the Vienna Convention. 3 For a brief history of privileges and immunities accorded to the personnel of international organizations, see Michaels, International Privileges and Immunities (1971) pp. 7ff. This work also surveys the main treaty law on the subject. The privileges and immunities of international organizations are hereinafter referred to as ‘international privileges and immunities’. On international privileges and immunities generally, see, e.g., J.-F. Lalive, ‘L’Immunité de juridiction et d’éxecution des organisations internationales’, 84 Hague Recueil (1953-III) p. 205; Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (1964); Dominicé, ‘L’immunité de jurisdiction et d’éxecution des organisations internationales’, 187 Hague Recueil (1984-IV) p. 209; Cully, ‘Jurisdictional Immunities of Intergovernmental Organisations’, 91 Yale LJ (1982) p. 1167; Duffar, Contribution à l’étude des privilèges et immunités des organisations internationales (1982); Jenks, 315 316 privileges and immunities organizations it is required that states concede privileges and immuni- ties to international organizations, their premises and their personnel, including the representatives of member states to these organizations. These privileges and immunities are not always analogous to those of states, but are comparable. The conventional law according these privi- leges and immunities is contained in the constitutions of organizations, bilateral agreements and multilateral conventions, such as the General Convention on the Privileges and Immunities of the UN of 1946.4 International organizations enjoy privileges and immunities entirely because they are necessary for the fulfilment of their purposes and func- tions. Because the basis of such privileges and immunities is functional, organizations are and can expect to be accorded only those privileges and immunities which are necessary for that purpose. An organization requires certain privileges in respect of, and immunities from the juris- diction of, not only the state in which it is located but also all its member states, should there be potential of its acts or staff or property coming under their jurisdiction. A feature of the law governing the privileges and immunities of orga- nizations and their personnel is that the nationality of the individual usually has no bearing on whether the privilege or immunity accrues. A national of a state may enjoy the privileges or immunities accorded to international personnel vis-à-vis his own state and his national state may not be able to exercise jurisdiction over him because he is a member of an international organization. However, certain privileges and immuni- ties are accorded only to international personnel who are not nationals of the states granting such privileges and immunities. This is the case International Immunities (1961); Sands and Klein (eds.), Bowett’s Law of International Institutions (2001) pp. 486ff.; Dominicé, ‘Le Nature et l’étendue de l’immunité de juridiction des organisations internationales’, in Bocksteigel et al. (eds.), Law of Nations, Law of International Organizations, World’s Economic Law, Festschrift Ignaz Seidl-Hohenveldern (1988) p. 11; Dominicé, ‘L’arbitrage et les immunités des organisations internationales’, in Dominicé et al. (eds.), Etudes de droit international en l’honneur de Pièrre Lalive (1993) p. 483; Szaniawski and Forysinkski, ‘Le problème d’application de la Convention sur le statut juridique les privilèges et les immunités des organisations économiques intrétatiques functionnant dans certain domaines de coopération’, 15 Polish YIL (1986) p. 29; Schröer, ‘De l’application de l’immunité juridictionnelle des étâts étrangers aux organisations internationales’, 75 RGDIP (1971) p. 712; de Bellis, L’immunità delle organizzazioni internazionali dalla giurisdizione (1992); Bekker, The Legal Position of Intergovernmental Organisations – A Functional Necessity Analysis of their Status and Immunities (1994); Muller, International Organisations and their Host States (1995); Reinisch, International Organizations before National Courts (2000) pp. 127--229 and passim. 4 1 UNTS p. 15. As of 31 December 1992, 131 states were parties to the Convention. This Convention is hereinafter referred to as the UN Convention.  t h e c o n v e n t i o n a l l aw 317 generally with exemption from taxation on salary income, for instance, or the privilege of securing a special work permit or visa for a domes- tic from a foreign state to enter the state where the official resides (a privilege which is generally granted unilaterally and not under any inter- national convention). In the case of diplomatic personnel, by contrast, the nationality of the diplomat is relevant to determining whether privi- leges and immunities will be accorded in two respects. First, the national state of a diplomatic representative always has jurisdiction over him -- no immunity from jurisdiction is recognized. Second, where nationals of a state become members of foreign diplomatic missions in that state, they are not accorded the same privileges and immunities as foreign diplomats in foreign missions enjoy. Their privileges and immunities are more limited. While diplomatic privileges and immunities may be backed by the principle of reciprocity, there is no such quid pro quo which operates in the case of international privileges and immunities. The organiza- tions do not extend privileges and immunities on a reciprocal basis: in effect states accord international privileges and immunities unilaterally, albeit under legal constraints. In the case of international privileges and immunities the inducement for states to recognize them is their interest in the efficient and independent functioning of organizations without the fear of interference. However, there is a reciprocity of a more subtle kind. States have an interest in other states showing the same restraint. The conventional law The UN Charter provides in Article 105 for the privileges and immunities of the organization and its personnel in a very general way. This article states: 1 The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2 Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. 3 The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose. 318 privileges and immunities The article, though general in nature, ties privileges and immunities to purposes and functions. Most open organizations have constitutions with provisions of a similar general nature,5 while the constitutions of some open organizations refer to the Specialized Agencies Conven- tion.6 The financial institutions are different. Their constitutions gener- ally have detailed provisions on the subject. As an example may be given the Articles of Agreement of the IBRD which deal in extenso in Article VII with the purpose of immunities and privileges, the position of the IBRD with regard to judicial process and seizure or attachment of, or execu- tion on, its property and assets and the extent of its immunity in that regard, the immunity of its assets from seizure by executive or legislative action, the freedom of its assets from restrictions, the immunity of its archives, the privileges it enjoys for official communications, the immu- nities and privileges of its officers and employees and the immunities enjoyed by it and its officers and employees in respect of taxation.7 Some closed organizations have provisions in their constitutions which recognize privileges and immunities,8 while others have no pro- visions.9 With this diversity it was to be expected that some implementing or developmental conventional law would come into existence. There has consequently been a tendency to make detailed agreements in many 5 See, e.g., the ILO Constitution, Article 40; the UNESCO Constitution, Article XII; the WHO Constitution, Articles 67 and 68; the IAEA Constitution, Article XV. See also the FAO Constitution, Article XVI; and the ICAO Constitution, Article 60. 6 See, e.g., the IMO Constitution, Article 60. 7 See also, e.g., the IMF Articles of Agreement, Article IX; the IDA Articles of Agreement, Article VIII; the IFC Articles of Agreement, Article VI; the MIGA Convention, Articles 43 to 50; the ADB Constitution, Articles 50 to 58; the IDB Constitution, Article XI; and the EBRD Constitution, Articles 46 to 55. A detailed account of the practice of the UN, the Specialized Agencies and the IAEA and of states in relation to these organizations with regard to the status, privileges and immunities of the organizations, representatives of member states and personnel is to be found in a paper prepared by the UN Secretariat in 1967 for the ILC in connection with its work on ‘Relations between States and intergovernmental organizations’: UN Doc. A/CN. 4/L.188 and Add. 1and 2, 2 YBILC (1967) pp. 154ff. There are many instances in the practice of organizations where the law has been interpreted and applied: e.g., in regard to the inviolability of premises of the organization or in regard to the immunities and privileges of representatives. It is not possible in a work of the present kind to discuss or refer to all these. The UN document cited above contains a very thorough account and examination of these problems. 8 Council of Europe Statute, Article 40; and the OAS Charter, Articles 39 to 42. See also the OAU Charter, Article XXXI. 9 See, e.g., the NATO Constitution and the Warsaw Treaty Pact Organization Charter.  t h e c o n v e n t i o n a l l aw 319 cases in order to establish particular privileges and immunities. Two multilateral conventions are particularly important. In the case of the UN, the UN Convention of 1946 is applicable. This convention implements Article 105 of the Charter. In the case of the spe- cialized agencies the Specialized Agencies Convention of 1947 is appli- cable. The latter convention contains variations from the general pro- visions determined by each specialized agency concerned and set out in separate annexes. The pattern of the main contents of these agree- ments was followed in multilateral agreements made by many organiza- tions, including the OAS10 and the COE.11 The EU also has made agree- ments modelled to some extent on these conventions.12 There are also agreements made between organizations and their host states, such as the Headquarters Agreement between the USA and the UN13 and the agreement between the COE and France.14 Special agreements may also be made to take care of individual situations which arise in the work of the organizations.15 In some states international agreements have been implemented by national legislation. The International Organizations Immunities Act of 1945 in the USA and the UK International Organization (Privileges and Immunities) Act of 1968, which replaced a similar statute of 1950, are examples of these. There is also similar legislation in many member states of the Commonwealth.16 While it is true that the source of privi- leges and immunities is the international agreements and international laws, the legislation may vary from state to state as may the interpreta- tion and application of the international obligations in regard to privi- leges and immunities.17 Before national courts reliance may have to be 10 1 Annals of the OAS, No. 3 (1949) p. 271. 11 250 UNTS p. 12. 12 1 European Yearbook p. 429. 13 2 UNTS p. 11. 14 249 UNTS p. 207. 15 See, e.g., the agreement between the UN and the Republic of the Congo: Annual Report of the Secretary General (1961), A 4800 p. 170: UN Doc. S5004; and the agreement of 1957 between the UN and Egypt relating to the UNEF: 260 UNTS p. 61. 16 See Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, UN.ST/LEG/SER. B/10 and 11, for national legislation. 17 For consideration of the laws of some countries relating to the privileges and immunities of organizations see, e.g., [Note], ‘Applying the Foreign Missions Act of 1982 to International Organizations: Reciprocity in the Multilateral Context’, 18 New York University Journal of International Law and Politics (1985) p. 229 (USA); Nakamura, ‘The Status, Privileges and Immunities of International Organizations in Japan: An Overview’, 35 Japanese Annual of International Law (1992) p. 116 (Japan); Zuppinger, ‘Die Privilegien der Diplomaten und Konsularischen Vertreter Sowie der Mitgliederder in der Schweiz niedergelassenen internationalen Organisationen bei den direkten Steuern’, in Haller et al. (eds.), Im Dienst ander Gemeinschaft: Festschrift für Dietrich Schindler 320 privileges and immunities placed entirely on the relevant legislation, though if the application of the legislation in a given case falls short of the applicable international law, the state concerned will be in breach of its international obligations owed to the international organization concerned. In a work of this nature it is not possible to examine all the existing agreements or constitutional texts. What can be done is to survey the general contents of some conventional instruments in order to establish general trends in the recognition of privileges and immunities, with special attention being paid to the UN Convention and the Specialized Agencies Convention.18 Privileges and immunities of organizations Four main privileges and immunities merit attention: (i) immunity from jurisdiction; (ii) inviolability of premises and archives; (iii) privileges relating to currency and fiscal matters; and (iv) freedom of communi- cations. These are clearly privileges and immunities which have been accorded because the fulfilment of the purposes and functions of orga- nizations demand them. Immunity from jurisdiction Section 2 of the UN Convention provides: The 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, under- stood that no waiver of immunity shall extend to any measure of execution. A similar section (Section 4) is included in the Specialized Agen- cies Convention. Some of the headquarters agreements, e.g., with Switzerland and Italy, have a similar provision.19 The jurisdictional immunities are very wide in these instruments. The financial institutions led by the IBRD (but excluding the IMF, where there is a wide immunity) have in their constitutions a provision zum 65 (1989) p. 179 (Switzerland); Bentil, ‘Suing an International Organization for Debt Payment’, 134 Solicitor’s Journal (1990) p. 475 (UK); Wenskstern, ‘Verfassungsrechtliche Fragen der Immunität -- internationaler Organisationen’, 40 Neue-Juristische-Wochenschrift (1987) p. 1,113 (FRG). 18 33 UNTS p. 261. As of June 2000, 106 states were parties to the Convention. Hereinafter this convention is referred to as the Specialized Agencies Convention. 19 The position in the EU is somewhat different: see Sands and Klein (eds.), note 3 pp. 493ff.  t h e c o n v e n t i o n a l l aw 321 whereby this general immunity is qualified.20 Section 3 of Article VII of the IBRD constitution expressly permits actions to be brought against the Bank in a court of a member state in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities, though it then prohibits actions in such courts by ‘member States or persons acting for or deriv- ing claims from members’. This immunity would cover primarily suits originating in loan agreements with states to which the Bank is a party. Property and assets are, however, immune from seizure, attachment or execution before the delivery of final judgment. The immunity of the Bank is reversed -- there is a presumption of absence of immunity which is recognized only in the circumstances mentioned. It is not only in regard to disputes arising out of securities obligations that there is no immunity. It is likely that these institutions may be sued with regard to matters other than those arising out of their borrowing powers. In the American case, Lutcher SA e Papel Candor v. IDB,21 the plaintiff who was a borrower from the IDB sought to enjoin the IDB from making a loan to its main competitor. While the US Court of Appeals held that the com- plaint did not state a cause of action, it also held that the IDB (whose constitution has a provision similar to that in the IBRD constitution) was not entitled to immunity from suit in this situation. This case sup- ports the view that the absence of immunity is general and not limited to suits by bondholders. In the case of the ADB, the AFDB and the CDB, however, the constitutions provide that the types of suits from which there is no immunity are more limited. Actions may only be brought in connection with the exercise of powers to borrow, guarantee securities or to buy or sell or underwrite the sale of securities.22 Where there is a general immunity such as under the UN Convention the question arises whether, as in the case of state immunity, courts are permitted to distinguish between acts iure imperii (in sovereign author- ity), where immunity exists, and acts iure gestionis (as a private person), where there is no immunity. There is no judicial precedent relating 20 The EIB seems to be a special case in that the immunity is even more restricted than in the case of other financial institutions: see Syz, International Development Banks (1974) p. 59. 21 (1967), 42 ILR p. 138. 22 See Article 50(1) of the ADB Agreement; Article 52(1) of the AFDB Agreement; and Article 69(1) of the CDB Agreement. Article 44 of the MIGA constituent instrument (1985) specifically grants immunity in personnel matters from the jurisdiction of national courts. 322 privileges and immunities to the interpretation of the UN or Specialized Agencies Convention or instruments with like provisions. But where immunity was available, apparently under customary international law, in the absence of con- ventional provisions, the Italian Court of Cassation in Branno v. Ministry of War23 decided that, since the subject matter of the action was a private contract, NATO did not have immunity from jurisdiction because it was acting iure gestionis and not iure imperii. However, now Italy’s highest court has virtually reversed the previous decisions by deciding in 1992 that the FAO was entitled to a complete immunity in national courts.24 In Dupree Associates Inc. v. OAS25 a US Federal Court held that the OAS did not have immunity in a case concerning a bidding construction con- tract because international organizations were only entitled to restric- tive immunity as foreign sovereigns were and the case concerned acts iure gestionis. The two conventions do not expressly make the distinction, however, and it is doubtful, assuming that the interpretation of the law is correct, whether such a distinction can be imported into the inter- pretation of the conventions. Where the governing instrument is silent on the matter, there is no reason to import the distinction. There is some difficulty in attributing to an organization the power to act iure imperii. To assume that the distinction has relevance to organizations is to assimilate them to states which is inappropriate. Their basis of immu- nity is not the same as for states. The test is whether an immunity from jurisdiction is necessary for the fulfilment of the organization’s func- tions and purposes. To answer that question a reference to whether the organization was, in respect of the subject matter of the litigation, act- ing iure imperii or iure gestionis is irrelevant. Clearly this reasoning applies both to the interpretation of the conventional law and in the customary area, assuming there is one. In Bank Bumiputra Malaysia Bhd. v. ITC 26 the issue concerning the immu- nity of the ITC from the jurisdiction of the Malaysian courts arose, when the plaintiff sought to recover outstanding loans made to the ITC. 23 (1955), 22 ILR p. 756; INDPAI v. FAO (1982), 87 ILR p. 5 (Italy); Porru v. FAO (1969), 71 ILR p. 240 (Italy). These 3 cases were decided by Italian Courts. Many authors support this approach: see, e.g., Cully, loc. cit. note 3 at pp. 1187ff.; Sadurska and Chinkin, ‘The Collapse of the International Tin Council: A Case of State Responsibility’, VaJIL (1990) p. 853; Singer, ‘Jurisdictional Immunity of International Organisations: Human Rights and Functional Necessity Concerns’, VaJIL (1995) at pp. 135ff; Reinisch, note 3 pp. 131ff. 24 FAO v. Colagrossi (1992), Corte di Cassazione, 101 ILR p. 393. 25 (1977), 63 ILR p. 92. 26 80 ILR p. 24, decided in 1987 by the Malaysian High Court.  t h e c o n v e n t i o n a l l aw 323 There, however, the court refused immunity to ITC on the ground that the applicable treaties granted ITC immunity only vis-à-vis the English courts but added that, because the ITC entered into a commercial trans- action, it could not claim immunity in any event. In this second holding which was obiter the court appears to have regarded the immunity of the IGO as being similar to that of foreign sovereigns which meant that the distinction between acts iure imperii and acts iure gestionis became relevant. Thus, some courts are moving in the direction of accepting for the immunity of IGOs from the jurisdiction of national courts the dis- tinction made in regard to sovereign immunity, unless, of course, there is express provision otherwise. The history of judicial precedent in many national legal systems is, on the other hand, weighted heavily in favour of recognizing the immu- nity of organizations in employment-related matters, even where, as in the case of the IBRD, immunity is not explicitly granted by the conven- tional law except in special cases. The French Conseil d’Etât recognized this immunity as early as 1928 in Lamborot 27 and Antin.28 In the former case, the court held that because the plaintiff was in charge of an inter- national organization, namely, the Inter-Allied Commission, there was lack of jurisdiction in the court to deal with the issues raised pertaining to payment of salary. An international organization was not a party in this case; nevertheless, the court recognized that the subject matter was outside its jurisdiction. French courts have subsequently in numerous cases reaffirmed the immunity from their jurisdiction in employment- related cases of international organizations.29 The first case in which an international organization was the defen- dant in an employment-related case was International Institute of Agricul- ture v. Profili.30 The case was finally decided by the Italian Court of Cas- sation in 1931 in favour of the defendant organization. The plaintiff, who had been dismissed from the service of the defendant organization, claimed compensation. The Court held that, because the Institute was an autonomous union, free as regards its internal affairs from interfer- ence by the sovereign power of the states composing the union except 27 Recueil de Arrêts du Conseil d’Etât (1928) p. 1,304. See also Porru v. FAO (1969), 71 ILR (1986) p. 240 (Italy). 28 Recueil de Arrêts du Conseil d’Etât (1928) p. 764. 29 See, e.g., Weiss v. IIIC (1953), 81 JDI (1954) p. 754; Klarsfeld v. French–German Office for Youth (1968), 14 AFDI (1968) p. 370; and Bellaton v. ESA (1978), 25 AFDI (1979) p. 893. Other French cases are cited in Vorkink and Hakuta, Lawsuits Against International Organizations: Cases in National Courts Involving Staff and Employment (1983) passim. 30 (1931), 5 AD p. 413. 324 privileges and immunities when it consented thereto, in the absence of such consent there was nothing which authorized the intervention of an external jurisdiction. There are other Italian cases in which the immunity from jurisdiction of international organizations has been recognized in situations involving employment relations.31 More recently, the US Court of Appeals has confirmed that, subject to waiver, international organizations enjoy immunity from jurisdiction in the USA in cases brought by staff members in regard to their employ- ment. In the Broadbent Case32 the plaintiffs, former staff members of the OAS, brought an action against the OAS claiming reinstatement. They had received indemnities under the terms of a judgment of the OASAT which gave the OAS that alternative instead of reinstating the plaintiffs. The US Court of Appeals recognized the immunity from jurisdiction of the OAS, noting that, even on an application of a restrictive, as opposed to an absolute, theory of immunity, the relationship of an international organization with its staff was non-commercial. Later, in Mendaro v. The World Bank,33 the US Court of Appeals took the same stand in a case brought by a former staff member of the World Bank alleging discrimi- nation and harassment.34 31 See, e.g., Viccelli v. International Refugee Organization (1951), 36 Rivista di diritto internazionale (1953) p. 470; Mazzanti v. HAFSE and Ministry of Defence (1955), Guistizia civile (1955) p. 461; ICEM v. Chiti (1973), 10 Rivista di diritto internazionale privato e processuale (1974) p. 579; and Mininni v. The Bari Institute of the International Centre for Advanced Mediterranean Agronomic Studies (1981), 78 ILR p. 112. See other cases referred to in Vorkink and Hakuta, note 29 passim. 32 628 F. 2nd p. 27 (1980). 33 717 F. 2nd p. 610 (1983). 34 In particular the Court discussed the implications of Article VII.3 of the Bank’s Articles of Agreement as a result of which the plaintiff contended that the Bank’s immunity had been waived. Article VII.3 provides that: ‘Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.’ In spite of this provision which the Court described as poorly drafted, the Court agreed with the position of the World Bank that it did not give national courts jurisdiction in actions by staff members claiming violation of rights relating to their employment. The position in the USA in the case of many international organizations is also determined by the International Organization Immunities Act 1945, as amended (59 Stat. 6679, 22 USC pp. 288ff.), which recognizes the immunity of international organizations. In Kissi v. Jacques de Laroissière (1982), CA No. 82--1267, the US Court held that the IMF was immune from its jurisdiction in an employment-related case. See  t h e c o n v e n t i o n a l l aw 325 There are many other states whose courts have recognized the immu- nity from jurisdiction of international organizations in employment- related cases. In several recent cases decided in the German courts the plaintiffs, staff members of the international organizations, have failed because the courts have recognized that the defendant international organizations were immune from their jurisdiction.35 Some other states in which the immunity from national court jurisdiction of international organizations in employment-related cases has been specifically recog- nized are Argentina,36 Mexico,37 Chile,38 Colombia,39 Syria,40 Egypt,41 India,42 Luxembourg43 and the Philippines.44 In this connection the also Weidner v. Intelsat (1978), DC App., 392A. 2d p. 508; Tuck v. Pan American Health Organization (1981), DC Circ. 668 F. 2d p. 547; Chiriboga v. International Bank for Reconstruction and Development (1985), DDC 616 F. Suppl. p. 963; Novak v. World Bank (1983), DDC No. 81--1329; Boimah v. United Nations General Assembly (1987), EDNY 664 F. Suppl. p. 69; Morgan v. International Bank for Reconstruction and Development (1990), US District Court for the District of Columbia CA 90--0929; Mukoro v. EBRD (1994), UK Employment Appeal Tribunal, Appeal No. EAT/813/92; the Jasbez Case (1977), 77 ILR p. 602 (Italian Court of Cassation); and ICEM v. Di Banella Schirone (1975), 77 ILR p. 572. For an assessment of some of the US cases see [Note], ‘International Organizations -- International Organizations Immunity Act -- Waiver of Immunity for the World Bank Denied, Mendaro v. The World Bank, 717 F. 2d 610’, 8 Suffolk Transnational Law Journal (1984) p. 412; [Note], ‘How Much Immunity for International Organizations?: Mendaro v. World Bank (717 F. 2d 610)’, 10 North Carolina Journal of International Law and Commercial Regulation (1985) p. 487; Griffith, ‘Restricting the Immunity of International Organizations in Labor Disputes: Reforming an Obsolete Shibboleth’, 25 Virginia JIL (1985) p. 1007; [Note], ‘Boimah v. United Nations General Assembly [664 F. Supp. 69]: International Organizations’ Immunity is Absolutely not Restrictive’, 15 Brooklyn JIL (1989) p. 497; Appril, ‘Immunity of International Organizations in United States Courts: Absolute or Restrictive?’, 24 Vanderbilt JIL (1991) p. 689; and Hammerschleg, ‘Morgan v. International Bank for Reconstruction and Development [752 F. Supp. 492 (1990)]’, 16 Maryland Journal of International Law and Trade (1992) p. 279. Now see also Reinisch, note 3 pp. 192ff. and passim. 35 See Groll v. Air Traffic Services Agency (1979); Strech v. Air Traffic Services Agency (1979); van Knijff v. European Space Agency (1980); and Heltzel v. Air Traffic Services Agency (1981), all cited in Vorkink and Hakuta, note 29 pp. 36, 39 and 41. 36 See Bergaveche v. UN Information Centre (1958), and Ezcurra de Mann v. IDB (1979), ibid. pp. 16 and 35. 37 See Diaz-Diaz v. UNECLA (1954), ibid. p. 13. 38 See A. v. UNECLA (1969), ibid. p. 22. 39 See Barreneche v. CIPE/General Secretariat of the OAS (1971); and Barrios v. CIPE/General Secretariat of the OAS (1973), ibid. pp. 22 and 23. 40 See WW v. UNRWA (1955--56); and XX v. UNRWA (1955--56), ibid. p. 15. 41 See Giurgis v. UNRWA (1961), ibid. p. 18. 42 See Matthew v. ICRISAT (1982), ibid. p. 45. 43 See De Bruyn v. European Parliamentary Assembly (1960), ibid. p. 17. 44 See Cohen v. Presiding Judge Pedro C. Navarro et al. (1976), ibid. p. 27. In Gupta v. IBRD and IDA (1982), ibid. p. 43, the English High Court held that the plaintiff could not serve process for the purpose of English law on the defendant because the defendant did 326 privileges and immunities subject matter is not regarded as coming within the concept of acts iure gestionis.45 However, there are a few cases in which national courts have assumed jurisdiction in actions relating to employment matters brought against international organizations. It is not clear whether these courts would exercise such jurisdiction in the case of all international organizations or whether the exercise of such jurisdiction was restricted only to spe- cific organizations in specific cases. Some examples to be found of national courts exercising such jurisdiction are cases decided in the Middle East, particularly in Lebanon, Jordan, Syria, and Gaza, and that, too, in connection with actions against UNRWA.46 There also have been two cases in Italy and the Netherlands respec- tively in which jurisdiction has been exercised but these are special. In the Italian case, Maida v. Administration for International Assistance,47 the Court of Cassation held that the administrative courts had jurisdiction in a case brought against an organ of the IRO, because Italian law had been adopted as the proper law of the contract of employment, but it did say that, if there had been an effective method of settling employment disputes in the IRO, this would have been sufficient to oust the juris- diction of the Italian courts. In Eckhardt v. Eurocontrol48 a Dutch court found that it had jurisdiction in an employment-related case brought against Eurocontrol because the constitution of Eurocontrol and other not carry on business in the United Kingdom and, therefore, could not invoke the court’s jurisdiction. The issue of immunity was avoided. 45 See the Jasbez Case (1977), 77 ILR p. 602 (Italian Court of Cassation). Two recent cases in which the immunity from jurisdiction of an IGO was recognized are Atkinson v. IADB (1998), 38 ILM (1999) p. 91, decided by a US court, and AS v Iran-US Claims Tribunal (1985), 18 Netherlands YBIL (1987) p. 357, decided by the Dutch Supreme Court. In the former the court refused jurisdiction on the basis of immunity in an employment-related case, where garnishment of the salary of a staff member was sought by his ex-wife. There the subject matter was regarded as relating to the ius imperii of the IGO. In the latter case immunity was recognized in a case relating to employment brought by an employee of the defendant tribunal. 46 Thus, in W. v. UNRWA (1952), ibid. p. 11, a labour tribunal in Lebanon assumed jurisdiction in the case, as it did in X. v. UNRWA (1953), ibid. p. 12. In both cases the Ministry of Foreign Affairs of Lebanon took objection to the exercise of jurisdiction and in the latter case execution of the judgment was refused. In Y. v. UNRWA (1954), ibid. p. 12, the Jordanian courts assumed jurisdiction in an employment-related case. The cases decided in Syria, X., (1955--56), ibid. p. 15, and Gaza, YY v. UNRWA (1957), ibid. p. 16 and ZZ v. UNRWA (1957), ibid. p. 16, were similar. In the Syrian case, however, the Court of Cassation decided the case in favour of UNRWA, taking UNRWA’s legal status into account. 47 (1955), 23 ILR p. 510. 48 (1976), 9 Netherlands Yearbook of International Law (1978) p. 276.  t h e c o n v e n t i o n a l l aw 327 relevant instruments made provision for the assumption of jurisdiction by national courts. Apart from these there are a few more cases in which immunity from suit in employment disputes was denied to IGOs. Two most important cases are X v. International Centre for Superior Mediterranean Agricultural Stud- ies,49 decided by a Greek court, and the Margot Rendall Speranza Case,50 decided by a US court. In the former a national court decided that it had jurisdiction over an employment dispute with an IGO, even though absolute immunity had been expressly granted to the defendant orga- nization. The reasoning related the case to labour relations which were not the result of the exercise of sovereignty but were concerned with the organization’s private activity. The court noted that unqualified immu- nity had been granted but interpreted this grant of immunity as incor- porating restrictive immunity on the model of the immunity from juris- diction granted to states. In the other case the IFC was denied immunity from jurisdiction in a physical harm and harassment case brought by an employee. The basis for the denial was the absence of a policy judgment on the part of IFC in the acts of which the plaintiff was complaining. These two cases are very recent and are examples of a certain impatience on the part of national courts with the concept of immunity from juris- diction and an inclination to find some way to circumvent the grant of immunity in employment-related cases. Despite exceptional instances, some recognition is given to the immu- nity of IGOs from the jurisdiction of national courts in employment- related cases, whether there is an express grant of such immunity or not. On the other hand, it is difficult to deduce when and in what cir- cumstances that immunity will not be granted. The decisions of national courts do not reflect a uniform approach. It is not even clear how influ- ential a factor in the grant of immunity is the absence of an internal court of the IGO to adjudicate on employment disputes. This is espe- cially so where there is in governing instruments no specific exclusion of the immunity in these cases and the organizations have provided independent internal courts to settle disputes in such cases. Further, the Italian Court of Cassation51 has recognized that an inter- national organization has immunity in a case brought by trade unions concerning the violation of trade union rights. There was held to be no 49 Court of Appeals of Crete, 1991: see Reinisch, note 3 p. 191. 50 942 F. Supp. p. 621 (DDC 1996) and 932 F. Supp. p. 19 (DDC 1996). 51 See the Camera Confederate del Lavoro Case (1979), 78 ILR p. 86. 328 privileges and immunities restriction in customary international law which required the exclusion of immunity in such a case. Immunity has also been recognized in an Italian case concerning execution.52 The Italian court took the view that, since the assets were destined for the performance of the international aims of the organization, no issue of execution could be litigated. The implication that a distinction may have to be made in regard to execu- tion which was similar to that made in the case of foreign sovereigns arose because of the nature of the agreement to which Italy was a party regarding the immunities of the organization. The UK courts have rec- ognized the immunity of the ITC in winding-up proceedings.53 The more accepted approach taken by the courts in the employment- related area and in the other areas discussed above, which are more appropriately assimilated to acts iure gestionis than to acts iure imperii, would seem to confirm that the distinction is irrelevant to the immuni- ties of international organizations.54 The immunity from jurisdiction that an organization has may be waived by the organization. The waiver may be express or implicit. In ITC v. Amalgamet Inc.55 the New York Supreme Court held that the ITC had waived any immunity it may have had by entering into an arbitra- tion agreement relating to the subject matter of the dispute. In Standard Chartered Bank v. ITC and Others56 there was held to have been a waiver of immunity in the matter of a loan because of a condition agreed to in a facility letter that the loan was to be governed by English law and that the ITC would submit to the jurisdiction of the English courts in connection therewith. Property, assets and currency The UN Convention, the Specialized Agencies Convention and the provi- sions of the constitutions of almost all the financial institutions provide that the property and assets of the organizations shall be immune from all forms of judicial process. This is in addition to the property and assets being immune from execution. Further, these instruments afford a very broad protection for property and assets. Section 3 of the UN Conven- tion provides that the property and assets of the UN shall be immune 52 Mininni v. The Bari Institute of the International Centre for Advanced Mediterranean Agronomic Studies (1981), 78 ILR p. 112. 53 (CA), 80 ILR p. 181. The immunity was granted by application of a UK statute. 54 A private party who is sued cannot rely on the immunity of an IGO to exclude a national court’s jurisdiction. See cases discussed by Reinisch, note 3 pp. 191ff. 55 , 80 ILR p. 31. 56 , 77 ILR p. 8 (UK).  t h e c o n v e n t i o n a l l aw 329 from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legisla- tive action. A comparable provision is to be found in the IBRD Articles of Agreement and with minor variation in the constitutions of other financial institutions.57 The Specialized Agencies Convention also has a similar provision.58 Organizations dispose of or trade in considerable funds for the pur- poses of their operations. It has been found necessary to protect these. Thus, in regard to currency, the UN Convention provides: Section 5. Without being restricted by financial controls, regulations or morato- ria of any kind, (a) the United Nations may hold funds, gold or currency of any kind and operate accounts in any currency; (b) the United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other currency. Section 6. In exercising its rights under Section 5 above, the United Nations shall pay due regard to any representations made by the Government of any Mem- ber insofar as it is considered that effect can be given to such representations without detriment to the interests of the United Nations. The Specialized Agencies Convention has a provision similar to Section 5 of the UN Convention,59 while Article VII(6) of the IBRD Articles of Agree- ment whose pattern is followed by the constitutions of most other finan- cial institutions provides: to the extent necessary to carry out the operations provided for in this Agree- ment, and subject to the provisions of this Agreement, all property and assets of the Bank shall be free from restrictions, regulations, controls and moratoria of any nature.60 57 Article VII(4), IBRD Articles of Agreement; Article VI(4), IFC Articles of Agreement; Article VIII(4), IDA Articles of Agreement; Article XI(3), IDB Articles of Agreement; Article 50(3), ADB Agreement; Article 52(2), AFDB Agreement; Article 49(4), CDB Agreement; Article IX(4), IMF Articles of Agreement; Article 45(a), MIGA Convention; Article 28(2), EIB Statute; and Article 47, EBRD Agreement. 58 Section 4. The property exclusion does not entitle an IOG not to submit to zoning regulations which apply to it: PAHO v. Montgomery County, Maryland, County Council for Montgomery Council, Court of Appeals of Maryland, 11 May 1995: see Reinisch, note 3 p. 204. 59 Section 7. 60 See also Article IX(6), IMF Articles of Agreement; Article VI(6), IFC Articles of Agreement; Article VIII(2), IDA Articles of Agreement; Article XI(6), IDB Articles of 330 privileges and immunities Thus, member states have little control over the movement of these assets but in the case of the financial institutions their freedom is sub- ject to the other provisions of their respective constitutions. Premises and archives The inviolability of premises and archives is provided for in all relevant agreements. The UN Convention expressly provides in Section 3 that the premises of the UN shall be inviolable, and in Section 4 that ‘The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.’61 In the case of the financial institutions there is an express provision for the inviolabil- ity of archives62 but the inviolability of premises is to be derived from the protection of property elsewhere in their constitutions.63 Specifi- cally, the freedom from search of property must imply that premises are inviolable while the reference to confiscation, sequestration and the like must also put the premises of the organizations outside the reach of states. The inviolability of the premises means, as in the case of inviolability of diplomatic premises, that authorities of a state, particularly of the host state, may not enter the premises without the permission of the administrative head, even for the purpose of arresting or serving a writ on an individual. Moreover, the concept requires that inviolability be secured against all persons and not merely the authorities of the host state which implies that the host state must exercise due diligence in the protection of the premises. The principle of inviolability may raise some problems specific to international organizations. Organizations have no Agreement; Article 53, ADB Agreement; Article 54, AFDB Agreement; Article 52, CDB Agreement; Article 45(b), MIGA Convention; and Article 49, EBRD Agreement. The EIB is an exception in this respect. It may be noted that the agreement between the UN and Egypt over the status of the UNEF did provide that the most favourable exchange rate should be available to the UN, though it is unlikely that organizations would be prejudiced in this respect, because of the obligation of member states to the IMF. 61 See also Section 5 of the Specialized Agencies Convention. 62 Article VII(5), IBRD Articles of Agreement; Article VI(5), IFC Articles of Agreement; Article VIII(5), IDA Articles of Agreement; Article IX(5), IMF Articles of Agreement; Article 46(a), MIGA Convention; Article 52, ADB Agreement; Article 53(2), AFDB Agreement; Article 52, CDB Agreement; Article XI(5), IDB Agreement; Article 2, EIB Protocol; and Article 48, EBRD Agreement. In the case of the ADB, the AFDB and the CDB, it is additionally provided that the inviolability shall extend to all documents held by the organizations. 63 This is so whether or not there is an express provision made, as is done in most headquarters agreements. There are some examples of the breach of the principle of inviolability in the case of UNRWA during the 1967 conflict in the Middle East.  t h e c o n v e n t i o n a l l aw 331 sovereign authority over the territory on which their premises are sit- uated but merely have control and some jurisdiction in internal mat- ters. Moreover, organizations possess no body of law to replace that of the host state in respect of civil or criminal offences committed within the premises. Admittedly, organizations may have power to lay down regulations operative within the headquarters district for the purpose of establishing therein conditions in all respects necessary for the full execution of their functions,64 and such regulations will override any inconsistent local law, but the only effective sanction for their breach is expulsion from the premises, carried out either by a Headquarters Guard Force, such as the UN possesses, or by the local authorities who may be requested to enter for that purpose. It is important, therefore, that the territory should remain under the law and the jurisdiction of the host state, and the headquarters agreements generally so provide.65 A crime committed on the premises will therefore normally be appro- priately dealt with by the local courts.66 Indeed, some of the agreements specifically provide that the organization is under a duty to prevent the headquarters district from becoming a refuge for persons avoiding arrest or the service of legal process.67 The organizations may have a right to grant asylum in cases falling outside this particular duty, and some of the agreements specifically recognize such a right. It has been suggested that there is a right of the organization to afford asylum to its own offi- cials against measures by the local authorities which are themselves a violation of the immunities of the organization and of the official.68 Archives, unlike other property (except premises) which is protected only from specific types of control, benefit from the principle of inviola- bility. The provisions of the ADB, the AFDB and the CDB agreements, as pointed out, go somewhat further. Their formulation extends the protec- tion to all documents held by the institution, irrespective of who owns them. This would seem to ensure the confidentiality of operations of these institutions where decisions are reached with the help of diverse documents whose ownership may often be unclear. Some problems were faced by the English courts in applying its statu- tory law incorporating an international agreement in the ITC litigation. 64 The UN--USA Headquarters Agreement acknowledges this in Section 8. 65 See, e.g., the UN--USA Headquarters Agreement, Section 7. 66 E.g., in 1928 the Swiss courts arrested and tried an assailant within the Palais des Nations in Geneva. 67 See Section 9(b) of the UN--USA Headquarters Agreement. 68 See Jenks, International Immunities (1962) pp. 51--2. 332 privileges and immunities In Maclaine Watson & Co. Ltd v. ITC (No. 2)69 the Court of Appeal confirmed orders made by the High Court judge that full particulars of the nature, value and location of all the assets of the ITC wherever located be dis- closed, for the purpose of enforcing an arbitration award in respect of which the ITC had no immunity. The argument was adduced that the order violated the official archives of the ITC. The Court of Appeal held that the order by itself did not do so and should be confirmed without qualification, even though the relevant law provided that the archives of the ITC were inviolable. The order related to the enforcement of an arbitral award from which there was no immunity and was part of the enforcement procedure. It was the view of the Court that if the ITC, hav- ing carefully considered the position in a responsible manner, should thereafter conclude that it could not properly comply with this order without infringing some immunity or inviolability which it should prop- erly protect, then it should make the necessary application for that pur- pose. It may be concluded that inviolability could be claimed for the archives, although assets had to be declared. In Shearson Lehman Brothers Inc. and Another v. ITC (Intervener) (No. 2)70 the House of Lords made certain rulings about the inviolability of archives. The approach of the Court merits attention. It was found that under the law the ITC had the same immunity for its archives as did diplomatic missions. In consequence, where the issue was whether certain docu- ments could be made use of in a court action, the rulings of the Court indicate how English law could construe the inviolability of archives. The Court came to a number of conclusions. First, the term ‘archives’ in the English law (which was presumably no different from interna- tional law) referred to all documents belonging to, or held by, the orga- nization. Second, the purpose of the inviolability conferred by the law being to protect the privacy of diplomatic communications (which in this case included communications of the ITC), inviolability was not con- fined to protection against executive or judicial action by the host state but included the use in court by the parties to an action of documents accorded that inviolability. Third, once a document had been commu- nicated by the organization to a member state or the representative of 69 , 80 ILR p. 211. 70 , 77 ILR p. 107. The House of Lords more or less overruled the Court of Appeal, while not agreeing entirely with the High Court which the Court of Appeal had overruled.  t h e c o n v e n t i o n a l l aw 333 a member state, it ceased to belong to the organization and the protec- tion of the law ceased to apply to it. This followed from the fact that the same law conferred inviolability upon the official papers and documents of representatives of member states to the organization and provided that that inviolability might be waived by the member state concerned. Fourth, accordingly, the organization could not claim the protection of the law in respect of documents which had been communicated to third parties by member states or their representatives, while the same was true of documents communicated by organizations with observer sta- tus at the organization. Fifth, because a letter normally belonged to the recipient once it was received, and not to the sender, it followed that a document communicated to a third party by an officer or servant of the organization, acting with actual or ostensible authority, was no longer a document belonging to the organization and thus was no longer invio- lable. That was not the case if the document was communicated without any authority, actual or ostensible. However, the fact that an officer or employee of the organization was known to be acting in the course of his employment at the time when he communicated documents to a third party was strong prima facie evidence that he had ostensible authority to do so. Moreover, an officer or employee of the organization who was authorized to reassure a third party about the financial ability of the organization to conduct negotiations for a settlement was presumed to have ostensible authority to supply to the third party documents which might assist in promoting the authorized purposes. Sixth, the princi- ple accepted in English law that a state which was indirectly impleaded in proceedings regarding property to which it claimed title had only to show that its claim was not manifestly illusory,71 was not to be extended further than was strictly necessary. It did not, therefore, apply to pre- vent a court from receiving otherwise relevant and admissible evidence in proceedings to which a foreign sovereign or international organiza- tion was a party merely because that foreign sovereign or international organization could make out a prima facie case that the evidence in ques- tion was part of its inviolable documentary archives. There had been a detailed analysis of the principles of inviolability also in the Court of Appeal.72 However, much of what was said there was modified by the House of Lords. To that extent it does not reflect 71 Juan Ysmael and Co. Inc. v. Indonesia Government 3 WLR p. 531. 72 , 77 ILR p. 124. 334 privileges and immunities the law as accepted in the UK. However, there were some statements of principle that were not apparently overruled by the House of Lords and are still valid for English law. That Court was of the view that privileges and immunities of international organizations were an exten- sion of traditional diplomatic privileges and immunities; so far as docu- ments or archives were concerned, the purpose of these immunities was the preservation of confidentiality as well as the physical preservation of the documents. Accordingly, ‘inviolability’ in relation to the official archives of the organization meant not only that the documents were not to be seized or physically damaged, but also that they were to be protected from harm and from perusal and use without the organiza- tion’s consent. These views must be interpreted, of course, in the light of what the House of Lords held. Some comments are called for on the conclusions of the English courts. They assimilated the privilege of inviolability of archives enjoyed by organizations to that enjoyed by diplomatic missions. This in itself is inappropriate. The two privileges are comparable but not identical nor is the one based on the other. The purpose for which these privileges are granted may be different in each case. There is then the question of the extent of the privilege of inviolabil- ity of archives. What documents constitute archives that receive the pro- tection of inviolability? International organizations prepare papers for meetings which are sent to states members for their study and consider- ation, prior to deliberation of the organization. It would not be proper to say that these papers are received by the states members as third parties, in which case the papers would cease to be papers of the orga- nization not covered by inviolability (even on the analogy of Article 24 of the 1961 Vienna Convention on Diplomatic Relations). Working doc- uments are received by the states members in their capacity as official participants in the work of the organization and as the members of an organ. They retain their status as documents of the organization (and, therefore, could have the benefit of the protection of Article 24). To reach a different conclusion would lead to the result that as soon as the secre- tariat, which is one organ of an international organization, shares with the member states, who are members of another organ, confidential doc- uments, those documents cease to have any protection from disclosure. On this view the papers of an international organization can only be protected if the organization is never in a position to use them for its work, because they must remain only within one organ, the secretariat. This, however, was in effect the position taken by the House of Lords,  t h e c o n v e n t i o n a l l aw 335 which held that documents issued by the ITC ceased to be the documents of the ITC once they had been sent to member states.73 Fiscal matters The UN Convention provides in Section 7(a) that the organization, its assets, income and property shall be exempt from direct taxation, though it is not expected to claim exemption from taxes which are, in fact, no more than charges for public utility services. Direct taxes are those which ultimately fall upon the organization for payment, the char- acterization in the municipal law of a particular state being irrelevant.74 Section 7(b) and (c) provides for the exemption from customs duties and import and export restrictions of articles required for official use and the publications of the UN. Section 8 provides that then the UN will not, as a rule, claim exemption from excise duties or sales taxes which are included in the price of property purchased but requires member states, whenever possible, to make appropriate arrangements for the remission or return of the amount of duty or tax. The Specialized Agencies Conven- tion has similar provisions.75 The constitutions of financial institutions have a provision generally whereby the institution, its assets, property, income and its operation and transactions authorized by the constitu- tion shall be immune from all taxation and all customs duties and the institution is not liable for the collection or payment of any tax or levy.76 Communications Sections 9 and 10 of the UN Convention establish the extent of the free- dom of communication accorded to the UN. Broadly, the freedom cov- ers the absence of censorship over official communications, the right to use codes, couriers and bags (like the diplomatic bag or pouch) and treatment for communications of the UN by national administrations as favourable as that accorded to any member states. The same principles 73 Higgins, Problems and Process: International Law and How We Use It (1994) p. 93, takes the view reflected here. 74 See 1964 UNJY pp. 220ff. 75 Sections 9 and 10. The CDB Agreement follows this pattern in Article 55. 76 Article VII(9)(a), IBRD Articles of Agreement; Article IX(9)(a), IMF Articles of Agreement; Article VIII(9)(a), IDA Articles of Agreement; Article VI(9)(a), IFC Articles of Agreement; Article 47(a), MIGA Convention; Article XI(9)(a), IDB Agreement; Article 56(i), ADB Agreement; and Article 57(i), AFDB Agreement. The EIB Protocol, Articles 3 and 4, is somewhat different. See also Article 53 of the EBRD Agreement which is more elaborate. 336 privileges and immunities are found in the Specialized Agencies Convention.77 The UN--USA Head- quarters Agreement gives the UN the privilege of establishing and oper- ating radio facilities and the UN has had the UN flag flying on its own aircraft and ships. In the case of the financial institutions the free- dom given by their constitutions is less extensive. The only freedom mentioned is the third one referred to in the UN Convention, namely treatment for official communications as favourable as that accorded to member sates.78 The issue has arisen in the case of the IBRD and the IMF whether the treatment accorded to official communications included exemp- tion from rates charged for communications services.79 In 1949 the defendants, US cable companies, proposed to adopt revised tariffs of charges under which the IMF and the IBRD would be required to pay the same commercial rates for their official telecommunications mes- sages as payable by private persons. Previously, the IMF and the IBRD had paid the same rates as applied to the messages of foreign governments sent from the US to their own countries, which rates were substantially lower than commercial rates. The IMF and the IBRD filed a complaint with the Federal Communications Commission (FCC) contending that the revised tariffs were unlawful on the ground that, so long as special government rates were in existence, the IMF and the IBRD were entitled to the same standard of treatment. They relied upon provisions in their constitutions and the interpretations of them under provisions enabling the institutions to interpret their constitutions. The interpretation given by the Executive Directors of both institutions under their constitutions was that they were entitled to the same treatment as governments.80 The FCC held that the question whether the word ‘treatment’ in the provisions of the constitutions of the IMF and the IBRD on official communications applied to rates was conclusively determined by the 77 Sections 11 and 12. They are also found in several headquarters agreements. The ITU has objected to the grant of some of these freedoms to specialized agencies, though not to the UN: see Jenks, note 68 pp. 69ff. 78 See Article VII(7), IBRD Articles of Agreement; Article IX(7), IMF Articles of Agreement; Article VIII(7), IDA Articles of Agreement; Article VI(7), IFC Articles of Agreement; Article 46(6), MIGA Convention; Article XI(7), IDB Agreement; Article 54, ADB Agreement; Article 55, AFDB Agreement; Article 54, CDB Agreement; Article 6, EIB Protocol; and Article 50, EBRD Agreement. 79 IBRD and IMF v. All America Cable and Radio, Inc. (1953), Federal Communications Commission, USA, 22 ILR p. 705. 80 IBRD, Decisions of the Executive Directors under Article IX of the Articles of Agreement (1991) p. 14; IMF, Selected Decisions of the IMF (1993) p. 397.  t h e c o n v e n t i o n a l l aw 337 interpretations of the two institutions. They were thus entitled to the standard of treatment for which they had contended, but this involved certain conditions of reciprocity accorded the US government and US cable companies by other countries and their cable companies. The Commission ruled that the defendants must file revised tariffs based on governmental rates which would be effective where the conditions of reciprocity were satisfied. The basic question in the proceedings was whether the term ‘treat- ment’, as used in the Articles of Agreement of the IBRD and the IMF, related to rate matters as contended by the complainants or was con- fined to other matters such as priorities and freedom from censorship as contended by the defendants. The application of the term ‘treatment’ in the Articles to rates had been conclusively determined by the Executive Directors’ interpretation, by unanimous vote, to cover rates charged for official communications of the IBRD and the IMF. Under the terms of the Articles of Agreement, this interpretation was, in the view of the FCC, final. Thus, the US government was bound by the Executive Directors’ interpretation of the term ‘treatment’ and was under an international obligation to act in conformity therewith. At the same time the lan- guage of the Articles of Agreement appeared in fact to be sufficiently broad and general to include rates, and nowhere was there any exclu- sion of rates, either expressed or implied, or any words of limitation. The FCC said that, while they were not persuaded that the payment of higher-than-government rates would impede the functions of these institutions, including their financial ability in exercising their func- tions, they could understand their interest in securing a standard of treatment equivalent to that of member governments, including rates for official communications. Privileges and immunities of personnel The principle which emerges from the many agreements is that the per- sonnel of international organizations enjoy privileges and immunities, not for their personal benefit, but for the purpose of exercising their functions in relation to the organization. This is expressly stated, for example, in the UN Convention, both in relation to officials of the orga- nization81 and even to the representatives of members;82 thus, in that convention waiver is a matter for the SG or the member state, as the case may be, whenever the immunity would impede the cause of justice 81 Section 20. 82 Section 14. 338 privileges and immunities and can be waived without impeding the functions of, or the relations of, the organization. It is the fulfilment of the proposed functions of the organization that requires that these privileges and immunities be recognized. Representatives of member states83 The immunities and privileges accorded to this category are generally very similar to those accorded to diplomatic agents but with rather greater emphasis on the functional basis of the privileges and immuni- ties. There are differences between the two Conventions themselves and between those and the constitutions of the financial institutions. Article 4 of the UN Convention and Section 15 of the UN--USA Head- quarters Agreement are somewhat at variance, for whereas the latter accords diplomatic privileges and immunities, the UN Convention spec- ifies immunity from legal process only in respect of words spoken or written and all acts done by representatives in their capacity as represen- tatives, which is narrower than the general diplomatic immunity. There is also immunity from arrest, seizure of personal baggage, immigration restrictions or national service obligations, inviolability of papers and documents, the right of communication and exemptions from customs duties (but only in respect of personal baggage as opposed to all imports of personal use).84 The representatives are not accredited to the host state, but rather to the organization. However, under the UN--USA Headquarters Agreement, apart from the principal permanent representatives or permanent rep- resentatives with the rank of ambassador or minister plenipotentiary, the staff of any given mission have to be agreed upon between the host state, the SG and the sending state.85 A further consequence of non- accreditation to the host states is the inapplicability of the remedy of declaring a representative persona non grata. It would also seem that a host state cannot apply reciprocity to the treatment of such represen- tatives, as it may to persons accredited to it.86 The Specialized Agen- cies Convention, unlike the UN Convention, does deal with this to the extent of allowing expulsion for activities outside the representatives’ official functions.87 Further, the representatives may be received from 83 See also Sands and Klein (eds.), note 3 pp. 499ff. For an early discussion of the privileges and immunities of personnel in international organizations, see Jenks, note 68 pp. 85ff. 84 UN Convention, Section 11. 85 Section 15. 86 See the opinion of the UN Secretariat reported in 2 YBILC (1967) at pp. 177--8. 87 Section 25.  t h e c o n v e n t i o n a l l aw 339 governments not recognized by the host state. In the Headquarters Agree- ment with the USA, privileges and immunities are granted to such per- sons only within the Headquarters district, or in transit between the district and residences or offices, or whilst at such residence or office, while other agreements tend to specify that immunities and privileges shall be granted irrespective of the relationship between sending state and host state. Special problems arise in organizations in which a delegation from a state is not confined to governmental representatives. In the ILO the employers’ and workers’ delegates receive the same immunities and priv- ileges as governmental representatives, save the right to use codes, couri- ers or sealed bags; waiver of immunities is a matter for the Governing Body. In the inter-parliamentary assemblies of the Council of Europe and the European Union the immunities are carefully defined and their functional basis is emphasized by their being modelled, not on diplo- matic immunities, but more on parliamentary immunities in national law.88 In the case of the financial institutions the Governors or the equiva- lent are representatives of states to the organizations or their meetings. However, their immunities and privileges are in general included in those of the staff.89 There are some municipal court decisions on the immunity from jurisdiction of representatives of states in organizations90 but these do not concern the application or interpretation of the UN or Specialized Agencies Convention or the constitutions of organizations such as the financial institutions. They are based on the application of national law or headquarters agreements. The first group of cases was decided in US courts. In Friedberg v. Santa Cruz,91 an action against the wife of the Chilean Ambassador accredited to the UN in a negligent driving case, the decision of the lower court refusing the plea of immunity was quashed on the ground that the defendant being an ambassador’s wife the mat- ter was within the original and exclusive jurisdiction of the US Supreme Court. In City of New Rochelle v. Page-Sharp,92 in which the Third Secretary of the Australian Mission to the UN pleaded immunity in reply to a 88 See the COE Statute, Articles 13--15; and EEC Protocol, Articles 7--9. 89 See, e.g., Article IX(8) of the IMF Articles of Agreement; Article VII(8) of the IBRD Articles of Agreement; Articles 47(b) and 48 of the MIGA Convention; Article 51 of the EBRD Agreement; Article XI(8) of the IDB Agreement; and Article 55 of the ADB Agreement. 90 For the early cases see Crosswell, Protection of International Persons Abroad (1952) pp. 81ff.; Jenks, note 68 pp. 86ff. 91 (1948), 15 AD p. 312. 92 (1949), 16 AD p. 298. 340 privileges and immunities summons for speeding, a New York Court in effect recognized the immu- nity. In People v. Von Otter93 the same court upheld a plea of immunity in reply to a charge of unlawful parking by the wife of the Counsel- lor of the Swedish Delegation to the UN. In Agostino v. de Antueno,94 a proceeding between landlord and tenant for the recovery of the posses- sion of premises, a New York court held that the respondent, who was Third Secretary of the Permanent Delegation of Argentina to the UN, was not entitled to plead immunity. The decision appears to rest in part on the ground that the proceedings were basically in rem and not in personam. But it also involved the proposition that immunities, having been granted by federal action, are inapplicable to matters within state rather than federal jurisdiction. In Tsiang v. Tsiang95 the defendant, who was accredited to the UN as Ambassador Plenipotentiary and Permanent Representative of the Republic of China, had been served with process in an action for separation brought by his alleged wife from whom he had secured in Mexico a divorce invalid by Chinese and New York State law; the service was set aside by the Supreme Court of New York State on the basis of a suggestion of immunity presented by the federal govern- ment. In Pappas v. Francini96 a claim to full diplomatic immunity made by a member of the staff of the Italian Observer accredited to the UN prior to the admission of Italy to membership, denied by the Depart- ment of State, and not supported by the Chief of Protocol of the UN, was rejected by a New York court. In Arcaya v. Paez97 a New York Court of Appeal granted immunity to the alternate representative to the UN of Venezuela in a libel case. The New York courts in the Knockley Corporation Case98 recognized the immunity of the representative of Afghanistan to the UN in a tax deed case which involved title to property. In these US cases immunity was recognized without difficulty or, if not, the result turned on the technicalities of US law. The basic principle of immunity was admitted. There have been some decisions by European courts. In the Ali Ali Reza Case99 a French court of appeal in a case where eviction was requested in connection with the lease of a flat refused immunity to the Saudi Arabian delegate to the UN. The refusal turned on the interpretation of the French decree of 26 April 1947. The Italian Court of Cassation in 93 (1952), 19 ILR p. 382. 94 (1950), 17 ILR p. 285. 95 (1949), 16 AD p. 298. 96 (1953), 20 ILR p. 380. 97 (1957), 23 ILR p. 436. 98 (1957), 24 ILR p. 202. 99 (1961), 47 ILR p. 275.  t h e c o n v e n t i o n a l l aw 341 the Pisani Balestra di Mottola Case100 applied the FAO--Italy Headquarters Agreement in recognizing the immunity of the son of the Costa Rican representative to the FAO in a case involving theft. It took the view that the pertinent immunity was the same as for diplomats. These decided cases reflect the dependency on the national law of the results in claims of immunity from jurisdiction by representatives or those entitled through them, unless relevant international agreements are part of the national law whether automatically or by incorporation. Officials In general officials enjoy immunity from jurisdiction only in respect of their official acts.101 In the case of the UN Convention102 and the Specialized Agencies Convention103 provision is made for high officials or the executive head respectively of the institution concerned to have full diplomatic immunity. There are a few cases, not arising from the two conventions or head- quarters agreements but relevant to other instruments in which these immunities have been an issue. In Maclaine Watson & Co. Ltd v. ITC (No. 2)104 the UK Court of Appeal held that, under a UK statute which pro- vided for immunity from legal process in respect of official acts virtually in the same way as the two conventions, an order requiring officers of the ITC to provide information relating to assets did not infringe their immunity. In a case decided by the Supreme Court of the Philippines it was held that under an agreement between the government and the WHO which granted full diplomatic immunity to officials of the WHO a warrant to search crates among the plaintiff’s belongings could not be issued.105 In the US the personal chauffeur of the UN SG was not 100 (1969), 71 ILR p. 565. See also for the interpretation by a Swiss Court of the ILO--Swiss Headquarters Agreement of 1946 on the immunity from jurisdiction of members of the Governing Body of ILO, Stahal v. Bastid , 75 ILR p. 76 (immunity in effect recognized). 101 See Section 18(a), UN Convention; Section 19(a), Specialized Agencies Convention; IBRD Articles of Agreement, Article VII(8)(i); IMF Articles of Agreement, Article IX(8)(i); IFC Articles of Agreement, Article VI(8)(i); IDA Articles of Agreement, Article VIII(8)(i); IDB Agreement, Article XI(8)(a); ADB Agreement, Article 55(i); AFDB Agreement, Article 56(i)(i); EADB Agreement, Article 54(a); EIB Protocol, Article 12(a); EBRD Agreement, Article 51; and MIGA Convention, Article 48(i). Most headquarters agreements have the same provisions with the particular exception of the UN--USA Agreement. 102 Section 19. 103 Section 21. 104 , 80 ILR p. 211. 105 WHO and Verstuyft v. Aquino and Others (1972), 52 ILR p. 389. See also Zoernsch v. Waldock and Another , 41 ILR p. 438, where in the case of an official of the COE, under the UK legislation, his immunity in respect of official acts was held not to have 342 privileges and immunities accorded immunity in a case involving a speeding charge while driving in the course of duty, because the act of driving in the circumstances could not be regarded as within the official activities of the organi- zation.106 This case was, perhaps, wrongly decided in principle. It also involved the application of a US statute which did not incorporate an international agreement. In the Curran Case107 the New York courts cor- rectly recognized the immunity of the SG of the UN under the US statute in a case involving grants of lands and easements.108 The UN Convention and the Specialized Agencies Convention both provide more or less in the same manner (with some slight differences) for other immunities for staff who are not entitled to full diplomatic immunity. For example, Section 18 of the UN Convention gives officials a number of immunities. They are to be exempt from taxation on the salaries and emoluments paid to them by the UN. They are to be immune from national service obligations and, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration. They are to be accorded the same privileges in respect of exchange facilities as are accorded to the officials of comparable rank forming part of diplomatic missions to the government concerned. They are to be given, together with their spouses and relatives dependent on them, the same repatriation facilities in time of international cri- sis as diplomatic envoys. Finally, they are to have the right to import free of duty their furniture and effects at the time of first taking up their post in the country in question.109 Both these conventions also lapsed after he ceased to be a member of the staff of the COE; and the ESOC Official Immunity Case (1975), 73 ILR p. 683, where a court of the FRG held that an official of the European Space Operations Center (ESOC) was entitled to immunity from legal process in respect of statements made in his official capacity in regard to the plaintiff’s employment, under an international agreement to which ESRO, a sister organization of ESOC, was a party. In the Keeney Case (1953), 20 ILR p. 382, the principle applied was apparently that immunity from legal process includes the privilege of non-disclosure of information acquired in an official capacity to a sub-committee of Congress, which privilege continues even after the official has ceased to be in the service of the organization. 106 Westchester County on Complaint of Donnely v. Ranollo (1946), 13 AD p. 168. 107 (1947), 14 AD p. 154. 108 In the Coplon and Gubitchev Case (1949), 16 AD p. 293, the UN did not claim immunity in an espionage case. Espionage was not within official duties. For other cases in which the immunity of officials was not recognized because the acts concerned could not be regarded as having been performed in their official capacity see Essayan v. Jouve (1962), 1962 UNJY p. 290 (France); and People of the State of New York v. Coumatos (1962), 1962 UNJY p. 294 (New York). 109 See also Sections 19 and 20 of the Specialized Agencies Convention.  t h e c o n v e n t i o n a l l aw 343 provide,110 however, that the privileges and immunities of officials are granted in the interests of the organization and not for the personal benefit of the individuals themselves. Thus, the organization may waive the immunity where it impedes the course of justice and can be waived without prejudice to the interest of the organization. The financial institutions deal with the immunities and privileges of officials slightly differently. For example, the IBRD Articles of Agreement provide111 that officials, not being local nationals, shall be accorded the same immunities from immigration restrictions, alien registration requirements and national service obligations and the same facilities as regards exchange restrictions as are accorded by members to the repre- sentatives, officials and employees of comparable rank of other members. They are to be granted the same treatment in respect of travelling facil- ities as is accorded by members to representatives, officials and employ- ees of comparable rank of other members and are not to be taxed in respect of salaries or emoluments paid by the IBRD, provided they are not local citizens, local subjects or other local nationals.112 Article VII of the UN Convention and Article VIII of the Specialized Agencies Conven- tion deal with the privilege of transit for officials which the ‘laissez-passer’ is designed to secure. Other persons There are some special categories of persons or groups other than repre- sentatives or officials who also have certain immunities, that is, experts, judicial officers and UN and international armed forces. Their immuni- ties and privileges are somewhat special and are based on particular provisions or special arrangements.113 110 See Section 20, UN Convention; and Section 22, Specialized Agencies Convention. 111 See Article VII(8)(ii) and (iii) and (9)(b). 112 See for similar, though not identical, provisions, IMF Articles of Agreement, Article IX(8)(ii) and (iii) and (9)(b); IFC Articles of Agreement, Article VI(8)(ii) and (iii) and (9)(b); IDA Articles of Agreement, Article VIII(8)(ii) and (iii) and (9)(b); IDB Agreement, Article XI(8)(b) and (c) and (9)(b); ADB Agreement, Articles 53(ii) and (iii) and 56(2); AFDB Agreement, Articles 56(i), (ii) and (iii) and 57(i); CDB Agreement, Articles 54(b) and (c) and 55(5); EIB Protocol, Articles 12(b), (c), (d) and (e) and 13; EBRD Agreement, Articles 52, 53(6), 55 (waiver); and MIGA Convention, Articles 48(ii) and (iii), 47(b) and 50 (waiver). The restriction of the exemption of taxation to non-local nationals is found in many of the headquarters agreements. 113 See especially Sands and Klein (eds.), note 3 pp. 508ff. and Jenks, note 68 pp. 93--110. For the privileges and immunities of experts see UN Doc. A/CN. 4/L.188, 2 YBILC (1967) at pp. 284ff. and 317ff.; UN Convention, Sections 22 and 23. In Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations Case, 1989 344 privileges and immunities Customary law A question that may be asked is whether there is now a customary international law governing international privileges and immunities. It is important to determine whether the immunities of an international organization are customary, and not based solely on conventional law, for several reasons. For example, vis-à-vis the host state there may exist no relevant headquarters agreement.114 It may also be necessary to know whether the terms of a headquarters agreement or any of the applicable international agreements are exhaustive of the privileges and immuni- ties that may be claimed, or whether in addition other immunites may be claimed which flow from customary international law. Further, in some states the courts will not give effect to the terms of a treaty unless that treaty has been incorporated in domestic law. If no such law has been enacted, or if its terms do not fully match those of the treaty,115 the question may arise as to whether privileges and immunities should nonetheless be granted by virtue of the requirements of customary inter- national law. On the one hand, it has been argued that there was never any custom- ary law in the area and that none has developed out of the conventional law or otherwise since the Second World War.116 However, the argument ICJ Reports p. 177, the ICJ gave an advisory opinion on whether Section 22 of the Convention was applicable vis-à-vis his national state to a person who had been appointed by a Sub-commission of the Commission of Human Rights to report on certain aspects of human rights and had also been a member of that sub-commission. Section 22 dealt with experts. The ICJ found that the section of the Convention was applicable, stating (at pp. 195--6) that: The Court takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions. During the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel. They may be invoked against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State. 114 For many years no headquarters agreement existed between the IMCO and the UK: see Higgins, The Development of International Law through the Political Organs of the United Nations (1963) p. 248, note 37. 115 Compare, e.g., Article 8 of the ITC Headquarters Agreement with Article 6 of the relevant Order in Council of 1972. 116 See, e.g., the view expressed by Liang, in 2 YBILC (1957) at p. 5.  c u s t o m a r y l aw 345 may be made that particularly since the end of the Second World War the acceptance of the conventional law, especially the UN Convention and the Convention on the Privileges and Immunities of the Specialized Agencies, has given rise to practice which has resulted in the creation of customary international law. While it may be argued that this practice, among other things, may have resulted in at least an incipient custom- ary law in certain areas, it must be acknowledged that: (i) generally inter- national privileges and immunities have been accorded by states only under these conventions or other conventional law which have become part of their national law by incorporation or automatically; and (ii) there are hardly any examples of claims to or recognition of any of these privileges and immunities outside the orbit of conventional law. With the proliferation of international organizations, there may, on the other hand, be a growing tendency in the international community to recognize that at least certain international privileges and immunities are necessary for the efficient and independent functioning of interna- tional organizations, even in the absence of the applicable conventional law. This may be the case, for instance, particularly with organizational immunity from the jurisdiction of states. There are cases, some of them decided before the Second World War, in which courts have taken this position especially in regard to employment-related matters.117 117 See, e.g., Lamborot, Recueil des Arrêts du Conseil d’Etat (1928) p. 1,304; Antin, ibid. p. 764; Weiss v. IIIC, 81 JDI (1954) p. 754; Bellaton v. ESA (1978), 25 AFDI (1979) p. 893; and International Institute of Agriculture v. Profili (1931), 5 AD p. 413. In International Tin Council v. Amalgamet Inc. (1988), 524 NYS 2d p. 971, a court in New York held that the ITC of which the USA was not a member nor with which the USA had an agreement governing privileges and immunities was not entitled to immunity from jurisdiction, because there had been a waiver of the immunity in the circumstances of the case, even if the ITC was entitled to claim immunity. The court, however, seems to have implied that in the absence of an agreement between the ITC and the USA or other agreement applicable to which the USA was a party the ITC could not claim immunity. The case was not a case involving employment relations but concerned a commercial relationship. See also Branno v. Ministry of War (1955), 22 ILR p. 756, where the Italian Court of Cassation did not deny that NATO could have immunity from jurisdiction, apparently under general international law; and the ESOC Official Immunity Case (1973), 73 ILR p. 683, where the issue was the immunity of officials and the Federal Labour Court of the FRG said that such immunity was generally recognized under international law. The view that there is a customary law of international privileges and immunities has been espoused for some time: see J.-F. Lalive, loc. cit. note 3 at pp. 304--5; now see for a modified view, Sands and Klein (eds.), note 3 pp. 489--90. Now see also the AS Case (1985), loc. cit. note 45. There is a discussion of custom as a source of law for international immunities and privileges in Reinisch, note 3 pp. 145--57. The various views are reflected there. 346 privileges and immunities Assuming that there is at least an incipient customary law of interna- tional privileges and immunities, the question to be answered is what is covered by this customary law -- does it extend to all matters included in the conventional law, which is principally the constitutions of organi- zations, multilateral agreements, such as the UN Convention, and inter- national agreements, such as headquarters agreements? There is little authority on this subject by way of state practice or judicial decision. However, it will be recalled that there are some judicial decisions of national courts which recognized the immunity from jurisdiction of certain organizations principally in employment matters, even though there was no conventional law governing the situation. One may ven- ture to suggest, therefore, that national courts will acknowledge that organizations are at least immune from their jurisdiction to the same extent as under the general conventional law, namely the UN and Spe- cialized Agencies Conventions, even in the absence of a governing con- ventional law. But there may be room for the recognition of some other privileges and immunities. The basis of the immunities and privileges of organiza- tions even under the conventional law is generally acknowledged to be a functional one. Those privileges and immunities conceded in the two general conventions are intended to enable organizations to function independently in order that they may discharge their responsibilities efficiently. This being the raison d’être of the privileges and immunities recognized by conventional law, it is arguable that the basis of those privileges and immunities recognized at customary international law is the same. Hence, it is reasonable that customary law recognizes the same privileges and immunities as are basically granted under those two conventions unless for a functional reason a particular organiza- tion does not need to enjoy a particular privilege or immunity. In short, the international privileges and immunities recognized by customary law are those that each individual organization requires in order to discharge its responsibilities independently and without interference, there being a presumption that many of the privileges and immuni- ties incorporated in the two general conventions are generally what are required for this purpose. It is difficult to identify exactly what these privileges and immunities might be. The inviolability of archives and the freedom of communication are perhaps two of them. The functional basis of international privileges and immunities in customary law could have the result not only that some organizations may have privileges and immunities that others do not but that an organization may not  c u s t o m a r y l aw 347 have in one state the privileges and immunities it enjoys in another, for instance, because the former state is not a member of the organiza- tion but also for other reasons. There is a stronger case for a customary law applicable between member states and organizations than between non-member states and organizations. Further, as pointed out earlier, the distinction between acts iure imperii and iure gestionis should strictly not be relevant for the jurisdictional immunity of international orga- nizations, though it has been invoked and applied in some cases. The American Third Restatement of the Law: The Foreign Relations of the United States takes the view that international organizations are entitled, as a matter of customary law, to ‘such privileges and immunities as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process and from financial controls, taxes and duties’.118 There is also the question whether particularly organizations of lim- ited membership, albeit with separate legal personality, receive immu- nities from the host state (and other member states) as a matter of cus- tomary international law.119 In one case arising out of the ITC episode, it was said by the judge: international organizations such as the ITC have never so far as I know been recognized at common law as entitled to sovereign status. They are accordingly entitled to no sovereign or diplomatic immunity in this country save where such immunity is granted by legislative instrument, and then only to the extent of such grant.120 The implication is that there is no customary law on the matter. But it is not the case that the ITC -- or any international organization -- is entitled to sovereign or diplomatic immunity. The issue is really quite different: it is whether international law requires that a different type of international person, an international organization, be accorded func- tional immunities. The basis for an affirmative answer lies in good faith (that is, provision of what is necessary for an organization to perform its functions) and not in respect for sovereignty or for its representa- tion through diplomacy. There is no difference in principle between an organization of universal membership and one of limited member- ship. The issue is not, so far as the membership is concerned, one of ‘recognition’ of the personality of the organization. It is simply that 118 Third Restatement of the Law: The Foreign Relations of the United States (1987) vol. I, section 467(i). The reporter’s notes in support of this view all relate to universal organizations. 119 See also Higgins, note 73 p. 91. 120 Bingham J in Standard Chartered Bank v. ITC and Others 1 WLR at pp. 647--8. 348 privileges and immunities members -- and a fortiori the headquarters state -- may not at one and the same time establish an organization and fail to provide it with those immunities that ensure its role as distinct from that of the host state (and other member states).121 This point, a combination of good faith and functionalism, is clearly made for organizations in general in the Advisory Opinion of the ICJ in the Applicability of Article VI, section 22 of the Convention on the Privileges and Immunities of the United Nations Case.122 The ‘Fifth Report of the Special Rapporteur on Relations between States and International Organizations’, however, is not clear on this point. On the matter of the inviolability of archives of organizations in general it cites certain treaties that provide for inviolability of archives,123 but also concludes that ‘doctrine and state practice’ fully support the principle of the inviolability of archives.124 It deduces this rule from the cus- tomary law relating to diplomatic missions, simply asserting that ‘the principle is equally valid in the case of international organizations’.125 The matter is treated by assimilation to diplomatic missions which is inappropriate. As for non-member states, it has been implied by a court in the USA (New York) that an organization of which a state is not a member is not entitled to privileges and immunities in that state in the absence of a treaty commitment.126 If this view were accepted, it would mean that a distinction would have to be made in the application of the custom- ary law. Claiming immunity and waiver There are a variety of questions which may be asked in connection with international immunities