Immunities, privileges of int’l organizations and civil service

Dr. Ruwantissa ABEYRATNE

In determining the status of an international organization, the most basic question at issue for the courts would be, what is an international organization? Unfortunately, there is no specific answer to this question as no overarching definition has been developed identifying what an international organization is in precise terms.

One commentator is of the view that at best, we might recognize one if we see it. The main reason for the difficulty in reaching a precise definition or identifying all encompassing characteristic of an international organization is that it is in limine a social creation. Moreover, the creators of an international organization do not set off to create it with a pre-approved blueprint. Rather, they carve it to accord with their needs.

The two main characteristics of a specialized agency of the United Nations are: that it is created by states, or more specifically, as states themselves are abstractions, by duly authorized representatives of states; and they are created by treaty, which is a written agreement signed by the states parties to it and governed by international law. States can only act by and through their agents.

International organizations

Different government departments or instrumentalities of state bear responsibility for different international organizations. The third characteristic that distinguishes an international organization as a ‘club’ of states without just being the spokesperson or mouthpiece of those states is that it is expected to have a ‘will’ of its own. Any organizations independent will, recognized by the government of the host country in which that organization is situated for purposes of its activities within the country, is usually encapsulated in a provision which states that the organization has an identity of its own, and is capable of entering into contracts.

This having been said, an international organization, be it a specialized agency or other body, is by no means sovereign in its own right, although courts have on occasion referred to sovereign rights of an organization merely to seek a compromise between absolute acceptance of parity between a state and an organization and absolute refusal of an international organizations ability to perform acta jure imperii (governmental acts).

Commercial acts

An international organizations identity before courts having national jurisdiction would strictly be restricted to the nature of the organization and the type of work it carries out. Any special privilege accorded to an international organization by agreement or treaty would therefore be applicable only in relation to an international organization’s scope of work. Conceptually, it has been argued that in an instance of national litigation involving an international organization, courts would, in the event the litigious issue pertains to the work of that organization, apply the ‘functional theory’ in an acta jure gestionis (commercial act), which means that the organization concerned will not be viewed as having special immunities or privileges.

A question arises as to what extent or within what parameters must a court apply the principle of functional immunity to commercial acts of an international organization. Courts have veered from one extreme, coming close to recognizing absolute immunity to linking key activities of an organization, such as its interpretation and translation services to acta jure imperii (sovereign act) on the basis that language services were integral to the main functions of an organization.

International civil servants

Members of the international civil service are protected in their official correspondence through the Vienna Convention on Diplomatic Relations, Article 27(2) of which states that the official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions. Article 31 of the Convention which states that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state and also enjoy immunity from its civil and administrative jurisdiction, makes some exceptions except in the case of a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; and an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.

Functional immunity

The operative question is whether an international organization or its staff must wholly be at the mercy of a national court. The argument has been adduced that domestic courts should not have absolute jurisdiction or adjudicatory authority over international organizations since such exercise of authority might cause damage or adversely affect that organizations independence. The rationale of this argument was accepted by the Quebec Superior Court in 2003 where, in an instance where a former employee of the International Civil Aviation Organization (ICAO) sued the Organization et al for wrongful dismissal from his position at ICAO, the court recognized the need to grant immunities to international organizations so that they could sustain their independence and freedom.

The court drew a parallel between freedom and independence of the organization with the notion of immunity, recognizing that neither an international organization nor a state should be subject to the laws and conditions of the courts of another state. The Court acknowledged the bifurcation of immunity into absolute and functional immunity and concluded that ICAO has quasi-absolute immunity in this particular case. According to the Court, functional immunity would be conferred regarding acts performed by officials of an international organization in the course of their duties and within the scope of their employment.

Article 29 of the Vienna Convention declares inviolable the person of a diplomatic agent against arrest or detention. The United Nations has endorsed this principle in Resolution 53/97 of January 1999 by strongly condemning acts of violence against diplomatic missions and agents. This Resolution followed condemnation in the Security Council of the murder of nine Iranian diplomats in Afghanistan. In the 1988 case of Boos v. Barry the US Supreme Court handed down its decision that diplomatic immunity is reciprocal among states based on mutual interest founded on functional requirements and reciprocity. This effectively precludes the punishment of a member of the international civil service in a general sense, where the only remedy available to the host state against alleged offences of diplomat or a member of the international civil service to declare him persona non grata.

Administrative jurisdiction

While this principle is seemingly reasonable, given the service and contribution provided by the international civil service and the detrimental effect of interference by states of the provision of such services, an absolute application of this principle could tip the balance to the disadvantage of the public.

In this context, specific problems have surfaced with regard to the conduct of the members of the international civil service which results in instances of criminal liability such as when a diplomat or member of the international civil service causes motor accidents and injury to third parties through their negligence. Immunity from civil and administrative jurisdiction of the state in which international civil servants serve in an absolute sense could also cause inconsistencies of the administration of justice.

Article 31 (1) of the Vienna Convention addresses this issue effectively by having three exemptions where liability would ensue: where the action relates to private immovable property situated within the host state; in matters of succession and litigation related thereto involving the diplomat as a private person; and with respect to unofficial and professional or commercial activity engaged in by the diplomat concerned. A compelling practical example of these exemptions lies in the United Kingdom. The Memorandum on Diplomatic Privileges and Immunities in the United Kingdom of 1987 takes a stringent stand against any reliance on diplomatic immunity which is calculated to evade a legal obligation.

Diplomatic missions

It must be noted that diplomatic immunity afforded to international civil servants, such as exemptions from social security provisions in force in the host state (as per Article 33 of the Vienna Convention), exemptions from taxes and dues regional or municipal (except for indirect taxes), exemptions from dues regarding personal or public services (as per Article 35 of the Vienna convention) and from customs duties and inspection [as per Article 36(1)] of personal belongings and baggage, extends to members of the family of a diplomatic agent forming part of his/her household (as per Article 37).

Such immunities start from the moment the diplomatic agent (or member of the international civil service) and his family enter the territory of the host State, and last till the persons concerned leave the host country.

The immunity so afforded to diplomatic agents and members of the international civil service does not bind third nations. In a case involving a former ambassador of Syria to the German Democratic Republic, A German Federal Court ruled that benefits of the persona non grata rule applied only to the host State and not to other States such as the Federal Republic of Germany in that case.

Another point of contention arising from the broad principle of diplomatic immunity pertains to contracts of employment. Although generally, states and instrumentalities of state come within the purview of local legislation with regard to the hiring and firing of employees, this principle does not apply to diplomatic missions. A point of concern is that such a principle may give rise to absolute discretion being bestowed on a diplomatic mission in disregarding established community rights such as racial, religious, gender and social equality.