Diplomatic World 67

This article aims to dwell on the immunity that is granted to
international organizations (IOs) on the international level.
Therefore, the first paragraph defines what is understood by an
“IO” for the scope of this article. Given certain circumstances
that will be further elaborated below, an IO and its officials profit
from immunity. Accordingly, the second paragraph defines and
situates the concept of institutional immunity, a term often used
to describe the immunity of an IO. The remainder of the article
is organized along the lines of the distinction between immunity
from jurisdiction and immunity from execution. Within the chapter
covering immunity from jurisdiction, a particular emphasis lays
on the scope of the immunity that is granted to IOs, as this is still
a topic with diverging state practice on the international level.
WHAT IS AN IO?
There is no universally accepted legal definition of an IO, but for
the scope of this article, it can be stated that an IO is characterized
by the following features. Firstly, an IO is an association
of subjects of international law (e.g. states and/or other IOs).
Secondly, an IO is founded by a treaty or another instrument
governed by international law. Thirdly, the members of an IO
pursue a common goal. And last but not least, an IO consists of
one or more organs which are capable of generating an “autonomous
will” distinct from the members of the IO 2 . Now that it is
clear what is understood by “IO” for the scope of this article, the
concept of “immunity” needs further elaboration.
A VARIETY OF IMMUNITIES
In international law, there are various forms of immunity that
each have particular implications depending on the subject that
is privileged to the protection 3 . Four prime forms can be distinguished:
the immunity of states, the immunity of diplomats and
other representatives, consular immunity and the immunity of
IOs. These immunities are granted due to their special status as
subjects of international law 4 .
INTERNATIONAL ORGANIZATIONS
The present article sheds light on institutional immunity. This immunity
is not limited to the IO itself. Given certain requirements,
Often immune
from jurisdiction and execution,
Rarely from criticism in that regard
LEGAL SERVICES FOR DIPLOMACY
its officials may profit from it as well. However, the immunity for
IO officials falls outside the scope of this paper.
Billiet & Co lawyers advices and represents States, International Organizations and their
diplomatic missions in Brussels — as well as members of their staff, international civil servants,
government officials, leading multinational corporations and non-governmental organizations.
The common thread through this article is the (lack of) similarities
between the immunity of IOs and the immunity of states. After all,
sovereign states are seen as the prime subjects of international
law, possessing the totality of international rights and duties 5 .
We understand that you require unique and sensitive services, and we are uniquely placed
to provide them, in a range of languages such as English, Dutch, French, Russian, German,
Spanish, Greek, Ukrainian, and Romanian.
Topics that will be discussed below are among other things: the
rationale and scope of the immunity and the fact that immunity is
sometimes at odds with article 6 of the European Convention on
Human Rights (ECHR).
at protecting the IO from interference of the state where its headquarters
are situated or where the IO is operating. 10
The firm has wide experience in legal issues surrounding Seat Agreements, Rights and
Obligations of the guest mission and its hosting State, Investor-State disputes, Inter-State
IMMUNITY disputes and FROM all kinds JURISDICTION of legal questions VS IMMUNITY involving International Organizations. We represent Institutional immunity thus serves another rationale than state
FROM clients ENFORCEMENT
before national and international courts and arbitral tribunals.
immunity, as state immunity is rather based on the principle of
sovereign equality. 11 This principle of sovereign equality is also
Prior to a more thorough comparison between state immunity
and OUR immunity LEGAL of IOs, SERVICES it is important FOR to make DIPLOMACY a distinction
between immunity from jurisdiction and immunity from enforcement.
Legal compliance with Belgian, European, International laws and regulations
Diplomatic immunity / Consular support
Public International Law / EU Law
Immunity Trade and from WTO jurisdiction law, treaty refers interpretation to the situation and trade where negotiations a court
is barred International from establishing Arbitration and its adjudicatory Dispute Resolution jurisdiction when
a subject Enforcing enjoying International immunity Arbitral is sued Awards before in Belgian it. Immunity Courtsfrom
execution, Enforcement on the proceedings other hand, against prevents State entities measures of constraint
Sanctions law and Export controls
with regards to subjects enjoying immunity (e.g. arrest or seizure
Global fraud and Asset Recovery
of assets of the IO). 6 Hence, when an IO enjoys immunity from
Foreign Direct Investment in Belgium, EU, Russia and CIS countries
International Employment and Labour law
Immigration and International Mobility
Avenue Louise 146 | Brussels | +(32) 2 643 33 01 | info@billiet-co.be
jurisdiction, it will enjoy immunity from execution as well. When
an IO does not enjoy immunity from jurisdiction, it may still profit
from immunity from execution 7 .
IMMUNITY FROM JURISDICTION
RATIONALE
In 1944, McKinnon Wood stated that IOs need immunity because
of: “the danger of prejudice or bad faith in national courts, the
need of protection against baseless actions brought from improper
motives, and the undesirability of national courts determining
the legal effects of acts of the organization, possibly in
diverging directions”. 8
Institutional immunity is generally founded on the principle of
functional necessity. It is deemed necessary for the IO in order to
be able to perform its functions in an effective and independent
manner. 9 After all, as opposed to a sovereign state, an IO cannot
rely on its own territory or population in order to ensure its proper
functioning. The immunity for IOs thus aims, among other things,
reflected in the adage “par in parem non habet imperium”, which
means that a state is not subject to the jurisdiction of another
state. 12 While sovereign states are thus formally equal in international
law, IOs are formally different. The principle of functional
necessity then guarantees that they will be immune as well, when
operating their various functions. 13
IMMUNITY FROM JURISDICTION
LEGAL BASIS OF THE IMMUNITY
Institutional immunity usually originates in the constituent instrument
of IOs (e.g. article 105 UN Charter). As the constituent instrument
of IOs generally remains on the surface with regards to
the immunity of the IO and its officials, these general provisions
KEY CONTACTS are often complemented by a specialized treaty on the immunity
of the IO and its officials. Members that prefer staying out of
Johan Billiet
these multilateral treaties, may discuss a bilateral treaty with the
johan.billiet@billiet-co.be
IO as well, i.e. a headquarters or host agreement. 14
Dr. Konstantinos Adamantopoulos
konstantinos.adamantopoulos@billiet-co.be
Philippe Billiet
Some states transpose these international agreements to national
law. Others prefer to adopt autonomous legislation without re-
philippe.billiet@billiet-co.be
Vladimir Lincautan
ferring to the existing international agreements. 15 An example of
vladimir.lincautan@billiet-co.be the latter is the International Organizations Immunities Act (IOIA)
in the US. The IOIA regulates, inter alia, the immunity of the UN.
As the US refused to become a party to the multilateral treaty of
the UN related to immunity for IOs at the time, the importance of
this national legislation is not to be underestimated. 16
Whether immunity for IOs can be deducted from customary
international law or general principles of law, is still disputed.
This question arises e.g. in the absence of an applicable treaty
provision. 17
IMMUNITY FROM JURISDICTION
SCOPE OF THE IMMUNITY
The main issue concerning the immunity from jurisdiction for IOs
relates to the scope of this immunity. Central to the debate is the
question on whether IOs should be granted restricted or absolute
immunity. As the US’ viewpoint shows below, a comparison
between state and institutional immunity is insurmountable on
this point.
The US issued the IOIA in 1945. This Act grants IOs “the same
immunity from suit and every form of judicial process as is enjoyed
by foreign governments”. 18 As sovereign immunity was still
absolute at the time, this act meant that IOs enjoyed the same
absolute immunity in the US. 19
However, the Foreign Sovereign Immunities Act of 1976 (FSIA)
limited the immunity of foreign governments to “acta iure imperii”
which refer to sovereign acts of the government. These acts
need to be distinguished from “acta iure gestionis” which refer
to acts of the government that are of a commercial or private
nature. 20 By only referring to foreign governments, and thus not
explicitely mentioning IOs, the FSIA resulted in 2 conflicting lines
of precedent. 21 On the one hand, some argued that the FSIA
introduced restricted immunity, not only with regards to states,
but to IOs as well. On the other hand, some stated that IOs continued
to enjoy absolute immunity, regardless of the FSIA. While
foreign governments thus only would enjoy a restricted immunity
from the FSIA onwards, IOs would still fall within the scope of the
unchanged IOIA, which granted them absolute immunity.
This conflict was eventually settled by the US Supreme Court
in 2019, where the Court decided that the FSIA also applies to
IOs and IOs are thus subject to the same restricted immunity as
foreign governments. 22
The tendency to put IOs on equal footing with states when it
comes to immunity, is not universally accepted. 23 In fact, the US
seems to stand alone in this regard. While immunity of IOs is
always described as functional, it is often stated that it de facto
boils down to absolute immunity, as opposed to state immunity. 24
Of course, exceptions to this rather absolute immunity of IOs do
exist, but they have to be expressly provided for in the international
agreements granting the immunity. 25
158 159
AD-BillietCo.indd 2 28/07/2020 15:16