University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD International Organisations Law 9

Privileges and immunities The rationale for immunities as regards representatives of State, ie diplomats: theory of ‘functional necessity’ The classical distinction between acta iure imperii (governmental acts) and acta iure gestionis (commercial acts, and more generally any act which is not related to the State functions) Likewise, privileges and immunities are extended to IOs as for people working for them, and persons accredited to such IOs or representing them on specific missions

The theoretical basis of immunities for IOs IOs have no territory of their own, and are not sovereign entities of their own. Thus, the theory of functional necessity hardly fits IOs However, that theory finds linguistic support when it comes to IOs – Article 105 UN Charter provides that the UN shall enjoy in its MS ‘such privileges and immunities as are necessary for the fulfilment of its purposes’. Moreover, national and international rulings can be cited in support of the functional necessity thesis. that thesis stems from an established practice of negotiations between the hosting state and the relevant IO

… the theoretical basis As a matter of fact, representative of MS, and civil servants of the IOs are usually granted a set of privileges and immunities from local jurisdiction, and from paying some taxes and so on The problem is the open wording of the ‘functional necessity’ theory, the determination of the functional needs of an IO being essentially subjective. Illustrative is the case which arose before the US Federal Commission regarding the claim of the World Bank and IMF to pay lower rates for their official telecommunications The conceptual confusion of the case US v Melekh regarding a UN official charged with espionage

… the theoretical basis The scope of privileges and immunities is thus uncertain Privileges and immunities may even amount to infringe fundamental rights of persons when it is applied to the IOs labour contracts. No judiciary may ensure judicial control over such legal relationships, so to affect access to justice: the case Waite and Kennedy v Germany before the ECHR (1999)  IO have to compensate their immunities from suit before domestic courts (at least in employment cases) by creating alternative mechanisms to guarantee access to justice: alternative administrative tribunals would be a prominent example ‘Immunity’ does not imply that the law of the host State does not apply at all. IOs are required to respect host’s state traffic rules or urban licenses and so on. Local law remains applicable

The rationale for IO civil servants Note: the Vienna Convention on the Representation of States in their relations with IOs of universal character (1975) failed. Tilted towards the interests of the sending States, it almost neglected those of host states  the law relating to privileges and immunities of O is a labyrinth of treaties and other legal instruments. Indeed, in many cases Headquarter Agreements regulate the relation between host states and the the relevant O However, it is possible to suggest that officials of Os may need protection against the States of which they are nationals Thus, IOs as subjects of int law – distinguished from their MS – are entitled to immunities and privileges in order to freely pursue their functions and purposes. The problems is to avoid excessive privileges, limiting immunities to acta iure imperii, by means of well-defined agreements

Examples of Agreements The most important document is the Convention o the Privileges and Immunities of the UN, as a model of other similar agreements It starts by pointing to the legal personality of the UN and then lays down 4 sets of provisions: a) UN as a whole: Immunity from legal process as regards its properties and assets, unless immunity is waived; UN premises, its archives and documents are inviolable; UN is exempt from direct taxes and customs duties b) representatives of MS are immune from personal arrest and immigrations restrictions; freedom of speech is guaranteed; a fall back clause provides that they enjoy the same privileges and facilities similar to diplomats (with the exception of custom duties and sales taxes); observer status is not provided for, but generally their representatives enjoy a similar degree of protection. Two limitations: i) immunities are granted only to safeguard the exercise of their functions  so immunities must be waived as long as they imped the course of justice; ii) if a representative of a MS happens to be a national of the host States, then no privileges and immunities apply

UN Agreement c) Officials of the UN. Exemptions from national service obligations; immunity from suit for acts performed in an official capacity; exemption from direct taxes on their salaries and emoluments. All these privileges are however granted in the interest of the UN: should the course of justice be impeded, the Secretary General is expected to wave immunity; UN organs shall cooperate to facilitate the proper administration of justice  so there is an obligation to tackle abuses d) Experts on mission for the UN are also protected with similar provisions ICJ Opinion on Mazilu case (1989). Mazilu was recommended by Romania as a member of the UN Commission for protection of minorities. Then it happened that Mazilu showed thoughts hardly to reconcile with Romania Government positions so that it prevented him from travelling to UN and finishing its report. The ICJ unanimously applied to Mr Mazilu immunities concerning experts on missions for the UN, by providing a wide definition of that notion.

Other agreements Other agreements provides for different levels of privileges and immunities. Overall there is a sort of fragmentation as regards the law of immunities and privileges applicable to IOs. Yet, these are differences of detail rather than of principle EU activity is also protected by the Protocol No 7 on the privileges and Immunities of the EU. The ECJ interprets and applies it. The protocol concerns the EU itself, its officials, the representatives of the MS, the members of the EP and officials of the its institutions and organs Yet, as the European integration process increases, the logic of the reason for being granted immunities becomes less convincing In principle, privileges and immunities of IOs are absolute and cover all acts of the organisation, including those ultra vires. There is a tension between immunities and the rule of law: eg administration of Kosovo by the UN; activities of practitioners (doctors, lawyers, engineers) working for IOs may end up without any judicial or other forms of supervision