Barbar, Shaza --- "Balancing Tensions Between the Principles of Immunities and Principles of Human Rights and Accountability in International Organisations" [2024] UNSWLawJlStuS 4; (2024) UNSWLJ Student Series No 24-4

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BALANCING TENSIONS BETWEEN THE PRINCIPLES OF IMMUNITIES AND PRINCIPLES OF HUMAN RIGHTS AND ACCOUNTABILITY IN INTERNATIONAL ORGANISATIONS

SHAZA BARBAR

I INTRODUCTION

Privileges and immunities broadly refer to the special powers, rights and freedoms afforded to an institution or actor, usually ‘in the form of exceptions from parts of a national legal order’.^[1] These can be observed in legal institutions or actors at various levels. For example, within states, parliaments and its members are often protected from any legal action to enable freedom of speech in pursuit of law making and holding the executive to account.^[2] States and their diplomats enjoy immunity from the jurisdictions of other states to enable diplomats to conduct their work freely and efficiently without interference from host states.^[3] International organisations and their representatives enjoy immunity from the jurisdictions of their member states to ensure that members do not exercise influence over the international organisations.^[4]

One of the justifications for such privileges and immunities is the need to allow these actors and their representatives to fulfil their functions. With regard to international organisations, this is known as the principle of functional necessity. A strong and well-known articulation of this in international law is found in article 105(1) of the United Nations Charter (‘Charter’) which states: ‘[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.’^[5]

Article 105(1) must be read alongside the Convention on the Privileges and Immunities (‘General Convention’) which has typically been interpreted to provide absolute immunity. There is no doubt that immunities are crucial in the operation of international organisations such as the United Nations (‘UN’). Where membership and subsequent agendas are wide ranging, immunities are important to avoid undue influence or interference. However, as seen in the cases of sexual exploitation in peacekeeping missions, immunities can become a hindrance to seeking accountability for criminal actions or human rights abuses.^[6] This raises the question whether the current interpretation of the General Convention as offering absolute immunity is fit for purpose or acceptable. The question is becoming increasingly pertinent in today’s climate on accountability and human rights as courts increasingly refuse to accept immunities where there are no alternative means of dispute resolution.^[7]

This essay ultimately argues that the interpretation of the General Convention in favour of absolute immunity is both inconsistent with the principle of functional necessity set out in article 105(1) of the Charter and out of date in the context of an increased focus on human rights and accountability. In pursuit of this argument, this essay is set out in the following five parts. Part II provides background on the concept of immunity in international organisations, detailing the origins of immunities and the evolution from absolute to functional immunity. Part III considers the question about whether absolute immunity is appropriate to apply to international organisations such as the UN. In answering this question, this Part demonstrates that the General Convention is inconsistent with the Charter. It also examines recent International Court of Justice cases and opinions to highlight that there is already a general move away from absolute immunity due to an increased focus on human rights and accountability. Part V attempts to set out a test, or at the very least a definition, for functional immunity that can be applied to determine whether immunity applies in any particular case. Part VI concludes by providing a summary, highlighting that absolute immunity is not the appropriate level of immunity to apply to international organisations and that the literature and case law point to an emerging definition or test for functional immunity.

II FROM THE LEAGUE OF NATIONS TO THE UNITED NATIONS: THE EVOLUTION OF IMMUNITY IN INTERNATIONAL ORGANISATIONS

The concept of privileges and immunities in international organisations evolved from the application of diplomatic immunity, an already established and well accepted concept, to the development of a functional immunity specific to international organisations. This section provides a brief overview of this evolution

A 1920s and 1930s: Diplomatic Immunities in International Organisations

The concept of privileges and immunities in international organisations is not new with the League of Nations providing early examples of formally recognised immunities. Article 7 of the Covenant of the League of Nations provides for diplomatic immunity of members and officials and the inviolability of the organisation’s property:

Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic immunity.

The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.^[8]

This was further strengthened when the League of Nations entered into an agreement or modus vivendi with its host state, Switzerland. The modus vivendi held that ‘the League possessed international personality and capacity and that it could not ‘in principle, according to the rules of international law, be sued before the Swiss Courts without its consent.’^[9]

Early cases in the 1930s demonstrate similar tensions recognised today between the importance of immunity and accountability. For example, in the case of International Institute of Agriculture v Profili, Mr Profili sued the International Institute of Agriculture when he was dismissed from his role as head cashier. The Court of Cassation held that ‘the Institute was an international legal person, free, as regards its internal affairs, from interference by the sovereign power of its member states’. The Court also recognised that the only remedy available to Mr Profili would be an appeal to the Institute itself. Regarding the adequacy for such a remedy, the Court notably commented that ‘though it may be evident that there is a need for a more progressive system, there is nothing which authorises the intervention of an external jurisdiction’.^[10]

More generally, the 1920s and 1930s saw much discussion on privileges and immunities in international organisations. For example, the Institut de Droit International (‘Institute’), an authoritative society devoted to the progress of international law, considered this topic as part of its 1924 session in Vienna. As Niels Blokker observes, this period is when many fundamentals on the law of immunity emerged. Some of these elements are discussed in turn below.^[11]

First, the general discussion in this era was mostly about privileges and immunities of officials of international organisations, not the privileges and immunities of organisations. Second, the Institute concluded that the foundation of privileges and immunities of officials of international organisations was the need for the organisation to ‘exercise its functions in full independence’.^[12]

Third, there began a move away from the reference to diplomatic privileges and immunities in favour of understanding privileges and immunities of international officials based on their own roles. The Institute highlighted that while the foundation of privileges and immunities for both diplomats and officials of international organisations is functional in both cases, it was important to recognise two key differences: 1) that diplomats exercise national functions while international officials exercise international functions that are common to all member states and 2) that international officials would need protection against their own home country, protection that many states would refuse to provide to their own diplomats.^[13]

Hugh McKinnon Wood, a legal officer of the League of Nations secretariat, echoed the view that diplomatic immunities were largely inadequate as they typically do not protect personnel from their actions in their own state.^[14] He identified three key reasons why immunities are essential for international organisations. These include: ‘the danger of prejudice or bad faith in the national courts’, the ‘need of protection against baseless actions brought from improper motives’, and ‘the undesirability of allowing the courts of particular members to determine, quite possibly in different senses, the legal effects of acts performed in the exercise of the organization's functions’.^[15]

Fourth, the question arose whether there should be a universal set of privileges and immunities that should apply to all organisations or whether each organisation should have its own set of rules. Finally, and perhaps most relevant to this essay, the question also arose with regard to ‘how to deal with the “denial of justice” problem’. The answer at the time was that immunity should be waived when it did not serve the interests of the international organisation.^[16]

B 1940s and Beyond: The Development of Immunities Specific to International Organisations

In recognition of the key differences between diplomats and officials of international organisations and to address the issues that emerged in discussions in the 1920s and 1930s, new rules on privileges and immunities were developed for the newly established UN and specialised agencies.

As noted earlier, article 105(1) of the UN Charter states: ‘[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.’^[17] In essence, the foundation of these privileges and immunities is functional immunity as discussed in the Institute Vienna session of 1924.

While there is no definition or test for functional immunity in the Charter, article 105(3) provides that the General Assembly may make recommendations or develop conventions to aid in the application of article 105:

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.^[18]

Therefore, article 105(1) of the Charter must be read alongside the Convention on the Privileges and Immunities (‘General Convention’) which as noted earlier has typically been interpreted to provide absolute immunity:

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...^[19]

Recognising the tensions acknowledged by the courts with absolute immunity, the question around the ‘denial of justice problem’ was dealt with by enabling the waiver of immunity or providing alternative means of dispute resolution. There are three key sections that deal with this. First, s 20 of the General Convention makes it explicit that privileges and immunities are granted to officials in the interests of the UN and not for personal benefit. Accordingly, ‘the Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations’.^[20]

Second, s 21 provides that the ‘United Nations shall co-operate at all times with appropriate authorities of Members to facilitate the proper administration of justice ... and precent the occurrence of any abuse in a connection with the privileges, immunities and facilities mentioned in this article.’^[21]

Third, s 29 states that ‘[t]he United Nations shall make provisions for appropriate modes of settlement of: a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; (b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.’^[22]

The doctrine of functional necessity subsequently ‘found its place’ in the 1949 ICJ advisory opinion on Reparation for Injuries in the Service of the United Nations.^[23] Noting that the focus of the opinion was on the question of whether the UN possessed international personality, the court made the point that ‘the rights and duties of an entity ... must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.^[24] The Court added that a UN official needs to be able to rely on the protection, in form of privileges and immunities, afforded to them by the organisation in order to perform their duties effectively.^[25]

The rules adopted by the UN on privileges and immunities have remained unchanged since the 1940s. Indeed, other international organisations have followed suit and used similar wording in their constitutive documents or agreements on privileges and immunities. These include the International Criminal Court, the Association of South East Asian Nations and the International Renewable Energy Agency.^[26]

The development of rules on privileges and immunities specific to international organisations was a welcome step given diplomatic immunities and privileges were not necessarily fit for the purposes of international organisations. However, several concerns remain with immunities in international organisations, as discussed in the following section.

III IS ABSOLUTE IMMUNITY FIT FOR PURPOSE AT AN INTERNATIONAL ORGANISATION SUCH AS THE UN?

As early as the 1930s, courts have recognised the tension between immunities and the administration of justice. While attempts were made to address this in the UN through the provision of alternative means of dispute resolution and the ability to waive immunity, it could still be argued that the rules of privileges and immunities are not entirely fit for purpose for a human rights organisation. This section argues that the General Convention which provides for absolute immunity is inconsistent with the Charter which provides for functional immunity. It then highlights how the judicial trend towards recognising the importance of human rights and accountability indicates that absolute immunity for international organisations is an outdated concept.

A Functional Immunity vs Absolute immunity: The Tension between the UN Charter and the General Convention

In theory, the doctrine of functional necessity is well established in international law, through the constituent documents and conventions of international organisations and confirmed by judicial opinion. However, in practice, many international organisations are afforded absolute immunity. As highlighted earlier, in the case of the UN, the General Convention has typically been interpreted to provide absolute immunity for the organisation unless it has been expressly waived. This raises the key question as to whether the General Convention is inconsistent with the Charter.

It is clear that the foundation of article 105(1) of the UN Charter is functional necessity. The article accordingly provides for immunities ‘as are necessary’ for the UN to fulfil its purposes. This does not endorse an absolute immunity approach. Rather, the assessment of whether immunity applies needs to be considered on a case by case basis by assessing the acts in question against the organisation’s functions.^[27] This position is supported in the jurisprudence of the ICJ. In the 1999 Cumaraswamy Advisory Opinion, the court held that ‘the determination whether an agent of the Organisation has acted in the course of the performance of his mission depends upon the facts of a particular case’.^[28]

Therefore, it can be immediately observed that there is a conflict between the General Convention and article 105 of the UN Charter, as the General Convention provides for absolute immunity. There are two ways to address this. The first would be to invoke article 103 of the UN Charter which maintains that in the vent of a conflict between the Charter and any other agreement, the Charter prevails:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.^[29]

Another way to approach this is to interpret the General Convention in light of article 105(1). Thus far, it has been the other way round; the functional necessity outlined in article 105(1) is interpreted to provide absolute immunity by applying the General Convention. However, it could be argued that the General Convention should be interpreted within the limits applied by article 105(1) given the Charter, as a constituent document, is a superior document to the General Convention. Using this approach, the General Convention would be interpreted to exclude the UN from any legal process so far as it relates to the core functions of the organisation.

Nonetheless, it is important to acknowledge that some writers maintain that the functional immunity granted in article 105(1) must be interpreted to provide absolute immunity. For these writers, the General Convention is therefore consistent with the Charter.

From a normative perspective, Eric De Brabandere argued that any activity conducted in an official capacity should be by definition an official act to which functional immunity extends. Any acts which are not official in nature therefore would be considered ultra vires. Accordingly, he referred to 1962 ICJ advisory opinion on Certain Expenses on the United Nations, Article 17, Paragraph 2, of the Charter which held that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’.^[30] Reinisch made a similar argument noting that organisations can only act with the limits of their delegated responsibility.^[31]

By this logic, ultra vires acts cannot be considered an organisation’s own act and therefore cannot be attributed to the organisation, or any act that an organisation engages in would be an official act and therefore attract immunity.^[32] However, as shown in Article 8 of the Draft articles on the responsibility of international organisations, ultra vires acts are still acts of an organisation if they are performed by the organisation or its agent:

The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions.^[33]

By this definition, any activities conducted in an official capacity could be attributable to the organisation even if they fall outside the authority of the organisation. In this context, it is particularly important that the doctrine of functional immunity is properly applied to avoid immunity being granted to acts that fall outside the authority or functions of the organisation.

Another, and perhaps more common, argument advanced by writers in favour of absolute immunity for international organisations is the importance of preventing interference by host states. Michael Singer highlights that ‘international organisations themselves frequently make broad assertions that nothing less than absolute immunity will serve’. ^[34] He highlighted that the drafters of article 105 stated that ‘if there is one certain principle it is that no member state may hinder in any way the working of the Organisation or take any measures the effect of which might be to increase its burdens, financial or other’.^[35] Some writers have argued the same. For example, Clarence Wilfred Jenks emphasised the importance of absolute immunity for international organisations in order to curtail the control or influence that states would otherwise have on international organisations.^[36]

Singer pointed out that Jenks and other writers in the 1960s were writing in a time when ‘international organisations were fragile entities, thought deserving of every protection to ensure their survival’.^[37] Indeed, Jenks highlighted that immunity was increasingly pertinent as the UN began to expand beyond Geneva and The Hague, and increased in official personnel. He argued that international organisations had too little, rather than too much, authority and that in the absence of any obvious need to limit immunities, it would be undesirable to do so.^[38]

As international organisations have become a more established feature of the international world, it is important to consider more recent literature in this area. For instance, Eric De Brabandere argued in favour of absolute immunity for international organisations. Similar to Jenks, De Brabandere considered that anything less than ‘absolute immunity would compromise the independence of the organisation’ as it could then be subject to pressure from the judicial institutions of host states.^[39]

For writers such as Jenks and De Brabandere, the Convention is therefore not in contradiction with the Charter. Rather, as De Brabandere puts it, the Convention should be ‘regarded as a reliable interpretation of Article 105’, noting that article 105 does not define the scope of functional immunity but rather describes the nature upon which the organisation’s immunity is based. De Brabandere also added that the high number of states that have agreed to the Convention indicates that it was created as an implementation of article 105, making it more likely that states viewed absolute immunity as necessary to enable the UN to carry out its functions.^[40]

The writing of Jenks and others in the 1960s may have carried weight at the time as international organisations were still in their infancy, yet to cement themselves in the international system amongst powerful states. The argument of non-interference is common in scholarship on immunities in international organisations. However, this argument is increasingly losing strength.^[41] Sixty years later, as we grapple with questions as to how to address and prevent sexual abuse in UN peacekeeping operations, the key argument that international organisations should be afforded absolute immunity from interference from the jurisdiction of host states is anachronistic. Indeed, there is an increasing judicial trend towards accountability and human rights which indicate that international courts are no longer accepting the absolute immunity approach without limitation. This will be discussed in the following section.

B An Increasing Trend towards Accountability and Human Rights

Another argument against absolute immunity is the increasing trend of courts to consider key principles in human rights and accountability before making a determination on whether immunity applies to an international organisation. In particular, courts have increasingly indicated that immunity should not ‘undermine imperatives of justice or lead to a denial of justice’.^[42]

In what is considered the earliest case examining the immunities of UN officials, the New York Court in Ranollo described the existence of an absolute and unrestricted immunity from prosecution for UN personnel as ‘carrying the principle of immunity completely out of bounds’. The Court added that: ‘To establish such a principle would in effect create a large preferred class within our border who would be immune to punishment on identical facts for which the average American would be subject to punishment. Any such theory ... flouts the very basic principle of the United Nations itself, which in its preamble to its charter affirms that it is created to give substance to the principle that the rights of all men and women are equal’.^[43]

However, it was not until the landmark cases of Waite and Kennedy v Germany and Beer and Regan v Germany in the European Court of Human Rights that the importance of access to justice was given material weight in considering whether to grant immunity to international organisations in a dispute. In these cases, the applicants submitted that they had been denied access to a court for determination of their disputes with the European Space Agency, in violation of article 6 of the European Convention on Human Rights. The Court found that the German courts did not violate article 6 in applying immunity to the ESA. In doing so, it made made three key points. First, it accepted that the jurisdictional immunities of international organisations serve a legitimate purpose as they ensure that organisations remain ‘free from unilateral interference by individual governments’.^[44] Second, it noted that the Convention is not absolute but subject to limitations that are determined by way of assessing proportionality. Third, while emphasising that it is important to consider the particulars of each case on its own merits, it held that availability of alternative means of dispute resolution is a ‘material factor’ among a range of factors to be considered when assessing proportionality.^[45]

While alternative means of justice is only a material factor and not a determinative one, it was still a significant ruling for the court to make. Following the cases, Belgian and French courts have declined to give effect to jurisdictional immunities of international organisations in three cases where they considered the means for alternative dispute resolution offered in these organisations to be ‘deficient’.^[46]

It is important to note that these decisions have involved former officials of international organisations in dispute with the international organisation for which they worked. It has been less straightforward for cases involving general members of the public and officials of international organisations. For example, in the Behrami case which concerned alleged human rights violations by UN officials in Kosovo, the European Court of Human Rights determined that it would not scrutinise those acts because ‘to do so would be to interfere with the fulfilment of the UN’s key mission ... including ... with the effective conduct of its operations’.^[47] Similarly, the Court used identical reasoning in the case of Mothers of Srebrenica. The Court held that bring operations authorised by Security Council resolutions allows States, through their courts to ‘interfere with the fulfilment of the key mission of the United Nations ... including with the effective conduct of its operation’.^[48]

However, it could be argued that the court erred in making these rulings for failing to reconcile the alleged human rights abuses with the UN Charter itself. Indeed, this approach would help resolve the tension the court faces in interfering with acts authorised by a Security Council resolution. This is the approach the European Court of Human Rights took in the Al-Jedda and Nada cases. The Court ‘applied a harmonisation approach’ when interpreting UN obligations which appeared to conflict with fundamental human rights. The Court therefore ‘established a general presumption that the Security Council does not intend to derogate from fundamental human rights absent explicit language to the contrary’.^[49]

Reminiscent of domestic statutory interpretation principles, this means that the court must always apply an interpretation that is most consistent with human rights when there is ambiguity in the Security Council’s language. In effect, this places the onus on the Security Council to be clear when it intends to abrogate human rights in pursuit of its goals. Importantly, the court inferred this presumption from the UN Charter itself. In particular, it looked to article 24(2) of UN Charter which states that ‘the Security Council shall Act in accordance with the Purposes and Principles of the United Nations’ and article 1(3) which includes promotion and encourage of respect for human rights and fundamental freedoms as part of the UN’s purposes.^[50] This approach harks back to Ranollo case which noted that absolute immunity would not be in keeping with the UN Charter itself. Ultimately, it could be argued that there is an increasing trend against accepting absolute immunity in the jurisprudence. It therefore follows that the concept of absolute immunity at international organisations such as the UN is not fit for purpose.

IV TOWARDS A DEFINITION OR TEST FOR THE DOCTRINE OF FUNCTIONAL NECESSITY

While it can be argued that absolute immunity for international organisations is outdated and in the case of the UN is inconsistent with article 105(1) of the UN Charter, one of the ongoing problems with the applicability of the doctrine of functional necessity is that it remains an elusive concept for many. For years, writers have noted that the scope of functional necessity is unclear. However, this section argues that there are ways to define the concept and that there are elements of a test for functional necessity emerging in the jurisprudence.

Reinisch wrote that while most constituent documents of international organisations provide for functional immunities, ‘hardly any such instrument explains what is meant by the term immunity “necessary for the functioning” of an international organisation’.^[51] As Rishi Gulati posits, ‘this criticism is misplaced’. Rather the ‘logical way’ to determine the scope for functional immunities for an organisation is to look to the functions provided for in constituent documents or agreements and assess whether the organisation’s ability to perform these functions will be impeded if a court hears a claim before it in relation to the organisation’s performance.^[52] Using this rationale, serious violations of international law could not be among functions that are considered necessary to an international organisation as these would (usually) not be in keeping with constituent documents or agreements of international organisations which seek to encourage and respect human rights.^[53]

As highlighted earlier, looking to an organisation’s constituent documents to determine functions is supported by the ICJ Reparations Advisory Opinion which provided early judicial support for the concept of functional necessity. However, part of the problem is when courts refuse to engage in functionalism in a meaningful way and resort to applying absolute immunity.^[54]

For Klabbers, functional necessity is too biased towards international organisations and assumes they are inherently good, is too flexible and subject to change, and is subject to different interpretations.^[55] However, the flexibility of the concept is what is necessary for it to apply to a broad range of organisations. As noted in the Cumaraswamy Advisory Opinion, it is important to examine the particular facts of a case to determine whether an official has acted in accordance with the functions of their organisation.^[56]

Given the increasing trend of courts amplifying the importance of access to justice and harmonisation with fundamental human rights, it could also be argued that these could form part of a test when determining whether an act of an international organisation or official is acting within the functions. As per Waite and Kennedy, access to alternative means of justice should be considered a material factor when determining the applicability of immunity. Furthermore, as per Al Jeddah, a harmonisation approach should be taken to ensure that human rights are not abrogated unless explicitly stated. Adding these steps to a potential test for functional necessity adds a layer of accountability for international organisations.

Ultimately, there would be four elements to a definition or test for functional immunity: 1) functional necessity can only be determined on a case by case basis, there is no universal definition; 2) examine constituent documents or other agreements of the international organisation to determine whether the function is necessary to the organisation; 3) access to alternative means of justice is a material factor in determining the applicability of immunity; and 4) apply the presumption of human rights unless the organisation has explicitly sought to abrogate those rights in pursuit of their specific function.

V CONCLUSION

International organisations have become a key part of the global system. In an increasingly interconnected world, they will only become more pertinent as states continue to require ways to address common and cross border issues. For international organisations to continue to thrive, there is no doubt that immunities and privileges are needed. While privileges and immunities generally have a long history in state sovereignty and diplomacy, the way that they apply to international organisations is relatively new.

The foundation of immunity for many international organisations including the UN is functional necessity. This means that immunity only applies to those acts which are deemed necessary to the function of the organisation. For a court to adjudicate on those acts would interfere with the organisation’s ability to carry out those necessary functions. The clearest articulation of this is article 105(1) of the UN Charter. However, a subsequent convention on privileges and immunities provides for absolute immunity. This approach has been mimicked by several other international organisations since. In addition, courts, scholars and organisations themselves have traditionally interpreted and advocated for international immunities as absolute, while noting that functional necessity is a vague concept.

However, in the case of the UN and other organisations whose immunities are based on those of the UN, there is an inconsistency between the General Convention and the Charter. Ultimately, it could be argued that this could be resolved by invoking article 103 which holds that in the event of any conflict between the Charter and other agreements, the Charter prevails. Alternatively, the General Convention could be interpreted in light of the functional immunity provided for in the Charter. Regardless, the judicial trend of recognising the importance of access to justice and the presumption of the application of human rights also suggested that the application of absolute immunity is anachronistic.

Ultimately, through an examination of the literature and case law, a definition or test for functional necessity emerges with four key elements: 1) functions are to determined on a case by case basis; 2) constituent documents and agreements provide for an understanding of an organisation’s functions; 3) access to alternative means of justice is a material factor in determining the applicability of immunities; and 4) the presumption of human rights applies.

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^[1] August Reinisch, ‘Privileges and Immunities’ in Jan Klabbers (ed), Research Handbook on the Law of International Organizations (Edward Elgar, 2012) 132, 133.

^[2] See for example, Gareth Griffith, ‘Egan v Chadwick and Other Recent Developments in the Powers of Elected Upper Houses’ (Briefing Paper No 15/99, Parliamentary Library Research Service, Parliament of New South Wales, August 1999) 2.

^[3] Vienna Convention on Diplomatic Relations, opened for signature 14 April 1961, 500 UNTS 95 (entered into force 24 April 1964) preamble, art 31.

^[4] Reinisch (n 1) 132, 134.

^[5] Charter of the United Nations art 105(1) (‘Charter’).

^[6] See for example, ‘Haiti by Force’, Fault Lines (Al Jazeera, 2017) https://www.aljazeera.com/program/fault-lines/2017/3/22/haiti-by-force; VICE ‘Peacekeepers Turned Perpetrators’, VICE (YouTube, 28 July 2016) <https://www.youtube.com/watch?v=RZfoCHEIfDQ#:~:text=while%20the%20United%20Nations%20is,on%20the%20Central%20African%20Republic>.

^[7] See Edward Chukwumeke Okeke, Jurisdictional Immunities of States and International Organisations (Oxford University Press, 2018) 330.

^[8] Treaty of Peace between the Allied and Associated Powers and Germany, signed 28 June 1919, 225 ConTS 188 (entered into force 10 January 1920) pt I (‘Covenant of the League of Nations’) art 7.

^[9] Communications du Conseil Fédéral Suisse Concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, League of Nations-Switzerland (entered into force on 18 September 1926) reproduced in (1926) 7 League of Nations Official Journal, annex 911a, 1422 cited in August Reinisch, ‘Introductory Note: Convention on the Privileges and Immunities of the United Nations Convention on the Privileges and Immunities of the Specialized Agencies’, United Nations Audiovisual Library of International Law (Web Page, October 2008) <https://legal.un.org/avl/ha/cpiun-cpisa/cpiun-cpisa.html>.

^[10] International Institute of Agriculture v. Profili, Italian Court of Cassation, 26 February 1931 [tr (1929–30) 5 Annual Digest of Public International Law Cases 413] cited in Niels Blokker, ‘Jurisdictional Immunities of International Organisations: Origins, Fundamentals and Challenges’ in Tom Ruys, Nicolas Angelet and Luca Ferro (eds), The Cambridge Handbook of Immunities and International Law (Cambridge University Press, 2019) 185, 188.

^[11] Niels Blokker, ‘Jurisdictional Immunities of International Organisations: Origins, Fundamentals and Challenges’ in Tom Ruys, Nicolas Angelet and Luca Ferro (eds), The Cambridge Handbook of Immunities and International Law (Cambridge University Press, 2019) 185, 189.

^[12] Ibid 189.

^[13] Ibid 189–190.

^[14] Hugh McKinnon Wood, ‘Legal Relations between Individuals and a World Organization of States’ (1945) 30 The Grotius Society, Transactions for the Year 1944: Problems of Peace and War 141, 143–158.

^[15] Ibid 143–4.

^[16] Blokker (n 11) 190–91.

^[17] Charter (n 17) art 105(1).

^[18] Ibid art 105(3).

^[19] Convention on the Privileges and Immunities of the United Nations,opened for signature 13 February 1946, 1 UNTS 15 (entered into force 17 September 1946) art II s 2.

^[20] Ibid art V s 20.

^[21] Ibid art V s 21.

^[22] Ibid art VIII s 29.

^[23] James Fry, ‘Rights, Functions, and International Legal Personality of International Organisations’ (2018) 36 Boston University International Law Journal 221, 238.

^[24] Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) (International Court of Justice, General List No 4, 11 April 1949)180.

^[25] Ibid 183.

^[26] Blokker (n 11) 192–3.

^[27] Alexander Orakheklashvili, ‘Responsibility and Immunities: Similaries and Differences between International Organisations and States’ (2014) 11 International Organisations Law Review 114, 153.

^[28] Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 85 [52].

^[29] Charter (n 5) art 103; Orakheklashvili (n 27) 152.

^[30] Certain Expenses of the United Nations, Article 17, Paragraph 2, of the Charter (Advisory Opinion) [1962] ICJ Rep 151, 167.

^[31] Cited in Orakheklashvili (n 27) 139.

^[32] Ibid 161.

^[33] Draft Articles on the Responsibility of International Organisations art 8 https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_11_2011.pdf.

^[34] See, Michael Singer, ‘Jurisdictional Immunity of International Organisations: Human Rights and Functional Necessity Concerns’ (1995) 36 Virginia Journal of International Law 53, 66.

^[35] Ibid 85.

^[36] Clarence Wilfred Jenks, International Immunities (Stevens, 1961); PJ Fitzgerald, ‘Book Reviews: International Immunities by C. Wilfred Jenks’ (1961) International and Comparative Law Quarterly 10(4) 928, 928.

^[37] Singer (n 34) 66–7.

^[38] Jenks (n 36) 928, 929–30.

^[39] Eric De Brabandere, ‘Immunity of International Organisations in Post-Conflict International Administrations’ (2010) 7 International Organisations Law Review 79, 88.

^[40] Ibid 88; Singer (n 34) 84.

^[41] See, eg, Orakheklashvili (n 27) 158.

^[42] Okeke (n 7) 325.

^[43] Quoted in Ibid 326.

^[44] Waite and Kennedy v Germany (European Court of Human Rights, Grand Chamber, Application No 26083, 18 February 1999) [63].

^[45] Ibid [68].

^[46] Okeke (n 7) 330.

^[47] Behrami and Behrami v France and Saramati v Grance, Germany and Norway (European Court of Human Rights, Grand Chamber, Application Nos 71412 and 76166, 2 May 2007) [149] cited in Maria Irene Papa, ‘The Mothers of Srebrenica Case before the European Court of Human Rights: United Nations Immunity versus Right of Access to a Court’ (2016) 14 Journal of International Criminal Justice 893, 903.

^[48] Ibid.

^[49] Ibid 904.

^[50] Ibid.

^[51] A Reinisch, ‘Immunity of Property, Funds, and Assets’ in A Reinisch and P Bachmayer (eds), The Conventions on the Privileges and Immunities of the United Nations and Its Specialized Agencies: A Commentary (Oxford University Press 2016) 73 cited in Rishi Gulati, Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders (Cambridge University Press, 2022) 143.

^[52] Rishi Gulati, Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders (Cambridge University Press, 2022) 143.

^[53] Orakheklashvili (n 27) 161–2.

^[54] See for example, Gulati (n 52) 147.

^[55] Jan Klabbers, An Introduction of International Institutional Law (Cambridge University Press, 2009) 33–5.

^[56] Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 85 [52].