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Published online by Cambridge University Press: 21 July 2009
The UN General Assembly has recently decided to delete from the agenda of the International Law Commission the topic ‘Relations between States and International Organizations’.
Over a period of 31 years, fourteen Reports by two successive Special Rapporteurs studied the topic in two parts. The First part of the topic (1963–1975) dealt with the privileges and immunities of representatives of states to international organizations, and resulted in a Convention, that has, however, not yet entered into force; the Second part of the topic (1976–1992) concentrated on the legal status and immunities of organizations themselves.
The author analyzes the Draft Articles that have been submitted in the course of the ILC's study of the Second part. This is done by way of a three-step application of the functional necessity concept of organizational immunities:
(1) Status, dealing with an organization's functions, legal personality and capacity-(2) Selection, defining a scale of organizational immunities for which an organization may be eligible - and (3) Scope, determining the extent of selected immunities. Finally, the author employs the two statutory functions of the ILC -the codification of international law and the progressive development of international law- to assess the contribution by the ILC to this field of international institutional law.
1 On the ILC, see Graefrath, B., The International Law Commission Tomorrow: Improving its Organization and Methods of Work, 85 AJIL 595 (1991)CrossRefGoogle Scholar, nn. 1 and 8, citing further literature. For the ILC's decision not to pursue any further the consideration of the topic, see Draft Report of the International Law Commission on the work of its forty-fourth session, V, at 2, Para. 5, U.N. Doc. A/CN.4/L.477 of July 21, 1992.
2 The five-year term of office of the present thirty-four members expires on December 31, 1996.
3 U.N. G.A. Res. 47/33 of Nov. 25, 1992, U.N. Doc. A/47/33 (1992).
4 The basis of the ILC's work was formed by U.N.G.A. Res. 1289(XIII) of December 5, 1958, 13 U.N. GAOR Supp. (No. 18) at 54, U.N. Doc. A/4090 (1958).
5 See [1962] 2 Y.B.I.L. Comm'n 192, Para. 75, U.N. Doc. A/CN.4/SER.A/1962/Add.l. On the system of 'Special Rapporteurs', see Graefrath, supra note 1, at 604.
6 First Report, U.N. Doc. A/CN.4/161 and Add.l reprinted in [1963] 2 Y.B.I.L. Comm'n 159, U.N. Doc. A/CN.4/SER.A/I963/Add.l; Second Report, U.N. Doc. A/CN.4/I95 and Add.l, reprinted in [1967] 2 Y.B.I.L. Comm'n 133, U.N. Doc. A/CN.4/SER.A/1967/Add.l; Third Report, U.N. Doc. A/CN.4/203 and Add.1–5, reprinted in [1968] 2 Y.B.I.L. Comm'n 119, U.N. Doc. A/CN.4/SER.A/1968/Add.l; Fourth Report, U.N. Doc. A/CN.4/218 and Add. 1, reprinted in [ 1969] 2 Y.B.I.L. Comm'n 1, U.N. Doc. A/CN.4/ SER.A/1969/Add.l; Fifth Report, U.N. Doc. A/CN.4/227 and Add. 1–2, incorporating U.N. Doc. A/CN.4/ 227/Corr.2, reprinted in [1970] 2 Y.B.I.L. Comm'n 1, U.N. Doc. A/CN.4/SER.A/1970/Add.l; Sixth Report, U.N. Doc. A/CN.4/241 and Add. 1–6, reprinted in [1971] 2 Y.B.I.L. Comm'n 1, U.N. Doc. A/CN.4/ SER.A/1971/Add.l (Part 1).
7 See 1961 Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 95, 1963 Vienna Convention on Consular Relations, 596 U.N.T.S. 261, and 1969 Convention on Special Missions, 24 U.N. G AOR Supp. (No. 30) at 99, U.N. Doc. A/7630 (1970).
8 See H.G. Schermers, International Insitutional Law 905, Para. 1606 et seq. (1980). The representatives appointed to permanent missions are accredited by the sending state to the organization, not to the host state.
9 It emerged from the ILC's work on diplomatic (and consular) relations (between 1954–1961) and the law of treaties, see S. Rosenne, in [1963] 1 Y.B.I.L. Comm'n 300, Para.4, U.N. Doc. A/CN.4/SER.A/1963; see also A. El-Erian, Vienna Convention on the Representation of Stales in Their Relations with International Organizations of a Universal Character, in R. Bemhardt (ed.), Encyclopedia of Public International Law, Instalment 5 (1983), at 394.
10 A state member to an international organization has a right to have a permanent mission to that organization, which is bound by the organization's constituent instrument and internal rules. A non-member may have a permanenl observer mission, which performs a more independent and informal role. (Observer) delegations are in principle of a temporary, ad hoc character. See Fennessy, J.G.. The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, 70 AJIL 63, (1976) at 68.CrossRefGoogle Scholar
11 See Fennessy, supra note 10, at 64.
12 See U.N. Doc. A/8410/Rev.l, at 9–60, reprinted in [1971] 2 Y.B.l.L. Comm'n 275, U.N. Doc. A/CN.4/ SER.A/197 I/Add. 1 (Part 1).
13 See U.N. G.A. Res. 2780(XXVI) of December 3, 1971; U.N. G.A. Res. 2966(XXVII) of December 14, 1972; and U.N. G.A. Res. 3O72(XXV1H) of November 30, 1973.
14 See Official Records of the United Nations Conference on the Representation of States in Their Relations with International Organizations, Vienna, February 4 – March 14, 1975, 1 U.N. Sales No.E.75.V. 11; id., IIU.N. Sales No.E.75.V. 12.
15 See Fennessy, supra note 10, at 65; see also H.F. Köck, Multinational Diplomacy and Progressive Development of International Law, The Vienna Convention of March 14, 1975, 28 ÖZÖRV 51, at 60 (1977).
16 Hereinafter called the ‘1975 Convention’. Adopted by a vote of 57 in favor to one against, with 15 abstentions (including the major host states). For the text see The Work of the International Law Commission 292 (1988); see also J. Sette-Camara, U.N. and International Law-Making: the Vienna Convention on the Representation of States in their Relations with International Organizations, in A. Cassese (ed.), UN Law/Fundamental Rights – Two Topics In International Law 91 (1979) (Sette-Camara considered the 1975 Convention to be fully satisfactory; contra Fennessy, supra note 10, at 72, who called it “a regrettable failure”); see also Köck, supra note 15, at 51.
17 See El-Erian, supra note 9, at 392.
18 Pursuant to Art. 89, Para. 1, the Convention will enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.
19 See U.N. Doc. A/CN.4/304 of June 24, 1977, reprinted in [1977] 2 Y.B.I.L. Comm'n 139, U.N. Doc. A/CN.4/SER.A/1977/Add.l (Pan 1).
20 See[1977] 1 Y.B.I.L. Comm'n 201, 1452nd-1454th, and 1470th mtgs., U.N.Doc.A/CN.4/SER.A/1977.
21 See [1978] 1 Y.B.I.L. Comm'n 260, 1522nd-1524th mtgs., U.N. Doc. A/CN.4/SER.A/1978, in connection with the Second Report, U.N. Doc. A/CN.4/311 and Add.l, reprinted in [1978] 2 Y.B.I.L. Comm'n 263, U.N. Doc. A/CN.4/SER.A/1978/Add.l (Part 1).
22 See [1979] 1 Y.B.I.L. Comm'n 240, Paras. 49–50, U.N. Doc. A/CN.4/SER.A/1979. During its thirty-first to thirty-fourth sessions, covering the years 1979–1982, the ILC did not devote any substantial discussions to the topic, which was only resumed at the thirty-fifth session, in 1983.
23 See U.N. Doc. A/CN.4/370, incorporating U.N. Doc. A/CN.4/370/Corr.l reprinted in [1983] 2 Y.B.I.L. Comm'n 227, U.N. Doc. A/CN.4/SER.A/1983/Add.l (Part 1).
24 See also [1986] 2 Y.B.I.L. Comm'n 165, Para.18 and 166, Para.25, U.N. Doc. A/CN.4/SER.A/1986/ Add.l (Part 1).
25 See U.N. Doc. A/CN.4/401, reprinted in [1986] 2 Y.B.I.L. Comm'n 163, U.N. Doc. A/CN.4/SER.A/ 1986/Add.l (Part 1).
26 See supra, note 21.
27 See Report of the International Law Commission on the Work of its Forty-first Session, 44 U.N. GAOR Supp. (No. 10) at 377, Paras. 722–723, U.N. Doc. A/44/10 (1989).
28 See Schermers, supra note 8, at 795, n. 93; Immunity does not free an international organization from any obligation, so that the laws remain applicable; immunity from legal process prevents, however, their adjudication in municipal courts, Id., 796, Para. 1422; see also C.W. Jenks, International Immunities 42 (1961).
29 See Glenn, Kearney, Padilla, Immunities of International Organizations, 22 VaJ.Int'l.L. 247, 1982 at 276; see also M. Egger, Die Vorrechte und Befreiungen zugunsten Intemalionalen Organisationen und Ihrer Funktionfire 119(1954).
30 1949 I.C.J. Rep. 174; more recently, the Court stressed the functional criterion in Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989 I.C.J. Rep. 177, 194, 195, Paras. 47, 50, 52. For a recent decision by the Eur. Ct. J., see its decision in the Zwartveld case, judgment of July 13, 1990, Nr. C-2/88, reprinted in Common Mkt.L.R. 457 (1990)(3), at Para. 19.
31 The term ‘organizational immunities’ was introduced by Glenn el al., supra note 29, at 266.
32 See Glenn et al., supra note 29, at 275, n. 144, 277. The Hoge Road (Supreme Court) of the Netherlands adopted the functional necessity concept in Spaans v. Iran-United States Claims Tribunal, 438 NJ 1691–1702 (1985).
33 See, e.g., E.H. Fedder, The Functional Basis of International Privileges and Immunities: a New Concept in International Law and Organization, 1960 AULR 60; Egger, supra note 29, at 119; Council of Europe, Privileges and Immunities of International Organisations, Res. (69)29, adopted by the Comm. of Ministers, September 26, 1969 and Explanatory Report. Strasbourg (1969), at 39.
34 See, e.g., the statements made by a variety of states in: Council of Europe Report 1969, supra note 33, Appendix, at 73 et seq..
35 Draft Art. 1 (a), further defined under (b) as meaning “the United Nations, the specialized agencies, the International Atomic Energy Agency and any similar organization whose membership and responsibilities are of a world-wide strict”.
36 See Report of the Internationat Law Commission on the Work of its Forty-second Session, 45 U.N. GAOR Supp. (No. 10) at 231, Para.436, U.N. Doc. A/45/10 (1990). The functional necessity concept is practical in that it has very similar consequences whatever the size of the organization, whether of a universal or regional character, thereby furnishing a criterion which is generally applicable, being constructive as well as strict.
37 1949 I.C.J.Rep. 174.
38 1949 I.C.J. Rep. 174, at 180.
39 1949 I.C.J. Rep. 174, at 182.
40 According to Art. 5, international organizations shall enjoy legal personality under international law and under the internal law of their member states, as well as the capacity, to the extent compatible with the instrument establishing them, to contract, acquire and dispose of movable and immovable property, and institute legal proceedings. Article 6 lays down that the capacity of an international organization to conclude treaties is governed by the relevant rules of that organization and by international law.
41 See Second Repon, U.N. Doc. A/CN.4/391 and Add. 1, reprinted in [1985] 2 Y.B.I.L. Comm'n 103, U.N. Doc. A/CN.4/SER.A/Add.l (Part 1).
42 For the full text of the Draft, and the observations made thereon by ILC members, see Report of the International Law Commission on the Work of its Forty-second Session, 45 U.N. GAOR Suppl. (No. 10) at 229–241 (Arts. 1–11), U.N.Doc. A/45/10(1990), and Report of the lnternational Law Commission on the Work of its Forty-third Session, 46 U.N. GAOR Suppl. (No. 10) at 312–322 (Arts. 12–22), U.N. Doc. A/46/ 10(1991).
43 The first set of Draft Articles was introduced by the Fourth Report, see U.N. Doc. A/CN.4/424 and Corr. 1(1989).
44 Draft Art. 17, according to which “[n]one of the provisions of this chapter shall affect the right of each State party (to this Convention) to adopt the necessary precautions and appropriate measures in the interest of its security”, may be seen as a counterpart to the granting of immunities, being designed to balance the interests of the organization with those of the (host) state.
45 See Fifth Report. U.N. Doc. A/CN.4/432 (1990), reissued as U.N. Doc. A/CN.4/438 and Corr. 1 (1991), and Sixth Report, U.N. Doc. A/CN.4/439 (1991). For a description of the material contents of these privileges and immunities, see Council of Europe Report 1969, supra note 33, at 23 et seq.; see also[ 1967] 2 Y.B.I.L. Comm'n 207 et seq., U.N. Doc. A/CN.4/SER.A/1967.
46 E.g., it may be that through the selection process of step two, the functions of a given organization (step one) make it eligible for the granting of immunity from legal process/jurisdiction. Step three may then dictate that such immunity be restricted to non-commercial transactions, or that car accidents in which the organization is involved are outside the realm of protection.
47 By using the word ‘;strictly’ it is stressed that an activity must relate directly to the (narrowly defined) statutory purposes and functions of the organization concerned in order to qualify as ‘official’ and come within the legitimate incidence of immunity.
48 See Report of the International Law Commission on the Work of its Forty-third Session, 46 U.N. GAOR Supp. (No. 10), at 321, Para. 299, U.N. Doc. A/46/10 (1991).
49 In the present Draft, only Arts. 8, 11, 13, 14, 15, 18, 20, 21, and 22, contain references to this criterion.
50 See McCaffrey, S.C., Current Developments: The Forty-Second Session of the International Law Commission, 84 AJIL 941 (1990)CrossRefGoogle Scholar; Id., Current Developments: The Forty-Third Session of the International Law Commission, 85 AJIL 708 (1991). See also 46 U.N. dAOR Sixth Comm. (37th mtg.) at 7, Para. 32, U.N. Doc. A/C.6/46/SR.37 (1991).
51 See U.N. Doc. A/CN.4/L.456 of Feb. 6, 1991, Paras. 412–413 and 415.
52 See U.N. Doc. A/CN.4/L.473 of July 14, 1992, at 9.
53 See U.N. Doc. A/CN.4/401, reprinted in [1986] 2 Y.B.I.L. Comm'n 163, U.N. Doc. A/CN.4/SER.A/ 1986/Add.l (Part 1).
54 See U.N. Doc. A/CN.4/L.103 (1963), reprinted in [1963] 2 Y.B.I.L. Comm'n 186, U.N. Doc. A/CN.4/ SER.A/1963/Add.l.
55 See Schemers, H.G., Liability of International Organizations, 1 LJIL 3 (1988)CrossRefGoogle Scholar; Ebenroth, C.T., Shareholders' Liability in International Organizations – The Settlement of the International Tin Council Case, 4 LJIL 171 (1991).CrossRefGoogle Scholar
56 See Statute of the ILC, Art. 15, Arts. 18–24, U.N. Doc. A/CN.4/4/Rev.2 (1982), at 3.
57 A good example of this can be found in Report of the International Law Commission on the Work of its Forty-first Session, 44 U.N. GAOR Suppl. (No. 10) at 366, Para. 703, U.N. Doc. A/44/10 (1989).
58 See Graefrath, supra note 1, at 598.
59 See Statute of the ILC, Art. 15, Arts. 16–17, U.N. Doc. A/CN.4/4/Rev.2, at 3.
60 Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on February 13, 1946, 1 U.N.T.S. 15 and 90 U.N.T.S. 327 (corr. to I).
61 See U.N. Doc. A/CN.4/L.473 of July 14, 1992, at 9.
62 See U.N. G.A. Res. 44/23 of Nov. 17, 1989.
63 See, e.g., the United Nations Juridical Yearbook. For the most recent volume, see 1985 U.N.J.Y.B. 3, U.N. Doc. ST/LEG/SER.C/23 (1985).
64 See The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning their Status, Privileges and Immunities, U.N. Doc. A/CN.4/L.118 and Add. 1–2, reprinted in [1967] 2 Y.B.I.L. Comm'n 154, U.N. Doc. A/CN.4/SER.A/1967/Add.l. For the 1985 supplementary study, see U.N. Doc. A/CN.4/L.383 and Add. 1–3, reprinted in [1985] 2 Y.B.I.L. Comm'n 145, U.N. Doc. A/CN.4/SER.A/1985/Add.l (Part 1).
65 See Graefrath, supra note 1, at 595.
