97 Full

# The Author 2011. Published by Oxford University Press.
All rights reserved

doi: 10.1093/chinesejil/jmr008
.......................................................................................................................................
The State of Functional

Immunity of International
Organizations and Their
Officials and Why It
Should be Streamlined
Kibrom Tesfagabir*
Abstract
Arguably, international organizations are among the important social
inno-vations of the twentieth century. In the last 50 years, they have
managed to become global conglomerates by establishing a stake in
every facet of human life. Their growing role has brought the efficacy of
the legal rules that govern their interaction into spotlight. This article
inquires how functional immu-nity, one of the above-mentioned rules,
is, arguably, erroneously understood and applied. It also presents
arguments that should shape application thereof.
I. Introduction
1. In traditional international law, a sovereign could claim unfettered immunity
1
from the jurisdiction of another sovereign. Sovereign immunity, in its classical
1 Assistant
Lecturer, Law School, College of Arts and Social Sciences, Eritrea (email:
kibrom82@gmail.com). This article was based on my thesis submitted for my LL.M.
degree in international law at Wuhan University Institute of International Law. I wish to
thank Professor Sienho Yee for his guidance during the preparation of the thesis and this
article. I am also grateful to my friends Diego Santiago Rivero and Luwam G. Dirar for
their valuable comments on a first draft of this article. The article employs functional
immu-nity and organizational immunity interchangeably. Unless specifically noted, they
refer to the immunity enjoyed by international organizations, as institutions, and their
officials. This article was completed on 19 January 2011.
Lakshman Marasinghe, The Modern Law of Sovereignty Immunity, 54 The Modern LR

(1981), 678. Ernest Angell, Sovereign ImmunityThe Modern Trend, 35 Yale LJ
(1925), 150 168.
...................................................................................................................................................................
10 Chinese Journal of International Law (2011), 97 128
98
Chinese JIL (2011)
sense, excludes a sovereign from the application of legislative, judicial and

2
adminis-trative fiat of another sovereign. This concept is as archaic as the concept
of State itself. Primarily forged to serve feudal and monarchial personalities, it took
3
pride of place within Roman, Frankish and later Merovingian establishments. It
has also undergone the test of philosophy. Within the philosophical discourse of
classic juri-political thinkers, like Bodin and Hobbes, immunity has been described
4
as a component of, in Hobbess term, the Leviathan.
2. Sovereign immunity took its modern shape along the lines of State practice.
States, out of diplomatic courtesy and comity, became willing to partially waive
5
their exclusive power and give another sovereign a license, according to The
Schooner Exchange, as a manifestation of perfect equality and absolute
6
indepen-dence of sovereigns.
3. Absolute immunity, as it was, was built upon the assumption that a States role
7
is limited to police functions. Its expansion, in international relations, beyond tra8
ditional limits necessitated the orthodoxy of immunity to be revisited.
4. The international plane is no more uncharted territory where States, in
solo, interact and take action. International organizations are very much part of
9
international life. They facilitate international relations by creating platforms,
influencing decisions and monitoring their execution. Generally speaking, they
10
have institutionalized cooperation and, according to Klabbers, have come
Malcolm Shaw, International Law (6th edn. 2008), 701. See also Tim Hillier,
Sourcebook on Public International Law (1998), 289.
Alexander C. Murray, Immunity, Nobility, and the Edict of Paris, 69 Medieval Academy of
America (1994), 18. See also William H. Reeves, Leviathan Bound: Sovereign Immunity in a
Modern World, 43 Virginia LR (1957), 529 557. See also Hillier, above n.2, 288. Don
Mayer, Sovereign Immunity and the Moral Community, 2 Business Ethics Quarterly (1992),
419. Jerrold Mallory, Resolving the Confusion over Head of State Immunity: The Defined
Rights of Kings, 86 Columbia LR (1986), 169 197.
Mayer, above n.3, 419 428. Bodin remarked it [sovereign immunity] is the distinguishing
mark of the sovereign that he cant in anyway be subject to the commands of another. Ibid.,
664. See also Charles H. Brower, International Immunities: Some Dissident Views on the
Role of Municipal Courts, 41 Virginia JIL (2000), 2 5.
Ian Brownlie, Principles of Public International Law (7th edn. 2008), 323. Brownlie
describes sovereign immunity as a license in which the agents of one state may enter
the territory of another and there act in their official capacity.
The Schooner Exchange v. MFaddon and Others, 11 US (7 Cranch) 116 1812. C.F. Amerasinghe, Principles of Institutional Law of International Organizations (2nd edn. 2005), 315.
7
8
Brownlie, above n.5, 327.
Brower, above n.4, 3 5.
Mayer, above n.3, 421; Brownlie, above n.5, 336 339; Sienho Yee, Foreign Sovereign
Immunities, Acta Jure Imperii and Acta Jure Gestionis: A Recent Exposition from the
Cana-dian Supreme Court, 2 Chinese JIL (2003), 649 653.
10
Gaillard and Pingel-Lenuzza, below n.59, 16.
Tesfagabir, The State of Functional Immunity 99
to embody many of the characteristics traditionally associated with big

11
government.
5. A fitting example would be the UN. A global enterprise founded to save
12
humanity from the scourge of war, it now has a stake in the governance of
human rights, the global environment, the health of State bureaucracy and the
safety of transportation systems, among other functions.
6. The increasing role of international organizations may also be seen in the
light of their proliferation. The volume and heterogeneity of the tasks that
they have come to assume have repercussions not only in increasing the
intensity of their inter-action with the outside environment but also in putting
rules that govern this inter-action in the spotlight.
7. Immunity has been the subject of debate both in scholarship and in

judicial practice. This article aims to contribute to the ongoing debate with the
following mission.
8. This article discusses that normative and non-normative factors necessitate the
existing application of immunity be revisited. It argues that normative norms,
mainly human rights and international responsibility, should shape the application
of immunity. From a non-normative perspective, it asserts that being close to a
level of judicial scrutiny may prevent international organizations from becoming
insen-sible species that fail to read and accordingly adjust to the environment
within which they operate. Pursuing absolute immunity may backfire as other
actors may question the fidelity of these organizations. This is especially important
when many traditional elements of the law of international organization are

13
subject to reconsideration.
9. To put the argument in perspective, this article, in Section II, discusses sources of
functional immunity. It then briefly deals with arguments that support functional
immunity. Section III analyses jurisprudential and practical problems associated with
functional immunity. It also lays out normative arguments that may substan-tively affect
the application of immunity. Finally, it offers recommendations.
35. The sources of and reasons for functional immunity

II.A. The sources of functional immunity
10. Compared with sovereign immunity, organizational immunity is a recent
phenomenon. It developed, roughly, with the advent of international organizations.
Kunz traces immunity-conferring agreements back to the first half of the nineteenth
11
Jan Klabbers, The Changing Image of International Organizations, in: Jean-Marc Lociaud
and Veijo Heiskanem (eds.), The Legitimacy of International Organizations (2001), 222.
12
13
UN Charter, Preamble (1945).

Klabbers, above n.11, 255.
100
Chinese JIL (2011)
14
century. In his assessment, at least until 1939, immunity was a luxury at the
15
disposal of few. The 1940s experienced a shift in paradigm as several immu16
nity-conferring instruments began to proliferate in the international scene.
11. This section charts out different conventional sources that confer
immunity upon international organizations.
II.A.i. Conventional sources
12. This section discusses conventional sources of organizational immunity. These
17
are constitutions, General Multilateral Agreements on Immunity (GMAI) and
bilateral agreements. The discussion starts with constitutions [of international
organizations] and subsequently deals with multilateral and bilateral agreements.
II.A.i.a. Constitutions
13. Although constitutions may not squarely fit into the ordinary process of
18
inter-national legislation, they may be considered conventional sources. Since
the 1940s, it has become common for constitutions to contain one or more
19
provisions on immunity.
14. Article 105 of the UN Charter is by far the notable provision that elucidates
20
the relevance of immunity in constitutive instruments. The provision, inter alia,
14
Josef Kunz, Privileges and Immunities of International Organizations, 41 American JIL

(1947), 828 830.
15
16
Ibid.
17
Constitution, in this context, refers to a founding instrument of an international organization, which is alternatively referred to as constituent instrument.
18
For a similar analysis on the characteristics of constitutions, see Henry G. Schermers

and Niels M. Blokker, International Institutional Law (4th edn. 2003), 724.
19
H.F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional

Neces-sity Analysis of Their Legal Status and Immunities (1994), 123. Bekker states, [ .
. .] clauses concerning privileges and immunities can be found in the constituent
instruments of almost every international organization [. . .] the constituent instruments
of most international organizations now existing provide for at least the basic privileges
and immunities of the organization [. . .]. Ibid.
20
Art. 105 of the UN Charter reads:
Ibid. See also Michael Singer, Jurisdictional Immunity of International Organizations:

Human Rights and Functional Necessity Concerns, 53 Virginia JIL (1995 1996), 68.
1.
The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfillment of its purposes.
2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.
3. 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
conven-tions to the Members of the United Nations for this purpose.
since served as a model for similar
Bekker remarks that Article 105 has ever
provisions in the legal instruments of a wide
variety of international organizations. Ibid.,
127.
confers immunity to the UN as is necessary for the fulfillment of its purposes and
independent exercise of its functions. 21 A similar, if not identical, provision is stipulated in the Charter of OAS. It states that the organization shall enjoy in the territory of each Member such legal capacity, privileges and immunities as are necessary
for the exercise of its functions and the accomplishment of its purposes. 22
15. One can sense in these instruments an ardent desire to clad an

organization in a robust immunity. This is the first front of engagement that
opponents of absolute immunity must face in their intellectual combat. The
following are some of the structural defences that they have to face. Firstly,
constitutions are self-contained structures meant to achieve localized
expectations. This is evident in the process of negotiation and adoption of
constitutions. Constitutions are prepared through a bargaining process where
States strive to shape organizations in a way which reflects their orientations. In
this process, the interests of a third party is sidelined or, at most, kept minimal.
16. Few
documents would more aptly fit the aforementioned model than the UN
Charter. The Charter claims that its goal is to salvage humanity from the plight of war. It
would be nave, however, to assume that the drafters prepared it with absol-ute
benevolence towards humanity. In the first place, it is a victors charter, which is why
only five States have veto power. So how does this fit with the issue of immu-nity?
Firstly, one needs to remember the limited number of statesmen behind the
construction of the Charter. Furthermore, Bekker provides analysis on the travaux

23
preparatoires of Article 104 of the Charter. According to him, Subcommit-tee
IV/2, an offshoot Commission tasked to prepare the functioning provisions of the
24
Organization, had to be prudent in designing a provision that would not be as
25
flimsy as that of the League of Nations. According to H.F. Bekker:
21
22
Ibid.
23
This is further buttressed by a strong presumption that goes in favour of the

Organization. This is explicit in the ICJs advisory opinion in Reparation. The Court, in
Reparation, stated that upon examination of the functions entrusted to the Organization
and of the nature of the missions of its agents, it becomes clear that the capacity of the
Organization to exercise a measure of functional protection of its agents arises by
necessary intendment out of the Charter. Reparations for Injuries Suffered in the
Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 184.
24
25
Ibid.
Charter of the Organization of American States, 1609 U.N.T.S 119, art. 103. Art. 104 further
states, the Representatives of the Governments of the Council of the Organization, the
Representatives on the Organs of the Council, the personnel of their Delegations, as well as
the Secretary General and the Assistant Secretary General of the Organization, shall enjoy the
privileges and immunities necessary for the independent performance of their duties.
Art. 7 of the League of Nations, inter alia, states, representatives of the Members of the
League and officials of the League when engaged on the business of the League shall enjoy
diplomatic privileges and immunities. The buildings and other property occupied by the
League or its officials or by Representatives attending its meetings shall be inviolable.
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Chinese JIL (2011)
the report of the Rapporteur of Committee IV/2, as approved by the Committee, paragraph 1 laid down a rule binding all member States from the date
the Charter would enter into effect. The Committee further opined that the
rule set forth in paragraph 1 should apply in any circumstances, its authority
being in no way subordinate to the exercise by the General Assembly of its
power, under paragraph 3 of draft article 105, to make recommendations or
propose con-ventions to the member State for determining the details of the
application of paragraphs 1 and 2.
26
[Emphasis added.]
17. Bekkers observation brings relevant realities on how immunity provisions

are drafted and the stake that organizations attach to them. It would require a
modicum of intelligence to sense this from the work of Committee IV/2. The
final submission of the Commission is tailored in a way such that States may
not question the extent of the Organizations immunity in retrospect. This is
what the Rapporteur wrote:
the draft article proposed by the Committee does not specify the privileges
and immunities respect for which it imposes on member states [. . .] the
terms [. . .] indicate in a general way all that could be necessary to the realization of the purposes of the Organization [. . .] it would moreover have been
impossible to establish a list valid for all the member states [. . .] but if there
is one certain principle it is that no member state may hinder in any way the
working of the Organization or take any measures the effect of which might
27
be to increase its burdens, financial or other.
18. One may argue that this is a thing of the past and does not represent the larger
segment of international organizations, which were not established to balance delicate issues of power and politics as was the UN. It is a legitimate concern and
merits consideration. The analysis, however, comes with the following caveat.
Firstly, as Bekker has observed, the immunity provision of the UN Charter has been
28
a beacon to many organizations. Thus, whether consciously or unconsciously,

they bear the stain of the delicate draftsmanship of the provision.
19. Brower, in contrast, remarks, article 105 gave birth to a more limited breed
of international immunities based on the functional necessity doctrine. The
26
27
Bekker, above n.19, 125.
28
Ibid.
Ibid., 126 127. According to Bekker, the report of Committee IV/2 was approved by the
Coordination Committee and by Commission IV and the recommended draft provision contained therein, after its approval by the Conference at its ninth Plenary Session held on 25
June 1945, became Article 105 of the UN Charter. Ibid. See also Singer saying, this principle has provided the basis for unjustifiably broad claims of jurisdictional immunity on the
ground that any judgment against an international organization by a municipal court would
constitute a disposition of the organizations collective funds. Singer, above n.16, 85.
functional necessity doctrines underlying premise is simple and flows from

29
recipro-cal notions of good faith. The article concurs with Brower on the
limited breed nature of functional immunity. Functional immunity is supposed to
serve limited circumstances. This is, however, not aptly translated in practice.
International organizations, as far as immunity goes, have been unfaithful
contrary to the good faith expectation of Browerin their international dealings.
This is evident in the tenacity of international organizations, with the exception of
30
oper-ational or managing organizations, in claiming broad immunity.
20. One, thus, needs to look into constitutions to evaluate the status quo of
func-tional immunity. Klabbers wrote, the law of international organizations
31
seems to contain a built-in bias in favor of the organizations. Although it is
difficult to presume what these structures might be, it is rather convincing to
assume that con-stitutions are accomplices. Constitutions need to embody
caveats in their immunity clauses. This may be also done in secondary
instruments such as multilateral agreements.
II.A.i.b. General Multilateral Agreements on Immunity
21. GMAI are platforms whereon States place the nuts and bolts of
organizational immunity. They supplement generally constructed constitutional
32
provisions on immunity. GMAI incorporate specific rules on how an
organization may consum-mate its functional immunity. They also provide
insight into the intention of Member States on how they conceive immunity.
22. The following paragraphs briefly discuss the pertinent provisions of the
UN General Convention on the Privileges and Immunities of the UN (herein
after the General Convention).
23. The General Convention is one of the widely ratified immunity instru33
ments. It was adopted by the General Assembly at its first session on 13
34
February 1946 and entered into force on 17 September 1946. It provides
detailed rules on the immunity of the UN, its officials and experts in mission.
24. Article II, Section 2, of the General Convention confers immunity from
every form of legal process to the UN. The article triggered discussions as to its
consistency with the UN Charter. It has been mentioned that the Charter confers
immunity on the organization as are necessary for the fulfillment of its purposes.
Some interpret Article II to broaden the limits set by the Charter. Others oppose
29
30
31
32
33

Klabbers, above n.11.
Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13
February 1946.
34
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Chinese JIL (2011)
this and view the General Convention as overlapping with the immunity clause
of the Charter. For practical reasons, the latter must prevail over the General
Conven-tion. Furthermore, if one refers the travaux preparatoires of Article
105, it supports the fact that the latter is constructed along the lines of
functional, thus limited, immunity.
25. The UN maintains that it benefits from absolute immunity. It had voiced
this in several cases. Courts, for their part, are largely divided. Some interpret
both instruments to provide absolute immunity to the UN. Others maintain that
immunity is applicable only in cases that may impede the fulfilment of its
functions.
26. The General Convention also provides immunity to officials and experts
in missions of the UN. Article V, Section 18, states that officials enjoy
immunity from jurisdiction only with respect to their official acts and words
spoken or written in an official capacity. This would include officials who run
the daily activity of the organization. Article VI, Sections 22 and 23, confers
immunity to experts in missions of the UN. These are officials who assume
specific and temporary mandates from the UN. This class of immunity (as in
the case of officials) is limited to official functions and is effective for the
duration of the mission.
27. The application of these classes of immunity, as in the case of any immunity
regime, presupposes the existence of alternative dispute settlement. The General
Convention, in Article III, Section 29, provides that the United Nations shall make
provisions for appropriate modes of settlement of [. . .] disputes arising out
of contracts or other disputes of a private law character to which the United Nations
35
is a party. It is claimed that the UN has implemented Article 29 by incorporating
arbitration clauses into its purchase contracts, lease agreements, established public liability insurance against personal injury and other such routine
36
tort claims. Fair enough. Yet, these do not address claims that may arise from
its public actions. A case in point is the sanction-imposing procedure of the
37
Security Council. These and other issues are discussed in the subsequent
sections of the article.
28. It has been mentioned that the UN immunity regime has been a model for other
organizations. The General Agreement on Privileges and Immunities of the Council of
Europe (1949), for example, incorporates a similar provision. It provides
that [t]he Council, its property and assets, wheresoever located and by whomsoever
held, shall enjoy immunity from every form of legal process. 38 The Agreement on
35
36
37
General Convention, above n.33, art. III, Section 29.

Singer, above n.16, 85.
See Wilde, below n.118 and the accompanying text.
38
Privileges and Immunities of the Council of Europe (1949), ETS No. 2, art. 3.
Privileges and Immunities of OAS provides an identical provision in Article 2

39
of the convention. Relevant instruments of the AU hold similar provisions.
29. In a manner of reflection, GMAI are important instruments in spelling out the
extent and limit of organizational immunity. They set specific rules of engagement for
their respective organizations. By the same token, they demonstrate whether organizations are responsible species depending on how fairly they set their internal rules. This
may be measured in terms of the efficiency of dispute settlement mechanisms they
adopt and the quality of compensatory schemes they provide.
II.A.i.c. Bilateral agreement
30. Bilateral agreement is another conventional source that regulates the

interaction of an international organization at a domestic level. It provides
detailed and specific accommodating rules. As Bekker puts it:
[. . .] the other legal sources for granting the necessary privileges and immunities, i.e., constituent instruments, general agreements, domestic legislation
or customary international law, are not sufficiently specific for the regulation
of this kind of relationship. In relation to the host State the organization often
has a need for privileges and immunities of a wider scope and diversity than
those provided for in general multilateral agreements. Moreover, only by
means of a headquarters agreement can this special relationship be tuned in to
the particular circumstances which characterize a host State.
40
39
The article provides: the Organization and its Organs, their 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 the immunity has been expressly
waived. It is under-stood, however, that no such waiver of immunity shall make the said
property and assets subject to any measure of execution. Agreement on Privileges and
Immunities of the Organ-ization of American States, 05, 1949, 1438 U.N.T.S. 24376,
art. 2. See also Amerasinghe, above n.6, 319.
40
Bekker, above n.19, 136. See also Jan Klabbers, An Introduction to International Insti-tutional
Law (2002), 161. In contrast to the idea that headquarters agreement are bilateral agreements,
Kunz, supporting Jenks, challenges the conventional nature of these agreements. According
to Kunz, an agreement between the organization and the state of its seat, as the Swiss modus
vivendi of 1926, is equally not an adequate method. The legal nature of such agreement is
doubtful; it is not an international treaty; both parties can at any time renounce it in part or as
a whole. It leads only to an agreement with a single Member State and fails to afford a solid
legal foundation for the permanent independence of the international organ-ization. Kunz,
above n.14, 848. These remarks should, however, be seen in the light of the period they were
made. Perhaps, it would be difficult to foresee that international organiz-ations will have such
treaty-making powers at the time when Jenks and Kunz made the remarks. Given the
adoption of the Vienna Convention on Law of Treaties between Inter-national Organizations
and States and existence of wide practice, the status of headquarters agreement, as a binding
treaty, is not an issue. See Muller, below n.74; Schermers and Blokker, above n.18, 1072 and
1114.
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Chinese JIL (2011)
41
31. Bilateral agreement may be executed in different fashions. Headquarters

agree-ment is a common form of bilateral agreement that bears an immunity clause.
Among the first generation of bilateral agreements is the bilateral agreement
between the League of Nations and the Swiss Federal Council adopted based on
42
Switzerlands restrictive approach towards diplomatic personnel. The modus
vivendi, as it was, classifies the bureaucracy of the League into first and
43
second categories for immunity purposes. A more comprehensive bilateral
44
agreement was concluded between the United States and the UN.
32. In terms of design, bilateral agreements may be convenient platforms wherein a

State may negotiate a restrictive immunity regime. The context may allow it to be
in a better negotiation position than in a multilateral setting. Practice abounds,

45
however, to show that this is usually not the case.
33. Notable bilateral agreements include France International Police Organization (INTERPOL) and AU Ethiopia headquarters agreements. The newly
revised France INTERPOL agreement provides immunity to INTERPOL
46
except in private interactionsmainly contracts and motor vehicle accidents.
In an exemplary move, the agreement incorporates dispute settlement
47
48
procedures, which either are absent or loosely framed in other agreements.
34.The AU-Ethiopia headquarters agreement, on the other hand, incorporates a
distinct immunity regime. The agreement embodies functional immunity along with
49
mainstream immunity. According to the agreement, AU officials enjoy diplomatic immunity as accorded to diplomats by virtue of the Vienna Convention on
41
42
Ibid., 134 140.
43
44
45
Ibid.
46
Agreement between the INTERPOL and the Government of the French Republic
regarding INTERPOLs Headquarters in France, 3 November 1982 (as amended), GA
Res AGN/51/ RES/1.
47
Ibid., art. 24. The Permanent Court of Arbitration has jurisdiction over issues that
emanate from the headquarters agreement.
48
Several headquarters agreements provide dispute settlement procedures for issues that
arise from the interpretation or application of the agreement itself.
49
Agreement between the AU and the Federal Democratic Republic of Ethiopia on the
Head-quarters of the African Union, 25 April 2008. Art. 4 of the convention states, The
General Convention and the Vienna Convention shall be applicable mutatis mutandis to
Brower, above n.9, 13. The League initially concluded a provisional agreement with the
Swiss Federal Council on 17 July 1921, which gave its officials diplomatic privileges
and immu-nities. This was later replaced by the modus vivendi on 18 September 1926.
See Kunz, above n.14, 832.
Klabbers, above n.40, 163.
It looks as though international organizations, in many cases, manage to adopt favourable
agreements. This is visible in terms of the absence of robust dispute settlement mechanisms.
the AU, the Commission, its property, funds and assets, the headquarters, premises, and
facilities of the Commission.
50
Diplomatic Relations. It has to be noted that adopting such a broad immunity

51
regime may jeopardize local interests.
II.A.ii. Customary international law
35. The status of customary international law as a source of organizational

immu-nity is a controversial subject. It has been observed that immunity
52
developed along conventional sources. It has also been noted that its
development, as a post-World War II phenomenon, is solidified by the UN
immunity regime. As is widely docu-mented, owing to universal ratification of
the General Convention, the functional immunity regime of the UN may have
attained the status of customary international law.
36. The issue, however, goes beyond examining the customary status of the
UN. One must inquire whether the whole discipline, in its own right, has
attained similar status. Scholarship is divided. Bekker, for example, argues that
the status of the General Convention does not reflect the customary status of
functional immunity as a whole. Brower, on the other hand, writes:
In substance, the General Conventions provisions on jurisdictional immunity
have been applied to other organizations and non-member states through the
development of similar treaties and customary international law. For
example, most of the major international organizations adopted the General
Conven-tion as a model for their own treaties, which provide for
jurisdictional immu-nity on substantially the same terms. Furthermore, some
influential writers and courts argue that the General Convention and its
progeny have matured into rules of customary international law. For instance,
the United Nations Legal Counsel asserts that the General Convention
consists part of the customary law governing relations between the United
Nations and all member states. Other writers assert that the General
Convention reflects a cus-tomary law that presumptively applies to a broader
range of international organization.
53
50
Ibid. Art. 14. Art. 14 states that the Chairperson, the Deputy Chairperson, the Commissioners, and Officials of the Commission of Professional 4 (P4) rank and above shall
have, in respect of themselves, their spouses and dependent children such privileges and
immu-nities as are accorded under the Vienna Convention and the General Convention.
51
Although diplomatic immunity (as enshrined in the Vienna Convention on Diplomatic

Relations) and the jurisprudence of organizational immunity share some communality, it
is unfitting to put them in one context. Amerasinghe states, the immunities and
privileges accorded to this category [international organizations] are generally very
similar to those accorded to diplomatic agents but with rather greater emphasis on the
functional basis of the privileges and immunities. Amerasinghe, above n.6, 315.
52
53
See above n.14 et seq. and the accompanying texts.

108
Chinese JIL (2011)
37. It is difficult to imagine the bondage that Brower is trying to construct. He

tries to tie the customary status of the General Convention to the entire
jurisprudence of functional immunity. There is no substantial evidence that
establishes that the relationship is more than a borrowing of ideas. This has also
to be seen in the light of the cynicism that some hold in relation to the
customary nature of the whole immunity regime.
38. Henry Schermers, for example, writes, the uncertainty about the lack of its
precise scope and content decreases somewhat the utility of customary international
law as a solid legal basis for granting privileges and immunities to international
54
organizations in general. Singer similarly argues, although customary law on
the jurisdictional immunity of the United Nations is relatively well developed, there
is little persuasive evidence of customary norms delimiting the jurisdictional
immunities of other specific international organizations, or of international
55
organ-izations in general.
39. It must also be carefully considered, including in the case of the UN,
which segment of immunity has assumed customary status. In the case of the
UN, for example, assume that its immunity has attained customary status. From
this, it is difficult to deduce functional immunity, as a whole, has attained the
status of cus-tomary international law. Secondly, one needs to differentiate
between the custom-ary nature of functional immunity and its scope. This is to
note that the assumption of customary international law hardly says anything as
to its scope. The customary nature of the UNs immunity, for example, does not
necessarily reflect the extent of its immunity.
II.A.iii. Domestic legislation
40. Domestic laws may regulate immunity. As in the case of bilateral agreements,
domestic legislation governs the interaction of an organization in a domestic
context. Domestic immunity instruments embody principles that are usually
enshrined in international immunity instruments. They reiterate standard provisions
and domesticate relevant issues that are common to these instruments. One of these
instruments is the International Organizations Immunities Act (IOIA).
41. The IOIA governs functional immunity in the United States. 56 It sets the privileges and immunities that organizations enjoy within the mentioned jurisdiction. The
immunity clause of the instrument has been at the centre of controversy. The provision
dictates that international organizations shall enjoy the same immunity from suit and
every form of judicial process as is enjoyed by foreign governments. 57
54
55
56
Schermers, as quoted in Bekker, above n.19.

United States International Organizations Immunities Act, 29 December 1945, 22
U.S.C., Section 288.
57
Ibid. Section 2, para.B.
There are discussions over whether the provision bears jure imperi-juri
gestionis dis-tinction. At any rate, the governance of immunity at a domestic
level is a delicate issue where a government has to maintain a balance between
domestic and inter-national interests.
II.B. Reasons for granting functional immunity

42. The rationale for conferring immunity is widely documented. Repeating it
in its entirety in this piece is unnecessary. The following paragraphs provide a
brief dis-cussion thereof.
II.B.i. Independence of international organizations
43. The necessity of protecting organizational independence is one of the reasons
why international organizations claim immunity. Independence is considered both a
58
requirement and a necessity in the jurisprudence of international organiz-ations.

The requirement of organizational independence is aptly described by James
Lorimer, who said, international organizations belong to all member states and to
none. According to proponents of organizational immunity, organiz-ational
independence may be safeguarded if an organization carries out the common
interest of its Member States. To keep this balance, it needs to be free from any
form of influence. According to them, being subject to domestic court may vitiate
this balance. This is because judiciaries may become proxies by which States gain
extra avenues to influence organizational activity.
44. Independence is also an embodiment of the equality of Member States.

Member States may be considered shareholders that maintain separate
identities from that of the organization. They own equal shares with equal
distribution of power both in terms of management and decision-making. The
exercise of judicial authority therefore may run contrary to the maintenance of
equality. Immunity therefore serves as a stabilizing mechanism, allowing
Member States to exercise sovereign authority on an equal footing.
45. Maintenance of equality may in turn influence the legitimacy of an international organization. The exercise of judicial power by a domestic court may
leave an impression that the international organization is but an instrument of a
State. This may overshadow its impartiality and ultimately its legitimacy.
II.B.ii. The functional argument
46. It is widely held that international organizations need immunity to function.

Immunity allows them to operate with ease in difficult environments. Absence
thereof may place them in a difficult position, as they may be overwhelmed by
a flood of cases, in which case many may be baseless.
58
See Schermers and Blokker, above n.18, 252; Amerasinghe, above n.6, 320; Kunz,
above n.14.
110 Chinese JIL (2011)

47. The functional argument may be tied with efficiency. International
organiz-ations are meant to carry out specific objective(s). Thus, they need to
be efficient in terms of the resourcesboth temporal and financialthat they
spend in dischar-ging their objectives. Immunity, as stated above, allows them
to mobilize their resources and live up to expectations of Member States.
II.B.iii. Structural limitations of international organizations
48. International organizations lack many attributes of statehood. They have,

inter alia, neither a territory of their own nor a judiciary to which they can
resort. As far as territory goes, organizations depend on sovereign States to
operate. Dependence comes with limitations. States allow organizations to
operate in a limited context, both geographically and operationally. Thus, they
do not have the same luxury of space as that of States.
49. Organizations also lack judicial institutions of their own. This limits the
possibility of initiating a legal action. It is argued that States may bring legal
action in their courts if their interest is violated. Organizations are, however,
unable to, or, at the very least, find great difficulty in bringing one.
II.B.iv. Of pride and prejudice
50. Functional immunity is also justified on grounds of pride and prestige. It

has been mentioned that lack of immunity may open a floodgate of baseless
claims. This, it is claimed, may undermine the pride of international
organizations. Fur-thermore, there is an argument that domestic courts may not
be neutral in cases that involve international organizations. The concern is that
courts may consider organizations as foreign elements whose interest should be
secondary to local ones. As it is widely argued, international organizations are
justified in claiming restrictive immunity for functional purposes. Nevertheless,
it is difficult to read this in the prevailing practice. International organizations
often tend to claim absol-ute immunity. The apparent lack of consensus on the
very definition and scope of functional immunity further complicates the
problem. The following part discusses these issues in length.
III. Jurisprudential and practical problems with functional

immunity
III.A. Attendant issues in functional immunity
on the part of international organizations,
51. It has been observed that functional
to claim broad immunity. This defies the
immunity is a restrictive concept. It has
basic tenet of functional immunity that
been also noted that there is a tendency,
59
dictates immunity must fit the functional needs of an organization.

Furthermore, waiver is rarely utilized and alternative dispute settlement
60
mechanisms are either weak or non-existent. All these factors necessitate a
revisit of its legal science to identify its ills.
52. This part first unfolds the discrepancy between law and practice as
regards functional immunity. It explains how functional immunity is applied in
practice. Furthermore, it illustrates how functional immunity should be
understood and applied.
III.A.i. Romanticizing functionality
53. There is a measure of rationality in the function-based argument in favour

of immunity. This is explicit in legal instruments, which demand immunity as
61
strictly necessary for the exercise of [organizational] functions. This is,
however, not necessarily what practice holds. August Reinisch and Ulf Andreas
Weber described the phenomenon by saying international organizations are
said to enjoy functional immunity, the immunity necessary to ensure their
independent functioning. However, what appears like a restrictive concept of
immunity, in practice turns out to be a fairly broad and almost unlimited
62
immunity from the jurisdiction of national courts.
54. The following paragraphs show the extent to which organizations claim
immunity beyond ordinary limits. They also demonstrate how the functionality
rationale is losing its validity due to expansive claims.
55. In Dupree Associates Inc. v. OAS, the plaintiffs brought action against the
63
Secretariat of the OAS seeking damages for breach of service contract. The
Secretariat requested that the US District Court dismiss the case on the ground
that the organization is immune from judicial action. It based its argu-ment on
the IOIA, which, allegedly, provides international organizations the same level
of immunityabsolute immunityas sovereigns. The Court rejected the
Secretariats argument by saying, inter alia, that the legal action arose from a
59
Emmanuel Gaillard and Isabelle Pingel-Lenuzza, International Organizations and

Immunity from Jurisdiction: To Restrict or to Bypass, 51 ICLQ (2002), 2.
60
Ibid. Gaillard and Pingel-Lenuzza observe, according to the dominant theory, it is the
exist-ence of these alternative means of dispute resolution that justifies the absolute
character of the immunity of international organizations, for the reason that they
neutralize this absolute charter. Ibid., 2 3.
61
62
63
Dupree Associates Inc. v. OAS, US District Court for the District of Columbia, 31 May
1977, 22 June 1977, 63 ILR (1982), 92.
August Reinisch and Ulf Andreas Weber, In the Shadow of Waite and Kennedy: The
Juris-dictional Immunity of International Organizations, the Individuals Right of Access
to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement,
1 Inter-national Organization LR (2004), 59.
112
Chinese JIL (2011)
commercial activity of the organization, and it was therefore not immune from
64
suit.
56. The US District Court for the Southern District of New York revisited the
65
rationale of UN immunity in U.S. v. Melekh. The defendant, a Russian citizen,
66
was charged for acts of espionage. The Court rejected the application of Article
105 of the UN Charter and the General Convention to the defendant by saying:
The language of Article 105 of the United Nations Charter, its legislative
history and the intention of its draftsmen refute completely the defendant
Melekhs contention that the immunity granted by Article 105 is similar to
the immunities granted to ambassadors and public ministers through the
civilized world, including specifically immunity from jurisdiction.
Assuming the argument that Article 105 is a decretal provision, the Court is
of the view that the defendant Melekh does not come even remotely within its
protective reach. The alleged acts forming the subject of the indictment were
patently not necessary for the fulfillment of the United Nations
purposes, nor were they necessary for the independent exercise of the
functions of Member States representatives and United Nations officials in
connection with the United Nations) Organization.
67
57. Melekh demonstrates the extent to which functional immunity may be taken
to illogical limits. By the same token, it endorses a restrictive reading of
immunity provision.
58. Along the same lines, Italian courts have, to a large extent, been vocal in
68
challenging broad immunity claims. In INPDAI v. FAO, the defendant rented

a building owned by the plaintiff in Rome. The latter requested the Italian
Court of Cassation to decide that the organization pay a higher rent. FAO
objected to the jurisdiction of the Court based on, inter alia, the fact that it had
69
immunity from legal action. The Court rejected the objection on the ground
that the organization cannot claim immunity in private contracts such as the one
at issue.
59. In Cynthia Brazak and Nasr Ishak v. the UN et al., the UN and several top
officials were sued, inter alia, for sexual harassment in a US District Court.
64
65
66
67
68
Ibid.
69
70
Ibid.
70
The
U.S. v. Melekh, 190 F. Supp. 67 (S.D.N.Y. 1960).

Ibid.
Ibid.
Istituto Nazionale di Previdenza Per l Dirigent Di AziEnde INDUSTRIALI (INPDAI) v.
FAO, Supreme Court of Cassation, 18 October 1982, UNJYB (1982), 234.
Cynthia Brazak and Nasr Ishak v. the UN et al., 06 Civ. 3432 (RWS). In the course of the
proceedings, the US District Attorney for Southern District of New York wrote to the Court
defendant objected to the jurisdiction of the Court on grounds of absolute immunity. The Court ruled in favour of the defendant. On March 2010, the US Court of
Appeals for the Second Circuit affirmed the decision on similar grounds. The Court
interpreted the UN Charter and the General Convention to confer absolute immunity to the UN. It is difficult to relate the Courts ruling to the functionality argument. It becomes absurd if one tries to assess the necessity of the alleged act with
the function of the organization. A similar, if not identical, decision was given in
Mothers of Srebrenica.
60. In Mothers of Srebrenica, the Dutch Government argued that the UN is
immune in a case relating to a compensation claim for an alleged failure of the
71
latter to avert the commission of genocide. The Court held that the absolute
72
immunity of the UN is established in international law practice. Although few
would dispute the customary status of UN immunity (if that is what the Court is
referring to), the Court should have, primarily, tried to discern immunity of the UN
from conventional sources. This is because, as previously noted, the assumption of
customary law may not help in determining the extent of immunity. Secondly, the
Court should have rigorously analysed the functional utility, rather than taking a
wholesale approach, of immunity in respect of the alleged act.
61. The foregoing cases highlight an inflated reading, and at times application, of
functional immunity. As one can easily sense, it looks as if there is a delusion
73
on the meaning of functional immunity.
62. In the same vein, the romance with functional immunity is not limited
to a finite number of cases. It is a syndrome that is noticeable in a long line of
cases that involve international organizations. The reader, hopefully, would
have sensed this in the following discussions.
III.A.ii. Delusion on the meaning of functionality
63. One of the glaring problems in the discourse of organizational immunity is the
absence of uniform understanding of functional immunity. This is noticeable
supporting the immunity claim of the UN and its officials. According to the letter, [. . .]
the UN [. . .] is absolutely immune from suit and legal process in the absence of an
express waiver.
71
See below n.94 and the accompanying text. The Dutch Government based its argument
on art. 104 of the UN Charter, which mandates Member States to safeguard privileges
and immunities in their domestic courts.
72
73
Ibid., 5 13.
Klabbers argues, the functional needs of organizations are worthy of protection, and
perhaps more so than the needs of others, requires some form of justification, yet none
has so far been forthcoming. Of course, the argument may be made (and has been made)
that people enga-ging in some sort of relationship with an organization are, and should
be, well aware of the organizations immunities, but that answer, if valid at all (it may be
seen to ignore economic considerations), surely cannot extend to those who end up on
the wrong side, of say, a traffic accident. Klabbers, above n.40, 152.
114
Chinese JIL (2011)
both in judicial decisions, as unfolded in the last section, and in scholarship. As far
scholarship goes, Muller, for example, writes, an international organization is
entitled to immunities to the extent that it requires them for the effective fulfillment
74
of its tasks. Singer for his part argues, an organization is entitled to no more
75
privileges and immunities than it strictly needs. Bekker, on the other hand,
favours immunity that is commensurate with the objective of an organization. He
envisages an immunity pyramid where the UN sits at the top:
[. . .] the United Nations is at the top of the pyramid of privileges and immunities to be accorded to international organizations. The privileges and immunities which have been granted to the United Nations may therefore be used
as a maximum standard in determining whether a given organization has a
similar need for protection. The other extreme is an organization which performs purely commercial functions, entering the marketplace seeking customers for its industrial goods and services. The latter type of organization
probably has no justified need for any privileges and immunities at all, provided that the exclusion from certain privileges and immunities does not
prevent such organization from effectively exercising its functions.
76
64. Bekker sets the highs and lows of functional immunity. His proposal may
poten-tially lead to the creation of a class of immunities. This may enable an
organization to claim immunity, regardless of how necessary it is, due to the fact
that a peer organization claimed so. The AU, for example, may claim the same level
of immu-nity as, say, the EU regardless of the nature of the specific issue.
65. One may argue that the word function/al is itself elusive, and thus susceptible to different interpretations. This holds a measure of truth. As suggested by
some, an epistemological approach does not fill this void. The INPDAI v. FAO
Court, for example, could have reached a different, and perhaps an absurd, conclusion had it analysed the economic implication of paying higher rent to the defendant. It is fitting for the FAO to be immune from jurisdiction, say, in a claim that
arises from its plan to support an agrarian community in a Member State. The
same, however, may not apply to a payment claim brought by an owner of a vehicle
which the organization hired to execute its plan in the Member State.
66.
Regrettably, the ICJ has not substantively dealt with the scope of functional immu-
nity. Nor has it, on primary bases, decided if it is absolute or restrictive. The closest that the
ICJ came to these issues was in the two advisory opinions it rendered relating to the applicability of the General Convention to two Special Rapporteurs of the UN.
74
75
A.S. Muller, International Organizations and Their Host States (1995), 151.
Singer, above n.16.
76
67. The Mazilu Advisory Opinion does not shed much light on the issue
77
under discussion. The Court was limited to providing an opinion on temporal
78
and loci application of the General Convention. It nevertheless painted a hazy
79
picture thereof in Cumaraswamy.
68. The Cumaraswamy Opinion, as far as immunity goes, is relevant in two aspects:
in terms of methodology and standard. As far as methodology is concerned, the Courts
opinion that the determination whether an agent of the Organization
has acted in the course of the performance of his mission depends upon the
80
facts of a particular case sets a significant precedent in highlighting that
there is no whole-sale approach to functional immunity.
69. In terms of setting standards, the Court took a cautious approach by
81
analysing the Secretary-Generals (SG) findings. It did so by writing :
As is clear from the written and oral pleadings of the United Nations, the
Secretary-General was reinforced in this view by the fact that it has
become standard practice of Special Rapporteurs of the Commission to
have contact with the media. This practice was confirmed by the High
Commissioner for Human Rights who, in a letter dated 2 October 1998,
included in the dossier, wrote that: it is more common than not for
Special Rappor-teurs to speak to the press about matters pertaining to
their investigations, thereby keeping the general public informed of their
82
work. [Emphasis added.]
70. This paragraph triggers two questions. Firstly, it looks as if the Court is
attaching considerable weight to the role of the SG to decide matters of
immunity. It is argu-able to what extent the SG has the power to determine
whether an action of a Rap-porteur merits immunity.
71. Bekker, on the other hand, criticizes the opinion for doing little to support the
83
cause of the UN. According to him, the opinion sets an unfavourable trend, as it
has left the door open for national courts to disagree with the Secretary-
77
Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 177.
78
Ibid., 193. See also Bekker, below n.83. Bekker said, [. . .] the Mazilu Opinion did not consider the question of the application of section 22 in the case of Mr. Mazilu, the range of
privileges and immunities he was entitled to in what circumstances, or who should determine
whether a Special Rapporteur enjoys immunity in a given case. Ibid., 919.
79
Difference relating to Immunity from Legal Process of a Special Rapporteur of the

Commis-sion on Human Rights, Advisory Opinion, ICJ Reports 1999, 62.
80
81
82
83
Ibid., 52.
Ibid., 53.
Ibid.
Peter Bekker, Difference relating to Immunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights Advisory Opinion, 93 American JIL (1999), 919 920.
116
Chinese JIL (2011)
84
General. He further argues that the Court should have based its opinion on
the role assigned to him the SG in the General Convention, his responsibility
under the United Nations Charter, international practice binding on United
Nations Member States, and international jurisprudence, either explicitly or
85
implicitly. Failure to affirm the SGs power would, in Bekkers terms, be
usurp-ing responsibilities of the SG under section 23, making a mockery out of
86
that provision.
72. It is difficult to establish the connection between Section 23 and the
87
power of the SG, as apparently noted by Bekker. Section 23 empowers the
88
SG, exclusively, to waive immunity. In the light of this, it seems far-reaching
to state that the pro-vision empowers the SG to decide on matters with
substantive implication. Setting aside the issue of treaty compliance, the
opinion puts functional immunity in unsafe hands.
73. Empowering (or implying the empowerment of ) the SG to decide on substantive matters potentially leaves immunity unattended at the hands of an international organization (in this case, the UN). The SG may ardently protect the latter
with a tight immunity barricade. In the light of this, it may be difficult, if not
impossible, to establish a case against the UN, not to mention against the SG
himself. Therefore, it should be up to a judiciary and not a bureaucrat to decide
substantive issues of immunity. Making it a bureaucratic exercise may encou-rage
the adoption of elusive standards that fit local interests.
74. Generally, the Court, in Cumaraswamy, could have discussed, in length, the
standard that has to be employed in deciding when functional immunity may be
84
85
86
87
Ibid., 919 920.
88
Section 23 reads, privileges and immunities are granted to experts in the interests of the
United Nations and not for the personal benefit of the individuals themselves. The Sec-retaryGeneral shall have the right and the duty to waive the immunity of any expert in any case
where, in his opinion, the immunity would impede the course of justice and it can be waived
without prejudice to the interests of the United Nations. In contrast, see Section 30 of the
General Convention. It reads, all differences arising out of the interpret-ation or application
of the present convention shall be referred to the International Court of Justice, unless in any
case it is agreed by the parties to have recourse to another mode of settle-ment. If a difference
arises between the United Nations on the one hand and a Member on the other hand, a request
shall be made for an advisory opinion on any legal question involved in accordance with
Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the
Ibid., 920.
Ibid., 920 921.
Ibid., 920. Bekker lambasted the Court for failing to establish the power of the SG to
decide on matters of immunity. According to him, to answer the central question of the
Secretary-Generals authority when asserting immunity, which is not settled by the
actual terms of the General Convention. Yet, see his subsequent argument which holds
art. 23 as the source of the SGs power to determine questions of immunity.
Court shall be accepted as decisive by the parties.
claimed. Instead, the Court took a fine thread path by cautiously couching its
89
words.
III.B. Trading between norms

75. International law is a set of norms. It is also, among other things, a system
of hierarchya normative hierarchy. Within this arrangement, a norm has a
value. Its value determines its status vis-a`-vis other norms. As a norm of
international law, functional immunity must have a place and a value in the
hierarchical landscape of international law.
76. The following sections aim at placing functional immunity in its proper
loci. It does this by approaching it from two norms of international law which
usually come at odds with absolute immunity. These are human rights and
international responsibility.
III.B.i. Human rights
77. The field of human rights has been the new frontier for challenging immunity
defences. These defences have been triggered in disputes that involve both States and
international organizations.90 Arguments are based on the conviction that human rights,
as norms of international law, are non-derogable for immunity consider-ations. The
following paragraphs continue the discourse by examining how the human rights
immunity interface should be managed. It has to be mentioned that these discussions
overlap with those made in relation to sovereign immunity. Many have cautioned the
inappropriateness of importing either an argument or a conclusion from main stream
immunity.91 Suffice it to say that human rights, for many reasons, are a set of values
that bridge the rift between the two concepts.
78. It is imperative first to set the context. Human rights, within the context of
international organizations, may be triggered at least in two instances. Firstly, an
ordinary activity of international organization may fall short of meeting human
rights standards. A case in point is the emerging criticism of the Security Councils
sanction imposing procedures,
92
listing or delisting of terrorist or
89
Compare this with the Arrest Warrant judgment where the Court made an in-depth
exam-ination into the scope of functional immunity of a Foreign Minister.
90
See Lee M. Caplan, State Immunity, Human Rights and Jus Cogens: A Critique of the
Nor-mative Hierarchy Theory, 97 American JIL (2003), 741 791. See also
Orakhelashvili, below n.97, 320 358.
91
Efforts aimed at drawing parallelism between sovereign immunity and organizational

immu-nity via jure imperii-jure gestionis have been described by Robert Jennings as
unnecessary and illogical.
92
For a detailed discussion on the issue of due process in the Security Councils sessions, see
Bardo Fassbender, Targeted Sanctions Imposed by the United Nations Security Council and
Due Process Rights, 3 International Organizations LR (2006), 437 485. See also the World
Summit Outcome Document, GA Res 60/1 of September 2005. The Resolution called upon
the Security Council with the support of the Secretary-General to ensure
118
Chinese JIL (2011)
93
94
terrorist-supporting entities
and compensation claims.
Similarly, the
ordinary activity of an organization may indirectly implicate individual or
95
group rights. Secondly, the act of claiming immunity itself interfaces with
96
human rights, notably the right of access to court.
79. It is in the above-stated mode that immunity exists at cross-purposes with
human rights. This impasse has to be resolved in the light of the position of
these norms in the vertical structure of international law. It goes without saying
that human rights are values, to say the least, which are at the forefront of
domestic and international protection. Relevant instruments are usually framed
in a manda-tory fashion. There is a growing trend that advocates their non97
derogable charac-ter. Orakhelashvili, for example, argues that the whole
corpus of human rights is part of jus cogens. According to him:
The argument that all human rights are part of jus cogens is not without merit
and to what extent that is true should be demonstrated by individual examination of rights. Substantive criteria to identify peremptory human rights are
the same as general criteria of identification of jus cogens: (1) whether a right
protects the community interest transcending the individual State inter-est;
(2) whether the derogation from such right is prevented by its nonbilateralizable character. This perspective does not exclude that all human
rights can be part of jus cogens. In any case, it is clear that the scope of jus
cogens in human rights law is not limited to rights designated as nonderogable under treaty instruments. Therefore, certain derogable rights can
be peremp-tory. This is clear with regard to due process guarantees and the
right to fair trial, as well as the freedom from illegal deprivation of liberty.
98
80. In addition, the fact that the customary status of immunity is, to a considerable
99
extent, disputed entrenches the opposite argument. It has to be noted that the
that fair and clear procedures exist for placing individuals and entities on sanctions lists
and for removing them, as well as for granting humanitarian exemptions. GA Res 60/1,
para.109.
93
See Ramses A. Wessel, Editorial: The UN, the EU and Jus Cogens, 3 International
Organ-izations LR (2006), 1 6.
94
Mothers of Srebrenica et al. v. State of the Netherlands and UN, The District Court of
The Hague, Judgment of 10 July 2008.
95
Enrique R. Carrasco and Alison K. Guernsey, The World Banks Inspection Panel:
Promot-ing True Accountability through Arbitration, 41 Cornell ILJ (2008), 578.
96
This has been largely the case with employment disputes. For a detailed discussion on
due process rights in employment relations, see August Reinisch, The Immunity of
International Organizations and the Jurisdiction of Their Administrative Tribunals, 7
Chinese JIL (2008), 285 306.
97
98
Alexander Orakhelashvili, Peremptory Norms in International Law (2006), 53.

Ibid., 59 60.
99
See n.54 et seq. and the accompanying text.
assumption of customary law may not necessarily be a litmus for jus cogens.
The con-trary, however, proves the ability of States to dissent, a notion alien to
jus cogens. The Al-Adsani decision and the criticism that ensued further
highlight the elusive nature of immunity.
81. Al-Adsani triggered discussions on the relationship between human rightsas a

jus cogens normand (sovereign) immunity.100 It involved an action, inter alia, for the
abrogation of sovereign immunity of the State of Kuwait and held it liable for acts
of torture. The plaintiff based his argument on the jus cogens status of human rights. 101
The European Court of Human Rights (ECtHR), in a much criticized way, rejected the
plaintiffs argument by affirming the sovereign immunity of the defendant State. 102 The
Court argued that allowing torture to take precedence in a civil suit would implicate a
sovereigns absolute immunity from execution of a judg-ment. 103 The Court could take
a safe and sensible path by treating jurisdictional and execution immunity separately.
Although it is beyond the scope of this article to deal
on immunity from execution, suffice it to say that acknowledgement, on the part of

104
the ECtHR, of the peremptory character of torture could resolve all impasses.
82. In an illuminating experience, the human rights nexus of international organ105
izations action came under spotlight in Kadi. The case relates to a claim made
for the abrogation of European Council Regulation that gives effect to Security
106
Council Resolution 1267 (1999).
The Resolution calls UN Member States to
impose sanctions on persons and entities associated with Al-Qaeda and the Afghan
(Taliban) Government. The European Council acted upon the Resolution by,
inter alia, freezing the assets of the applicants. The latter submitted that the
107
men-tioned Resolution violates their fundamental right for a fair trial.
100 Al-Adsani v. The United Kingdom (Appeal No. 35763/97), Judgment of 21 November
2001, ECHR, 34 EHRR (2002), 11.
101
102
Lee M. Caplan, above n.90, 741 742.
See Orakhelashvili, above n.97, 326. Orakhelashvili criticized the judgment of the
Court by stating, the treatment by the Court of the rationale of State immunity is
surprisingly short in space, and represents the Court as thinking of something which is
very well and clearly estab-lished in international law, both in scope and effects. Ibid.
103
Caplan, above n.90, 742. See also his remarks along with his general observation
which states, because a violation of jus cogens norm entails absolute illegality, it is
wrong to justify it on grounds of sovereign immunity. Ibid.
104
This position was held by the minority of the Court who opined, the acceptance [.
. .] of the jus cogens nature of the prohibition of torture entails that a State allegedly
violating it cannot invoke hierarchically lower rules to avoid the consequences of the
illegality of its actions. Ibid.
105
Yassin Abdullah Kadi v. Council of the European Union and Commission of the
European Communities, Case T-315-01, Judgment of the Court of First Instance
(Second Chamber, extended composition) of 21 September 2005.
106
Ibid., European Council Regulation, No. 881/2002 of 27 May 2002.
107
Ibid.
120 Chinese JIL (2011)

83. The Court of First Instance of the ECJ rejected the applicants argument on
the ground that the Regulation was ordained by the Security Council. Accordingly,
the Court stated, the Commissions law is subordinate to Security Council Resol108
ution pursuant to Articles 24 and 103 of the UN Charter. Furthermore, the Court
treated the right to a fair trial as a derogable norm. It stated this by reasoning that
109
the relevant Resolution aims at preserving international peace and security. The
Court then related this with the possibility of derogating the right to a fair trial for
110
emergency reasons in a domestic legal system. This line of reasoning could put
most Security Council resolutions beyond the reach of judicial scrutiny. This is
because the Councils resolutions usually relate to addressing international secur-ity
concerns at global hotspots, which usually require the calling of extraordinary or
emergency sessions.
84. The Grand Chamber of the ECJ, in a carefully choreographed decision (to
avoid implication of reviewing Security Councils action), criticized the judgment
for considering the claim as a challenge to the Resolution of the Security
111
Council. The Court noted that
[. . .] immunity from jurisdiction for the contested regulation with regard
to the review of its compatibility with fundamental rights, arising from
the alleged absolute primacy of the resolutions of the Security Council to
which that measure is designed to give effect, find any basis in the place
that obligations under the Charter of the United Nations would occupy in
the hierarchy of norms within the community legal order if those
112
obligations were to be classified in that hierarchy.
85. The Court underscored the absence of opportunity to be heard in the sessions of the
Sanctions Committee. It, in a significant move, underscored that neither the possibility
of application nor the review and re-examination procedures of the Sanc-tions
Committee guarantee the right to a fair trial.113 This resonates with the Waite
108 Yassin Abdeulla Kadi v. Council and Commission, above n.105. In a rather bold
approach, the First Instance Court stated, the Court is empowered to check, indirectly,
the lawfulness of the resolutions of the Security Council in question with regard to jus
cogens, understood as a body of higher rules of public international law binding on all
subjects of international law, including the bodies of the United Nations, and from
which no derogation is possible. Ibid., 226.
109
110
111
Ibid.
112
Ibid., 305.
Ibid., 245, 247 and 286 et seq.
Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the

European Union and Commission of the European Communities, C-402/05 P and C415/05 P (Joined Cases), 3 September 2008, European Court of Justice, para.327.
113
Ibid., 322.
114
and Kennedy rule as developed by the ECtHR, based upon which the Court may
exercise jurisdiction in the absence of reasonable alternative dispute settlement.
86. The Kadi cases, however, do not involve issues of immunity. Yet they show
the fact that immunity may have procedural and substantive relevance in cases that
involve international organizations. Going back to Kadi, one can see several stains
where the Court of Justice has indeed evaluated the relevant resolution in the light
of human rights standards. Its reference, inter alia, to the inadequacy of the revised
working procedures of the Sanctions Committee attests to this.
87. Domestic courts may borrow the wisdom of Kadi. August Reinisch has noted
that there are indications that some municipal courts are rethinking the absolute
115
immunity of international organizations.
Domestic courts need to sense the
human rights implications of granting broad immunity. Similarly, individuals
should be able to challenge domestic instruments that aim to implement decisions
of organizations. This would allow courts not only to safeguard fundamental rights
of individuals but also to shape the behaviour of organizations from the shadows.
88. There are, however, instances which may not squarely fit within the
human rights argument. These may arise under the guise of contractual or
extra-contractual claims. The next section approaches these issues from the
perspective of responsibility.
III.B.ii. International responsibility
89. This section charts out the relevance of international responsibility in

shaping absolute immunity claims. It is an established principle of international
law that an internationally wrongful act entails responsibility. An embodiment
of this is the decades-long work of the International Law Commission (ILC) on
States and international organizations responsibility.
90. The ILC, at its 54th session (2002), decided to take up the issue of respon-sibility
of international organizations. Accordingly, it managed to adopt, on first reading, 66
articles dealing on the international responsibility of international organizations. It is
fair to say that both draft articles share substantial jurisprudential basis, at least on the
core provisions. This is, for example, manifest in Articles 3 and 1 of the draft articles on
the responsibility of international organizations and States, respectively. Article 3 states,
every internationally wrongful act of an international
114 Waite and Kennedy v. Germany of 18 February 1999, Reports of Judgments and
Decisions [European Court of Human Rights] 1999. See also August Reinisch and Ulf
Andreas Weber, In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of
International Organ-izations, the Individuals Right of Access to the Courts and
Administrative Tribunals as Alternative Means of Dispute Settlement, 1 International
Organizations LR (2004), 59 110, Reinisch, above n.96.
115
A. Reinisch, Administrative Tribunals and Questions of Jurisdictions and

Immunity, United Nations Administrative Tribunal Conference (2007), 71.
122
Chinese JIL (2011)
organization entails the international responsibility of the international

116
organization.
91.There is hardly an implication, in both draft instruments, that the
assumption of responsibility is subordinate to other norms of international law,
including immunity.
92. Bestowing absolute immunity runs contrary to the notion of international

responsibility. It defies its raison detre by eliminating the possibility of redress.
This might also potentially lead to impunity, a phenomenon ruled out by the
117
ICJ in the Arrest Warrant case.
93. Furthermore, the possibility of the state of impunity must be seen from
the perspective of the increasing role of international organizations. As pointed
out at the outset, international organizations are more active than ever. They are
becoming operational and not mere platforms of cooperation. This has the
effect of creating a class of victims whose causes may not be addressed by
existing legal apparatuses. A fitting example is claims that may arise from the
UNs role in the administration of territories in transition.
94. The UN is assuming an administrative role in territories in transition. It has

so far been involved, in the same capacity, in East Timor, Kosovo and Bosnia and
Herzegovina. These activities go beyond the traditional role of the UN. Nevertheless, these administrative structures tend to claim the immunity that the UN nor118
mally claims.
This is despite the absence of effective alternative dispute
119
settlement procedures. When they adopt one, it largely accommodates contrac120
tual and tortuous claims, which is hardly compatible with their broad authority.
116 First Report on Responsibility of International Organizations (Doc.A/CN.4/532), para.2

(untreaty.un.org/ilc/reports/2003/english/chp4.pdf (last accessed 17 January 2011)). The
ILC, in its commentary to art. 3, states that the the general principle, as stated in article
3, are modeled on those applicable to States according to articles 1 and 2 of the articles
on the responsibility of State for internationally wrongful acts. Araujo states that the
need to held international organizations accountable necessitated the adoption of
responsibility rules. Such sentiment, which ensued from mistakes. . . based on selfaggrandizement or departure from the core functions and objectives of the institutions
that are contained within fundamental texts. These departures have earned increased
scrutiny and intensified the call for accountability borrowing from the concept of
international responsibility to which other persons under international law, usually
States have been held. Robert J. Araujo, Objective Meaning of Constituent Instruments
and Responsibility of International Organizations, in: Maurizio Ragazzi (ed.),
International Responsibility Today (2005), 343 344.
117 Arrest Warrant, above n.89, para.60.
118 Ralph Wilde, Accountability and International Actors in Bosnia and Herzegovina,
Kosovo and East Timor, 7 ILSA JICL (2006), 456.
119 See n.32 et seq. and the accompanying texts.
120
According to Wilde, the best that the UN did to address claims is by establishing
ombuds-man offices in Kosovo and East Timer. Wilde, above n.118, 456.
95. The immunity responsibility nexus has also been haunting the UN in its
tra-ditional roles, notably during peacekeeping operations. Peacekeeping
operations usually precede civilian administration. In the absence of a
legitimate authority (in the area of operation) or a hostile one, the UN may not
be required to sign SOFA, peacekeeping rules of engagement with potential
dispute settlement clause(s). Although it may not squarely fit to this scenario,
Mothers of Srebrenica raises most of these issues.
96. Mothers of Srebrenica (UN in absentia) relates to a compensation claim against
the Dutch Government and the UN. Families of the 1995 victims of massacre in the
121
Eastern Bosnian enclave of Srebrenica brought the suit.

Srebrenica was under
UN peacekeeping forces (a Dutch battalion) sheltering Bosnian Herzegovinian
refu-gees. It was later abandoned and fell into the hands of the Bosnian Serb army.
The latter then executed Bosnian Muslim men at the enclave. The Dutch Government argued in favour of UN immunity. A District Court at The Hague accepted
the Governments argument. An appellate court also confirmed the judgment on

122
similar grounds.
97. Speaking on substance, the question whether the UN can be (civilly) liable
for failing to avert the commission of genocide may be controversial. The case,
potentially, negates ICJs opinion in Cumaraswamy, which says the question of
immunity from legal process is distinct from the issue of compensation for any
damages incurred as a result of acts performed by the United Nations or by its
123
agents acting in their official capacity. One can also find similar references in
Reparation.
98. Reparation is often presented as a source of personality and rights for the UN
in particular and international organizations in general. The opinion, nevertheless,
attributes duty to international organizations. In the relevant part, the opinion states
that [. . .] members, by entrusting certain functions to it, with the attendant duties
and responsibilities, have clothed it with the competence required to enable
124
those functions to be effectively discharged.
99. International personality, largely the creation of Reparation, in its own right,
should entail both rights and duties of an international organization. As a result, a
claimant should be able to claim reparation from an international organization, just
121 Mothers of Srebrenica, above n.94.
122
123
124
Ibid.
Cumaraswamy, above n.79, para.66.
Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, ICJ Reports 1949, 174. See the ILC commentary on the Draft articles on
Responsibility of States for Internationally Wrongful Acts, which confirms the relevance
of the principle of respon-sibility to international organizations by stating, it may be
that the notion of responsibility for wrongful conduct is a basic element in the
possession of international legal personality. Ibid., 34.
124
Chinese JIL (2011)
as an international organization should be able to claim reparation from the

injuring party. In short, international personality is a double-edged sword.
100. Perhaps one can rebut these arguments on the ground that organizational
immunity, in its strict functional sense, is lex specialis. As such, it derogates the
assumption of international responsibility. Nevertheless, as argued in the last
section, the non-derogative nature of functional immunity is not established either
in treaty or in judicial precedence. As Ian Brownlie persuasively notes, the
formation of an international organization cannot result in some species of erga
125
omnes limitation of responsibility, or immunity, in relation to non-members.
101.
A policy argument can also be made in relation to the implications of absol-ute

immunity to general international law. The absence of a system that allocates
responsibility may negatively affect the fragile state of international law. A negative
perception may lead to the very situation that it tries to avoid. As Sienho Yee notes in
another context, the absence of any ultimate or last resort institution in the anar-
chical international legal system may leave the victims saddled with risks and
126
injury alone. In such a circumstance, the role of jurisdictional immunity of
inter-national organizations is nothing but a factor that instigates attempts of
127
vengeance and a spiral of violence and chaos.
Thus, the normative
requirement of respon-sibility salvages the international legal order from being
dragged into the wilderness. It tames the behaviour of international
organizations in such a way that they can soundly interact with other subjects of
international law. This is a dividend that is exclusive not only to the
international legal order but also to international organ-izations themselves.
III.B.iii. Organizational efficiency
102. This section presents a two-fold quasi-managerial proposition. The first

wing of the proposition argues that absolute immunity may create a publicrelations flap. The second part analyses how a functionality/efficiency
argument may be recon-ciled with immunity.
103. It has been noted that absolute immunity limits access to justice for those who
interact with international organizations. This may not be appealing or saleable to an
ordinary person. International organizations need to understand the behaviour of the
international community. Similarly, they need political and moral endorse-ment from it.
A big segment of the international community is not aware of the complex nature of
international law. Similarly, few understand the labyrinth of
125 Ian Brownlie, The Responsibility of States for the Acts of International Organizations,
in: Maurizio Ragazzi (ed.), International Responsibility Today (2005), 359.
126 Sienho Yee, The Responsibility of States Members of an International Organization for Its
Conduct as a Result of Membership or Their Normal Conduct Associated with Member-ship,
in: Maurizio Ragazzi (ed.), International Responsibility Today (2005), 448.
127 Ibid.
international judicial process. Thus, if the behaviour of international organizations,

during a judicial process, fails to appeal to their audience, they may have difficulty in
preserving their legitimacy. This is notwithstanding how neatly judgments are delivered. The Mothers of Srebrenica judgment, for example, may not be convincing to an
ordinary person. For an ordinary person, the case is all about the UN being impli-cated
in a crime which it is founded to prevent. The same can be said about States.
104.States tend to protect the interests of their nationals. It is natural if they act with
a sense of remorse when the values that they stand to protect are compromised. As such,
they may let international organizations operate in a difficult environment. A case in
point is Kadi. Kadi sets an important precedent in the sense that regional laws may be
invalidated if they fail to meet human rights standards, notwithstanding the potency of
Security Council Resolutions. Accordingly, if Member States undo laws (or are not
willing to) that give effect to the Councils Resolutions, the latter (and the UN at large)
may lose an important partner as far as sanctions go.
105. The same can be said about municipal courts. It goes without saying
that public perception has an important role in shaping judicial behaviour.
Accordingly, courts may, with time, take a cautious approach to avoid public
sensitivity that comes with failure to attribute accountability. Thus, they may
opt to systematically establish the responsibility of organizations.
106. One may challenge the efficiency argument by stating that it potentially
opens a floodgate of claims that may cost substantial resource to an international
organization. This is one of the traditional arguments made for retaining immu128
nity.
As widely observed, such assertions are not supported by empirical
evidence. In addition, the financial resource that a judicial action requires is by
itself a deter-rent factor. Few would dare to institute unfounded claims against
an organization, which usually is financially well-placed. Furthermore, the
development of the law on sovereign immunity from absolute immunity to
restrictive immunity provides a lesson that there is no relationship between
restrictive immunity and the prolifer-ation of meritless claims.
107. It has been mentioned that organizations claim immunity for efficiency
reasons. In the absence of immunity, they claim, it is difficult to meet their objec-tives.
Thus, they have been endowed with functional immunity. It has been also equally
established that some of their actions may violate human rights norms. These issues
need to be seen through the lens of the efficiency argument. Efficiency should not only
be limited to judicious performance of organizational objectives. It needs to be gauged
how efficiently an international organization interacts with its external environment.
Compromising human rights and being unwilling to remedy it cannot be, by any
measure, a positive indication of efficiency. Defaulting from a legal process, say, an
allegation of sexual harassment, runs contrary to the
128 See Singer, above n.16, 130;
Reinisch, above n.62.
126
Chinese JIL (2011)
efficiency interest of the international organization itself. Employing the

efficiency argument for the sake of claiming immunity and not utilizing it both
internally and externally is not only irrational but also immoral.
III.B.iv. The way forward
108. This section provides general observation on attendant problems in the

under-standing and application of organizational immunity. It lays out ways
that inter-national organizations have to understand functional immunity. It also
proposes how the interface between superior norms of international law and
immunity may be managed.
III.B.iv.a. The psychological factor: giving up an old habit
109. It is difficult to give up an old habit. It is also necessary to make rational
decisions. Organizations need to consider judicial scrutiny like an audit inspection
in a corporate setting. The inspection may not thwart their role as managers or as a
board of managers, as the case may be. Instead, judicial accountability enables
them to meet statutory and moral expectation of their shareholders and business
partners. It harnesses their credibility and assists them in forging better working
relationships on the international plane. This finds proof in the impact that Kadi
made to the proceedings of the Sanctions Committee.
110. Along the same lines, international organizations need to have faith in judicial institutions. The fear of bias or prejudice is unfounded as these institutions (at
all jurisdictional levels) are presumed to be neutral. Otherwise, they may resort to
the ordinary procedure of appeal or review, as the case may be.
III.B.iv.b. Laying the foundation
111. Institutional instruments have a significant role in setting the bounds of

organ-izational immunity. The process of adopting immunity clauses needs to
be recon-sidered. It goes without saying that the preparation of organizational
instruments is the domain of the sovereigns. Yet, allowing non-State entities to
do so may help in forging reasonable immunity standards. In an effort to, say,
establish an organization that regulates fishing in a region, the participation of
representatives of the fishing community of the area or interest groups may
provide important input in balancing the needs of the organization and those
who may be affected by its activity.
112. International organizations also need to clearly define the bounds of
their immunity. Furthermore, waiver and dispute settlement clauses need to be
adopted in a mandatory fashion.
III.B.iv.c. The conceptual element
113. Functional immunity is inherentlyabsolute is both yes and no. It is

limited. The response to the question absolute to the extent that it is purely
whether functional immunity isfunctional and does not interface with
norms that are
higher than itself. It would be contrary to the principle of immunity to adhere to

a wholesale approach in this regard. This, however, does not exclude the
drawing of broad lines that set how it should be applied.
114.For purposes of immunity, claims may be categorized into three classes.

The first class may constitute a set of claims that arise from activities that are not
related with the ordinary (functional) activity of an organization. This may include
con-tractual or non-contractual claims or any other claim that does not have a direct
or indirect link with the core objective of the organization. International organizations should not, normally, claim immunity in such cases.
115. Perhaps, there are some murky issues that need to be addressed at this juncture. These issues include: Shall all cases that relate to contract or extra-contractual
claims (or claims that are not directly related with the ordinary activity of an organization) not be immune? How can this be reconciled with the functional/efficiency requirement? The discretionary function exception, as understood within
the context of sovereign immunity, may be relevant to remedying these issues.
116. In fact, the suggestion to adopt the discretionary exception in the context of
international organizations is not new. Limiting functional immunity to discretionary or policy function has been asserted, although in broad terms, by scholars. As
far as the specifics go, discretionary or policy functions should be exempted. In an
illustrative way, an organization may not be sued for adopting a specific
employment policy, say, on retirement. This, however, should not bar an employee
from challen-ging the circumstance that leads to his retirement.
117. The second class may include claims that arise incidentally from ordinary
(functional) activities of an organization. Such phenomena may occur either unintentionally or by negligence during the performance of the ordinary activity. Cases
in point include those that emanate from peacekeeping operations of the UN, and
environmental or social impacts of projects financed and managed by operational
organizations. An organization should not claim immunity for such issues.
118. The third class of cases may encompass actions that typically fall within the
ordinary activity of an organization. Organizations should normally enjoy immunity in these cases, subject to its compatibility with higher norms of international
law. If the activity or the act of claiming immunity itself conflicts with a norm
higher in order, then it should not be immune to the extent of the contradiction. It is
important to mention the relevance of establishing proper jurisdiction at this stage.
Courtseither municipal or internationalmay exercise jurisdiction over such
cases only after ensuring a proper jurisdictional link with the case.
119. The forgoing arrangement does not re-write the concept of immunity. It
merely sheds light on how judicial institutions should understand and accordingly
apply functional immunity. It should also be noted that these guidelines apply
exclusively on the procedural level. In other words, the establishment of liability
should very much depend on primary rules of either municipal or international law.
128
Chinese JIL (2011)
III.B.iv.d. Can in-house justice be an alternative?

120. Normally, international organizations are required to establish alternative dispute
settlement mechanisms. This is intended to counter-balance the immunity that they
enjoy. The existence of such avenues eases the tension between immunity and the rule
of law. Existing mechanisms have met many forms of criticism. Internal employment
dispute settlement mechanisms have been criticized on efficiency and neutrality
grounds. The World Bank Inspection Panel (an internal inspection mech-anism set up to
audit the Banks performance), for example, is criticized for having mere investigative
functions and being insufficiently open to third parties. Neverthe-less, the experience
accumulated in the employment sector may be used to establish similar institutions at an
organizational level. Such institutions should, however, be designed in a way that they
meet minimum human rights standards.
IV. Conclusion
121. The attendant problems in the prevailing practice of functional immunity
are three-fold. Primarily, international organizations are taking functional
immunity to irrational limits. This, potentially, is in tension with other norms of
international law. This is where the second element lies. Its interface with other
norms, some of which are superior in nature, requires rectification. The
increasing role of inter-national organizations further compels one to revisit the
jurisprudence of functional immunity. International organizations are no longer
like those which pioneered the discipline. Their interaction with the external
environment is on too big a scale to ignore.
122.
In the same vein, it is imperative to see arguments aimed at restricting organizational immunity from the perspective of the general trend of sovereign immunity.
The current state of sovereign immunity is a watered-down version of its original form.
Practical considerations pressured the system to make necessary adjustments. There are
also growing indications that sovereign immunity is in constant evolution (towards
restriction). Despite the existence of justified reasons, a revision of organ-izational
immunity is nowhere in sight. It is high time to revisit the wisdom of the status quo and
face the pessimism that is associated with restrictive immunity.
123. Restrictive immunity may induce international organizations to act with

fidelity in the international plane. To this end, their engagement needs to be placed
in its proper context. Hence, arguments that call for restrictive immunity should not
be read as a cynical approach to them and to what they stand for. Instead, it should
be perceived as a wake-up call to international organizations to give up old habits
and act as reliable members of the international community.

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# The Author 2011. Published by Oxford University Press.

All rights reserved

The State of Functional

Lakshman Marasinghe, The Modern Law of Sovereignty Immunity, 54 The Modern LR

Chinese JIL (2011)

sense, excludes a sovereign from the application of legislative, judicial and

Brownlie, above n.5, 327.

Brower, above n.4, 3 5.

Gaillard and Pingel-Lenuzza, below n.59, 16.

Tesfagabir, The State of Functional Immunity 99

to embody many of the characteristics traditionally associated with big

7. Immunity has been the subject of debate both in scholarship and in

when many traditional elements of the law of international organization are

35. The sources of and reasons for functional immunity

UN Charter, Preamble (1945).

Chinese JIL (2011)

Josef Kunz, Privileges and Immunities of International Organizations, 41 American JIL

For a similar analysis on the characteristics of constitutions, see Henry G. Schermers

H.F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional

Art. 105 of the UN Charter reads:

Ibid. See also Michael Singer, Jurisdictional Immunity of International Organizations:

3. The General Assembly may make recommendations with a view to determining

variety of international organizations. Ibid.,

Tesfagabir, The State of Functional Immunity 101

15. One can sense in these instruments an ardent desire to clad an

construction of the Charter. Furthermore, Bekker provides analysis on the travaux

This is further buttressed by a strong presumption that goes in favour of the

Chinese JIL (2011)

17. Bekkers observation brings relevant realities on how immunity provisions

be to increase its burdens, financial or other.

a beacon to many organizations. Thus, whether consciously or unconsciously,

Bekker, above n.19, 125.

Tesfagabir, The State of Functional Immunity 103

functional necessity doctrines underlying premise is simple and flows from

Brower, above n.4, 3 5.

Bekker, above n.19, 131.

Chinese JIL (2011)

General Convention, above n.33, art. III, Section 29.

Tesfagabir, The State of Functional Immunity 105

Privileges and Immunities of OAS provides an identical provision in Article 2

II.A.i.c. Bilateral agreement

30. Bilateral agreement is another conventional source that regulates the

Chinese JIL (2011)

31. Bilateral agreement may be executed in different fashions. Headquarters

32. In terms of design, bilateral agreements may be convenient platforms wherein a

in a better negotiation position than in a multilateral setting. Practice abounds,

Ibid., 134 140.

Tesfagabir, The State of Functional Immunity 107

Diplomatic Relations. It has to be noted that adopting such a broad immunity

II.A.ii. Customary international law

35. The status of customary international law as a source of organizational

Although diplomatic immunity (as enshrined in the Vienna Convention on Diplomatic

See above n.14 et seq. and the accompanying texts.

Chinese JIL (2011)

37. It is difficult to imagine the bondage that Brower is trying to construct. He

Schermers, as quoted in Bekker, above n.19.

Ibid. Section 2, para.B.

Tesfagabir, The State of Functional Immunity 109

II.B. Reasons for granting functional immunity

requirement and a necessity in the jurisprudence of international organiz-ations.

44. Independence is also an embodiment of the equality of Member States.

46. It is widely held that international organizations need immunity to function.

110 Chinese JIL (2011)