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Beer and Regan v Germany, App. No. 28934/95 and Waite and Kennedy v Germany, App. No. 26083/94, European Court of Human Rights, 18 February 1999

Thore Neumann and Anne Peters

Relevance of the case

The two decisions were the first in which an international human rights court commented on the conflict between immunities of international organizations before domestic courts and the human rights-based obligation of states to provide individuals with access to a court. The ECtHR reviewed the domestic court’s act of granting immunity to an international organization against art. 6(1) ECHR. It employed an ‘alternative means test’, that is, it inquired whether the aggrieved party had means other than access to state courts at its disposal to pursue its claims. In performing a human rights review, the ECtHR departed from the traditional paradigm of international organizations’ absolute immunity which would dispense international organizations under all possible circumstances from domestic judicial proceedings and enforcement, typically on the basis of broad treaty provisions (in statutes, headquarter agreements, etc.) to that effect.

Since the rendering of the two judgments, the alternative means-test has become a key concept in the law of organizational immunities in Europe. The ECtHR’s judgments have considerably influenced domestic case-law in this area. At the same time, the relative openness and ambiguity of the judgments as to some core aspects of the alternative means rationale have prevented the development of a homogeneous domestic case-law in this field.

I. The facts of the case

The cases were launched by two computer experts, respectively, who had, over a couple of years, performed services at the European Space Agency’s (ESA) Operations Centre in Darmstadt, Germany. The applicants had not been hired directly by ESA. Rather, they had been placed at ESA’s disposal as part of a scheme of contractual relations between ESA, a sub-company controlled by ESA, and external service providers. When contracts were cancelled between the external service providers, this scheme broke down. This would have terminated the applicants’ work at ESA.

The applicants hence tried to avail themselves of the benefits of the German Provision of Labour (Temporary Staff) Act (Arbeitnehmeruberlassungsgesetz), a statute which is meant to protect workers who are hired out by one legal entity to another. This law contains a provision according to which, under certain circumstances, an employment relationship between the transferee of the employees, that is the receiving legal entity, and the transferred employee is created by means of a legal fiction. The applicants argued that they had become staff members of ESA on the basis of this provision.

Their action for declaratory relief to this effect before the German courts was rejected as inadmissible on the basis of ESA’s immunity from jurisdiction. This was confirmed in last instance by the German Federal Employment Court (Bundesarbeitsgericht). The applicants hence argued before the European Commission of Human Rights that the German courts’ refusal to entertain their claims due to ESA’s immunity from jurisdiction violated their right of access to a court under art. 6 (1) ECHR. When the European Commission of Human Rights rejected their application in its reports of 2 December 1997, the applicants filed a suit before the ECtHR.

II. The legal questions

The main legal questions of this case were (1) whether and under what conditions a domestic court’s act granting immunity from jurisdiction to an international organization violates a private party’s right of access to a court under art. 6 (1) ECHR,

(2) which role the availability of a reasonable alternative means of dispute settlement for private parties should play in this context, and (3) which type of alternative means could satisfy the requirements of art. 6 (1) ECHR in the face of organizational immunities.

III. Excerpts

  • 59. The Court recalls that the right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved [...].
  • •]
  • 63. Like the Commission, the Court points out that the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments.

The immunity from jurisdiction commonly accorded by States to international organisations under the organisations’ constituent instruments or supplementary agreements is a long-standing practice established in the interest of the good working of these organisations. The importance of this practice is enhanced by a trend towards extending and strengthening international cooperation in all domains of modern society.

Against this background, the Court finds that the rule of immunity from jurisdiction, which the German courts applied to ESA in the present case, has a legitimate objective.

64. As to the issue of proportionality, the Court must assess the contested limitation placed on Article 6 in the light of the particular circumstances of the case.

[...]

  • 67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial [...].
  • 68. For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.
  • 69. The ESA Convention, together with its Annex I, expressly provides for various modes of settlement of private-law disputes, in staff matters as well as in other litigation [...].

Since the applicants argued an employment relationship with ESA, they could and should have had recourse to the ESA Appeals Board. In accordance with Regulation 33 § 1 of the ESA Staff Regulations, the ESA Appeals Board, which is “independent of the Agency”, has jurisdiction “to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member” [...].

[...]

  • 70. Moreover, it is in principle open to temporary workers to seek redress from the firms that have employed them and hired them out. Relying on general labour regulations or, more particularly, on the German Provision of Labour (Temporary Staff) Act, temporary workers can file claims in damages against such firms. In such court proceedings, a judicial clarification of the nature of the labour relationship can be obtained. [...]
  • 71. The significant feature of the instant case is that the applicants [...] attempted to obtain recognition of permanent employment by ESA on the basis of the above- mentioned special German legislation for the regulation of the German labour market.
  • 72. [.] [B]earing in mind the legitimate aim of immunities of international organisations [...], the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the Court’s view, thwart the proper functioning of international organisations [...].
  • 73. In view of all these circumstances, the Court finds that, in giving effect to the immunity from jurisdiction of ESA on the basis of section 20(2) of the Courts Act, the German courts did not exceed their margin of appreciation. Taking into account in particular the alternative means of legal process available to the applicants, it cannot be said that the limitation on their access to the German courts with regard to ESA impaired the essence of their “right to a court” or was disproportionate for the purposes of Article 6 § 1 of the Convention.
  • 74. Accordingly, there has been no violation of that provision.

IV. Commentary

A. Waite and Kennedy and the ‘human rights approach’ to organizational immunities

The centrepiece of Waite and Kennedy1 is the notion that an international organization should in principle only enjoy immunity before domestic courts if it provides an alternative means of dispute settlement for individuals seeking redress against it. This solution provides an escape to the structural dilemma[1] [2] of (in the context of international organizations usually sweeping) immunities versus the human rights law-based obligations of states to grant individuals access to a court.[3] Admittedly, an alternative means cannot be a fully fledged substitute for state courts reviewing a claim by an aggrieved individual.[4] However, in view of the significant public interests associated with granting immunities to international organizations, it may be an acceptable disadvantage for a claimant to be referred to an alternative means of dispute settlement. The ECtHR did not apply or refer to any reglement des litiges clause (i.e. treaty obligations which require an organization to establish a dispute settlement mechanism for certain disputes) when identifying the alternative means question as a basic proportionality factor. It referred to the reglement des litiges clause only when checking ESA’s alternative means against its previously stated requirement. This suggests the applicability of the alternative means test independently of whether positive legal obligations require an organization to set up an internal dispute settlement mechanism in a given case or not.

The ECtHR’s approach has both procedural and substantive legal consequences. Procedurally, domestic courts must engage in an incidental scrutiny of whether an alternative means exists, is available, and fulfils certain quality criteria.[5] Plaintiffs are advised to first exhaust remedies within an organization before turning to state courts.6 Moreover, the ECtHR’s approach should be interpreted as establishing a presumption of a disproportionate restriction of the applicant’s right to a remedy where an alternative means does not exist, is not available, or lacks core quality standards.7 Arguably, the functions of such a presumption would not be limited to an allocation of the burden of proof. At ECtHR level, the proportionality of an interference with the Convention must be substantiated by the state anyway. The presumption would also substantively guide the judicial margin of appreciation (of the ECtHR or domestic courts) when applying the proportionality principle and weighing the conflicting interests.

In terms of substance, Waite and Kennedy suggests that when an alternative means is not available and other aspects do not militate in favour of upholding immunity, the domestic act granting immunities violates the Convention. This appears to imply that in such a case, the obligations of the forum state emanating from art. 6 ECHR should supersede the state’s (treaty- or customary-1 aw-based) obligations to respect the immunity of the organization.8 However, the ECtHR has so far never found a domestic act awarding immunity to an international organization to actually violate the Convention. Hence, the Court so far did not need to explain and construe any possible overriding effect of state obligations flowing from art. 6(1) ECHR over those emanating from the law of immunities. Neither has the Court, so far, decided on the type of remedies to be granted by the state for a violation of art. 6 ECHR (restitution in form of granting access to a court? Monetary compensation?).9

The ECtHR did not tread unchartered territory in 1999. The existence and quality of an alternative means of legal protection as part of a human rights based review of domestic acts granting immunity had been—with nuances and in more or less concrete terms—already examined prior to Waite and Kennedy by domestic courts, for of International Organizations Before Domestic Courts: Recent Trends’, (2010) 7 International Organizations Law Review 121, 132.

  • 6 E.J. Habscheid, ‘Immunitat internationaler Organisationen und Art. 6 I EMRK (insbesondere zum Rechtsschutz der Bediensteten)’, in R.A. Schutze (ed.), Einheit und Vielfalt des Rechts: Festschrift fur Reinhold Geimer (Munchen, Beck 2002), pp. 255-76, 272. See also ECtHR, Chapman v Belgium, App. No. 39619/06, 5 March 2013, paras 54, 55.
  • 7 T. Neumann/A. Peters, ‘Switzerland’, in A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford University Press 2013), pp. 241-74, 252, with reference, inter alia, to E. Gaillard/I. Pingel-Lenuzza, ‘International Organisations and Immunity from Jurisdiction: To Restrict or to Bypass’, (2002) 51 International and Comparative Law Quarterly 1-15, 15. But see J.F. Flauss, ‘Droit des immunites et protection internationale des droits de l’homme’, (2009) 10 Revue Suisse de droit international et de droit europeen 299, 322, who interprets the ECtHR’s perfunctory review of the alternative means in Waite and Kennedy as being tantamount to a ‘de facto presumption of conventionality’ of granting immunity.
  • 8 See C. Ryngaert (n. 5), 134. Contra such an interpretation N. Angelet/A. Weerts, ‘Les immunites des organisations internationales face a l’article 6 de la Convention europeenne des droits de l’homme’, (2007) Journal du Droit International 26, 5: it is not within the ECtHR’s competence to decide the conflict. See further, for example, C. Dominice, ‘Observations sur le contentieux des organisations internationales avec des personnes privees’, (1999) 45 Annuaire frangais de droit international 623, 638-9, 646, who (normatively) argues that the right of access to a court has attained ius cogens status and thereby makes immunities provisions inapplicable (not null and void) in case of a violation.
  • 9 Pavoni (n. 3), 110.

example in Argentina, Germany, Greece, Italy, or Switzerland.[6] [7] [8] [9] [10] [11] [12] It cannot be ascertained to what degree, or if at all, the ECtHR (or the European Commission of Human Rights) in fact took notice of domestic ‘precedents’." Insights into this issue cannot be gleaned from the party submissions before the ECtHR/2 as they do not make explicit references to any domestic case law in this regard. The only identifiable source of influence is the preceding German Federal Employment Court’s judgment in Waite and Kennedy of 1993/3 That court had examined whether the German implementing law of the ESA Convention (and ESA’s immunity) infringed upon core requirements of German constitutional law (including the constitutional guarantee of judicial protection). The German Federal Employment Court, just like the ECtHR later, inter alia found that ESA’s employees could turn to ESA’s appeals board, and that hired-out workers could possibly pursue claims against the companies which had hired them out to ESA. This satisfied the minimum requirements of German constitutional law. That part of the German Federal Employment Court’s decision stands in the tradition of the German Federal Constitutional Court’s Eurocontrol II decision of 1981, relating to a different international organization."

B. The merits and de-merits of Waite and Kennedy

What, then, if not the novelty of the basic idea, accounts for the immense attention Waite and Kennedy has received? Arguably, the decision’s merits are both of a doctrinal and of a sociological nature. First, one relative innovation can be seen in the ECtHR’s doctrinal reconceptualization of the long-existing quid pro quo-rationale (immunity in exchange for an alternative means of dispute settlement) as a pivotal consideration of proportionality in the context of a human rights screening of organizational immunities cases. Integrating the alternative means question into the proportionality test is arguably advantageous from the perspective of the Court. First, it provides a convincing doctrinal peg upon which to hang its review of the reglement des litiges clauses in headquarter agreements and other rules governing the establishment and organization of an alternative means/5 Such norms do not belong to the pool of law formally applicable by the Court. Second, this provided the Court with a flexible tool to tackle very different types of organizational immunities cases/6 The proportionality solution may amount to a justificatory scheme for ‘balancing away’, in a given case, the non-availability or the qualitative flaws of an alternative means of redress. If the

ECtHR (or a domestic court in the ECtHR’s footsteps) finds an alternative mechanism to be non-existent, unavailable, or at fault with basic quality requirements, it can still negate an art. 6 ECHR violation and uphold immunity if other proportionality factors warrant this.[13]

Making the alternative means test a question of proportionality can also be criticized— both conceptually and in the context of this concrete case. In conceptual terms, it may be inadequate to squeeze such an important aspect as the (alternative) protection for individuals into a ‘give-and-take’—or compromise-based balancing scheme. This may lead to dubious statements about the alternative means and its qualities. For example, as indicated above, a manifest lack of independence of an alternative body can be outbalanced by important reasons supporting immunity (i.e. where an international organization fulfils particularly important tasks of the public interest, etc.). Thereby, however, a core value of international due process and of good adjudicatory governance, namely the independence of (quasi-)adjudicatory bodies, is de facto subjected to a single case- dependent relativism. As an element of proportionality, the independence of the alternative means becomes more or less important, hinging on individual case-related factors. This could translate into the following proposition: the more important an international organization for the fulfilment of elementary public tasks at the international level is, etc., the less independent its administrative tribunal may be. Such conclusions may seem a natural consequence of the application of the proportionality principle and the entanglement of immunity and the alternative means under this principle’s auspices. Still, such possible inferences may send the wrong message to certain international organizations and devalue international procedural guarantees.

As to this concrete case, the Court has (rightly) attracted criticism, inter alia, for having generally weighted too lightly the individuals’ right of access to a court, given its importance for the rule of law and the right’s universal normative status/[14] Also, the Court was too perfunctory in the performance of the alternative means test/[15] The ECtHR’s rather limited review of the alternative means appears to echo, in some respects, the German Federal Employment Court’s limited scrutiny of the alternative means in its Waite and Kennedy decision of 1993.[16] While this demonstrates that the ECtHR’s approach respects the margin of appreciation, it can also be criticized with the argument that the ECtHR should interpret the Convention autonomously.

In any case, the open-endedness of the ECtHR’s proportionality approach makes it vulnerable for a misuse by domestic courts. The vaguer the general standards for an alternative means, the greater is the danger that courts use the test to (unduly) justify immunities by declaring them compatible with whatever standard suits the particular case and the particular organization.[17] Typically, states have strong political interests in hosting international organizations, and this is evidenced by the usually intense competition between states for the position as host state. The concomitant desire to provide a smooth working environment for an organization may lead to a certain bias on the part of the host state government in favour of immunity. In states built on a separation of powers, domestic courts may not necessarily adopt such governmental biases. Still, due to domestic courts’ possible deference to their government’s conduct of foreign affairs, courts might also suffer from a certain predisposition in favour of immunity. Reference to the Waite and Kennedy case-law, in its openness and flexibility, may then serve as a vehicle for masking up political motives for upholding immunities with legal considerations. Coated in the lacquer of purportedly neutral proportionality rhetoric,[18] [19] [20] [21] [22] domestic decisions in favour of immunity which are based on an incomplete, result-oriented, or biased review of an alternative means could represent a novel (and more subtle) variant of ‘absolute immunity’.

From a sociology of law-perspective, the ECtHR at least stabilized the trend and catalyzed the already ongoing discourses among academics, practitioners, and some domestic courts to attach to an organization’s status before domestic courts its own provision of alternative (quasi-)judicial protection to individuals” In the succeeding years, a number of European domestic courts took over and/or adapted the basic approach of the ECtHR and entered into a ‘vertical’ judicial dialogue with the ECtHR” The authority of Waite and Kennedy flows from the ECtHR’s role as the highest organ to review Convention-based claims, and is maybe also owed to the fact that the court (indirectly) judged on a matter of international institutional life of which it forms a part itself and on which it is therefore particularly knowledgeable and credible.

C. Waite and Kennedy as a motor for the constitutionalization of international organizations?

From a systemic perspective, the ECtHR’s dicta can be understood as fuelling compensatory constititionalization processes of international organizations” The conferral of powers to international organizations creates the risk that those may curtail and violate individual rights. At the same time, the exercise of such powers falls outside the scope of domestic constitutional confines or, for the sake of the functioning of the organization, is immunized against domestic control measures. The control and accountability vacuum thus created normatively calls for compensatory measures, preferably in form of an adequate own accountability infrastructure of international organizations.” Such calls are more than mere policy arguments where domestic constitutional requirements and obligations arising from constitution-supplementing international treaties such as the ECHR legally condition (immunity-granting) acts by domestic authorities. Via the ‘hinge’ of a domestic conferral of immunities to an international organization—in itself an exercise of domestic public power—Convention- based and possibly domestic constitutional standards are indirectly projected upon the organization. If the latter wants to keep its immunity, it must adapt its dispute settlement procedures accordingly and create and maintain a compensatory accountability infrastructure.[23]

Whether the constitutionalization impulse given by Waite and Kennedy has—in an empirically measurable fashion—triggered a general, pan-i nstitutional amelioration of organizational standards of internal review cannot easily be determined. On the one hand, comprehensive data on institutional reforms of dispute settlement systems in international organizations is lacking so far. On the other hand, other factors may influence processes of institutional remodelling of administrative tribunals (or other mechanisms of dispute settlement), such as the desire or need to adapt to (emerging or consolidating) general principles of international adjudication. It would hence be difficult to prove that an organization has adopted reforms in reaction to Waite and Kennedy and/or domestic follow-up case-law. At least as far as ESA’s administrative board is concerned, certain moderate changes have been made after Waite and Kennedy. These modifications did not broaden or clarify the board’s competences ratione personae to hear claims by temporary workers (as one might have expected or wished after Waite and Kennedy). However, the appeals board has implemented qualitative changes. It has significantly enhanced its transparency by proactively granting access to all case-law since 1976 via the internet^[24]

D. Critical reception and doctrinal debates

While the ECtHR has confirmed the alternative means approach in subsequent case- law,2[25] it has only marginally further concretized the conditions of its application. In the following, we focus on five issues which have been left in vagueness by the ECtHR in Waite and Kennedy and which have kept commentators busy during the different reception phases of the judgment:

(1) Lack of a precise standard of review: The ECtHR failed to explicitly state the precise standard of review for the test of the alternative means, and, in particular, to provide a comprehensive catalogue of necessary minimum qualities.[26] Domestic courts

are thus on their own in defining the material standard of review of an alternative means. This has led to considerable variances in the quality and rigour of domestic courts’ performances of the alternative means test.31 The existing imbroglio might be further exacerbated by the Court’s dictum in Stichting Mothers of Srebrenica.32 Here, the Court confirmed that the lack of an alternative means does not necessarily lead to an art. 6 ECHR violation in cases of organizational immunities” Since no competent alternative means existed at all in the UN for the claimants^4 the court did not engage in any qualitative review. While some courts might stick to a practice of thoroughly reviewing an alternative means, others might be motivated by Stichting to put more energy into identifying and defining factors which could outbalance any non-existence or flaws of an alternative means in a given case. As a consequence, they could deem any (further) qualitative review obsolete (once such factors have been identified).

The inhomogeneous domestic case-law is problematic from the perspective of legal certainty. Also, it is the ECtHR’s very own task to safeguard the coherent interpretation of the Convention. It should fulfil this task not only ex post by rectifying domestic applications of the Convention” but also ex ante by giving clear guidelines which domestic authorities and courts may follow in the first place. In any case, the de facto incoherent domestic case law has so far prevented the crystallization of the alternative means requirement into an obligation of regional customary law.

  • (2) The scope ratione materiae: Is the alternative means approach transferrable to all types of organizational immunities cases? The ECtHR merely decided a concrete dispute in employment-related matters over the immunity of jurisdiction of an international organization. Yet, nothing in the judgments militates against a transfer of the approach to cases not involving employment disputes, or to immunities from execution.36 In fact, domestic courts have explicitly carried out Waite and Kennedy- inspired alternative means tests, or referred to this case-law in cases involving construction contracts with an international organization” involving an organization’s immunity of enforcement” etc. Also, in Stichting, the Court itself appears to have applied the Waite and Kennedy rationale to a complaint against the UN by outsiders, that is not employees of the organization. This demonstrates and confirms the uni- versalizability and versatility of Waite and Kennedy.
  • (3) Evidence problems: With regard to the actual implementation of the alternative means test by domestic courts, aggrieved individuals might be structurally
  • 31 See in detail Ryngaert (n. 5), 123, 136 et seq.
  • 32 ECtHR, Stichting Mothers of Srebrenica and Others v The Netherlands, App. No. 65542/12, judgment of 11 June 2013.
  • 33 Ibid., para. 164. See also below. 34 Ibid., para. 163 in fine.
  • 35 See for a (Waite and Kennedy-based) ECtHR review of a domestic court’s performance of the Waite and Kennedy test ECtHR, Chapman v Belgium (n. 6), paras 52-4.
  • 36 Kloth (n. 4), 154; Pavoni (n. 3), 112; I.F. Dekker/C. Ryngaert, ‘Immunity of International Organizations: Balancing the Organization’s Functional Autonomy and the Fundamental Rights of Individuals’, (2011) 138 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht 83, 99.
  • 37 Swiss Federal Supreme Court, A.SA et consorts v Conseil Federal, 4A.1/2004/ech, judgment of 2 July 2004, ATF 130 I 312, ILDC 344 (CH 2004) (with note by A.R. Ziegler), para. 4.1.
  • 38 Swiss Federal Supreme Court, NML Capital Ltd et al. v. BIS and Debt Enforcement Office Basel-Stadt, 5A_360/201, judgment of 12 July 2010, ATF 136 III 379, ILDC 1547 (CH 2010) (with note by T. Neumann), para. 4.5.

disadvantaged. Depending on the applicable procedural law, it may be upon the individual claimant to furnish evidence that an alternative means does not exist or is insufficiently organized.[27] This may pose serious problems because information especially on the concrete functioning of an alternative means may be hard to obtain.[28] Where possible, courts should hence adopt a lenient approach and interpret domestic rules of evidence in light of the applicant’s rights under art. 6 ECHR and the (difficult procedural) circumstances of the case. Furthermore, technically, until immunity is formally waived by the organization or discarded by a (domestic) court, domestic courts are not in a position to summon an organization before them for evidentiary issues or otherwise request information from an organization[29] [30] [31] [32] [33] [34] This leads, in some situations, to an additional infringement of the applicant’s procedural basic rights such as the principle of equality of arms.

(4) Rigid or flexible link between alternative means and (dis-)proportional- ity: One of the most important questions concerns the potential consequences of the non-existence and/or non-availability of a reasonable alternative means. For the ECtHR, the alternative means argument was (merely) ‘a material factor’ within the proportionality examination. This cautious wording had led to the conclusion by parts of the literatu^2 and by some domestic courts (albeit typically not in employment disputes^ that the non-availability of an adequate alternative means did not invariably entail disproportionality44 As mentioned above, in its ruling in Stichting,45 the ECtHR confirmed this flexible interpretation of Waite and Kennedy. The Court stated that ‘in the absence of an alternative remedy the recognition of immunity is [not] ipso facto constitutive of a violation of the right of access to a court’ and underlined that its ‘judgments in Waite and Kennedy and Beer and Regan [could not] be interpreted in such absolute terms either.^6 Admittedly, the Court’s clarifications in Stichting concerned the immunity of the UN, and, moreover, not an employment-related dispute. Due to the particularly important tasks of the UN with regard to securing peace, the UN’s immunities are considered in principle more far-reaching than those of other organizations[35] Still, the ECtHR’s unqualified and general confirmation of the flexible interpretation of the alternative means rationale must be understood to apply to all types of organizational immunities cases.

On the one hand, the confirmation of the flexible approach could be positive. There may indeed be extreme cases where individual legal protection must cede to other considerations, and where immunity should be upheld.[36] These may be cases where the organization is the structurally weaker part (i.e. in disputes with large enterprises), where the existence of the organization would be at stake, etc. Furthermore, with the flexible approach, domestic courts are not tempted to pretend that a substandard alternative means meets the requirements when in reality, they want to uphold immunity for other important reasons. This may generally foster an honest and transparent jurisprudential evaluation of the alternative means in the face of immunities.

On the other hand, the recent repudiation by the Court of a strid^[37] reading of Waite and Kennedy can be criticized. For example, a strict understanding appears preferable for employment-related disputes.[38] Also, if only for the sake of legal certainty, it would have behoved the Court to define the circumstances under which the lack of an alternative means will be without consequence for the immunity of an organization)[39] In any case, where factors can be identified which justify upholding immunity despite a non-existent or flawed alternative means, courts arguably must still perform the alternative means test and flag any shortcomings of the organization’s internal mechanism in their judgments (and be this in form of an obiter dictum). This is due to the ECtHR’s request to take all relevant factors into account. Authority for this conclusion can also be drawn from Stichting, where the Court explicitly mentioned the non-availability of an alternative means although it did not find a violation of art. 6 ECHR)[40] Thereby, courts may give a shot across the bows of international organizations and/or internal dispute settlement bodies that they make improvements even in cases where immunity is upheld.

(5) Lack of influence of the immunity-granting state over the alternative means: May the incriminated state defend itself by pointing to its alleged lack of influence over the establishment and organization of an alternative means? Governmental influence is usually limited to (1) obliging an international organization to institute alternative means of dispute settlement in the headquarter agreements, etc., (2) working, on the basis of a host state’s membership status, towards the establishment of an adequate alternative means through internal decision-making mechanisms of the organization itself)[41] (3) diplomatic efforts and related ‘soft’ means of persuasion. Beyond these options, it is precisely the organization’s independence from singular member states which precludes influence by the immunity-granting state. Even more so, the fulfilment of core standards of ‘adequacy’ of the alternative means such as requirements of impartiality of the internal judges or decision-makers, etc. must per definitionem be outside the range of influence of states: if an internal appeals board, etc. was susceptible to external interference, its adequacy as an alternative means in the very terms of the Waite and Kennedy standard would be questionable. Governments might thus argue that to the extent that they have attempted to persuade the organization to establish an alternative means via the mentioned admissible channels, or lack influence in the first place, any absence or shortcomings of an alternative means can in no way be imputed to them.

In fact, domestic decisions prior and subsequent to Waite and Kennedy sometimes content themselves to (merely) enumerate and cite legal obligations of international organizations to instigate means of settlement. They do not inquire further into the actual setup and functioning of the alternative means.54 This suggests that states fulfil their human rights-based obligations simply by including so-called reglement des litiges-clauses in their headquarter agreements. It was precisely Waite and Kennedy which raised that standard. Arguably, the judgment required that an adequate alternative means must in fact have been instituted? regardless of whether the state did exert or even could have exerted influence on the organization’s internal organization in this regard. As indicated above, in Stichting, the Court possibly took a step back and emphasized the fact that the UN’s failure to establish an alternative means for external complainants was ‘not imputable to The Netherlands?6 However, the Court also pointed out that the case differed from other organizational immunities cases and thereby relativized (also) its statement on the imputability.

The lack of remedies within an international organization in the face of immunity leads to a possible deni de justice for individuals through a combination of four elements, only two of which lie in the sphere of influence of the defendant state: (1) the transferral of powers to international organizations, (2) the invocation or non-waiver of immunity by the organization, (3) the actual granting of immunity in domestic proceedings as a legal act of the defendant state’s court, and (4) the failure to establish an alternative means, an omission (and possibly a violation of international law) in many cases attributable to the international organization in question. However, this multiplicity of causes for the purported deni de justice should not lead to a disadvantage for the individual. Generally speaking, the ECtHR’s ‘equivalent protection’-formula doctrinally ‘implies [...] dragging the [trigger point of] material responsibility to a point in time before the actual act violating the Convention?7 Material responsibility is triggered by the state’s transferral of powers to an international organization and/or its failure to withdraw those powers in case the organization’s legal order is in tension with the Convention? It is precisely this legal conceptualization which does justice to the fact that an individual state is often not in a position to influence the decisions of an organization? In the specific case of organizational immunities, however, such conceptualizations are not even necessary. According to the ECtHR, the act of upholding of immunity by a state court (in full awareness or reproach- able unawareness) of the factual non-existence or non-availability of an adequate [42]

alternative means of redress) fully qualifies as trigger of the Court’s jurisdiction and—in a given case—as declencheur of state responsibility.60 These considerations show that any actions, omissions, or lack of influence of the forum state with regard to the alternative means should not affect the question of state responsibility where immunity is granted in the absence of an adequate alternative means.

Despite the mentioned open questions, Waite and Kennedy has powerfully shaped the law of organizational immunities.

60

ECtHR, Chapman v Belgium (n. 6), para. 44. See also Tigroudja (n. 18), 100-2.

  • [1] For the sake of abbreviation we refer to Waite and Kennedy only.
  • [2] S. Tauchmann, Die Immunitat internationaler Organisationen gegenuber Zwangsvollstreckuns-massnahmen (Baden-Baden, Nomos 2005), pp. 209, 216, 217.
  • [3] A. Reinisch, International Organizations Before National Courts (Cambridge, Cambridge UniversityPress 2000), pp. 366-9; R. Pavoni, ‘Human Rights and the Immunities of Foreign States and InternationalOrganizations’, in E. de Wet/J. Vidmar (eds), Hierarchy in International Law (Oxford, Oxford UniversityPress 2012), pp. 71-113, 73, 103 et seq.
  • [4] M. Kloth, Immunities and the Right of Access to Court Under Article 6 of the European Convention onHuman Rights (Leiden, Nijhoff 2010), p. 19.
  • [5] ECtHR, Waite and Kennedy, para. 68. See A. Reinisch/U.A. Weber, ‘In the Shadow of Waiteand Kennedy: The Jurisdictional Immunity of International Organizations, the Individual’s Rightof Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’,(2004) 1 International Organizations Law Review 59-110, 78-9, 93 et seq.; C. Ryngaert, ‘The Immunity
  • [6] A. Reinisch/R. Janik, ‘The Personality, Privileges, and Immunities of International Organizationsbefore National Courts—Room for Dialogue’, in A. Reinisch (ed.) (n. 7), pp. 329-37, 334 and the individual country contributions in the book; Pavoni (n. 3), 104; Ryngaert (n. 5), 135.
  • [7] See for example R. Vinuesa, ‘Argentina’, in: Reinisch (ed.) (n. 7), pp. 17-30, 23.
  • [8] On file with authors.
  • [9] German Federal Labour Court, W. and K. v European Space Agency, 7 AZR 600/92, judgment of 10November 1993.
  • [10] 14 German Federal Constitutional Court, 2 BvR 1107, 1124/77 and 195/79, decision of 10 November1981, BVerfGE 59, 63 (‘Eurocontrol II’).
  • [11] cf. also Reinisch/Weber (n. 5), 79.
  • [12] See also ICJ, Jurisdictional Immunities of the State, Germany v Italy, Judgment of 3 February 2012,[2012] ICJ Rep 99 et seq., Dissenting Opinion of Judge Antonio A. Can^ado Trindade, para. 215.
  • [13] See in detail below, text/notes at n. 42 to 52 and, in particular, Angelet/Weerts (n. 8), 26.
  • [14] H. Tigroudja, ‘L’immunite de juridiction des organisations internationales et le droit d’acces a untribunal’, (2000) 11 Revue trimestrielle des droits de l’homme 77-106, 89-93.
  • [15] The competence of ESA’s administrative board to hear claims by temporary workers appeareddoubtful. Also, the Court failed to review core qualitative attributes of ESA’s administrative board. See,inter alia, A. Reinisch, ‘Case of Waite and Kennedy v. Germany, Application No. 26083/94; Case of Beerand Regan v. Germany, Application No. 28934/95, European Court of Human Rights, 18 February 1999’,(1999) 93 American Journal of International Law 933-8, 937; Flauss (n. 7), 322-3; Tauchmann (n. 2), 22931, Tigroudja (n. 18), 104-6; critically also Habscheid (n. 6), 270.
  • [16] See n. 13.
  • [17] cf. Neumann/Peters (n. 7), 253.
  • [18] See generally S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, (2009) 7 InternationalJournal of Constitutional Law 468.
  • [19] 23 C. Ryngaert (n. 15), 121-48, 135; from an ex-ante perspective Flauss (n. 7), 318.
  • [20] 24 See the various contributions and the conclusions in A. Reinisch (ed.) (n. 7).
  • [21] 25 A. Peters, ‘Compensatory Constitutionalism: The Function and Potential of FundamentalInternational Norms and Structures’, (2006) 19 Leiden Journal of International Law 579.
  • [22] A. Peters, ‘The Constitutionalisation of International Organisations’, in: N. Walker/l. Shaw/S.Tierney (eds), Europe’s Constitutional Mosaic (Oxford, Hart 2011), pp. 253-85.
  • [23] Ryngaert (n. 5), 139; Pavoni (n. 3), 110, 111; Council of Europe, Parliamentary Assembly, Committeeon Legal Affairs and Human Rights, Accountability of International Organisations for Human RightsViolations, Report by Jose Maria Beneyto, Doc. 13370, 17 December 2013, para. 32.
  • [24] See http://www.esa.int/About_Us/Law_at_ESA/Appeals_Board
  • [25] ECtHR, Prince Hans-Adam II of Lichtenstein v Germany, App. No. 42527/98, judgment of 12 July2001, para. 48; Chapman v Belgium (n. 6), paras 45 et seq.
  • [26] A. Reinisch, ‘The Immunity of International Organizations and the Jurisdiction of theirAdministrative Tribunals’, (2008) 7 Chinese Journal of International Law 285, 292; Angelet/Weerts(n. 8), 9.
  • [27] See on this issue also (with a discussion of relevant German case-law) Reinisch (n. 30), 301-2.
  • [28] See Neumann/Peters (n. 7), 261-2. 4i Ibid.
  • [29] 42 Angelet/Weerts (n. 8), 9-10, 12; A. Reinisch (n. 30), 292; A. Peters, ‘Die funktionale Immunitat
  • [30] internationaler Organisationen und die Rechtsweggarantie’, (2011) 21 Revue Suisse de droit internationalet de droit europeen 397, 425.
  • [31] UK High Court of Justice, Entico v UNESCO, [2008] EWHC 531 (Comm), judgment of 18 March2008, para. 27 (see Pavoni (n. 3), 105-6); cf. Swiss Federal Supreme Court, NML Capital Ltd. et al. v BISand Debt Enforcement Office Basel-Stadt (n. 38), para. 4.5.3.
  • [32] This latter (rigid) reading of Waite and Kennedy seems to have been espoused, however, for exampleby L. Caflisch, ‘Immunite des Etats et droits de l’Homme: Evolution recente’, in J. Brohmer et al. (eds),Internationale Gemeinschaft und Menschenrechte: Festschrift fur Georg Ress (Cologne, C. Heymanns2005), pp. 935-48, 935. See on the debate also Pavoni (n. 3), 104-8, arguing that domestic case-law beforeand after Waite and Kennedy backs the ‘strict’ interpretation, and Ryngaert (n. 5), 134-5.
  • [33] ECtHR, Stichting Mothers of Srebrenica v The Netherlands (n. 32). 46 Ibid., para. 164.
  • [34] 47 The Hague Court of Appeals, Stichting Mothers of Srebrenica v The Netherlands and United Nations,Case No. 200.022.151/01, judgment of 30 March 2010, LJN: BL8979, para. 5.10 (see Dekker/Ryngaert (n.
  • [35] 36), 99-101); Beneyto Report (n. 27), para. 36; cf. Kloth (n. 4), 149 et seq.
  • [36] Cf. Dekker/Ryngaert (n. 36), 99 (in the context of the Stichting Mothers of Srebrenica case); Ryngaert(n. 5), 144
  • [37] Reinisch (n. 30), 292.
  • [38] Recent Swiss case-law could point in that direction, Neumann/Peters (n. 7), 264-6, 267.
  • [39] cf. in a different context Neumann (n. 38), A6. Contra, possibly, Angelet/Weerts (n. 8), 10, 18; onpossible criteria the Court might take into account ibid., 13-19.
  • [40] 52 ECtHR, Stichting Mothers of Srebrenica (n. 32), para. 163.
  • [41] C. Janik, ‘Die EMRK und internationale Organisationen—Ausdehnung und Restriktion der equivalent protection-Formel in der neuen Rechtsprechung des EGMR’, (2010) 70 Zeitschrift fur auslandischesoffentliches Recht und Volkerrecht 127-79, 162.
  • [42] 4 Reinisch (n. 3), 275 et seq. 55 Cf. Habscheid (n. 6), 275. 56 ECtHR, Stichting Mothers of Srebrenica (n. 32), para. 165. 57 Janik (n. 53), 165 (our translation); Pavoni (n. 3), 82, 100 (discussing ECtHR, Gasparini v Italy andBelgium, App. No. 10750/03, decision of 12 May 2009). 58 Janik (n. 53), 162 . 59 Ibid.
 
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