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League of Arab States v TM., Belgian Court of Cassation, ILDC 42 (BE 2001), 12 March 2001

Cedric Ryngaert[1]

Relevance of the case

An international organization ordinarily only enjoys privileges and immunities on the basis of specific international conventions, for example, as entered into by the organization and the host state (headquarters agreements). The question may arise whether an organization also enjoys immunity in the absence of a convention, or when a convention has not entered into force. Such immunity could be based on customary international law or on a general principle of law. In the Spaans case, the Dutch Supreme Court held that an international organization, in the case the Iran-US Claims Tribunal, was entitled to immunity from jurisdiction against an employee’s claim in an employment dispute, even though no agreement between The Netherlands and the Tribunal provided for immunity of the latter.1 This decision is an outlier, however. There are no other known cases of a domestic court granting immunity to an international organization on the basis of customary international law. The judgment that is the subject of this commentary addressed the question whether an international organization could be entitled to immunity on the basis of a general principle of law, in the absence of due approval of a headquarters agreement between the international organization and the host state.

I. Facts of the case

TM had brought an employment case against the League of Arab States (League) in a Belgian labour court. The case was eventually heard by the Court of Cassation (Supreme Court). The precise material conflict of the employment dispute cannot be inferred from the Court of Cassation’s judgment, since the court limited itself to answering the contentious legal questions. The particular facts of the dispute were, in any event, not relevant to the international law dimension of the case.

TM argued that the League—an international organization—was not entitled to immunity from jurisdiction under international law. The Court of Appeals concurred, and held that the League did not enjoy immunity from jurisdiction in Belgium, on the ground that the federal parliament had failed to approve the Headquarters Agreement between Belgium and the League of Arab States, adopted on 16 November 1995 (1995 Headquarters Agreement), which provided for immunity of the organization (in spite of the fact that the ‘communities’ and ‘regions’, which are the devolved entities in Belgium’s federal system, had approved the agreement). The Court of Appeals considered in eventu that the dispute was in fact about an actum iure gestionis (of commercial nature), which was not covered by the immunity from jurisdiction.

The League thereupon filed a cassation appeal, arguing that approval of the 1995 Headquarters Agreement by the federal parliament was not required (since, in particular, the 1995 Headquarters Agreement could enter into force on the basis of the mere signature), and that immunity from jurisdiction of international organizations was a general principle of international law. As far as the treaty law claims were concerned, the League argued that approval was in fact not required, as Belgium and the League had purportedly given their consent to be bound by the 1995 Headquarters Agreement by their mere signature, and alternatively, that the 1995 Headquarters Agreement could be given provisional application.

To that effect, the League relied on the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (21 March 1986 25 ILM 543), not yet in force (1986 VCLT), providing for such consent to be bound (arts. 11 and 12 of the 1986 VCLT) and provisional application (art. 25 of the 1986 VCLT).

II. The legal question

Whether a bilateral treaty concluded with an international organization that had not been approved by parliament could give rise to legal consequences in the Belgian legal order. Whether the League of Arab States was immune from jurisdiction in the Belgian courts.

III. Excerpts [translation ILDC]

The 1986 VCLT had not yet entered into force. The argument based on the binding effect of the mere signature, as codified in Article 11 of the 1986 VCLT was therefore dismissed. (paragraph 10)

The failure on the part of the Belgian federal parliament to approve the text of the 1995 Headquarters Agreement between Belgium and the League had domestic legal consequences. A treaty had no binding force in the domestic legal order in the absence of approval by the federal parliament, even when the treaty had entered into force for Belgium under international law. Under Belgian constitutional law (Article 167 of the Constitution, 17 February 1994 (Belgium)), treaties could only give rise to legal consequences in the domestic legal order if the competent parliaments had given their approval. Thus, if the parliaments of Belgium’s federal entities (communities and regions) had given their timely approval, whereas the federal parliament had not, the treaty had no binding force. The fact that the treaty partly related to matters within the competency of the entities of the federation (whose parliaments had approved the treaty) did not subtract from this. (paragraph 22)

There was no general principle of public international law in the sense of Article 38(1)(c) of the Statute of the International Court of Justice (26 June 1945) to the effect of there being immunity from jurisdiction of international organizations with respect to the states that had established or recognized them. (paragraph 24)

The request of the League was rejected; and jurisdiction over the League was upheld. (paragraph 25)

IV. Commentary

Cases before domestic courts against international organizations often relate to employment matters, as exemplified by this Belgian case against the Arab League. The central aspect of this case is the Court of Cassation’s holding that there is no general principle of international law recognizing immunity from jurisdiction of international organizations with respect to states having established or recognized them. This appears to be in keeping with Amerasinghe’s observation, in relation to the immunity of international organizations for employment disputes, that ‘[t]he decisions of national courts do not reflect a uniform approach’, and that, in cases where domestic courts did not uphold immunity and thus exercised jurisdiction, ‘[i]t is not clear whether these courts would exercise jurisdiction in the case of all international organizations or whether the exercise of jurisdiction was restricted only to specific organizations in specific cases’.[2]

The gist of the parties’ and the court’s argument did, however, not relate to general international institutional law, but rather to the 1995 Headquarters Agreement. Pursuant to art. 1 of the 1995 Headquarters Agreement, the goods and assets which the League uses for the exercise of its official activities in Belgium enjoy immunity from jurisdiction (except if this immunity is waived). Possibly, this could imply that Belgian courts indeed have to recognize the immunity of the League. Yet it could be argued that this provision only related to immunity from enforcement, and not to immunity from jurisdiction. The court did not deal with this substantive question.

The main problem in this case related to the Belgian federal parliament’s failure to approve the treaty at the time the case was brought (approval was only given in 1999). Somewhat oddly, the parliaments of Belgium’s federal entities (communities and regions) had given their timely approval, whereas the federal parliament had not.

As noted, the argument that ratification was not necessary, and that mere signature would suffice on the basis of the 1986 VCLT, was dismissed by the court, as the 1986 VCLT had not yet entered into force. Even at the time of writing of this comment, there were insufficient ratifications for the treaty to enter into force (see art. 85.1 of the 1986 VCLT; Belgium had deposited its ratification on 1 September 1992. However, the provision for consent to be bound in the 1986 VCLT was analogous to a similar provision in the Vienna Convention on the Law of Treaties (23 May 1969),[3] which entered into force 27 January 1980 (1969 VCLT).

The court conspicuously failed to ascertain whether the provisions of the 1986 VCLT reflected customary international law.[4] It left open the question of whether the 1995 Headquarters Agreement could indeed be binding at the international level. If the relevant provisions of the treaty could be considered as customary international law, the court could have found that there was insufficient evidence that the parties wanted the 1995 Headquarters Agreement to enter into force on the basis of mere signature, or that they wanted to have it provisionally applied.

As the substance of the 1995 Headquarters Agreement undeniably falls within the constitutional competence of the federal state, the inevitable result of the federal parliament’s failure to approve the 1995 Headquarters Agreement is that it is not binding in domestic courts and that the courts cannot apply it. Quite reasonably, the approval of the 1995 Headquarters Agreement by the parliaments of the federal entities was found to be immaterial. Deciding otherwise would have been incompatible with the guarantees outlined in art. 167 of the Constitution, which clearly provides that an international agreement only has domestic consequences when it is approved by the parliaments of the federal entities within whose competence the agreement falls.

It is finally noted that the distinction between acta iure gestionis and acta iure imperii, which is often made in the law of state immunity, did not play a role before the court, which refused to discuss its relevance as it had already found jurisdiction on other bases (namely the absence of parliamentary approval of the relevant agreement). In contrast, the Brussels Court of Appeal had argued, a fortiori, that a dispute relating to an employment contract was an actum iure gestionis and not an actum iure imperii. Immunity would not apply to the former act. The League, however, argued that art. 1 of the 1995 Headquarters Agreement did not draw a distinction between different acts of the international organization. Under general international law, it appears that the distinction may not be relevant to the immunities of international organizations.[5] The Court of Cassation, for its part, was probably wise not to enter into an a fortiori discussion on the existence of the said distinction.

On a comparative note, whereas the Belgian Court of Cassation held that there was no general principle on the basis of which an international organizations enjoyed immunity, the Dutch Supreme Court (Hoge Raad), in the 1985 Spaans case, took the view that the immunity of international organization is governed by customary international law in the absence of a specific treaty. This case concerned the immunity from jurisdiction of the Iran-US Claims Tribunal in an employment dispute brought against it by a former employee, Spaans. The Court characterized the Tribunal as an international organisation that borrows its legal personality from international law.[6]

At the time of the suit, no headquarters agreement or other treaty on privileges and immunities had been concluded between the Tribunal, or by Iran and the United States, with The Netherlands. Such an agreement only materialized in 1990, with an Exchange of Letters between the Government of the Kingdom of The Netherlands and the President of the Iran- United States Claims Tribunal on granting privileges and immunities to the Tribunal, No 004282, 24 September 1990,7 which provided for the immunity of the Tribunal.

The absence of a valid treaty at the time of the judgment did not stop the Supreme Court from inquiring whether immunity could be based upon customary international law, concluding that ‘[a] ccording to unwritten international law as it currently stood, an international organization was in principle not subject to the jurisdiction of the courts of the host state in respect of disputes which were immediately connected to the fulfilment of the tasks assigned to that organization. Possible exceptions did not need to be explored in this case’.[7] The Court proceeded to find that ‘[d]isputes which might have arisen between an international organization and those who played an essential role in the performance of its tasks belonged to the category of disputes which were immediately connected with the performance of these tasks’.[8] In so doing, the Court distanced itself from the lower courts’ determination that the immunity of international organizations was customarily governed by the distinction between acta jure imperii and acta jure gestionis, a distinction borrowed from the law of state immunity. The lower courts for that matter diverged in the characterization of the organization’s acts with regard to the employment dispute before them: the District Court considered it as actum jure gestionis, but the Court of Appeal as actum jure imperii. By ruling that the categories of the law of state immunity do not apply with respect to the law of international organization immunity, the Dutch Supreme Court did not have to characterize the organization’s acts. Commentators have astutely observed that ‘[t]he dismissal by the Supreme Court of this distinction in relation to international organizations underscored the special character and independence of international organizations as legal actors’.[9] [10] [11] [12] [13]

It remains curious, however, that a court looked for immunity of an international organization beyond treaty law in the first place. There are no other reported cases of domestic courts recognizing the immunity of an international organization on the basis of customary law, or general principles—although this may just be so because almost in all cases a treaty is indeed available. There are however some reported court cases which explicitly reject the existence of international organization immunities under customary international law.“ In a 1999 Italian case involving the European University Institute, the court ruled that customary rules on immunity only apply to states, not to international organizations, as international organizations enjoy only limited international legal personality.12 Another Italian court confirmed in 2007 that the immunity of international organizations could only be based on conventional instruments, such as headquarters agreements, and not on alleged customary international lawd3 In a 1993 case, the Paris Court of appeal similarly found that there was no international organization immunity under customary international lawd4

Domestic courts may generally only recognize treaties as the basis for immunity of international organizations, but such treaties need not necessarily be formal treaties that have been approved by Parliament. Also ‘simplified’ treaties that confer immunity on the organization may pass muster. In another, more recent case (2010) against the Iran-US Claims Tribunal,[14] [15] the court held that the aforementioned 1990 exchange of letters between The Netherlands and the President of the Tribunal regarding the accordance of privileges and immunities to the Tribunal and its process participants, contained ‘an international agreement between a State and an international organisation governed by international law, and thus a treaty, a source of international law’ (Iran U.S. Claims Tribunal Den Haag, para. 3.3: ‘ligt in voormelde briefwisseling een internationale, door het volkenrecht beheerste overeenkomst tussen een Staat en een internationale organisatie besloten en is er sprake van een verdrag, zijnde een bron van volkenrecht’). The District Court held it to be irrelevant that this treaty had not been submitted to Parliament for approval, on the ground that ‘under customary international law, a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent?6

  • [1] [This Commentary is based in part on the author’s commentary for ILDC, mentioned above.]i See Spaans v Iran-United States Claims Tribunal, Final appeal judgment, Case No 12627, DecisionNo LJN: AC9158, NJ 1986, 438, (1987) 18 NYIL 357, ILDC 1759 (NL 1985), 20 December 1985, SupremeCourt [HR].
  • [2] See C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn,Cambridge University Press 2005), pp. 326-7 (‘Amerasinghe’), giving, at p. 327, two examples of immunity being denied.
  • [3] 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969).
  • [4] Custom can be applied in the Belgian legal order; see Drecoll, 25 January 1906, Pas 1906, L 109.
  • [5] See Amerasinghe (n. 2), 328. 6 NJ 1986, 438.
  • [6] 7 Published in the Dutch Tractatenblad, 1990, p. 150.
  • [7] Paragraph 3.3.4—translation from ILDC 1759.
  • [8] Paragraph 3.3.5—translation from ILDC 1759.
  • [9] ю R. Peeters and C. Brolmann, ILDC 1759, A2.
  • [10] See also I. Dekker and C. Ryngaert, ‘Immunity of International Organizations: Balancing theOrganization’s Functional Autonomy and the Fundamental Rights of Individuals’, preadvies, ‘MakingChoices in Public and Private International Immunity Law’, (2011) Mededelingen van de NederlandseVereniging voor Internationaal Recht 138, 83-109.
  • [11] EUI v Piette, Italian Yearbook of International Law (1999), p. 156.
  • [12] Corte Suprema di Cassazione [Court of Cassation], 19 February 2007 (unpublished) (Italy), ILDC827 (IT 2007), ILDC 297 (IT 2005), H4 (refusing to uphold a general customary international law rule ofpar in parem non habet imperium/jurisdictionem, as exists in the law of state immunity).
  • [13] CEDAO v BCCI, 13 January 1993, Court of Appeals of Paris, 120 JDI 353 (1993).
  • [14] The District Court of The Hague (Rechtbank den Haag), Iran U.S. Claims Tribunal Den Haag, 23June 2010 (not published).
  • [15] Iran U.S. Claims Tribunal Den Haag, para. 3.4 ‘(Naar het oordeel van de rechtbank kan in het midden blijven of ten aanzien van het hier aan de orde zijnde verdrag, waarbij feitelijk wordt afgeweken vanartikel 17 van de Grondwet (inhoudende dat niemand tegen zijn wil kan worden afgehouden van derechter die de wet hem toekent), op basis van de Rijkswet goedkeuring en bekendmaking verdragen aldan niet de (stilzwijgende of uitdrukkelijke) goedkeuring van de Staten-Generaal was vereist en/of ver-kregen. Naar internationaal gewoonterecht immers mag het feit dat de instemming van een Staat dooreen verdrag gebonden te worden is gegeven in strijd met een bepaling van zijn nationale recht betref-fende de bevoegdheid tot het sluiten van verdragen, in beginsel door die Staat niet worden aangevoerd terongeldigverklaring van die instemming.’).
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