Belgian Courts and the Immunity of International Organizations
10 International Organizations Law Review (2014), pp. 464-504, Forthcoming
Grotius Centre Working Paper 2014/019-PIL
30 Pages Posted: 12 Jun 2014
Date Written: June 10, 2014
The increasing activity of international organisations has raised concerns because of the immunities that international organisations are usually endowed with. The application of a rather strict system of immunities to international organisations has led to a perception of impunity for violations of international law and has on occasion left legal disputes unsettled. Nevertheless, even though absolute immunity has been described as an ‘anachronism’, international organisation immunity serves a useful and essential purpose which is often too easily ignored. The grant of privileges and immunities to international organisations rests on functional grounds and is indispensable in order to allow the organisation to carry out its functions effectively and independently. Through its immunity, the international organisation’s independence seeks to be protected against interference from the State in which it operates or in which it has an office or its headquarters. The functional underpinning of institutional immunity remains crucial today in order to guarantee the independent fulfilment by the organization of its mandate. Despite this relatively firmly established principle, domestic courts and tribunals have shown in recent cases to be very critical of the idea of the absolute character of international organisation immunity, not the least in relation to the the right of access to court, guaranteed inter alia by Article 6 of the European Convention on Human Rights.
Indeed, frequently, disputes involving an international organization are brought before the domestic courts of the State where the organization has its seat or a liaison office. Depending on the figures, Belgium is host to hosts between 50 and 100 international organizations or liaison offices of international organizations,mainly located in Brussels. For that reason, the number of potential disputes involving an international organization in Belgium is relatively important.
Disputes involving an international organization can roughly be divided into two categories: disputes brought against an international organization by (former) staff members of that organization, and disputes brought against an international organization by a third party. In both cases however, the questions relating to the immunity of the organization are identical, but they have led to an important difference in respect of the relation between international organization immunity and the right of access to court.
I will start by giving an overview of the official Belgian policy in respect of international organization immunity. I will then analyse the rationale behind the grant of privileges and immunities to international organisations, and refer to relevant Belgian case-law in this respect. I will then turn to the source of international organization immunity, the scope of the immunity, and the obligation to provide for alternative means of dispute settlement and the individual’s right of access to court, by referring where necessary and relevant to Belgian case-law. I will focus here essentially on the immunity of international organizations as such, and not on the immunity of the staff members and representatives of international organizations.
Keywords: international organizations, immunity, domestic courts, Belgium
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