Anthony Aust. Handbook of International Law

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representatives of members, and to the organisation and its staff. This is justified on the different

basis that the host state (the state where the organisation has its headquarters or where it is holding a

meeting) should not benefit from taxes and duties paid from the income of the organisation, its staff

or representatives of members since the income comes from the members. The host state will

anyway benefit in many ways, particularly economic, from having the organisation or conference in

its territory.

The constituent treaty, or a protocol to it, will usually provide for the immunities and privileges.

Such instruments tend to follow a pattern set initially by the General Convention on the Privileges

and Immunities of the United Nations 1946

and the Convention on the Privileges and Immunities

of the Specialised Agencies 1947, which has a separate annex for each agency.

More recent

treaties have more detail and exceptions from immunity from jurisdiction.

They are normally

supplemented by a treaty with the host state (headquarters agreement)

elaborating on the

immunities and privileges and specifying the necessary procedures.

Although the provisions vary slightly depending on the organisation and how old the treaty is,

they generally provide that the organisation, its staff and representatives of members will be immune

(to varying degrees) from legal proceedings unless the organisation (or the member state concerned,

as the case may be) waives immunity. Immunity is a matter for the domestic courts, but if the

organisation has determined that a person has immunity and that the act in question attracts

immunity, there is a presumption of immunity. Although the determination is not binding on the

courts, it must be given the greatest weight and not set aside by them except for the most compelling

reasons.

Some very senior staff of an organisation may be accorded full diplomatic immunity, but

otherwise the staff (even when they have left it) and representatives of members will be immune

only from legal proceedings for what they say or do in their work, and in more recent treaties there is

usually no immunity in respect of motor accidents. Experts on mission for an organisation, such as

consultants, are accorded such privileges and immunities as are necessary for the independent

exercise of their

19. 1 UNTS 15 (No. 4).

20. 33 UNTS 261 (No. 521).

21. See the Agreement on the Privileges and Immunities of the Organization for the Prohibition of

Chemical Weapons (OPCW), UKTS (2002) 31.

22. See p. 359 below on the recent headquarters agreement between the Antarctic Treaty Secretariat and

Argentina.

23. See the Immunity from Legal Process Advisory Opinion (Cumaraswamy), ICJ Reports (1999), p. 62,

paras. 57–65; 121 ILR 405.

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functions. These usually include immunity from personal arrest or detention; and immunity in

respect of what they do in the course of performing their mission, including what they say and

write.

The organisation will be exempt from income tax, but the staff will be subject to a notional

internal tax.

It is now common for contracts with an organisation to provide for an advance waiver so that any

contractual disputes can be referred to arbitration. The immunity of the organisation may also be

much less where it has a commercial purpose. The European Bank for Reconstruction and

Development has virtually no immunity from legal proceedings and its assets can be seized to pay a

judgment debt once all appeals have been exhausted.

A particular problem arises if a staff member of, or representative to, an international organisation

is considered by the host state to be a threat to its security. The relationship between the host state

and the organisation is different from that between it and a sending state. Constituent treaties

emphasie the fundamental principle that the organisation must be able to function freely and

independently. Although they require the chief officer to waive the immunity of a staff member or

expert on mission in a proper case, there may well be a dispute about this. Furthermore, the

representatives of member states are accredited to the organisation, not to the host state. Although a

few constituent treaties or headquarters agreements acknowledge the right of the host state to require

the removal of a person who is considered by the host state to be a threat to its security, most do not.

Nevertheless, even without such an express provision, some host states take the view that they can

deport such persons or refuse them admittance.

The Vienna Convention on the Representation of States in their Relations with International

Organizations of a Universal Character 1975

provides for the relations between states and

intergovernmental international organisations of a universal character (those whose membership and

responsibilities are on a worldwide scale), and to the representation

24. See the Applicability of Article , Section 22, of the Convention on the Privileges and Immunities of

the UN Advisory Opinion (Mazilu), ICJ Reports (1989), p. 177; 85 ILR 322 and Cumaraswamy (n. 23

above), p. 62.

25. See the 1990 Agreement establishing the EBRD, Articles 46, 47 and 55

(www.ebrd.com/about/basics/index.htm).

26. See A. Watts, The International Law Commission 1949–1998, Oxford, 1999, vol. , pp. 449 et seq.,

and A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR 256–8.

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of states at conferences convened by or under the auspices of such organisations. The Convention

lays down a scale of immunities and privileges for permanent missions of states to such

organisations, and for delegations to their conferences. The Convention follows closely the 1961

Diplomatic Convention and the 1969 Special Missions Convention (which had been modelled on the

Diplomatic Convention).

For instance, Article 59(1) of the 1975 Convention provides that the

‘private accommodation’ of a member of the diplomatic staff of a delegation to a conference enjoys

inviolability. This has always been understood to include a hotel room,

and is just one example of

a scale of privileges and immunities that goes further than that in, for example, the Convention on

the Privileges and Immunities of the United Nations

and similar treaties of other universal

international and regional organisations. Most international organisations of a universal character

have their headquarters, and hold most of their meetings, in Western states. The existing treaties on

the privileges and immunities of the organisations and of persons connected with them (which

treaties are preserved by Article 4(a) of the 1975 Convention) are regarded by those states as

sufficient, and good models for future agreements. After thirty years, the 1975 Convention has only

thirty-one of the thirty-five parties needed to bring it into force. Apart from some former communist

states of Eastern Europe, only one small Western European state is a party, and no state that is host

to a major international organisation.

Liability

Since an international organisation has a legal personality separate from its members, in principle

the members are not liable for its acts, in either international or domestic law.

However, whether

in certain circumstances the members could be liable is currently being studied by the International

Law Commission under the topic, ‘Responsibility of International Organizations’, but it will be

several years before any conclusions are reached.

27. See p. 117 above.

28. See para. (3) of the ILC Commentary on the final draft Article in A. Watts, The International Law

Commission 1949–1998, Oxford, 1999, vol. , p. 528.

29. See n. 19 above.

30. See the International Tin Council case decided by the (UK) House of Lords: Rayner v. Department of

Trade and Industry [1989] 3 All ER 523 at 529; 81 ILR 680.

31. See further p. 210 below.

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Dispute settlement

A dispute between the members of an international organisation, or between the organisation and its

members, about the interpretation or application of its constituent instrument can be settled in

accordance with the relevant provisions (if any) of the instrument. Certain instruments, such as the

treaties governing the World Trade Organization or the European Union, establish a more or less

self-contained legal order and within which the member states have to operate. The treaties therefore

include elaborate procedures for settling disputes arising within that legal order.

Other

international organisations have built-in dispute procedures. Articles 26–29 of the International

Labour Organization Constitution provide for a commission of inquiry to hear complaints that a

member state is not observing an ILO convention.

However, as with other disputes involving

member states, it would be expected that the members would first consult fully in an attempt to

settle the matter. Even if that is unsuccessful, it does not follow that the dispute settlement

procedures of the organisation will be activated. There may be various reasons why members will

not want to formalise the dispute. There are many disputes within international organisations that

remain unresolved, largely because they are not so important (or at least not important to a sufficient

number of members) that they have to be resolved.

The United Nations

It may seem surprising, but the United Nations Charter has no built-in procedure specifically for

settling legal disputes within the Organization, other than staff disputes. There are differences of

view, some long-standing, about the interpretation or application of the Charter, but these are

generally dealt with by negotiations, mostly informal and sometimes inconclusive. Some are on

major issues (such as the effective exclusion of South Africa during the period of apartheid).

Some

are resolved, often by a compromise (such as over the question of the arrears of South Africa’s

contributions when it resumed its seat); others remain unresolved. Some things are better dealt with

by a political ‘fix’.

The ICJ has given advisory opinions on various UN internal matters.

In the Lockerbie cases

(now discontinued), the ICJ was asked to interpret

32. See p. 383 below (WTO) and p. 475 above (EU).

33. See www.ilo.org.

34. Shaw, p. 1089.

35. See p. 463 below and www.icj-cij.org (click on ‘Decisions’).

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the Charter in order to decide fundamental questions regarding the respective powers of the Security

Council and the ICJ.

The UN specialised agencies

Most disputes within the specialised agencies are settled by negotiation, but if there is a need to

pursue a more formal procedure the dispute will be referred in most of the agencies to one of the

main organs. If the main organ cannot settle it, the dispute may then be referred to arbitration, or to

the ICJ for an advisory opinion.

Staff disputes

The constituent instruments of international organisations provide mechanisms by which disputes

between the organisation and staff members can be settled.

This is essential since most

international organisations have immunity from the jurisdiction of domestic courts. The UN has an

Administrative Tribunal, and the ILO Administrative Tribunal decides cases referred to it by other

UN specialised agencies.

36. Lockerbie (Libya v. UK) (Provisional Measures), ICJ Reports (1992), p. 3; ILM (1992) 662; 94 ILR

478; and Lockerbie (Libya v. UK) (Preliminary Objections), ICJ Reports (1998), p. 9; ILM (1998) 587;

117 ILR 1 and 664.

37. See C. Amerasinghe, The Law of the International Civil Service: As Applied by International

Administrative Tribunals, Cambridge, 1994; J. Klabbers, An Introduction to International Institutional

Law, Cambridge, 2002, pp. 269–73.

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10 The United Nations, including the use of force

. . . measures commensurate with the specific circumstances as may be necessary . . .

Goodrich, Hambro and Simons, Charter of the United Nations, 3rd edn, New York, 1969

Bailey and Daws, The Procedure of the United Nations Security Council, 3rd edn, Oxford, 1998

Simma (ed.), The Charter of the United Nations, 2nd edn, Oxford, 2002

The United Nations was established by its Charter of 26 June 1945. Membership is open only to

states. By the end of 2004, there were 191 Members, virtually all the states of the world.

Membership

The fifty-one original Members did not have to satisfy the criteria for membership (Article 3). They

included India, which did not become independent until 1947, and the Byelorussian Soviet Socialist

Republic (now Belarus) and the Ukrainian Soviet Socialist Republic (now Ukraine), both of which

were only republics of the Union of Soviet Socialist Republics and did not become independent until

1991.

The membership of these three was the result of a political deal at the San Francisco

Conference.

New applicants for membership have had to satisfy the criteria in Article 4: an applicant must be a

state, be peace-loving,

accept the obligations in the Charter and, in the judgment of the

Organization, be able and willing to carry out the obligations of membership. The first criterion is

essentially legal, whereas the other three are more subjective and political,

1. It is ‘un-English’.

2. See p. 20 above on Russian republics.

3. This prevented former enemy states (e.g. Hungary, Italy and Japan) from becoming Members until the

mid-1950s.

4. See the Conditions of Admission to Membership in the UN (Article 4) Advisory Opinion, ICJ Reports

(1948), p. 57; 15 ILR 333.

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and no longer cause problems. The attributes of statehood have been discussed earlier.

Thus an

overseas territory of a state, or a constituent part of a state (India successfully opposed the admission

of the Indian state of Hyderabad), cannot be a Member. Today, admission raises a very strong

presumption that the new Member is a state. Since most UN Members do not recognise as states

entities such as Taiwan or the Turkish Republic of Northern Cyprus (TRNC),

they have not been

accepted as either Members or observers. Nor can an international organisation be a Member,

although it can be granted observer status. Palestine also has observer status.

To be accepted as a Member, first the Security Council must recommend membership (and the

veto applies),

and the General Assembly must then agree to admission by a two-thirds majority vote

(Articles 4(2) and 18(2)). In the first five years of the United Nations, most applicants (Iceland,

Indonesia, Israel, Burma, Pakistan, Sweden, Thailand and Yemen) were admitted without difficulty.

But, following the start of the Korean War in 1950, the Cold War led to many problems. The (then

dominant) Western group blocked the admission of the communist states of Eastern Europe, and the

Soviet Union and its allies blocked the admission of pro-Western states. The logjam was released by

a deal in 1955 which led to the admission of sixteen new Members. Later, in the 1990s, it was

accepted that micro-states (e.g. Andorra, Liechtenstein, Monaco, Nauru, San Marino and Tuvalu)

could become Members. And Switzerland eventually joined in 2002. The two Germanys and the two

Koreas posed particular problems. As the result of new political arrangements, the former two were

admitted in 1973 and the latter two in 1991.

Withdrawal, suspension and expulsion

The Charter has no provision for a Member to withdraw, but the right to do so can be implied.

January 1965, Indonesia formally announced that it had decided to withdraw, but in September 1966

said that it would resume its participation in UN activities. The other Members appeared not

5. See p. 16 above.

6. See p. 19 above.

7. See p. 26 above.

8. See the Conditions of Admission to Membership in the UN (Article 4) Advisory Opinion, ICJ Reports

(1948), p. 57; 15 ILR 333.

9. See p. 392 below.