Labour relations and the terms of employment of persons working in the territory of a State whether of nationals, residents, or migrant and temporary workers all make up an important element in the conduct of a country’s economy. A specialist labour law is applicable to disputes arising from such relations and in developed States, specialist employment tribunals, staffed by representatives of management and labour as well by lawyers, administer the law. Whilst the employment—its terms for performance, remuneration, including sick pay, overtime, and other benefits, notice and procedures for dismissal or termination—may be provided in an individual contract or imported from standard terms of employment or collective bargaining agreements, there may also be a considerable overlay of statutory or mandatory provisions that the national labour law imposes or in respect of which increasingly the forum State has assumed regional or international law obligations.1
There are also certain generally accepted practices relating to employment to be taken into account in considering the scope of the immunity of a foreign State and international organization as regards employment claims brought before the national courts of another State. Traditionally, both in the common law and in civil law, a widespread difference has existed in municipal law in the terms of employment of the public service—in which an individual might hold an ‘office’2 or be a member of the ‘civil service’—from those where a private party is the employer. Wide discretionary powers of the government or its departments traditionally have been recognized in municipal law in respect of the persons in the public service.
Along somewhat similar lines a principle of customary international law recognizes that a State determines its own internal organization. Consequently, international law recognizes a general rule for the protection of the internal administration of a State by which a State has the exclusive right to designate the individuals who act on its behalf. This customary rule is confirmed in the ILC Articles on State Responsibility, which provide that ‘an organ includes any person or entity which has that status in accordance with the internal law of the State’.3 In consequence, security, confidentiality of information, policy aims, and protection of the national interests are all issues particularly arising in claims relating to the public service.
A foreign State may enter into employment arrangements as part of the organization of a diplomatic mission or consulate in the territory of another country or through some instrumentality of the State in respect of some other activity in which persons are employed. Similarly, an international organization located in the forum State’s territory may be an employer of local personnel. (For an account of the attributes of an international organization which distinguish it from a sovereign State, see Chapter 19.)
Yang, in a detailed examination of the State practice in the US, UK, French, and many other national courts relating to employment disputes brought against foreign States, describes it as ‘the fastest growing part of the law of State immunity and the most diverse and complicated’.4 A glance at case lists reveal that a high proportion of claims made in the national courts of other States against a foreign State or international organization relates to labour disputes.5 The majority relate to the individual applicant and the terms of his or her employment, a few to collective bargaining arrangements between employer and organized representatives of employees such as a trade union or works council6 and some to the social security requirements of the State where the employment takes place.7
Both a State and an international organization enjoy the status of a legal person in international law. Under the absolute doctrine of immunity, the State is immune from the jurisdiction of the national courts of other States and similarly the international organization is immune from all States’ exercise of jurisdiction, save to any extent to which it has agreed in the Headquarters Agreement with the host State or in the constituent treaty which established it. The difference between the two, the State and the organization, becomes clearly apparent on the application of the restrictive doctrine of immunity since the foreign State’s immunity applies to its acts performed in the exercise of sovereign power, but not to its engagement in commercial transactions or acts of a private law nature; whereas the immunity of an international organization derives and is determined by the nature of the functions which the State Parties to the constituent treaty expressly or implicitly confer upon the organization thereby established. An act performed of a nature not in conformity with the organization’s functions is the justification for a national court setting aside its immunity, not the commerciality of the act.
This cardinal distinction means that national courts’ treatment of claims brought by employees against an employer international organization is to be distinguished and raises independent issues from such national courts’ treatment of claims brought by employees of a foreign State employer. Taking into account that the restrictive doctrine first developed with regard to the reduction of the immunity of employment claims brought against foreign States, and to some extent has influenced the restriction of the immunity enjoyed by an international organization as an employer, the State’s immunity with regard to such claims will first be considered followed by an account of the extent of the immunity before national courts enjoyed by an international organization.
With the change to a restrictive doctrine of State immunity, one might expect that the contract of employment would be categorized as a private law contract, being one in which private employers and private employees regularly engage. But in fact the practice of States, in both legislation and court decisions, continued largely to respect the exclusive right of a State, whether at home or abroad, to appoint its officials and to determine their conditions of employment without any external review.8 Both the ILC in its discussions and the 2004 UNSCI adopted this approach, being surprisingly cautious in formulating an employment exception to State immunity.9 UNSCI, Article 11(1) provides for an exception to immunity for contracts of employment in respect of proceedings relating to ‘a contract of employment between the State and an individual for work performed … in the territory of that other State’, but the second paragraph largely reinstates the absolute doctrine by enumerating six situations where the employment exception does not apply, particularly in respect of employment disputes with officials ‘recruited to perform functions closely related to the exercise of governmental authority’ (Article 11(2)(a)).
Under the absolute rule of immunity, claims against the State as an employer were immune reflecting the difference referred to earlier in the treatment in municipal law of the terms of employment in public service from those in private employment and the recognition in international law that a State has the exclusive right to determine the law concerning its internal organization.
Agreement on the terms of the employment exception was one of the five outstanding problems identified by the UNGA Sixth Committee Working Party and was only finalized in the draft text adopted in 2004.10
To maintain a balance between the competing interests of the employer State and the State of the forum, the scope of the exception was formulated in successive drafts by reference to an increasing number of factors: the status of the employee, the nature of the work, the aspect of the employment to which the claim related, the presence of security interests of the employer State; and the territorial connection between the employee and the forum State.11 From the first draft in 1983 through to the 1991 Draft submitted to the UNGA Sixth Committee two qualifications on the status of employee entitled to benefit from the exception were included—immunity was preserved if the employee was neither a national nor a resident of the forum State at the time of employment, nor was a national of the employing State at the date of the institution of proceedings.12 These qualifications were borrowed from the European Convention and applied in the UK SIA, section 4, as also was a third qualification in the ILC Drafts that the parties might otherwise agree subject to public policy. The main novel element in the employment exception in the 1991 Draft was the retention of immunity if ‘the employee has been recruited to perform services associated with the exercise of governmental authority’.
The general rule as set out in paragraph 1 and paragraph 2(b) and (e) of the ILC 1991 Draft Articles appears unchanged in Article 11 of the UN Convention. Paragraph 2(b), by excluding recruitment, renewal of employment and reinstatement, preserved the freedom of the foreign State to control its own internal administration. Paragraph 2(e) was designed as a compromise to allow contractual freedom to the State employer subject to local mandatory labour laws.
Paragraph 2(c), which read as: ‘the employee is neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded’, on examination in the Working Group established by the Sixth Committee and on review in 1999 by the ILC, was generally agreed to be discriminatory and its deletion recommended.13 A similar criticism was directed against paragraph 2(d) in the 1991 ILC Draft, in that nationals of the employing State who were habitual residents of the forum State would be excluded from instituting proceedings relating to their contracts of employment when habitual residents of other nationalities came within the exception to immunity.14 To meet this point, it was accepted that paragraph 2(d) should be revised to read as it now appears in the UN Convention as: ‘(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the forum State’.
Other deletions made in the course of discussions on the 1986 and 1991 text are explained in the ILC Commentary to Article 11 at paragraph 6:
Reference to the coverage of its social security provisions incorporated in the original text adopted on first reading has been deleted on second reading, since not all States have social security systems in the strict sense of the term and some foreign States may prefer that their employees not be covered by the social security system of the State of the forum. Furthermore, there were social security systems whose benefits did not cover persons employed for very short periods. If the reference to social security provisions was retained in article 11, such persons would be deprived of the protection of the courts of the forum State. However, it was precisely those persons who were in the most vulnerable position and who most needed effective judicial remedies. The reference to recruitment in the State of the forum which appeared in the original text adopted on first reading has also been deleted.
In the discussions differences of approach focused on the scope of paragraph 2(a) which, when liberally construed, could in effect defeat the exception by treating all who were employed by a foreign State as performing functions in exercise of governmental authority. Government views remained divided on how wide this exemption should be. Some considered that it should include administrative and technical staff, while others sought a non-exhaustive listing of the categories excluded, such as diplomatic and consular staff as defined in the Vienna Conventions, diplomatic staff of permanent missions to international organizations, members of special missions, persons recruited to represent a State at an international conference, and even press officers, protocol officers, and peacekeepers.15
The 2002 revised text left this difference unresolved, proposing in Alternative A that all members of diplomatic missions and consular posts should be exempted from the employment contract exception and in Alternative B restricting such exemption to the diplomatic agent or consular office in such missions or posts.16 The 2004 text adopts Alternative B subject to a further subparagraph (d) to cover State security interests, accompanied by two Understandings to Article 11 in the Convention’s Annex.
State practice regarding the exception for employment contracts under the restrictive doctrine of immunity prior to 2004 and the adoption of UNCSI demonstrated no uniformity, though there was a considerable increase in claims by State employees in respect of wrongful dismissal and other relief.17 These claims involved not only the contract of employment, its terms for performance, wages, allowances, the notice and procedures for dismissal, but also statutory, frequently mandatory provisions including social security imposed by the labour laws of the forum State, and others derived from bargaining arrangements between employers and organized representatives of employees in particular sectors of work.18 In dealing with these claims State practice showed no uniformity, but it can be analysed into a number of models.
Under Model I, local courts treat employment contracts as a commercial or private law transaction19 within the general exception for commercial activity or transactions. This is the model employed by the US FSIA.20 The House Report accompanying the US legislation stated in respect of employment claims, that ‘the courts would have a good deal of latitude in determining what is a “commercial activity”’. It classified as ‘public or governmental activities rather than as commercial’ ‘the employment of diplomatic, civil service and military personnel’.21 US courts have broadly treated employment claims as ‘the type of actions by which a private party engages in “commerce”’ (Weltover22) and hence as a commercial activity.23 However, some courts have given particular regard to the status of the employee in the diplomatic mission or civil service,24 or by reference to the employee’s security duties,25 and have held the employment to be immune as ‘sovereign’,26 discounting claims of mistreatment and dismissal by reason of sexual, religious, or other discrimination.27 Whereas other courts have relied on standard claims related to the terms of the employment contract to support its commercial nature, ‘making decisions about what tasks employees perform, how much they are paid, or how they are treated in the workplace does not implicate concerns “peculiar to sovereigns”. These are decisions that parties in the private sector make every day.’28 The maintenance of this classification between commercial and governmental has in consequence caused in particular cases dissatisfaction both to the employee and the foreign State.29
Model II identifies special categories of employees, designs special regimes of jurisdiction for such employees, and excludes them from the general law of immunity; such special regimes exist for members of diplomatic staff and of visiting armed forces (see Chapter 19). While it rarely stands alone, being often combined with Model I or III, it operates independently as an exclusion of a special regime from the general law of immunity.
Model III provides a special exception for employment contracts additional to the general exception for commercial or private law transactions; it was first adopted by the ECSI 1972 and followed by the UK SIA and State immunity legislation of other common law countries. ECSI, Article 5 provides a special exception dealing with contracts of employment, as distinct from the more general exceptions relating to contractual obligations and conduct of business by an office located in the forum territory in Articles 4 and 7. Article 5 removes immunity from contracts of employment between the State and an individual whose work is to be performed in the forum territory, but contracts of employment with nationals of the defendant State and with third State nationals not resident in the forum State at the time of recruitment remain immune.30
Section 4 of the UK SIA broadly incorporated the ECSI employment exception into English law. Both allow the parties by express agreement in writing to retain immunity, but not where it conflicts with mandatory local labour laws. The UK SIA defines proceedings relating to a contract of employment as including proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee. See further Chapter 7.
All the Models were deficient in inadequately taking account of the diverse factors involved in the employment relationship and the differing classification of the types of work and employee coming within Models I, II, or III applied by individual national systems.31 As will be seen, UNSCI, Article 11(2) takes account of some but not all of these factors.
Some of these deficiencies have been addressed in recent wide-ranging developments both in EU law and in the application of the ECHR with regard to a plea of State immunity as a valid restriction to an aggrieved applicant’s procedural right of access to a court. As regards EU law, following judgments in the European Court of Justice and the 1976 Directive on Non discrimination (No 76.207) a significant change has taken place in respect of the adoption of increased judicial control as regards discrimination relating to the employment of migrant workers. A shift away from seeing migrant workers as merely economic assets to one seeing them as individuals with rights against the employer State has led to a process of refining and narrowing the term ‘public sector’. As a first stage, in Commission v France (Bleis), Advocate-General Mancini noted the adoption by the ECJ of a restrictive interpretation autonomous to the EU, a functional criterion based on the nature of the employee’s duties and responsibilities, which excluded from the ‘public sector’ low rank and middle rank employees such as hospital nurses, post office workers, and schoolteachers. He envisaged the restrictive class of officials with authority to exercise power as arising ‘from the sovereignty of the State for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power, and powers of coercion over citizens’; and declared that the powers exercised in the public service should be for the protection of general interests, such as powers relating to policing, defence of the State, administration of justice, and assessment of tax.32
As for the ECtHR, in 1999 it had to determine in Pellegrin the scope of the procedural right of access to a court as applied to public servants, whether established or employed by contract. The ECtHR reviewed these developments in EU law and itself adopted a restrictive functional interpretation, in accordance with the object and purpose of the ECHR, of the exceptions to the safeguards afforded by Article 6(1). Accordingly, it excluded the application of ECHR to certain posts involving participation in the exercise of powers conferred by public law, with the holders of such posts exercising a portion of the sovereign power of the State and the State therefore having ‘a legitimate interest in requiring of these servants a special bond of trust and loyalty’. The Court regarded the armed forces and the police as providing a manifest example of such activities (paras 65–6). It held disputes concerning pensions to come within the ambit of Article 6(1) because ‘in retirement employees break the special bond between themselves and the authorities and … find themselves in a situation directly comparable to that of employees under private law’ (para 67).33 On the facts of the case the ECtHR held the post of the applicant on the civilian cooperation staff serving in foreign States under a government Ministry and with considerable responsibility in the field of the State’s public finances to be excluded from the scope of Article 6(1).
In the 2007 case of Vilho Eskelinen v Finland the anomalous results which the Pellegrin functional criterion produced were brought sharply to the notice of the Strasbourg Court34 and led it, in respect of a claim brought by police officers for the disregard of wages due for service at a remote station on the centralization of the police services, to conclude that a review and a development of the case-law was necessary. On a strict application of the Pellegrin approach, although the duties to be performed might be indistinguishable from those of private employment the defendant State claimed that the inclusion of the applicant in a category—in this case the police—considered to be exercising ‘sovereign power’, automatically served to exclude the claim under ECHR, Article 6(1). Further, whilst Pellegrin was to be treated as a first step away from the inapplicability of Article 6 to the civil service, the Court pointed out that it took no account that in very many contracting States access to a court is accorded to civil servants, allowing them to bring claims for salary and allowances, even dismissal or recruitment, on a similar basis to employees in the private sector. Accordingly, though neither the Convention nor its Protocols guaranteed a right of recruitment, the ECtHR revised the functional criterion so as to state ‘that everyone within the jurisdiction of the Contracting States’ must enjoy the rights and freedoms conferred in the ECHR ‘without discrimination on any ground’ and that there should therefore be a convincing reason for excluding any category of applicant from the protection of Article 6(1).35
The Court concluded its review of Pellegrin by providing a summary of the general principles to be followed, stating that the participation in a department of the State engaged in the exercise of power conferred by public law was not in itself decisive; exclusion of the post or category of staff in question required that either the assigned functions of the employee authorized ‘the holders of such posts to wield a portion of the State’s sovereign power’ or that their exercise called into question the ‘special bond of trust and loyalty’ between the civil servant and the State, as employer. There was in principle no justification for the exclusion from the guarantees of ECHR, Article 6 of disputes relating to salary and other benefits common to all types of employment. There would, in effect, be a presumption that Article 6 applies.36 It would be for the employer State to demonstrate, first, that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified.37
The ECtHR accordingly applied to the public service and to State employees access to court pursuant to ECHR, Article 6(1). In doing so, it expressly referred to the employment exception to immunity in UNCSI, Article 11, in particular with regard to employment in diplomatic missions abroad construing UNCSI, Article 11(2) in reaching its decisions. Whilst in Fogarty in 2001 the Strasbourg Court was prepared to uphold a State’s immunity relating to a claim for reinstatement of an employee in a post in its diplomatic mission in ‘the absence of any trend towards the relaxation of the rule of immunity as regards issues of recruitment’,38 in Cudak v Lithuania, Sabeh El Leil v France, and most recently in Wallishauser v Austria,39 the Court has adopted the wording of UNCSI, Article 11 in determining whether the retention of immunity by the foreign State employer or its security interest bars a claim brought in a court of the forum State in the territory where employment takes place by an aggrieved employee.
This increasing engagement of the Strasbourg and Luxembourg Courts in the regulation of employment disputes has been criticized as channelling the international rules of State immunity into a regional approach that is not necessarily accepted elsewhere. Such criticisms concern not only the courts taking little account of the merits of other procedures—as discussed later in Status of Forces Agreements and alternative internal justice systems of international organizations—but also the lack of recognition of the flexibility of contract as a method of providing a fair allocation of the conflicting interests of all parties.
Article 11 of UNCSI establishes in its first paragraph an exception to immunity from adjudication for proceedings relating to ‘a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.’ As already mentioned, the second paragraph largely retains the absolute doctrine by enumerating six situations in its subparagraphs where the exception to immunity does not apply to a wide range of employees particularly in respect of employment disputes with officials ‘recruited to perform functions closely related to the exercise of governmental authority’.
UN Convention Article 11
Contracts of employment
1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
The ILC Commentary states that
Article 11 … endeavours to maintain a delicate balance between the competing interests of the employer State with regard to the application of its law and the overriding interests of the State of the forum for the application of its labour law (paragraph 5).
UN Convention Article 11(1)
1. Unless otherwise agreed between the States concerned, …
ILC Commentary (7) Paragraph 1
… is formulated as a residual rule, since States can always agree otherwise, thereby adopting a different solution by waiving local labour jurisdiction in favour of immunity. Respect for treaty regimes and for the consent of the States concerned is of paramount importance, since they are decisive in solving the question of waiver or of exercise of jurisdiction by the State of the forum or of the maintenance of jurisdictional immunity of the employer State. Without opposing the adoption of paragraph 1, some members felt that paragraph 1 should provide for the immunity of the State as a rule and that paragraph 2 should contain the exceptions to that rule.
In addition to the possibility of the forum and foreign State agreeing to an alternative regime, or retaining full immunity for all contracts of employment made by the foreign State, by Article 11(2)(f) the employee may also agree to an alternative arrangement; subject to mandatory labour laws required by the forum State, a qualification which, presumably, might not apply where the arrangement is made directly between the two States.40
Otherwise competent
UN Convention Article 11(1)
… a court of another State which is otherwise competent
ILC Commentary to Article 11 at paragraph (2)
… The area of exception under this article concerns a contract of employment or service between a State and a natural person or individual for work performed or to be performed in whole or in part in the territory of another State.
(3) With the involvement of two sovereign States, two legal systems compete for application of their respective laws. The employer State has an interest in the application of its law in regard to the selection, recruitment and appointment of an employee by the State or one of its organs, agencies or instrumentalities acting in the exercise of governmental authority.
(4) On the other hand, the State of the forum appears to retain exclusive jurisdiction if not, indeed, an overriding interest in matters of domestic public policy regarding the protection to be afforded to its local labour force…. The basis for jurisdiction is distinctly and unmistakably the closeness of territorial connection between the contracts of employment and the State of the forum, namely performance of work in the territory of the State of the forum, as well as the nationality or habitual residence of the employees.
This same phrase appears in all other exceptions to immunity from adjudication except the commercial exception in Article 10. For a discussion of the general requirement of a jurisdictional link with the forum State’s court, see Chapter 4 and Chapter 12. UNCSI appears to assume that in respect of the special situation of employment contracts, as also with claims for personal injuries, more rigorous jurisdictional links than those which apply to litigation between private individuals are required; not only is there to be a territorial link with the place of performance in whole or in part in the territory of the forum State, but where a national of the employing State is concerned a personal link of the employee’s permanent residence in the forum State is required to make the exception to immunity applicable (see Article 11(2)(e) below). The 1999 Report of the ILC Working Party noted the wording ‘to be performed in whole, or in part, in the territory of the forum State’ might lead to uncertainty as to whether the forum State had the better jurisdictional ground for competence where the contract also envisaged part performance in territories other than that of the forum State.
The requirement that the removal of immunity to contracts of employment be restricted to such contracts as are made in the territory of the forum State is supported by State practice; national courts increasingly show readiness to assume jurisdiction, at least so far as the financial consequences of termination of an employment contract by a State, where the employee is a national of the forum State or a habitual resident in its territory.
ILC Commentary to Article 11(1) paragraph (a)(2)
… Two sovereign States are involved, namely the employer State and the State of the forum. An individual or natural person is also an important element as a party to the contract of employment, being recruited for work to be performed in the State of the forum. The exception to State immunity applies to matters arising out of the terms and conditions contained in the contract of employment.
(6) Paragraph 1 thus represents an effort to state the rule of non-immunity. In its formulation, the basis for the exercise of jurisdiction by the competent court of the State of the forum is apparent from the place of performance of work under the contract of employment in the territory of the State of the forum.
UNCSI, Article 5 provides that ‘A State enjoys immunity … from the jurisdiction of the courts of another State subject to the provisions of the present Convention’, but it gives no guidance, nor does the ILC Commentary, whether each exception is to be applied separately or whether matters covered in the exceptions may be the subject-matter of more than one exception. The question has particular relevance for the relationship of the employment exception with the personal injuries exception in Article 12, particularly in respect of this second paragraph of exclusions of the exception for employment contracts. Article 11 focuses on the specific contractual relationship between the individual and the employer State, whereas Article 12 focuses on one particular kind of injury suffered without reference to the relationship between the official and the State or the occasion on which it occurred. In the case of abused service staff that suffer a personal injury the subject-matter is arguably of relevance in both exceptions and there would seem to be no reason why the inclusion of the complaint in the non-contractual exception should exclude it from the scope of the employment exception.
Inclusion of such a complaint in the employment exception might provide one route by which unremedied violations of human rights could be addressed without the application of the procedural bar of immunity, which the ICJ has now declared in its Jurisdictional Immunities judgment excludes proceedings in national courts relating to claims for which no alternative remedy exists.41 Further, the limits of the exception to immunity for contracts of employment need to be fully addressed: a complaint of personal injuries—particularly mental stress resulting from bullying or sexual abuse by a superior employee—may constitute an element of a complaint in an employment claim as well as one alleging personal injuries. An aspect of this overlap between Articles 11 and 12 may be observable in the uneasiness as to the absence of full investigation of the facts expressed in the separate opinions of certain judges in the ECtHR cases of Cudak and Sabeh el Leil.42
There is a similar absence in the UK legislation of any provision defining the relationship of one exception to another save that SIA, section 16(1)(a) excludes the application of the employment exception to immunity in section 4 as regards the employment of the members of a diplomatic mission. In a case before the Employment Appeals Tribunal the issue arose whether section 16(1)(a) which preserved the immunity of the applicant who worked in a diplomatic mission as regards the claim under SIA, section 4 the employment exception, also barred a claim relating to discrimination causing personal injuries. Underhill J (president) stated:
Sections 4 and 5 are separate and freestanding exceptions to the general rule of state immunity provided by section 1: that is so even though on the facts of a particular case, and specifically in a case of a claim for personal injury by an employee, both exceptions might be engaged. Section 16(1)(a) expressly qualifies that exception as regards section 4 but it has no impact on section 5.43
UN Convention Article 11(2)
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.
One explanation for the retention of immunity in Article 11, paragraph 2, in particular in subparagraph (a), was, as already discussed, the strength of the reservation in international law of the internal administration of the State as a matter of domestic jurisdiction and an employer State’s exclusive control of its civil service, justified in the words of the ECJ as involving ‘direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State and other public authorities’.44
However, as described in the review of State practice above, the ECtHR in according State employees access to court pursuant to ECHR, Article 6(1) now expressly refers to UNCSI, Article 11 and construes paragraph 2 in reaching its decisions. The Court has noted the recent development of international law, a development which it describes as reflected in Article 5 of ECSI and in Article 11 of the ILC 1991 Draft Articles, which is now enshrined in Article 11 UNCSI.45 Regardless of the fact that UNCSI is not in force, and the uncertainty of the Convention achieving 30 ratifications to bring it into force, the Court has treated Article 11 as a rule of customary international law and remarkably, even where a State has neither signed nor ratified the Convention, has treated the State’s express lack of consent to the UN General Assembly’s adoption of the text in December 2004 as a ground to apply UNCSI, Article 11 to the proceedings as a rule of international customary law.46
The enumeration in Article 11(2) of certain aspects of the employment relationship which exclude the application of the exception to immunity is an advance on that in ECSI and the national legislation as to the circumstances where the rule of immunity still prevails. However, not all the diverse factors which make up an employment relationship—its terms, the nature of dismissal, the status of the employee as regards work qualifications, nationality, age, sex, the special concerns of the employer State as to profitability, confidentiality and security—are covered in this second paragraph. It is to be hoped that in reaching a decision a court will review all the circumstances applicable to the particular employment relationship and not merely apply a single listed head of the exclusions.
Employee engaged in the exercise of governmental authority
UN Convention Article 11(2)
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
The placing first in the list the performance of ‘particular functions in the exercise of governmental authority’ as a ground of the inapplicability of the exception to immunity provided in Article 11(1) has led to construing this paragraph 2(a) broadly as stating the fundamental basis for the retention of immunity and treating the five following grounds as merely setting out particular aspects of those functions. This approach has been criticized as focusing on the State and its economic purpose in undertaking employment in the forum State territory rather than the benefits due to the employee in return for his or her service. It reflects the treatment in US law of claims relating to employment with a foreign State, outlined under Model I above.47
Certainly, Chatham House Commentary on UNCSI would seem to adopt this broad construction: ‘The exception relating to people performing functions in the exercise of governmental authority could cover a very broad range of employees in the public sector. In some countries the public sector is very large and may include post office workers, railway workers, teachers and many others.’
This view is supported by the ILC Commentary to Article 11 at paragraph (9).
Paragraph 2 (a) enunciates the rule of immunity for the engagement of government employees of rank whose functions are closely related to the exercise of governmental authority. Examples of such employees are private secretaries, code clerks, interpreters, translators and other persons entrusted with functions related to State security or basic interests of the State.
The legislative history, however, clearly contradicts this broad reading; it shows that no finality as regards the formulation of the exception to immunity for employment had been reached in 1991 and the 2004 treaty form of Article 11 is the product of the later extensive deliberations in the Working Group of the UN’s Sixth Committee. State practice subsequent to 1991, particularly as evidenced in national and ECtHR decisions, supports a more restricted reading and, in particular, contrary to the ILC Commentary, excludes from the application of Article 11(2)(a) the functions of lower and middle rank officials. In 2008 in an appeal arising from a dismissal notice of an employee in the Polish Embassy, the Czech Republic Supreme Court declared the Czech court to have jurisdiction and, noting that the dynamic expansion of international relations had resulted in the development of a functional conceptualization of this legal relationship, stated:
In the matter under consideration, this means that in a case where the State acts not as a bearer of public authority, but as a juridical person in matters deriving from individual labour relationships characterized by the legal equality of their participants, the rules of international law justify the conclusion that this juridical person—the foreign State—does not enjoy functional immunity …48
The ruling of the Grand Chamber of the ECtHR in Vilho Eskelinen v Finland provides useful guidance on how to apply the term ‘the exercise of governmental authority’. It first recommends in setting aside immunity and allowing a right of access to a court the fulfilment of two conditions:
Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. The mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, to use the words of the Court in Pellegrin, a ‘special bond of trust and loyalty’ between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified.49
The wording of paragraph 2(a) of Article 11 UNCSI also narrows its scope: the employees have to be specially recruited for the particular functions which exclude the application of the exception for employment in paragraph 1, and as stated in the earlier Pellegrin case, the assigned functions must authorize ‘the holders of such posts to wield a portion of the State’s sovereign power’.50 In effect this narrowing of the scope of the functions approximates to those described by the late Professor Brownlie when presenting his proposals for the reform of State immunity he identified as an activity in the exercise of sovereign authority ‘the implementation of foreign defence and security policies in the defendant State’.51 An official appointed for and entrusted with the function of authorizing the issue of passports and visas might fall within such a category, as probably the personal bodyguard of a Saudi princess,52 and possibly even a chauffeur assigned to drive the Head of the Mission.53
Without this narrowing of the relevant functions there will be a temptation to use the blanket words of ‘exercise of governmental authority’ to facilitate the dismissal avoiding the exception to immunity in Article 11(1) of ‘whistleblowers’ (such as Nelson in the Saudi Hospital case) or others for undisclosed reasons of gender, racial or religious grounds of discrimination. The unease of the separate opinions of certain ECtHR judges referred to above supports the existence of such a risk.54
UN Convention Article 11(2)
2. Paragraph 1 does not apply if: …
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
UNCSI, Article 3(1) states that the Convention is without prejudice to ‘the privileges and immunities enjoyed by a State in respect of (a) its diplomatic missions, consular posts, special missions, missions for international organizations or delegations to international organizations or international conferences and (b) persons connected with them’. A large part of the relevant international law relating to diplomatic law is now codified in the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations and on that basis this exclusion in UNCSI, Article 3(1) is in line with State practice and would seem to adopt Model II as described above—an exclusion that ECSI and the UKSIA had also previously observed55 (see Chapter 19). However, as revealed in the legislative history, considerable differences exist in State practice as to the conferment of immunity on ancillary and lower grades of staff employed in diplomatic missions,56 and in consequence Article 11 of UNCSI adopts Model III in providing an exception to immunity for employment contracts additional to the general exception for commercial transactions with the exclusion of the diplomatic and international missions in paragraph 2(b). This seems a contradiction of UNCSI, Article 3(1) (a); rather than excluding them this subsection (b) of Article 11(2) expressly confers immunity on the members of diplomatic and international missions as regards their employment with a State.
Following a recommendation of the 1999 Report of the ILC Working Group, the precise categories of persons from which immunity is removed are made plain in Article 11(2)(b), though the addition of the final ‘(iv) any other person enjoying diplomatic immunity’ was not included in the ILC’s list. Whilst State practice has established reasonably clearly the criteria for recognition of a ‘diplomatic agent’—as ‘a person possessing a diplomatic title and performing diplomatic duties’57—the final clause (iv) includes ‘any other person enjoying diplomatic immunity’, which would cover all members of the diplomatic mission including administrative, technical, and service staff as UK SIA, section 16(1)(a) purports to do, and would seem over-broad. The Australian FSIA 1985, section 12(6)(1)(a) and (b) excludes from the exception for employment contracts the administrative and technical staff of a diplomatic mission and a consular employee unless they were at the time when the contract of employment was made permanent residents of Australia.
The Council of Europe survey revealed the diversity and uncertainty that existed in State practice in relation to employment disputes concerning staff of diplomatic missions. National courts either ruled that staff attracted immunity; that staff did not benefit from immunity under the commercial transaction exception; or decided on a case-by-case basis according to the status of the employee, nature of the duties, and ground of dismissal.58 The diversity of State practice with regard to diplomatic missions is illustrated by the UK Employment Appeal Tribunal’s decision in Sengupta v Republic of India, dismissing as immune a claim brought by a member of the clerical staff on the ground of his participation in the public acts of a foreign State ‘at however a lowly level’, holding that assessing the fairness of his dismissal would involve the court in an investigation of and interference with a public function of a foreign sovereign.59 It is to be contrasted with employment contracts treated as coming within the commercial exception as a private law jure gestionis transaction by a Spanish court with regard to a driver at an embassy and by the Austrian Supreme Court with regard to a photographer.60
As noted earlier,61 the ECtHR has applied the general principles relating to access to court pursuant to ECHR, Article 6(1) to the employment contracts of foreign diplomatic missions and adopted the wording of UNCSI, Article 11 in recent decisions as to an employer State’s immunity with regard to employment contracts. It has accordingly set aside the immunity of the employer State with regard to claims of employees of diplomatic missions such as a switchboard operator in Cudak, an accountant in Sabeh El Leil, and a photographer in Wallishauser.
Where the subject-matter is recruitment, renewal of employment, or reinstatement
UN Convention Article 11
2. Paragraph 1 does not apply if:
… (c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
ILC Commentary at Paragraph 10
Paragraph 2(b) is designed to confirm the existing practice of State in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position. This includes actual appointment which under the law of the employer State is considered to be a unilateral act of governmental authority. So also are the acts of ‘dismissal’ or ‘removal’ of a government employee by the State, which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer State. This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement. The rule of immunity applies to proceedings for recruitment, renewal of employment and reinstatement of an individual only. It is without prejudice to the possible recourse which may still be available in the State of the forum for compensation or damages for ‘wrongful dismissal’ or for breaches of obligation to recruit or to renew employment.
In other words, this subparagraph does not prevent an employee from bringing action against the employer State in the State of the forum to seek redress for damage arising from recruitment, renewal of employment or reinstatement of an individual
This retention by Article 11(2)(c) of immunity for recruitment matters is in line with State practice as established in Fogarty v UK in which an Irish national made a complaint against the US for sex discrimination in respect of a job application for a post within the US Embassy in London. The English industrial tribunal dismissed her claim on the ground that the English statute excluded the application of the exception to immunity for certain employment contracts to diplomatic staff (section 16(1)(a)). The ECtHR upheld the immunity, ruling that her claim related to discrimination on ground of sex in the appointment to a job, and that there was no civil right of a public official to appointment; in English and other legal systems the recruitment process is treated as a matter of discretion for the State. The ECtHR further confirmed that the exclusion from the employment exception in the UK SIA, section 16(1)(a) relating to diplomatic staff in extending immunity in respect of all staff, not merely senior staff, had not been shown to ‘fall outside any currently accepted international law standards’. In their concurring opinion Judges Caflisch, Costa, and Vaji stressed the non-justiciable nature of the acts complained of: ‘It is inconceivable that a State, when appointing those who will represent it abroad—including clerical staff—would have to submit to the standards set by the laws and procedures of another State, in particular those of a host State’.62 The Chatham House Commentary on UNCSI remarks that this reservation ‘[i]n practice, … is likely to limit the exception to cases involving dismissal, termination of employment, and claims for unpaid wages’.
State practice increasingly makes a distinction between the manner of termination and the financial consequences of a termination of an employment contract by a State. As to the manner, national courts will not examine the reasons for termination nor call upon the employer State to justify the termination; the decision to terminate is an acte de gouvernement not subject to the local court’s jurisdiction. But the local court will exercise jurisdiction over the financial consequences of summary dismissal and termination.63 As noted earlier, the court’s reluctance to make a wider enquiry into any circumstances external to the terms of the contract (such as sexual abuse resulting in the dismissal) prevents any account of such treatment being reflected in the court’s order as to compensation.
UN Convention Article 11(2)
2. Paragraph 1 does not apply if:
… (d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
The reference in Article 11, paragraph 2(d), to the ‘security interests’ of the employer State is intended primarily to address matters of national security and the security of diplomatic missions and consular posts.
Under article 41 of the 1961 Vienna Convention on Diplomatic Relations and article 55 of the 1963 Vienna Convention on Consular Relations, all persons referred to in those articles have the duty to respect the laws and regulations, including labour laws, of the host country. At the same time, under article 38 of the 1961 Vienna Convention on Diplomatic Relations and article 71 of the 1963 Vienna Convention on Consular Relations, the receiving State has a duty to exercise its jurisdiction in such a manner as not to interfere unduly with the performance of the functions of the mission or the consular post.
This paragraph and the annexed Understanding narrows the width of paragraph (a) ‘functions in the exercise of governmental authority’ so far as that phrase relates to ‘security interests’. In the course of discussions in the Ad Hoc Committee, the difficulty of establishing that the dismissal was wrongful, and the scope of security considerations as validating dismissal were discussed, it being asked whether a government decision to reduce the size of the mission would constitute wrongful dismissal. In an effort to resolve these problems, Article 11(2)(d)’s reservation and Understanding were added.
As regards the restructuring of an embassy or the reorganization of the mission, the ECtHR has approved the view that whilst the State enjoys immunity from jurisdiction as to the assessment of the reasons for a decision to close a mission, the national courts retain the power to verify the reality of the closure and to rule on the consequences of any resulting redundancies. To comply with this provision, it is necessary, as held in Sabeh El Leil, to provide evidence establishing that the head of State, the head of Government or the Minister for Foreign Affairs, is of the opinion that such a risk exists. The members of the mission charged with the authority to sign passports and visas may be particularly vulnerable to security checks under this provision.
It would seem that this ground (d) for retention of immunity was in part reflecting a fairly broad position taken by States with regard to their foreign Chancelleries, as expressed by the Dutch Supreme Court in 1991 when it declared:
… A foreign State should, for reasons of State security, be given the opportunity to allow the conclusion or continued existence of a contract [of employment] to depend on the result (which is not subject to the assessment of the other party or the courts of the receiving State) of a security check…. It cannot be assumed that a foreign State which enters into a contract thereby loses its right to rely on immunity when terminating the contract on the ground of security check … no matter how much the contract itself is of a private nature.64
However, it is doubtful, at least as regards Member States of the EU, whether such a view still applies having regard to the ECJ’s decision in Marguerite Johnston’s case in which it set aside a Chief Constable’s certificate that national security and public safety precluded a policewoman from serving as an armed officer and referred the issue to the decision of the national court in order that an individual should not be deprived of the possibility of asserting its rights by judicial process.65
The right of a State to dismiss its officers when serving abroad remains a widely accepted requirement of governments, democratic as well as totalitarian.66 Despite the Understanding, Pingel sees this paragraph 2(d) as capable of diverse application in national courts.67
UN Convention Article 11(2)
2. Paragraph 1 does not apply if:
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum;
The Commentary to Article 11 stated in paragraph 11 that
The protection of the State of the forum is confined essentially to the local labour force, comprising nationals of the State of the forum and non-nationals who habitually reside in that State. Without the link of nationality or habitual residence, the State of the forum lacks the essential ground for claiming priority for the exercise of its applicable labour law and jurisdiction in the face of a foreign employer State, in spite of the territorial connection in respect of place of recruitment of the employee and place of performance of services under the contract.
This narrow view of the ILC’s position in 1991 was based on a similar removal of immunity for employment contracts with a State in ECSI, Article 5(2)(a). It arose from a distinction derived from the competence of administrative courts over civil servants as opposed to the competence of civil law courts over locally recruited staff. In civil law systems a foreign State cannot recruit, in the forum State, employees by means of its own administrative law; for in order to nominate candidates to the regular civil service a State needs an imperium, which it does not enjoy when in another State.68
Nonetheless, Belgian and Swiss courts questioned the inclusion of a nationality or habitual residence requirement in the conditions of the immunity exception,69 and civil courts increasingly showed a willingness to undertake a preliminary investigation into a dispute relating to a national of a State who was not party to ECSI, awarding compensation but refusing any order for reinstatement,70 or putting the defendant State to proof of the security reasons for which the employee is alleged to have been dismissed.71
These developments and decisions in the ECtHR relating to the procedural right of access were raised in the discussions in the Working Group established by the UNGA Sixth Committee and the nationality and permanent residence restrictions were amended to remove immunity in respect of nationals of the forum or third States and in respect of all employees enjoying permanent residence in the forum State.72 It is to be noted that, unlike in the previous ILC draft, the date at which nationality or permanent residence is to be determined is the date when the proceedings is to be instituted. This selection of the later date is in conformity with the ICJ’s ruling in the Jurisdictional Immunities judgment that the plea of immunity is a procedural plea to be determined at the institution of the proceedings (para 58).
It would seem likely that given this amendment to the UNCSI, the UK SIA, section 4(2)(b) which excludes proceedings brought by third State nationals who were not habitually resident in the UK at the time the contract was made should be read as discriminatory, and a disproportionate limitation contrary to ECHR, Article 6(1), and should be read down as incompatible with the Human Rights Act 1998.73
UN Convention Article 11(2)
2. Paragraph 1 does not apply if:
… (f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.
ILC Commentary to Article 11, paragraph 13.
This reservation provides for the freedom of contract, including the choice of law and the possibility of a chosen forum or forum prorogatum. This freedom is not unlimited. It is subject to considerations of public policy or ordre public or, in some systems, ‘good moral and popular conscience’, whereby exclusive jurisdiction is reserved for the courts of the State of the forum by reason of the subject-matter of the proceeding.
The consent of the foreign employer State to the contract being governed by the law of the forum State may be a significant factor in the court of the forum construing its terms. In addition, the obligation on the employer State to ‘respect the laws and regulations of the receiving State’ pursuant to VCDR, Article 41(1), may be particularly relevant as regards the terms of employment of servants of diplomats relating to social security requirements of local law.74
Before addressing the extent of an international organization’s immunity in respect of labour disputes from the jurisdiction of national courts, it is necessary to take account of the restricted nature of the international personality enjoyed by an international organization as compared to that of a sovereign State (see also Chapter 19). An organization has no territory nor jurisdiction in respect of such territory to set up its own tribunals and enforce its internal regulations of its own; its location, the centre of operation, is dependent on a Headquarters Agreement with the host State; and any jurisdiction which it exercises within the host State is dependent on that State’s consent. At the same time its operations are governed by the constituent treaty which establishes it and it is answerable for its actions to the States Party to that treaty. From the point of view of the Host State and founder State members, the terms of the constituent treaty setting up the organization and the HQ agreement, rather than the requirements of the national law of the territory in which it has its headquarters, govern the performance of its functions and the manner in which its discharges its responsibilities to its employees.
Any dispute between the international organization and its employees relating to the terms of employment or to wrongful dismissal or other wrongful act of the organization, requires reference to the functions which the organization is authorized to perform under its constituent treaty. Complaints that an organization’s acts infringe the international obligations of the forum State are a matter relating to the terms of the Headquarters Agreement and for settlement between the Host State and the organization.
As discussed below, difficulties can be avoided in a number of ways: waiver by the organization of its immunity in respect of certain types of transaction; reference to the provision in its constituent treaty and endorsed in the HQ Agreement for an alternative dispute settlement procedure; where a host State is a party to a treaty imposing obligations to protect the human rights of private persons within its territory, it will have to ensure that standards compatible with such obligations are observed in such alternative procedures. This raises issues of State responsibility, which are addressed in general terms in the ILC’s Draft Articles on the State Responsibility of International Organizations (DARIO) (see below).
With the greater attention to the protection of workers, the discriminatory nature of a State’s control of its officials—compared to employment in the private sector—has increasingly come under judicial scrutiny by national courts. Inevitably, employees of international organizations have brought challenges in national courts, particularly those of States Parties to the ECHR, claiming the alternative dispute settlement procedures of the organization deny the right of access to the court.
One solution was put forward by the ECtHR in the leading case of Waite and Kennedy v Germany; Beer and Regan v Germany,75 in which ‘employees’ of the European Space Agency,76 complained that their right of access to a court of law under Article 6(1) of the ECHR had been breached by the refusal of the local German court, after argument of the issue of immunity, to entertain their claim to an employment contract with the ESA. Recognizing that the right of access to the courts was not absolute, and that the contracting States enjoyed a margin of appreciation, the ECtHR applied the general principles established in its case-law regarding access to a court pursuant to ECHR, Article 6(1),77 in particular the need for such restricted access to pursue a legitimate aim and for there to be a relationship of proportionality between the means employed and the aim sought to be achieved. It noted that the government and the Commission agreed with these views, holding that the attribution of privileges and immunities to international organizations was a long-standing practice and ‘an essential means of ensuring the proper functioning of such organizations from unilateral interference by individual governments’. The court accordingly held that the rule of immunity had a legitimate objective. In judging whether the limitation was proportionate to that objective the court stated that: ‘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’.78
After scrutiny of the procedures available to the applicants, who, as temporary workers, were also able to seek redress from the firms that employed and hired them out, the ECtHR concluded that the test of proportionality could not be applied in such a way as to compel an international organization to submit itself to national litigation in relation to employment conditions prescribed under national labour laws.79
Despite the dismissal of the claim itself by the ECtHR, some States Parties to the ECHR (in some cases such States also being party to the treaty setting up the particular organization) have expressed hesitancy in applying to an international organization this standard of ‘reasonable alternative means’ or ‘equivalent protection’. Further, it is argued that an international organization’s alternative dispute system, as developed by the major international organizations, such as the World Bank Administrative Tribunal and the International Labour Organisation Administrative Tribunal, provides a common standard worldwide drawing on a substantial body of case-law to those it employs and discourages ‘forum shopping’ either by complaint to the national court or application to the ECtHR.80
In 1995 the French Cour de Cassation, having dismissed for lack of jurisdiction an employment claim of the Secretary-General of the Western European Union by reason of that organization’s immunities,81 queried in its annual report whether such an international organization’s denial of justice to an employee could be overcome by the primacy of the ECHR by reason of its guarantees of access to the court and a fair hearing.82 It commented that for the court to undertake such a course would disturb international relations, reducing to almost nothing the jurisdictional privileges and immunities of numerous international organizations of which France was a member.
This French court’s questioning of the propriety of the judicial scrutiny of acts of an international organization was echoed by an English court in a decision rejecting a claim for breach of a commercial contract brought against UNESCO. The court declared the right of access to court in the ECHR, Article 6(1) was not applicable to a universal convention concluded prior to 1952, to which 115 States were parties, a number far in excess of the parties to the ECHR (para 27); further that it would be wholly inimical to the international scheme if individual State Parties could arrogate to themselves the power to determine whether the dispute settlement procedure of UNESCO was adequate (para 170). The English court even went so far, by reference to the decision in Waite and Kennedy of the ECtHR, to express the view that the legitimate aim of the immunities was not the proper functioning of the organization but the compliance of States Parties with their obligations owed in international law (para 26), and there was no ground to challenge the proportionality of UNESCO’s alternative dispute settlement procedure (para 28).83
US law has largely accepted the treaty status of international organizations to justify the independence of its own dispute settlement procedures from judicial scrutiny. The US International Organizations Immunities Act 194584 provides that ‘international organizations … shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments’, and in Broadbent v Organization of American States the employment by an international organization of internal administrative staff was held analogous to a State’s employment of civil servants. Although it was argued that the introduction of restrictive immunity for foreign States by the FSIA effected a similar reduction from absolute to restrictive immunity in respect of international organizations, the Appeal Court held that such employment was not to be characterized as ‘doing business’ and was hence immune.85
Despite these expressions of judicial hesitation with regard to the ECtHR’s 1999 decision in Waite and Kennedy and its standard of ‘reasonable alternative means’, the French courts, along with the Italian, Swiss, and Belgian courts have in subsequent cases undertaken a review of the adequacy of the procedures adopted by international organizations for settlement of disputes. In 2005, in confirming the Paris Court of Appeal’s ruling that an alternative remedy provided in the Khartoum constituent treaty of the African Bank of Development was ineffective, the French Cour de Cassation allowed the claim, holding that the jurisdictional link of the French nationality of the employee allowed a French court to rule on a denial of justice by the Bank. Similarly, in a dispute between UNESCO and its employee over his retrenchment, the Cour de Cassation assessed UNESCO’s internal justice system, but not by reference to Article 6 ECHR, but rather by its compatability with ‘la conception française de l’ordre public international’.86 Supreme Courts in Italy and Switzerland have taken the same approach and reached the opposite conclusion, upholding the immunity of international organizations after determining that the international organization’s alternative method of dispute settlement did comply with Article 6(1) ECHR.87
In Siedler v Western European Union and two other decisions delivered on the same date, 21 December 2009, the Belgian Cour de Cassation approved the review of the alternative dispute settlement procedures offered, but in all cases upheld the immunity of the defendant organization.88
As noted by Wouters, Ryngaert, and Schmitt in their comment on the Siedler decision, the implementation of the standard of ‘reasonable alternative means’ advocated by the ECtHR in Waite and Kennedy when applied to the alternative dispute settlement procedures of international organizations gives rise to a conflict between the treaty obligations of a Member State of an international organization and the implementation of ECtHR, Article 6(1)’s protection of an individual’s right of access to a court. This conflict, as they note, might be particularly acute where no Member State or solely the host State of the organization is a State Party to the ECHR. In such a situation they suggest that
an argument could be made that the standard of ‘equivalent protection by the organisations’ internal dispute settlement mechanism should be interpreted in a somewhat loose fashion where the organization has no link whatsoever with the ECHR area except for having signed a HQ agreement with a contracting party to the convention.89
The note particularly recommends the solution adopted by the Belgian Cour de Cassation which, while determining the organization’s internal procedures to be deficient, applied ‘the internal administrative law of the organization’ as to the remedy in respect of such deficiencies.
This recommendation of Wouters, Ryngaert, and Schmitt would seem in line with the ICJ’s earlier observation in the Cumaraswamy Advisory Opinion on how to resolve a dispute arising between a Member State and the UN concerning a UN appointed expert:
…the Secretary-General, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization; to that end, it is up to him to assess whether its agents acted within the scope of their functions and, where he so concludes, to protect these agents, including experts on mission, by asserting their immunity. This means that the Secretary-General has the authority and responsibility to inform the Government of a member State of his finding and, where appropriate, to request it to act accordingly and, in particular, to request it to bring his finding to the knowledge of the local courts if acts of an agent have given or may give rise to court proceedings.
…When national courts are seised of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts.90
An alternative approach outlined by Muller would be to resolve a dispute between the organization and a private party claiming denial of a remedy, by reference to the law relating to the particular organization.91 Addressing the situation on the basis of the HQ Agreement and the international status of the organization, it is questionable whether a private party enjoys a procedural right of access to a court where the claim is made against an international organization: at most, as the ECtHR has held, international law requires that where the organization chooses not to waive its immunity, an alternative dispute settlement procedure is made available by the organization. (Where its functions are not seriously hindered by a court ruling, waiver of its immunity by the organization clearly provides a practical solution.)92
Where a host State is a party to a treaty on the protection of human rights of persons within its territory, such as the ECHR, it may be responsible for the conduct of an international organization leading to a breach of that treaty. Member States may also be held responsible for an organization’s breaches. As discussed above, in a series of cases, the ECtHR has upheld the principle that a Member State may be held responsible for a treaty breach by an international organization, but it has not found any violations on the facts.93 Although the ECtHR has made clear that the mere transfer of competence by a State to an organization does not absolve it of its responsibility under the ECHR in the areas covered by the transfer, the Court has not specified the test for incurring that responsibility. It would appear that a Member State would not easily be held responsible, especially where there has been an effort to make available alternative and ‘equivalent’ means for satisfying ECHR requirements within the international organization.
The allocation of responsibility among States and organizations is addressed in the DARIO.94 These Articles have been criticized for transforming the exceptional nature of derivative responsibility95 into a general rule in DARIO, without paying sufficient attention to the difference in the operation of international organizations, which act almost exclusively through their Member States while States rarely act through other States.96 Officials working in international organizations have generally criticized DARIO as not reflecting the actual practice of such organizations.97
Part Five of DARIO sets out the circumstances in which a State may be responsible for the conduct of an international organization. The ‘classic’ rule on responsibility of a Member State of an international organization for an internationally wrongful act of that organization is in Article 62. A Member State will be responsible if it has accepted responsibility for that act towards the injured party or it has led the injured party to rely on its responsibility. A view that states cannot generally be regarded as internationally responsible for the internationally wrongful acts of the organization was taken by the majority opinions in the litigation concerning the International Tin Council (ITC).98 The Institut de droit international adopted in 1995 a resolution in which it took the position that:
Save as specified in article 5, there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.99
A Member State may be responsible for the coercion of the international organization to commit an act (Article 60). As the ECtHR has held, where the organization is coerced to breach its international obligations, a State, either as a host State or party to the constituent treaty, cannot free itself from its human rights obligations by transferring functions to an international organization.100 In Gasparini v Italy and Belgium, where an application was made against the two defendant States by employees of NATO alleging the inadequacy of its settlement procedure concerning employment disputes, the Court said that States, when they transfer part of their sovereign powers to an organization of which they are members, are under an obligation to see that the rights guaranteed by the Convention receive within the organization an ‘equivalent protection’ to that ensured by the Convention mechanism.101
DARIO, Article 61(1) provides that a State may also incur responsibility if, by taking advantage of the fact that the organization has competence in relation to the subject-matter of one of the State’s international obligations, it circumvents that obligation by causing the organization to commit an act.102 The same rule in Article 61 appears in Article 17 with respect to international organizations, which provides that an international organization will incur responsibility if it circumvents an international obligation by adopting a decision or authorizing Member States to commit an internationally wrongful act.
The solution to holding organizations accountable for human rights violations may lie in treaties rather than the accretion of case-law. The EU is in the process of becoming a party to the ECHR.103 If and when the EU accedes to the ECHR, it may open the way to other organizations becoming parties; many complaints before the ECtHR involve the acts of such organizations.104
The rationale for the granting of immunities to international organizations is the protection of their functioning and independence, uniformity of dispute settlement, equality of treatment by States, and to ensure respect for their status and internal law.105 These notions of independence and equality differ from those applied in the context of State immunity, which are captured in the maxim par in parem non habet imperium.106 The scope of the immunities of international organizations is determined by their functions, not the jure imperii/gestionis framework used in the restrictive doctrine of State immunity.107 Unlike State immunity there is no alternative national jurisdiction to which claims against international organizations are first to be referred, and unlike diplomatic immunity, officials of an international organization, regardless of their nationality, enjoy full immunities against both the host State and the State of their nationality. Finally, whereas State and diplomatic immunity is ensured through the operation of the principle of reciprocity, the sanction for an international organization lies in its own treaty system and enforcement of its obligations by the Member States of the organization.108
States by resort to the employment exception to immunity provided in UNCSI, Article 11 have the rudiments of a solution by which they may accommodate their human rights obligations to individuals employed to work within their territory and at the same time honour their international obligations towards sending States. UNCSI is less useful in providing a model for resolving employment disputes between international organizations and employees, given the differences between States and organizations (see Chapter 19).