¹ See eg requirements relating to the protection of foreign migrant workers in the EU.

² As argued in respect of a police officer in English law in Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997.

³ UNGA Resolution 56/83, 12 December 2001, Annex: Responsibility of States for Internationally Wrongful Acts, Art 4(2)t.

⁴ Yang, State Immunity in International Law (2012), Ch 4, 196. For a list of national legislation relating to the employment exception to State immunity, see Yang, clvii.

⁵ Out of the 1,200 cases brought against the US in 80 countries in 1993 raising an issue of State immunity, over 80 per cent involve disputes with staff: David Epstein, Director of Foreign Litigation, Civil Dept, US Dept of Justice, paper given at the Lawyers European Conference on State Immunity 30 June–2 July 1994. In 2011 employment claims made against the US exceeded the total number of similar claims made against other States, with a considerable proportion of US claims arising from US Forces personnel serving overseas. The majority of cases reported by the 47 Member States to the Council of Europe concerned employment contracts; analysed in Hafner, Kohen, and Breau (eds), State Practice regarding State Immunities (2006), 77 (hereafter Hafner).

⁶ In re the Canadian Labour Code [1992] 91 DLR (4th) 449; 94 ILR 264; Goethe House 369 968 F.2d 75 (2nd Cir) 1989.

⁷ Mme Naria X v Saudi School in Paris, France, Cour de Cassation (ch mixte) 20 June 2003 Rev crit DIP (2003) 647 n Muir Watt.

⁸ See generally, Garnett, ‘State Immunity in Employment Matters’ (1997) 46 ICLQ 81; Gloor, ‘États Employeurs dans la Pratique du Tribunal des Prud’Hommes de Genève’ (1997) 11 International Geneva YB 49; Fox, ‘Employment Contracts as an Exception to State immunity: Is All Public Service Immune?’ (1995) 66 BYIL 97.

⁹ YBILC (1983) II, pt 1, 5; UN Doc A/CN463, Fifth Report. Sucharitkul, the Special Rapporteur, noted that ‘utmost care should be taken to avoid interference with the application of foreign administrative law while maintaining reasonable standards of labour conditions in employment contracts within the State of the forum. At the same time nothing should be attempted which would aggravate existing problems of unemployment in a given society’, paras 59–61.

¹⁰ UN Docs GA 54th Session, 6th Committee, Report of G Hafner, 12 November 1999, A/C.6/54/L.12.

¹¹ Kohler, ‘State Immunity regarding Employment Contracts’ in Hafner, Ch 5, 60 at 73.

¹² Variously described in the 1983–86 drafts as ‘a national or resident of’, ‘an individual … effectively placed under the social security scheme of’ or ‘recruited in’ the forum State.

¹³ Hafner, 3, annexed text. The ILC’s 1999 comments suggested that such deletion should not pre-judge the non-admissibility of the claim on grounds other than nationality, such as the lack of jurisdiction of the forum State.

¹⁴ The 1991 ILC Draft Art for 2(d) read: ‘the employee is a national of the employer State at the time when the proceedings are instituted’.

¹⁵ The Chairman of the Sixth Committee’s Working Group’s proposals in 2000 were to delete the words ‘closely related’ in para 2(a), delete para 2(c) relating to third State nationals, and revise para 2(d) to permit habitual residents in the forum State with the employer State’s nationality to sue. He left open whether a non-exhaustive list of categories exempt from the exception should appear in the article or in the commentary.

¹⁶ The revised text in Hafner, 3 reads for Art 11, para 2(bis)

‘The employee is:

(i) a member of a mission as defined by the Vienna Convention on Diplomatic Relations of 1961;

(ii) a member of a consular post, as defined by the Vienna Convention on Consular Relations of 1963;

(iii) a member of diplomatic staff of permanent missions to international organisations, special missions, or is recruited to represent a State at international conferences; or

(iv) any other person enjoying diplomatic immunity.’

Alternative B for paragraph 2(bis)

‘The employee is:

(i) a diplomatic agent as defined in the Vienna Convention on Diplomatic Relations of 1961;

(ii) a consular officer as defined by the Vienna Convention on Consular Relations of 1967; subparas. (iii) and (iv) read as in Alternative A.’

¹⁷ See n 5 above and Fox (1995) 66 BYIL 97 at 98 and fn 4.

¹⁸ In re the Canada Labour Code [1992] DLR (4th) 440.

¹⁹ Toglia v British Consulate in Naples, Cour de Cassation, 15th May 1989, Rivista di diretto internazionale (1989), 891.

²⁰ Born, International Civil Litigation in US Courts (5th edn, 2011), Ch 3, 287. As to the ‘commercial activity’ exception, see Ch 8 US Law: FSIA.

²¹ FSIA, House Report No 94-1876, 6604 at 6615.

²² Republic of Argentina v Weltover 504 US 607, 614 (1992).

²³ Segni v Commercial Office of Spain 835 F.2d 160 (7th Cir 1987) no immunity in respect of an Argentinian national permanently resident in the US, engaged to develop the marketing of Spanish wines; cf Kato v Ishihara 360 F.3d 106 (2nd Cir 2004) where the Appeal Court proclaimed ‘The promotion abroad of the commerce of domestic firms is a basic—even quintessential—governmental function’.

²⁴ El Hadad v United Arab Emirates 469 F.3d 658 (DC Cir 2007) where a two-stage analysis was employed asking first whether the employee was a ‘civil servant’, in the sense of ‘in service of the Mission’s governmental function’ and, if not, asking further whether responsibilities of the job were commercial or sovereign.

²⁵ Butters v Vance International, Inc 225 F.3d 462 (4th Cir 2000) employment of woman supplied by a private agency to act as a bodyguard to a Saudi princess was terminated as contrary to exclusively male Islamic police requirements.

²⁶ Kato v Ishihara 360 F.3d 106 (2nd Cir 2004) in respect of an employee, treated as a civil servant under Japanese law of the Tokyo Metropolitan Government.

²⁷ Saudi Arabia v Nelson 123 L. Ed 2d 47; 113 S Ct 1471 (1993).

²⁸ Shih v Taipei Economic and Cultural Representative Office 693 F.Supp.2d 805 (ND.Ill 2010).

²⁹ Holden v Canadian Consulate 92 F.3d 918 (9th Cir 1996). Claim allowed despite loss of job by reason of closure of Consulate for economic and administrative reasons.

³⁰ The Australian FSIA, s 12(3) excludes the exception to immunity only where the employee was at the time of contracting (a) a national of the foreign State but not a permanent resident of Australia; or (b) an habitual resident of the foreign State. This provision goes some way towards recognizing a principle of dominant nationality or genuine connection as factors substantially favouring the forum State so as to outweigh the connection with the foreign State.

³¹ In United States of America v Nolan [2010] EWCA Civ 1223 where the dispute related to whether the employer was obliged to give notice to employees to allow consultation before making a decision as to collective redundancy, the US maintained that the status of forces agreement was the applicable law. On the basis of the US waiver of immunity, unfortunately the English courts dealt with the matter as one of English and EU employment law. Cf Hicks v USA, Employment Appeals Tribunal, 28 July 1995; 120 ILR 606.

³² Commission v France, Case 307/84; [1986] ECR 1725; Reyners [1984] ECR at 664.

³³ See also Frydlender v France (App No 30979/96), Judgment (Grand Chamber), 27 June 2000, ECHR 2000-VII, 292 applying the same principles to hold as a commercial activity the applicant’s promotion of French wines in Paris in the economic development office under the Ministry of Economic Affairs, not of Foreign Affairs: the applicant was not ‘carrying out any task which could be said to entail, either directly or indirectly, duties designed to safeguard the general interests of the State’ (paras 35–9; see also 40).

³⁴ In support the Court cited as examples of denial of a claim the case of a lecturer in the Fire Service treated as falling within the sphere of national defence, the denial of travel expenses to a captain in the Russian navy, and the inapplicability of Article 6(1) to a lawyer working for the police on the basis of the functions and responsibilities of that service without any apparent consideration of his own individual role in the organization.

³⁵ The ECtHR looked to European law generally providing useful guidance and cited a number of ECJ decisions, in particular ‘its landmark judgment in Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84, § 18, [1986] ECR 1651)’ brought by a female police officer on the basis of the Directive on non-discrimination.

³⁶ The EU Charter of Fundamental Rights, which became binding in 2009, is likely to have an influence in future proceedings, perhaps changing the balance in favour of setting aside immunity (see, especially, Art 47).

³⁷ Vilho Eskelinen v Finland (Grand Chamber) 63235/00, 19/04/2007 (see also under discussion regarding Art 11(2)(a) below). On the facts the Court ruled that both the applicant police officers and the civilian assistants equally enjoyed a right of access to the court without unfair or lengthy proceedings.

³⁸ Fogarty v United Kingdom, ECHR (2001) 34 EHRR 302; 123 ILR 53.

³⁹ Cudak v Lithuania ECtHR Judgment, 23 March 2010, App No 15869; Sabeh El Leil v France, 29 June 2011, App No 34869/05; Wallishauser v Austria, 17 July 2012, App No 156/04.

⁴⁰ Even here, where the employing forum State was party to ECHR the arrangement’s terms might be qualified by Art 6(1) ECHR relating to right of access to a court.

⁴¹ See references to the Jurisdictional Immunities judgment, listed in the Index.

⁴² In Cudak, having regard to the fact that the applicant’s dismissal and the ensuing proceedings arose originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsman (para 72) with whom the applicant had filed her complaint, four judges, Casadevall, Zagrebelsky, Cabral Barreto, and Popovic, in a separate concurring opinion regretted that the Court had not ordered a retrial or the reopening of the case, to provide a statement of the nature of the Convention violation: Cudak v Lithuania ECtHR Judgment, 23 March 2010 (App No 15869).

⁴³ The Federal Republic of Nigeria v Ogbonna (Jurisdictional Points: State immunity) [2011] UKEAT; [2012] WLR 139, para 12.

⁴⁴ Commission v Bleis, Case 4/91 [1991] ECR 5627. The condition of nationality is justified as ‘a special relationship of allegiance to the State and the reciprocity of rights and duties which form the foundation of the bond of nationality’. See Fox, ‘Employment Contracts as an Exception to State Immunity: Is All Public Service Immune?’ (1995) 66 BYIL 97 at 156–63.

⁴⁵ Wallishauser v Austria (App No 156/04), Judgment 17 July 2012.

⁴⁶ The ECtHR has applied UNCSI, Article 11 to proceedings where a State had ratified the Convention (Finland, the forum State in Vilho Esklinen); was in process of ratifying the Convention (France in Sabeh El Leil); or had not voted against it when adopted by UNGA (Lithuania, the forum State (Cudak) and US (Wallishauser), the foreign employer State).

⁴⁷ Exemplified by the view of a US court expressed in Kato v Ishihara 360 F.2d 106 (4th Cir 2004).

⁴⁸ The Immunity in labour matters Case, Czech Republic, Sup Ct 25 June 2008; 142 ILR 206 at 215.

⁴⁹ Vilho Eskelinen v Finland (Grand Chamber) 63235/00, 19/04/2007, para 62.

⁵⁰ Pellegrin v France 1999, para 65.[AQ: case ref?]

⁵¹ ADI 1992 vol 64 p 388.

⁵² Butter v Vance International 225 F.3d.462 (4th Cir 2000).

⁵³ Canada Employment Appeals Tribunal and Burke [1992] ILRM 352; 95 ILR 567.

⁵⁴ See n 39 above.

⁵⁵ ECSI; UK SIA, s 16(1); ILC Draft Articles: the US FSIA has none.

⁵⁶ See the survey in Yang, State Immunity in International Law (2012), Ch 5 at 179–91 discussing differing courts’ interpretation of the scope of immunity to be allowed to staff engaged to work for the diplomatic mission.

⁵⁷ Circular Note of US State Dept to chiefs of missions, 1 May 1985, quoted in Denza, Diplomatic Law (2008), 17, 66–9.

⁵⁸ See eg S v Republic of India (1984) 82 ILR13 (Swiss Federal Tribunal).

⁵⁹ [1983] ICR 221; 64 ILR 352. See also Canada v Employment Appeals Tribunal and Burke [1992] 2 ILRM 325, Irish Sup Ct; 95 ILR 467; Hafner, IRL/1, driver at Canadian embassy held immune; Hanna Heusal v Republic of Turkey, 30 September 1993; Hafner, FIN/2, a locally recruited secretary and translator held immune; also X v USA, Switzerland, Labour Ct of Geneva, 16 February 1995; 116 ILR 668.

⁶⁰ Abbott v Republic of South Africa, 1 July 1992; 113 ILR 412; Hafner, E/4. French Consular Employee v France, 14 June 1989; 86 ILR 583. See also decisions in the Portuguese courts; Kohler ‘State Immunity regarding Employment Contracts’ in Hafner, Ch 5, 60 at 73, 82–3.

⁶¹ See n 39 above.

⁶² Fogarty v UK, ECHR (2001) 34 EHRR 302; 123 ILR 53.

⁶³ Nicoud v USA, Switzerland, Labour Ct of Geneva, 27 April 1994; 116 ILR 650; X v USA, Switzerland, Labour Court of Geneva, 16 February 1995; 116 ILR 668.

⁶⁴ MKB van der Hulst v USA, 22 December 1989, NYIL (1991) 379; Hafner, NL/10, 480–2; Dutch Deputy Minister of Justice’s Explanatory memorandum of the amendment of the Bailiffs’ Act, Hafner NL.

⁶⁵ Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, Case 222/84 [1986] ECR 1651.

⁶⁶ Even on Pitcairn Island with a total population of 53. In Governor of Pitcairn v Sutton [1995] 1 NZLR 426, employment of a typist-clerk in the Governor’s office was held immune: ‘The pursuit of an unjustifiable dismissal claim in the Courts of New Zealand would be likely to involve exploring how the office was run. To expose the [British] Crown to that risk would be an intrusion on the sovereign performance of those responsibilities’ (437); also Hicks v USA, UKEAT, 28 July 1995; 120 ILR 606, dismissal of equipment-repairer of bowling alley in anticipation of closure of US military base: ‘impossible to investigate the claim without considering whether USA had been right to determine the base in general should be closed. A task which the Tribunal could not undertake.’

⁶⁷ Pingel, ‘Observations sur la Convention du 17 janvier 2005 sur les immunités juridictionelles des États et de leurs biens’ (2005) 132 JDI 1045 at 1050–1.

⁶⁸ I am indebted to Dr Werner Gloor of Geneva for this information.

⁶⁹ Hanna Heusal v Republic of Turkey, Finland, 30 September 1993, Hafner, FIN 2, 323, where the Finnish Supreme Court referred to the ECHR as a valid source of customary international law but applied the Art 32 exclusion relating to diplomatic missions to preserve immunity in the particular case. See also Arias v Venezuela, Netherlands District Ct, The Hague, 4 February 1998; 128 ILR 684.

⁷⁰ Royal Embassy of Norway v Quattri Monika, Italian Cour de Cassation, No 2521/90, L/12771, 13 December 1990.

⁷¹ Seidenschmidt v USA, Austrian Sup Ct, 8 July 1992; 116 ILR 530. The assumption that remedies exist in the employer State for nationals was shown to be false in the Bryant v Foreign and Commonwealth Office, Judgment, UKEAT, 10 March 2003 where a UK national employed by the British embassy in Rome had no claim under the UK Employment Rights Act, Equal Pay Act or Sex Discrimination Act because they did not apply extraterritorially. He eventually proceeded with a claim for breach of contract.

⁷² In 1991 the ILC Commentary to Art 11 argued that the material time to determine nationality or permanent residence was the conclusion of the contract of employment arguing that: ‘If a different time were to be adopted, for instance the time when the proceeding is initiated, further complications would arise as there could be incentives to change nationality or to establish habitual or permanent residence’ in the State of the forum, thereby unjustly limiting the immunity of the employer State (para 11).

⁷³ Chatham House Commentary on third State nationals; Jayetilleke v High Commissioner to the Bahamas, Employment Appeal Tribunal, 14 December 1994, EAT/741/94; 107 ILR 623.

⁷⁴ See Denza, Diplomatic Law (2008), 463 who refers to the public scandal caused by some diplomats’ non-compliance with local employment laws and various schemes of the French Ministry of Foreign Affairs and the US State Department to overcome these abuses.

⁷⁵ Application No 26083/94 (1999) 30 EHRR; 118 ILR 121; App No 28934/95, 18 February 1999.

⁷⁶ In fact they were employed by foreign companies and placed at the disposal of the ESA to perform services at the European Space Operations Centre in Darmstadt. When their contracts were not renewed they argued that, pursuant to the German Provision of Labour (Temporary Staff) Act, they had acquired the status of employees of the ESA.

⁷⁷ Fayed v United Kingdom, Judgment, 21 September 1994, Series A No 294.

⁷⁸ The ‘reasonable alternative means’ standard has been compared to the ‘equivalent protection/manifest deficiency’ standard laid down in the Bosphorus case: ‘[A]s long as the relevant Organisation is considered to protect fundamental rights and in a manner which, as regards the substantive guarantees offered and the mechanisms controlling their observance, can be considered at least equivalent to that for which the Convention provides … if such equivalent protection is provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention …’ Bosphorus v Ireland Appl No 4036/98 (2006) 42 EHRR 1, paras 155–6 relating a claim arising from the impounding by Ireland of an aircraft on the basis of an EC Regulation binding on Ireland. See Ryngaert, ‘The ECHR’s Approach to the Responsibility of Member States in Connection with Acts of International Organizations’ (2011) 60 ICLQ 997.

⁷⁹ Arguably, the employees sought to maintain a dual status—as contractors until the termination of their contracts and thereafter as employees under German law. The ECtHR decision has been criticized for not examining more closely the effectiveness of the internal dispute resolution mechanism available to the employee applicants: Guillaume and Pingel Lenuzzae [AQ: full ref?], 5–8, while others criticize it for encroaching on the independence of international organizations.

⁸⁰ The case-law database of the ILOAT, known as Triblex, and all the judgments and orders of the World Bank Administrative Tribunal are available on the websites of these organizations.

⁸¹ Hintermann v Western European Union, French Cour de Cassation, 14 November 1995; 113 ILR 487.

⁸² ‘ce déni de justice peut-il être évité par la primauté de la Convention européenne des droits de l’homme, qui garantie libre accés au juge et le procés équitable?’ French Cour de Cassation, Rapport annuel 1995; la documentation francaise, 1996, 418–19.

⁸³ ENTICO v UNESCO and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531 (Comm), Tomlinson J; the case was also weak on its facts as it seems that the applicant had agreed the alleged contract should be subject to the UNESCO arbitration procedure but had failed to use it. Cf during the passage through Parliament of the 2005 International Organisations Bill, the Joint Committee on Human Rights sought further information as to whether the immunities granted to the specified international organizations were required by international law and were consistent with ECHR 6(1). The FCO replied that ‘the attribution of privileges and immunities to international organizations is an essential means of ensuring the proper functioning of such organizations free from unilateral interference by individual governments, and that the immunity from jurisdiction commonly accorded by States to international organizations is a long-standing practice established in the interests of the good working of the organizations’. Excerpts from the Reports of the Joint Committee on Human Rights, the FCO reply, and proceedings in Parliament are in (2005) 76 BYIL 721–45.

⁸⁴ (IOIA) 22 USC, s 288(a) and (b).

⁸⁵ 628 F.3d 27 (DC Cir 1980). As the court pointed out, ‘Even under the restrictive immunity doctrine, there is immunity from lawsuits based on governmental or sovereign activities de jure imperii as distinct from commercial activities … Denial of immunity opens the door to divided decisions of the courts of different member states passing judgment on the rules, regulations, and decisions of the international bodies. Undercutting uniformity in the application of staff rules or regulations would undermine the ability of the organization to function effectively’. US courts are not alone in seeking to resolve the conflict by application of the commercial/sovereign activity distinction. See Spaans v Iran-US Claims Tribunal, Dutch Supreme Court, immunity upheld of the Claims Tribunal in an employment dispute with a staff member who played an essential role in the performance of its tasks (para 3.3.4.5); cf Pichon-Duverger v PCA, District Court of The Hague, 27 June 2002 (immunity rejected because, inter alia, the dispute was a purely private law matter); Hendrik Resodikromo v OPCW, District Court of The Hague, 7 November 2005.

⁸⁶ Immunité de juridiction de l’UNESCO Soc, 11 février 2009, Bull 2009, V, no 45, pourvoi no 07-44.240 (noting also that UNESCO was not a party to the ECHR). See also l’OCDE (1re civ, 24 octobre 2000, Bull 2000, I, no 265, pourvoi no 98-43.052), Eutelsat (Soc, 5 juin 2001, Bull 2001, V, no 204, pourvoi no 98-44.996).

⁸⁷ Pistelli v European University Institute, Guida al diritto 40 (3/2006), ILDC 297 (IT 2005), Italian Cour de Cassation; Consortium X v Swiss Federal Government (Conseil Federal), ILDC 344 (CH 2004), Swiss Federal Supreme Court (First Civil Law Chamber). In Pichon-Duverger v PCA (2002), the District Court of The Hague noted that PCA had not made provisions for appropriate methods of settlement for contract disputes as required in the Headquarters Agreement, but did not refer to the ECtHR jurisprudence.

⁸⁸ Western European Union v Siedler, Cour de Cassation of Belgium (third chamber), Cass No S 04 0129 F, ILDC 1625 (BE 2009); General Secretariat of the ACP Group v Lutchmaya, ILDC 1573 (BE 2009). General Secretariat of the ACP Group v BD, ILDC 1576 (BE 2009).

⁸⁹ Wouters, Ryngaert, and Schmitt, ‘Western European Union v Seidler … etc’ (2011) 195 AJIL 560 at 566.

⁹⁰ ICJ AO Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62, paras 60–1.

⁹¹ Muller, International Organizations and their Host States (1995).

⁹² As practical measures to avoid conflict, Muller, 183–4, suggests greater clarity in setting out in the HQ agreement the definition of the official activities for which immunity from the local jurisdiction is accorded and stresses the implementation of the obligation resting upon both the organization and host State to cooperate in good faith. Whilst the State has to be mindful of its obligation to respect the immunities conferred, their waiver or the provision of alternative remedies by the organization to an objective standard of ‘reasonable alternative remedies’ should resolve any conflict.

⁹³ Waite and Kennedy v Germany, Judgment of 18 February 1999, ECHR Reports, 1999-I, 410, para 67; Gasparini v Italy and Belgium, European Court of Human Rights, App No 10750/03, decision of 12 May 2009.

⁹⁴ Adopted by the ILC in 2011 and taken note of by the General Assembly in Resolution 66/100 of 9 December 2011.

⁹⁵ That is, responsibility for conduct attributable to another subject of international law.

⁹⁶ Tzanakopoulos, Disobeying the Security Council (2011), 47.

⁹⁷ Shraga, ‘ILC Draft Articles on Responsibility of International Organizations—the Interplay between the Practice and the Rule’ (2011) ASIL Proceedings.

⁹⁸ Lord Kerr in the Court of Appeal said he could not ‘find any basis for concluding that it has been shown that there is any rule of international law, binding upon the member States of the ITC, whereby they can be held liable—let alone jointly and severally—in any national court to the creditors of the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name’. Judgment of 27 April 1988, Maclaine Watson & Co Ltd v Department of Trade and Industry; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Ors, ILR, vol 80, 109. Lord Templeman in the House of Lords held that ‘No plausible evidence was produced of the existence’ of a rule of international law imposing on Member States joint and several liability for the default of the organization in the payment of its debts unless the treaty which establishes the organization clearly disclaims any liability on the part of the members before or at the time of the Sixth International Tin Agreement in 1982 or afterwards: Judgment of 26 October 1989, Australia & New Zealand Banking Group Ltd and Ors v Commonwealth of Australia and 23 Others; Amalgamated Metal Trading Ltd and Ors v Department of Trade and Industry and Ors; Maclaine Watson & Co Ltd v Department of Trade and Industry; Maclaine Watson & Co Ltd v International Tin Council, ILM, vol 29 (1990), 675.

⁹⁹ Article 6(a). Annuaire de l’Institut de Droit International, vol 66-II (1996), 445.

¹⁰⁰ Only if the independent treaty standard is established as a general principle of law applicable to international organizations is it likely to prevail over the standard of the organization’s own procedures, see the discussion in Sarooshi, International Organisations and the Exercise of Sovereign Power (2005), 17 and authorities there cited at fn 44.

¹⁰¹ ECtHR, App No 10750/03, decision of 12 May 2009, cited in DARIO, Art 61, para 5; cf the Mothers of Srbrenica case where the Netherlands Supreme Court dismissed arguments based on the ECtHR Judgment in Waite and Kennedy and Beer and Regan about the absence of alternative remedies by holding the immunity of the UN prevailed over ECHR rules on the basis of Art 103 of the Charter. Stichting Mothers of Srebrenica, Sup Ct, 13 April 2012, para 4.3.14 referring to Jurisdictional Immunities, para 101. Ryngaert, ‘The Immunity of International Courts before Domestic Courts: Recent Trends’ (2010) 7 Int Org LR 121, 147. Settlement of an outstanding claim against the UN following the introduction of cholera into Haiti by Nepalese peacekeepers (see Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, May 2011) should similarly be pursuant to the UN/Haiti Status of Forces Agreement, ONU/Haiti Accord concernant le statut de l’operation des nations unies en Haiti, para 55 (2004) for a standing claims commission to settle claims against members of the peacekeeping mission.

¹⁰² Paasivirta, however, points out that EU Member States are hardly ever in a position to ‘prompt’ (let alone ‘cause’) the EU to act because the right of initiative belongs exclusively to the Commission in most areas of EU legislation: Esa Paasivirta, ‘Responsibility of a Member State of an International Organization: Where will it end? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations’ (2010) 7 Int Org L Rev 49, 60.

¹⁰³ Its accession to the ECHR is required under Art 6 of the Lisbon Treaty and foreseen by Art 59 of the ECHR, as amended by the Protocol 14 in 2004.

¹⁰⁴ See eg Eurocontrol, the European Patent Organization, the European Space Agency, the International Criminal Tribunal for the Former Yugoslavia, the Iran-US Claims Tribunal and NATO: Schermers and Blokker, International Institutional Law (5th edn, 2011), 1145.

¹⁰⁵ Reinisch, International Organizations before National Courts (2000) at 233–51.

¹⁰⁶ The equality and independence of an international organization is vis-à-vis its members, not in relation to other international organizations. See also the ICJ’s observations that even though the UN is an international person ‘that is not the same thing as saying that it is a State, which it certainly is not … Still less is the same thing as saying that it is a “super-State” …’: Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1948,174, 179.

¹⁰⁷ The UK SIA, unlike its exclusion for diplomatic missions and visiting armed forces, contains no reference to international organizations.

¹⁰⁸ Bowett, Law of International Institutions, para 15-035.