Interview: Professor August Reinisch

The Book Launch took place in the Historic Reading Room of the Library and included a panel discussion moderated by professor Reinisch himself with prominent members from the international legal community such as ICJ Judge James Crawford, Anna Segall, legal adviser at UNESCO, Professor Niels Blokker of Leiden University and ICJ Registrar Philippe Couvreur. The Book Launch was supported by publisher Oxford University Press who generously donated two copies of the book to the Peace Palace Library.

A few days before the Book Launch took place, Professor Reinisch visited the Library and kindly sat down with us to discuss his book and answer some of our questions.

Q.1: Could you please explain the essence of your most recent book? What were the circumstances under which these two conventions came into being sixty years ago?

It’s an article by article commentary on two separate multilateral conventions, on the one hand, the Convention on the Privileges and Immunities of the United Nations and, on the other, the Convention on the Privileges and Immunities of the Specialized Agencies. The book aims to give more detailed content to what is stated about this matter in Article 105 of the UN Charter which is that organizations shall enjoy the privileges and immunities necessary for the performance of their functions and the fulfilment of their purposes. We find very similar language in the Convention on the Privileges and Immunities of the Specialized Agencies.

The main question we have to ask ourselves is: what are the privileges and immunities necessary for the performance of an organization’s functions?

When the two conventions were adopted in 1946 and 1947, a need soon existed to be more precise and to explain exactly the scope of privileges and immunities of UN Organizations under international law. Over time, it has become clear that it means more than only immunity from jurisdiction in case a lawsuit is filed against an international organization - although this is often its main focus. It is in fact a whole range of immunities enjoyed by the organization itself, as well as its staff members, experts on mission and state representatives to the organization.

The idea behind this is that an international organization ultimately works through people. For this reason, it is not enough to discuss what the organization as a separate legal person has by way of special rights, privileges and immunities. It is also important that those who perform tasks for the organizations are covered. We are not just talking about immunity in the sense of mostly making exceptions from adjudicatory and enforcement and even administrative jurisdiction of states. The book also talks about privileges in the sense of special rights or, most importantly, exemptions from the law. Immunity in general means that as a person you are subject to the law, but you claim not to be a subject to the jurisdiction of an adjudicatory body. The best example of a privilege would be tax privileges, which means you don’t have to pay taxes because you are exempted from the legal obligation as matter of substance. It really goes to the applicable law which is regulated in detail. This applies not only to the organization that should not be taxed, but also extends to the staff members. You might argue why staff members should not pay taxes like everyone else.

When we look at the economic rationale behind the idea it becomes very clear. Member states of an international organization pay membership contributions.  It would not be right if these contributions would be taxed and would ‘finance’ the host country. That is not the idea behind establishing an international organization.  Therefore, tax privileges for staff members are meant to guarantee that the organization fulfills its tasks and that there is no special fiscal advantage to anyone. This is one example of what is regulated in much detail in the two conventions. After the UN was established and afterwards the specialized agencies - of which there were initially only a few such as the FAO, UNESCO, WHO, WIPO. Most of them have adhered to the specialized agencies conventions. The majority have taken advantage of a very interesting treaty technique. They have asked for annexes to slightly modify the specialized agency convention. I should emphasize that these modifications are not major in substance. A number of them are very similar and have clarified later practice.  For instance, they often provide that not only the heads of organizations should enjoy privileges and immunities like diplomats but this should also apply to the deputy heads. Usually, there are not more than four or five staff members in an organization to whom this applies to. The rest of the staff members enjoy a limited immunity necessary for the performance of their functions.

From a treaty making technique, it is very interesting that this flexibility is built into the convention and the way in which states have handled this. There are a number of reservations and even objections from some states as well. It can become very technical.

The “users” of the two conventions, international organizations, but certainly also national courts and national tax authorities, have to be able to understand their practice and structure. This can be very complex and a difficult subject matter. This book makes it easier for those who want to understand the law in this field and the ways in which it has been applied and interpreted by national courts. In recent times, quite some practice has emerged because there are a total of 190+ UN member states now. In spite of this, it has not been easy to get access to this practice. I myself have conducted a number of research projects related to this subject and asked contributors from different countries to look at their national cases, mainly from places where I knew we could find interesting cases.

Q.2: In what way, is the concept of immunities different now than it was sixty years ago? How has the concept of immunity evolved over time? Has immunity as a concept always applied to heads of state or was it limited to international organizations only? 

The book includes introductory parts that lay out how these conventions were negotiated and adopted when the UN came into a being. A decision was taken to clarify the meaning of “necessary” privileges and immunities. A Canadian proposal was submitted and some committees were set up. Very soon a convention text emerged. Within a year they were able to agree on that. Also, there was some work done within the ILO on this subject.

In a way, the Convention on the Privileges and Immunities of the United Nations was something new and came to serve as a template for other organizations. The League of Nations did not have something comparable. The arrangements with Switzerland were rather pragmatic and unclear. There was an idea of functional protection which was taken up soon after the International Court of Justice delivered its Advisory Opinion in the ‘Reparation of Injuries Suffered in the Service of the United Nations’ Case. There was an emphasis on the rights that are needed by an international organization in order to perform its tasks. We have a similar consideration in the immunities context which is also strengthening the functionalist approach to international organizations. Functional Privileges and Immunities have been included in the text of the UN Charter.

This functionalist premise was already strongly present from the beginning. Over time there is an interesting development. When we look at both conventions and when we focus on one of the core aspects, namely immunity from jurisdiction, it is fairly clear. Both conventions speak of “immunity from every form of legal process” which in essence suggests absolute immunity before national courts.

Around the 1940´s, it was understood at the time that most countries accorded absolute immunity to foreign states. At the time, no one would have imagined to take legal action or file a lawsuit against the UN. The idea of commercial activity exceptions is something of more modern times.

In recent times, we have seen that many organizations engage in commercial activities. The generally accepted wisdom under the two conventions is that even these commercial activities should be excluded from domestic courts. This is currently being questioned. Why should organizations receive an even more privileged position or different treatment than states do?

Then, there is another important development taking place regarding human rights perspectives, such as access to courts. This is related to cases where there is a grievance and there is no possibility to have an independent adjudicatory body. Such a situation raises issues regarding article 6 ECHR and with regard to article 14 ICCPR.

This development in a way also serves as a background. We have seen that some national courts use the restrictive state immunity standard, also for international organizations. For some Italian courts an organization is equal to a collective of states that enjoy restrictive immunity. This means there is no immunity for commercial activities. This is difficult to apply, but it has worked in some cases where immunity has not been granted to lease agreements or service agreements of International Organizations.

A similar, although more moderate development, has taken place in the United States. The reason here is a statutory mandate in the 1945 International Organizations Immunities Act which determines that organizations shall enjoy the same immunity as states.

Again, a historical perspective comes. When the legislation was adopted in the 1940´s this immunity was considered absolute. In the 1970´s, the Foreign Sovereign Immunities Act was adopted and state immunity became restricted immunity. The issue then arose whether this would have an impact on international organizations.

There are many US Court Cases where this has been argued. In most cases this issue has been avoided because the court decided that it was a sovereign activity and therefore organizations enjoy immunity even under the new restrictive immunity standards I´m aware of one case where the European Space Agency Case faced a lawsuit based on a commercial contract on compliance. The Court determined that if states will not get immunity, the same standard will apply to international organizations.

A third interesting development in Europe is that the European Court of Human Rights determined in the late 1990´s that states can grant immunity to organizations, as long as it is guaranteed that there is an effective alternative mechanism of redress. However, this ruling is open to interpretation. Some would argue that, in case there is no alternative remedy, there is also no need to grant immunity, but this interpretation is not unanimously shared.

This argument is underlying the Dutch case concerning the European Patent Office. The argument to disregard immunity is usually based on the judgment of the European Court of Human Rights, namely the case of Waite and Kennedy v. Germany (Case No. 26083/94). Here, it is argued that immunity should not be upheld because we do not have an adequate alternative remedy. In such circumstances, courts have understandably been reluctant to grant immunity to international organizations. Belgian Courts, in particular, have been quite proactive in not giving immunity to international organizations.

All of this has an impact on legal actions against international organizations and is discussed in the book. What is important about this book is that the contributors in their commentaries reflect court practice in addition to their opinions. I feel that this goal has been accomplished. Another important point is that this book is not written in defense of immunity nor attacking immunity. The purpose is that the reader can quickly comprehend what the law as well as the practice on the subject is.

Q.3: We have noticed that you have published a very large number of articles over the years. Our Online Public Catalogue contains over 100 publications from your hand. How were you able to write so extensively? Is there a secret?

Professor Reinisch: It is difficult to say. Writing takes a lot of time, but I have always felt that this is the core of my professional task; this the way how we communicate in our field. I enjoy publishing and writing in this field very much.

I also try not to focus too much on individual subjects, although people often make suggestions on what I should write about next. Over the last 10 to 15 years, I concentrated on different legal areas, such as international organizations, privileges and immunities, powers of organizations and functionalism. And spin off from the debate of immunity that I have worked a lot on is state immunity and enforcement immunity. In the past, I focused on sovereign debt restructuring which has become an important subject again these last few years. Another subject that is a major area of interest to me is investment arbitration.

Q.4: What would be your advice to law students today?

My advice would be: Don’t be overwhelmed!  The advice I was given 30 years ago was don’t be discouraged if you don’t find anything, eventually you will find something. In these modern times, databases have proved to be great tools to use and have made the research easier compared to 30 years ago. Nowadays, the biggest challenge for students is often to sort through all the materials and to concentrate on finding out what the main message is. I would say that one should focus on the core questions of each legal issue and to know what the main arguments are. Lastly, I would tell students who start their Master’s thesis to write the introduction and the historical background at the end; it is best not to waste too much time on that