It is widely acknowledged that international organisations proliferated in the aftermath of World War II,[1] although preliminary forms had existed earlier.[2] Major international organisations are universally recognised. These include the United Nations (UN), the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the World Trade Organisation (WTO), the World Bank, the International Monetary Fund (IMF), the North Atlantic Treaty Organisation (NATO), etc. The increased activity of international organisations has been accompanied by an increase in arbitrations involving international organisations.[3]
The Rapporteur of the International Law Commission (ILC) in 1956 defined an international organisation as “a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity”.[4] Four constitutive elements of international organisations are, therefore, generally recognised: (i) the formal basis of the organisation is a treaty; (ii) its members are States (and possibly also other subjects, like other international organisations); (iii) it has its own organs and an institutional structure distinct from that of its Member States; (iv) it possesses a degree of international legal personality.[5]
Since its establishment, the Permanent Court of Arbitration (PCA), itself an international organisation, has administered over 45 arbitrations involving international organisations.[6] The range of the arbitrations involving international organisations varies, with disputes involving treaties, lease agreements, employment agreements, insurance policies, staff regulations, and others.[7]
The issue of privileges and immunities of international organisations is at the heart of disputes involving these organisations. In fact, the particular status enjoyed by international organisations confers upon them a set of privileges and immunities. The immunities of international organisations are essentially granted on the basis of “the principle of functional necessity”, i.e., to ensure that these organisations can fulfil the functions for which they have been created.[8] The law relating to the immunities of international organisations has developed primarily in treaty practice rather than in customary international law (unlike the law on State immunity).[9] Immunities of international organisations are, therefore, negotiated in the relevant treaties and can vary according to the nature of the functions of each organisation.[10] It follows that if national courts are seized with an issue relating to immunities, they will usually be guided by the text of the applicable treaty.[11] Institutions like NATO or international courts typically enjoy wide immunity, whereas organisations whose primary functions involve transactions with private parties, for example, the World Bank, enjoy more limited immunities, particularly as regards their commercial activities.[12] Accordingly, and as explained by an author, “there is no general convention on the immunity of international organisations [and] there is no generally accepted rule of customary international law.”[13]
Definition of Immunities
The scope of these immunities is generally twofold: immunity from jurisdiction[14] and immunity from execution.[15] Accordingly, international organisations are immune from suit and their property is immune from execution measures. An example of a comprehensive framework of immunities enjoyed by international organisations is provided by the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly of the United Nations on 13 February 1946 (CPIUN) and the Convention on the Privileges and Immunities of the Specialized Agencies adopted on 21 November 1947 (CPISA). Among the agencies of the UN are the International Labour Organisation (ILO), the World Health Organisation (WHO), and the IMF.[16] This Convention, also referred to as the “Special Convention” (by opposition to the CPIUN being the “General Convention”), “contains roughly the same provisions on privileges and immunities as the General Convention.”[17]
Immunity from Jurisdiction
Article II, Section 2 of the CPIUN provides that “[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”
Immunity from Execution
Article II, Section 3 of the CPIUN stipulates that “[t]he premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whom soever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.”
It is, however, generally believed that international organisations tend “to voluntarily fulfil any pecuniary obligations resulting from a judgment or arbitral award”.[18]
Privileges
In terms of privileges, the most important are fiscal ones. The CPIUN (and the CPISA), Article II, Section 7, exempts the UN from all direct taxes as well as from customs duties and quotas concerning goods for the UN’s official use. In relation to indirect taxes, Section 8 of the same provision merely provides that in case of “important purchases for official use” the State concerned will make appropriate administrative arrangements for tax reimbursement. Under the CPISA, these provisions are under Article III, Sections 9 and 10.
The CPIUN and the CPISA further contain privileges and immunities for three categories of persons crucial for the work of the organisation:
1) representatives of Member States;[19]
2) United Nations officials;[20] and
3) experts on missions for the United Nations.[21]
Article V, Section 20 of the CPIUN stresses that “[p]rivileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves” and that the Secretary-General has a duty to waive the immunity of UN officials where it would “impede the course of justice and can be waived without prejudice to the interests of the United Nations.” In addition to jurisdictional immunity, UN officials are tax exempt for their salaries[22] and enjoy a number of other fiscal, travel and residence privileges, while the Secretary-General, Under-Secretaries-General and Assistant Secretaries-General enjoy full diplomatic privileges and immunities.[23]
Arbitrations Involving International Organisations
The near impossibility of suing international organisations before domestic courts due to immunity considerations has been perceived as an issue of access to justice.[24] The most frequent types of disputes are those where private parties provide goods or services to international organisations, either as staff members or as contractors.[25] The position of the European Court of Human Rights (ECtHR) is that the immunity of international organisations requires States to ensure that an alternative method of dispute settlement is available to private parties to preserve their right to a fair trial.[26]
The CPIUN takes a similar stance. Its Article VIII, Section 29 requires the UN to “make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. Therefore, “the de facto ‘absolute’ immunity” of the United Nations is mitigated by this provision.[27] It follows that the concept of immunity of international organisations does not mean that they are immune from any jurisdiction.[28] It means that they enjoy immunity from the jurisdiction of the national courts of their members.[29] However, in order not to leave complainants without remedies, arbitration was seen as a proper forum to deal with disputes of a private law character.[30] In fact, it is common practice that private law contracts entered into by the UN regularly contain arbitration clauses.[31] For tort claims, the UN usually agrees to similar forms of dispute resolution.[32] As for staff disputes within the UN, they are settled by an internal mechanism in the form of the United Nations Administrative Tribunal.[33]
A number of arbitrations involving international organisations have been conducted under the International Chamber of Commerce Rules or the United Nations Commission on International Trade Law Rules, sometimes administered by the PCA.[34]
The PCA specifically created the Optional Rules for Arbitration between International Organisations and States (IO-State Rules) and the Optional Rules for Arbitration between International Organisations and Private Parties (IO-Private Party Rules) to facilitate the resolution of these disputes. Both are based on the 1976 UNCITRAL Arbitration Rules, “with changes made to better accommodate disputes arising from agreements or relationships between an international organisation and a private party.” The rules provide that the agreement to arbitrate constitutes a waiver of any immunity from jurisdiction.[35]
The PCA has provided a list of publicly available examples of arbitrations involving international organisations where the proceedings were administered by the PCA, but the arbitral awards are usually non-public.[36] Aceris Law has been involved in a number of such arbitrations. In our experience, international organisations often seek to resolve meritorious claims amicably.
Conclusion
International organisations enjoy extensive immunities and privileges. Nevertheless, these are not unlimited, as access to justice must be ensured for all parties involved with these organisations. Although immunity from jurisdiction is usually waived and arbitrations involving international organisations have increased, there remains a “gap” regarding immunity from enforcement. For instance, under the CPIUN, there is doubt as to the “waivability” of the organisation’s immunity from enforcement measures, given the provision under Article II, Section 2, which stipulates that “[i]t is, however, understood that no waiver of immunity shall extend to any measure of execution.”[37] In addition, “little is known about the actual practice of enforcing arbitral awards involving international organizations.”[38] This is because most of the arbitrations involving international organisations are confidential. Nevertheless, it appears that most awards are complied with voluntarily, without recourse to enforcement measures.[39]
[1] I. Hurd, Theory, Methods and International Organizations in I. Hurd, International Organizations – Politics, Law, Practice (4th edn., 2021).
[2] See, e.g., the League of Nations, ancestor of the United Nations, established in 1919, after the end of World War I, at a time when there existed no precedent of an international organisation for preserving peace: UN Geneva, Historical Background, https://www.ungeneva.org/en/about/league-of-nations/background (last accessed 13 May 2025).
[3] PCA-CPA, The PCA and Disputes involving International Organizations, https://pca-cpa.org/the-pca-and-disputes-involving-international-organizations/ (last accessed 13 May 2025).
[4] R. Kolb, International Organizations or Institutions, History of, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 1.
[5] R. Kolb, International Organizations or Institutions, History of, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 1.
[6] PCA-CPA, The PCA and Disputes involving International Organizations, https://pca-cpa.org/the-pca-and-disputes-involving-international-organizations/ (last accessed 13 May 2025).
[7] PCA-CPA, The PCA and Disputes involving International Organizations, https://pca-cpa.org/the-pca-and-disputes-involving-international-organizations/ (last accessed 13 May 2025).
[8] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 185; see, e.g., The Convention on the Privileges and Immunities of the United Nations, dated 13 February 1946 (CPIUN).
[9] C. Wickremasinghe, International Organizations or Institutions, Immunities before National Courts, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 1; N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 194. Here, Niels Blokker notes that according to the International Law Commission (ILC), “‘[t]he fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary law’. The broad practice that most international organisations enjoy immunity on the basis of treaty provisions therefore does not conclusively answer the question of whether they enjoy immunity also under customary international law.”
[10] C. Wickremasinghe, International Organizations or Institutions, Immunities before National Courts, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 1.
[11] C. Wickremasinghe, International Organizations or Institutions, Immunities before National Courts, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 1.
[12] C. Wickremasinghe, International Organizations or Institutions, Immunities before National Courts, in The Max-Planck Encyclopedia of Public International Law (2nd edn., 2012), para. 2.
[13] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 196.
[14] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 186.
[15] E. De Brabandere, Measures of Constraint and the Immunity of International Organisations, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 327-349, p. 327.
[16] Convention on the Privileges and Immunities of the Specialised Agencies dated 21 November 1947 (CPISA), Article 1, Section 1.
[17] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[18] E. De Brabandere, Measures of Constraint and the Immunity of International Organisations, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 327-349, p. 327.
[19] CPIUN, Article IV; CPISA, Article V.
[20] CPIUN, Article V; CPISA, Article VI.
[21] CPIUN, Article VI; CPISA, Article I, Section I (v) and Article V.
[22] CPIUN, Article V, Section 18; CPISA, IV, Section 19 (b).
[23] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[24] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 547.
[25] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 547.
[26] Waite and Kennedy v. Germany, no. 26083/94, ECtHR, 1999: here, the ECtHR held that immunity of international organisations is not absolute and that it must be balanced against the individual’s right of access to a court under Article 6, para. 1, of the European Convention on Human Rights. A key factor is whether the organisation provides reasonable alternative dispute resolution mechanisms. In this case, the organisation had an internal “Appeals Board”, which was deemed sufficient to satisfy the applicants’ right to a fair trial; A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 547. The position of the Supreme Court of the United States is even more favourable to litigants. In Jam et al. v. International Finance Corporation 586, USSC (2019), the USSC considered that international organisations do not enjoy absolute immunity under the International Organisations Immunities Act (IOIA). Instead, their immunity is limited and conditional, just like that of foreign States under the Foreign Sovereign Immunities Act (FSIA), after the 1976 amendment.
[27] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[28] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 186.
[29] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 186.
[30] N. Blokker, Jurisdictional Immunities of International Organisations – Origins, Fundamentals and Challenges, in T. Ruys et al., The Cambridge Handbook of Immunities and International Law (2019), pp. 185-200, p. 186.
[31] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[32] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[33] A. Reinisch, Convention on the Privileges and Immunities of the United Nations – Convention on the Privileges and Immunities of the Specialized Agencies (2009), United Nations Audiovisual Library of International Law.
[34] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, pp. 551-552.
[35] See, e.g., Optional Rules for Arbitration between International Organisations and Private Parties (IO-Private Party Rules), Section I, Article 1.
[36] PCA, Response to the questionnaire on the topic “Settlement of international disputes to which international organizations are parties”, https://legal.un.org/ilc/sessions/75/pdfs/english/sdio_pca.pdf (last accessed 13 May 2025), Annex A.
[37] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 560 and footnote 70.
[38] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 559.
[39] A. Reinisch, Arbitrating Disputes with International Organisations and Some Access to Justice Issues, 13 December 2023 (2023), King’s Law Journal, pp. 546-561, p. 559.
