The Growth of Intergovernmental Organizations - Essay Example

Student Name: Tutor: Title: Intergovernmental Organizations Course: Introduction The growth of intergovernmental organizations as well as their expanding significance of their role in a variety of fields has precipitated debate on the issue of adequacy of rules that govern their operation especially the question concerning the scope of immunities and privileges extended to these organizations. The privileges and immunities accorded to intergovernmental organizations such as Word Health Organization (WHO), United Nations (UN), NATO, and International Monetary Fund enable them to perform their functions independently without being crippled by court jurisdictions of the member states1. The immunity enables the personnel in their official duty to carry out their functions without fear of victimization or being dragged into judicial proceedings that deter their functions or delay the purpose of the intergovernmental organization. There an important discussion on the need for privileges and immunities for intergovernmental organizations within the modern international law. Intergovernmental organizations in most incidences are exempted from the local court jurisdiction to make sure that they accomplish their obligations without interference2. The immunity and privileges enjoyed by the intergovernmental organizations have sometimes been misused where officials get involved in personal crimes outside their official duty. There is need to regulate the immunities and privileges accorded to the intergovernmental organizations in order to make sure that justice is given to aggrieved parties where they feel violated by the officials. Immunity given by the state can be waived to ensure that fair trials are conducted to avoid official going scot free by simply seeking back to their mother countries. Employment disputes with citizens of a member states have to be resolved by a special tribunal to void mistreatment of the locals. Non-interference by the local national courts should not be interpreted as being above the national law of the land by intergovernmental organizations3. This essay probes the need for immunity and privileges to intergovernmental organizations while exploring the rules and principles relating to them (immunity and privileges) and their appropriateness. The paper further expounds how issues concerning privileges and immunity can be addressed. Intergovernmental Organizations Intergovernmental organization refers to an organization comprising of sovereign states described as Member States. Intergovernmental organizations are also described as international organizations although the term may further entail international nongovernmental organization like international nonprofit organizations. International organizations are a very important component of international law. Intergovernmental organizations come into establishment by treaty acting as a charter that creates the group. Treaties come into being when lawful representatives or governments go through a process of ratification hence offering the intergovernmental organization with a legal personality. Intergovernmental organizations legally have to be differentiated from simple coalitions of states or groupings like the Quartet or the G84. Such associations or groups have not been constituted by constituent documents and are in existence as task groups. Intergovernmental organizations have to be differentiated from treaties. Intergovernmental organizations describe public international organizations that comprises of government as members. Whereas many people have grappled with the issue of the privileges as well as immunities of international organizations and their officials, there limited theoretical framework that has evolved. Diplomatic immunities and privileges, previously confined to diplomats, were eventually extended to representatives to international organizations. The principles and rules that relating Intergovernmental Organizations privileges and immunities For the purpose of effectively exercising their functions, intergovernmental organizations need the concessions of immunities and privileges on two fronts, external and internal. Internally within the host country the organization requires immunities and privileges for its staff, premises, and for the representatives of non-member and members to the organization. Externally, is whereby the organization sends its persons to other states of international organizations, it needs immunities and privileges for its premises and representatives. States require immunities and privileges for their representatives on the external front because the internal activities are exercised within their own territory. The basic immunities and privileges seem to be that organizations are protected in all they engage in their scope of their functions. International organizations enjoy within the fields of their expertise the complete immunity from jurisdiction that states used to possess in the 19th Century5. In the case of states, it is expected that incidences of activities of a commercial nature there should be absence of immunity from jurisdiction to the concerned organization. Privileges and immunities for majority of international organizations are expressly offered by the constitutions. The concept is to supplement constitutive documents through a detailed agreement. Nevertheless, where there is no agreement on such matter, national courts have an obligation of granting immunity on legal grounds where an organization is made up of sovereign states and pursuant to a rule of customary law providing immunities and privileges to all legal persons. Immunity blocks a single member state from exerting undue influence on an intergovernmental organization and thwarts the majority’s will using its courts. Member states have to be prevented from crippling the activities of an international organization using its courts and administrative agencies. For the purpose of an international organization to operate effectively it has to function independently from its member states or the group of member states. Consequently, independence needed and the immunities and privileges given are of functional nature. The special status accorded to an international organization is only accorded when necessary for the efficient performance of its functions and tasks6. Therefore, the functional needs of the intergovernmental organization comprise of the source but also describe the limitations of special status. Other reasons provided that expound providing international immunities comprise of the avoidance of unnecessary national financial advantage, resulting from financial and fiscal pressure via numerous types of taxation, which a member state can direct on an international organization situated or operating within its territory can support the granting of international privileges and immunities. Moreover, the equality within the members of international organization can justify the need for these international privileges and immunities. Concerning the immunities and privileges of experts and officials of international organizations similar sentiments can be made. An intergovernmental organization is only an institutional vehicle and is not able to exist without personnel7. Consequently, the major reason for giving such persons such special treatment is for the purpose of safeguarding their independence and ensuring the uninterrupted accomplishment of their functions, which eventually permits the intergovernmental organization to accomplish its intended purpose. The limited character is clarified in frequent delineation of the immunity of the officials from jurisdiction to official acts. Jurisdictional immunities extended to international organizations is usually subject on their international legal personality. International personality as well as immunities has been regarded as two sides of the same coin, therefore, providing a course for granting immunity to intergovernmental organizations on the foundation of customary law anchored and applicable by example, the principle of the law of immunity. Italians courts have not explicitly supported an autonomous ad hoc customary rule concerning international organizations’ immunity8. International organizations are entitled no more to what is strictly needed for it to perform its functions in order to fulfill the purpose of its existence. Intergovernmental organizations exercise administrative, legislative as well as judicial jurisdiction over their organs and their members and their jurisdiction is defined in all international organizations that do not possess contrary provisions. The clash between practice and doctrine is present also regarding the ability to act externally as a law subject on equal basis. The provisions to intergovernmental organizations are usually limited to the legal capacity as may be needed for the exercise of its functions and further accomplishment of its purposes. International organizations do not often possess express provision in their constitutions or international capacity or personality. Legal writers concur that an organization can only do what is permitted within its particular constitution. In practice particularly in external relations where organizations act on a voluntary basis being equal partners. Intergovernmental organizations enjoy some privileges and immunities that target to make them function effectively and independently9. The privileges as well as immunities are defined in the treaties that gave rise to the organizations and are supplemented by multinational agreements together with regulations. The intergovernmental organizations are immune from the national courts’ jurisdiction. Place of privileges and immunity of intergovernmental organizations in modern International Law After establishment of the United Nations it was deemed important that it should be given the status of legal person in the Member States’ domestic law. The status of domestic legal person is very significant for international organizations to efficiently manage their practical needs like procurement contracts, property acquisition and the ability to pursue private law rights in national courts. The principle of functional immunity and functional personality was firmed anchored in the United Nations’ founding documents. Article 31 of Vienna Convention stipulates that a diplomatic agent will enjoy immunity from any criminal jurisdiction of the receiving state. The diplomat will further get immunity from its administrative and civil jurisdiction except where there is an action regarding to succession where the diplomatic agent is involved being a private person; an action regarding to any commercial or professional activity that is exercised by the diplomatic agent within the receiving state not n his official functions; and a real action that relates to private immovable property located within the territory of the receiving state unless he is holding it on the behalf of the sending state the mission’s purposes10. The same immunity is extended to the family of diplomat if they are not citizens of the receiving state. Immunity existence does not mean that persons injured are entirely without remedy. The hopes of a diplomat getting a promotion often dependent on really good behaviour, and this will compel him not to abuse immunity accorded to him. The individual will try as much as possible to settle private claims brought against him much earlier before they catch the attention of his seniors. It was debated that under international law members of an intergovernmental organization bear several and joint liability for its debts unless the treaty explicitly excludes the liability bit. The accountability concept is wider than the principles of liability and responsibility regarding internationally wrongful acts and is founded upon the premise that lawful application of power imparts accountability for its exercise. There are measures that member states as well as international organization can apply to minimize the adverse impact of immunity on the right to fair trial in the course of disputes with international organizations. One measure is to limit the scope of immunity through granting immunity that is limited by providing functional immunity instead of focusing on absolute immunity11. Therefore, officials and the organization will be immune with regard official duties that they engage in to perform the functions that are stated on the constituent treaty. They do not possess immunity for actions that they perform outside the scope of their official functions. If an international organization is used for activities that do not fall within its functions and objectives of its formation. The intergovernmental organization can be denied immunity with regard to their pursuit of activities for commercial interests as opposed to their sovereign functions. Restrictive immunity is the most prevalent view in modern international law. Lending institutions make it challenging since they engage in commercial activities. States can also place a cap on the amount of damages that an individual can be awarded in the case of unfair judgments in national courts for an international organization. This leaves the open chance that national courts or arbitration tribunals can be used to adjudicate disputes involving intergovernmental organizations and go ahead to compensate the aggrieved party with damages. Adverse impact of immunity to a fair trial can be curtailed using a legislation or treaty requiring the intergovernmental organization to offer alternative ways for resolving disputes with others. Those alternative ways may include providing access to a labour court for dealing with employment-related claims against the intergovernmental organization12. Nevertheless, the effectiveness of alternative ways as a substitute for fair trial within national courts of member states relies on their level of accessibility and independence. The comfort level of the current world view of immunity granted to intergovernmental organizations depends on the effectiveness of alternative dispute resolution mechanisms offered by intergovernmental organizations in an effort to mitigate the adverse impact of the immunities and privileges. Governments may support the effect of immunity on the right to fair trial through including in their treaty agreements with intergovernmental organizations a provision that needs the legal representative of an organization to remove immunities and privileges when the waiver does not affect the pursuit of the objectives of the organization13. The legal representative has to provide the way forward. Immunity from the jurisdiction of national courts does not translate to being above the law in modern international law. Both diplomatic and sovereign immunity can be waived to have the effect of changing an unenforceable obligation into one that is enforceable. Immunity given in the state’s interests can only be waived by the state. A state has the power of waiving immunity of his diplomats against his wishes. Waiver offered by the diplomat is not enforceable unless is done by his superiors. The immunity and privileges of international organizations are necessary but should be applied only in the official capacity. Misuse of such privileges should instigate a waiver to the immunity hence allowing the diplomats to face fair trial in the national courts14. Immunity and privileges have been misused in some incidences where personnel have committed crimes and escaped to their country of origin without facing the full force of law. Conclusion The immunity and privileges conferred upon international organizations are important to enable them to functions independently and properly. States allow intergovernmental organization to operate outside the jurisdiction of the national courts. In case it is necessary to waive the immunity and privileges of diplomats in order to enforce a court proceeding then it should be done. Crimes committed by diplomats of intergovernmental organizations have to be addressed in a satisfactory manner through arbitration to avoid court trials. Special tribunals can be formed to address employment grievances of the natives. Without the immunity some of the intergovernmental organization cannot functions independently without interference from member states law enforcement and administrative agencies. The immunity and privileges help to remove the burden of the red tape of registration and execution of duties in states that may be hostile to such organizations. However, immunity should not allow intergovernmental personnel to operate above the law. In modern international law there are remedies that have been provided to deal with errant officials and violation of rights of the locals with regard to employment contracts and compensation. Blanket immunity without stipulation of exceptions can lead to abuse by dome unscrupulous diplomat that do not respect the hosting country. A waiver to immunity by member states is important to allow judicial proceedings that will ensure that violation of the local laws that safeguards the interests of the people is tamed. The immunity and privileges accorded to the officials have to be limited to their official functions to avoid their misuse. The independent of intergovernmental organizations is crucial but they have to operate within the confines of the law of the hosting country. Read More