READING MATERIAL ON

UNIT 1
Topic: INTRODUCTION

(International Organization’ - Meaning, benefits, nature, functions, limitations and

classification of International Organizations; History and Evolution; International Legal
Personality)

International Organization is a part of Public International Law. The study of International

Law would be an incomplete one without a comprehensive study of International
Organizations. These Organizations have become very important actors in the international
sphere whose role cannot be ignored in shaping international policies. A typical International
Organization is composed of sovereign, independent States voluntarily joining it for
achieving common goals or objectives. Nineteenth century marked as an important era in the
development of the international organisations to promote international cooperation
especially in the field of communications. By 1865 all European States had developed their
internal postal services. The establishment of the International Postal Union, International
Telegraph Union International Convention on Railway Freight Traffic were the first
Organizations to achieve the common goals of the States. Nonetheless, the establishment of
the League of Nations after the First World War, and the establishment of the United Nations
after the Second World War were made great contributions for the development of the
International Organisations as well as to achieve the common goals of the States. Now, the
United Nations exists with a large family of specialized agencies. These agencies now strive
to promote international cooperation in a particular area of common interest to all nations.
Apart from these, many other International Organizations were established to achieve the
common goals of the States.

International Organizations (IO) could be visualized as one of the important mechanism to

encourage a better functioning of the State system. Although, it plays a vital role to fulfil the
aspirations of the States’, often doubts may arise about the extent powers of the International
Organizations. Since, International Treaties may confer express powers and functions on the
IOs and sometimes they may be silent in this aspect. These doubts were explicated by the
International Court of Justice on many occasions.
SELECTED CASES

Case No.1 Reparation for Injuries case, Reparation for Injuries suffered in Service of
the United Nations, Advisory opinion, 1949 ICJ Rep 174 (April 11)
REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED
NATIONS----- Injuries suffered by agents of United Nations in course of performance of
duties.-Damage to United Nations. Damage fo agents. -Capacity of United Nations to bring
claims for reparation due in respect of both.-International personality of United Nations -
Capacity as necessary implication arising from Charter and activities of United Nations.-
Functional protection of agents. Claim against a Member of the United Nations.-Claim
against a non-member.- Reconciliation of claim by national State and claim by United
Nations. -Claim by United Nations against agent's national State.
COMPOSITION OF ADVISORY OPINION: President Basdevant: Vice-President
Guerrero ; Judges Alvarez, Fabela, Hackworth, Winiarski, Zoricic, De Visscher, Sir Arnold
Mcnair, Klaestad, Badawi Pasha, Krylov, Read, Hsu Mo, Azevedo.
In this case, the doctrine of implied powers adopts the approach according to which though
treaty or document not expressly provided powers to the International Organizations, can
still be exercised by the organizations when such powers can be implied from the founding
treaty or document. Although these powers seem to be additional, they are very much
required for the performance of its functions, or for the exercise of the powers explicitly
granted.

The reparations for injuries case brought about a very important development to the topic of
international organisations.

1. Facts and historical background of the case:

Folke Bernadotte, Count of Wisborg (2 January 1895 – 17 September 1948) was a

Swedish diplomat and nobleman. During World War II he negotiated the release of about
31,000 prisoners from German concentration camps including 450 Danish Jews from
the Theresienstadt camp. They were released on 14 April 1945. In 1945, he received a
German surrender offer from Heinrich Himmler, though the offer was ultimately rejected.
After the war, Bernadotte was unanimously chosen to be the United Nations Security
Council mediator in the Arab–Israeli conflict of 1947–1948. On Friday 17 September 1948,
Folke Bernadotte and other members of the United Nations peace Mission on Palestine were
killed in Jerusalem by members of the armed Jewish Zionist group Lehi (commonly known
as the Stern Gang or Stern Group).

Subsequent to this event, On December 3rd, 1948, the General Assembly of the United
Nations adopted the following Resolution: "Whereas the series of tragic events which have
lately befallen agents of the United Nations engaged in the performance of their duties raises,
with greater urgency than ever, the question of the arrangements to be made by the United
Nations with a view to ensuring to its agents the fullest measure of protection in the future
and ensuring that reparation be made for the injuries suffered; and whereas it is highly
desirable that the Secretary General should be able to act without question as efficaciously as
possible with a view to obtaining any reparation due.”

2. Legal question submitted by the United Nations General Assembly(UNGA) to the

International Court of Justice(ICJ) for its advisory opinion

1. In the event of an agent of the United Nations in the performance of his duties suffering
injury in circumstances involving the responsibility of a State, has the United Nations, as an
Organization, the capacity to bring an international claim against the responsible de jure or de
facto government with a view to obtaining the reparation due in respect of the damage caused
(a) to the United Nations,
(b) to the victim or to persons entitled through him?
2. In the event of an affirmative reply on point 1 (b), how is action by the United Nations to
be reconciled with such rights as may be possessed by the State of which the victim is a
national?

In a letter of December 4th, 1948, filed in the Registry on December 7th, the Secretary-
General of the United Nations forwarded to the Court a certified true copy of the Resolution
of the General Assembly. On December 7 th, in accordance with paragraph I of Article 66 of
the Statute, the Registrar gave notice of the Request to all States entitled to appear before the
Court.

On December 11th, by means of a special and direct communication as ,provided in paragraph

2 of Article 66, he informed these States that, in an Order made on the same date, the Court
had stated that it was prepared to receive written statements on the questions before February
14th 1949, and to hear oral statements on March 7th, 1949.

Written statements were received from the following States :

India, China, the United States of America, the United Kingdom of Great Britain and
Northern Ireland, and France. These statements were communicated to all States entitled to
appear before the Court and to the Secretary-General of the United Nations. In the meantime,
the Secretary-General of the United Nations, having regard to Article 65 of the Statute
(paragraph 2 of which provides that every- question submitted for an opinion shall be
accompanied by all documents likely to throw light upon it), had sent to the Registrar the
documents which are enumerated in the list annexed to this Opinion.
Furthermore, the Secretary-General of the United Nations and the Governments of the French
Republic, of the United Kingdom and of the Kingdom of Belgium informed the Court that
they had designated representatives to present oral statements.

Preliminary observations of the Court:

(a) The Organization of the United Nations will be referred to usually, but not invariably, as
"the Organization".
(b) Questions 1 (a) and 1 (b) refer to "an international claim against the responsible de jure
or de facto government". The Court understands that these questions are directed to claims
against a State, and will, therefore, in this opinion, use the expression "State" or "defendant
State".
(c) The Court understands the word "agent" in the most liberal sense, that is to say, any
person who, whether a paid officia1 or not, and whether permanently employed or not, has
been charged by an organ of the Organization with carrying out, or helping to carry out, one
of its functions-in short, any person through whom it acts.
(d) As this question assumes an injury suffered in such circumstances as to involve a State's
responsibility, it must be supposed, for the purpose of this Opinion, that the damage results
from a failure by the State to perform obligations of which the purpose is to protect the agents
of the Organization in the performance of their duties.
(e) The position of a defendant State which is not a member of the Organization is dealt with
later, and for the present, the Court will assume that the defendant State is a Member of the
Organization.
The questions asked of the Court relate to the "capacity to bring an international claim";
accordingly, the court must begin by defining what is meant by that capacity’, and consider
the characteristics of the Organization, so as to determine whether, in general, these
characteristics do, or do not, include for Organization a right to present an international
claim.

The decision of the court:

The Court arrives at the conclusion that an affirmative answer should be given to Question 1
(a) and (b) whether or not the Defendant State is a Member of the United Nations.
Question II is as follows: "In the event of an affirmative reply on point 1 (b), how is action by
the United Nations to be reconciled with such rights as may be possessed by the State of
which the victim is a national?" The affirmative reply given by the Court on point 1 (b)
obliges it now to examine Question II. When the victim has a nationality, cases can clearly
occur in which the injury suffered by him may engage the interest both of his national State
and of the Organization. In such an event, competition between the State's right to diplomatic
protection and the Organization's right of functional protection might arise, and this is the
only case with which the Court is invited to deal. In such a case, there is no rule of law that
assigns priority to the one or to the other, or which compels either the State or the
Organization to refrain from bringing an international claim. The question of reconciling
action by the Organization with the rights of a national State may arise in another way; that is
to say, when the agent bears the nationality of the defendant State. The ordinary practice
whereby a State does not exercise protection on behalf of one of its nationals against a State
which regards him as its own national does not constitute a precedent thats relevant here. The
action of the Organization is in fact based not upon the nationality of the victim but upon his
status as agent of the Organization.
Therefore, it does not matter whether or not the State to which the claim is addressed regards
him as its own national, because the question of nationality is not pertinent to the
admissibility of the claim. In law, therefore, it does not seem that the fact of the possession of
the nationality of the defendant State by the agent constitutes any obstacle to a claim brought
by the Organization for a breach of obligations towards it occurring in relation to the
performance of his mission by that agent.

Ratiodecidendi
A State can bring an international claim against another State. Such a claim takes the form of
a claim between two political entities equal in law, similar in form, and both the direct
subjects of international law. It is dealt with by means of negotiation, and cannot, in the
present state of the law as to international jurisdiction, be submitted to a tribunal, except with
the consent of the States concerned. When the Organization brings a claim against one of its
Members, this claim will be presented in the same manner and regulated by the same
procedure. It may, when necessary, be supported by the political means at the disposal of the
Organization. In th,ese ways the Organization would find a method for securing the
observance of its rights by the Member against which it has a claim.
Through the history, the development of international law has been influenced by the
requirements of international life, and the progressive increase in the collective activities of
States has already given rise to instances of action upon the international plane by certain
entities which are not States.
This development culminated in the establishment in June 1945 of an international
organization whose purposes and principles are specified in the Charter of the United
Nations. The Charter has not been content to make the Organization created by it merely a
centre "for harmonizing the actions of nations in the attainment of these common ends"
(Article 1, Para. 4). It has equipped that centre with organs, and has given it special tasks. It
has defined the position of the Members in relation to the Organization by requiring them to
give it every assistance in any action undertaken by it (Article 2, Para. 5), and to accept and
carry out the decisions of the Security Council; by authorizing the General Assembly to make
recommendations to the Members by giving the organization legal capacity and privileges
and immunities in territory of each of its members; and by providing for the conclusion of
agreement between the organization and its members. Practice- in particular the conclusion
of convention to which the organization is a party- has confirmed the character of an
organization, which occupies a position in certain respect in detachment from its members,
from its members, and which is under a duty to remind them, if need be, of certain
obligations. It must be added that the organization is a political body, charged, with the
political tasks of an important character, and covering a wide field namely the maintenance of
international peace and security , the development of friendly relations the nations nation, and
the achievement of international co-operation in the solution of problem of an economic,
social , cultural or humanitarian character (Article 1); and in dealing with its members of it
employs political means. The ―convention on the privileges and immunities of the U.N of
1946 creates rights and duties between each of the signatories and the organization (see in
particular, section 35). It is difficult to see how such a convention could operate except upon
the international plane and between parties possessing international personality.

Hence, the court opined that the organization was intended to exercise and enjoy, and is in
fact exercise and enjoying function and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane it is at present the supreme type of international organizations, and it
could not carry out the intentions of its founders if it was devoid of international personality.
It must be acknowledged that its members, by entrusting certain functions to it, with the
attendant duties and responsibilities, have clothed it with the competence required to enable
those functions to be effectively discharged.
Accordingly, the court has come to the conclusion that the organization is an international
person. That is not the same thing as saying that it is a state, which it certainly is not, or that
its legal personality and rights and duties are the same as those of a state. Still less is it the
same thing as saying that it is a super state, whatever that expression may mean it does not
imply that all its rights and duties must be upon the international plane, any more than all the
rights and duties of a state must be upon that plane. What it does mean is that it is a subject of
international law and capable of possessing international rights and duties, and that it has
capacity to maintain its rights by bringing international claims.
The next question is whether the sum of the international rights of the organizations
comprises the right to bring the kind of international claim described in the request for this
opinion that is a claim against a state to obtain reparation in respect of the damage caused by
the injury of an agent of the Organization in the course of the performance of his duties.
Whereas a State possesses the totality of international rights and duties recognized by
international law, the rights and duties of an entity such as the Organization must depend
upon its purposes and functions as specified or implied in its constituent documents and
developed in practice. The functions of the Organization are of such a character that they
could not be effectively discharged if they involved the concurrent action, on the international
plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have
endowed the Organization with capacity to bring international claims when necessitated by
the discharge of its functions. It cannot be doubted that the Organization has the capacity to
bring an international claim against one of its Members which has caused injury to it by a
breach of its international obligations towards it.
 The traditional rule that diplomatic protection is exercised by the national State does not
involve the giving of a negative answer to Question 1 (b). In the first place, this rule applies
to claims brought by a State. Butare we have the different and new case of a claim that would
be brought by the Organization.
In the second place, even in inter-State relations, there are important exceptions to the rule,
for there are cases in which protection may be exercised by a State on behalf of persons not
having its nationality.
In the third place, the rule rests on two bases.
(i) that the defendant State has broken an obligation towards the national State in
respect of its nationals.
(ii) that only the party to whom an international obligation is due can bring a claim in
respect of its breach. This is precisely what happens when the Organization, in
bringing a claim for damage suffered by its agent, does so by invoking the breach
of an obligation towards itself. Thus, the rule of the nationality of claims affords
no reason against recognizing that the Organization has the right to bring a claim
for the damage referred to in Question 1 (b).
On the contrary, the principle underlying this rule leads to the recognition of this capacity as
belonging to the Organization, when the Organization invokes, as the ground of its claim, a
breach of an obligation towards itself. Having regard to its purposes and functions already
referred to, the Organization may find it necessary, and has in fact found it necessary, to
entrust its agents with important missions to be performed in disturbed parts of the world.
Many missions, from their very nature, involve the agents in unusual dangers to which
ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in
these circumstances will sometimes have occurred in such a manner that their national State
would not be justified in bringing a claim for reparation on the ground of diplomatic
protection, or, at any rate, would not feel disposed to do so.

And lastly, it is essential that whether the agent belongs to a powerful or to a weak State; to
one more affected or less affected, by the complications of international life; to one in
sympathy or not in sympathy with the mission of the agent-he should know that in the
performance of his duties he is under the protection of the Organization. This assurance is
even more necessary when the agent is stateless. The obligations entered into by States to
enable the agents of the Organization to perform their duties are undertaken not in the interest
of the agents, but in that of the Organization. When it claims redress for a breach of these
obligations, the Organization is invoking its own right, the right that the obligations due to it
should be respected. On this ground, it asks for reparation of the injury suffered, for "it is a
principle of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form"; as was stated by the Permanent Court in its Judgment
No. 8 of July 26th, 1927 (Series A., No. 9,p. 21).

Conclusion:
The court while coming to its decision has not set any objective criteria
that are required for an organisation to possess an international personality. It has
been left rather subjective and dependent on the requirement of an organisation
depending on its functions. The court stated that international personality is indispensable for
the UN to be able to achieve the aims set
out in its charter

Case.No.2:- Jurisdiction of the European Commission of the Danube Between Galatz and
Braila, France and ors v Romania, Advisory Opinion, (1927) PCIJ Series B no 14, ICGJ 281
(PCIJ 1927), 8th December 1927, League of Nations (historical) [LoN]; Permanent Court of
International Justice (historical) [PCIJ]

Judges/Arbitrators:
Huber (President); Loder (Former President); Lord Finlay; MM Nyholm; Moore;
Altamira; Oda; Anzilotti; Beichmann (Deputy Judge); Negulesco (Deputy Judge)

Introduction

The Danube is the second longest river in Europe. It is formed by two headstreams (each
about 25 miles long), the Brigach River and Brege River, which rise in the Black Forest in
Germany and unite below Donaueschingen only 20 miles await from Schaffhausen on the
Rhine. Thereafter, it enters the Black Sea in a wide, marshy delta.

Entering Germany, it flows through Wüttemberg, past Ulm, and enters Austria, continues
through Upper and Lower Austria. Near Vienna it forms a short frontier, and a longer frontier
between Austria and Czechoslovakia. It passes Hungary (Komárno), Budapest and enters
Yugoslavia, past Novi Sad, Belgradee, then reaches Romania, enters the great Walachian
plain and forms most of the Rumanian-Bulgarian border. Below Galati (Romania) it receives
the Prut River at the border of the Ukraine. Near Tulcea it forms three main arms: the Kilija,
the Sulina and the St. George. The Sulina, the central arm of the delta, enters the Black Sea at
town of Sulina.

Facts

Under the Treaty of Paris of 1856, the Danube was subjected to an international regime
which applied the principles of river law embodied in the Final Act of the Congress of
Vienna in 1815. By the Treaty of Paris of 1856, two Commissions were established: a
permanent riparian Commission (which never actually became operative), and a European
Commission as a temporary technical body. The powers of the European Commission were
extended to the Romanian seaport of Galatz, a seat being granted to that country by the
Treaty of Berlin of 1878.

The Treaty of London of 1883 extended this jurisdiction to Braila, another port in Romania;
but Romania had not signed this Treaorganizationty of Versailles of 1919 declared the
Danube an international river from Ulm to the sea and confirmed the
jurisdictioorganizationopean Commission in the powers vested in it before the war.

This Commission consisted of representatives of Great Britain, France, Italy and Romania.

The Definitive Statute of the Danube was signed on 23 July 1921 at an international
conference meeting in Paris, and provided as follows:

“Article 5

The European Commission retains the powers which it possessed before the war. No
alteration is made in the rights, prerogatives and privileges which it possesses in virtue of the
treaties, conventions, international acts and agreements relative to the Danube and its mouths.

Article 6

The authority of the European Commission extends, under the same conditions as before, and
without any modification of its existing limits, over the maritime Danube, that is to say, from
the mouths of the river to the point where the authority of the International Commission
commences.”

Article 9 of the Statute extended the jurisdiction of the International Commission from Ulm
to Braila. Romania expressed different view with regard to the powers of the Commission in
the sector Galatz-Braila from that of France, Great Britain and Italy. The matter was
submitted by the Special Committee to the Permanent Court of International Justice for an
advisory opinion.

Request for the Advisory Opinion

Three questions were put by the Special Committee:

“1) Under the law at present in force, has the European Commission of the Danube the same
powers on the maritime sector of the Danube from Galatz to Braila as on the sector below
Galatz? If it has not the same powers, does it possess powers of any kind? If so, what are
these powers? How far upstream do they extend?

2) Should the European Commission of the Danube possess either the same powers on the
Galatz-Braila sector as on the sector below Galatz, or certain powers, do these powers extend
over one or more zones, territorially defined and corresponding to all or part of the navigable
channel to the exclusion of other zones territorially defined and corresponding to harbour
zones subject to the exclusive competence of the Romanian authorities? If so, according to
what criteria shall the line of demarcation be fixed as between territorial zones placed under
the competence of the European Commission and zones placed under the competence of the
Romanian authorities?

3) If the contrary is the case on what non-territorial basis is the exact dividing line between
the respective competence of the European Commission of the Danube and of the Romanian
authorities to be fixed?”

Summary of the Advisory Opinion

1. As for the first question, in the opinion of the Court, the law in force is the Definitive
Statute of 1921. All Parties concerned, i.e. France, Great Britain, Italy and Romania have
signed and ratified both the Treaty of Versailles and the Definitive Statute. The Definitive
Statute placed the entire navigable Danube under an international regime, and the jurisdiction
of the European Commission extended from Ulm to Braila (Article 9) that is to say, as far as
Braila.

2. As for the second question, as to whether the Commission should exercise all the powers in
the sector Galatz-Braila in the same way as they are exercised in the sector below Galatz,
according to the view of France, Great Britain and Italy, or only strictly technical powers in
the disputed sector (Galatz-Braila) according to the view of Romania, the Court finds that
Article 6 of the Statute of 1921 is not a new draft conferring only technical powers on the
Commission, because the preparatory works cannot change the interpretation of the text of
Article 6. The Interpretative Protocol is not part of the Statute and that is why it cannot
prevail against the Definitive Statute. So the Court concludes that before the war, the
Commission had the same powers with respect to the Galatz-Braila sector as in the sector
below Galatz.

The Court follows functional criteria to delimit the powers of the European Commission and
Romania in the Galatz-Braila sector. Taking into account the principles of freedom of
navigation and equality of flags, the Court establishes two criteria:

(a) in the ports of Galatz and Braila, “the European Commission alone has jurisdiction over
navigation, that conception being taken to mean any movement of vessels forming part of
their voyage”;

(b) “with regard to vessels moved or otherwise at rest in these ports, and with regard to the
use by vessels of the installations and services of these ports... the powers of regulation and
jurisdiction belong to the territorial authorities; the right of supervision, with a view to
ensuring freedom of navigation and equal treatment of all flags, belongs to the European
Commission.”

Case-3 .EFFECT OF AWARDS OF COMPENSATION MADE BY THE UNITED1954)

1954 International Law Reports 310 (Application of the Principle of Res judicata)1

Definition of first question put to the Court : its limited scope. Examination of the texts upon
which the answer depends : Statute of the Administrative Tribunal, Staff Regulations and
Staff Rules. Nature of the Tribunal.-Character and effect of its awards.-Parties to the contract
of service.-Parties bound by the awards.- Question of power of review. Examination of
principal arguments in favour of the view that the General assembly is entitled to refuse to
give effect to awards : provisions of Charter ; power of the Organization, and in particular of
the General Assembly, to establish a tribunal to deal with disputes between the Organization
and staff members; effect of awards of this Tribunal as regards the General Assembly itself ;
nature and consequences of the budgetary powers of the General Assembly ; delimitation by
the General Assembly of the respective powers of the Secretary-General and of the
Tribunal ; relevance of decision of the League of Nations in 1946.
COMPOSITION OF ADVISORY OPINION President Sir Arnold Mcnair ; Vice-President
Guerrero ; Judges Alvarez, Hackworth, Winiarski, Klaestad, Badawi, Read, Hsu Mo, Levi
Carneiro, Armand- Ugon, Ko Jevnikov ; Deputy-Registrar Garnier-Coigne

The first Question submitted to the Court is as follows: "Having regard to the Statute of the
United Nations Administrative Tribunal and to any other relevant instruments and to the
relevant records, has the General Assembly the right on any grounds to refuse to give effect
to an award of compensation made by that Tribunal in favour of a staff member of the United
Nations whose contract of service has been terminated without his assent?"
This Question is strictly limited in scope. It relates solely to an award made by the
Administrative Tribunal of the United Nations in favour of a staff member of the United
Nations whose contract of service has been terminated without his assent.
According to Article 2, paragraph 1, of the Statute of that Tribunal, it "shall be competent to
hear and pass judgment upon applications alleging non-observance of contracts of
employment of staff members of the Secretariat of the United Nations or of the terms of
appointment of such staff members". A comparison between this provision and the terms of
the first Question submitted to the Court shows that an award as defined by that Question
must be considered as falling within the competence of the Tribunal as defined by Article 2.
A claim arising out of the termination of a contract of service without the assent of the staff
member must, in fact, either fall within the term "non-observance of contracts of
employment", or relate to "the terms of appointment" of the staff member. The Question
concerns, in other words, only awards which are made within the limits of the competence of
the Tribunal as determined by Article 2. This examination of the first Question shows that
the Court is requested to consider the general and abstract question whether the General
Assembly is legally entitled to refuse to give effect to an award of compensation made by the
Administrative Tribunal, properly constituted and acting within the limits of its statutory
competence. The answer to this question depends on the provisions of the Statute of the
Tribunal as adopted by the General Assembly on November 24th, 1949, and on the Staff
Regulations and Rules as in force on December 9th, 1953. But the Court will also take into
account the amendments which were made to the Statute on the latter date. The Court will
first consider whether the Tribunal is established either as a judicial body, or as an advisory
organ or a mere subordinate committee of the General Assembly. Article I of the Statute
provides: "A Tribunal is established by the present Statute to be known as the United Nations
Administrative Tribunal." This Tribunal shall, according to Article 2, paragraph 1, "be
competent to hear and pass judgment upon applications", whereupon the paragraph
determines the limits of the Tribunal's competence as already mentioned above. Article 2,
paragraph 3, prescribes: "In the event of a dispute as to whether the Tribunal has competence,
the matter shall be settled by the decision of the Tribunal." Article 10 contains the following
provisions "2. The judgments shall be final and without appeal." "3. The judgments shall state
the reasons on which they are based. ".
These provisions and the terminology used are evidence of the judicial nature of the Tribunal.
Such terms as "tribunal", "judgment", competence to "pass judgment upon applications", are
generally used with respect to judicial bodies. The above-mentioned provisions of Articles 2
and 10 are of an essentially judicial character and conform with rules generally laid down in
statutes or laws issued for courts of justice, such as, for instance, in the Statute of the
International Court of Justice, Article 36, paragraph 6, Article 56, paragraph 1, Article 60,
first sentence. They provide a striking contrast to Staff Rule 111.1 of the United Nations,
which provides: "A Joint Appeals Board is established to consider and advise the
SecretaryGeneral regarding appeals filed under the terms of Staff Regulation 11.1 by staff
members serving at Headquarters." The Statute of the Administrative Tribunal contains no
similar provision attributing an advisory character to its functions, nor does it in any way
limit the independence of its activity. The independence of its members is ensured by Article
3, paragraph 5, which provides: "No member of the Tribunal can be dismissed by the General
Assembly unless the other members are of the unanimous opinion that he is unsuited for
further service." (Article 9 paragraph I) prescribe both in the original and in the amended text
that the Tribunal shall, if it finds that the application is well founded, order the rescinding of
the decision contested or the specific performance of the obligation invoked. As the power to
issue such orders to the chief administrative officer of the Organization could hardly have
been conferred on an advisory organ or a subordinate committee, these provisions confirm
the judicial character of the Tribunal. This examination of the relevant provisions of the
Statute shows that the Tribunal is established, not as an advisory organ or a mere subordinate
committee of the General Assembly, but as an independent and truly judicial body
pronouncing final judgments without appeal within the limited field of its functions.
According to a well-established and generally recognized principle of law, a judgment
rendered by such a judicial body is res judicata and has binding force between the parties to
the dispute. It must therefore be examined who are to be regarded as parties bound by an
award of compensation made in favour of a staff member of the United Nations whose
contract of service has been terminated without his assent. Such a contract of service is
concluded between the staff member concerned and the Secretary-General in his capacity as
the chief administrative officer of the United Nations Organization, acting on behalf of that
Organization as its representative. When the Secretary General concludes such a contract of
service with a staff member, he engages the legal responsibility of the Organization, which is
the juridical person on whose behalf he acts. If he terminates the contract of service without
the assent of the staff member and this action results in a dispute which is referred to the
Administrative Tribunal, the parties to this dispute before the Tribunal are the staff member
concerned and the United Nations Organization, represented by the Secretary-General, and
these parties will become bound by the judgment of the Tribunal. This judgment is, according
to Article 10 of the Tribunal's Statute, final and without appeal. The Statute has provided for
no kind of review. As this final judgment has binding force on the United Nations
Organization as the juridical person responsible for the proper observance of the contract of
service, that Organization becomes legally bound to carry out the judgment and to pay the
compensation-awarded to the staff member. It follows that the General Assembly, as an
organ of the United Nations, must likewise be bound by the judgment. As mentioned above,
the Statute of the Administrative Tribunal has not provided for any kind of review of
judgments, which according to Article 10, paragraph 2, shall be final and without appeal.
This rule is similar to the corresponding rule in the Statute of the Administrative Tribunal of
the League of Nations, Article VI, paragraph 1, which equally prescribed that "judgments
shall be final and without appeal". It is likewise the result of a deliberate decision that no
provision for review of the judgments of the United Nations Administrative Tribunal was
inserted in the Statute of that Tribunal. The General Assembly could, when it adopted the
Statute, have provided for means of redress, but it did not do so. Like the Assembly of the
League of Nations it refrained from laying down any exception to the rule conferring on the
Tribunal the power to pronounce final judgments without appeal. This rule contained in
Article 10, paragraph 2; cannot however be considered as excluding the Tribunal from itself
revising a judgment in special circumstances when new facts of decisive importance have
been discovered; and the Tribunal has already exercised this power. Such a strictly limited
revision by the Tribunal itself cannot be considered as an "appeal" within the meaning of that
Article and would conform with rules generally provided in statutes or laws issued for courts
of justice, such as for instance in Article 61 of the Statute of the International Court of
Justice.
Case-- 4 Certain expenses case, Advisory opinion 1962, ICJ Rep. 151
Resolution I73I (XVI) of General Assembly requesting advisory opinion.- objections to
giving opinion based on proceedings in General Assemb1y.-Interpretation of meaning of
"expenses of the Organization".-Article 17, paragraphs I and 2, of Charter.-Lack of
justification for limiting terms "budget" and "expenses". Article 17 in context of Charter,
respective functions of Security Council and General Assemb1y. Article II, paragraph 2, in
relation to budgetary powers of General Assemb1y. Role of General Assembly in
maintenance of international peace and security. Agreements under Article 43.- Expenses
incurred for purposes of United Nations.-Obligations incurred by Secretary-General acting
under authority of Security Council or General Assemb1y.-Nature of operations of UNEF
and 0NUC.-Financing of UNEF and ONUC based on Article 17, paragraph 2.-
Implementation by Secretary-General of Security Council reso1utions.-Expenditures for
UNEF and ONUC and Article 17, Paragaraph 2, of Charter.
COMPOSITION OF ADVISORY OPINION : President Winiarski ; Vice-President Alfaro ;
Judges Basdevant, Badawi, Moreno Quintana, Wellington Koo, Spiropoulos, Sir Percy
Spender, Sir Gerald Fitz- Maurice, Koretsky, Tanaka, Bustamante Y Rivero, Jessup, Morelli ;
Registrar Garnier-Coignet.

Facts :

Article 17, paragraph 2, of the Charter of the United Nations provides that: “The expenses of
the Organization shall be borne by the Members as apportioned by the General Assembly.”
On 20 December 1961, the General Assembly adopted a resolution 1731 (XVI)requesting an
advisory opinion on whether the expenditures authorized by it relating to United Nations
operations in the Congo and to the operations of the United Nations Emergency Force in the
Middle East constituted “expenses of the Organization” within the meaning of this Article of
the Charter.

UNGA Placed the following Question before the ICJ Advisory Opinion.
Do the expenditures authorized in General Assembly resolutions 1583 (XV) and 1590 (XV)
of 20 December 1960, 1595 (XV) of 3 April 1961, 1619 (XV) of 21 April 1961 and 1633
(XVI) of 30 October 1961 relating to the United Nations operations in the Congo undertaken
in pursuance of the Security Council resolutions of 14 July, 22 July and 9 August 1960, and
21 February and 24 November 1961, and General Assembly resolutions 1474 (ES-IV) of 20
September 1960 and 1599 (XV), 1600 (XV) and 1601 (XV) of 15 April1961, and the
expenditures authorized in General Assembly resolutions 1122 (XI) of 26 November 1956,
1089 (XI) of 21 December 1956, 1090 (XI) of 27 February 1957, 1151 (XII) of 22 November
1957, 1204 (XII) of 13 December 1957, 1337 (XIII) of 13 December 1958, 14.41 (XIV) of 5
December 1959 and 1575 (XV) of 20 December 1960 relating to the operations of the United
Nations Emergency Force undertaken in pursuance of General Assembly resolutions 997
(ES-1) of 2 November 1956, 998 (ES-1) and 999 (ES-1) of 4 November 1956, 1000 (ES-1) of
5 November 1956, 1001 (ES-1) of 7 November 1956, 1121 (XI) of 24 November 1956 and
1263 (XIII) of 14 November 1958, constitue 'expenses of the Organization' within the
meaning of Article 17, paragraph 2, of the Charter of the United Nations?"

Decision: By nine votes to five the Court declared that the expenditures authorized in certain
General Assembly resolutions enumerated in the request for opinion, relating to the United
Nations operations in the Congo and in the Middle East undertaken in pursuance of Security
Council and General Assembly resolutions likewise enumerated in the request, were
"expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations.

Court Observations:

In its opinion the Court first recalled that it had been argued that the Court should refuse to
give an opinion, the question put to it being of a political name, and declared that it could not
attribute a political character to a request which invited it to undertake an essentially judicial
task, namely the interpretation of a treaty provision. In this connection the Court recalled the
principles previously stated by the Permanent Court of International Justice in the Advisory
Opinion concerning the Status of Eastern Carelia and by the present Court in the Advisory
Opinions concerning the Interpretation of peace treaties with Bulgaria, Hungary and
Romania (First Phase) and Judgments of the Administrative Tribunal of the ILO upon
Complaints made against UNESCO, and found no 'compelling reason" why it should not give
the advisory opinion which the General Assembly had requested of it.

The Court then examined the view that it should take into consideration the rejection of a
French amendment to the request for advisory opinion. The amendment would have asked the
Court to give an opinion on the question whether the expenditures related to the indicated
operations had been "decided on in conformity with the provisions of the Charter". On this
point the Court observed that the rejection of the French amendment did not constitute a
directive to the Court to exclude from its consideration the question whether certain
expenditures were "decided on in conformity with the Charter", if the Court found such
consideration appropriate. Nor could the Court agree that the rejection of the French
amendment had any bearing upon the question whether the General Assembly had sought to
preclude the Court from interpreting Article 17 in the light of other articles of the Charter,
that is, in the whole context of the treaty.

Turning then to the question which had been posed, the Court found that it involved an
interpretation of Article 17, paragraph 2, of the Charter, and that the first question was that of
identifying what are "the expenses of the Organization". The text of Article 17, paragraph 2,
referred to "the expenses of the Organization" without any further explicit definition. The
interpretation of the word "expenses" had been linked with the word "budget" in paragraph 1
of that Article and it had been contended that in both cases the qualifying adjective "regular"
or "administrative" should be understood to be implied. According to the Court this would be
possible only if such qualification must necessarily be implied from the provisions of the
Charter considered as a whole. Concerning the word "budget" in paragraph 1 of Article 17,
the Court found that the distinction between "administrative budgets" and "operational
budgets" had not been absent from the minds of the drafters of the Charter since it was
provided in paragraph 3 of the same Article that the General Assembly "shall examine the
administrative budgets" of the specialized agencies: if the drafters had intended that
paragraph 1 should be limited to the administrative budget of the United Nations organization
itself, the word "administrative" would have been inserted in paragraph 1 as it had been in
paragraph 3. Actually, the practice of the Organization had been from the outset to include in
the budget items which would not fall within my of the definitions of "administrative budget"
which hail been advanced. The General Assembly had consistently included in the annual
budget resolutions provision for "unforeseen and extraordinary expenses" arising in relation
to the "maintenance of peace and security". Every year from 1947 through 1959 the
resolutions on these unforeseen and extraordinary expenses have been adopted without a
dissenting vote, except for 1952.1953 and 1954, owing to the fact that in those years the
resolution included the specification of ;I controversial item-United Nations Korean war
decorations. Finally, in 1961, the report of the Working Group of Fifteen on the Examination
of the Administrative and Budgetary Procedures of the United Nations had recorded the
adoption without opposition of a statement that "investigations and observation operations
undertaken by the Organization to prevent possible aggression should be financed as part of
the regular budget of the United Nations." Taking these facts into consideration, the Court
concluded that there was no justification for reading into the text of Article 17, paragraph 1,
any limiting or qualifying word before the word "budget".

Further the Court observed that in paragraph 2 of Article 17 clearly indicates the term
"expenses of the Organization" meant all the expenses and not just certain types of expenses
which might be referred to as "regular expenses". Finding that an examination of other parts
of the Charter showed the variety of expenses which must inevitably be included within the
"expenses of the Organization", the Court did not perceive any basis for challenging the
legality of the settled practice of including such expenses in the budgetary amounts which the
General Assembly had among the Members in accordance with the authority which was
given to it by Article 17, paragraph 2.

Having considered the general problem of the interpretation of Article 17, paragraph 2, in the
light of the general structure of the Charter and of the respective functions of the General
Assembly and the Security Council,, with a view to determining the meaning of the phrase
"the expenses of the Organization", the Court proceeded to examine the expenditures
enumerated in the request for the advisory opinion. It agreed that such expenditures must be
tested by their relationship to the purposes of the United Nations in the sense that if
expenditure were made for a purpose which was not one of the purposes of the United
Nations, it could not be considered an "expense of the Organization". When the Organization
took action which warranted the assertion that it was appropriate for the fulfilment of one of
the purposes of the United Nations set forth in Article 1 of the Charter, the presumption was
that such action was not ultra vires of the Organization.

Hence, In relation to the financing of the operations in the Congo, the Court, recalling the
General Assembly resolutions contemplating the apportionment of the expenses in
accordance with the scale of assessment for the regular budget, concluded there from that the
General Assembly had twice decided that even though certain expenses were "extraordinary"
and "essentially different" from those under the "regular budget", they were none the less
"expenses of the Organization" to be apportioned in accordance with the power granted to the
General Assembly by Article 17, paragraph 2.

Case.5-- Advisory Opinion of Legality of the Threat or Use of Nuclear Weapons (ICJ
Reports 1996, p. 226)

COMPOSITION OF ADVISORY OPINION: President Bedjaoui ; Vice-President

Schwebel ; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh,
Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins ; Registrar Valencia-
Ospina.

Historical background : An advisory opinion on this issue was originally requested by

the World Health Organization (WHO) on 3 September 1993.In view of the health and
environmental effects, would the use of nuclear weapons by a state in war or other armed
conflict be a breach of its obligations under international law including the WHO
Constitution? The ICJ considered the WHO's request, in a case known as the Legality of the
Use by a State of Nuclear Weapons in Armed Conflict (General List No. 93), and also known
as the WHO Nuclear Weapons case, between 1993 and 1996. The ICJ fixed 10 June 1994 as
the time limit for written submissions, but after receiving many written and oral submissions,
later extended this date to 20 September 1994. After considering the case the Court refused to
give an advisory opinion on the WHO question. On 8 July 1996 it held, by 11 votes to three,
that the question was outside the scope of WHO's activities, as is required by Article 96(2) of
the UN Charter.

Facts: The UNGA passed a resolution on 19 December 1994, to request the ICJ on the issue
of use of nuclear weapons was adopted by 78 states voting in favour, 43 against, 38
abstaining and 26 not voting.

The following question was submitted by the General Assembly to the International Court
of Justice to provide an advisory opinion:

In pursuant to Article 96 paragraph 1 of the UN charter, Is the threat or use of nuclear

weapons in any circumstance permitted under international law?
the Registrar, pursuant to Article 66, paragraph 1, of the Statute, gave notice of the request
for an advisory opinion to al1 States entitled to appear before the Court.

Written statements were filed by the following States:

Bosnia and Herzegovina, Burundi, Democratic People's Republic of Korea, Ecuador, Egypt,
Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy, Japan, Lesotho,
Malaysia, Marshall Islands, Mexico, Nauru, Netherlands, New Zealand, Qatar, Russian
Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain
and Northern Ireland, and United States of America. In addition, written comments on those
written statements were submitted by the following States: Egypt, Nauru and Solomon
Islands. Upon receipt of those statements and comments, the Registrar communicated the text
to al1 States having taken part in the written proceedings.

For the Court to be competent to give an advisory opinion, it is thus necessary at the outset
for the body requesting the opinion to be "authorized by or in accordance with the Charter of
the United Nations to make such a request". The Charter provides in Article 96, paragraph 1,
that: "The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question."

Some States which oppose the giving of an opinion by the Court argued that the General
Assembly and Security Council are not entitled to ask for opinions on matters totally
unrelated to their work. They suggested that, as in the case of organs and agencies acting
under Article 96, paragraph 2, of the Charter, and notwithstanding the difference in wording
between that provision and paragraph 1 of the same Article, the General Assembly and
Security Council may ask for an advisory opinion on a legal question only within the scope of
their activities.

In the view of the Court, whether this interpretation of Article 96, paragraph 1, is or is not
correct; in the present case, the General Assembly has competence in any event to seise the
Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a
competence relating to "any questions or any matters" within the scope of the Charter.

Article 11 has specifically provided it with a competence to "consider the general principles .
. . in the maintenance of international peace and security, including the principles governing
disarmament and the regulation of armaments". Lastly, according to Article 13, the General
Assemblv "shall initiate studies and make recommendations for the purpose of. . .
encouraging the progressive development of international law and its codification"
The Court will now turn to an examination of customary international law to determine
whether a prohibition of the threat or use of nuclear weapons as such flows from that source
of law. As the Court has stated, the substance of that law must be "looked for primarily in the
actual practice and opinio juris of States" (Continental Shelf (Libyan Arab
Jarnahiriya/Malta), Judgment, 1. C. J. Reports 1985, p. 29, para. 27). States which hold the
view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence
of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization
of nuclear weapons by States since 1945 and they would see in that practice the expression of
an opinio juris on the part of those who possess such weapons.

Some other States, which assert the legality of the threat and use of nuclear weapons in
certain circumstances, invoked the doctrine and practice of deterrence in support of their
argument. They recall that they have always, in concert with certain other States, reserved the
right to use those weapons in the exercise of the right to self-defence against an armed attack
threatening their vital security interests. In their view, if nuclear weapons have not been used
since 1945, it is not on account of an existing or nascent custom but merely because
circumstances that might justify their use have fortunately not arisen.

The Court addressed the question of the legality or illegality of recourse to nuclear weapons
in the light of the provisions of the Charter relating to the threat or use of force.

The Court does not intend to pronounce here upon the practice known as the "policy of
deterrence". It notes that it is a fact that a number of States adhered to that practice during the
greater part of the Cold War and continue to adhere to it. Furthermore, the members of the
international community are profoundly divided on the matter of whether non-recourse to
nuclear weapons over the past 50 years constitutes the expression of an opinio juris. Under
these circumstances the Court does not consider itself able to find that there is such an opinio
juris. 68. According to certain States, the important series of General Assembly resolutions,
beginning with resolution 1653 (XVI) of 24 November 1961, that deal with nuclear weapons
and that affirm, with consistent regularity, the illegality of nuclear weapons, signify the
existence of a rule of international customary law which prohibits recourse to those weapons.
According to other States, however, the resolutions in question have no binding character on
their own account and are not declaratory of any customary rule of prohibition of nuclear
weapons; some of these States have also pointed out that this series of resolutions not only
did not meet with the approval of all of the nuclear-weapon States but of many other States as
well.

States which consider that the use of nuclear weapons is illegal indicated that those
resolutions did not claim to create any new rules, but were confined to a confirmation of
customary law relating to the prohibition of means or methods of warfare which, by their use,
overstepped the bounds of what is permissible in the conduct of hostilities. In their view, the
resolutions in question did no more than apply to nuclear weapons the existing rules of
international law applicable in armed conflict; they were no more than the "envelope" or
instrumentum containing certain pre-existing customary rules of international law. For those
States it is accordingly of little importance that the instrumentum should have occasioned
negative votes, which cannot have the effect of obliterating those customary rules which have
been confirmed by treaty law. The Court notes that General Assembly resolutions, even if
they are not binding, may sometimes have normative value. They can, in certain
circumstances, provide evidence important for establishing the existence of a rule or the
emergence of an opinio juris. To establish whether this is true of a given General Assembly
resolution, it is necessary to look at its content and the conditions of its adoption; it is also
necessary to see whether an opinio juris exists as to its normative character. Or a series of
resolutions may show the gradua1 evolution of the opinio juris required for the establishment
of a new rule. Examined in their totality, the General Assembly resolutions put before the
Court declare that the use of nuclear weapons would be "a direct violation of the Charter of
the United Nations; and in certain formulations that such use "should be prohibited". The
focus of these resolutions has sometimes shifted to diverse related matters; however, several
of the resolutions under consideration in the present case have been adopted with substantial
numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of
deep concern regarding the problem of nuclear weapons, they still fall short of establishing
the existence of an opinio juris on the illegality of the use of such weapons. The Court further
notes that the first of the resolutions of the General Assembly expressly proclaiming the
illegality of the use of nuclear weapons, resolution 1653 (XVI) of 24 November 1961
(mentioned in subsequent resolutions), after referring to certain international declarations and
binding agreements, from the Declaration of St. Petersburg of 1868 to the Geneva Protocol of
1925, proceeded to qualify the legal nature of nuclear weapons, determine their effects, and
apply general rules of customary international law to nuclear weapons in particular. That
application by the General Assembly of general rules of customary law to the particular case
of nuclear weapons indicates that, in its view, there was no specific rule of customary law
which prohibited the use of nuclear weapons; if such a rule had existed, the General
Assembly could simply have referred to it and would not have needed to undertake such an
exercise of legal qualification. Having said this, the Court points out that the adoption each
year by the General Assembly, by a large majority, of resolutions recalling the content of
resolution 1653 (XVI), and requesting the member States to conclude a convention
prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large
section of the international community to take, by a specific and express prohibition of the
use of nuclear weapons, a significant step forward along the road to complete nuclear
disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use
of nuclear weapons as such is hampered by the continuing tensions between the nascent
opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the
other.

Conclusion:

This is a landmark case in international law, where the International Court of Justice gave
an advisory opinion stating that there is no source of law, customary or treaty, that explicitly
prohibits the possession or even use of nuclear weapons but the only requirement being that
their use must be in conformity with the law on self-defence and principles of international
humanitarian law. Here, the ICJ And further stated that the General Assembly Resolutions as
one of the sources of international law.

International Legal personality of International Organizations.

International Organisations have their own legal personality and status under international
law and their rights and duties are determined by treaties. The World Bank Group’s private
lending arm, the International Finance Corporation (IFC) is one such International
Organisation is the respondent in the following case .

Case.6 Jam Et Al. v. International Finance Corporation, 586. U.S – (2019)

This is a writ of certiorari filed before the United States Supreme Court.

Facts:

International Finance Corporation(Respondents) is an international organization finances

private-sector development projects in poor and developing countries around the world.
About 10 years ago, the IFC financed the construction of a power plant in Gujarat, India.
Petitioners are local farmers and fishermen and a small village.

Jam Et AL(Petitioners) alleged that the power plant has polluted the air, land, and water in
the surrounding area. Jam Et AL(Petitioners) sued the IFC for damages and injunctive relief
in Federal District Court.

The IFC claimed absolute immunity from suit.

Petitioners’ argument:

The IFC was entitled under the International Organizations Immunities Act (IOIA) only to
the limited or “restrictive” immunity that foreign governments currently enjoy.

Court of Appeal Decision:

The United States Court Of Appeals For The District Of Columbia Circuit [February 27,
2019] CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The International
Organizations Immunities Act (IOIA) of 1945grants international organizations such as the
World Bank and the World Health Organization the “same immunity from suit as is enjoyed
by foreign governments.” At the time the IOIA was enacted, foreign governments enjoyed
virtually absolute immunity from suit. Today that immunity is more limited. Most
significantly, foreign governments are not immune from actions based upon certain kinds of
commercial activity in which they engage. This case requires to determine whether the IOIA
grants international organizations the virtually absolute immunity foreign governments
enjoyed when the IOIA was enacted, or the more limited immunity they enjoy today

Reasons: The IOIA authorizes the President to withhold, with-draw, condition, or limit the
privileges and immunities it grants in light of the functions performed by any given
international organization. Those privileges and immunities can also be expanded or
restricted by a particular organization’s founding charter.

When the IOIA was enacted in 1945, courts looked to the views of the Department of State in
deciding whether a given foreign government should be granted immunity from a particular
suit. If the Department submitted a recommendation on immunity, courts deferred to the
recommendation. If the Department did not make a recommendation, courts decided for
themselves whether to grant immunity, although they did so by reference to State Department
policy.
In Samantar v. Yousuf, 560 U. S. 305, 311–312 (2010). Until 1952, the State Department
adhered to the classical theory of foreign sovereign immunity. According to that theory,
foreign governments are entitled to “virtually absolute” immunity as a matter of international
grace and comity. At the time the IOIA was enacted, therefore, the Department ordinarily
requested, and courts ordinarily granted, immunity in suits against foreign governments.
However, the State Department announced that it would adopt the newer “restrictive” theory
of foreign sovereign immunity. Under that theory, foreign governments are entitled to
immunity only with respect to their sovereign acts, not with respect to commercial acts. The
State Department explained that it was adopting the restrictive theory because the
“widespread and increasing practice on the part of governments of engaging in commercial
activities” made it “necessary” to “enable persons doing business with them to have their
rights determined in the courts.”
Later, in 1976, Congress passed the Foreign Sovereign Immunities Act. The FSIA codified
the restrictive theory of foreign sovereign immunity but transferred “primary responsibility
for immunity determinations from the Executive to the Judicial Branch.”
In, Republic of Austria v. Altmann, 541 U. S. 677, 691 (2004). Under the FSIA, foreign
governments are presumptively immune from suit.
The International Finance Corporation is an international development bank headquartered in
Washington,D. C. The IFC is designated as an international organization under the IOIA. The
IFC is charged with furthering economic development “by encouraging the growth of
productive private enterprise in member countries, particularly in the less developed areas.
The IFC finances private-sector development projects that cannot otherwise attract capital on
reasonable terms. The IFC expects its loan recipients to adhere to a set of performance
standards designed to “avoid, mitigate, and manage risks and impacts” associated with
development projects. IFC Performance Standards on Environmental and Social
Sustainability. Those standards are usually more stringent than any established by local law.
The IFC includes the standards in its loan agreements and enforces them through an internal
review process.
In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited, a company located
in India. The loan helped finance the construction of a coal-fired power plant in the State of
Gujarat. Under the terms of the loan agreement, Coastal Gujarat was required to comply with
an environmental and social action plan designed to protect areas around the plant from
damage. The agreement allowed the IFC to revoke financial support for the project Coastal
Gujarat failed to abide by the terms of the agreement. The project did not go smoothly.
According to the IFC s internal audit, Coastal Gujarat did not comply with the environmental
and social action plan in constructing and operating the plant. The audit report criticized the
IFC for inadequately supervising the project. In 2015, a group of farmers and fishermen who
live near the plant, as well as a local village, sued the IFC in the United States District Court
for the District of Columbia.
They claimed that pollution from the plant, such as coal dust, ash, and water from the plant’s
cooling system, had destroyed or contaminated much of the surrounding air, land, and water.
Relying on the audit report, they asserted several causes of action against the IFC, including
negligence, nuisance, trespass, and breach of contract. The IFC maintained that it was
immune from suit under the IOIA and moved to dismiss for lack of subject matter
jurisdiction.

Accordingly, the District Court concluded that the IFC was immune from suit because the
IOIA grants international organizations the virtually absolute immunity that foreign
governments enjoyed when the IOIA was enacted. The D. C. Circuit affirmed in light of its
decision in Atkinson v. Inter-American Development Bank, 156 F.3d 1335.

The District Court agreed with the IFC and so the matter proceeded on appeal.

The question before the Supreme Court----

whether International Organisations enjoy the limited immunity that foreign governments
enjoy today?
The provision in question read as follows- “international organisations shall enjoy the same
immunity from suit and every form of judicial process as is enjoyed by foreign governments.”

Petitioners Contention:
Instead of granting international organizations the “same immunity” from suit those foreign
governments. The language of the IOIA more naturally lends itself to petitioners’ reading. In
granting international organizations the “same immunity” from suit “as is enjoyed by foreign
governments,” the Act seems to continuously link the immunity of international organizations
to that of foreign governments, so as to ensure ongoing parity between the two. The statute
could otherwise have simply stated that international organizations “shall enjoy absolute
immunity from suit,” or specified some other fixed level of immunity. Other provisions of the
IOIA, such as the one making the property and assets of international organizations “immune
from search,” use such non comparative language to define immunities in a static way.
IFC’s Contention:
The IFC contends that the IOIA grants international organizations the “same immunity” from
suits that foreign governments enjoyed in 1945 and it objects that the IOIA is different
because the purpose of international organization immunity is entirely distinct from the
purpose of foreign sovereign immunity. Foreign sovereign immunity, the IFC argues, is
grounded in the mutual respect of sovereigns and serves the ends of international comity and
reciprocity. The purpose of international organization immunity, on the other hand, is to
allow such organizations to freely pursue the collective goals of member countries without
undue interference from the courts of any one member country. The IFC therefore urges that
the IOIA should not be read together international organization immunity to changing foreign
sovereign immunity.
The IFC also argued that if the Supreme Court were to interpret IOIA’s immunity provision
to grant anything less than absolute immunity that would lead to a plethora of claims against
the IFC. In a quick overview of the meaning of ‘commercial activity’ in the FSIA, the
Supreme Court considered that it is not clear that the lending activity of all International
Organisations qualifies as commercial activity within the meaning of the FSIA. The Supreme
Court held further that there is no good reason to think that restrictive immunity would
expose International Organisations to excessive liability.

Notably, the Supreme Court was quick to thwart any interpretation which could lead to
claims based on tortious activity. “Thus, if the ‘gravamen’ of a lawsuit is tortious activity
abroad, the suit is not ‘based upon’ commercial activity within the meaning of the FSIA’s
commercial activity exception.”

In reaching its conclusion, the Supreme Court had regard to the fact that IOIA defines
immunities by reference to comparable privileges and immunities enjoyed by foreign
governments. Therefore, using the “reference” canon method of interpretation – that when a
statute refers to a general subject, the statute adopts the law on that subject as it exists
whenever a question under the statute arises – the Supreme Court held that the reference to
the immunity enjoyed by foreign governments in IOIA is a general rather than specific
reference.
Thus, the IOIA should be understood to link the law of International Organisation immunity
to the law of Foreign Sovereign Immunity, as defined by the
Foreign Sovereign Immunities Act (FSIA).

Conclusion:

The Supreme Court’s opinion was welcomed by human rights groups as being a landmark
ruling which “is a major step towards holding the World bank accountable for the negative
impacts their investments are causing”.

However, this is only one of many ‘hurdles’ for the Petitioners and going forward they still
need to prove not only that the IFC engaged in a commercial activity but also that a nexus
between the commercial activity and the alleged harm exists.