[Gnso-igo-ingo-crp] The Scope of IGO 'immunity'

Wed Mar 11 16:41:42 UTC 2015

I had referenced a Supreme Court of Canada case in the chat during one
of our calls, and it might be prudent to note some of the important
points it made:

http://www.canlii.org/en/ca/scc/doc/2013/2013scc66/2013scc66.html

Note that this is from 2013, and thus is a good reflection of the
state of the current law.

Paragraphs 29-31 make an important distinction between immunities
granted to states (discussed in paras 27-28) and those of
international organizations:

"[29]  In the case of international organizations, unlike that of
states, the prevailing view at present is that no rule of customary
international law confers immunity on them.  International
organizations derive their existence from treaties, and the same holds
true for their rights to immunities: H. Fox, The Law of State Immunity
(2nd ed. 2008), at pp. 725-26.  Such an organization must operate on
the territory of a foreign state and through individuals who have
nationality and is therefore vulnerable to interference, since it
possesses neither territory nor a population of its own: Fox, at p.
724.  This reality makes immunity essential to the efficient and
independent functioning of international organizations.  It also
shapes the immunities and privileges that are granted to international
organizations. Such immunities and privileges are created through a
complex interplay of international agreements and the national law of
host states.

30]  International organizations vary greatly in size, sphere of
activities and powers.  This is reflected in the source and the scope
of their immunities and privileges.  For example, the Convention on
the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15,
and the Convention on the Privileges and Immunities of the Specialized
Agencies, 33 U.N.T.S. 261, contain detailed provisions conferring
broad immunities and privileges on the United Nations and its
agencies.  In addition to international conventions granting uniform
immunities and privileges that apply in all member states, the most
important international organizations such as the United Nations and
its agencies also negotiate exhaustive and detailed headquarters
agreements with host countries: see, e.g., Headquarters Agreement
between the Government of Canada and the International Civil Aviation
Organization, Can. T.S. 1992 No. 7, and the Supplementary Agreements
of 1999 and 2013.

[31] In the case of smaller international organizations, each
organization must enter into an agreement with the host state
regarding the immunities to be enjoyed in that state’s territory. Such
is the case for NAFO.  Article II of the Convention provides that NAFO
is to come to an agreement with the contracting party (i.e. Canada)
regarding the immunities and privileges it will enjoy in the territory
of that party.  NAFO and Canada reached an agreement in this regard,
and it is reflected in the NAFO Immunity Order."

I think that's an important point. In the case where an IGO does not
have an agreement with a certain state in regards to immunities within
that state's territory, it is clear that no such immunity actually
exists!

In the case at hand, involving the Northwest Atlantic Fisheries
Organization, the extent of the immunity depended on the
interpretation of the phrase "“to such extent as may be required for
the performance of its functions” (see paragraph 39). In other words,
immunity is not in any manner "absolute", but is determined in a
case-by-case basis. Paragraph 49 made this clear:

"[49] In limiting these immunities and privileges to the extent
required for NAFO to perform its functions, the Governor in Council
did not grant NAFO the absolute immunity conferred on the United
Nations in the Convention on the Privileges and Immunities of the
United Nations: P. Sands and P. Klein, Bowett’s Law of International
Institutions (6th ed. 2009), at p. 494.  Rather, the Governor in
Council granted NAFO a functional immunity, that is, the immunity
required to enable NAFO to perform its functions without undue
interference."

as did paragraphs 52 and 53:

"[52]  In my view, this same approach should be taken in determining
the scope of the immunity granted to NAFO in the NAFO Immunity Order.
The drafters of the NAFO Immunity Order adopted a functional approach
to immunity, as can be seen from the very words they chose for s.
3(1): “to such extent as may be required for the performance of its
functions”.

[53]   It follows that NAFO’s autonomy to conduct its business and the
actions it takes in performing its functions must be shielded from
undue interference.  What is necessary for the performance of NAFO’s
functions, or what constitutes undue interference, must be determined
on a case-by-case basis."

The Supreme Court of Canada in this case (appeal of lower courts) went
on to determine that a claim involving a separation indemnity could
proceed:

"[67]  In sum, no compelling reason exists for finding that s. 3(1) of
the NAFO Immunity Order applies to the appellant’s claim with respect
to the separation indemnity.  This claim should be allowed to
proceed."

Note that the Court did *not* allow the employment aspect of the claim
to proceed:

"[58]                          This result would flow from the very
nature of the appellant’s legal proceedings. In his statement of
claim, he alleges that the Executive Secretary “engaged in improper
management practices”: A.R., vol. II, at p. 13.  He also seeks
punitive damages.  In doing so, he is asking the Nova Scotia Supreme
Court to pass judgment on NAFO’s management of its employees.  That,
in my view, would constitute interference with NAFO’s internal
management, which goes directly to its autonomy."

While the case-by-case determination might differ in respect to a
domain name dispute, I would find it hard to believe that a Canadian
court would find that a dispute over a certain domain name would rise
to the threshold required to *interfere* with an IGO's operations or
autonomy.

As was pointed out previously, paragraph 56 noted that there's no
immunity in Canada over commercial activity of an IGO.

I draw this case to the working group's attention again as a
counterpoint to the position of the "expert" and his answers. This was
a 9-0 decision from the highest court in Canada, with no dissenting
position. If one reviews the decision, it not only cited Canadian
Statutes and Regulations, it also cited international treaties
(including UN treaties) and various authors, so I believe this
decision to be authoritative, and one which we can and should rely
upon to inform our work.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/