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

[Mary Wong]

Hello George and everyone,

Once more, thanks to George for finding relevant additional resources and
starting a substantive discussion. The Canadian case in question is
definitely one of the few cases that directly considers and applies the
³functional immunity² approach that staff mentions in our Briefing Paper
(sent separately to the WG). It also shows the diversity of approach taken
across national courts in that while Canada clearly subscribes to the view
that there is no customary international law that governs IGO immunity,
this is not necessarily the view in other countries (e.g. the
Netherlands). In addition, the Convention that established the IGO in this
case expressly delineates its immunity in a particular Contracting State
as being governed by the relevant agreement between the IGO and that
Contracting State - as such, the scope of its protection in Canada had to
be interpreted in accordance with the government order that contains the
³extent required for its functions² language.

This language reflects, but does not mirror exactly, that used in the UN
conventions, which refer to those immunities ³as are necessary for the
fulfillment of its purposes². It may be, therefore, that in a similar case
arising in a different jurisdiction where a different national
law/regulation is interpreted, or in which the IGO in question derives its
immunity protection from a different source other than a bilateral
agreement, the scope of that IGO¹s immunity can be quite different as
well. It seems therefore that this case emphasizes the lack of
universality and consistency in relation to the scope of IGO immunity,
which is also the main point made in the staff briefing paper.

The case also highlights the difference - as George noted - between the
³major² IGOs and the smaller ones. For instance, the UN and its
specialized agencies are protected by the two international treaties on
their immunities and privileges. Other IGOs, however, may be in the same
position as NAFO was in Canada (i.e. dependent on the terms of the
bilateral treaty with Canada) or otherwise subject to a particular
country¹s law on this matter. Again, this underscores the lack of a single
standard across national courts.

Cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names & Numbers (ICANN)
Telephone: +1 603 574 4892
Email: mary.wong at icann.org






-----Original Message-----
From: George Kirikos <icann at leap.com>
Date: Wednesday, March 11, 2015 at 12:41
To: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject: [Gnso-igo-ingo-crp] The Scope of IGO 'immunity'

>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 state¹s 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 "³to such extent as may be required for
>the performance of its functions² (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, Bowett¹s 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): ³to such extent as may be required for the performance of its
>functions².
>
>[53]   It follows that NAFO¹s 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 NAFO¹s
>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 appellant¹s 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 appellant¹s legal proceedings. In his statement of
>claim, he alleges that the Executive Secretary ³engaged in improper
>management practices²: 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 NAFO¹s management of its employees.  That,
>in my view, would constitute interference with NAFO¹s 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/
>_______________________________________________
>Gnso-igo-ingo-crp mailing list
>Gnso-igo-ingo-crp at icann.org
>https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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