International Organizations Before National Courts

by August Reinisch

• ISBN13: 9780521653268
• ISBN10: 0521653266
• Format: Hardcover
• Copyright: 2000-05-08
• Publisher: Cambridge University Press

Summary

A radical, empirical investigation of how national courts 'react' to disputes involving international organizations. Through comprehensive analysis of the attitudes and techniques of national courts and underlying political motives, Professor Reinisch first describes various legal approaches that result in adjudication or non-adjudication of disputes concerning international organizations. Secondly he discusses policy issues pro and contra the adjudication of such disputes. His study then scrutinizes the rationale for immunizing international organizations from domestic litigations, especially the 'functional' need for immunity, and substantially debates the implications of a human rights-based right of access to court on immunizing international organizations against national jurisdictions. Finally he identifies contemporary trends, seeking to ascertain whether a more flexible principle exempting certain types of disputes from domestic adjudication might substitute for the traditional immunity concept, which would simultaneously guarantee the functioning and independence of international organizations without impairing private parties' access to a fair dispute settlement procedure.

Table of Contents

Preface	xi
Acknowledgements	xii
Table of cases	xvii
Table of legal instruments	lv
List of abbreviations	lxv
Purpose, subject and methodology of this study	1	(34)
Introduction	1	(3)
Subject of the study	4	(13)
Survey of existing material and literature	17	(4)
Methods	21	(14)
PART I DESCRIPTIVE ANALYSIS
Avoidance techniques	35	(134)
Non-recognition as a legal person under domestic law	37	(33)
Non-recognition of a particular act of an international organization-ultra vires acts and non-attributability	70	(14)
Prudential judicial abstention through doctrines concerning act of state, political questions, and non-justiciability	84	(15)
Lack of adjudicative power of domestic courts	99	(25)
No case or controversy	124	(2)
Judicial discretion to prevent harassing lawsuits and mock trials	126	(1)
According immunity to international organizations	127	(42)
Strategies of judicial involvement	169	(64)
Non-qualification as international organization	170	(2)
No delegation of immunity	172	(3)
Recognition of an international organization as a legal person under domestic law	175	(2)
Denying immunity	177	(8)
Restricting the scope of immunity	185	(29)
Broad waiver interpretation	214	(19)
PART II POLICY ISSUES
Rationales for judicial abstention	233	(19)
The protection of the functioning and independence of an international organization	233	(5)
A counterbalance to the relative weakness of international organizations	238	(1)
The influence of states on an international organization should be channelled through its `internal law'	239	(2)
Equality of the member states of an international organization	241	(2)
Securing uniformity in dispute settlement	243	(2)
Derived or delegated state sovereignty	245	(1)
Immunity as an inherent quality of international legal personality	246	(2)
Lack of territory	248	(2)
Precedent and prestige	250	(2)
Reasons for asserting jurisdiction	252	(65)
Judicial protection as a public good sought by and against international organizations	252	(1)
Making sense of immunity qualifications	253	(1)
Encroachment on the territorial sovereignty of the forum state	254	(1)
Higher degree of integration: the federal state analogy	255	(1)
Enhancing the creditworthiness of international organizations as a functional reason to limit immunity	255	(3)
No immunity for iure gestionis activities: the same immunity standard as the one used for states	258	(4)
Fairness to third parties	262	(16)
Human rights and constitutional limits	278	(39)
PART III FUTURE DEVELOPMENTS
Do national courts provide an appropriate forum for disputes involving international organizations?	317	(74)
Critical appraisal of the quality of the existing case law	317	(1)
The broader framework	318	(6)
The parameters	324	(4)
Possible solutions	328	(63)
Conclusions	391	(3)
Bibliography	394	(50)
Index	444