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9780521653268

International Organizations Before National Courts

by
  • ISBN13:

    9780521653268

  • ISBN10:

    0521653266

  • Format: Hardcover
  • Copyright: 2000-05-08
  • Publisher: Cambridge University Press

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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

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