Challenges To Immunity Of International Organizations

The immunity of international organizations originates in sovereign immunity. As international organizations develop, there has been established a body of rules on immunity of international organizations, including claim of immunity, waiver of immunity and the alternative dispute settlement mechanisms, on the basis of functional necessity, which is unique from that of sovereign immunity. The immunity rules of the United Nations are typical manifestations of this evolution, and have been serving as an example for the subsequent international organizations. Nevertheless, the body of rules has functioned without many changes for almost seventy years, when both the law and practice of international organizations and international law in general have changed significantly. As amplified in the recent Mothers of Srebrenica case and Haiti Cholera Victims case, more and more controversies are triggered by the judicial decisions by application of the traditional immunity rules of international organizations.In Mothers of Srebrenica case, the judge adjudicates that even though the acts in question may have breached the peremptory norms prohibiting genocide, granting immunity to the United Nations, as an obligation undertaken by Member States under the Charter of the United Nations, prevails obligations burdened by States under other international instruments, including protection of the right of access to court. In Haiti Cholera Victims case, the judge discerns that the immunity enjoyed by the United Nations is not based on the premise that the United Nations provides effective alternative dispute settlement mechanisms in the first place.The academia proposes three perspectives criticizing the aforementioned judgments, namely the pursuit for accountability of international organizations, the protection of the right of access to court, and the compatibility between immunity rules of international organizations and jus cogens. This thesis illustrates the implications of accountability to international organizations by defining the term, analyzing its necessity and introducing the Ombudsman mechanism. Later, the priority issue in balancing the right of access to court and the immunity of international organizations is discussed from the dimensions of human rights and treaty interpretation. The last but not the least, the relationship between international organizations immunity and international peremptory norms is reflected based on the inspirations from the recent development on Immunity of State case.For theories of international organizations immunity as represented by functional necessity, the comments set above can be regarded as both challenges and developments to the tradition. It is beneficial to summarize and reflect on these questions in order to correctly understand the international legal recognition of immunity of international organizations today. Under the background that China is positively engaging in multi-lateral diplomacy represented by international organizations, it is of special importance for China in settling judicial disputes concerning international organizations in an appropriate way.