Western European Union v. Siedler; General Secretariat of the ACP Group v.

Lutchmaya; General Secretariat of the ACP Group v. B.D. Author(s): Jan Wouters, Cedric Ryngaert, Pierre Schmitt Source: The American Journal of International Law, Vol. 105, No. 3 (July 2011), pp. 560-567 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/10.5305/amerjintelaw.105.3.0560 . Accessed: 17/08/2011 05:37
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of International Law.

http://www.jstor.org

560

THE AMERICAN JOURNAL OF INTERNATIONAL LAW

[Vol. 105

Finally, the additional opinion certainly has shock value. Clarity and specicity, details that one would expect when charges are lodged, are lacking. The absence of these details, together with the difculty in reconciling the additional opinion with the annulment decision and the internal inconsistencies within the opinion itself, detracts from its effectiveness. SUSAN L. KARAMANIAN The George Washington University Law School
Belgian Court of Cassationresponsibility of international organizationsimmunities domestic courtsaccess to justice WESTERN EUROPEAN UNION v. SIEDLER. No. S.04.0129.F. At http://www.belgiumlex.be. Court of Cassation, December 21, 2009. GENERAL SECRETARIAT OF THE ACP GROUP v. LUTCHMAYA. No. C.03.0328.F. At http://www. belgiumlex.be. Court of Cassation, December 21, 2009. GENERAL SECRETARIAT OF THE ACP GROUP v. B.D. No. C.07.0407.F. At http://www.belgiumlex.be. Court of Cassation, December 21, 2009.

On December 21, 2009, the Court of Cassation of Belgium (the supreme court in civil and penal matters) rendered three judgments concerning immunity of jurisdiction and execution of international organizations established in Belgium.1 All three decisions related to employment disputes between individuals and international organizations, namely, the Western European Union (WEU) in one case, and the General Secretariat of the African, Caribbean and Pacic Group of States (ACP Secretariat)2 in the two other cases; and all three denied the claim of the organization in question to immunity. The rst case concerned a labor dispute between Ms. Siedler and the WEU. Siedlers employment at the WEU was terminated in June 2000, after which she obtained compensation by petitioning the WEU internal appeals commission in accordance with WEU staff rules. However, as Belgian labor legislation awarded substantially higher compensation, she sued the WEU at the Labor Tribunal of Brussels. This tribunal granted supplementary compensation, whose amount she appealed on grounds of insufciency. The WEU led a cross-appeal (appel incident ), invoking, among other things, its jurisdictional immunity before the Belgian courts. In an important precedent, the Labor (appeals) Court set aside the WEUs immunity on the ground that it contradicted the right of access to justice enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
1 W. Eur. Union [WEU] v. Siedler, Cour de Cassation [Cass.], Dec. 21, 2009, No. S.04.0129.F; Gen. Secretariat of African, Caribbean and Pacic Group of States v. Lutchmaya, Cass., Dec. 21, 2009, No. C.03.0328.F; Gen. Secretariat of ACP Group v. B.D., Cass., Dec. 21, 2009, No. C.07.0407.F. Judgments of the Court of Cassation and selected decisions of other Belgian courts are available online at http://www.belgiumlex.be/. 2 The ACP Secretariat is responsible for running the organs of the African, Caribbean and Pacic Group of States [ACP Group]. Though it is only a body of the ACP Group and not an international organization itself, the regime of immunities and privileges established by the Headquarters Agreement Between the Kingdom of Belgium and the African, Caribbean and Pacic Group of States, infra note 7, specically refers to the secretariat, as does the Court of Cassation in both cases analyzed in this report.

2011]

INTERNATIONAL DECISIONS

561

and Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).3 In the courts view, while the WEU had made an internal procedure available to individuals aggrieved by its acts, the quality of that procedure did not correspond to the guarantees inherent in the notion of a fair trial, in particular an independent dispute settlement mechanism. The WEU subsequently brought the case before the Court of Cassation, which conrmed that a domestic court may be called upon to pass judgment on the rule of law quality of an international organizations internal procedure in determining whether the organization is entitled to immunity. The Court of Cassation concurred with the Labor Court that the guarantees of a fair trial had not been met and rejected the WEUs immunity. It nevertheless ruled that the internal rules of the international organization (as opposed to Belgian law) continued to apply in proceedings before the Belgian courts. In the second case, the Court confronted a similar labor dispute, which related, however, to an international organizations immunity from execution rather than jurisdiction. The Brussels Labor Court had ordered the ACP Secretariat to pay compensation to a former employee, Ms. Lutchmaya, in relation to the termination of her contract. After the ACP Secretariat failed to pay, Lutchmaya sought to execute the judgment against the secretariats account in a Belgian bank. The secretariat opposed the execution measure before the Brussels Tribunal of First Instance, which lifted the measure on the ground that the secretariat enjoyed immunity. Lutchmaya appealed the judgment, invoking Articles 6(1) and 13 of the ECHR, which respectively guarantee the right to a fair trialincluding the right of access to courtsand the right to an effective remedy before a national authority. On May 4, 2003, the Brussels Court of Appeal overruled the decision below and held that an international organization could invoke its immunity in domestic proceedings only if the plaintiff had access to other reasonably available means to protect his or her rights guaranteed by Article 6 of the ECHR,4 as decided by the European Court of Human Rights in Waite and Kennedy v. Germany.5 Given that there was no alternative mechanism to oblige the secretariat to execute the decisions, the right of access to a court was held to prevail over the organizations immunity. The ACP Secretariat thereupon led an appeal with the Court of Cassation, which noted that the Headquarters Agreement had not entered into force at the time of the execution measure and that, consequently, the secretariat could not invoke any immunities laid down in this agreement. The Court nevertheless addressed the interplay between immunities and ECHR Article 6, probably in the interest of the law, and conrmed the decision of the Court of Appeal allowing execution against the ACP Secretariats Belgian bank account. The third judgment rendered by the Court of Cassation on December 21, 2009, concerned a sister case of Lutchmaya. The ACP Secretariat had similarly been ordered to pay damages to an individualB. D. but failed to comply. When B. D. sought to execute the judgment,
3 Siedler v. WEU, Cour du Travail [Cour. Trav.] Bruxelles, Sept. 17, 2003, JOURNAL DES TRIBUNAUX [ J.T.] 2004, 617, INTL L. DOMESTIC CTS. [ILDC] 53 (BE 2003). For the provisions in the Convention and Covenant, see European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 6(1), Nov. 4, 1950, Europ. TS No. 5, 213 UNTS 221; International Covenant on Civil and Political Rights, Art. 14(1), Dec. 16, 1966, S. EXEC. REP. NO. 23-102 (1992), 999 UNTS 171. 4 Lutchmaya v. ACP Secretariat, Cour dAppel [CA] Bruxelles, Mar. 4, 2003, J.T. 2003, 684, ILDC 1363 (BE 2003). 5 Waite v. Germany, 1999-I Eur. Ct. H.R. 393. The decisions of the European Court of Human Rights cited in this case report are available online at http://www.echr.coe.int/.

562

THE AMERICAN JOURNAL OF INTERNATIONAL LAW

[Vol. 105

the secretariat opposed the measure before the Brussels Tribunal of First Instance and subsequently the Brussels Court of Appeal, pleading immunity from execution. As in Lutchmaya, the Court of Appeal found that granting immunity to the ACP Secretariat would be incompatible with ECHR Article 6.6 The secretariat led an appeal with the Court of Cassation, which considered that, while the right of access to a court was not absolute, its limitations could not restrict an individuals access to such an extent that the very substance of the right would be affected. Since the ACP Group had not established any dispute settlement mechanism whatsoever, B. D.s right of access to a court was held to be unduly restricted; therefore, the Court rejected the appeal and the ACP Secretariats immunity plea. **** Very few supreme courts in the world have tackled the question of immunity of international organizations, and even fewer have addressed the tension between the immunity of the organization and the individuals right of access to a court. Because of the presence of the headquarters and ofces of many international organizations in Belgium, a considerable number of relevant court cases regarding the immunity of international organizations are of Belgian origin. As developments in Belgian case law (especially of the highest courts) may inuence its evolution elsewhere, the Court of Cassations recent decisions are analyzed here in a wider international and comparative context. On the basis of multilateral treaties and/or bilateral (headquarters) agreements between states and international organizations, national courts may typically decline to adjudicate claims against international organizations because of the immunity from jurisdiction and execution granted them by such instruments.7 In the absence of a treaty, as conrmed by Lutchmayain which the headquarters agreement had not entered into force at the time of the execution measurenational courts will normally not grant immunity to organizations on the basis of customary international law or general principles of law.8 Yet, once established in treaties, immunities may conict with the right of individuals to access to a court under, for example, Article 6(1) of the ECHR and Article 14(1) of the ICCPR. For decades, national courts have refrained from setting aside immunities of international organizations, fearing that doing so could open the door to divided decisions among the courts of different member states, lead to uncertainty and tensions between international actors, and jeopardize the independence of the organizations concerned.9
B.D. v. ACP Secretariat (CA Bruxelles, Feb. 27, 2007). See, e.g., Headquarters Agreement, Belg.ACP Group, Art. 2, Apr. 26, 1993, 2166 UNTS 282. 8 League of Arab States v. TM, Cass., Mar. 12, 2001, J.T. 2001, 610 (Belg.), ILDC 42 (BE 2001) (dismissing the claim that the immunity of international organizations is a general principle of law); Drago v. Intl Plant Genetic Res. Inst. (IPGRI), Corte Suprema di Cassazione [Cass.], Feb. 19, 2007, No. 3718 (It.), ILDC 827 (IT 2007); Pistelli v. Eur. Univ. Inst., Cass., Oct. 29, 2005, No. 20995, paras. 8 9, 3 GUIDA AL DIRITTO 40 (2006) (It.), ILDC 297 (IT 2005); CEDAO v. BCCI, CA Paris, Jan. 13, 1993, 120 JOURNAL DE DROIT INTERNATIONAL [J.D.I.] 353 (1993) (Fr.) (rejecting customary international law status). In only one case did a national court uphold the immunity of an international organization on the basis of customary international law. A.S. v. Iran-U.S. Claims Trib., Hoge Raad [HR] [Supreme Court], Dec. 20, 1985, 94 ILR 321 (Neth.). 9 tat Belge, Ministre des Affaires E trange See, e.g., Manderlier v. Org. des Nations Unies & E ` res, CA Bruxelles, Sept. 15, 1969, PASICRISIE BELGE 1969, 246; Broadbent v. Org. of Am. States, 628 F.2d 27 (D.C. Cir. 1980).
7 6

2011]

INTERNATIONAL DECISIONS

563

Nowadays, this reluctance to waive international organizations immunity still seems valid for disputes relating to peacekeeping operations.10 For instance, in a 2008 civil case launched by a group called Mothers of Srebrenica to hold the United Nations responsible for its failure to prevent the massacre in that Bosnian town, the District Court of The Hague ruled that it did not have jurisdiction because the United Nations enjoys full immunity from jurisdiction before national courts.11 This decision appears to have been guided by concern over weakening the worlds peace and security structures if UN immunity was lifted.12 In contrast, private law or employment disputes involving individuals and international organizations do not affect these concerns and national courts have issued a wide array of decisions seeking to resolve the conict between immunities and the right of access to courts. The European Court of Human Rights ruled on the criteria to be applied in resolving such a conict in the parallel cases of Waite and Kennedy v. Germany and Beer and Regan v. Germany, which the Belgian Court of Cassation conrmed for the rst time in its two decisions of December 21, 2009, relating to the ACP Group. The European Court had ruled that immunity of jurisdiction of international organizations was permissible under the ECHR, but only insofar as the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.13 Applying this test, the Belgian Court considered whether the individuals had had access to other reasonably available means of effectively protecting their rights guaranteed by the ECHR. Yet national jurisdictions do not apply this standard uniformly. Still, in practice domestic courts seem to tend toward rejecting immunity of the organization if it has not established any dispute settlement mechanism.14 This tendency is exemplied by the Belgian cases against the ACP Secretariat. Nothing indicated that the ACP Group had offered recourse to any mechanisms that could provide an alternative remedy in case its secretariat failed to execute decisions taken against it. As a result, the Court rejected the secretariats immunity from execution.15 The review of such cases will be trickier, however, if the international organization does make an internal procedure available to individuals, as in the Belgian case involving the WEU. The domestic court may then be called upon to pass judgment on the rule of law quality of
10 Fre de ric Me gret, The Vicarious Responsibility of the United Nations, in UNINTENDED CONSEQUENCES OF PEACEKEEPING OPERATIONS 250 (Chiyuki Aoi, Cedric de Coning, & Ramesh Thakur eds., 2007). 11 Assoc. of Citizens Mothers of Srebrenica v. Netherlands & United Nations, Rechtbank [court of rst instance] s-Gravenhage [The Hague], July 10, 2008, No. 295247/HA ZA 07-2973, at http://zoeken.rechtspraak. nl/resultpage.aspx?snelzoekentrue&searchtypeljn&ljnBD6796&u_ljnBD6796; see Jan Wouters & Pierre Schmitt, Challenging Acts of Other United Nations Organs, Subsidiary Organs, and Ofcials, in CHALLENGING ACTS OF INTERNATIONAL ORGANIZATIONS BEFORE NATIONAL COURTS 77 (August Reinisch ed., 2010). 12 Cedric Ryngaert, The Immunity of International Organizations Before Domestic Courts: Recent Trends, 7 INTL ORG. L. REV. 121, 147 (2010). 13 Waite v. Germany, 1999-I Eur. Ct. H.R. 393, 411, para. 68; Beer v. Germany, para. 58, App. No. 28934/95 (Eur. Ct. H.R. Feb. 18, 1999) (same). 14 In addition to the two cases involving the ACP Secretariat analyzed in this note, see, for example, Afr. Dev. Bank v. X [Haas], Cass., Jan. 25, 2005, No. 04-41012 (Fr.), ILDC 778 (FR 2005). Yet the French Court did not refer to the jurisprudence of the European Court of Human Rights but considered that the right of access to a court was part of the international public order in France and its violation had resulted in a denial of justice. See also Ryngaert, supra note 12, at 144. The dearth of relevant cases may be explained by the fact that most international organizations do provide for internal dispute settlement mechanisms, however unsatisfactory they may be. 15 The Court noted that the two norms of international lawthe immunity of execution and the right of access to courtswere equally applicable in the domestic legal order and the judge was not to permit one norm to prevail over the other. Instead, he or she was required to arbitrate the conict by balancing the rights of the parties. See Gen. Secretariat of ACP Group v. B.D., Cass., Dec. 21, 2009, No. C.07.0407.F.

564

THE AMERICAN JOURNAL OF INTERNATIONAL LAW

[Vol. 105

this internal procedure. The Belgian Court of Cassation, for its part, did not recoil from judging this quality, and conrmed that the mere existence of a dispute settlement mechanism at the level of the organization did not sufce for the organization to invoke its immunity successfully before a domestic court. In the Courts view, such a mechanism should also meet various qualitative due process criteria before an organization could rely on it to justify invoking its immunity, in particular the semblance of independence. In the literature, such an inquiry into the effectiveness of an organizations dispute settlement mechanism has been criticized as going beyond what the European Court of Human Rights required.16 It cannot be denied, however, that some qualitative review should be conducted lest the claimants right of access to courts become illusory.17 How far-reaching this inquiry should be is unclear. In his comments on the appellate judgment in Siedler v. WEU, which the Court of Cassation conrmed, Maarten Vidal observed that the court seems to have been overzealous in transposing the qualitative criteria of Article 6(1) of the ECHR to the level of international administrative tribunals when reviewing the WEUs internal dispute settlement mechanism.18 This sentiment was echoed by the judgment in SA nergies Nouvelles et Environnement v. Agence Spatiale Europe enne,19 in which the Brussels Tribunal of First Instance was much more cautious than the courts in Siedler : conducting a Waite & Kennedy-style analysis, the tribunal deferred to the international organizations internal dispute settlement procedure, which in essence only permitted the claimant to call for support from the Belgian representative to the organizations committee on industrial policy and to resort to an ombudsman procedure. These guarantees are a far cry from the conditions prescribed by ECHR Article 6.20 In Siedler, the Court of Cassation afrmed that the appeals court did not commit an error of law in conducting a qualitative review and ruling that the WEUs internal appeals commission did not meet due process standards. In the Court of Cassations view, the internal appeals
16 See, e.g., PHILIPPE SANDS & PIERRE KLEIN, BOWETTS LAW OF INTERNATIONAL INSTITUTIONS 499 (6th ed. 2009) (1964); Nicolas Angelet & Alexandra Weerts, Les immunite s des organisations internationales face a ` larticle 6 de la Convention europe enne des droits de lhomme, 134 J.D.I. 1 (2007). 17 See, e.g., Stavrinou v. United Nations & Commander, United Nations Force in Cyprus [UNFICYP], Supreme Court Cyprus, July 17, 1992, Civ. App. No. 8145, ILDC 929 (CY 1992) (comment by Aristotle Constantinides). The Cyprus Court did not set aside the immunity of the international organizationthe UNFICYP because the UNFICYP Agreement provided for a special dispute settlement mechanism for local personnel. However, as concluded by Constantinides, the Court did not examine the mechanism, which was no more than an administrative procedure to be determined by the Commander of the UNFICYP. Id., para. A6. On the desirability of inquiring into the effectiveness of such mechanisms, see August Reinisch, The Immunity of International Organizations and the Jurisdiction of Their Administrative Tribunals, 7 CHINESE J. INTL L. 285, 305 (2008); August Reinisch & Ulf Andreas Weber, In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organizations, the Individuals Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement, 1 INTL ORG. L. REV. 59, 68 (2004); Ryngaert, supra note 12, at 144. 18 Maarten Vidal, comment, in Siedler, ILDC 53, para. A5 (BE 2003). 19 nergies Nouvelles et Environnement v. Agence Spatiale Europe SA E enne, Tribunal de Premie `re Instance [Tribunal of First Instance] Bruxelles, Dec. 1, 2005, J.T. 2006, 171, ILDC 1229 (BE 2005). 20 This judgment was conrmed by the Court of Appeal of Brussels on March 23, 2011 (SA nergies Nouvelles et Environnement v. Agence Spatiale Europenne, unpublished). The court indicated that the plaintiff had access to three alternative means of protecting its rights; namely, seeking support from the national delegate, resorting to the ombudsman procedure, and bringing a claim against the German company RWE and/or the Italian company CESI on grounds of civil liability and/or abuse of dominant position. The court did not analyze whether the internal dispute settlement procedure corresponded to due process standards but, rather, concentrated an important part of its decision on analyzing possible claims against the two companies instead of against the international organization.

2011]

INTERNATIONAL DECISIONS

565

commission of the WEU cannot be considered independent, as it is composed of members designated by the WEUs intergovernmental committee and they serve terms of only two years. This nding is open to criticism. As observed by Vidal, the due process quality of the WEUs procedure is not substantially inferior to the general practice in international organizations.21 In fact, members of the former United Nations Administrative Tribunal were appointed to renewable three-year terms, as are those of the Administrative Tribunal of the International Labour Organization (ILOAT ). Thus, application of the Siedler review test could potentially lead to the rejection of immunity in many cases brought against international organizations before domestic courts. That said, judges at the new UN Dispute Tribunal (UNDT) are appointed for a nonrenewable term of seven years by the General Assembly on the recommendation of the Internal Justice Council, and may be removed by the General Assembly only in case of misconduct or incapacity. This arrangement reinforces the independence of the UNDT, as compared to other administrative tribunals. It might beand should berecognized under the Court of Cassations review standard, but as long as the required minimum duration of the mandate of judges sitting on an organizations dispute settlement mechanism remains uncertain, court rulings on the issue will be difcult to predict. Belgian courts are not the only ones that are willing to conduct a qualitative review. In a 2007 case, the Italian Court of Cassation found that the obligation of an international organizationthe International Plant Genetic Resources Institute (IPGRI)to provide an independent and impartial remedy was a conditio sine qua non for upholding its immunity from jurisdiction. This nding owed from the Courts dynamic interpretation of the headquarters agreement, according to which IPGRI had to establish suitable procedures for resolving disputes with its employees.22 IPGRI joined the International Labour Organization and engaged the jurisdiction of ILOAT in 1991, but the facts in this case predated its membership, which left employees with only an internal remedy that was not considered independent and impartial. As a consequence, the Court ruled that IPGRI was not entitled to immunity and that such disputes fell within Italian jurisdiction. While qualitative review by domestic courts is to be supported, the dispute settlement mechanisms established by international organizations probably cannot be required to meet all the conditions of Article 6. After all, international organizationswith the possible exception in the future of the European Unionare not parties to the ECHR. Still, because their member states or the forum state may be bound by the Convention, it is defensible to require that those mechanisms offer rights protection that is at least equivalent (although not necessarily identical) to the protection offered by Article 6. In this vein, a Dutch court of appeals held in 2007 that it sufced that the international organization, the European Patent Ofce in this instance, provided comparable legal protection, which was guaranteed by the possibility of submitting the case to ILOAT.23 This standard of equivalent protection applies a fortiori to organizations all of whose member states are contracting parties to the ECHR. Yet in a recent case the European Court of Human Rights extended application of the standard to NATO, which counts among its members countries that are not contracting parties to the Convention. Indeed, in
Vidal, supra note 18, para. A4. Drago v. IPGRI, ILDC 827, para. 6.7 (IT 2007) (quoting Art. 17 of the headquarters agreement). 23 Gerechtshof [Court of Appeals] s-Gravenhage, Sept. 28, 2007, No. BB5865, 06/1390, at http://jure.nl/ bb5865.
22 21

566

THE AMERICAN JOURNAL OF INTERNATIONAL LAW

[Vol. 105

Gasparini, the European Court held that it could review a structural lacuna in rights protection caused by the failure of the NATO Appeals Board to hold its sessions in public.24 It added, however, that its power to determine whether the procedure before the NATO Appeals Board was manifestly decient is necessarily less sweeping (ample ) than its power to review the procedures before the contracting states domestic courts. One may wonder whether this reasoning could be extended to international organizations in which not a single member state is a contracting party to the ECHR, such as the ACP Group. At rst sight, the relevant question may seem to be whether the state whose court hears the case against the organization is a contracting party to the ECHR rather than whether the member states of the organization are contracting parties to the ECHR. If the forum state is bound by the Convention, its courts are obligated, pursuant to Article 6, to provide access to claimants acting within that states jurisdiction.25 All the same, because Article 6 indirectly forces international organizations to conform to regional human rights standards, an argument could be made that the standard of equivalent protection by the organizations internal dispute settlement mechanism should be interpreted in a somewhat looser fashion when the organization has no link whatsoever with the ECHR area except for having signed a headquarters agreement with a contracting party to the Convention. Notably, after having found that the dispute settlement mechanism of the WEU did not meet due process standards and that the organizations immunity could not be upheld, the Belgian Court of Cassation did not simply apply Belgian substantive law to the case, in particular in relation to the indemnity allowance to which the claimant would be entitled. As very few courts have ever lifted the immunity of an international organization, scant precedent relates to which law to apply in case immunity is denied. In the literature, some have indicated that the host states (domestic) law should apply as the default position in such cases.26 On the other hand, if the international organization has developed its own rules with respect to a specic situation, those rules should applyall the more if the organizations internal rules regulate the situation in detail and in an exhaustive manner, as in the Siedler case: the WEU Staff Rules determined the mode of calculating the indemnity allowance for breach of contract with a high degree of precision. The present authors submit that by applying the internal substantive law of the organization in Siedler, while rejecting the organizations immunity on the ground of decient internal procedural law, the Court of Cassation struck the right balance between the autonomy of the organization and the individuals right to access to a court. The decision is to be commended and possibly followed in other jurisdictions. Thus far, the debate on the conict between the immunity of an international organization and the right of access to courts appears to be limited to the ECHR area. Whether or not it can be automatically extended to other parts of the world remains questionable.27 Nevertheless, the
24 Gasparini v. Italy, App. No. 10750/03 (Eur. Ct. H.R. May 12, 2009) (in French). For discussion, see Cedric Ryngaert, The Responsibility of Member States in Connection with Acts of International Organizations: Assessing the Recent Case Law of the European Court of Human Rights, 60 INTL & COMP. L.Q. (forthcoming 2011). 25 Ryngaert, supra note 12, at 139. 26 JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW 137 & n.27 (2d ed. 2009) (citing August Reinisch, Accountability of International Organizations According to National Law, 2005 NETH. Y.B. INTL L. 119). 27 SANDS & KLEIN, supra note 16, at 498.

2011]

INTERNATIONAL DECISIONS

567

textual guarantees of Article 14(1) of the ICCPRto which 167 states were parties as of May 15, 2011are similar to the guarantees of Article 6(1) of the ECHR, and for some, the individuals right of access to courts could also be considered to be customary international law.28 Several domestic courts have also grounded their powers of review in constitutional provisions on fundamental rights regarding access to justice.29 It may be hoped that foreign courts, including those outside Europe, will heed the careful balance to be struck between the individuals right of access to courts and the autonomy of the organization, as evidenced by the Belgian Court of Cassations decisions discussed in this case report. By way of comparison, we note that United States courts have rarely espoused a human or constitutional rights perspective when hearing cases against international organizations,30 and that, while a commercial activities exception may apply to an organizations immunity,31 employment-related disputes (such as those decided by the Belgian Court of Cassation) have not been considered as falling within that exception.32 JAN WOUTERS, CEDRIC RYNGAERT, AND PIERRE SCHMITT Catholic University of Leuven
Francesco Francioni, The Rights of Access to Justice Under Customary International Law, in ACCESS TO JUSTICE AS A HUMAN RIGHT 1 (16 Collected Courses of the Academy of European Law, bk. 4, Francesco Francioni ed., 2007). On the right to an effective remedy, Dinah Shelton states that [i]t is clear that the obligation to provide effective remedies is an essential component of international human rights law. DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 173 (2d ed. 2005). 29 See Drago v. IPGRI, ILDC 827 (IT 2007); Pistelli v. Eur. Univ. Inst., supra note 8. 30 Weinstock v. Asian Dev. Bank, 2005 U.S. Dist. LEXIS 16870 (D.D.C. 2005). But see Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985); People v. Mark S. Weiner, 378 N.Y.S.2d 966 (N.Y. Crim. Ct. 1976) (extending U.S. constitutional rights protection, but only to U.S. nationals). 31 OSS Nokalva, Inc. v. Eur. Space Agency, 617 F.3d 756 (3d Cir. 2010). 32 Mendaro v. World Bank, 717 F.2d 510 (D.C. Cir. 1983); Broadbent v. Org. of Am. States, 628 F.2d 27 (D.C. Cir. 1980); Boimah v. UN Gen. Assembly, 664 F.Supp. 69 (E.D.N.Y. 1987).
28