CASE ANALYSIS

League of Arab States v T M., Belgian Court of Cassation,

ILDC 42 (BE 2001), 12 March 2001

Relevance of the case

An international organization ordinarily only enjoys privileges and immunities on the basis of
specific international conventions, for example, as entered into by the organization and the
host state (headquarters agreements). The question may arise whether an organization also
enjoys immunity in the absence of a convention, or when a convention has not entered into
force. Such immunity could be based on customary international law or on a general principle
of law. In the Spaans case, the Dutch Supreme Court held that an international organization,
in the case the Iran- US Claims Tribunal, was entitled to immunity from jurisdiction against
an employee’s claim in an employment dispute, even though no agreement between The
Netherlands and the Tribunal provided for immunity of the latter.1 This decision is an outlier,
however.There are no other known cases of a domestic court granting immunity to an
international organization on the basis of customary international law. The judgment that is
the subject of this commentary addressed the question whether an international organization
could be entitled to immunity on the basis of a general principle of law, in the absence of due
approval of a headquarters agreement between the international organization and the host
state.

I. Facts of the case

TM had brought an employment case against the League of Arab States (League) in a
Belgian labour court. The case was eventually heard by the Court of Cassation(Supreme
Court). The precise material conflict of the employment dispute cannot be inferred from the
Court of Cassation’s judgment, since the court limited itself to answering the contentious
legal questions. The particular facts of the dispute were, in any event, not relevant to the
international law dimension of the case. TM argued that the League— an international
organization— was not entitled to immunity from jurisdiction under international law. The
Court of Appeals concurred, and held that the League did not enjoy immunity from
jurisdiction in Belgium, on the ground that the federal parliament had failed to approve the
Headquarters Agreement between Belgium and the League of Arab States, adopted

on 16 November 1995 (1995 Headquarters Agreement), which provided for immunity of the
organization (in spite of the fact that the ‘communities’ and ‘regions’, which are the devolved
entities in Belgium’s federal system, had approved the agreement). The Court of Appeals
considered in eventu that the dispute was in fact about an actum iure gestionis (of commercial
nature), which was not covered by the immunity from jurisdiction. The League thereupon
filed a cassation appeal, arguing that approval of the 1995 Headquarters Agreement by the
federal parliament was not required (since, in particular, the 1995 Headquarters Agreement
could enter into force on the basis of the mere signature), and that immunity from jurisdiction
of international organizations was a general principle of international law. As far as the treaty
law claims were concerned,the League argued that approval was in fact not required, as
Belgium and the League had purportedly given their consent to be bound by the 1995
Headquarters Agreement by their mere signature, and alternatively, that the 1995
Headquarters Agreement could be given provisional application. To that effect, the League
relied on the Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations (21 March 1986 25 ILM 543), not yet
in force (1986 VCLT), providing for such consent to be bound (arts. 11 and 12 of the 1986
VCLT) and provisional application (art. 25 of the 1986 VCLT).

II. The legal question

Whether a bilateral treaty concluded with an international organization that had not been
approved by parliament could give rise to legal consequences in the Belgian legal order.
Whether the League of Arab States was immune from jurisdiction in the Belgian courts.

III. Excerpts [translation ILDC]

The 1986 VCLT had not yet entered into force. The argument based on the binding effect of
the mere signature, as codified in Article 11 of the 1986 VCLT was therefore dismissed.
(paragraph 10)

The failure on the part of the Belgian federal parliament to approve the text of the 1995
Headquarters Agreement between Belgium and the League had domestic legal consequences.
A treaty had no binding force in the domestic legal order in the absence of approval by the
federal parliament, even when the treaty had entered into force for Belgium under
international law. Under Belgian constitutional law (Article 167 of the Constitution, 17
February 1994 (Belgium)), treaties could only give rise to legal consequences in the domestic
legal order if the competent parliaments had given their approval. Thus, if the parliaments of
Belgium’s federal entities (communities and regions) had given their timely approval,
whereas the federal parliament had not, the treaty had no binding force. The fact that the
treaty partly related to matters within the competency of the entities of the federation (whose
parliaments had approved the treaty) did not subtract from this. (paragraph 22)

There was no general principle of public international law in the sense of Article

38(1)(c) of the Statute of the International Court of Justice (26 June 1945) to the

effect of there being immunity from jurisdiction of international organizations with

respect to the states that had established or recognized them. (paragraph 24)

The request of the League was rejected; and jurisdiction over the League was

upheld. (paragraph 25)

IV. Commentary
Cases before domestic courts against international organizations often relate to employment
matters, as exemplified by this Belgian case against the Arab League. The central aspect of
this case is the Court of Cassation’s holding that there is no general principle of international
law recognizing immunity from jurisdiction of international organizations with respect to
states having established or recognized them. This appears to be in keeping with
Amerasinghe’s observation, in relation to the immunity of international organizations for
employment disputes, that ‘[t] he decisions of national courts do not reflect a uniform
approach’, and that, in cases where domestic courts did not uphold immunity and thus
exercised jurisdiction, ‘[i]t is not clear whether these courts would exercise jurisdiction in the
case of all international organizations or whether the exercise of jurisdiction was restricted
only to specific organizations in specific cases’.2The gist of the parties’ and the court’s
argument did, however, not relate to general international institutional law, but rather to the
1995 Headquarters Agreement. Pursuant to art. 1 of the 1995 Headquarters Agreement, the
goods and assets which the League uses for the exercise of its official activities in Belgium
enjoy immunity from jurisdiction (except if this immunity is waived). Possibly, this could
imply that Belgian courts indeed have to recognize the immunity of the League. Yet it could
be argued that this provision only related to immunity from enforcement, and not to
immunity from jurisdiction. The court did not deal with this substantive question. The main
problem in this case related to the Belgian federal parliament’s failure to approve the treaty at
the time the case was brought (approval was only given in1999). Somewhat oddly, the
parliaments of Belgium’s federal entities (communities and regions) had given their timely
approval, whereas the federal parliament had not. As noted, the argument that ratification
was not necessary, and that mere signature would suffice on the basis of the 1986 VCLT, was
dismissed by the court, as the 1986 VCLT had not yet entered into force. Even at the time of
writing of this comment, there were insufficient ratifications for the treaty to enter into force
(see art. 85.1 of the1986 VCLT; Belgium had deposited its ratification on 1 September 1992.
However, the provision for consent to be bound in the 1986 VCLT was analogous to a similar
provision in the Vienna Convention on the Law of Treaties (23 May 1969),3 which
enteredninto force 27 January 1980 (1969 VCLT).

The court conspicuously failed to ascertain whether the provisions of the 1986

VCLT reflected customary international law.4 It left open the question of whether the

1995 Headquarters Agreement could indeed be binding at the international level. If

the relevant provisions of the treaty could be considered as customary international

law, the court could have found that there was insufficient evidence that the parties

wanted the 1995 Headquarters Agreement to enter into force on the basis of mere signature,

or that they wanted to have it provisionally applied.

As the substance of the 1995 Headquarters Agreement undeniably falls within the

constitutional competence of the federal state, the inevitable result of the federal parliament’s
failure to approve the 1995 Headquarters Agreement is that it is not binding

in domestic courts and that the courts cannot apply it. Quite reasonably, the approval

of the 1995 Headquarters Agreement by the parliaments of the federal entities was

found to be immaterial. Deciding otherwise would have been incompatible with the

guarantees outlined in art. 167 of the Constitution, which clearly provides that an

international agreement only has domestic consequences when it is approved by the

parliaments of the federal entities within whose competence the agreement falls.

It is finally noted that the distinction between acta iure gestionis and acta iure imperii,

which is often made in the law of state immunity, did not play a role before the court, which

refused to discuss its relevance as it had already found jurisdiction on other bases (namely

the absence of parliamentary approval of the relevant agreement). In contrast, the Brussels

Court of Appeal had argued, a fortiori, that a dispute relating to an employment contract

was an actum iure gestionis and not an actum iure imperii. Immunity would not apply to the

former act. The League, however, argued that art. 1 of the 1995 Headquarters Agreement

did not draw a distinction between different acts of the international organization. Under

general international law, it appears that the distinction may not be relevant to the immunities

of international organizations.5 The Court of Cassation, for its part, was probably wise

not to enter into an a fortiori discussion on the existence of the said distinction.

On a comparative note, whereas the Belgian Court of Cassation held that there

was no general principle on the basis of which an international organizations enjoyed

immunity, the Dutch Supreme Court (Hoge Raad), in the 1985 Spaans case, took the

view that the immunity of international organization is governed by customary international

law in the absence of a specific treaty. This case concerned the immunity

from jurisdiction of the Iran- US Claims Tribunal in an employment dispute brought

against it by a former employee, Spaans. The Court characterized the Tribunal as an

international organisation that borrows its legal personality from international law.6

At the time of the suit, no headquarters agreement or other treaty on privileges and
immunities

had been concluded between the Tribunal, or by Iran and the United States, with

The Netherlands. Such an agreement only materialized in 1990, with an Exchange of Letters

between the Government of the Kingdom of The Netherlands and the President of the Iran-

United States Claims Tribunal on granting privileges and immunities to the Tribunal, No

004282, 24 September 1990,7 which provided for the immunity of the Tribunal. The absence
of a valid treaty at the time of the judgment did not stop the Supreme

Court from inquiring whether immunity could be based upon customary international

law, concluding that ‘[a] ccording to unwritten international law as it currently stood, an

international organization was in principle not subject to the jurisdiction of the courts

of the host state in respect of disputes which were immediately connected to the fulfilment

of the tasks assigned to that organization. Possible exceptions did not need to be

explored in this case’.8 The Court proceeded to find that ‘[d]isputes which might have

arisen between an international organization and those who played an essential role in

the performance of its tasks belonged to the category of disputes which were immediately

connected with the performance of these tasks’.9 In so doing, the Court distanced

itself from the lower courts’ determination that the immunity of international organizations

was customarily governed by the distinction between acta jure imperii and acta

jure gestionis, a distinction borrowed from the law of state immunity. The lower courts

for that matter diverged in the characterization of the organization’s acts with regard

to the employment dispute before them: the District Court considered it as actum jure

gestionis, but the Court of Appeal as actum jure imperii. By ruling that the categories of

the law of state immunity do not apply with respect to the law of international organization

immunity, the Dutch Supreme Court did not have to characterize the organization’s

acts. Commentators have astutely observed that ‘[t]he dismissal by the Supreme

Court of this distinction in relation to international organizations underscored the special

character and independence of international organizations as legal actors’.10

It remains curious, however, that a court looked for immunity of an international

organization beyond treaty law in the first place. There are no other reported cases of

domestic courts recognizing the immunity of an international organization on the basis

of customary law, or general principles— although this may just be so because almost in

all cases a treaty is indeed available. There are however some reported court cases which

explicitly reject the existence of international organization immunities under customary

international law.11 In a 1999 Italian case involving the European University Institute,

the court ruled that customary rules on immunity only apply to states, not to international

organizations, as international organizations enjoy only limited international

legal personality.12 Another Italian court confirmed in 2007 that the immunity of
international

organizations could only be based on conventional instruments, such as headquarters

agreements, and not on alleged customary international law.13 In a 1993 case,

the Paris Court of appeal similarly found that there was no international organization

immunity under customary international law.14 Domestic courts may generally only
recognize treaties as the basis for immunity of

international organizations, but such treaties need not necessarily be formal treaties

that have been approved by Parliament. Also ‘simplified’ treaties that confer immunity

on the organization may pass muster. In another, more recent case (2010) against

the Iran- US Claims Tribunal,15 the court held that the aforementioned 1990 exchange

of letters between The Netherlands and the President of the Tribunal regarding the

accordance of privileges and immunities to the Tribunal and its process participants,

contained ‘an international agreement between a State and an international organisation

governed by international law, and thus a treaty, a source of international law’

(Iran U.S. Claims Tribunal Den Haag, para. 3.3: ‘ligt in voormelde briefwisseling een

internationale, door het volkenrecht beheerste overeenkomst tussen een Staat en een

internationale organisatie besloten en is er sprake van een verdrag, zijnde een bron van

volkenrecht’). The District Court held it to be irrelevant that this treaty had not been
submitted to Parliament for approval, on the ground that ‘under customary international

law, a state may not invoke the fact that its consent to be bound by a treaty has

been expressed in violation of a provision of its internal law regarding competence to

conclude treaties as invalidating its consent’.16