INTERNATIONAL ORGANISATIONS IN THE NETHERLANDS: IMMUNITY FROM THE JURISDICTION OF THE DUTCH COURTS

Abstract

International organisations are endowed with privileges and immunities to safeguard their independence, including, in particular, vis-à-vis their host state. This article first briefly considers the sources of privileges and immunities applicable to international organisations in the Netherlands, which is the host state of many international organizations. The article then focuses on the immunity of international organisations from the jurisdiction of the Dutch courts. The article reviews the relevant national case law in which there have been important developments in recent years against the backdrop of the relevant case law of the European Court of Human Rights. In respect of international organisations that enjoy immunity formulated in ‘functional’ (as opposed to ‘absolute’) terms, the article develops some general guidance to determine when that immunity applies. The article then considers the clash between an international organisation's entitlement to jurisdictional immunity and the rights of claimants to have access to the courts under Article 6 of the European Convention on Human Rights. The article suggests that whether the right to immunity prevails depends on the extent to which the particular organisation's functionality is at issue. In this light, the article critically examines the recent judgements in the incidental proceedings in the Srebrenica case against the United Nations. Finally, in terms of the procedural position of international organisations before the Dutch courts, the article suggests that to enjoy jurisdictional immunity, organisations would be well-advised to actively challenge the jurisdiction of the courts.