Austrian Courts and the Immunity of International Organizations

international organizations law review 10 (2013) 446-463

© koninklijke brill nv, leiden, 2014 | doi 10.1163/15723747-01002012

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brill.com/iolr

INTERNATIONAL

ORGANIZATIONS

LAW REVIEW

Austrian Courts and the Immunity of International Organizations

Kirsten SchmalenbachProfessor of Public International Law, University of Salzburg

[email protected]

Abstract

Austria is host state to several international organizations, and as a result the immu-nity of international organizations and their officials is a constant concern to the Austrian Ministry of Foreign Affairs, and from time to time this issue is considered by Austrian Courts. But who in Austria authoritatively decides on the presence of juris-dictional immunities: the judiciary or the government? What kind of acts or omissions count as a waiver of immunity, and who has the power to do just that? What is the scope of the organization’s immunity ratione materiae, especially when compared to the immunity of states? What is the scope of the jurisdictional immunity of officials? And, finally, do Austrian courts balance the jurisdictional immunity of international organizations with the human right of access to courts? This paper outlines the inter-national laws and domestic rules applicable to questions of immunity, and then ana-lyzes eleven final judgments from Austrian courts that deal with the immunity of international organizations and their officials. It concludes with a brief evaluation of the scope of the immunity of international organizations and their officials in light of the Austrian legal order.

Keywords

immunities – international organizations – officials – human rights – access to court – host State

1 Introduction

Austria is host state to several international organizations, meaning that the organization or one of its organs has its seat or an office in Austria. The list of

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1 The organizations are listed on the Austrian Foreign Ministry’s web site, which is available at: <www.bmeia.gv.at/en/foreign-ministry/foreign-policy/international-cooperation/vienna -official-seat-of-international-organisations.html> (last visited 30 April 2014).

2 E.g. The un Commission on International Trade Law (‘uncitraal’), un Environment Programme (‘unep’), and the un Office for Outer Space Affairs, subsidiary organs of the General Assembly.

3 Austrian Supreme Court (Oberster Gerichtshof): (1) Decision of 12 February 1998, Case No. 12 Os 3/98, (2) Decision of 14 December 2004, Case No. 10 Ob 53/04y; (3) Decision of 27 August 2003, Case No. 9 Ob A 89/03h; (4) Decision of 27 August 2003, Case No. 9 nc 18/03a; (5) Decision of 19 June 1996, Case No. 8 Ob 2307/96i; (6) Decision of 30 March 1998, Case No. 8 Ob A 78/98y; (7) Decision of 11 June 1992, Case No. 7 Ob 627/91; (8) Decision of 1 December 2005, Case No. 6 Ob 150/05k; (9) Decision of 30 June 1994, Case No. 2 Ob 517/94; (10) Decision of 17 May 2000, Case No. 2 Ob 166/98w; (11) Decision of 6 June 1990, Case No. 5 N 502/90.

Austria-based international organizations provided by the Austrian Foreign Ministry,1 which names a total of 29 international entities based chiefly in Vienna, reveals a broad understanding of the term ‘international organization’. Not only are different organs of the same organization itemized, especially those of the United Nations,2 but also intergovernmental entities whose inter-national legal personality is open to debate, for example the Organization for Security and Cooperation in Europe (‘osce’). As a host state, the immunity of international organizations and their officials is a constant concern to the Austrian Ministry of Foreign Affairs, and from time to time this issue is consid-ered by Austrian Courts.

The following contribution analyzes eleven final judgments3 that deal with the immunity of international organizations and their officials spanning a period of 23 years. Compared to the number of international organizations based in Austria, eleven judgments is a rather small quantity, which is a fact informative in itself: a settled and consistent case law upholding a generous interpretation of immunity rules necessarily has an impact on the readiness of claimants to resort to Austrian courts. Disputes are often settled amicably between the claimant and the organization, with the Austrian Foreign Ministry serving as mediator. As a consequence, the vast majority of complaints are either not pursued in court, or the proceedings against an organization or against one of its officials, the latter of which is a much more frequent occur-rence, are terminated by an unpublished dismissal decision of the district court on the basis of a lack of jurisdiction.

Before turning to the particulars of the Austrian judgments, this contribu-tion outlines in its first section the conglomerate of international laws incorporated into the Austrian legal system as well as the relevant domestic laws. This analysis of the legal framework is required for several reasons. The

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4 According to the un Treaty Series and the Austrian database on legislative acts, ten head-quarters agreements concluded by Austria are currently in force, regulating directly or by reference the privileges and immunities of the relevant organization:(1) Agreement between the International Atomic Energy Agency (‘iaea’) and the Republic of

Austria regarding the Headquarters of the iaea, 11 December 1957, 229 unts p. 110;(2) Agreement between the Republic of Austria and the United Nations regarding the seat of

the United Nations in Vienna, 29 November 1995, 2023 unts p. 254;(3) Headquarters Agreement with the United Nations Industrial Development Organization,

of 26 May 1998, Austrian Law Gazette bgbl. iii Nr. 100/1998 (identical in wording mutatis mutandis to (2));

(4) Agreement between the International Commission for the Protection of the Danube River and the Republic of Austria regarding the Headquarters of the Commission, 14 December 2000, 2197 unts p. 104;

obvious one is that the Austrian legal situation forms the basis for the deci-sions of Austrian courts on matters of immunity. The immunity concessions of the host state vis-à-vis international organizations, however, introduce another aspect into the debate on the necessary scope of immunities of international organizations and their officials. This aspect is the political interest of states to attract international organizations in their choice of headquarters. In the next section, the case law of Austrian courts is discussed against the backdrop of specific legal questions. Who in Austria authorita-tively decides on the presence of jurisdictional immunities: the judiciary or the government? What kind of acts or omissions count as a waiver of immu-nity, and who has the power to do just that? What is the scope of the organi-zation’s immunity ratione materiae, especially when compared to the immunity of states? What is the scope of the jurisdictional immunity of offi-cials? And, finally, do Austrian courts balance the jurisdictional immunity of international organizations with the human right of access to courts? This contribution concludes with a brief evaluation of the scope of the immunity of international organizations and their officials in light of the Austrian legal order and the case law through which it is interpreted and applied.

2 Domestic Law Regarding the Immunity of International Organizations

Provided that the contracting partner is an international legal person bestowed with international treaty-making capacity, Austria has con-cluded agreements on the establishment of headquarters4 or liaison



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(5) Agreement regarding the Headquarters of the Joint Vienna Institute, 6 March 1997, 1997 unts p. 433;

(6) Agreement regarding the Headquarters of the International Anti-Corruption Academy, of 10 October 2011;

(7) Agreement regarding Headquarters of the Organization of the Petroleum Exporting Countries (‘opec’), 18 February 1974, 2098 unts p. 416;

(8) Agreement regarding the Headquarters of the opec Fund for International Development, 21 April 1981, 1291 unts p. 210;

(9) Agreement regarding the Headquarters and the European Monitoring Centre on Racism and Xenophobia (no longer in force), replaced by Headquarters Agreement between the Republic of Austria and the European Union Agency for Fundamental Rights, 16 June 2010, unts ip-49226, available at: <www.parlament.gv.at/pakt/vhg/xxiv/i/i_00788/imfname_189632.pdf>.

(10) Agreement between the Republic of Austria and the European Patent Organization (‘epo’) Concerning the Headquarters of the Vienna Sub-office of the European Patent Organizations, 2 July 1990, 1655 unts p. 129.

5 See e.g. Agreement between the Republic of Austria and the International Bank for Reconstruction and Development, the International Finance Corporation and the Multilateral Investment Guarantee Agency (‘ibrd’, ‘ifc’ and ‘miga’ of the World Bank Group) regarding the establish-ment of liaison offices in Vienna, 21 July 2010, United Nations Juridical Yearbook (2010) p. 5.

6 Variation (c) is not enshrined in Art. 5, International Anti-Corruption Academy Headquarters Agreement (supra note 4). Art. 9 of the opec Headquarters Agreement (supra note 4) con-tains an immunity clause modeled on Section 2 of the General Convention. Variations (b) and (c) are not enshrined in Art. 5 of the Liaison Office Agreement with ibrd, ifc and miga (supra note 5), but that agreement does provide for an immunity exception in line with the

offices5 with numerous international organizations. Either directly or by refer-ence to a multilateral immunity agreement, these agreements regulate the jurisdictional immunity from Austrian jurisdiction of the organization, its organs, bodies, programs, agencies, and their respective officials. The immu-nity provisions of headquarters and liaison office agreements follow more or less the same pattern, even though they may vary in detail. As a rule, the provi-sions on the immunity of the organization specify that the organization has immunity from jurisdiction and enforcement, except:

(a) if the organization has expressly waived such immunity in a particular case;

(b) in the case of civil actions for damage caused by a vehicle belonging to or operated on behalf of the organizations; and

(c) in the case of the attachment of salary emoluments or indemnities owed by the organization to an employee, unless the organization informs the Austrian authorities within 14 days that it does not waive its immunity.6

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Articles of Agreements of the ibrd, ifc and miga: no “immunity … in cases arising out of or in connection with the exercise of their powers to issue or guarantee securities on the territory of the Republic of Austria.”

7 Art. 4, Agreement Concerning the Sub-Office of the epo (supra note 4).8 Art. 6, Agreement between the International Commission for the Protection of the Danube

River and Austria (supra note 4).9 Opened for signature on 13 February 1946, 1 unts p. 15 (entered into force 17 September

1946).10 Opened for signature 21 November 1947, 33 unts p. 261 (entered into force 2 December

1948).11 According to Art. ii, Section 2 of the General Convention, the organization “shall enjoy

immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” The same broad grant of immunity can be found in Art. iii, Section 4 of the Specialized Agencies Convention.

12 Art. 14, Agreement Concerning the Sub-Office of the epo (supra note 4).

Some headquarters agreements emphasize that the organizations shall have immunities within the scope of their official activities;7 others are silent on this matter.8 In the case of the United Nations Headquarters Agreement of 1995, reference is made to the 1946 Convention on the Privileges and Immunities of the United Nations (the ‘General Convention’).9 As for the United Nations Industrial Development Organization (‘unido’), as it is a specialized agency and thus falls into the scope of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies (‘Specialized Agencies Convention’),10 the immunities are not directly regulated in the unido Headquarters Agreement but defined in Section 4 of the Specialized Agencies Convention. In this context it is noteworthy that neither the General Convention nor the Specialized Agencies Convention contains a vehicle damage clause or a gar-nishee order clause.11

Even with respect to the immunity of officials of the international organiza-tion, the relevant headquarters and liaison office agreements follow the same pattern. As a rule, all officials enjoy immunity from legal processes of any kind with respect to words spoken or written and to acts performed in an official capacity. The immunity for official acts persists even if the person concerned has ceased to be an official of the respective organization. A remarkable excep-tion is introduced in the Agreement Concerning the Sub-Office of the epo. According to Articles 14 and 16 of that agreement, no official except the Head of the Sub-Office enjoys immunities for official acts in cases of traffic offences.12 Higher-ranking officials as specified in the applicable headquarters agreement are bestowed with immunities analogous to members of diplomatic missions with comparable ranks. High ranking officials who are Austrian nationals or



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13 E. Handl-Petz, ‘Austria’, in D. Shelton (ed.) International Law and Domestic Legal Systems (2011) p. 55, at p. 79.

14 Federal Act of 14 December 1977 on the Granting of Privileges and Immunities to International Organizations, Austrian Law Gazette bgbl. Nr. 677/1977. Section, 1 para. 7 states that, for the purposes of the act, international organizations shall be organizations consisting exclusively of states or of associations of states, organizations either consisting wholly of public law juristic persons of several states or of juridical persons under similar arrange-ments, or consisting partly of juristic persons and partly of states or associations of states and the World Tourism Organization (‘unwto’). With regard to the unwto, please note that in 2010 Austria ratified Annex xviii to the Specialized Agencies Convention that extents the immunities provided to the unwto (in force since 2008): 2527 unts p. 171.

15 See e.g. Supplementary Agreement to the General Agreement on Privileges and Immunities of the Council of Europe concluded between the Federal Government of the Republic of Austria and the Council of Europe regarding the Council of Europe Liaison Office in Vienna, 18 February 2011, Austrian Law Gazette bgbl. III 19.5.2011 Nr. 67.

non-Austrian nationals but with permanent residency in Austria are often excluded from diplomatic immunities with the effect that they are reduced to enjoying immunities only for their official acts.

The conclusion of the headquarters agreements is approved by the Austrian Federal Parliament (Article 50, Paragraph 1 of the Austrian Constitution), the so-called ‘National Council’. Upon their publication in the Federal Law Gazette, the agreements become part of the domestic law and as such are then directly applicable by Austrian courts.13 In addition, the Federal Act of 14 December 1977 on the Granting of Privileges and Immunities to International Organizations14 empowers the Austrian government to grant immunities by governmental agreement within the limits set out in the 1977 Federal Immunity Act.15 Interestingly enough, the Federal Immunity Act gives no precise description of the scope of jurisdictional immunity, which the Austrian government may confer to an organization. It goes without saying that the scope of the immu-nity granted by governmental agreement must conform to the constituent instruments and related multilateral immunity agreements of the relevant organizations under the condition that Austria is a party to these agreements. In cases of ‘foreign’ international organizations, the government has the power to grant immunities only if the organization’s activities in Austria are consid-ered by the Austrian government to be in the foreign policy interest of Austria (Section 1, paragraph 8 of the 1977 Federal Immunity Act). If so, the Austrian government may bestow immunities in accordance with the relevant statute of the ‘foreign’ organization or multilateral immunity agreements applicable to it. Alternatively, the government may adhere to customary international law and grant immunities that are required for the fulfilment of its functions

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16 Austrian Supreme Court, Decision of 1 December 2005, Case No. 6 Ob 150/05k, para. 2 (‘osce Case’).

17 osce Case, para. 5.18 Opened for signature 14 March 1975 (not yet in force). The text of the Convention is con-

tained in un Doc. a/conf.67/16.

(Section 1, paragraph 2 of the 1977 Federal Immunity Act). In all cases in which the scope of immunity is not legally predetermined, the government may grant the scope of immunities that it considers appropriate in the individual case depending upon whether or not the headquarters is situated in Austria, the legal status of the organization, its international standing and operations, as well as the nature of its functions (Article 2 of the 1977 Federal Immunity Act). The power to concede immunities by governmental agreement is subject to the condition that the government must obtain the consent of the Main Committee of the Austrian Parliament (Section 1, paragraph 5 of the 1977 Federal Immunity Act).

Headquarters agreements and governmental immunity agreements are lex specialis for Austrian courts, subject to the condition that they are in confor-mity with higher-ranking Austrian laws (that is, the Austrian Constitution and, in the case of governmental immunity agreements, the 1977 Federal Immunity Act). Possible regulatory gaps in the headquarters agreements must be filled by the provisions of relevant multilateral immunity agreements and by the stat-ute of the respective organization of which Austria is a member, as well as by customary international law.16 The latter source of immunity rules, ranking above statutory law and ordinances, is part of domestic law pursuant to Article 9 of the Austrian Constitution. According to the Austrian Supreme Court, however, it is doubtful whether there are customary rules on the immunity of international organizations, given that international organizations are a twen-tieth-century phenomenon and therefore a rather recent development.17 On this basis, the Supreme Court rejected the customary basis of the immunity rules enshrined in the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.18

In addition to international law properly incorporated into the Austrian legal system, the Austrian courts have to apply domestic laws. Apart from the 1977 Federal Immunity Act, two statutory laws are of relevance when the juris-dictional immunities of international organizations and their officials are in dispute. According the to Austrian Law on the Exercise of Jurisdiction (the ‘Court Jurisdiction Act’), which has been rewritten several times since its first adoption in 1895, the Court must decide in each stage of the proceeding on its lack of jurisdiction and the invalidity of the previous proceedings (Section 42,



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19 Austrian Supreme Court, Decision of 6 March 1990, 5 N 502/90 (‘unido Official Case’), reprinted in (1991) 42 Austrian Journal of Public and International Law p. 472.

20 In view of the conflict resolution lex posterior derogat legi piori, it is noteworthy that Section ix entered into force 25 June 1971, Austrian Law Gazette bgbl. Nr. 217/1971 and was amended 1997 by Austrian Law Gazette bgbl. Nr. 140/1997. See further Franz Matscher, ‘Art. ix egjn’, in Fasching (ed.), Kommentar zu den Zivilprozessgesetzen (2000), pp. 126–128. According to the present author’s view, the lex specialis conflict resolution is applicable to the effect that international agreements to the contrary derogate Art. ix of the Introductory Act: see further section 3.1 below.

21 For details, see Helmut Tichy & Ulrike Köhler, ‘Legal Personality or Not – The Recent Attempts to Improve the Status of the osce’, in Isabelle Buffard, James Crawford, Alain Pellet & Stephan Wittich (eds.), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (2008) p. 454 et seq.

22 Tichy & Köhler, supra note 21, p. 470.23 This would be the Secretary General, the Secretariat, the Permanent Council, the Forum

for Security Co-operation and the Representative on Freedom of the Media: cf. osce Case, p. 1. The osce Office for Democratic Institutions and Human Rights in Warsaw and the Office of the High Commissioner on National Minorities in The Hague do not fall within the scope of the Austrian osce Act.

paragraph 1). Making a final decision on the merits of the case, the invalidity of the proceedings and the judgment has to be declared by the Austrian Supreme Court at the request of the government (as the supreme administrative author-ity).19 According to Article ix, paragraph 2 of the Introductory Act of the Court Jurisdiction Act, Austrian courts have jurisdiction if the person enjoying inter-national immunities voluntarily submits to the proceedings, or if the dispute concerns the person’s Austrian real estate or that person’s rights in rem in domestic real estate owned by others. Article ix of the Introductory Act clearly conflicts with provisions of international agreements to the contrary, if the for-mer is not interpreted in harmony with the latter or derogated by applicable rules of conflict resolution.20 In case of doubt regarding the existence of domestic jurisdiction over a person enjoying international immunities, para-graph 3 of Article ix provides that the court must obtain a declaration from the Federal Ministry of Justice.

Due to the on-going dispute over the international legal personality of the osce,21 no headquarters agreement has been concluded between Austria and the osce, despite Austria’s readiness to take the step.22 Consequently, the sta-tus of the osce and its officials in Austria is regulated by a statutory law of 1993 (the ‘osce Act’). Pursuant to Section 3, paragraph 1 of the osce Act, all Austria-based osce institutions23 — having legal personality in Austria — and their officials enjoy the same scope of immunities granted to the United Nations in Vienna, which is a combination of immunities of the organization pursuant to

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24 Austrian Supreme Court, Decision of 11 June 1992, Case No. 7Ob627/91 (‘epo I Case’); Decision of 14 December 2004, Case No. 10 Ob 53/04y (‘opec Fund Case’), p. 6; osce Case, p. 472 et seq.

25 Furthermore, according to Art. 11, para. 2 of the Austrian Service of Documents Act (‘Zustellgesetz’), the service of documents to foreign individuals or international organi-zations that enjoy privileges and immunities under international law, independent of their residency and seat, have to be conducted through the foreign ministry. See also the opec Fund Case, p. 9. That the inclusion of the Foreign Ministry for cases under Art. 11 para. 2 in the service of documents is mandatory has explicitly been held by the Austrian Supreme Court: see Decision of 7 May 2003, Case No. 9 Ob A 14/03d, 5–6.

the General Convention and the immunities of officials pursuant to Section 37 ff. of the agreement on the United Nations Seat in Vienna.

3 Analysis of the Austrian Jurisprudence on the Immunities of International Organizations

As a preliminary point, three peculiarities of Austrian court decisions are note-worthy because they put the discussed judgments into perspective. First, most Austrian court decisions are concise, with little use for wordy legal explana-tions. Second, the decisions often refer to preceding state immunity cases whenever the legal situation permits it. Third, the Austrian courts heavily rely on scholarly writings penned by distinguished Austrian authors. Article 38(d) of the Statute of the International Court of Justice, which acknowledges the teachings of the most highly qualified publicists as a source for the determina-tion of rules of international law, is clearly taken seriously in Austria.

3.1 Decision on the Existence and the Scope of Immunities within the Legal Proceeding

Applying Section 42, paragraph 1 of the Court Jurisdiction Act, the Austrian Supreme Court stresses that a possible lack of jurisdiction due to immunities must be examined on the court’s own motion and at every stage of the pro-ceeding.24 Whereas the regulatory constraints are quite clear in this regard, the law is ambiguous concerning the question of whether Austrian courts are bound by the immunity assessment of the Austrian Ministry of Justice, or as a matter of practice the assessment of the Ministry of Foreign Affairs which does the background work. In case of any doubt, the Austrian courts must obtain a ministerial opinion (Article ix, paragraph 3 of the Introductory Act).25 Case law does not reveal under which circumstances the court can be sure about



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26 osce Case. See also Decision of 14 February 2001, Case No. Ob 316/00x (‘2001 Fürst von Liechtenstein Case’).

27 August Reinisch & Jacob Wurm, ‘Analysis of Austrian Supreme Court, Decision of 17 May 2000, Case No. 2 Ob 166/98w’, in Oxford Reports on International Law in Domestic Courts (ildc 356, at2000).

28 opec Fund Case, pp. 7 and 13.29 opec Fund Case, p. 9; Ordinance of the Ministry of Justice on Letters Rogatory and Other

Legal Relationships in Civil Matters with Countries Abroad, 7 May 2004 (‘rhe Ziv 2004’); see Section 1 para. 2 of the Ordinance: “Durch die in diesem Erlass enthaltenen Anordnungen und Hinweise wird der Beurteilung von Fragen nicht vorgegriffen, die der Rechtsprechung unterliegen.”

30 With reference to Austrian Supreme Court, Decision of 25 June 1964, Case No. 2 Ob 173/64 (Fn. 23) which concerned a head of state (again, the Fürst von Liechtenstein).

“whether” and “to what extent” the defendant enjoys immunities. In the event that the Ministry has given its opinion on the immunity matter pursuant to Article ix, paragraph 3 of the Introductory Act, the assessment is not legally binding for the court. The Supreme Court has repeatedly pointed out that this stems from the principle of the separation of the judiciary from the execu-tive.26 In practice, Austrian courts exhibit an underdeveloped self-confidence in public international law matters, and as such rely strongly on the opinion of the Ministries of Justice and Foreign Affairs.27

3.2 Waiver of ImmunityThe leading case on immunity waivers was decided in 2004 and concerned a default action against the Organization of Petroleum Exporting Countries’ Fund for International Development (‘opec Fund’). Relying heavily on the opinion of Austrian publicists, the Supreme Court took the opportunity to clarify the requirements for a valid and legally effective waiver. The authority competent to waive the organization’s immunity is the organ qualified to externally represent the organization according to its rules. Thus, the compe-tence, as the Supreme Court has pointed out, falls upon the administrative director (Secretary General).28 If the organization has not expressly waived its immunity at the outset of the proceeding, the Austrian court must clarify, via the Federal Ministry of Justice, whether it plans on doing so. The court’s responsibility to involve the Ministry of Justice for clarification is envisaged in an ordinance of the Ministry of Justice on international justice assistance and has been confirmed by the Supreme Court.29

In the rare event of a waiver, its legally binding effect for the organization is strictly limited to the specific dispute,30 with the consequence that a waiver of jurisdictional immunity has no legal impact on the subsequent enforcement

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31 opec Fund Case, p. 13.32 See also Black’s Law Dictionary (7th ed.) (2001), which defines an “express waiver” as a

“voluntary and intentional waiver”, and “express” as “clearly and unmistakably communi-cated; directly stated.” An express waiver of immunity is also required by the Headquarters Agreement Concerning the Vienna Sub-office of the epo in Art. 4 para. 1 (a). See further the epo I Case; see also Commercial Court of Vienna, Decision of 29 November 1965, 12 cg 802/65–2, reprinted in the United Nations Juridical Yearbook (1965) p. 246: “[the] iaea should have expressly waived its immunity”.

33 For a valid waiver, see e.g. Austrian Supreme Court, Decision of 19 December 1996, Case No. 8 Ob 2307/96i (‘unrwa Case’).

34 Matscher, supra note 20.35 opec Fund Case, p. 13.36 Austrian Supreme Court, Decision of 17 May 2000, Case No. 2 Ob 166/98w (‘unido ii Case’).

proceedings.31 This legal assessment correctly reflects the second sentence of Article 9 of the opec Fund’s Headquarters Agreement, but was made by the Supreme Court in a rather generalizing manner. Equally generalizing are the Supreme Court’s reflections on the waiver’s correct form of expression: with-out reference to Article 9 of the opec Fund’s Headquarters Agreement — according to which the Fund must expressly waive its immunity32 — the Supreme Court states that waivers must be made explicit at the outset or within the legal proceeding.33 At a later point in the judgment the Supreme Court, taking into account the opinion of an Austrian publicist,34 discusses at length if acts implying a waiver, for which more than mere passivity is required, are sufficient to justify the court’s jurisdiction. It is unclear whether the Supreme Court agreed with this interpretation of Article ix, paragraph 2 of the Introductory Act, the wording of which requires that the organization “freely accepts” the exercise of Austrian jurisdiction. In the given case, the Supreme Court was content to observe that it is generally agreed that the Fund’s action (the statement of opposition to the order for payment) cannot be regarded as an implicit waiver.35 On top of that, the Court noted that the Fund had explic-itly declared not to waive its immunity, which in the eyes of the Supreme Court appears to destroy any effort to interpret previous acts as an implicit waiver.

Four years earlier, in a decision concerning a high ranking official of unido, the Supreme Court clarified the relevance of Article ix, paragraph 2 of the Introductory Act in a different immunity matter.36 In the case at issue, a unido official initiated divorce proceedings before an Austrian Court and his wife retaliated with a counterclaim. Due to the defendant’s high rank within the administration of unido and in application of Section 28(c) of the unido Headquarters Agreement, the Supreme Court held that P-5 unido-officials enjoy the same immunities as heads of diplomatic missions. The consequence



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37 However, see unido Official Case, p. 474, in which the court applies Art. ix, para. 2. of the Introductory Act instead of the identical Art. 31 para. 1(a) of the vcdr.

is that the 1961 Vienna Convention on Diplomatic Relations (‘vcdr’) is applicable mutatis mutandis. Article 32 of the vcdr requires that, as a rule, the sending state expressly waives the jurisdictional immunity of the diplomatic agent (paragraph 1). If, however, the diplomatic agent institutes legal proceedings before the national court of the receiving state and is confronted with a coun-terclaim directly connected with his or her principle claim, he or she is pre-cluded from invoking immunity without the requirement of a governmental waiver. Based on the wording of Article 32, paragraph 3 of the vcdr, the Supreme Court concluded that in cases in which a high ranking official of an international organization institutes legal proceedings before Austrian Courts, no immunity waiver of the organization is needed for Austrian courts to exer-cise jurisdiction over the counterclaim. This assessment is, however, not neces-sarily in conformity with Article ix of the Introductory Act, which requires a waiver of the ‘person’ who enjoys international immunity. Given that the offi-cials derive their immunity from the organization, the latter can rightly be regarded as the competent ‘person’ for waivers. To overcome the potential nor-mative conflict, the Supreme Court simply stated that Article ix of the Introductory Act is derogated by Article 32, paragraph 1 of the vcdr without revealing the applicable conflict resolution. Given that the Austrian legislator introduced Article ix of the Introductory Act in 1971, seven years after the vcdr entered into force, the unico-decision point’s towards the lex specialis derogat legi generali principle.37 On this basis it is safe to say that Austrian courts regard international treaties bestowing immunities as the overriding law (lex specia-lis), reducing the domestic law (lex generalis) to a mere gap-filler. Following up on this, the lex specialis principle clarifies the relation between the ‘freely accepted jurisdiction’ clause of Article ix of the Introductory Act and the ‘express waiver’ clauses of the relevant headquarters agreement, even though the Supreme Court never explicitly labelled the ‘express waiver’ clauses as overriding leges speciales. It is worth pointing out that the harmonious inter-pretation of Article ix of the Introductory Act with Austria’s international obli-gations should arrive at the same result.

4 Scope of the Organization’s Immunity Ratione Materiae

It is settled case law that international organizations enjoy absolute immunity before Austrian courts. The Supreme Court has repeatedly acknowledged that,

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38 opec Fund Case p. 6. For an English translation that is in parts too judgmental to be accu-rate, see un Juridical Yearbook (2004) p. 394.

39 Austrian Supreme Court, Decision of 21 November 1990, Case No 9 Ob A 244/90 (‘us Embassy Case’).

40 Ibid.41 opec Fund Case, p. 6.42 Ibid.43 epo I Case.44 I Seidl-Hohenveldern & G. Loibl, Das Recht der internationalen Organisationen ein-

schließlich der supranationalen Gemeinschaften (2000).45 In 1995, the Bavarian Supreme Administrative Court in Munich recognized the dilemma

when evaluating the school fee policy of the European Schools in the light of the ultra

as a matter of principle, the immunity of international organizations is much broader in scope than those of foreign states.38 In a labour court suit against the us Embassy,39 the Supreme Court brushed aside the claim of the us Embassy that foreign states and international organizations should be placed on the same footing: the immunity of international organizations in civil law suits is enshrined in the relevant headquarters agreements in order to prevent states from influencing and interfering with the work of the organization. Proceeding from there, the Supreme Court was unable to identify any constitu-tional or international law reservations with respect to the different treatment of foreign states and international organizations.40 The rationale of the abso-lute immunity of international organizations is, according to the Supreme Court in the opec Fund case,41 the functional nature of the legal personality of all international organizations without exception. Due to this function-driven personality, all acts of an international organization must be closely connected to its functions.42 Lease disputes with international organizations as defen-dant have been dismissed on this basis.43 The Supreme Court substantiates this immunity-friendly assessment by reference to a well-established Austrian textbook44 on international organizations. Even though the wording of the judgment deliberately avoids any further conclusions on ultra vires acts of international organizations outside of their functions, the opec Fund case can be taken as precedent for the approach that even absolute immunities do not extend beyond the organization’s function. The reasonable claim of domestic jurisdiction over ultra vires acts of an international organization, however, is prone to diplomatic and legal complications: it could be argued that the inter-pretation of the organization’s statutory functions is either the task of the totality of all member states or of the organization itself and it is precisely the rationale of immunities to prevent domestic courts from doing it autonomously.45



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vires doctrine and opted for a procedural solution: the ultra-vires character of an act must be obvious for the domestic court, that is it must be evident on the basis of the organiza-tion’s submission of information on the scope and the limits of its competences: L v. European School Munich, 15 March 1995, Bavarian Supreme Administrative Court in Munich, 7 B 92.2689 et la, para. 29.

46 osce Case, para. 3.47 Austrian Law Gazette, bgbl II No 189/2006.

The Supreme Court decision in the epo Case indicates how Austrian courts sensitively handle the ultra vires-test in order to determine the soundness of the immunity plea. Departing from other headquarters agreements, Article 4 of the Headquarters Agreement Concerning the Vienna Sub-Office of the epo explicitly limits the scope of immunities to official activities, defining them in Article 2(f) as activities “strictly necessary for the administrative and technical work which the European Patent Organization is required to perform.” The question of whether a building leased by the epo is used for official activities or for purposes not related to the organizations’ functions was answered by the Supreme Court by way of rebuttable presumption. The Court identified the address of the seat of the epo sub-office by way of common knowledge (or information provided by the Austrian Foreign Ministry) and concluded that it must be presumed until proven otherwise that the organization exercises its functions from this address and in adjacent buildings.

5 Scope of the Official’s Immunity Ratione Materiae

Austrian courts have repeatedly emphasized that the immunity of an interna-tional organization must be distinguished from the immunity of its officials. The scope of the immunity of the latter depends on the applicable legal basis, which is regularly the headquarters agreement establishing a system of sliding-scale immunities depending on the rank of the official within the orga-nization’s staff hierarchy.46 For the Austrian courts, the specific rank of the offi-cial is easily verified without consulting the relevant organization. For each staff member the organization notifies the Austrian Ministry of Foreign Affairs, the latter issues an identity document coloured in accordance with his or her special rank within the organization.47 A red identity card is issued to high-ranking officials who enjoy immunities equivalent to diplomats; other officials hold a blue or green identity card. With respect to the latter category of official, the Supreme Court acknowledged their functional immunity, which does not extend to private acts. In practice, the verification of a private act outside of

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48 The triangular relationship between the sending state of the appointed representative, the international organization, and its host state has occupied the Higher Regional Court of Vienna to the effect of a rather curious decision: Art. xi, Section 23 of the 1967 unido Headquarters Agreement foresees that “[r]epresentatives of Member States … who have official business with the unido, shall … enjoy the privileges and immunities provided in Article iv of the General Convention”; on the basis of this wording, the Higher Regional Court of Vienna came to the conclusion that being sent by the Syrian government on an official mission to conduct contact meetings for the promotion of the Syrian tobacco industry at the unido would suffice to establish that the Syrian representative had official business with the unido and immunity was granted. This decision was given despite the fact that unido in a verbal note denied that the contacts with the Syrian representatives had official character. The Supreme Court overruled that judgment, stating that under Art. xi, Section 23 of the unido Headquarters Agreement the meaning of the wording “who have official business with the unido” has to be determined from the viewpoint of the international organization and does not include representatives of states, who from

the functional immunity, especially when traffic offenses are at issue, depends on a statement from the organization, brokered through the Ministry of Foreign Affairs. With respect to the red identity cardholder, the Supreme Court applies the vcdr in conformity with the state practice concerning the immu-nity of diplomats. This amounts to full immunity of high-ranking officials before civil courts, which includes immunity for private acts and excludes dis-putes concerning real estate located in Austria.

Whereas the jurisprudence of Austrian courts regarding the immunity of officials of international organizations does not leave the beaten track, the observations of the Supreme Court in the osce Case are noteworthy. The deci-sion concerns a suit against a member of the German Parliament who stayed in Vienna in his capacity as Special Representative of the osce Parliamentary Assembly. When discussing the scope of jurisdictional immunities that are bestowed by the Austrian osce Act to the members of the osce Parliamentary Assembly, the Supreme Court highlighted the different preconditions for the granting of immunity to diplomatic agents and to organs of an international organization. The bilaterally-structured rules on diplomatic relations are based on the principle of reciprocity with the possibility of the receiving state declar-ing a diplomatic agent under the protection of diplomatic immunities persona non grata, and the possibility of the plaintiff turning to the courts of the send-ing state. In contrast, the “multilateral diplomatic relation” of the osce Case undermines the judicial protection. The Supreme Court found that the plain-tiff is confronted with a triangular situation which includes the “sending State” of the member (Germany), the host state of the organization (Austria), and the international organization itself.48 In this scenario, the plaintiff can find



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the viewpoint of their sending state would conduct official business with the unido in an abstract manner: unido I Case, pp. 2–3.

49 osce Case, para. 5.50 Waite and Kennedy v. Germany, Application No. 26083/94, 18 February 1999, European

Court of Human Rights, [1999] echr 13, para. 67. See also the contribution of August Reinisch to this Forum.

neither a competent court in the sending state nor in the host state. On top of that, the state of nationality of the plaintiff is barred from exercising dip-lomatic protection vis-à-vis the sending state of the member of the osce Parliamentary Assembly.49 With that said, the Supreme Court expressed its concern about the remedial gap faced by the plaintiff. The critical observa-tion of the Austrian Supreme Court deserves a more detailed consideration. The specific features of the osce Case notwithstanding, the essence of the Supreme Court’ reasoning is valid not only for appointed members of the plenary organ but also for officials directly recruited by the international organization. The immunity of officials necessarily causes a remedial gap to the detriment of the plaintiff given that the immunity of the official has to be respected by all member states of the organization without exception. Therefore, it comes as a surprise that the Supreme Court’s explicit concern did not trigger any inquiries into the alternative dispute settlement mecha-nism provided by the osce.

6 Balance between Jurisdictional Immunity and the Human Right of Access to Court

The Austrian courts’ silence about alternative means of dispute settlement provided by international organizations is conspicuous. That is all the more true since the European Convention on Human Rights (‘echr’), including Article 6 of the echr (right to a court), is part of the Austrian constitution. By way of integrating the human rights convention into federal constitutional law, the jurisprudence of the European Court of Human Rights (‘ecthr’) is a pivotal source for Austrian Courts when interpreting and applying the human rights provisions. Having said that, in its immunity decisions the Austrian Supreme Court makes no reference to the famous Waite and Kennedy judgment of 199950 as a tool for interpreting Article 6 of the echr. Previously, in 1994, the European Commission of Human Rights emphasized in the Heinz Case that the alterna-tive internal redress mechanism of the epo ensures that the human right of

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51 Heinz v. Contracting Parties who are also Parties to the European Patent Convention, Application No. 12090/92, 10 January 1994, European Commission on Human Rights, (1994) echr p. 125, at p. 128.

52 Communicated by the epo ii Case.53 us Embassy Case.54 2001 Fürst von Liechtenstein Case, p. 4.55 Matscher, supra note 20.56 epo I Case; opec Fund Case, p. 12.

court access will receive an equivalent protection by the epo.51 Without relying explicitly on this case law, the Austrian Court of Appeal stated in a case con-cerning an epo labour law dispute that the immunity of the epo does not require any discussion under Article 6 of the echr given that, pursuant to Article 13 of the epo Statute, the plaintiffs have the opportunity to bring the matter before the International Labour Organization Administrative Tribunal.52 In 1990, the Supreme Court observed in an immunity case concern-ing a labour law dispute with the us Embassy that the different scopes of immunity of diplomatic missions and international organizations are justified by the consideration that, within the field of employment law, the employees of international organizations enjoy a certain protection through special administrative tribunals and similar facilities established for this purpose.53 Even though these observations demonstrate a degree of awareness regarding the requirements of Article 6 of the echr, it is striking that the Supreme Court’s references to the right to access to court are limited to solid cases in which human rights have already been secured by the organization, or, given that the Austrian courts never inquire into the details of the alternative dispute settle-ment procedure, at least appear to be secured. Knowing that a passing concern does not hurt international relations, the Supreme Court stressed in a case against the Prince of Liechtenstein that, should access to the courts of Liechtenstein be denied, the human right of access to court would trump the rules on immunity before Austrian courts.54 In Austria, international organiza-tions have not been addressees of such reminders so far. With this in mind, the Supreme Court has accepted that the human right to court access has an impact on the scope of immunity. Relying on a scholarly opinion,55 the Supreme Court decided in the opec Fund Case that the immunity of an inter-national organization does not prohibit the “simple” service of a writ or sum-mons of a witness. It reasoned that it is a matter of the right to court access that such simple services or summons are permitted under international law, because the opposite would defeat the plaintiff ’s chances that the organiza-tion waives its immunity.56



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7 Conclusion

As a concluding remark, it can be observed that — generally speaking — the Austrian Supreme Court has no desire to create precedent by questioning the jurisdictional immunity of organizations based in Austria. The court takes the view that international organizations enjoy absolute immunity as long as they act within their assigned functions, the latter of which is assumed by way of a rebuttable assumption. References to the human right of access to court are only made in cases in which the court could easily approve the organiza-tion’s respect of Article 6 of the echr in the light of the organization’s judicial remedies placed at the disposal of the plaintiff. When reading the handful of decisions of the Austrian Supreme Court on the immunities of international organizations and their agents, one can hardly help but think that the Austrian judiciary acts sympathetically vis-à-vis the Austrian government, which may take an interest in a generous interpretation of immunity rules as this approach attracts international organizations in their choice of headquarters. Being a host state of international organizations such as the United Nations or one of its specialized agencies is, at the end of the day, prestigious within the interna-tional community of States.

Austrian Courts and the Immunity of International Organizations

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