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In three previous articles I briefly touched on the establishment and immunities of international organisations. In this article, I will examine an international organisation’s immunity from jurisdiction and execution in more detail in light of the relatively recent judgment in the Gauteng Division of the High Court in Pretoria in the matter of African Development Bank v TN 2019 (2) SA 437 (GP).
The vast majority of international organisations are created by multilateral treaties (ie, a constituent or establishing agreement) concluded between states. International organisations are, therefore, products and subjects of public international law and they are bound by the fundamental principles of that body of law (see International Court of Justice (ICJ) decision in the Reparation for Injuries Suffered in Service of the UN, Advisory Opinion, [1949] ICJ Rep 174 at 179 and the ICJ’s Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep 73). The establishing agreement, inter alia, clouds the international organisation with its own legal personality, sets out the functions and goals of the organisation, as well as the structures and powers through which these are to be achieved.
The establishing agreement usually confers immunities on an international organisation based on ‘functional necessity’ to preserve and ensure the independence of the organisation and to enable it to fulfil its functions to prevent any unwarranted interference from the host state. It includes jurisdictional immunity (eg, ‘from every form of legal process’) that is a procedural bar to the jurisdiction of domestic courts rather than exemptions from substantive law. This suggests that, substantively, local law remains the applicable law but that the local court is the wrong forum to apply it (Chanaka Wickremasinghe The jurisdictional immunities of international organisations and their officials (PhD thesis, London School of Economics and Political Science, 2003) at 64). International organisations also enjoy immunity from execution. Their premises and archives are also usually inviolable as any measure of constraint against its funds, property and assets could prejudice the international organisation in the exercise of its functions and jeopardise its independence (see Guido den Dekker ‘Immunity of the United Nations before the Dutch courts’ (www.haguejusticeportal.net, accessed 31-8-2020)).
An international organisation’s immunity has, unlike state or diplomatic immunity, and with few exceptions (ie, treaty-based explicit exceptions), remained absolute (see Mothers of Srebrenica et al v State of the Netherlands and United Nations (case no 295247, 10-7-2008); Den Dekker (op cit) at 4; Eric de Brabandere Measures of Constraint and the Immunity of International Organisations (Leiden University – Grotius Centre for International Legal Studies, 2018) at 7).
The facts of the African Development Bank case are briefly that Ms TN obtained an emoluments attachment order (EAO) against her husband, one EN, an employee of the African Development Bank (the bank), from the Clerk of the Maintenance Court. The bank then brought an application in terms of s 28 of the Maintenance Act 99 of 1998 to have it rescinded and set aside, arguing inter alia, that it enjoyed immunity. After the rescission application had been rejected, the bank appealed to the High Court.
In its judgment, the court, per Kollapen and De Vos JJ, referred to art 52.1, 52.2 and 53.1 of the Agreement Establishing the African Development Bank, as well as art 4.1 and 4.2 of the agreement establishing a regional office of the bank in South Africa (SA). For the sake of brevity, the relevant articles will not be quoted herein.
The court held in sum as follows –
It is noted that the court made no mention in its judgment of s 232 of the Constitution, which provides that ‘[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. In terms thereof, the court was required to consider international law and prefer an interpretation that accords with international law (see Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 (CC) at para 5).
The court also did not have regard to the Vienna Convention on the Law of Treaties of 1969 (Convention). In the Law Society case it was held at para 36 that, although SA is not party to the Convention, it is bound by some of its major provisions and that decisions of the ICJ confirm that such major provisions (ie, articles on interpretation doctrines and the good faith doctrine) amount to a codification of customary international law (see para 38 of the Law Society case; World Bank Group v Wallace 2016 SCC 15 (Canadian Supreme Court) at para 47).
In my view, an EAO constitutes a measure of constraint taken against the bank and serving such an order would violate its immunity from execution. The court was, however, correct in holding that the sums, which were the subject of the EAO were owed by the bank to TN. Therefore, the attachment targets TN’s claims and are not strictly speaking funds of the bank itself. However, in the case of garnishee proceedings, the bank correctly relied on its immunity from jurisdiction to challenge the EAO. I submit that, even if TN’s interests would prima facie outbalance those of the bank – because the bank itself was not a party to TN and EN’s dispute – the court should have upheld the bank’s claim to immunity (ie, from ‘every form of legal process’) in terms of the EA and agreement establishing a regional office.
This happened in Atkinson v Inter-American Development Bank 156 F.3d 1335 (DC Cir. 1998), decided by the US Court of Appeal for the DC Circuit. In this case, the former wife of a staff member of the international organisation had attempted to attach (through a garnishee order) the salary of her ex-husband who had failed to pay alimony and child support. After the international organisation invoked its immunity, the DC Court of Appeal ruled that international organisation’s immunity is absolute. A similar approach was taken by the Court of Justice of the European Union in Tertir-Terminais de Portugal SA v Commission of the European Communities (case no C-1/04 SA, 14-12-2004) regarding an application for authorisation to serve an interim garnishee order on the Commission of the European Communities.
I submit that a proper interpretation of customary international law should have led the court to conclude in the bank’s case that the Maintenance Court lacked jurisdiction to entertain TN’s application for an EAO. Moreover, the bank’s seemingly absolute immunity from execution also prevented the Maintenance Court from attaching the bank’s funds to give effect to TN’s application.
Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (UJ) is a former Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (IL) of DIRCO, and currently a consultant at Malan & Hitge Attorneys in Pretoria.
This article was first published in De Rebus in 2021 (March) DR 16.
