ENTICO CORPORATION LTD v UNITED NATIONS,
EDUCATIONAL SCIENTIFIC AND CULTURAL ASSOCIATION AND ANOTHER,
D v H
Queen’s Bench Division,
Commercial Court
Tomlinson J
18 March 2008
The diplomatic immunity enjoyed by United Nations’ specialised organisations such as UNESCO does not contravene Art 6 of the European Convention on Human Rights (ECHR).
Shaheed Fatima (instructed by Gaby Hardwicke) for the claimant. The defendant did not appear and was not represented.
Christopher Greenwood QC and Jemima Stratford (instructed by the Treasury Solicitor) for the secretary of state for foreign and commonwealth affairs, as intervener.
The claimant was an English publishing company. The defendant was an international organisation that was one of the specialised agencies of the United Nations (UN). It had its headquarters in . The claimant alleged that in October 2005, it concluded with the defendant a contract for the production of a calendar. It further alleged that the defendant had failed to perform the contract, and it issued proceedings accordingly.
The relevant French authorities declined to effect service of the proceedings upon the defendant, on the basis that the defendant enjoyed diplomatic immunity in . The claimant obtained an order permitting service to be effected by an alternative method, namely first class post, but the defendant did not acknowledge service. The defendant denied the existence of any contract between the parties. The claimant applied for judgment in default. Article III, s 4 of the Convention on the Privileges and Immunities of the Specialised Agencies 1947, to which the was a party, provided that:
“The specialised agencies, their property and assets ...shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity...”
Section 6 of the United Nations (Immunities and Privileges) Order (SI 1974/1260), incorporated similar wording. The defendant was classed as a “specialised agency” under the Specialised Agencies of the United Nations (Immunities and Privileges) Order (SI 2001/2560), made pursuant to the International Organisations Act 1968. The claimant argued that the defendant’s immunity violated the claimant’s right of access to fair and public judicial processes under Art 6(1) of the ECHR.
MR JUSTICE TOMLINSON:
At the outset it should be stressed that the immunity given to the defendant had been given solely in order to comply with the ’s obligations under public international law, namely the 1947 Convention. It was an obligation owed to virtually the entire international community.
The 1947 Convention had to be interpreted in accordance with the principles codified in Arts 31–33 of the Vienna Convention on the Law of Treaties 1969, which required that a treaty be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the treaty’s object and purpose. Sections 4 and 5 of the 1947 Convention were clear, unequivocal and unconditional. They plainly required the parties to recognise and to give effect to a broad jurisdictional immunity possessed by each specialised agency.
There was no room for “reading down” the provisions of the 1947 Convention in order to take account of the provisions of the subsequent ECHR—a treaty which was binding upon only a minority of the parties to the 1947 Convention. The need to comply with the requirements of the ECHR did not excuse compliance with an earlier convention to which more states were party than were party to the ECHR. It was in the highest degree implausible that when the state’s party drafted and acceded to the ECHR they intended
thereby to place themselves in violation of their existing international obligations.
Their existing international obligations, owed to many more states than were party to the ECHR, required them to recognise and to give effect to a broad and unqualified jurisdictional immunity enjoyed by each specialised agency. It would therefore be surprising if Art 6 of the ECHR was intended to render that regime non-compliant, thereby plunging all states party to both the ECHR and the 1947 Convention into a position in which their obligations conflicted.
It was unnecessary to decide whether or not Art 6 of the ECHR was in those circumstances in fact engaged at all. In Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 All ER 113 Lord Hoffmann stated that “there is not even a prima facie breach of Article 6 if a State fails to make available a jurisdiction which it does not possess”. When the became party to the ECHR it possessed no jurisdiction over the defendant unless the defendant chose to waive its immunity.
Organisational immunity
Since recognition of the immunity of an international organisation was equally required by international law, there could be no reason for regarding that approach as not equally applicable to recognition of organisational immunity as it was to recognition of state immunity.
In this case it made no difference to the outcome of the application whether or not Art 6 was regarded as engaged or not.
His lordship turned therefore to consider whether, on the assumption that Art 6 was engaged, the grant of immunity to the defendant pursued a legitimate aim and if there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
His lordship referred to Al-Adsani v (2001) 34 EHRR 273 and held that compliance with obligations owed in international law was of itself pursuit of a legitimate aim. Furthermore, insofar as the 1974 Order reflected generally recognised rules of public international law on organisational immunity, which it did, it could not in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Art 6(1).
If therefore Art 6 was engaged there was no violation of the claimant’s Art 6 rights.
