The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg

Abstract

International organizations are regularly sued before the Dutch courts. This should come as no surprise, since the Netherlands hosts no fewer than 33 of such organizations. While major cases date back to the landmark judgment in the Spaans v. Iran-United States Claims Tribunal case, the recent case of Stichting Mothers of Srebrenica et al. v. United Nations brought to the fore important unresolved issues which relate to the perceived conflicting obligations of states. On the one hand, States must accord immunity to international organizations; on the other, they must provide claimants with access to justice. Complicating circumstances in the Srebrenica case were the operation of the priority rule under Article 103 of the United Nations Charter, and the lack of alternative remedies against the United Nations. This paper highlights these unresolved issues, and considers how the courts interpret and apply the ‘functional immunity’ test. It then examines how to resolve the perceived tension between the obligations of states to accord immunity and to grant access to justice.