A imunidade de jurisdição das organizações internacionais perante os tribunais domésticos: estudo dos casos reunidos no acervo Oxford Reports on International Law ‒ International Law in Domestic Courts

Abstract

International organizations are subjects of public international law created by sovereign states to jointly face common challenges. For their independent and efficient functioning, their creators usually grant them privileges and immunities, such as immunity from jurisdiction. Although these benefits are provided for in treaties, the implementation of immunity rules before the courts of the various States Parties is marked by interpretative differences and adaptations. The systematized study of cases gathered in the Oxford Reports on International Law/International Law in Domestic Courts collection seeks to clarify how the jurisdictional immunity of international organizations has been applied by national courts, whether it is possible to identify patterns and trends, and which factors are relevant for the recognition or rejection of the benefit. The systematization sought in the present research organized the decisions of domestic courts under different parameters, such as the type of legal relationship underlying the dispute, preponderant ratio decidendi, and procedural issues, providing cross references that would allow the identification of trends and thus anticipate how an invocation of immunity would be decided in a given domestic jurisdiction. It was possible to confirm that domestic courts are deeply divided when faced with the litigant's right to have his case decided by an impartial tribunal and the international obligation undertaken by the State-judge to observe the immunity from jurisdiction granted to the organization by treaty. In some jurisdictions, there has been a tendency to make the enjoyment of immunity conditional on the existence of an alternative means of dispute resolution, notably regarding labor or private law. In other States, the application of treaties or domestic legislation prevails, admitting only the exceptions provided for therein, regardless of whether this situation may result in denying the plaintiff access to justice. On a third side, there are the courts willing to limit the scope of immunity by resorting to its functional nature and restricting its incidence to acts deemed indispensable to the organization's independent operation, or by applying the doctrine of relative immunity, thus ruling out the prerogative in discussions about acts of a purely commercial nature.