International Organizations before National Courts

By August Reinisch | Go to book overview

5
Reasons for asserting jurisdiction

The following discussion looks at the rationales that are or should be used by courts in asserting jurisdiction over international organizations. It will focus on the reasons for denying or at least restricting the jurisdictional immunity of international organizations as the major abstention rationale.

It starts with a contextual argument,1 and progresses via systematic reasoning2 to material policy grounds addressing the interests of international organizations3 and of third parties potentially affected by an organizations' immunity.4


Judicial protection as a public good sought by and against
international organizations

The availability of judicial assistance to safeguard one's rights can be viewed as a 'public good' sought not only by individuals against international organizations,5 but also by international organizations in asserting their rights against individuals. Further, the jurisdiction of domestic courts is in the interest not only of an individual or organization seeking their assistance but may also be in the broader interest of the forum state in exercising jurisdiction as a manifestation of public authority.

In Arab Monetary Fund v. Hashim (No. 3),6 where the judicial protection of

____________________
1
Making sense of immunity qualifications. See pp. 253ff below.
2
Encroachment on territorial sovereignty and higher degree of integration. See pp. 254f below.
3
Enhancing the creditworthiness of international organizations. See pp. 255ff below.
4
Fairness to third parties and human rights – constitutional limits. See pp. 262ff below.
5
See pp. 280ff below as to a potential right of access to courts.
6
Chancery Division, 9–12 October, 14 November 1989; Court of Appeal, 26–27 March, 9 April 1990; House of Lords, 26–28 November 1990, 21 February 1991.

-252-

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International Organizations before National Courts
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface xi
  • Acknowledgements xiii
  • Table of Cases xvii
  • Table of Legal Instruments lv
  • Abbreviations lxv
  • 1 - Purpose, Subject and Methodology of This Study 1
  • Part I - Descriptive Analysis 33
  • 2 - Avoidance Techniques 35
  • 3 - Strategies of Judicial Involvement 169
  • Part II - Policy Issues 231
  • 4 - Rationales for Judicial Abstention 233
  • 5 - Reasons for Asserting Jurisdiction 252
  • Part III - Future Developments 315
  • 6 - Do National Courts Provide an Appropriate Forum for Disputes Involving International Organizations? 317
  • 7 - Conclusions 391
  • Bibliography 394
  • Index 444
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