© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
Association et al. will below further address the absence of an alternative effective legalremedy in this case.192. The District Court correctly recognised that according to the judgment of the EuropeanCourt of Human Rights states may not evade their obligations under the ECHR bytransferring powers to international organisations. The District Court did not refer to anyparticular legal consideration and it is very much the question whether that decision can betraced back to the cited judgment of the European Court of Human Rights. This evasion ofobligations under the ECHR is precisely what is happening in this case; the State of theNetherlands will not co-operate and refers to the United Nations. Then the State of theNetherlands asserts that the party it has refered to may not be sued on the ground ofimmunity. The District Court should never have followed that line of reasoning. The DistrictCourt goes on to say that the ECHR ‘appears’ to adopt the position that immunities ofinternational organisations are only reconcilable with Article 6 ECHR if a reasonablealternative remedy for protection of ECHR rights exists with the international organisationconcerned. By using the word ‘appears’ the District Court manifests an erroneous legalconsideration. The judgment of the European Court of Human Rights gives no cause toassume that the European Court of Human Rights has intended anything other than what wasexpressed in the judgment. The extension of the holding by the District Court should havebeen that the immunity of the United Nations in the present case is not reconcilable withArticle 6 ECHR and that the United Nations offered no reasonable alternative remedy for theprotection of the ECHR rights. After all, there has been no implementation of Section 29 ofthe Convention (for more than 60 years already). The District Court did not even addressSection 29 in this framework, which it should have done.193. At first instance and above the Association et al. has referred to the caselaw of the HogeRaad (highest court in the Netherlands). Where an alternative and effective legal remedy isabsent, the immunity of the international organisation should yield to the interests of theplaintiff (20 December 1985, NJ 1986, 438 (Spanish/Iran-United States Claims Tribunal). Inthat case it was further expressly held that the fact that the disputed conduct fell under thefunctional immunity posed no obstacle to the weighing of interests referred to above (seelegal consideration 3.3.5). Immunity was accorded in that case only because theinternational organisation in question provided an alternative and effective legal remedy(see legal consideration 3.3.6). In the judgment of the District Court The Hague, 28November 2001, NJkort 2002, 1, the Court also held that it had jurisdiction to hear the case© Van Diepen Van der Kroef Advocaten page 82 of 99
where an international organisation invoked its immunity but did not make available analternative effective legal remedy.Legal consideration 5.24194. The District Court elaborated further under legal consideration 5.24 on its earlier judgmentthat states may not evade their obligations under the ECHR by transferring powers tointernational organisations. The District Court held that there was here no question of anysuch limitation by transfer of powers as the United Nations were founded before the ECHRentered into force. This legal consideration is extremely mannered and appears to havebeen prompted by the desire of the District Court to maintain the immunity of the UnitedNations somehow or other. The District Court should have conducted a review on the basisof Article 6 ECHR and not by reference to a rule formulated by the District Court on thetransfer of powers. The District Court is now paying for the fact that it based itself on ajudgment that concerned attribution. In that case it was precisely states who were sued andnot the United Nations. Those states could not evade their responsibility by the transfer ofpowers but that is not the issue in the present case. It is the United Nations that are beingsued, after all. Nor is the consideration of the District Court correct that the legalconsiderations of the European Court of Human Rights regarding Waite and Kennedy do notapply to the United Nations.It is also incorrect to hold that the ECHR no longer applies because the United Nations werefounded before the ECHR entered into force. The following is of importance on this.195. The ECHR is not a treaty that fell out of the sky on the day of signature in November 1953.It is a codification of then current convictions of long standing concerning human rights. TheGovernments of the signatory States considered, inter alia:‘Considering the Universal Declaration of Human Rights proclaimed by the GeneralAssembly of the United Nations on 10th December 1948’and:‘that this Declaration aims at securing the universal and effective recognition andobservance of of the Rights therein declared’© Van Diepen Van der Kroef Advocaten page 83 of 99
- Page 32 and 33: ‘Darüber hinaus kann gefragt wer
- Page 34 and 35: the purpose would become subservien
- Page 36 and 37: exercise of their functions in conn
- Page 38 and 39: ) leads to a result which is manife
- Page 40 and 41: 90. The ICJ gave an Advisory Opinio
- Page 42 and 43: of functional necessity for immunit
- Page 44 and 45: 100. Even where the District Court
- Page 46 and 47: 105. The District Court referred un
- Page 48 and 49: necessary that change is there effe
- Page 50 and 51: 115. It is also incomprehensible th
- Page 52 and 53: consideration 3.3.6). Under legal c
- Page 54 and 55: desirable that national courts do n
- Page 56 and 57: evidence of the necessity of conduc
- Page 58 and 59: The whole point of the Genocide Con
- Page 60 and 61: prevent the genocide. Worse still,
- Page 62 and 63: 137. It was known at the UN - and b
- Page 64 and 65: 144. It is established as a result
- Page 66 and 67: 151. The Basic Principles provide t
- Page 68 and 69: Convention and the Geneva Conventio
- Page 70 and 71: uling of the European Court of Huma
- Page 72 and 73: torture must be accountable is not
- Page 74 and 75: is in that connection incorrect. Th
- Page 76 and 77: Ground of appeal 14178. The Distric
- Page 78 and 79: human rights treaties, ECHR and ICC
- Page 80 and 81: they rely for their effectiveness o
- Page 84 and 85: And also:‘Reaffirming their profo
- Page 86 and 87: eason enjoys immunity from jurisdic
- Page 88 and 89: the maintenance of international pe
- Page 90 and 91: is liable to become overly responsi
- Page 92 and 93: lack of jurisdiction of the Communi
- Page 94 and 95: would occupy in the hierarchy of no
- Page 96 and 97: 209. To conclude, the Association e
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where an international organisation invoked its immunity but did not make available analternative effective legal remedy.Legal consi<strong>der</strong>ation 5.24194. The District Court elaborated further un<strong>der</strong> legal consi<strong>der</strong>ation 5.24 on its earlier judgmentthat states may not evade their obligations un<strong>der</strong> the ECHR by transferring powers tointernational organisations. The District Court held that there was here no question of anysuch limitation by transfer of powers as the United Nations were founded before the ECHRentered into force. This legal consi<strong>der</strong>ation is extremely mannered and appears to havebeen prompted by the desire of the District Court to maintain the immunity of the UnitedNations somehow or other. The District Court should have conducted a review on the basisof Article 6 ECHR and not by reference to a rule formulated by the District Court on thetransfer of powers. The District Court is now paying for the fact that it based itself on ajudgment that concerned attribution. In that case it was precisely states who were sued andnot the United Nations. Those states could not evade their responsibility by the transfer ofpowers but that is not the issue in the present case. It is the United Nations that are beingsued, after all. Nor is the consi<strong>der</strong>ation of the District Court correct that the legalconsi<strong>der</strong>ations of the European Court of Human Rights regarding Waite and Kennedy do notapply to the United Nations.It is also incorrect to hold that the ECHR no longer applies because the United Nations werefounded before the ECHR entered into force. The following is of importance on this.195. The ECHR is not a treaty that fell out of the sky on the day of signature in November 1953.It is a codification of then current convictions of long standing concerning human rights. TheGovernments of the signatory States consi<strong>der</strong>ed, inter alia:‘Consi<strong>der</strong>ing the Universal Declaration of Human Rights proclaimed by the GeneralAssembly of the United Nations on 10th December 1948’and:‘that this Declaration aims at securing the universal and effective recognition andobservance of of the Rights therein declared’<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 83 of 99
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