Entico Corporation Ltd v. UNESCO

The Entico Corporation Ltd, a private company based in the United Kingdom, filed a lawsuit before the High Court of the United Kingdom against the United Nations Educational Scientific and Cultural Association (UNESCO), a specialized agency of the United Nations headquartered in Paris.

The applicant sought compensation for the damages resulting from UNESCO’s failure to perform a commercial contract concluded between UNESCO and Entico. While it recognized that UNESCO is entitled to immunity from legal process pursuant to the 1947 Convention of Privileges and Immunities of the specialized agencies of the United Nations, it also pointed out that such immunity conflicted with its right of access to justice enshrined in Article 6 of the European Convention on Human Rights (ECHR). In the same vein, the applicant argued that the Specialized Agencies of the United Nations (Immunities and Privileges of UNESCO) Order must be interpreted in light of the 1998 Human Rights Act. Accordingly, UNESCO shall enjoy immunity from national jurisdiction to the extent that it had provided private parties with reasonable modes of dispute settlement.

The Tribunal dismissed the case, declaring that UNESCO was immune from the instant legal process. As it noted, the 1947 Convention clearly affords UNESCO with immunity from legal process except to the extent that UNESCO has waived its immunity. The Tribunal also underlined that Article IX, Section 31, of the 1947 Convention states that each agency shall provide appropriate modes of settlement of disputes arising out of contracts and disputes with private parties.

However, the Tribunal held that the enjoyment of the immunities granted to the specialized agencies does not depend on the compliance with the obligation of Section 31. The Tribunal interpreted the 1947 Convention, relying on the ordinary criteria of treaty interpretation laid down in the Vienna Convention on the Law of Treaties. In this regard, it emphasized that the ECHR has no significant impact on the interpretation of the 1947 Convention. In particular, “Sections 4 and 5 of the 1947 Convention are clear, unequivocal and unconditional. They plainly require the parties to recognize and to give effect to a broad jurisdictional immunity possessed by each specialized agency. There is in my judgment 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 is binding upon only a minority of the parties to the 1947 Convention”.

Referring to the case of Jonas v. Saudi Arabia, the Tribunal also stressed that the “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”. According to the Tribunal, the above principle – elaborated by national jurisprudence in the context of State immunity- is applicable to international organizations. When the United Kingdom became party to the ECHR it possessed no jurisdiction over legal process initiated against UNESCO, unless UNESCO had waived its immunity.

Furthermore, and despite of the above, the Tribunal highlighted that the grant of immunity to UNESCO pursues a legitimate aim and the resulting restriction of the applicant’s right to a judicial remedy is proportionate and reasonable. Jurisdictional immunities of international organizations are necessary to ensure their proper functioning. As underlined by the Tribunal, in the instant case, the applicant was not deprived of any mean of redress. Indeed, UNESCO had proposed to Entico to settle the dispute by instituting an arbitration according to UNCITRAL Rules. However, it did not accepted such proposal.