Johnston v. Secretariat Pacific Regional Environment Programme

The instant proceeding is the first case in which a court of Samoa addresses the issue of international organizations’ immunity.

The case originated from an employment dispute instituted against the Secretariat Pacific Regional Environment Programme (SPREP) by a former employee of the latter organization. SPREP filed a strike out motion to the Supreme Court, invoking its immunity from jurisdiction. The former employee argued that SPREP has waived its immunity by the terms of the employment contract (the service agreement), which provided that it “shall be governed by the laws of Samoa and subject to the jurisdiction of the Samoan Court|” and that “The Parties shall cooperate to carry out their obligations in good faith and shall endeavor to resolve any disagreement in an amicable manner, including through the use of mediation conciliation processes, prior to taking Court action.”

The Supreme Court firstly underlined that, at the domestic level, the matter is regulated by the Diplomatic Privileges and Immunities (Declared International Organisation) Order 1998, which provides that an international organization shall have immunity from suit and legal press except insofar as it has expressly waived its immunity in any particular case. According to the Supreme Court, the terms of the service agreement concluded between SPREP and the former employee entailed a waiver of SPREP’s jurisdictional immunity. In support of its conclusion, the Supreme Court relied on the case of Standard Chartered Bank v. International Tin Council, in which the United Kingdom’s High Court of Justice interpreted the choice of law and forum clause contained in the contract concluded between the Bank and the International Tin Council as an implicit waiver of the immunity of the latter organization.

As a result, the Supreme Court held that Samoan courts have jurisdiction to her the claims advanced by the former employee.

The Court also addressed the relationship between international organizations’ immunity and the individual right to a remedy. Relying on the jurisprudence of the European Court of Human Rights established in the case of Waite and Kennedy, the Court affirmed that granting jurisdiction immunity to international organizations does not infringe the right of access to a judicial remedy to the extent that alternative remedies exist. In addition, it highlighted that “it is not enough to point to alternative means. Such means must also be reasonable”. In the instant case, alternative means of dispute resolution existed. However, as stressed by the Court, SPREP did not sufficiently demonstrate in the proceedings that the internal dispute resolution mechanisms (mediation and conciliation) were adequate to provide effective protection. Therefore, the mere existence of dispute resolution mechanisms is not sufficient to justify the request to dismiss the claim brought against an organization.