The jurisdictional immunity of international organizations before the Brazilian Supreme Federal Court
Resumo
In the immediate aftermath, the other courts proceeded to apply the thesis, but a recent ramification may be cause for concern, since the Superior Labour Court has extrapolated this precedent, applying it to foreign States as well.
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See Supreme Federal Court: ACI 9703. Isabel Fatima de Andrade v. International Civil Aviation Organization, (1989); AI 468.498. José Orlando da Silva v. Organization of American States (2004); RE 488.746. United Nations and other v. Rosane Dorneles Vasconcelos (2018); AI 625.963. United Nations v. Alzira Alves Duarte Vaz (2016); CC 7930. 5th Federal Court of Rio Grande do Sul v. Superior Labour Court (2015).
https://nacoesunidas.org/agencia/pnud/
BRAZIL. Supreme Federal Court. RE 578.543, Rapporteur Ellen Gracie, Drafter: Teori Zavascki. Brasilia, DF, 2014.
BRAZIL. Supreme Federal Court. RE 597.368, Rapporteur Ellen Gracie, Drafter: Teori Zavascki. Brasilia, DF, 2014.
Precedent 416- SBDI-1 reads as follow: Immunity of jurisdiction. International organization or organism. (DEJT Released on February 14, 15 and 16, 2012) (maintained in accordance with judgment in case TST-E-RR-61600-41.2003.5.23.0005 by the Full Court on 23 May 2016): International organizations or organisms enjoy absolute immunity from jurisdiction when protected by international rule incorporated in the Brazilian legal order, and the rule of customary law regarding the nature of the acts performed does not apply to them. Exceptionally, Brazilian jurisdiction shall prevail in the event of an express waiver of the jurisdictional immunity clause.
On the existence of a general rule of international law vesting international organizations with privileges and immunities necessary for the fulfilment of their purposes, see Rosalyn Higgins, International Law and Avoidance, Containment and Resolution of Disputes: General Course on Public International Law. Collected Courses, (The Hague, 1991, chapter V) and the analysis presented by Edward C. Okeke, Jurisdictional Immunities of States and International Organizations (OUP 2018) p. 253-256.
Fernando Lusa Bordin argues that it is possible to apply to international organizations, by analogy, the rules of State immunity, being the starting point “that an OI enjoys the same level of immunity as the individual States on behalf of which it acts.” In Immunities of organizations under international law: Reflections in light of Jam v International Finance Corporation. To what immunities are international organizations entitled under general international law? Thoughts on Jam v IFC and the ‘default rules’ of IO immunity. Questions of International Law, p. 28.
European Court of Human Rights. Case of Waite and Kennedy v. Germany (Application No. 26083/94). Strasbourg, 1999, para. 59-74.
European Court of Human Rights. Case of Stichting Mothers of Srebrenica and Others v. the Netherlands (Application. No. 65542/12). Strasbourg, 2013, para. 163-165.
See African Development Bank v. X, Court of Cassation. Appeal Judgment 04-41012, (2005 -France); Drago v. International Plant Genetic Resources Institute, Supreme Court of Cassation. Appeal Judgment No. 3718, (2007 - Italy); General Secretariat of the ACP Group v. Lutchmaya, Court of Cassation. Appeal Judgment No. C 03 0328 F (2009 - Belgium); Western European Union v. Siedler Court of Cassation. Appeal Judgment No. S04 0129 F (2009 - Belgium).
Pistelli v. European University Institute, Supreme Court of Cassation, Appeal Judgment No. 20995 (28 October 2005), Guida al diritto 40 (3/2006); ILDC 297 (IT 2005), translation provided in the International Law in Domestic Courts database, available at https://opil.ouplaw.com/page/212, reported by Massimo Iovane.
Drago v. International Plant Genetic Resources Institute (IPGRI), Supreme Court of Cassation, Final Appeal Judgment No. 3718 (19 February 2007), Giustizia Civile Massimario 2007, 2; ILDC 827 (IT 2007), translation provided in the International Law in Domestic Courts database, available at https://opil.ouplaw.com/page/212, reported by Alessandro Chechi.
Jam et al v International Finance Corporation, US Supreme Court (27 February 2019) No 17-1011.
In Brazilian procedure law, the extraordinary appeal is filed before the President or Vice-President of the court that has rendered the appealed judgment for a previous ruling on its admissibility. Brazilian Code of Civil Procedure, Articles 1029 and 1030.
See Superior Labour Court (Mandatory review/Appeal on action for relief from judgment) Brazil and United Nations United/Nations Development Programme (UNDP) v. Juraci de Ozeda Ala Filho, (2018) RO-22300-77.2009.5.23.0000; Superior Labour Court (Appeal judgment) Brazil and United Nations/United Nations Development Programme (UNDP) v. Cláudia Maria Serrador Capella, (2019) RR-10141-35.2004.5.10.0002; Superior Labour Court (Mandatory review/Appeal on action for relief from judgment) Brazil and United Nations/ United Nations Educational, Scientific and Cultural Organization (UNESCO) v. Rolane Elias Silva, (2019) ReeNec e RO-4064-06.2010.5.10.0000.
DOI: https://doi.org/10.5102/rdi.v18i1.7891
ISSN 2236-997X (impresso) - ISSN 2237-1036 (on-line)
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