Vol. 11 No. 2 (February 2001) pp. 74-76.

INTERNATIONAL ORGANIZATIONS BEFORE NATIONAL COURTS by August Reinisch. Cambridge: Cambridge University Press, 2000. 449 pp. Cloth $85.00. ISBN: 0-521-65326-6.

Reviewed by Wesley T. Milner, Department of Political Science, University of Evansville

In an increasingly interdependent world, international organizations appear to be playing a greater role in international relations. This is especially true in the wake of the recent protests concerning various high- profile institutions such as the IMF, World Bank, and the World Trade Organization. At the same time, we have seen global actors invoke public international law in a multitude of situations both at the national and international level. INTERNATIONAL ORGANIZATIONS BEFORE NATIONAL COURTS merges these two subfields in an impressive and comprehensive investigation. With reference to over 100 legal instruments (e.g., treaties, statutes, constitutions) and descriptions of over 300 individual cases, this research is indeed impressive not only in its approach but also in its scope.

August Reinisch is from the very beginning methodical in his examination of the actions and that national courts take in responding to disputes involving international organizations. Though brimming with legalistic terms in which practitioners will revel, the overall language employed is surprising lucid and understandable for the majority of general academics, if not laypersons. The volume is essentially separated into three large sections. The first part, which takes a very descriptive and objective path, lays out precisely how and why domestic courts either avoid involvement or seek to uphold jurisdiction over such disputes. Reinisch warns the reader early on to sit back, be patient and save questions of legal value, correctness and usefulness of the decisions until later in the text. The second section, which is indeed more normative in nature, attempts to answer these questions as to why courts abstain and why they assert their jurisdiction. The final and abbreviated section deals with future developments and his prescriptions for deciding actual issues of immunity. Overall, the segments are well organized with extensive subheadings throughout. With scores of cases (most of which are summarized succinctly) interspersed throughout, the sometimes- ethereal nature of the subject is reduced to a manageable form.

In the opening chapter, the author goes to great length to define key terms such as international organizations (essentially intergovernmental organizations), legal personality, immunity, and privilege. Here, he argues that international organizations consist "predominantly of states, created by international agreements, having their own organs, and entrusted to fulfill some common (usually public) tasks." Though some legal scholars and practitioners may bring extensive knowledge of these concepts to the reading of this book, the time Reinisch spends on this exposition is well spent.

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In the longest passage in the book, the second chapter describes in great detail the myriad techniques that states employ to avoid exercising their jurisdiction. Here, Reinisch describes various doctrines such as ULTRA VIRES, act of state, political questions, and non-justiciability. Though the author successfully makes the point that domestic courts frequently refuse to adjudicate cases, there is disproportionate space given to avoidance versus involvement. Having said that, the detailed discussion on various manifestations of immunity at the end of this chapter is well crafted and enlightening.

Chapter three continues the descriptive nature of the first section by examining the instances where national courts actually invoke their jurisdiction over disputes involving international organizations. At the core of this discussion is the question of whether organizations' potential immunity may deprive domestic tribunals of their judicial involvement. While on the surface this might appear to be rather straightforward, the author quickly shows that this can be very complex indeed. One such approach is to question the status of an entity (such as Interpol in STEINBERG v. INTERNATIONAL CRIMINAL POLICE ORGANIZATION) as an international organization as defined at the outset. Another strategy is to sufficiently recognize an international organization as a legal person under domestic law. The chapter concludes by addressing the outright denial of immunity, restricting the scope of immunity (especially in the case of functional immunity) and situations that would call for waiving immunity. Although provisions for waiving immunity are typically expressed in treaties and domestic legal instruments, the interpretation of these provisions is quite varied.

Chapters four and five respectively lay out the rationales for abstaining and asserting judicial involvement at the domestic level. This brings in the more political and policy relevant aspects of court deliberations. Though relatively brief, Reinisch provides the reader with objective and insightful evaluations of the issues usually surrounding these immunity cases. On the abstention side, the concerns for international organizations involve lack of territory, equality of member states of an international organization, the protection of functionality and independence, and the relative weakness of these organizations. Turning to the more active role of state courts, the author makes a number of strong arguments as to which justifications are appropriate. One functional reason proposes limiting immunity as a way to enhance the creditworthiness of international organizations. This approach (though not widely employed) would intuitively increase the probability that private parties would enter into contracts with international organizations. At the end of this chapter, Reinisch provides an excellent examination of the timely and complex issue of human rights and constitutional limits. In an era of increasing discussion of an international criminal court and a viable human rights regime, this is perhaps the most interesting section.

Part III, which is much more prescriptive in nature, suggests how courts should approach international organizations and determines whether they should exercise their adjudicative power or rather refrain from taking a more active role. The author is very deliberate in logically building from the case law in Part I and the rationales for and against adjudication in Part II. Essentially, the most persuasive rationale for inaction is the protection of the independent

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functioning of international organizations. However, the right of court access by individuals is also important in the argument for adjudication. Ultimately, Reinisch proposes a number of interesting solutions to the immunity problem such as finding a functional immunity standard below absolute immunity. This could be analogous to restrictions to diplomatic and consular law. By employing a "result-oriented" immunity, the functioning of international organizations could be preserved.

In short, Reinisch provides an impressively comprehensive examination of a rather neglected aspect of public international law. Though his organization and logic must be commended, the technical nature and length of the book makes this work most applicable for specialized legal scholars and practitioners. It would also serve as an excellent reference on the subject if the index were not so meager.


Copyright 2001 by the author, Wesley T. Milner.