Duhalde, Mario Alfredo c. Pan American Health Organization-World Health Organization Pan American Sanitary Bureau
OPINION OF THE ATTORNEY GENERAL OF THE NATION. -I. The Appeals Chamber of Labour (Room VIII)-by reference to the opinion of the prosecutor confirmed degree resolution rejecting the argument of the actions to challenge the ability of the Justice of the Nation to understand in these proceedings .
Specifically, he argued that modern concept of immunity of jurisdiction "in the current state of foreign rule regarding compliance with labor and pension obligations, limited to acts of government. She merit, moreover, indispensable nature of the natural jurisdiction, which, he said, particularly the Upper Body sought shelter on the assumption that such food credits (CFSE fs. 290 / 2).
II. Against that decision, concluded the defendant federal action (pages 295/313), which was awarded to fs. 317.
III. In short, says: a) the limited immunity from jurisdiction is proper and not foreign states organisms international b) the absolute nature of the immunity was expressly recognized organization operated in international treaties signed by Argentina, c) that the doctrine of failure Manaut [ED, 182-235] is not applicable to the case because State itself and be available to the plaintiff adequate alternative avenues for resolving your complaint; d) international treaties that immunity basement of the defendant, take precedence over any subsequent law by rule of art. 75, inc. 22 of the Constitution, obstando hence the analogy with the law 24,488 [Edla, 1995-A220], and e) the lack of unilateral immunity of the Pan American Health Organization, matter a violation of international commitments assumed by Argentina.
IV. In so far as relevant, it is noted that the actor, an official of the Pan American Health Organization-World Health Organization Pan American Sanitary Bureau, sued her (now) former employer under the provisions in the arts. 2, 8, 9 and related provisions of law 24,028 [Edla, 1991-1171], and the item 610.1, 625 (Section 6), 720.1, 720.2.1, 730 and 780 (Part 7) of the Regulations for staff of that organization (pages 3 / 5 and 7 / 9). Reported
action, was filed by invoking the privilege of immunity from jurisdiction (pages 13/14), which was dismissed with shelter, centrally, in the doctrine of precedent Manaut ... (Pages 48/49).
Intifada, later to answer the complaint (see fs. 74), opposed plea, he reiterated his claim of immunity of jurisdiction and, in substitution, answered the complaint (pages 88/107). Rejected
the proposals of the international organization, with protection, essentially on the cost and complexity of the internal complaint process of the WHO-PAHO become non-existent in practice court access (cfse. fs. 254/257) , appeal (Pages 262/268) was refused for the reasons detailed in the initial item in this opinion.
V. In my opinion, the special appeal is formally derived. This is true whenever the statement in crisis has challenged provisions of a federal nature (Article III, Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations), and the decision has relapsed was contrary to the law that they founded the appellant (see, in that sense, art. 8 of the Basic Agreement between Argentina and PAHO - WHO Institutional Relations and Immunities of 1984 and the previous published Faults, 305:2139, 2150, and 1109 SCM, L. XXIX, Maruba SCA c. Maritime Company Itaipu s / compensatory damages by February 5, 1998, among several others).
Regarding decisional finality of the appeal, VE has argued, repeatedly, that for the purposes set forth by the art. 14 of Act 48, final sentence is not only ending the lawsuit, but one with consequences frustratorias relied on federal law, because of late or impossible to repair later (see Faults, 300:1273, 303: 1708; 311 : 1414, 1835, 312:426, etc.) latter approach, applicable to the case, given that it decided to prevent the defendant in final form effectively enforce the immunity claim, the character of law which requires immediate protection was supported by VE, among others in the record of failures, 305:2150 and 314:1368.
VI. Entering the consideration of the merits, I think it should be noted that, unlike what happens with foreign states (cf. cons. 8 th of Judge Fayt on the precedent of Errors, and SCS 317:1880 No 304 L . XXXIII, Saravia, Gregory v. International Cooperation Agency of Japan, cons. 7, from 1 September 1998 [ED, 182-553]), if any treaty relating to the application of international organizations such as the respondent (v . Convention on the Privileges and Immunities of the Specialized Agencies, adopted by Resolution 179 of the General Assembly of the United Nations on 21 November 1947, approved by Decree-Law 7672 of September 13, 1963).
In this case, the respondent company, a member of the WHO (World Health Organization) under the provisions of its constitutive status-v. Constitution of the World Health Organization, arts. 44 and 54, adopted by Law 13,211 of June 30, 1948 - and is, in this way, one of the specialized agencies referred to in art. 57 of the Charter of the United Nations (conf art. 69 of the aforementioned constitution, agreement of 24 May 1949 between the WHO and OPS-in effect since July 1, 1949 -, and art. 1, item II, ap. g) of the Convention on the Privileges and Immunities of the Specialized Agencies).
In such conditions, it is achieved by the provisions of art. III, sec. 4 th of the Convention, which states that the property and assets of the agencies referred enjoy immunity from jurisdiction except express waiver (see also sections 5 and 6 of Art.), Being required, under it, to provide appropriate procedures for the settlement, among others, the races ... to result in contracts and other disputes of private character to which agency is a party specialized ... (See art. IX, Section 31). It also provides a mechanism for consultation between the organization and the State deemed to have been engaged in an abuse of immunity, and, in cases where it fails, an appeal by the International Court of Justice (see art . VII, Section 24 of the Convention).
To this is added, both the Agreement between the Government of Argentina and the Pan American Sanitary Bureau Concerning the Establishment of an Area Office in the City of Buenos Aires, 21 August 1951 (art. 6 ) and in the subsequent Basic Agreement between the Government of Argentina and PAHO - WHO Institutional Relations and Benefits and Immunities, dated November 9, 1984, (see arts. 4, item d, 6th, 8th, 9th and 43), with nature, for this purpose, treaty based, it also provides that prerogative court. As stated in art. 8 of the Convention of 1984: The organization and its property and assets anywhere in the hands of any person, shall be immune from all administrative and judicial. (See also Arts. 3 and 21), however note that, given the lack of compliance with the mechanism provided for in art. 39, the agreement has not yet entered into force.
That being said, obvious that, although closely related, there are two issues under discussion: a) the scope of immunity enjoyed by the respondent organization-particularly in light of recent decisions of the High Court on this matter, b) the possible disqualification of the claimant to the jurisdiction.
VII. The immunity from jurisdiction, understood as the exemption for reasons specific to the law of nations, the compulsive submission to the courts (see cons. 8 of the judges vote and Guastavino Gabrielli Trouble in the foregoing, 305:2150), is an old principle of international law, originally referred to the States and foreign diplomats, and later, international bodies such as the one at hand.
While
profiles, with respect to the obligations of foreign states, have been adjusted to modern international practice from previous Errors, 317:1880, repeated later in Saravia (see above appointment) have not been, however, strictly speaking, recently redefined by the High Court in regard to agencies like the one we considered, beyond the glimpses provided thereon to fail because Maruba ..., in which, according I think its special obstaron to address the subject of greater breadth and generality. (This, without prejudice to appreciate the warning imposed Petracchi judge in order that the lack of homogeneity of these organizations, among each other and from the States becomes highly specific immunities and variables. Consids. 8 and 9 of the vote of the judge in that above).
Regarding the first issue "waiver of sovereign states is obvious neglect by the former High Body notion of absolute immunity for the relative immunity or restricted, a trend later receipted even legislatively ( SCC v. L. 24,488 and 131, L. XXXII, Cereals Asunción, LLC v. National Shipping and Ports of the Republic of Paraguay s / damages, breach of contract, 29 September 1998 [see Journal of Constitutional Law of 28 June 2000, Judgement 70], the aforementioned Saravia and, indeed, the precedent of Errors, 317:1880, which opened this case). More
this adaptation of the prerogative, I believe, it is not, without more, it covers these other international subjects, since in that frame if it was, finally, to reinterpret in the light of modern international practice a principle of law of nations, lacking general reception in a treaty-v. appointments above opening paragraph of Item VI-in this case, as noted, relates to examine the scope of judicial immunity, both multilaterally and bilaterally agreed upon by the competent organs of the State respect of a specialized agency of the United Nations and the Organization of American States, namely the Pan American Health Organization (v. art. 129, OAS Charter, the Protocol of Buenos Aires, 05.23.1950 Agreement and ut supra item VI).
In this regard, perhaps this is appropriate to bring up the thoughts of Dr. Petracchi, then Public Prosecutor before the House Civil and Commercial and Federal Administrative being released to give an opinion on cars Saier, SRL c. Joint Technical Commission of Salto Grande, on 8 June 1979 (v. LL, 1979-D-489), where, after review American jurisprudence according to which ... is not proper to deny courts an immunity which our government has seen fit to bestow, or grant immunity based on new grounds that the government has not seen fit to recognize ..., notes that: the underlying seems, therefore, the view that the welfare of nation also depends on the complex decisions of the powers to conduct foreign relations ..., no one can deny the political character of these decisions and the complexity of the situations that attempt to resolve, especially if they are critical. Judicious conclusion, then, confer on this matter some autonomy to the aforementioned powers, especially if his conduct reveals that the immunities in question have not been granted the benefit of individual staff some, but for the best performance of a public ... Therefore, without prejudice, and, in appropriate consideration in terms of reasonableness (p. cfse.. 493 of the publication mentioned above).
And is that although this immunity historically been set for sovereign states, since, strictly speaking, they concern only the two principles on which crystallized around the exemption, namely, the top pair synthesized in non parem habet imperium and of nonintervention in the internal affairs of other states being precisely the principle that sovereignty based all-encompassing that it is virtually impossible, however, with regard to international bodies who extended analogy, the identification of a general correlation that allows to refer to them, to paraphrase the appellant, by transitive property, this prerogative court to the same extent that States, allowing also render dispensable individual consideration by the bodies responsible for external relations of the State in its execution (see cons. 8, vote Petracchi judge in the case mentioned above).
VE As already noted, the ability of an intergovernmental organization to have rights and duties to other individuals depends on the common will of the states that have created (Errors, 305: 2139 and 2150) and not by its mere existence has derived from the privilege of immunity from the jurisdiction of third countries (cons. 6, ...); Maruba especially when, as noted by the judge Petracchi, this mosaic of ... accidental creations appear, many Sometimes, as the result of empirical arrangements that meet specific needs without preconceived ideas, where ... their legal status is often sui generis, established ad casum casu ... And their rights and duties depend upon their purposes and functions as specified or implied in its constituent documents and developed in practice (also of Judge Petracchi, cons. 8 º).
All this, in my view, prejudice to an assimilation of the this hypothesis in terms of the aforementioned Manaut ... (V. Failures, 317:1880), since in the case of an exemption multilaterally and bilaterally agreed upon by the competent bodies of the National (see ut supra item VI)-question, it is worth emphasizing, that has not been called into question in the case a possible appreciation of these instruments against immunity (except as indicated leaving the Headquarters Agreement) would, in my opinion amen to the above, inconsistent with the tenets of the arts. 75, inc. 22 and 99, para. 11 of our Basic Law, which adds to the ignorance of the principles governing international diplomatic relations no other outcome that would lead to the isolation of our country in the comity of nations.
These principles, as revealed Gabrielli and Guastavino judges to rule on the previous published Failures, 305:2150 (v. cons. 7), especially competent to VE, since that in addition to safeguard the full realization of the Constitution also has the duty to preserve the interests of prudence the stability of valid international agreements concluded by Argentina as the law of nations, base and livelihood security in the community of nations and which is solemnly engaged the public faith. Similarly
sense, more recently, VE particularly emphasized the caution with which to act in cases corresponds to a greater or lesser extent, affect the international relations of the Republic (Failure, 314:1368) and ruled in favor of those findings consistent with the present demands of cooperation, harmonization and integration of Argentina international has made its own, eliminating the possible liability of the Federal Government for the acts of their internal organs (see Faults, 316:1669).
See in this regard, the provisions of the Vienna Convention on the Law of Treaties, adopted by Law 19,865 [ED, 47-1019], ratified by National Executive on 5 December 1972 and came into force on January 27, 1980 -, in my opinion referable to this under the provisions of the arts. 2, ap. 1. item a) and 5 of that convention (Faults, 316:1669), among others, in their arts. 26 (pacta sunt servanda: "Every treaty in force is binding upon the parties and must be performed by them in good faith) and 27 (A party may not invoke provisions of its internal law as justification for breach of a treaty) and the specific in this regard are the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, introducing a new system of state control versus a year eventually abuse of privileges and immunities by one of these entities (art. VII, sec. 24 of this Convention.)
addition to this, and notwithstanding the warning targeted in order of entry into force, it is noted that the aforementioned Treaty of 1984-See beyond the commitment of PAHO to collaborate with the competent authorities to prevent any abuse arising in connection with the privileges and immunities provided in the agreement provides for any disputes which may arise between the government and health organization regarding its interpretation or application, a binding arbitration mechanism involving action by a board consisting of a arbitrator appointed by each party and third party appointed by the International Court of Justice (unless agreed a different method), having agreed, in addition, the final acceptance of delivery (see arts. 20, 38).
The Headquarters Agreement and the requirement of particularized art. IX, Section 32 of the Convention, adopted by Decree-Law 7672/63, which provides that all disputes concerning the interpretation or application shall be submitted, unless otherwise agreed to the International Court of Justice, which shall proceed according to art. 96 of the Charter of the United Nations and 65 of the Statute of the Court, court whose opinion will be accepted as decisive.
On the other side, and following the above postulates about the arts. 75, inc. 22 and 99, para. 11 of the C. National is not idle remark that, as the VE is ... the more delicate mission of justice is to be known to maintain, within the scope of its jurisdiction, without affecting the functions of the other branches (Fault, 311 , 2553), as well as ... that trial judges cautious about the scope of its jurisdiction, is where the best fruits to be expected in order to good governance of the Nation ... (Cfse. Failures, 310:112, among several others).
Added to this is that, beyond the controversies raised about the relationship between the notion of sovereign immunity as belonging to foreign States and their analogy on these very diverse international subjects (see consids. 8 and 9 of Judge Petracchi in the aforesaid Maruba), the fact is that VE, in consid . 6 of that precedent, has made explicit his view that the distinction between acts jure imperii and acts jure gestionis, base of the restricted theory on immunity from jurisdiction of States, no reasonable sense when you consider the acts performed by an organization as the respondent (in this case, Itaipu Binational) which, without prejudice to the public purposes pursued by each of the members of the treaty establishing-scored-not an immediate and direct expression of the sovereignty of a State (see cons. 9, para. 2, vote Petracchi judge in the case mentioned above).
VIII. Completed, then the existence of an absolute exemption for the international organization, is imposed to consider the question concerning the possible deprivation of the right to jurisdiction as a result of the above, could affect this case the actor.
Regarding this, it should be noted that, as Your Excellency has stated repeatedly, in our constitution there is a real right to jurisdiction. This right, which integrates the defense at trial, is in the effective possibility to occur before a competent court-judicial, administrative or arbitration which shall provide all reasonable actions leading to a full defense of the individual and their rights, which can talk, strictly speaking, the right of defense or because process without the presence of a court, according to legal proceedings, give a direction for actions to enforce effectively straightened individual rights (see Errors, 246: 87, 305:2150, 311:700, etc.) .
In this sense we can say that the Constitution support the rights embodied in its provisions, particularly in the case, that labor and social security reflects the arts. 14 and 14a gives assume the existence of technical remedies necessary to ensure that the inhabitants of the nation its full and effective enjoyment, because otherwise, they imported abstract statements worthless.
That conclusion, in my view, is supported by various provisions of international law, all with the rank conferred by Art. 75, inc. 22 of the Constitution in which the emphasis is on effective protection of the rights and freedoms, such as the arts. 55 of the Charter of the United Nations, 8 and 10 of the Universal Declaration of Human Rights, 2, incs. 2 and 3, item a) and b) and 14, the International Covenant Civil and Political Rights, 2, ap. 1, the International Covenant on Economic, Social and Cultural Rights, Article 18 of the American Declaration of the Rights and Duties of Man, and 8 of the Pact of San José de Costa Rica, among others (consids. 21 and 22 of Judge Fayt in Errors, 317:1880).
In terms of this issue, and reviewing the treatment that has given-in terms of this intergovernmental VE these subjects, it is noteworthy that the criterion to define if applicable exempt them seems to have been far-left safe recognition immunity of the fact, precisely that is safeguarded the right of any claimant jurisdiction.
Indeed, it is clear, at least, precedents Errors, 303:2033, 305:2139, 2150, 314:1368, 316:1669, and the aforementioned causes Maruba (v. cons. 8 º) repeatedly referenced.
And this retraction compulsive trial by courts established in favor of certain international organizations, both in the doctrine of VE as international standards themselves, is conditioned on the entity in question, provide appropriate procedures for the solution , among others, to strife arising out of contracts and other disputes of private law in which specialized agency is a party ... (Cfse. art. IX, section 31 of the agreement approved by Decree-Law 7672/63).
Otherwise, the treaty would come into open collision not only with the guarantees enshrined in art. 18 of the Constitution, but also with a peremptory norm of general international law (jus cogens), which establishes the enforceability of private law disputes, which in accordance with the provisions of art. 53 of the Vienna Convention on the Law of Treaties, would render it void ab initio (Bugs, 305:2150, cons. 9 to 11 vote of the judges Gabrielli and Guastavino, and cons. 8 of Maruba). (On the nature of the treaty approved by Law 19,865, CFSE. Failures, 316:1669).
precisely notice that the existence of that road and the lack of documentary evidence that would have been prevented the plaintiff, determined the fate of the previous grievances recorded in the publication of Errors, 303: 2033 and 314:1368, his absence, the 305:2150 Fault, and its existence, the Bug, 316:1669 (in a similar vein, SCG v. No. 57, L. XXXII, Ghiorzo, John J. c. Joint Technical Commission of Salto Grande, from 1 April 1997).
Accordingly and pursuant to, in the case is imposed to determine whether there is available to the actor, provided by the organization, an appropriate procedure for processing your claim, particularly in light of the opinions expressed in this regard by the judge of merit.
IX. Prior to examining this purpose the internal regulations of the organization, I think it should be noted that although the actor at the time of founding his letter of fs. 59/62, claim to be a national employee of the OPS (see art. 1, item 1.13 of the Staff Regulations), this assertion contradicts his initial presentation, which relied on the international staff as the respondent (in fact , it is clear from the presentations of fs. 3 / 5 and 7 / 9-founded the latter in the Staff Rules and in light of the provisions of art. 1, item 12 of the Statute).
Subject that the determination of the substantive law governing the issue is beyond the topic certainly under consideration, I must point out that quality was reported to also be the contrary, among other occasions fs. 88/107 and the judge to rule in fs merit. 254 / 7, not having objected to the claimant fs opportunities. 246 / 9 and fs. 260 / 1, apart from that not-nor was invoked with the respective instruments of national official or employee to resist the alleged immunity on the occasion of fs. 33 / 4. Omitted, on his side, shipments of evacuating remedies fs. 262 / 8 (see fs. 277) and fs. 295/313 (v. fs. 316) and therefore, I believe, agree with that characterization fits international civil servant, at least temporarily, in order to settle the point for which we are called.
X. Returning to the considerations in the final paragraph of paragraph VIII of this opinion, it should be noted that under the provisions of Section 12 of staff regulations (item 1230.1), members of the organization may appeal any administrative action or decision concerning their status of officials under the conditions set out in item 1230.7 and for the reasons listed in the item 1230.1.1 to 1.4. Understand
in that challenge a Board of Appeal (see Item 1230.2), composed in the manner set in item 1230.4, which shall report its findings and recommendations to the Director, who shall have the final decision in accordance with item 1230.3, resolution for which there is still a resource, that pending the establishment of the definitive procedure before the UNAT (Court United Nations Administrative) is for the ILOate (Administrative Tribunal of the International Labour Organization) (item 1240.1 and 2) organization, the latter of which our country is a party under the provisions of L. 11722 (For these instruments: v. fs. 141: Staff Rules and Regulations; fs. 173/93: Rules of Procedure before the Court of Appeals of the WHO, and fs. 194 / 223: Rules and Regulations of the ILO Administrative Tribunal. (Regarding the former, also added C Documentary evidence of the plaintiff). This procedure, I must point out, as expressed by the accompanying-driven, inclusive, the relevant records (see fs. 224/42) and did not deny the contrary (see fs. 246 / 9) - was used at least twice by the actor, who, moreover, at any time alluded to this fact, nor did wrong on the characteristics of their bodies or procedures.
In such conditions, existing available to the complainant an internal road within the organization, I believe that the doctrine referable Court set forth in the preceding occasion to decide Errors, 303:2033 and 314:1368 in order not to have mediated the depletion of the administrative internal body and no evidence that he had been prevented from actor, to meet the subject of the claim, his job.
To this must be added, particularly against the judge said grade because-I repeat such circumstances were not invoked by the actor, which is not noticeable, as the judge referred to the complexity and cost of the road to the point of making non-existent in practice court access, a claim that virtually only based on the eventual necessity of having to pay the necessary transfers for their appearance.
case is noted, however, that the provision of art. XI, Section 12, Item 1230.6, the Staff Regulations and Rules, which implicitly referred Ms. Judge, provides that the appellant may, if desired, to appear before the board, either in person, either through mediation a representative or accompanied him, and that travel costs for the hearing shall be borne by the appellant, unless the appeal board that meets on the matter consider essential to appear for a proper consideration of the case, what adds that this body may recommend full or partial payment of the costs claimed by the official having a direct connection with the resource.
It follows that the personal subpoena is not a prerequisite and if so will be borne by the defendant, which, moreover, added to what has already been authorized to dispose of it concerned an occurrence to the domestic organizational or distressed chimeric diplomat (Errors, 317: 1880).
Consequently, after ruling out the possibility that justified Troubleshooting, 305:2150 and, again, not having been constitutionally challenged the founding treaties of the Organization or revealed circumstances justifying such as solutions Errors, 303: 2033 and 314:1368, we can only infer that the immunity from jurisdiction enjoyed by the Pan American Health Organization - World Health Organization - Pan American Sanitary Bureau, without prejudice to consideration of this claim by the Argentine courts (doctrine of Errors, 316: SCG 1669 and No. 57, L. XXXII, Ghiorzo, Juan José c. Joint Technical Commission of Salto Grande RH, cited above).
XI. As outlined above, I consider that the sentence should be reversed in appeal was the subject of an extraordinary appeal. March 31, 1999. - Nicolas Eduardo Becerra.
Buenos Aires, August 31, 1999. - Having regard to the present: Duhalde, Mario Alfredo c. Pan American Health-World Health Organization Pan American Sanitary Bureau s / accidenteley 9688.
Considering: 1 That Room VIII of the National Labour Court of Appeal, in upholding the decision in the previous instance, rejected a plea by the defendant deducted sustained in the privilege of immunity from jurisdiction. Against that ruling, filed an extraordinary appeal granted fs. 317.
2 nd May to decide and the court took into account with reference to the Attorney General ruled by Labour that the present case was substantially similar to the cause Manaut, in which the Supreme Court to adhere to the restricted theory on immunity from jurisdiction of the prerogative decided to exclude all matters relating to compliance with labor and pension obligations.
3 ° That the appellant argues, in essence, that the judicial doctrine emanating from the ruling Manaut (Faults, 317:1880) is not applicable to this case, being characteristic of a foreign state and international agencies not to exist available to the plaintiff adequate alternative avenues for resolving your claim.
4 That resolution is comparable to that final question for the purposes of art. 14 of Act 48, since by their nature and their consequences, can frustrate the federal law invoked, bringing losses of subsequent repair impossible or delayed. The latter criterion is applicable to the case as the decision to deprive the appellant matter of immunity claims under the cover of an international character.
5 That the special appeal is formally recognized as it is called into question the recognition of immunity from jurisdiction of an international organization, which involves the interpretation of federal rules and the decision was contrary to the rights therein appellant has established the art. 14, inc. 3 of Law No. 48 (Failure, 305:2139 et al.)
6 º Do not be disputed in the case that the actor is of category official of the organization requested or that it is a specialized agency covered by the convention adopted by Resolution 179 of the United Nations General Assembly on Privileges and Immunities of the Specialized Agencies, which is part of Argentina, in With its approval by the Decree-Law 7672 of September 13, 1963. What is at issue, however, is whether it should extend the narrow interpretation of the right to immunity from jurisdiction under the doctrine of cause Manaut to international bodies like the defendant.
7 th May this Court has stated that the distinction between acts jure imperii and acts jure gestionis base restricted theory concerning immunity from jurisdiction of sovereign states, has no reasonable sense when you consider the acts performed by an international organization which, without prejudice to the public purposes pursued by each State Party to the Treaty establishing not make a demonstration immediately and directly to the sovereignty of a State (case M.1109 XXIX Maruba SCA Maritime Navigation Company v. Itaipu s / damages, resolved on 5 February 1998). Indeed, the ability of an international entity to have rights and duties to other individuals depends on the common will of the states that have created, and therefore have immunity or not jurisdiction, as to establish the respective constitutive treaties and, where appropriate, the headquarters agreements.
8 º That unlike sovereign states, limiting the prosecution compulsive international organizations, has no basis for the law of nations, but the common will of States party to the treaty establishing and therefore the entity enjoys that privilege with the scope defined in the international instrument of creation or, with respect to the host State in the respective headquarters agreement.
9 º That the Pan American Health Organization - World Health Organization and its officials enjoy in the territory of its member members, including Argentina, immune from any judicial or administrative process, except that such immunity is expressly waived, as provided in the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, adopted by Argentina by the 7672 Decree-Law. That immunity is specifically recognized in the Agreement between the Government of Argentina and the Pan American Sanitary Bureau regarding the establishment of an area office in the city of Buenos Aires, dated August 21, 1951, and was reiterated in the Convention protocol between the Government of Argentina and the Pan American Health - World Health Organization for Institutional Relations and Immunities of the August 9, 1984, which has not yet entered into force.
10. These agreements, as any treaty, must conform to the principles of public law contained in the Constitution (art. 27 of the Basic Law), and particularly, on what matters in this case, the right to demand for any dispute (art. 18 of the Constitution). Indeed, given that states could not agree on the organization for an absolute jurisdictional immunity, which leads to a denial of justice to the litigant, and it is essential makes the validity of the clause in the treaty establishing the immunity (doctrine of Errors, 305:2150) that the international organization has its own courts or international arbitration or jurisdiction, with reasonable assurance to administer justice in potential lawsuits. Recently, this Court has stated that the existence of a satisfactory alternative mechanism of dispute settlement is a precondition for recognition of immunity from legal responsibility of international organizations (Faults, 316:1669).
11. That, in this sense, the Convention on the Privileges and Immunities of the Specialized Agencies referred to the Assembly resolution 179 of United Nations, contains categorical terms about the need to establish appropriate procedures for resolving disputes arising out of contracts or other disputes of private law which is part of the specialized agency.
12. That the Regulations and the Staff of the Pan American Health Organization - World Health Organization provides procedures for resolving claims arising from the employment relationship with the organization. To that end, has established an internal process that includes review of the measure claim by an administrative body. The decision of this court can be appealed to the Administrative Tribunal of the International Labour Organization, external body whose jurisdiction has been recognized by various international agencies, including the defendant, whose decisions are binding on both parties.
13. That, consequently, can not validly claim a case of denial of justice because there is a procedure for dispute resolution can be highlighted was expressly accepted by the actor into an opportunity to appear before the Appeals Board, recognizing, therefore The jurisdiction of that court to resolve labor-related disputes you may have with the organization.
14. That, within this context, it is not reasonable question that the judges made the case to the adequacy of the procedures for settling disputes that may arise, to the extent that not only proved to be ineffective or not in practice, but it fit the plaintiff to enforce their rights effectively.
15. That because of the different foundations that support the granting of immunity from legal exception to sovereign foreign states and international organizations, as well as different ways of protecting the rights of the defendant in either case, not for extending the second case the solution to the national legislature law given to the first 24,488, based on the evolution of general international law regarding the principle of absolute state immunity (doctrine of Errors, 317:1880). Otherwise, via analog, unilaterally alter the immunity of international organizations have treaty requiring Argentina, with possible punitive consequences of the international community.
Therefore, and having ruled Mr. Attorney General, it is rather the special appeal, revoked the original ruling and admitted the privilege of immunity from jurisdiction. Costas on the order in response to the legal difficulties posed by question. Devuélvanse notifíquese and cars. - Julio S. Nazarene. - Eduardo Moline O'Connor. - Augusto C. Belluscio. - Henry S. Petracchi (according to my vote). - Antonio Boggiano. - Guillermo López AF. - Gustavo A. Bossert. - Adolfo Roberto Vazquez.
VOTE MINISTER DOCTOR SANTIAGO ENRIQUE Petracchi. - Considering: That the Board 1, VIII of the National Labour Court of Appeal, in upholding the decision of the lower court rejected the plea, with invocation of the privilege of immunity from jurisdiction, concluded the defendant. 2 nd May
against that ruling, the defendant filed an extraordinary appeal (pages 295/313) which was granted (pages 317) and is formally permissible because, unlike what was stated by the lower court in order to grant (see fs. 317 cited above), which the appellant claims is the recognition of immunity jurisdiction of an international organization established by federal regulations, and the decision of the case was contrary to the rights of those standards established by the appellant (art. 14, inc. 3, Act 48). 3 º
issues brought to the attention of the Court are adequate treatment in the opinion of the Attorney General, whose foundations and share findings and refer me because of delay, except as stated in paragraph V (first paragraph), in paragraph VII (paragraphs 8 to 15) and cites the precedent of failures, not subscribed 316:1669. Similarly, with regard to the mention made in this opinion Errors, 314:1368 and judgments in re: Maruba of February 5, 1998, Saravia, from 1 September 1998 and Cereals Asunción, 29 September 1998, I issued my opinion that apart from the majority, it shall, where appropriate, take into account the expressed there.
grounds, prevents car assimilate the situation to that considered by this Court to decide the case registered Manaut Errors, 317: 1880.
Therefore, and precisely match ruled by Mr. Attorney General, states from the special appeal and revoked the sentence. Costas on the order in response to the legal difficulties raised by this issue. Notifíquese and, ultimately, be refunded. - Henry S. Petracchi.
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