ESO’s Privileges and Immunities in its Host States
What are privileges and immunities and why does ESO need them?
Privileges and Immunities are guarantees granted to an international organisation to allow it to function effectively and independently in its host states, in ESO’s case Germany and Chile. They secure its operations in a given country regardless of the changes that might occur at local or national level, whether they are of political, economical or other nature.
International organisations are established by groups of sovereign states, and the privileges and immunities provide a highly convenient and widely adopted form of governance that protects the interests of those states. The international organisation status ensures that no individual member or host state is in a position to exert unfair influence, take undue advantage or draw undue benefits from activities jointly funded by its member states.
To ESO, as an international organisation, national legislation is replaced by an established set of internal rules and regulations that ensure its proper functioning, which in many cases incorporate or follow the national legislation of its Host and Member States.
These internal rules and regulations also take into account international recommendations, standards and best practices on safety, human resources, administration, technical requirements, environmental protection etc. The compliance of the organisation with such rules is monitored by independent international bodies such as the International Labour Organisation. Having a guarantee that an international organisation can function independently is an important consideration when it considers whether or not to establish itself in a country.
To which organisations do the privileges and immunities apply?
All international organisations (such as the United Nations and its specialised agencies, the World Health Organisation and its subsidiaries, the European research organisations such as ESO, the European Space Agency [ESA], the European Organization for Nuclear Research [CERN] or the European Molecular Biology Laboratory [EMBL], or international financial organisations such as the International Monetary Fund [IMF] or the World Bank etc.) enjoy a certain set of privileges and immunities. Chile is also a member of some of these organisations, which enjoy such benefits in other countries.
Apart from ESO and the other international observatories in Chile, Chile grants such privileges and immunities to those other international organisations in Chile, for example the United Nations Economic Commission for Latin America and the Caribbean (CEPAL) or offices of the International Labour Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO) and Pan American Health Organization (PAHO).
How do the privileges and immunities of ESO compare to other organisations in Germany and Chile?
The privileges and immunities that ESO and the other international observatories and organisations enjoy are within the usual framework and similar to what is granted to other international organisations in Germany and Chile.
What are the limits and constraints on privileges and immunities?
The privileges and immunities are neither unlimited nor without restrictions. As mentioned, the privileges and immunities are granted to enable ESO to perform its missions. For acts outside or unrelated to the scope of the official activities of the organisation, no privileges and immunities apply.
In Chile, the agreements under which ESO operates clearly state that ESO shall at all times cooperate with the Chilean authorities to facilitate the proper administration of justice, and ESO has a long record of honouring this commitment. The same obligation applies to ESO in Germany as its other Host State.
Even if privileges and immunities are exercised, the observatories in Chile are obliged to ensure observance of important and essential national Chilean regulations, such as those related to public health and labour legislation.
Privileges and immunities may not be abused and the Director General may waive the immunities in specific cases if the immunity would impede the course of justice in Germany or Chile.
What are the advantages for the host states?
In Chile the privileges and immunities are part of a set of rules put forward by Chile under which ESO agreed to come to the country originally and invested in the construction of the most extensive set of astronomical facilities in the world, and continues to do so.
In return, a host state enjoys several important benefits including guaranteed access to the facilities, creation of job opportunities for its nationals and contract possibilities for its industry, as well as exposure to unique, world-class facilities for its engineers, technicians and scientists and funds for programmes for local cooperation.
All of these benefits contribute to the economy of the country and to increasing the level of proficiency for people and companies alike working in science and technology. Significant contributions are also seen in education and science literacy.
How do the immunities affect the rules for local ESO staff in Chile?
Agreement has been reached between ESO and Chile that the ESO internal staff rules and regulations for Chilean staff locally recruited are harmonised with the essential principles and objectives of Chilean labour law.
As far as ALMA is concerned, immunities with respect to labour matters are generally not invoked. ALMA has always negotiated with its workers following strictly the Chilean Labour code and has done so in collaboration with various instances of the Labour Directorate.
How do the immunities affect access to premises?
The ESO premises in its Host States are inviolable in order to guarantee the undisturbed operations of the organisation. The Director General of ESO is the sole sovereign authority over the ESO premises.
As mentioned, the ESO Director General can in due consideration of the interests of the organisation waive the immunities in specific cases if the immunity would impede the course of justice. Past experience demonstrates that ESO collaborates with local authorities and has welcomed authorities onto the premises, including ALMA, following a request from Germany or Chile.