Accountability of International Organization – International Law Association Report

The report, adopted at the Berlin Conference of the International Law Association (authors Malcom Shaw – Karen Wellens), provides a comprehensive account on the modes of implementation of international organizations’ accountability. As it observe, jurisdictional immunity represents a “decisive barrier to remedial actions for non-State claimants”.

While the report recognizes that jurisdictional immunities secure the independence and the proper functioning of international organizations, it stresses that the recognition of immunity before domestic courts could lead to a denial of justice, especially in absence of adequate alternative modes of dispute settlement. According to the report, “the problem lies in the precise delineation of the point beyond which influence and interference become undue”. In this regard, the report observes that, in some cases, national courts have exercised their jurisdiction on the ground of a limited scope of immunity.

However, it emphasizes that a functional approach should require to limit the scope of immunity to international organizations’ activities inherent or essential for their institutional purposes. In particular, it points out that “the principle of fairness towards parties dealing with IO-s and to other third parties affected by their activities calls for limited immunity, in the same way as that principle underpins restricted state immunity” . The report also stresses that international organizations should wherever possible waive immunity in order to contribute to the proper administration of justice.

 In this light, the report addresses the potential role of domestic courts in dealing with disputes involving international organizations by laying down the following principles:

1. Executive Heads of IO-s should waive the immunity of the Organisation if such a waiver is required by the proper administration of justice and would not prejudice the interests of the Organisation. In this connection, Executive Heads of IO-s should follow a restrictive interpretation of the situations where such waiver would prejudice the interests of the IO.
2. In cases which cannot be decided by domestic courts because there has been no waiver of immunity, the IO remains bound by its obligation to provide adequate alternative procedures for settling the dispute, and should faithfully comply with this obligation.