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By Dr Rishi Gulati, Associate Professor in International Law at the University of East Anglia Law School
1 Background
As the UN’s independent body charged with the progressive development and codification of international law, the International Law Commission (‘ILC’ or the ‘Commission’) helps to make international law clearer and more accessible. One such area of international regulation urgently requiring clarification concerns the ‘Settlement of disputes to which international organizations are parties’ (the ‘Topic’ or the ‘Project’). The Topic was proposed by Sir Michael Wood and put on the long-term program of work of the ILC in 2016.[ii] In 2022, the Commission decided to place the Topic on its current program of work appointing Professor August Reinisch as Special Rapporteur. Professor Reinisch, a leading expert in the area, has already delivered two reports. The First Report set out preliminary issues, including on the scope of the Project, and the Second Report focuses on dispute resolution between international organizations (‘IOs’) and other subjects of international law.[iii]
Expectedly, initial work has focused on certain core concepts. This includes the definition of an IO. As it stands, it has been defined as ‘an entity possessing its own international legal personality, established by a treaty or other instrument governed by international law, that may include as members, in addition to States, other entities, and has at least one organ capable of expressing a will distinct from that of its members.’[iv] It is immediately apparent that the Topic concerns public international organizations as opposed to other types of international organizations such as multinational corporations and non-governmental organisations.[v] Further, given the diversity of IOs, and the varied ways in which they legally interact with other entities, the Commission is not likely to produce a uniform outcome set out in ‘draft articles’. The aim is to prepare guidelines which can be accessed/adopted by IOs in their dispute resolution legal infrastructure and practices.[vi]
In this reflection, I make observations on the types of matters that ought to be contained in any future guidelines for them to be of most use (2). As to scope, any final guidelines should include guidance on disputes not just involving IOs and other subjects of international law, but also disputes between IOs an private persons (3). In respect of the latter, the ILC should expressly state that IOs have an obligation to provide dispute settlement mechanisms to private persons (natural or legal) they allegedly harm regardless of the type of dispute, and provide detailed guidance on the due process standards that must accompany such mechanisms (3.1). High-level guidance on issues of substantive law concerns can be of great benefit too (3.2). Finally, a brief comment on the role of national courts is made (4).
2 The need to tackle the Topic
Since its creation more than 75 years ago, the ILC has tackled some topics on IOs,[vii] but with varying degrees of success. For example, neither the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,[viii] nor the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character,[ix] have attracted sufficient participation, meaning that those treaties are still not in force.
In more recent times, using the ILC’s Articles on State Responsibility as a spring-board, the Commission developed the Articles on the Responsibility of International Organisations (‘ARIO’) in 2011.[x] While many have welcomed the ARIO, others have argued that the ILC should not have embarked on that project for there is a lack of sufficient practice that would have been necessary for the ILC to discharge its mandate of codifying and progressively developing the law in this area. One commentator pointed out:
[T]he ILC never offered convincing legal reasons for extending state responsibility rules to international organizations. Since the paucity of practice was widespread in the ARIO, and the Commission had to justify the drafting of these provisions upon policy considerations, commentators and ILC members have questioned whether the topic should have been undertaken by the Commission in the first place. The logic behind this criticism is that, absent a minimum amount of practice, the ILC would be forced to speculate as to the direction the law is headed and thus engage in an exercise that exceeds its mandate.[xi]
Moreover, a highly vexed issue pertaining to IOs relates to their jurisdictional immunities before national courts. This topic is presently in the ILC’s long-term work category,[xii] and it does not seem it will be tackled any time soon despite a relatively large amount of practice available on the issue. Thus, it may not be an overstatement to say that the ILC’s decision to work on the topic of the settlement of disputes to which IOs are parties is a brave one, given a somewhat mixed record in this sphere. Even though a project relating to IOs presents some risks in terms of achieving an impactful outcome,[xiii] it is right that the ILC tackle the Topic as a priority.
IOs are involved in more and more disputes because they are asked to perform an increasing number of activities. Naturally, this creates the potential for a much greater number of disputes involving IOs occurring. Purely from a practical perspective then, it is obviously advisable to find ways and methods to resolve such disputes in a peaceful manner. Given its expertise, reputation, independence and wait as a UN body, the ILC is best placed to help achieve this objective. But for its work to be meaningful and useful, the Project should address the most significant problems faced in the real-world as a priority.
3 Developing a meaningful product
If the ILC is to ultimately produce an outcome that is meaningful and useful, it is important that it considers the issues presenting the most significant challenges in practice. Accordingly, the scope of any project tackled becomes crucial. Delimiting the scope of the Project has limitations due to the nature of the Commission’s mandate. The ILC is only permitted to codify the rules of international law in fields where there already has been extensive practice and progressively develop international law ‘on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed’.[xiv] And crucially, the ILC is neither an academic institution nor a law reform body as such. Thus, strictly speaking, the Commission does not act as a legislator.
It is thus important to understand what the ILC is trying to do on the theme of IOs and dispute resolution in light of the confines of its mandate. If one simply looks at the title of the ILC’s Project: ‘Settlement of disputes to which international organizations are parties’, the impression is that the work is broadly framed with some inbuilt flexibility. According to this author, this is a desirable way to proceed for it is unwise to limit the types of issues the ILC will ultimately consider at this early stage. But how this flexibility is ultimately utilised would determine how meaningful the ILC’s work ends up being. As is discussed below, the ILC must ensure that it considers all types of legal disputes to which IOs are parties (3.1). And the Commission should provide detailed guidance on matters of procedure, as well as high-level guidance on matters of substance (3.2).
3.1 The type of disputes included within scope
Overall, IOs may be involved in disputes against (1) other IOs, (2) states (member and/or non-member states), or (3) natural or legal persons. The disputes in categories 1 and 2 above would tend to arise on the plain of public international law, and the ones in category 3 could arise under international or domestic law, assuming such a distinction is worth maintaining in the first place. Below, I make some observations on categories 1 and 2 (3.1.1) and category 3 (3.1.2), arguing that all of those three categories must be included in the ILC’s agenda.
3.1.1 Category 1 and 2 disputes
It has been uncontroversial that the ILC will be considering disputes in categories 1 and 2 (disputes between IOs (not as common) and between IOs and states (arising occasionally)) for these disputes arise on the plain of public international law.[xv] Consideration must be given to such disputes for the ARIO did not deal with the theme of dispute resolution, focusing instead on the secondary rules on IO responsibility for alleged breaches of international law. If there exist no viable adjudicative mechanisms where disputes involving IOs can be resolved, then the rules on IO ‘responsibility largely become theoretical for there is no forum where such responsibility can actually be invoked. For the Topic to focus on category 1 and 2 disputes is thus warranted, and constitutes low-hanging fruit.[xvi]
Indeed, in 2016, when Sir Michael Wood first suggested the Topic for the ILC’s consideration, it appeared that the Commission would limit its work to ‘international disputes’. I.e., disputes between IOs and IOs and states occurring purely on the plain of public international law.[xvii] In fact, the Topic was initially titled ‘Settlement of international disputes to which IOs are parties’ (emphasis added), with the word ‘international’ in the title suggesting a focus on disputes between an IO and another subject of international law.
With IOs having little access to international courts and tribunals, it is right for the ILC to consider the ways in which an IO’s ability to resolve its ‘international disputes’ using both judicialised (courts or arbitration) and non-judicialised (negotiation, conciliation, mediation, inquiry, etc) means could be enhanced. More specifically, some prominent issues to consider here are not novel. For example, should IOs be granted access to the International Court of Justice (‘ICJ’)? As of now, IOs do not have access to the ICJ in contentious cases.[xviii] The most prominent international judicial body is thus not open to them, albeit the court’s advisory jurisdiction (including the mechanism of a binding advisory opinion) may be accessed by some IOs.[xix]
In fact, the jurisdiction of the ICJ involving IOs has witnessed a decline due to the abolishing of that court’s review function relating to judgments of the Administrative Tribunal of the International Labour Organisation (‘ILOAT’) and the old United Nations Administrative Tribunal (‘UNAT’).[xx] Be that as it may, if the ICJ’s jurisdiction is expanded to include IOs, it is not difficult conceptual issues of international law that would prevent this from happening. One would need to focus on practical matters. For example, can we make a case for just relying on arbitral procedures to resolve the vast majority of disputes that IOs have with other subjects of international law, as opposed to expanding the ICJ’s jurisdiction, thereby increasing the latter’s case-load?
If arbitration is considered as the preferred model, then it would be crucial that for the sake of the legitimacy of the system, rule of law considerations in general, and transparency in particular, is guaranteed. The Permanent Court of Arbitration (‘PCA’) has adopted special rules on disputes involving IOs,[xxi] arbitration can of course be administered by other arbitral institutions,[xxii] as well as on an ad hock basis. Due to lack of transparency, it is very difficult, if not impossible to determine how often IOs actually use arbitration to resolve their disputes (it is most certainly higher than publicly available information suggests), and access to awards is limited to non-existent.[xxiii] Ultimately, IOs are international public authorities. When they get involved in disputes, at the very least, transparency in respect of any formal proceedings and outcome is crucial. In the present situation, arguably, an arbitral process is essentially substituting a court process. It is thus important that when it comes to issues of transparency, arbitral processes materially mirror the ones adopted by courts if the rule of law is to be embedded.[xxiv] This is one sphere where any future Guidelines by the Commission could make a real contribution. In the end, one may only look at the developments in the sphere of investment arbitration where transparency concerns have led to the development of treaties aiming to enhance the visibility of awards, as well as the documents generated during the arbitral process.[xxv]
On the other hand, if the ICJ’s personal and/or subject matter jurisdiction in contentious cases is expanded to include IOs, the question that arises is whether there is enough political will to bring about a change to the ICJ Statute? Moreover, even if an amendment to the ICJ Statute can be somehow brought about, given the ICJ’s rising case-load and the perennial resource-constraints that the UN system faces, is it wise to expand its jurisdiction at this time? If the answer the ILC reaches is in the affirmative, then surely, the budget of the ICJ may need to be expanded to deal with a potential increase in contentious cases.
It may very well be that ultimately, both international arbitration and the ICJ (as well as other courts and tribunals) could play a role in resolving disputes where IOs are parties, with some jurisdictional competition between those two modes of dispute resolution considered desirable. Indeed, draft guideline 5 provided in the Special Rapporteur’s Second Report states that ‘Arbitration and judicial settlement should be made available and more widely used for the settlement of international disputes to which international organizations are parties.’[xxvi] In the end, such matters are less about the codification and progressive development of international law, but more about the practicalities of where best to resolve disputes involving IOs.
3.1.2 Category 3 disputes
Whether or not the Commission will consider disputes between IOs and private persons (natural or legal persons) within the scope of the Topic has been somewhat controversial. Such disputes can arise in domestic law and are said to be of a ‘private law character’ (contract, tort, real or intellectual property, procurement, other types of commercial disputes, etc), or can have an international law dimension (disputes between IOs and their staff members resolved using international administrative law, other global administrative law disputes, human rights cases, etc). As was stated earlier, in 2016, the impression given was that the Commission would focus only on category 1 and 2 disputes. But as the First Report of the Special Rapporteur on the Topic observed:
The topic [was earlier] referred to as “Settlement of international disputes to which international organizations are parties”. This formulation leaves it open as to whether disputes of a private law character are included, but the reference to “international” disputes might be understood as not comprising such disputes. The Commission has been aware of this apparent limitation, which stems from the original formulation of the 2016 syllabus on the topic. Thus, it stated in regard to “disputes of a private law character” that “[c]onsidering the importance of such disputes for the functioning of international organizations in practice, it was presumed that the Special Rapporteur and the Commission would take such disputes into account”.[xxvii]
The fact that the title of the Project has now been changed from settlement of ‘international disputes’ to which IOs are parties to settlement of ‘disputes’ to which IOs are parties is a clear indication that the ILC intends to cover category 3 disputes too.[xxviii] The Special Rapporteur said in the First Report:
In practice, disputes of a private law character form a highly important part of disputes to which international organizations are parties. They raise numerous issues of international law, such as jurisdictional immunity or the obligation to make provision for appropriate modes of settlement provided for in various treaties. As already recognized by the International Court of Justice in its advisory opinion in the Effect of Awards case, the need to provide for dispute settlement methods in case of disputes with private parties may also have human rights implications. On the basis of the previous work of the Commission and other bodies, as outlined above, it also seems that, in practice, the most pressing questions relate to the settlement of disputes of a private law character. Thus, the Commission rightly suggested that such disputes should be considered. The Special Rapporteur shares those views. However, he also believes that the Commission should discuss and decide in the upcoming session whether disputes of a private law character should be addressed.[xxix]
Indeed, a perusal of the responses submitted by IOs and states to a Questionnaire sent to them in connection with the Topic confirms that the most common disputes belong to category 3.[xxx] This author believes that there is little point in tackling the Topic if category 3 disputes are not included within its scope. Thus, the Project tackling category 3 disputes is a very positive development that should be welcomed.[xxxi] The most important thresh-hold question here concerns how one defines disputes of a ‘private law character’? The answer to this question is crucial to work out the types of disputes that fall within this category.
Disputes arising out of contracts freely entered into between two or more parties, where the status of any of the parties as a public entity ought to be irrelevant to the characterisation of the legal relationship, are clearly of a private law character.[xxxii] Here, one must focus on the nature of the transaction as opposed to its purpose.[xxxiii] Similarly, tortious disputes arising out of motor-vehicle accidents, or for that matter any other scenario where the law of tort is manifestly applicable, are classifiable as arising in private law too. Further, other types of classically commercial disputes are less likely to present problems of characterisation either.
However, where disputes are easily susceptible to multiple characterisations, complexities arise. As several recent mass claims against IOs have demonstrated (the Srebrenica and Haiti cholera cases against the UN, the lead poisoning case against the United Nations Mission in Kosovo, and the Jam case against the International Finance Corporation).[xxxiv] , the same set of facts can raise claims both in domestic law (contract or tort) or international law (international human rights law, international humanitarian law, or even the law of the IO concerned).[xxxv] It is these types of cases that create most conceptual difficulty, and determining with absolute precision how such claims are to be characterised is next to impossible.
In many situations, the same set of facts will give rise to alternative causes of action with a party choosing to characterise its claims based on its own interests,[xxxvi] such as its preferred forum’s subject matter jurisdiction (shoehorning a claim), and the remedies that may be ultimately obtained. Therefore, an effort to determine the already blurry distinction between public and private law claims may end up being futile. Further, in disputes involving IOs, the one certainty is that at least one party to the dispute will always be a public entity. Namely, the IO suing or being sued. There will thus tend to be present a degree of ‘publicness’, making the public v private distinction even harder to make.
As is discussed below, a much more fruitful way could be to distinguish between questions of forum and applicable law, with the former concerning the place where a dispute may be resolved, and the latter on the subject matter of the dispute regardless of the identity of the adjudicating forum. While this discussion is of general application, it is especially relevant for category 3 disputes which may present especially difficult classification problems.
3.2 Delineating between issues of forum and substantive law
In disputes involving IOs, one key reason why there seems to be so much focus on trying to work out what is a claim of a ‘private law character’ stems from Article VIII, Section 29 of the General Convention (and similarly framed treaty provisions).[xxxvii] In part, it states: ‘The United Nations shall make provisions for appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party…’. Here, issues of forum and substantive law are mixed up. The words ‘appropriate modes’ deal with questions of forum, and the phrase ‘private law character’ goes towards classifying the dispute in a substantive sense. Brief observations on each of these matters are made below.
3.2.1 Issues of forum
On questions of forum, two things are relevant. First, whether a forum is provided, and second, its quality. On the former, one could be left with an impression that the UN (or another IO subject to similar treaty arrangements) obligation to provide ‘appropriate modes’ of dispute settlement only arises in contractual cases, or in other disputes of a ‘private law character’.[xxxviii] This impression is misleading.
As was considered elsewhere, an IO’s obligation to provide for ‘appropriate modes’ or ‘reasonable alternative means’ of dispute resolution (access to justice obligation) to private parties is surely not just limited to private law claims.[xxxix] The reason for the imposition of such an access to justice obligation on IOs is to ensure a fair trial for private persons wishing to raise claims against IOs, where such persons are unable to approach national courts due to IO immunities.[xl] By and large, IO immunities bar all types of claims being raised against IOs before national courts, may they be of a public or private nature. Logically, the access to justice obligation thus ought to have a broad import, applying with respect to both, so called private or non-private claims. And this obligation can be rooted in direct treaty language, in a round-about way via the operation of international human rights law (especially the right to a fair trial),[xli] or in some cases, it can even be based on domestic constitutional guarantees.[xlii]
In the end, regardless of how the access to justice obligation on IOs is operationalised, in one way or another, it exists. This is one area where the ILC could clarify the law based on the existing legal situation, and if necessary, engage in progressive development. A statement by the ILC to the effect that under international law, IOs must provide an appropriate mode of dispute resolution to private actors allegedly harmed by their conduct regardless of the nature of the claim is much needed.
Second, it is one thing to provide access to a forum, but yet another to ensure the good administration of justice. The word ‘good’ in this context has the same meaning as the terms ‘appropriate’, ‘reasonable’, or ‘adequate’ dispute resolution mechanisms. All those things mean the same thing. Regardless of the forum chosen or what it may be called, what actually matters is whether the chosen forum is able to deliver justice independently, impartially, fairly and transparently. In other words, in line with the right to a fair trial and broader rule of law requirements.[xliii]
It suffices to say that if the chosen forum is a permanent court or tribunal, it must be set up in a way that it is able to provide a fair trial expected from a modern judicial institution. If the choice of forum is arbitration, then the arbitral procedure should be able to deliver a fair trial in compliance with human rights standards, especially noting the need for affordability, transparency and enforceability of awards.[xliv] Especially in respect of category 3 disputes where factual inequalities between IOs and individuals may be stark, detailed guidelines by the ILC on the characteristics that make a forum adequate could be most useful. The emphasis placed by the Special Rapporteur in his Second Report on rule of law considerations vis-à-vis category 1 and 2 disputes is to be especially welcomed.[xlv] This is a strong indication that such matters will be looked at even more closely in category 3 disputes where human rights considerations are of immediate applicability.
3.2.2 Issues of substantive law
It is not certain if the Commission will consider the question of substantive law within the scope of the Topic. I.e., the substantive standards used to decide the merits of claims involving IOs. This could be a strategic decision made to avoid getting bogged-down in difficult terrain. Such an approach is not unknown. If one looks at the ongoing reforms being pursued to the international investment law regime, even though a significant problem relates to the lack of clarity of substantive standards, UNCITRAL seems to be focusing on matters of procedure and forum only.[xlvi] In the context of disputes involving IOs as well, not considering substantive issues in detail may be a pragmatic approach. However, it would be crucial to provide some high-level guidance for this is an issue that is in real need of clarification.
A distinction could be drawn between the content of the applicable law, and which law applies in a given dispute as such (international, national or institutional). It is on the latter issue where clarification could realistically be provided. In this respect, there seems to be an assumption that disputes involving IOs either arise at the national or the international level, with the former in private law and the latter in international law. Of course, if any such assumption is made, it should be questioned. No such strict dichotomy can and should be made. As was said, the same set of facts can give rise to alternative causes of action in domestic and/or international law which in theory, can be raised at a domestic and/or an international forum, of course subject to questions of an adjudicative body’s personal and subject matter jurisdiction.
Moreover, as IOs possess their own international personality, disputes involving IOs are ones where three legal orders can in fact interact, namely, national, international, and institutional, with each of those orders possessing their own regulatory capacities and limitations. Accordingly, a dispute involving an IO could attract the application of international law, national law, institutional law, or even a combination of the above. Because questions of forum are different from questions of applicable law, they can be considered distinctly. Thus, the first step is to clarify the IO’s access to justice obligation, and the quality of forum that ought to be provided (see 3.2.1 above). The second task is to focus on questions of applicable law.[xlvii] Doing so helps us avoid conflating issues of forum and applicable law.
In the present context, determining questions of applicable law does not necessarily require considering the content of the applicable substantive law for this would be a very exhaustive and difficult exercise. But it could simply involve clarifications/guidelines on:
· which subject matters are or should be governed by the law of the IO itself (achievable);
· the type of choice of law clauses IOs do or could enter into in their contractual relationships (achievable);
· whether the rules of private international law need adjustment in claims against IOs in tortious disputes (somewhat difficult but achievable); and
· to what extent IOs are bound by international human rights and international humanitarian law (difficult and perhaps not achievable within the context of the Topic).
These matters would require considering not just public international law but also private international law questions which the ILC can do. Article 1(2) of the ILC’s Statute relevantly provides that the ‘Commission shall concern itself primarily with public international law, but is not precluded from entering the field of private international law.’ Where public and private international law increasingly interact in general, and closely interact in disputes involving IOs in particular, the ILC should not shy away from entering the realm of private international law if high-level questions on applicable law are to be properly considered. If the Commission fails to do so, it will be left to others to undertake this task.
4 The role of national courts?
What role national courts ought to play in disputes where IOs are parties is the elephant in the room. Again, this issue is especially relevant to category 3 disputes as national courts are unlikely to play a role in adjudicating category 1 and 2 disputes. IO immunities are immediately relevant. The subject of IO immunities is in the long-term work program of the Commission, so only three brief observations of immediate relevance to the Topic are warranted. First, where IOs fail to provide appropriate modes of dispute settlement to private parties, while some national courts are willing to take jurisdiction on access to justice grounds, many others refuse to do so. It is important to clarify when international law allows a national court to take jurisdiction over an IO. This requires balancing access to justice with institutional independence. Refined regulatory coordination between the national and institutional orders is thus needed. Without such regulatory coordination, confusion will continue to plague the field. The need for public and private international law to work together with a view to coordinate regulatory authority between the institutional and national legal orders in claims involving IOs is crucial.[xlviii] Any future guidelines by the Commission could greatly help set the parameters in this sphere.
Second, as immunity from adjudication can operate differently from immunity from enforcement, the Commission ought to provide some guidance on the type of contractual clauses, or rules and procedures that could be adopted to ensure that decisions/awards rendered in claims involving IOs are actually enforceable. Finally, there is nothing stopping an IO and another disputing party expressly agreeing to resolve their dispute before a competent national court. As I canvased elsewhere, national courts are perfectly capable of resolving claims involving IOs expertly.[xlix] Accordingly, the Commission could also provide guidance on the use of national courts where an IO is willing to access them as a preferred forum to resolve a particular dispute, or a category/s of disputes, instead of creating or providing an alternative forum.
5 Conclusion
The Topic’s consideration is in its early stages. Any judgment on its success cannot yet be made. However, an attempt was made to highlight just some areas where the Commission could turn its mind to. It is to be welcomed that the Commission will consider all types of disputes to which IOs are parties, including disputes between IOs and private persons. Further, questions of forum should be distinguished from questions of applicable law. Detailed guidance on issues of forum and procedure should be provided, with the Commission clarifying that IOs must provide appropriate modes of dispute settlement to private persons it allegedly harms regardless of the character of a dispute. High-level guidance on applicable law is also desirable. Finally, the elephant in the room is the role of national courts. There is only a limited amount that can presently be done on the role of national courts given the scope of the Topic. Overall, the Commission has a golden opportunity to lay down comprehensive Guidelines that IOs can adopt/access in their dispute resolution practices. In the end, success would depend on the level of participation IOs and states are willing to offer during the course of the Topic’s consideration, and eventually, the adoption of any future guidelines into institutional rules and practices.
Footnotes:
[i] Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister, Victorian Bar (Australia).
[ii] Sir Michael Wood, ‘The settlement of international disputes to which international organizations are parties’, Yearbook of the International Law Commission, 2016, vol. II (Part Two), p. 233 (annex I).
[iii] See August Reinisch, ‘First report on the settlement of international disputes to which international organizations are parties’, ILC, Seventy-fourth session (3 February 2023) (‘First Report’); August Reinisch, ‘Second report on the settlement of disputes to which international organizations are parties’, ILC, Seventy-fifth session (1 March 2024) (‘Second Report’).
[iv] Draft guideline - Use of terms, subparagraph (a), contained in Statement of the Chair of the Drafting Committee, ‘Settlement of international disputes to which international organizations are parties’, ILC, Seventy-fourth session (25 May 2023), p. 5. The First Report, Ibid, para. 83, included an initial proposal for the 'scope of the draft guidelines' and the 'use of terms”' which can be further developed as the work progresses; see also, Titles and texts of draft guidelines 1 and 2 provisionally adopted by the Drafting Committee, Settlement of international disputes to which international organizations are parties, ILC, Seventy-fourth session (15 May 2023).
[v] Nowadays, public and private international organisations can face similar challenges: see generally, Rishi Gulati and Philippa Webb, The legal accountability of transnational institutions: Past, present and future, 34(3) King's Law Journal (2023) 411-424.
[vi] Reinisch, First Report (above n 3), para. 27.
[vii] Ibid, para. 11: ‘In the past, the Commission has not directly addressed questions concerning the settlement of disputes to which international organizations are parties. However, it has worked on topics related to dispute settlement and international organizations, in particular their status, relations with States, treaty-making and responsibility.’
[viii] 21 March 1986, not yet in force.
[ix] 14 March 1975, not yet in force).
[x] ILC, Articles on the Responsibility of International Organizations, with Commentaries, Doc. A/66/10 (2011), available at, https://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf
[xi] See, Nikolaos Voulgaris, The International Law Commission and Politics: Taking the Science Out of International Law’s Progressive Development, 33(3) European Journal of International Law (2022) 761-788, available at, https://doi.org/10.1093/ejil/chac051
[xii] See, https://legal.un.org/ilc/programme.shtml
[xiii] Lorenzo Gasbarri, ‘Try Again, Fail Again, Fail Better’: The International Law Commission is back on International Organizations, EJIL:Talk (2023), available at, https://www.ejiltalk.org/try-again-fail-again-fail-better-the-international-law-commission-is-back-on-international-organizations/
[xiv] See Article 1 and 15 of the Statute of the International Law Commission (ILC Statute), GA Res. 174 (II), 21 November 1947.
[xv] See generally the responses by states and IOs in the context of the work on the Topic contained in the Memorandum by the Secretariat, Settlement of disputes to which international organizations are parties, ILC, Seventy-fifth session (10 January 2024); see also, Reinisch, Second Report (above n 3), paras. 15-16.
[xvi] See generally, Reinisch, Second Report (above n 3).
[xvii] Ibid, para. 22.
[xviii] See Article 34 of the Statute of the ICJ.
[xix] See Wood (above n 2), paras. 9-14; also see, Reinisch, Second Report (above n 3), paras. 97 and 133.
[xx] See Rishi Gulati, Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders (CUP, 2022), section 1.4.3.
[xxi] PCA Optional Rules for Arbitrations Involving International Organizations and States, available at, https://docs.pca-cpa.org/2016/01/Optional-Rules-for-Arbitration-Between-International-Organizations-and-States-1996.pdf
[xxii] See especially, August Reinisch, Arbitrating disputes with international organisations and some access to justice issues, 34(3) King's Law Journal (2023) 546-561, available at, https://www.tandfonline.com/doi/full/10.1080/09615768.2023.2283236
[xxiii] There has been some recent clarity on the statistics at least with respect to the PCA. The PCA states that it has 'administered all three types of disputes identified in the Commission’s questionnaire, namely: (a) disputes between international organizations and private parties; (b) disputes between international organizations and States; and (c) disputes between international organizations...disputes in group (a) are the most common. As of 25 April 2023, PCA has acted as registry for 49 claims brought by private parties against international organisations. PCA has administered two disputes falling within category (b), i.e., between States and international organizations, and three disputes falling within category (c), i.e., between international organizations. As of 25 April 2023, PCA has administered a total of 54 disputes involving international organizations across a variety of methods of dispute settlement, and acted as appointing authority in 34 disputes over the same period (and 21 in the last 10 years)': see Memorandum by the Secretariat (above n 15), p. 53; also see especially, Reinisch, Second Report (above n 3), paras. 55-56 and 84.
[xxiv] The indications are so far positive. Draft guideline 6 is titled 'Dispute settlement and rule of law requirements'. It states the 'means of adjudicatory dispute settlement made available should conform to the requirements of the rule of law, including the independence and impartiality of adjudicators and due process': Reinisch, Second Report (above n 3), para. 247.
[xxv] See the chapters by Rishi Gulati and Patricia Schoeffmann, UNCITRAL’s work in investor-state dispute settlement: promoting the rule of law internationally? 140-160 and Jeremy Shelley, The Mauritius Convention and UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 161-176 in Rishi Gulati et al (eds), The Elgar Companion to UNCITRAL (Edward Elgar, 2023).
[xxvi] Reinisch, Second Report (above n 3), para. 247.
[xxvii] Reinisch, First Report (above n 3), para. 22.
[xxviii] See, https://legal.un.org/ilc/guide/10_3.shtml
[xxix] Reinisch, First Report (above n 3), paras. 24-25.
[xxx] See Memorandum by the Secretariat (above n 15).
[xxxi] Reinisch, Second Report (above n 3), para. 2-3.
[xxxii] Gulati (above n 20), section 1.4.1.1.
[xxxiii] Ibid, section 5.3.2.
[xxxiv] These cases are discussed at Ibid, sections 1.4.1.1 and in chapter 4 (pp. 131-167).
[xxxv] Ibid, section 5.5.2.1.
[xxxvi] For example, according to the UN, its characterisation of a claim can limit its obligation to provide access to justice to private persons it allegedly harms. According to the UN, just because a claim is in tort, it does not follow that the claim is automatically a ‘private’ one triggering its treaty obligation to provide for appropriate modes of dispute settlement: see Memorandum by the Secretariat (above n 15), p. 66: ‘Consistent with article VIII, section 29 (a), of the General Convention, the United Nations makes a distinction between claims of a private law character and claims of a public law character. The latter category of claims falls outside the scope of article VIII, section 29, of the General Convention…When determining whether a claim is of a private law character and thus falls within the scope of article VIII, section 29, of the General Convention, the United Nations assesses the nature of and the circumstances in which the alleged act or omission occurred and not merely the nature of the alleged conduct as described in the claim. A claim alleging tortious or delictual conduct, for example, does not automatically make it one of a private law character.’ Even if this statement is taken at its highest, it does not follow that the UN’s (or a similarly situated IO) obligation to provide for appropriate modes of dispute settlement may not arise due to other legal basis, such as based on human rights obligations; also see the discussion in Reinisch, Second Report (above n 3), para. 21.
[xxxvii] Convention on the Privileges and Immunities of the United Nations (opened for signature 13 February 1946, entered into force 17 September 1946) 1 UNTS 15 (General Convention); also see R Gulati, ‘Convention on the Privileges and Immunities of the United Nations, 13th February 1946’ (1 UNTS 15, 1 UST 1418) OXIO 73, available at, http://opil.ouplaw.com/view/10.1093/law- oxio/e28.013.1/law-oxio-e28?rskey=4tJ2gf&result=9&prd=OXIO
[xxxviii] Memorandum by the Secretariat (above n 15) (refer to text of footnote 36 above).
[xxxix] See especially Gulati (above n 20), section 1.4.4.
[xl] Indeed, this point is reflected in several responses by states to the Questionnaire sent in connection with the work on the Topic. For example, Chile stated, ‘The foregoing does not preclude failure to comply with the fundamental obligation to respect the rights at play in conflicts between an organization and a third party, such as the rights to due process and effective judicial protection. This matter pertains to the international development of human rights and the constitutional protection of fundamental rights, as opposed to the immunities of international organizations, which are assumed as international obligations. The difficulty lies in achieving compliance with the international obligations in dispute, i.e. recognizing the immunities from jurisdiction established at treaty level, while also protecting the human or fundamental rights of third parties’: Memorandum by the Secretariat (above n 15), pp. 9-10.
[xli] See especially, Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999).
[xlii] For a recent analysis, see Dana Burchardt, Transnational Procedural Guarantees – The Role of Domestic Courts, 34(3) King's Law Journal (2023), 562-578; also see Austria’s response to the Questionnaire contained in Memorandum by the Secretariat (above n 15), p. 12, where the state cites the judgment of ‘the Austrian Constitutional Court of 29 September 2022, in which the Court, for the first time, declared unconstitutional parts of a headquarters agreement that lacked provisions for the settlement of labour disputes through an independent mechanism, thus violating the employees’ rights to a fair trial according to article 6 of the European Convention on Human Rights (Judgment No. SV 1/2021 -23). The Court decided that the relevant provisions shall not be applied any more after 30 September 2024, giving the Government a time frame of two years to negotiate an amendment of the headquarters agreement’ with the concerned IO.
[xliii] See Gulati (above n 20), chapter 2 (pp. 39-69).
[xliv] In Ibid, section 3.3, it was argued that the current way in which arbitration is used in many category 3 claims is ineffective and inconsistent with fair trial norms. This is confirmed by responses of several IOs to the Questionnaire sent to them in connection with the Topic: Memorandum by the Secretariat (above n 15), pp. 89-90 (especially responses by FAO and PCA); in this respect, also see, Reinisch, Arbitrating disputes with international organisations and some access to justice issues (above n 22); Rishi Gulati et al, International Arbitration in Claims against International Organisations, Vol 3, AIIB Yearbook of International Law (BRILL Nijhof, 2020) 141-157.
[xlv] See especially, Reinisch, Second Report (above n 3), paras. 228-229.
[xlvi] See Gulati and Schoeffmann, UNCITRAL’s work in investor-state dispute settlement: promoting the rule of law internationally? (above n 24).
[xlvii] For a discussion, see Gulati (n 20), section 5.5.
[xlviii] See generally, Ibid.
[xlix] Ibid, section 5.5.2.