The International Law Commission (ILC) has launched a new topic: ‘Settlement of Disputes to which International Organisations are Party’. This complements its 2011 draft articles on the responsibility of international organisations and recognises that international organisations may incur responsibility but there may be no accountability without recourse to appropriate dispute settlement mechanisms. It also follows previous ILC work on legal issues involving international organisations. ILC draft articles led to a 1975 convention addressing diplomatic relations between States and international organisations and a 1986 convention on treaties with international organisations, neither of which is in force. Nevertheless, the selection of the topic acknowledges the reality that as the operational and regulatory activities of international organisations increase, there is an enhanced likelihood that the actions of an international organisation will be challenged, particularly by private parties. A recent claim against NATO for non-payment under a long-term contract with an Afghan contractor is a case in point. The preparation by the ILC of guidelines, rather than draft articles, should provide practical guidance to States and international organisations on best practices for addressing disputes to which international organisations are party. Whether it will do so may well depend on the extent and nature of input from States and international organisations, including those hosted by Australia, New Zealand and Pacific States.
Discussions during the first session of the ILC’s quinquennium 2023-2027 were based on the First Report of the Special Rapporteur, Professor August Reinisch, which was exploratory in nature. They resulted in the provisional adoption of draft guidelines on scope and definitions. The First Report is intended to be followed by Reports reviewing the practice of the settlement of disputes to which international organisations are party.
The topic raises some issues which are interesting both from an academic and a practical perspective. One of these is the interrelationship between the initiation of disputes with international organisations and the jurisdictional immunities of those organisations, particularly in relation to disputes with private parties. Such jurisdictional immunities have led to the perceived absence of accountability of international organisations in situations such as the outbreak of cholera in Haiti. The need to provide effective judicial remedies has been an element in the consideration of these issues by the International Court of Justice (ICJ), as well as by the European Court of Human Rights. It is also a core element of the privileges and immunities of the United Nations and its Specialised Agencies.
The precise scope of the topic will be refined in future, particularly its application to private law disputes. There had been support in the 6th Committee of the United Nations General Assembly to include disputes of a private law character within the topic. Such disputes are of practical importance and often have implications for host states. However, there is no clarity yet on exactly what disputes should be covered in the topic. At its broadest scope, the guidelines could cover all disputes to which international organisations are parties, including, potentially, those that are subject to the jurisdiction of domestic courts of the host State. A narrower scope could include disputes of a contractual or tortious nature, but not staffing matters. This is consistent with the 2016 syllabus, which suggested that the topic not cover disputes involving the staff of international organisations (“international administrative law”), for example matters subject to the jurisdiction of the Administrative Tribunal of the International Labour Organisation. A further narrowing would be to include only those disputes which raise international legal issues, including issues relating to jurisdictional immunities. It might be said that the broader the scope of the topic, the greater the practical application that the guidelines may have. However, this has to be balanced by the deference which may be owed to domestic courts of a host State which must decide cases brought before them involving disputes between private parties and international organisations.
A second relevant issue is one that goes to the heart of how to define an international organisation to which the ILC guidelines will apply. We all know what we mean by an international organisation according to what it is not: it is not a non-government organisation constituted under domestic laws, nor a transnational corporation. An international organisation also has the capacity to act on the international plane and has international legal personality. In the past the ILC has sought to define an international organisation: first in the Vienna Convention on the Law of Treaties between States and International Organisations as an ‘inter-governmental organisation’, and then in 2011 when it agreed a more precise definition for the purposes of the draft articles on the responsibility of international organisations.
At its recent session, the ILC Drafting Committee developed an alternative definition, based on the proposal of the Special Rapporteur, which has four elements. Three of these are found in the 2011 definition: possessing its own international legal personality; established by a treaty or other instrument governed by international law; and that may include as members, in addition to States, other entities. To these have been added the element that the organisation “has at least one organ capable of expressing a will distinct from that of its members”.
In part this definition seeks to respond to modern conceptions of the theory of international organisations and international legal personality, on which there has been much scholarly debate. The functionalist theory which has dominated discourse on international organisations throughout much of the last century was based on the idea that the powers of an international organisation are conferred on it by its members and are limited to those necessary for the organisation to fulfil the functions set out in its constituent instrument. However, this theory has been heavily criticized, particularly by Jan Klabbers as it does not sufficiently explain the relationship between international organisations and the rest of the world. Neither does it account for the need for legal constraints which operate to ensure the accountability of international organisations to external stakeholders, a point made by Anne Peters. This is highly relevant for a topic which seeks to address disputes between international organisations and third parties, either States, other international organisations, or private parties.
Scholars also continue to debate the legal basis and effects of the ‘international legal personality’ possessed by international organisations and referenced by the ICJ in the Reparations Advisory Opinion. As recently explained by Fernando Lusa Bordin, different scholars have debated the “will theory” according to which at least one organ of the international organisation ought to have a ‘will’ that is distinct from that of its members and the “objective personality theory”, according to which an international organisation, as a subject of international law, possesses ‘objective legal personality’ in the sense that it must be treated as a subject of international law by any other subject of international law. While the ‘will’ theory has been generally adopted, the latter theory has also found its way into some mainstream texts.
These issues are not only of academic interest but also have practical application. There are international organisations considered by its members to be an expression of their cooperative and collective will, where decisions are taken by consensus and the organs carry out the directions of its members. The ILC Drafting Committee has made it clear that the new definition has the same scope as the 2011 definition. There is no intention, therefore, to exclude such international organisations from the ambit of the topic. Nevertheless, the views of States will be important in ensuring that there is no perceived gap in the coverage of international organisations that are within the scope of the topic.
The next stage for the topic is for the Special Rapporteur to prepare commentaries on the draft guidelines, which will be considered by the ILC in July 2023 and by the 6th Committee later in 2023. This will provide an opportunity for States to express their views on the draft guidelines. States and international organisations have also been requested to provide answers to a 2022 questionnaire which will assist the Secretariat to prepare a memorandum on the practice of States and international organisations relevant to future work on the topic. The Special Rapporteur will use this as a basis for his review and analysis of actual disputes between international organisations and other parties.
The ILC topic has the potential to be relevant to the operations of international organisations, including those based in the Pacific region. It will be important to ensure that these perspectives are brought to bear, not only so that the practice of international organisations hosted by Australia, New Zealand and Pacific States are reflected in the ILC’s guidelines, but also so that the ILC’s work adds value to the framework of international organisations in our region.
Dr Penelope Ridings
Dr Penelope Ridings is a Member of the International Law Commission for the current term 2023-2027. She was formerly New Zealand’s Chief International Legal Adviser and diplomat. As a Barrister and International Lawyer, she practises in the field of public international law, including law of the sea, environment, international trade and investment and dispute settlement. Currently she is Legal Advisor to the Western and Central Pacific Fisheries Commission and an Honorary Professor at the University of Auckland Law School.