Accountability of international organizations: some observations.

• Jurisdiction: United States
• Date: 22 June 2005
• Author: Nanda, Ved P.
• Published date: 22 June 2005
• Author: Nanda, Ved P.

1. INTRODUCTION

   The discussion here will be limited to intergovernmental organizations. The topic is timely, for there remain ambiguities regarding the accountability of such organizations to their members or third parties, or the accountability of the members of these organizations and third parties to the organizations, and the necessary mechanisms and procedures to ensure such accountability.

   The issues this topic raises have been subjected to recent scrutiny and debate by international lawyers, (1) but more scholarly analysis is needed to clarify the issues further and provide firm guidelines for action. First, however, we must distinguish between accountability, responsibility, and legal liability. The definitions are not clear. Second, as the mandate and the role of international organizations (IOs), and thus the range and scope of their activities, differ among them, these variables must be considered in determining their accountability. Third, we must answer broadly the question, "accountability to whom?" Those addressed should include IOs and their staff, both member-states and non-members, international and domestic courts, national parliaments, nongovernmental organizations (NGOs) and private parties (including legal persons). Fourth, we need to further explore the existing mechanisms and procedures for holding international organizations accountable and, as required, new mechanisms and procedures should be fashioned. And, finally, we need to consider perhaps the most difficult issue: who can and should determine the question of the validity of the U.N. Security Council's actions? And, assuming the action is deemed to have exceeded the Security Council's mandate and powers, can it be invalidated--by whom and with what outcomes?

   Let me illustrate the controversies and ambiguities that abound as we study this subject. Questions have arisen about the accountability, responsibility, and legal liability of the United Nations or its constituent organs, such as the Security Council, the U.N. member states, and individuals for alleged violations of human rights and humanitarian law regarding U.N. peacekeeping, peace enforcement, and peace-building operations, as well as economic sanctions imposed by the Security Council. Who is responsible and to what extent for tortious acts? Privileges and immunities accorded to the United Nations are implicated. However, normally, prior to the commencement of such operations, the United Nations also negotiates a more comprehensive agreement on privileges and immunities directly with each host state.

   Similar questions have been raised concerning alleged ordinary tort and breach of contract claims as well as claims related to alleged human rights violations against other IOs. Also, critics of globalization continue to demonstrate and shout that there is a lack of openness and transparency in World Trade Organization (WTO) decisionmaking, especially its dispute resolution mechanisms, which they find undemocratic and unacceptable. The arbitration process and its outcomes in investor disputes in the North American Free Trade Agreement (NAFTA) setting under its chapter 11, which have been subjects of discussion in several recent international law conferences, have been similarly denounced for the lack of transparency in NAFTA's decisionmaking, especially its dispute resolution processes.

   In this address, I will confine my remarks first to addressing briefly the U.N. issues pertaining to peacekeeping, peace-enforcement, peace-building, and economic sanctions; next, to commenting on the accountability of other international organizations; and finally, to reporting on the recently concluded study of the International Law Association on the subject.

2. THE U.N.-RELATED ACTIVITIES

   1. U.N. Peacekeeping and Enforcement Operations

      In the aftermath of the Cold War, as the U.N. peacekeeping operations expanded in size, scope, and diversity of functions they perform, the application of international humanitarian law to such operations is increasingly recognized as necessary and important. The United Nations acknowledged this necessity by entering into status of forces agreement with the host state Rwanda in 1993, Agreement on the Status of the United Nations Assistance Mission for Rwanda, under which the "principles and spirit" of the pertinent international human rights instruments, inter alia, the four Geneva Conventions of 1949, the two Additional Protocols of 1977 to these conventions, and the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict of 1954 are to be fully respected by U.N. forces. (2)

      The United Nations entered into similar status of forces agreements in its subsequent peacekeeping and peace-enforcement operations. This broad statement, that of fully respecting the "principles and spirit" of the norms, needed further elaboration since there were no guidelines on how to translate it to address practical issues such as the legal status of combatants and other detainees by U.N. forces, the kind of weapons permissible and prohibited to use, and the legal status of U.N. forces who might be taken as hostages. In 1995, the International Committee of the Red Cross (ICRC) brought together experts to address these challenges and presented to the U.N. Secretariat a draft of basic norms of international humanitarian law to be applied to peacekeeping and enforcement activities.

      Based upon the ICRC work, the U.N. Secretary-General issued the Bulletin on the Observance by United Nations Forces of International Humanitarian Law on August 6, 1999, which came into force six days later. (3) The Bulletin is "applicable to United Nations forces conducting operations under Untied Nations command and control," (4) and specifies provisions of international humanitarian law that would be respected by the United Nations. Its principles apply to U.N. forces when they are actively engaged in situations of armed conflicts as combatants "to the extent and for the duration of their engagement," and engaged in "enforcement actions, or in peace-keeping operations when the use of force is permitted in self-defense." (5)

      There are still ambiguities in the application of these guidelines. For example, the Bulletin does not differentiate between U.N. operations undertaken in peacekeeping activities and those in enforcement. Also, it does not differentiate between the peacekeepers' status "as civilians" and "as combatants." Even more important, as the Bulletin applies to forces under U.N. command and control, they are not applicable to U.N. "Associated Personnel," or those operations authorized by the United Nations but conducted under national or regional command. In the latter setting, the concerned states or regional organizations responsible for the operations are to ensure that international humanitarian law is applied.

      As to the remedies available to the one seeking damages arising out of the U.N. peacekeeping or peace-enforcement operations, or post-conflict U.N. operations aimed at peace-building, it should first be noted, that the United Nations and its officials working in official capacity are granted "functional immunity" from legal process. The Convention on the Privileges and Immunities of the United Nations (6) limits the privileges and immunities of the U.N. officials to those "necessary for the independent exercise of their functions in connection with the Organization." However, under one of the provisions of the Convention, when the United Nations or one of its officials enjoying immunity is a party to a dispute of a private-law character, the United Nations is obliged to provide for appropriate means of settlement in such a dispute. (7)

      As the United Nations undertook an expanded role for...