107 Work in Progress / Travaux en cours

ILA Committee on Accountability of International Organisations KAREL WELLENS*

In May 1996 the ILA’s Executive Council decided to establish a Committee on Accountability of International Organisations under the Chairmanship of Judge Pieter Kooijmans. Professor Malcolm Shaw (UK) and the present writer were nominated as Co-Rapporteurs. The proliferation of International Organisations (IOs) and the subsequent unprecedented expansion of their norm-setting and operational activities had gradually made them important actors in present-day . The time had come to consider how these new actors could be held accountable for their acts and omissions. The Committee was given the mandate to consider what measures (legal, administrative or otherwise) should be adopted to ensure the accountability of public International Organisations to their members and to third parties, and of members and third parties to such organisations. The Committee’s terms of reference specified that it might consider such issues as the relations between Member States, third parties and IOs; redress by and against IOs, including access to the ICJ and other courts and tribunals, and related issues of procedure; the relations between different forms of accountability of IOs (legal, political, administrative, financial); the dissolution of IOs and related questions of succession. An internal interim report by the two Rapporteurs was discussed at the Committee’s first meeting held in The Hague on 2 July 1997. The outcome of this discussion and the replies to a questionnaire which was circulated to the Committee members in September 1997 resulted in the First Report of the Committee, which was submitted for consideration at the 62nd ILA Conference held in Taipei (1998). Chapter I of the Report contained an overview of the operational issues the Committee was facing; Chapter II provided the legal framework for the Com- mittee’s future activities. Given the focus on “measures” in the terms of reference, the Committee decided that the most suitable outcome of its work would consist of a set of model rules which should be based upon a careful analysis of existing practice on accountability of IOs coupled with a cautious selection of progressive

* Professor of International and the Law of International Organisations at the Law Faculty of the Catholic University of Nijmegen (the ) and co-rapporteur of the ILA Committee on Accountability of International Organisations.

International Law FORUM du droit international 1: 107–109, 1999. © 1999 Kluwer Law International. Printed in the Netherlands. 108 Work in Progress / Travaux en cours developments where needed. The main set of model rules would be generally applicable to IOs almost irrespective of the special peculiarities of individual organisations, although specific rules could be added for particular categories. The model rules would be addressed not only to IOs (including their supervisory organs) and their Member States (including their domestic judicial and parliamentary organs), but also to other main actors in the field such as international courts and tribunals, NGOs on both the national and inter- national level, and private parties. The Committee provisionally decided that the relations between different forms of accountability (legal, political, administrative and financial) did not require separate treatment at this stage, as they were bound to come up through further study and analysis. Given the rather infrequent occurrence of cases of dissolution of IOs, it was also decided to postpone consideration of that issue. A two-stage approach is being followed: the relations between Member States, third parties and IOs are under consideration in the current process of mapping out the territory of accountability. Later on, the Committee will address the more procedural and consequential issues of redress and remedies. Chapter II of the First Report laid down the legal framework for the Committee’s activities. Three major questions are interrelated: the applicable law, the notion of accountability and the international legal personality Given the wide range of levels that IOs might operate upon, there is a variety of layers of legal contexts depending upon the circumstances and matters at issue. In their search for greater flexibility, IOs are faced with assertion of control by different legal orders (international, regional and national). Four different legal layers could be identified: the governing law (the legal order by which the IO has been constituted and which determines matters of constitutional standing and status); the internal law (concerning internal organisational and operational issues); the law common to a group of IOs (the UN system, financial and economic IOs, European Organisations); the external law governing relations between the IOs on the one hand and Member States and third parties on the other . The notion of accountability is considered by the Committee as comprising three components: the daily monitoring of the fulfillment by IOs of their responsibilities, tort liability that may arise from their acts or omissions and their responsibility for breaching a norm of the applicable law. The second and third components are necessarily linked to the concept of legal personality. The mixture of legal, political, administrative and financial accountability will be different for each of the separate components. Given the overarching nature of the concept of accountability, a plurality of yardsticks is called for in order to make the accountability of IOs an operational reality: principles of good governance (e.g., transparent and democratic decision- making process, access to information, proper functioning of the international