Temple International & Comparative Law Journal
The starting point for this paper is that IOs are as subjects of international law. Since IOs do not control territory or a population and so always operate within the jurisdiction of one of their member states, they are vulnerable to interference by their member states. In order to mitigate this risk, IOs have been granted qualified immunity, usually referred to as functional immunity, from the jurisdiction of their member states. For most of the twentieth century, this grant of functional immunity made sense for two reasons.
First, the founding states envisaged that IOs would have limited capacity to act on their own initiative. They would only undertake activity on the territory of a member state or involving the citizens of that state at the invitation of its government and in cooperation with its officials. This arrangement ensured that the IOs respected the sovereignty of the state. The citizens of the state did not have a direct mechanism for holding IOs accountable. However, if the citizens did not approve of an IO’s actions, they could petition their government to deny the IO access to the state or to use the levers of institutional governance to hold the IO accountable.
The second reason why functional immunity made sense was that individuals were not generally recognized as subjects of international law. This meant that individuals had no international legal standing. Any wrong that an IO caused was, under international law, an injury to their state, who could then bring a claim against the IO.
This paper argues that with the passage of time both of these reasons have lost their validity. First, IOs have expanded the scope of their activities to include operations that involve exerting direct authority over and/or directly impacting the lives of individual citizens and communities. As a result of these expanded operations and the fact that their functional immunity has not been reduced, IOs are currently operating with less public accountability than governments. Second, developments in human rights law since the Second World War mean that individuals now have rights that are cognizable under international law. One of these rights is the right to an effective remedy. IOs cannot credibly continue to advocate that their member states should respect human rights and practice good governance while they fail to respect their stakeholders’ right of access to an effective remedy. This can be seen most clearly in regard to the activities of the United Nations (U.N.), the World Bank Group (WBG), and the International Monetary Fund (IMF).
In order to make this argument, this paper is divided into five sections. The first is a brief overview of the doctrine of IO immunity. The second discusses the evolution in IO operations and its implications for IO immunity. The third is a discussion of the right to an effective remedy as a principle of customary international law. The fourth considers how this principle should be applied to IOs. The fifth concludes that the doctrine of immunity is no longer appropriate without adaptation.
Daniel D. Bradlow,
Using a Shield as a Sword: Are International Organizations Abusing Their Immunity?,
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/946