The general features of remedies against international organisations have been described in Part I of this study. Once claimants are considering taking remedial action against an international organisation their different status vis-à-vis the organisation will have important consequences on the procedural level; that was the focus of Part II. Part III is devoted to a general picture of the substantive outcome of remedial action undertaken by non-state claimants.

The relationship between the specific features of member states and the various levels of accountability has been analysed in the first two sections of chapter 3 in Part I. There is no reason to believe that there are additional, membership-linked features of remedial outcome other than the ones described in this current chapter. As to representational non-governmental organisations, there is no remedial outcome as remedial mechanisms are not open to them. Accordingly, neither category of claimants is included here.

The substantive outcome portrayed in Part III is not specific to remedial action against international organisations, as demonstrated by claims against states under secondary rules of liability/responsibility. That the range of available remedial outcomes is almost identical is not surprising because the situations giving rise to organisational liability/responsibility do not substantially differ merely because of the identity of the actors involved. The surrounding circumstances and the modalities of the alleged harm/violation may vary, but that will not necessarily limit the availability or selection of the remedial outcome.

The purpose of this study has been to explore the existence of, access to and the outcome of political and legal remedial mechanisms, both of which a comprehensive accountability regime for international organisations would require. In mapping this territory I have looked at the general features of remedies against international organisations as compared to remedies in international law in general and contrasted them with remedies against the main actors on the international scene. The various remedies had to be tailored to the different levels of accountability and to the wide range of potential claimants, both states and non-state entities. The remedial opportunities, both in terms of access and forum, and the remedial potential were found to vary according to the differential standing of the claimant.

The differential remedial regime that was found to exist for those who are allegedly affected in their interests or rights by acts, actions or omissions of an international organisation was also reflected in the procedural difficulties and issues each separate category faces when actually resorting to remedial action. Additionally, the category of non-state claimants is still encountering the common procedural obstacle of jurisdictional immunity before the domestic courts, which is normally claimed by and frequently granted to international organisations. The substantive outcome of their remedial action could be described as fundamentally different within that same category of non-state claimants.

The potential sequence of and interaction between political and legal remedies has been referred to earlier and is a natural consequence of the inter-linkage between the administrative, financial, political and legal forms of accountability. Based upon the analysis in the previous Parts of this study and taking into account the deficiencies, inadequacies and the insufficient degree of remedial potential (in terms of availability, procedural access and substantive outcome) in existing mechanisms for the various categories of potential claimants, this chapter now reviews non-legal alternative remedial actions. The extent to which the instruments considered here are able to fulfil a remedial purpose may vary, but they certainly should not be considered as mutually exclusive alternatives, quite the contrary: together with the amendment of existing judicial remedies, which will be dealt with in the next chapter, they present converging remedial opportunities vis-à-vis international organisations.

Suffice it to recall that non-legal remedial mechanisms address situations where the non-performance of non-legal obligations results in mere interests potentially or actually being affected, harm being caused but without there being any form of liability or responsibility on the part of the international organisation. As already seen, in such situations, because of the absence of any kind of legal relationship between the non-state entity and the organisation involved, no accountability is provided towards non-state actors. Non-legal remedies could provide suitable alternatives to the lack or insufficiency of mechanisms of redress by granting private parties direct access to a particular mechanism or office, eventually in combination with or followed by diplomatic protection by the national state vis-à-vis the organisation.

As for remedies against states and individuals – the accountability of the former always having been firmly rooted as one of the cornerstones of the international legal and political order, and the accountability of individuals also having entered into the body of international law – any discussion on the more procedural and consequential issues falling within the scope of redress against international organisations has to be correctly placed against the background of their accountability regime. Albeit in an embryonic form, it has been in place since the establishment of international organisations: such a regime's formulation and adjustment is bound to be a continuous process.

The need for a reasonably comprehensive and consolidated body of applicable rules, recommended practices and guidelines is all the more pressing given the ever-increasing calls from various quarters – states and non-state parties potentially affected in their interests and/or rights by the acts, actions or omissions of international organisations – for appropriate remedies to become available. In further elaborating the body of primary rules, care should be taken not to undermine pre-existing or emerging rules of legal liability or responsibility by inadvertently including them as merely good practice. The codification of principles common to all international organisations, as they have been listed by the ILA Committee on Accountability of International Organisations in its Second Report, could be a first, but crucial, step in establishing a comprehensive accountability regime.

Generally speaking, the effectiveness of a remedy has to be tested by using criteria such as the independence of the decision-maker from the respondent authority (institutional effectiveness) and an element of enforceability (remedial effectiveness), thus excluding mere advice to the ultimate decision-making body.

In order to be both effective and dissuasive, remedies of whatever kind have to be appropriate given the interests they are aiming to protect or restore. Accordingly, the scope ratione materiae of remedies against international organisations has to match so as to be in harmony with the various components or levels of accountability as they have been described in the ILA Committee's First Report. On the first level, international organisations are subject to forms of internal and external scrutiny and monitoring when they are fulfilling their responsibilities as laid down in their constituent instruments. This monitoring takes place irrespective of potential and subsequent liability and/or responsibility. On the second level, tortious liability for injurious consequences may arise from a variety of acts or omissions. Damage may have been caused without violation of any rule or norm of international and/or institutional law. On the third level, organisational responsibility may arise from acts or omissions in breach of a rule or norm of international and/or institutional law.

A distinction has to be drawn between institutional acts and operational activities because potential claimants, their locus standi or lack of it, the applicable law, the mechanisms of redress and the nature of the remedy will necessarily be different.

Exhaustion of internal remedies

The first forum to which member states would turn in order to challenge, even prior to its adoption, the legality of a particular decision, is the organ that is considering its adoption. That will eventually also be the first remedial level for staff members but without the same preventive effect. The importance of this possibility for member states is increased in the absence of a proper system of judicial review and in spite of the principle nemo judex in causa sua being seriously damaged. As is common in other cases such as the international financial institutions, special remedial mechanisms have been put in place.

Given the absence in most international organisations of a system of judicial review for the legality of institutional acts and operational activities, the question of the applicability of the rule of exhaustion of internal remedies does not even arise with regard to member states, except of course when it has been (explicitly) provided for in particular categories of agreements: in such cases the clause ‘other mechanisms of settlement’ could imply this first form of remedial action. The Lockerbie cases clearly demonstrate that, within the context of contentious judicial proceedings between two member states, a form of indirect remedial action could result from either of them challenging, in their application or in an incidental way, the legal validity – under, respectively, the internal law of the organisation and/or international law at large – of institutional acts or operational activities belonging to the overall legal context of the dispute between them.

Contractual liability claims

The substantive outcome of remedial action based on a contractual liability claim is decisively determined by the UN applying its own internal law to its contractual activity, in most cases to the exclusion of any domestic law. Non-compliance with the terms of a contract between an international organisation and a private party may result in either party unilaterally invoking the resiliation clause and eventually applying for judicial enforcement, provided access to such a forum has been granted.

In most instances, problems arising under commercial agreements are resolved by means of direct negotiations between the parties. Claims are reviewed ‘on the basis of the contract terms, which we interpret in light of the proper law of the contract, the internal legal rules of the organisation where these have been referred to expressly or by implication in the contract and by application of the general principles of law and commercial practice and usage applicable to the transaction’. As to arbitration, given the almost total absence of reference by the contracting parties to a particular law, and in accordance with Article 33 of the UNCITRAL Rules, the Arbitral Tribunal applies the law determined by the conflict of laws rules, which eventually leads to the application of the lex mercatoria and general principles of law, while still having due regard to the terms of the contract and the usages of the trade applicable to the transaction.

Access to remedies: scope ratione personae and differential standing

Bearing in mind the frequency with which issues of accountability of international organisations are bound to arise – most such issues being dependent on the kind of situations in which other parties find themselves, of their own free will or unintentionally, facing the political, financial, administrative and legal consequences as regards their interests and the rights of acts, actions or omissions of the international organisation – it is possible, in rather abstract terms, to make the following list, in descending order, of preferential standing for remedial measures or action.

Institutional standing covers all internal aspects, at the different levels of accountability, of the organisation's normal functioning, since member states must be assumed, as observed by Christine Chinkin, to have actual or at least constructive knowledge of an international organisation's action, so that they cannot claim ignorance. The most comprehensive standing, in terms of internal accountability, unsurprisingly, can be claimed by all member states, except when some or all of the privileges and rights attached to membership have been temporarily suspended.

Other international organisations have to be identified as rightfully claiming preferential treatment in terms of standing, if only on the basis of the analogous application of good neighbourliness between international organisations.

Privileged institutional standing will normally be reserved for the states having concluded a Headquarters Agreement, the very essence of it being ‘a body of mutual obligations of co-operation and good faith’.