The Legal Accountability of Transnational Institutions: Past, Present and Future

1. BACKGROUND

To our knowledge, this is one of the first attempts at a comparative analysis of the legal accountability of transnational institutions. We take a broad view on classifying transnational institutions, as including public international organisations (‘IOs’),¹ multinational corporations (‘MNCs’),² as well as non-governmental organisations (‘NGOs’).³ Issues of IO, MNC and NGO accountability can raise a very broad range of concerns, but common challenges exist. Providing access to justice to individuals adversely impacted by transnational institutional conduct is one of those pressing challenges. Accountability gaps for serious environmental damage,⁴ breaches of labour standards,⁵ and concerns relating to sexual abuse, immediately come to mind. In this Special Issue of the King’s Law Journal, the contributions address various aspects of this accountability gap. At its crux, when allegations of wrongdoing are made against a transnational institution, a threshold question is whether victims have access to a dispute resolution mechanism (‘DRM’) capable of rendering effective justice. As will be observed, such DRMs include not only national courts, but also international mechanisms. The various contributions to this Special Issue address this fundamental question. The comparative exercise undertaken highlights that national courts are not always best placed to adjudicate claims against transnational institutions, and much effort should be placed on creating alternative DRMs for the victims of transnational institutional conduct, with such alternatives capable of rendering effective justice. This is especially the case for claims against IOs which face the additional procedural bar of jurisdictional immunities before national courts (2). As several contributions also show, there seems to be an increasing interaction between access to justice and due diligence obligations increasingly assumed by, or imposed on transnational institutions in general. In this Special Issue, we start to scratch the surface of this very important debate, and hope future research takes up the mantle of further exploring this link (3). Finally, we make some remarks on what may be done to fill the accountability gap in the legal accountability of transnational institutions based on the comparative knowledge gained by considering the various contributions in this Special Issue (4).

2. ACCESS TO JUSTICE AND IOS

At the outset, it is worth observing that IOs constitute a unique type of international body corporate, being both, domestic and international legal persons.⁶ IOs are thus responsible for their actions and omissions in domestic and international law, as the case may be. In theory, a victim could bring suit against an IO at an international forum or a domestic court. In both cases, obviously, jurisdictional conditions (including personal and subject matter jurisdiction) must be met first. But these theoretical possibilities do not invariably translate into practice. Focusing on the potential of raising domestic claims against IOs for the moment, as David Stewart explains in his contribution to this Special Issue, IOs are granted jurisdictional immunities before domestic courts so that their functional independence can be maintained.⁷ This has meant that there is a very serious procedural bar of jurisdictional immunities preventing the victims of IO conduct from accessing the protection of national courts, albeit this bar is not always insuperable.

In 1999, the European Court of Human Rights (‘ECtHR’) famously decided the Waite and Kennedy case,⁸ which had created an expectation that where an IO fails to provide a ‘reasonable alternative means’ of dispute resolution to a claimant who it has allegedly harmed, the immunities may be lifted based on a fair trial rationale.⁹ These expectations have however failed to materialise so far. The ECtHR has never held that IO immunities ought to be breached despite many meritorious claims reaching it.¹⁰ Across the Atlantic, in the US, the experience has been somewhat complicated due to how IO immunities are domestically implemented. In the much discussed Haiti cholera case for which the UN’s wrongdoing is manifest,¹¹ US courts refused to pierce the organisation’s immunity even though the UN failed to comply with an internationally binding obligation to provide appropriate modes of dispute resolution to the victims.¹² Thus, access to justice does not seem to be a pre-condition to the maintenance of IO immunities in that country, especially when it comes to the UN’s immunity.

While the UN’s immunity regime provided in the General Convention is self-executing in the US,¹³ the immunities provisions of several other IOs, including the World Bank institutions linked to the US International Organizations Immunities Act 1945 (‘IOIA’) are impacted by the particularities of that statute. The IOIA equates IO and state immunity, unfortunately ignoring the functional notion that underpins the immunities of the former. Be that as it may, until recently, IOs governed by the IOIA continued to enjoy absolute immunity even though state immunity over the years has been restricted based on the commercial v non-commercial activity distinction,¹⁴ with this restrictive immunity reflected in the US Foreign Sovereign Immunities Act (‘FSIA’).¹⁵

However, in 2019, in its judgment in Jam v IFC,¹⁶ the US Supreme Court decided that similar to states, IOs only enjoyed immunities vis-à-vis their non-commercial or sovereign activity. Notably, in the judgment itself, Justice Breyer’s dissent highlighted the risk of the floodgates opening on the basis that a large proportion of IOs like the IFC arguably perform commercial work.¹⁷ As Stewart says, Jam has ‘thrown the field into some conceptual turmoil—unnecessarily … since it was based upon an inapt analogy equating international organizations to foreign states and governments.’¹⁸ Similarly, the co-editors have also observed, there is now considerable confusion on the precise scope of IO immunities under the IOIA system as determining the commercial v non-commercial distinction with respect to IO activity is especially problematic.¹⁹ As the adage goes, we are where we are. The emphasis now ought to be on Jam’s implications. In his contribution, Stewart engages in this precise exercise. Not only does he expertly critique the judgment in Jam, but also analyses the most recent jurisprudence in the US applying it. He goes on to conclude that ‘the principle of ‘restrictive immunity’ as expressed in the FSIA simply does not equate to the ‘functional immunity’ to which international organizations are entitled under contemporary international law and practice. The U.S. Supreme Court’s decision in Jam highlighted the obsolescence of the IOIA but gave the wrong answer with respect to its replacement.’²⁰ No doubt, reform is necessary (see further section 4 below).

In the end, even though IO immunities before national courts may be limited in principle, domestic courts do not constitute a viable DRM to resolve claims against IOs in general. It can take years of effort to get a case through the domestic system. Naturally, the costs can be exceedingly high. Unless an individual is very well resourced, victims would presumably need to rely on an NGO or another strategic litigator to take up their case. This is not always possible or even desirable. Even then, the outcome is highly uncertain, with very few national cases piercing IO immunities. But this does not mean national courts have no role to play whatsoever. One of the co-editors has argued that national courts can and should play a secondary role in ensuring justice for victims of IO conduct in circumstances where justice is denied elsewhere.²¹

However, at a practical level, if access to justice for the victims of IO conduct is to be ensured, the latter must comply with their international legal obligation to provide the former with ‘appropriate modes’ (the language used in the General Convention) or ‘reasonable alternative means’ (the Waite and Kennedy phrase) of dispute resolution. In other words, IOs must comply with their access to justice obligation.²² Indeed, as is apparent in several contributions, the preferred view is that IOs should be given the first opportunity to deliver justice to victims adversely impacted by institutional conduct. This is why IOs regularly create judicialized mechanisms to provide justice to their employees through the establishment of international administrative tribunals (‘IATs’).²³ Where IOs do not provide access to justice to their employees, their immunities before domestic courts in employment cases may be at serious risk of being pierced. It has also become apparent that as the range of activity IOs perform expands, more and more, IO conduct impacts third parties. The types of claims made against IOs are thus ever-expanding, spurring the creation of new types of DRMs. On this note, in his contribution, Edward Chukwuemeke Okeke conducts a highly timely analysis of the World Bank Inspection Panel established thirty years ago as an independent accountability mechanism (‘IAM’) to provide recourse for people adversely affected by projects or activities financed by certain World Bank Institutions, namely, the International Bank for Reconstruction and Development and the International Development Association.²⁴

Numerous such IAMs exist now, as is also discussed by Nicole Liverpool Jordan in her contribution in the context of the Caribbean Development Bank (CDB).²⁵ In the sphere of global environmental justice, it is important to understand the strengths and limitations of such IAMs, recalling that Jam involved project affected individuals seeking justice against the International Finance Corporation (a World Bank institution) before US courts, where the victims’ quest for justice at the IFC’s IAM (the Compliance Advisor Ombudsman) did not succeed as such.²⁶ Okeke reminds us that ‘accountability is broader in scope than liability’, and that access to justice is a broader concept than access to court,²⁷ saying:

Accountability is about who is answerable to whom for what. Accountability denotes the answerability for the performance of a person or an office within an institution … IAMs are established within MDBs to address complaints by external entities who claim to have been adversely affected by their programs or projects financed by the MDBs. The IAMs of MDBs are administrative and nonjudicial systems that are used to hold those international organizations answerable for either their omissions or commissions under their institutional laws, i.e. operational policies and procedures. They do not provide legal remedies such as compensatory damages or injunctions but there have been cases where project-affected people have been compensated which is not the norm.²⁸

No doubt that if victims of IO conduct receive a satisfactory remedy before a non-judicial mechanism, access to justice in a broad sense will be bolstered. Significant costs and resources may be saved by avoiding the need for formal litigation. This can only be a good thing. However, a non-judicial DRM may not have the capacity to deliver effective justice. Indeed, non-judicialised mechanisms have been created in other spheres, such as the Ombudsman processes made available to individuals adversely impacted by UN Security Council Sanctions regimes.²⁹ The much discussed Kadi litigation before the Court of Justice of the European Union was critical of such Ombudsman procedures and even decided to exercise its jurisdiction to protect the due process rights of the litigant in that case.³⁰ Thus, where access to justice through a non-judicialised DRM does not yield effective justice, then the right to a fair trial would demand access to a judicial mechanism that is able to do so.³¹ Ultimately, reasonable minds are in agreement that IOs are required to provide appropriate or reasonable DRMs to individuals they allegedly harm. What is often contested is what ‘appropriate’/’reasonable’ means here, and the consequences that flow from a failure to provide such DRMs.

As to the issue of appropriateness or reasonableness, words we use interchangeably for they mean the same thing here, regardless of a DRM’s label, it should be independent, impartial, fair, and able to grant an effective remedy. In this respect, Dana Burchardt’s analysis of recent jurisprudence of the German Constitutional Court (‘GCC’) is highly informative. According to the GCC, the state ought to ensure that IOs provide justice mechanisms consistent with certain minimum transnational procedural standards ‘at the time when they transfer sovereign powers to intergovernmental organisations, but [there is] also an ongoing obligation to ensure that, in the course of their activities, these organisations do not fall short of the minimum standard. There is therefore a duty to continuously monitor these organisations and to redress any deficits that may exist as to the application of procedural guarantees.’³² Crucially, as Burchardt outlines, these minimum standards may be divided into three criteria:

The first … is access to justice against acts of the international organisation. It must be ensured that persons affected by these acts have access to a judicial decision and that this access ‘may not under any circumstances be prevented, rendered practically impossible or made unreasonably difficult in a manner that cannot be justified by factual reasons’ … Secondly, the judicial body must be independent and endowed with sufficient jurisdiction. In this respect, the court focuses on judicial independence. Using the constitutional law terminology developed for the domestic judiciary, the Court requires institutional independence in the sense of an institutional separation from the administrative units whose acts the judicial body has to review, as well as decisional and personal independence of the members of the judicial body … Third, the judicial body must reach its decisions ‘on the basis of appropriate proceedings’ which include, inter alia, the right to be heard, the availability of ‘appropriate means of challenge and defence’, and the possibility to freely choose legal counsel … concerning the other procedural rights, there is, according to the court, a general obligation to fairness. This means that the judge is not allowed to behave in a contradictory manner; to derive, from the judge’s own mistakes or omissions, any procedural disadvantages for the parties; or to disregard the general obligation to be considerate vis-à-vis the parties to the proceedings. In addition, the FCC borrows the more specific obligations that ensue from procedural rights primarily from the case law of the ECtHR and the CJEU. This includes equality of arms, right to access the file, possibility to effectively comment on the evidence, the requirement to provide written reasons and reasonable length of proceedings.³³

In his book published prior to the aforementioned GCC jurisprudence, one of the co-editors to this Special Issue stated that to be ‘appropriate’, an alternative DRM must deliver justice consistently with core fair trial guarantees, being rights not dissimilar from the guarantees stated by the GCC.³⁴ There is a strong case for applying the GCC jurisprudence more broadly for it is consistent with a state’s international human rights law (‘IHRL’) obligations in general, and the right to a fair trial in particular.³⁵ Further, in principle, a reasonable DRM does not necessarily have to be a permanent court or tribunal, although this may be desirable in many circumstances. On this point, in his contribution, August Reinisch explores the potential of international arbitration as providing a reasonable alternative DRM for individuals seeking to raise claims against IOs. Given the very high costs associated with international arbitration, and issues with lack of transparency of arbitral proceedings when compared to court litigation, in the view of the co-editors, Reinisch correctly concludes that:

Although arbitration seems to be a form of alternative dispute settlement not very frequently resorted to in cases of disputes involving international organizations, it remains an important alternative, in particular, for private litigants to ensure that their right of access to justice is guarded. This requires more than the mere availability of arbitration in the first place. It also implies that arbitration must be an affordable method of dispute settlement, ensuring basic fair trial demands. Further, transparency and the effective enforcement of outcomes will enhance the rule of law-conformity of arbitration as an option for settling disputes to which international organizations are parties.³⁶

Finally, a brief remark must be made on the consequences of an IO failing to comply with its access to justice obligation. It has already been noted that where an IO fails to provide an appropriate DRM to alleged victims of institutional conduct, a national court may intervene and take jurisdiction over the claim at hand, thereby limiting any IO immunities. Concerns that doing so impermissibly limits IO independence can be met by dividing-up regulatory authority between the state and the IO legal orders. For example, where a national court takes jurisdiction over an IO, it must apply the substantive regulatory regime enacted by that IO, where IO law is identified to be the correct applicable law using well-known private international law techniques.³⁷ This ensures access to justice without limiting an IO’s prescriptive authority to regulate its internal affairs, such as its employment relations. However, only in very rare cases have IO immunities been pierced in an actual case. This is not because the circumstances for the exercise of national jurisdiction are absent, but due to the unwillingness of national courts to scrutinise the reasonableness of alternative DRMs provided by IOs with the scrutiny that is warranted. Thus, it will be important that any regulatory initiatives at the international or national level, amongst other things, focus on the consequences for IOs of breaching their access to justice obligation.

3. ACCESS TO JUSTICE AND TRANSNATIONAL INSTITUTIONS—A TURN TO DUE DILIGENCE OBLIGATIONS?

Several contributions to this Special Issue also highlight the increasing links between due diligence obligations assumed by, or imposed on transnational institutions and access to justice. As is observed, such developments hold much promise, although it is too early to categorically say whether due diligence obligations will have a net positive impact on access to justice in claims against transnational institutions. We start by making some remarks on MNC accountability. In their contribution to this Special Issue, Farah et al point out that in the past few decades, ‘we have witnessed a wave of lawsuits against MNCs for civil damages. Typically, these civil cases relate to damage to livelihoods, personal injuries and economic losses, often occurring because of environmental harms or the pursuit of corporate objectives at the expense of people’s human rights, that cause inter alia pollution, damage to land, or illegal eviction.’³⁸

In so far as the subject matter of these claims is concerned, many of them are not too dissimilar to the types of cases IOs increasingly face. However, unlike IOs, MNCs are not subjects of international law (albeit their international status is currently subject to a serious debate).³⁹ This can impact the DRMs available to victims. Essentially, MNCs cannot be sued directly before international courts in general, and international arbitration has not been used to resolve such claims in the past, although this may change in the future.⁴⁰ The natural forum for victims becomes national courts. Again, for a range of legal and practical reasons, there are several obstacles before claimants in pursuing conventional forms of civil claims against MNCs before national courts too. In particular, the pattern of MNC violations is that the victims reside in developing countries and are directly harmed by the conduct of a local subsidiary, but they wish to sue before the courts of developed countries due to the latter possessing a superior transnational civil litigation infrastructure. Leaving to one side the potentially high costs associated with civil litigation in rich countries, victims confront several other jurisdictional and substantive legal barriers in their quest for justice. Jurisdictional barriers may include the ‘appropriateness’ of geographically distant courts being asked to adjudicate claims that are more closely connected to a foreign place.⁴¹ Substantive matters include the extent to which (if at all) one corporate entity can be held liable for harm that may be caused by its subsidiary, as well as the applicability of substantive IHRL standards to MNCs where breaches of human rights are alleged. Farah et al correctly observe:

The biggest challenge to civil litigation, whether in the UK, U.S. or other common law jurisdictions, is the inability to point to a binding obligation stipulated in law that holds corporations accountable for the violation of internationally recognised human rights. This makes the civil claims based entirely on common law incredibly complex, and costly. Even when they succeed, they offer piecemeal and targeted solutions which are reactive to the needs of the individual case. It is indisputable that some business managers will stand in the line and conform with internationally recognised human rights and environmental standards due to the threat of civil litigation, however, the incentives to conform are not great enough and will not have the much-required wider culture change, much needed in order to remove the threat of adverse human rights on peoples.⁴²

Interestingly, due diligence obligations assumed or imposed on transnational institutions seem to be creating much cause for optimism though. Due diligence legislative frameworks are rapidly evolving across jurisdictions, in some cases, with remarkable emphasis on civil liability mechanisms as a parallel route for remediation of negative impacts of business activities on the society and the environment. Examples include the current French Duty of Vigilance Law 2017 and the (currently negotiated) EU’s CSDDD.⁴³ Farah et al specifically discuss the topic of civil liability under sustainability due diligence legislation, asking the question whether this constitutes a quiet revolution for access to justice against MNCs. Such due diligence obligations not only require MNCs to identify risks in their operations, mitigation strategies, but can also provide for civil liability where such obligations are found to have been breached. Although it is too early to be definitive, they conclude:

The new civil liability route offered by due diligence legislation could indeed provide a more structured, and a better suited, solution for addressing transnational civil liability. The marrying of due diligence obligations with civil liability mechanisms provides a useful combination; the two instruments are mutually supportive: without civil liability, the due diligence process remains a toothless exercise. Equally, without sustainability due diligence legislation, the civil liability option will remain limited … On the other hand, how effective the linking of due diligence obligations with a civil liability mechanism will be, will depend on the details of each legislation, its scope, coverage, and the completing procedural rules that it will opt for. Lawmakers should not assume that the mere addition of a civil liability mechanism to sustainability due diligence rules will resolve the longstanding difficulties faced by victims on their quest for remedies and access to justice.⁴⁴

In the same vein, concerning NGO accountability, Rosana Garciandia points out the structural issues with the current self-regulated accountability framework created by NGOs themselves. She argues that the business and human rights framework could actually also benefit NGO accountability. Amongst other pertinent points, Garciandia observes that the ‘The EU proposed Directive, which has the potential to enhance enforcement and accountability, could be the horizon to tend towards … for NGOs.’⁴⁵ Indeed, a central theme running through several contributions relates to the increased relevance of due diligence standards not just on MNCs and potentially NGOs, but also IOs.

For instance, Jordan discusses due diligence in the context of CDB funded projects highlighting the environmental and sustainability standards adopted by MDBs. However, unlike claims against MNCs where immunities are not a bar to the exercise of national jurisdiction, she questions whether national courts would be willing to pierce IO immunities where victims allege a breach of such environmental and sustainability standards.⁴⁶ This is an apt time to recall that most MDBs do in fact create IAMs which provide some form of access to justice to claimants, something that MNCs could also consider doing in line with the UN Business and Human Rights Principles of 2011 (see further section 4 below).

Similarly, in a thought-provoking contribution, Nigel White discusses due diligence obligations in the context of UN peacekeeping, where there exists a well-known accountability gap. A prime example of such a gap is the inability of victims of peacekeeper sexual abuse to receive a remedy despite the UN’s purported ‘zero tolerance’ approach to sexual abuse.⁴⁷ White argues that ‘due diligence is an external standard derived from positive obligations under customary international laws protecting human rights, which is applicable to the UN in its operational activities, in particular its peacekeeping function. Due diligence is not simply a standard against which to gauge the performance of UN peacekeeping forces, but is grounded on binding duties under international law, the breach of which gives rise to organisational responsibility for the failure to prevent human rights violations.’⁴⁸ Importantly, the due diligence obligations that the UN ought to implement in the context of its peacekeeping function should not only incorporate substantive human rights standards, but also a means to hold the organisation accountable where such standards are breached. As White states:

In addition to the development of a range of due diligence standards at a policy level, the UN needs to adopt accountability mechanisms in order to ensure that the measures it takes to uphold due diligence standards and fulfil its human rights obligations are critically reviewed and improvements made where necessary. Such mechanisms should include provision for victims to be able to hold the organisation to account for failure to prevent human rights violations whether by peacekeepers, or by third parties when peacekeepers had the power to prevent such.⁴⁹

In the end, whether or not due diligence regulatory instruments, which can differ in their scope, content and potency, have the potential to enhance access to justice for the victims of transnational institutional conduct remains to be seen. It can hardly be denied that they do hold much promise given they seek to regulate both, the procedural and substantive sides of access to justice in the same instrument. This means that a consistent and unified approach to procedural and substantive protections can be taken in principle. Of course, the notion of due diligence is creating a vast amount of literature.⁵⁰ The debate on its merits will continue. In scratching the surface of this debate vis-à-vis the accountability of transnational institutions, we hope that the links between access to justice and due diligence obligations on transnational institutions have been made apparent through this Special Issue. It will be for future publications to explore this interaction in much greater depth.

4. SOME FINAL REMARKS

To conclude, at least three lessons may be drawn from the contributions made in this Special Issue. First, national courts are not always a viable DRM for claims against transnational institutions. In claims against IOs, IO immunities create a significant procedural bar. In claims against MNCs, jurisdictional and substantive impediments can create much uncertainty. In some jurisdictions such as England, these barriers are starting to be overcome based on access to justice reasoning,⁵¹ but in other centres of transnational litigation, the opportunities for victims of corporate conduct may be diminishing.⁵² Even if such legal barriers can be overcome, similar to claims against IOs, the time and resources it takes to pursue claims against MNCs, and the significant uncertainty of outcome, remain real difficulties for victims and their representatives. One should not forget that some MNCs may have budgets that exceed those of small countries, and there would be invariably large factual inequalities between the parties.

Of course, a competent national court can always take jurisdiction against a transnational institution to ensure justice for the victim. And due diligence regulatory instruments may in time increase the opportunities for national courts to do so. However, at a practical level, it seems to us that alternative DRMs are perhaps better placed to deliver justice to the victims of institutional conduct in several instances. IOs already have an international obligation to provide alternative DRMs to alleged victims, and in some instances, this obligation is complied with. In an important development, in line with the UN Guiding Principles on Business and Human Rights, MNCs have started to provide for alternative DRMs to persons they can harm.⁵³ This is evidenced by the establishment of Meta’s Oversight Board which independently adjudicates content moderation disputes between Meta’s social media platforms and its billions of users.⁵⁴ The Oversight Board has indeed been compared with international human rights tribunals and monitoring mechanisms, as well as DRMs created by IOs,⁵⁵ showing how MNCs and IOs can learn from each other’s creations. With the Oversight Board including several remarkable institutional design features, there is no reason why other transnational institutions cannot benefit from the Oversight Board’s experience too.

Second, it is one thing to provide an alternative DRM, and yet another to ensure its quality. Here, the co-editors strongly believe that the standards against which the quality of a DRM is to be assessed should be derived from IHRL in general, and the right to a fair trial in particular.⁵⁶ This will help in achieving uniform standards of justice delivery across institutional settings. But who should conduct this quality control? Multiple actors can do so. Quality control can be undertaken by states, and as was said by the GCC, states must do so on an ongoing basis. It may also be done by national courts. In claims against IOs, an immunity determination presents an opportunity to determine whether the alternative DRM provided by an IO is appropriate. In cases involving MNCs, the forum non conveniens determination has presented opportunities for national courts to consider access to justice standards at another forum.⁵⁷ Of course, MNCs themselves can monitor the standard of justice delivery at any alternative DRMs they create.⁵⁸ Ultimately, in discharging their particular functions, actors at various levels can help ensure that the DRM adopted to render justice is doing so effectively.

Finally, it is clear to us that there is an urgent need for law reform. This applies to both, the domestic and international level. As Stewart said in the context of claims against IOs in the United States, to protect the important role of IOs in the contemporary international system and to recognize the limits of the obligations of the host state, ‘it is time for Congress to enact a new regime. It will not be an easy task, but it is an essential one.’⁵⁹

Further, work is also being carried out at the International Law Commission (‘ILC’) on this topic. On 7 December 2022, the UN General Assembly adopted a resolution taking note of the ILC’s decision to include the topic of the ‘Settlement of international disputes to which international organizations are parties’ as part of its programme of work.⁶⁰ The topic was originally proposed by Sir Michael Wood KC in 2016, noting ‘the restricted access that international organizations have to the traditional methods of international dispute resolution’ and the barriers to admissibility of claims brought by or against them.⁶¹ The ILC Special Rapporteur is Professor August Reinisch who contributes to this Special Issue, as mentioned above.⁶² Some have expressed doubt about the ILC’s project. Gasbarri, for example, suggests that it will be challenging to ‘find an equilibrium between satisfying IOs requests and providing a useful output’.⁶³

Finally, in the context of MNCs and NGOs, Farah et al and Garciandia respectively point out that due diligence standards are being developed at various levels. It would be important that such standards create strong remediation frameworks so that substantive protections are meaningful. Moreover, the business and human rights treaty discussion also provides a potential venue to enshrine provisions on the accountability of MNCs. Ultimately, we consider that all these reform efforts can benefit from each other’s experiences given the common challenges transnational institutions face. In the final analysis, a concerted effort should be made to help coordinate regulatory authority among states and transnational institutions to ensure access to justice for victims, and at the same time, safeguard the legitimate interests of those transnational actors.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 The International Law Commission has defined international organizations as being ‘an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities’. See ILC, ‘Draft Articles on the Responsibility of International Organizations’ (26 April–3 June and 4 July–12 August) (2011) II(2) Yearbook of the International Law Commission, UN Doc A/66/10.

2 A multinational corporation (MNC), also called a transnational corporation, is any corporation that is registered and operates in more than one country at a time (Brittanica, 2023).

3 The OECD has defined non-governmental organisations (NGOs) to include ‘any non-profit entity organised on a local, national or international level to pursue shared objectives and ideals, without significant government-controlled participation or representation’; See OECD, ‘Aid for Civil Society Organisations’ (2018) <https://www.oecd.org/dac/financing-sustainable-development/development-finance-topics/Aid-for-Civil-Society-Organisations-2015-2016.pdf> accessed 9 September 2023.

4 Shaoxing Bai et al., ‘Environmental Responsibility of Multinational Enterprises’ (2021) Advances in Social Science, Education and Humanities Research 2764; See also: Office of the High Commissioner for Human Rights (OHCHR), ‘Guiding Principles on Business and Human Rights’ (2011) United Nations <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>; OHCHR, ‘BHR Treaty Process’ <https://www.ohchr.org/en/business-and-human-rights/bhr-treaty-process>.

5 See for example: Lisa Jordan and Peter Van Tuijl (eds), NGO Accountability: Politics, Principles and Innovations (Earthscan 2006).

6 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174.

7 David Stewart, ‘Holding International Organizations Accountable: Recent Developments in U.S. Immunities Law’ (2023) King’s Law Journal, p 3.

8 Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999).

9 Ibid, paras 67–68.

10 See for example the Srebrenica case: Stichting Mothers of Srebrenica and Others v the Netherlands App no 65542/12 (ECtHR, 11 June 2013).

11 Georges v. United Nations, 834 F.3d 88 (2d Circ. 2016).

12 Ibid; Convention on the Privileges and Immunities of the United Nations 1946, s 29.

13 For further discussion on this point, see: Rishi Gulati, Access to Justice and International Organisations (Cambridge University Press 2022) 134–155.

14 A leading work on state immunity is Hazel Fox and Philippa Web, The Law of State Immunity (Oxford University Press 3rd edn 2013).

15 Foreign Sovereign Immunities Act, 28 U.S.C. § 1602–1611 (1976).

16 Jam v International Finance Corporation., 139 S. Ct. 759.

17 Ibid, see Bryer, J., dissent.

18 Stewart, ‘Holding International Organizations Accountable’ (n 7) p 2.

19 Gulati, Access to Justice and International Organisations (n 13) chapter 4.

20 Stewart, ‘Holding International Organizations Accountable’ (n 7) p 14.

21 Gulati, Access to Justice and International Organisations (n 13) chapter 5.

22 A phrase used in Gulati’s Access to Justice and adopted in other works, see: Raul C. Pangalangan ‘Judicial Review at the Asian Development Bank Administrative Tribunal’ (2022) Asian Journal of International Law 248.

23 See generally, Rishi Gulati, ‘An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?’ (2018) Max Planck Yearbook of United Nations Law Online 210.

24 Edward Chukwuemeke Okeke, ‘Assessing the Accountability Mechanism of Multilateral Development Banks against Access to Justice: The Case of the World Bank’ (2023) King’s Law Journal.

25 S. Nicole Liverpool Jordan, ‘Nature and Scope of an International Organisation’s Due Diligence Obligations under International Environmental Law: A Case Study of the Caribbean Development Bank’ (2023) King’s Law Journal.

26 Note as per the Compliance Advisor Ombudsman’s Operational Guidelines, the two related cases have remained ‘open’ as CAO monitors IFC’s response to the findings. See: <https://www.cao-ombudsman.org/cases/india-tata-ultra-mega-01mundra-and-anjar>; <https://www.cao-ombudsman.org/cases/india-tata-ultra-mega-02tragadi-village>.

27 Chukwuemeke Okeke, ‘Assessing the Accountability Mechanism’ (n 24) 12.

28 Ibid.

29 United Nations Security Council, ‘Ombudsman to the ISIL (Da’esh) and Al-Qaida Sanctions Committee’ <https://www.un.org/securitycouncil/ombudsperson>.

30 Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05.

31 Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (Oxford University Press 2021).

32 Dana Burchardt, ‘Transnational Procedural Guarantees – The Role of Domestic Courts’ (2023) King’s Law Journal 3.

33 Burchardt, ‘Transnational Procedural Guarantees’ (n 32) 5.

34 Gulati, Access to Justice and International Organisations (n 13) chapter 2.

35 ‘Inter-American Juridical Committee Report. Immunities of International Organizations’ (16 August 2018) CJI/doc.554/18 rev.2 (IAJC Guidelines).

36 August Reinisch, ‘Arbitrating Disputes with International Organizations and Some Access to Justice Issues’ (2023) King’s Law Journal 14.

37 Gulati, Access to Justice and International Organisations (n 13) chapter 5.

38 Youseph Farah, Avidan Kent and Valentine Kunuji, ‘Civil Liability under Sustainability Due Diligence Legislation: A Quiet Revolution?’ (2023) King’s Law Journal 2.

39 See generally, José E Alvarez, ‘Are Corporations “Subjects” of International Law?’ (2011) Santa Clara Journal of International Law 3.

40 The Hague Rules on Business and Human Rights Arbitration (2019) <https://www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf>.

41 Gulati, Access to Justice and International Organisations (n 13) 206.

42 Farah, Kent and Kunuji, ‘Civil Liability under Sustainability’ (n 38) 14.

43 European Commission Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and Amending Directive (EU) 2019/1937, Brussels, 23.2.2022 COM (2022) 71 final 2022/0051 (COD).

44 Farah, Kent and Kunuji, ‘Civil Liability under Sustainability’ (n 38) 28.

45 Rosana Garciandia, ‘Accountability of NGOs: The Potential of Business and Human Rights Frameworks for NGO Due Diligence’ (2023) King’s Law Journal 18.

46 Liverpool Jordan, ‘Nature and Scope of an International Organisation’s Due Diligence Obligations (n 25) 7–9.

47 United Nations Peacekeeping, ‘Standards of Conduct’ <https://peacekeeping.un.org/en/standards-of-conduct>.

48 Nigel White, ‘Protecting Human Rights in UN Peacekeeping: Operationalising Due Diligence and Accountability’ (2023) King’s Law Journal 2.

49 White, ‘Protecting Human Rights in UN Peacekeeping’ (n 48) 2.

50 See for example: Neil McDonald, ‘The Role of Due Diligence in International Law’ (2019) International and Comparative Law Quarterly 1041; Heike Kriger and Anne Peters, ‘Due Diligence and Structural Changes in the International Legal Order’ in Heike Krieger, Anne Peters and Leonhard Kreuzer (eds), Due Diligence in the International Legal Order (Oxford University Press 2020).

51 Vedanta Resources PLC v Lungowe [2019] UKSC 20; Philippa Webb, ‘Forum Non Conveniens: A Comparative Perspective’ in Thomas John, Rishi Gulati and Ben Koehler (eds), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar 2020).

52 See for example, Kiobel v Royal Dutch Petroleum Co 569 U.S. 108 (2013); Jesner v Arab Bank, PLC, 138 S. Ct. 1386 (2018).

53 UN Guiding Principles on Business and Human Rights (n 4).

54 Rishi Gulati, ‘Meta’s Oversight Board and Transnational Hybrid Adjudication – What Consequences for International Law?’ (2023) 24(3) German Law Journal 473.

55 See generally, Laurence R. Helfer and Molly K. Land, ‘The Meta Oversight Board's Human Rights Future’ (2023) 44(6) Cardozo Law Review; Laurence Helfer and Molly K Land, ‘Is the Facebook Oversight Board an International Human Rights Tribunal?’ (Lawfare, 13 May 2021) <https://www.lawfaremedia.org/article/facebook-oversight-board-international-human-rights-tribunal>.

56 For further discussion on this point, see Burchardt ‘Transnational Procedural Guarantees’ (n 32) p 4.

57 Vedanta Resources PLC v Lungowe (n 51).

58 UNGA, ‘Report of the Redesign Panel on the United Nations System of Administration of Justice’ (23 February 2007) UN Doc A/61/205.

59 Stewart, ‘Holding International Organizations Accountable’ (n 7).

60 UNGA, ‘Resolution Adopted by the General Assembly on 7 December 2022’ (2022) UN Doc A/Res/77/103, para 7.

61 Michael Wood, ‘The Settlement of International Disputes to which International Organizations are Parties’ (2016) II(2) Yearbook of the International Law Commission 387, Annex I, para 5.

62 ILC, ‘First Report on the Settlement of International Disputes to which International Organizations are Parties, by August Reinisch, Special Rapporteur’ (2023) UN Doc A/CN.4/756.

63 Lorenzo Gasbarri, ‘Try Again, Fail Again, Fail Better’: The International Law Commission is back on International Organizations’ (EJIL: Talk!, 28 June 2023) <https://www.ejiltalk.org/try-again-fail-again-fail-better-the-international-law-commission-is-back-on-international-organizations/>.