198 / 464
184
MARTIN FAIX
CYIL 6 ȍ2015Ȏ
a claims commission as envisaged by the applicable SOFA), how shall the respective
practice be developed? Traditional mechanisms are insufficient. For example, action
against an international organisation by way of diplomatic protection depends solely
on the decision of the national state. Another option, namely bringing claims before
domestic courts, is hampered by that fact that international organisations enjoy wide
immunity.
86
There is currently no international judicial or quasi-judicial body having
general jurisdiction over international organisations.
The current practice may arguably be considered as not sufficient to confirm
the
existence
of a general right to reparation applicable also against international
organisations, especially from the background that practice is a constitutive element of
customary international rules; however I am convinced that the arguments presented
are persuasive enough to substantiate that the development towards its application
also against international organizations constitutes an irreversible trend. Any other
option would constitute a bar, if not a
peripeteia
, to efforts to ensure effective human
rights protection, legitimacy of international organisations as international actors
and consequently the rule of law in the international community.
86
Admittedly, in recent years, in decisions of international and national courts the idea of waiving
immunity appeared in cases where no other mechanisms for challenging acts of international
organisations exist. However, claims before domestic or foreign courts are problematic, as immunity
does not constitute the only obstacle in procedures before them.
Cf.
REINISCH, August,
International
Organizations Before National Courts,
New York: Cambridge University Press, 2000.