Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review

Abstract

The current contribution focuses on the oversight over international institutions, which is used as a synonym for the accountability of such entities. It departs from the principle that all entities exercising public authority have to account for the exercise thereof. The growing power of international institutions in areas that were formerly regulated domestically, along with the growing impact of their conduct on (the rights of) States and non-State actors alike, has thus far not been matched by a shift in accountability relationships beyond those applicable within the confines of the territorial State. Understandably therefore the calls for the accountability of international institutions have increased in recent years, as it is seen as essential for ensuring their credibility and for securing control over public power. For the purpose of the current contribution, accountability refers to the obligation of international institutions to give a reasoned account of the manner in which they exercise public authority. Of particular importance in this context are normative acts such as standard-setting or rulemaking, or the determining of a particular course of conduct. Decisive is not whether the normative act is legally binding in the formal sense, but rather whether it has a de facto impact on the rights and interests of States and/or non-State actors. The exercise of public authority in the form of a normative act further implies a relationship between an actor and a forum (constituency), a particular conduct which has to be accounted for, as well as forms of or mechanisms for accountability. Whereas the relationship between the actor and the forum should contain an element of distance, (as opposed to self-control) the accountability mechanisms may be judicial as well as non-judicial, (i.e. political, administrative or financial) or any combination of these. The account-ability mechanisms further imply some standard for assessing the conduct of the actor, as well as the possibility of sanctions which can vary from legally enforceable measures to naming-and-shaming.

The research was conducted during a sojourn at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany with the financial support of the Alexander von Humboldt Foundation. This contribution also forms part of a so-called VICI Project of the Netherlands Organisation for Scientific Research (NWO) titled: The emerging international constitutional order: the implications of hierarchy in international law for the coherence and legitimacy of international decision-making.