The 77th Session of the ILC through the Eyes of Research Assistants to a Commission Member. Part 3. Settlement of Disputes to which International Organizations are Parties

The International Law Commission (ILC) addresses some of the most topical issues in international law. Its work is closely followed by many international lawyers. The ILC’s current and long-term programmes of work include issues that are also within the research agenda of the International and Comparative Law Research Center. At various times, the ICLRC has worked on some specific issues that are currently under consideration by the Commission, analyzing relevant State practice, and, at the request of Commission special rapporteurs on particular topics, compiling Russian-language materials on State practice and doctrine.

Since 2024, ICLRC researchers have also participated in ILC sessions as research assistants to the ILC member Mr. Evgeny Zagaynov (Russian Federation). In 2025, Aleksei Petrenko, ICLRC Senior Researcher in Public International Law, attended the meetings in Geneva in that capacity. Aleksei prepared an overview (in Russian) describing the Commission’s functions and role, the status of its work on various topics, and his personal impressions of the ILC’s 76th session.

From April 27 to June 5 and from June 29 to July 30, 2026, the Commission held its 77th session at the United Nations Office at Geneva. Egor Fedorov, Head of Research Projects (Law of the Sea), and Anastasiia Santalova, and Andrey Buyankin, Associate Researchers in Public International Law, participated as research assistants to Mr. Evgeny Zagaynov and share their impressions of the convened work.

In a series of publications, Egor, Anastasiia, and Andrey discuss the principal issues and the course of the debates on the topics that they had an opportunity to work on.

Egor Fedorov

The topic “Settlement of disputes to which international organizations are parties” was included in the long-term programme of work of the International Law Commission (ILC, Commission) in 2016 and has been on its current programme since 2022.

This topic is particularly close and interesting to me because, back in 2016–2017, before the Commission began its work on it, I had the opportunity to study the problems considered within its framework while preparing the article “Srebrenica, Haiti, what is next? The future of the dispute settlement for private law claims brought against the United Nations”.

In my article, I addressed, among other, questions concerning the relationship between the immunities of international organizations and the right of private parties to access to justice; the compatibility of existing mechanisms for the settlement of disputes between the UN and private parties with the latter’s right to a fair trial; possible reform of the existing system for the settlement of disputes between the UN and private parties; etc. Although the article focused primarily on private law disputes involving the UN, many of the issues considered could also be extended to similar disputes involving other international organizations.

For example, it seems that, in practice, situations remain problematic where international organizations (above all the United Nations) distinguish between disputes of a private law and a public law character and use that distinction as a basis for determining the admissibility of a dispute involving private parties. Given such discretion on the part of international organizations, private parties may effectively be deprived of access to remedies. Hence, the following questions arise:

• Should the decision to characterize a dispute as falling into one category or the other be taken already within the dispute settlement mechanism itself, rather than by the international organization at the preliminary stage?

• What are the legal consequences of characterizing a dispute as having a public law nature? Should such a distinction affect the possibility of considering disputes between international organizations and private parties?

• And, finally, does the public law characterization of a dispute entail its exclusion from the scope of the draft guidelines that the ILC is currently working on?

It was particularly interesting for me to follow the discussion of such issues within the Commission and to see what conclusions it could ultimately reach.

General remarks

The topic was previously entitled “Settlement of international disputes to which international organizations are parties”. However, at its 74th session in 2023, the Commission decided to change the title by deleting the word “international”. This was done to make clear that the Commission intended to consider all types of disputes (not only international law disputes) to which international organizations are parties. Accordingly, the topic covers disputes between international organizations, between international organizations and States, and between international organizations and private parties.

Mr. August Reinisch (Austria) was appointed a Special Rapporteur for the topic. He is, among other, a specialist in the law of international organizations and, well before his appointment as the Special Rapporteur, had worked on issues relating to the settlement of disputes to which international organizations are parties. In total, the Special Rapporteur submitted three reports (the first report in 2023, the second report in 2024, and the third report in 2025).

The first report set out the scope of the topic, analyzed its content in the light of the Commission’s previous work and the work of other international bodies, and considered approaches to the definition of terms used. The Special Rapporteur proposed two draft guidelines: one — on the scope of the draft guidelines and the other — on definitions. In 2023, following discussion of the relevant draft guidelines in the Drafting Committee, the Commission provisionally adopted draft guidelines 1 and 2 and the commentaries thereto.

The second report focused on what may be conditionally described as “international disputes”. It analyzed, in particular, the practice of dispute settlement between international organizations, as well as between international organizations and States. The Special Rapporteur proposed four draft guidelines:

• first — on the definition of “international disputes” for the purposes of the draft guidelines,

• second — on the practice of dispute settlement,

• a third one — on access to arbitration and judicial settlement,

• and a fourth — on dispute settlement and the rule of law requirements.

The Commission considered the second report in 2024 and, following discussion of draft guidelines 3, 4, 5 and 6 in the Drafting Committee, provisionally adopted them and the commentaries thereto.

In the third report, the Special Rapporteur considered disputes between international organizations and private parties. He had done so, among other, by describing diverse and to some extent contradictory practice concerning respect for the jurisdictional immunity of international organizations in the settlement of such disputes. Particular attention was paid to the central issue of the relationship between the jurisdictional immunity of international organizations, which ensures their independent functioning, and the right of access to justice, which enables private parties to assert their rights through various dispute settlement mechanisms. As a result, the Special Rapporteur proposed five draft guidelines:

• draft guideline 7, concerning the scope of the relevant provisions of Part Three of the draft guidelines;

• draft guideline 8, concerning resort to means of dispute settlement in the event of a dispute between international organizations and private parties;

• draft guideline 9, on jurisdictional immunity of international organizations;

• draft guideline 10, on access to justice;

• and, finally, draft guideline 11, on procedural rule of law as well as human rights requirements for means of adjudicatory dispute settlement.

The third report was submitted in 2025. However, given the shortened 76th session of the Commission, it was considered only during one meeting in the format of the Working Group of the Whole. The Commission did not hold plenary meetings on the topic but took note of the materials prepared and of the results of the brief discussion among members of the ILC. The main discussion of the third report was planned for and took place at the 77th session.

As far as is known, no further reports by the Special Rapporteur on the topic are expected. At the same time, one cannot but agree with the observation made by many ILC members that the three reports submitted by the Special Rapporteur reflect an impressive amount of research and make a significant contribution to the study and analysis of the law of international organizations.

At the 77th session, the Commission adopted on first reading the text of all the draft guidelines (1-12) and the commentaries thereto. In accordance with articles 16 to 21 of its Statute, the Commission also decided to transmit the adopted draft guidelines to States and relevant international organizations for comments by 1 December 2027 (see the advance copy of the Report of the ILC on its 77th session).

“Notes in the margin”: discussions at the 77th session

Summaries of the statements made by Commission members on the topic “Settlement of disputes to which international organizations are parties” during the plenary meetings at the 77th session are available here, here, here, and here. The summary by the Special Rapporteur following the statements is available here. Finally, the report of the Chair of the Drafting Committee, Mr. Rolf Einar Fife (Norway), reflecting the main aspects of the discussion of the draft guidelines, is available here.

The discussion of the third report and the draft guidelines proposed by the Special Rapporteur was fairly coherent. In their statements during the plenary meetings, all members of the Commission supported the direction of the Special Rapporteur’s work; neither the individual aspects of the topic nor the draft guidelines gave rise to any irreconcilable disagreements or contradictions within the Commission.

At the same time, a significant number of ILC members considered the draft guidelines proposed by the Special Rapporteur to be too general. In the context of the third report, it was noted in particular that, while the report contained an analysis of diverse and extensive practice concerning the settlement of disputes between international organizations and private parties, the draft guidelines themselves did not fully reflect that practice. The view was expressed that, if the guidelines remained too general, they would not provide practical added value for States, international organizations, national courts, and private parties.

In the third report, for example, the relationship between jurisdictional immunity of international organizations and the private parties’ right of access to justice was examined in detail. Following his analysis, the Special Rapporteur noted that the existing practice on this issue was contradictory: most courts upheld the immunity of international organizations even where they considered that the international organizations had not provided “appropriate modes of settlement” or had failed to comply with human rights requirements concerning the provision of “reasonable alternative means of dispute settlement”. In this connection, the Special Rapporteur indicated that, although “denial of immunity will put increased pressure on international organizations to adopt alternative dispute settlement mechanisms, it is preferable to uphold immunity in order to guarantee the independent functioning of international organizations. Nevertheless, the establishment and thus availability of adequate alternative means of dispute settlement must remain a crucial demand.” As a result, the Special Rapporteur proposed draft guidelines 9–11.

Proposed by the Special Rapporteur

Draft guideline 9. Jurisdictional immunity of international organizations

The jurisdictional immunity of international organizations, serving the purpose of ensuring their independent functioning, should be respected.

Draft guideline 10. Access to justice

Arbitration, judicial settlement or other reasonable alternative means of dispute settlement shall be made more widely accessible for the settlement of disputes between international organizations and private parties.

Draft guideline 11. Dispute settlement and procedural rule of law as well as human rights requirements

The means of adjudicatory dispute settlement made available shall conform to procedural rule of law as well as human rights requirements, including the independence and impartiality of adjudicators and due process.

The main discussion at the 77th session unfolded exactly around these provisions.

First, it was noted that the provision on the immunity of international organizations should not be considered in isolation from the question of private parties’ access to justice. On the one hand, the immunity of international organizations is necessary to ensure their independent functioning. On the other hand, such immunity should not lead to a situation in which a private party has no effective remedy. For this reason, a number of Commission members emphasized the need to show more clearly the link between the immunity of international organizations and the obligation to provide reasonable alternative means of dispute settlement.

Second, the wording of draft guideline 9 gave rise to a separate discussion. In the version proposed by the Special Rapporteur, the word “should” was used in connection with the need to “respect” the immunity of international organizations. At the same time, some members of the Commission considered that, with respect to the immunity of international organizations, the word “shall” would be more appropriate. That position was explained by the fact that, where immunity is expressly provided for in applicable international treaties, respect for it is not merely a recommendation but a legal obligation. Notwithstanding that, replacing “should” with “shall” could have created the impression that the Commission proceeded from the existence of a single universal rule on the immunity of international organizations, but the scope of such immunity does depend to a large extent on the particular constituent instrument, agreement on privileges and immunities or headquarters agreement.

Last but not least, the discussion addressed the question of which means of dispute settlement could be regarded as sufficient to ensure private parties’ access to justice. It was noted that arbitration and judicial settlement may undoubtedly play an important role, but that those are not always genuinely accessible to private parties. In this connection, it was emphasized that what matters is not only the formal existence of a mechanism, but also its practical accessibility, effectiveness, independence, and conformity with basic requirements of a fair trial.

Ultimately, the discussions in the Drafting Committee led to substantial revision of the initial draft guidelines 9–11. The Drafting Committee did not depart from the cautious approach of the Special Rapporteur, but sought to indicate more precisely the balance between two competing considerations: the need to respect the immunity of international organizations and the need to ensure private parties’ access to effective means of dispute settlement. Thus, guidelines 9–12 were adopted on first reading.

Guidelines adopted by the Commission on first reading

Guideline 9. Immunity of international organizations

Serving the purpose of ensuring the independent and effective performance of their functions, the immunity of international organizations is to be respected.

Guideline 10. Immunity and dispute settlement

International organizations, which enjoy immunity, shall endeavour to settle disputes with private parties. In this context, they shall make provision for appropriate modes of settlement of disputes. Such modes shall ensure the right of access to justice of private parties.

Guideline 11. Access to justice

In order to ensure the right of access to justice, judicial settlement or reasonable alternative means of dispute settlement, which may include arbitration or administrative tribunals, shall be made more widely accessible for the settlement of disputes between international organizations and private parties. Such means shall be effective and in no circumstances amount to arbitrariness or denial of justice.

Guideline 12. Requirements for means of dispute settlement of an adjudicatory character

Means of dispute settlement of an adjudicatory character shall conform to procedural rule of law as well as human rights requirements, including the independence and impartiality of adjudicators and due process.

First of all, the Drafting Committee moved its focus away from just the jurisdictional immunity of international organizations. Guideline 9, as adopted on first reading, refers to the immunity of international organizations in general. This change in approach is significant because the problem of striking a balance between the immunity of international organizations and access to justice may arise not only in connection with immunity from the jurisdiction of dispute settlement bodies, but also in connection with immunity from enforcement measures. The commentary to guideline 9 expressly stipulates that the word “immunity” encompasses both jurisdictional immunity and immunity from execution or enforcement measures.

In addition, the Drafting Committee chose the compromise formula “is to be respected”. It proved to be stronger (or more “normative”) than the “should be respected” proposed by the Special Rapporteur, but at the same time it was not as categorical as “shall be respected”. This choice enabled the Commission to emphasize the fundamental importance of the immunity of international organizations, without formulating an excessively rigid rule as to its absolute character. In the commentary, the Commission explained that the scope of immunity may vary depending on the applicable treaty obligations and that, in the absence of such treaty obligations, the question of immunity as a rule of customary international law remains contentious.

An important result of the work of the Drafting Committee was the formulation of guideline 10, entitled “Immunity and dispute settlement”. This guideline provides that international organizations, which enjoy immunity, shall endeavour to settle disputes with private parties and shall make provision for appropriate modes of settlement of such disputes. Importantly, such modes shall ensure the right of access to justice of private parties.

As the commentary explains, the obligation to “endeavour to settle disputes” is an obligation of conduct, not an obligation of result. It follows that international organizations are not required to guarantee the actual settlement of every dispute. However, they are required to act in good faith in seeking to settle disputes and to provide procedures which, by their characteristics, are capable of ensuring a private party’s genuine access to justice.

Thus, guideline 10 is aimed precisely at avoiding two extremes: the granting of absolute immunity, or its automatic lifting in the absence of an effective remedy. In other words, the Commission did not conclude that the immunity of an international organization automatically depends on the existence of an alternative remedy. On the other hand, however, it did not leave immunity as an entirely independent institution unrelated to the question of access to justice.

The commentary expressly indicates that guideline 10 serves as a “bridge” between guideline 9, concerning respect for the immunity of international organizations, and guideline 11, concerning access to justice.

Guideline 11, which concerns access to justice, was also substantially clarified.

Unlike the initial draft proposed by the Special Rapporteur, it is not limited to the general idea of the need to expand access to arbitration, judicial settlement or other reasonable alternative means of dispute settlement. In the text adopted by the Commission, this provision is expressly linked to the right of private parties to access to justice. As follows from the commentary, the Commission proceeds on the basis that the right of access to justice derives from international human rights standards, fair trial requirements, due process and the rule of law. The Commission noted that the right of access to justice has a customary character, which explains the use of the mandatory formula “shall” in the wording of the guideline.

At the same time, guideline 11 should not be understood as requiring international organizations to waive immunity. In this connection, the Commission specifically emphasized in the commentary that the expression “more widely accessible” does not entail an obligation to open recourse to national courts. Rather, the point is that, where recourse to national courts may be blocked by the immunity of an international organization, private parties must have access to other judicial or reasonable alternative means of dispute settlement. Arbitration and administrative tribunals are mentioned only as possible examples of such means. Depending on the character of the dispute, other mechanisms may also be relevant, including internal dispute settlement mechanisms, ombuds institutions, and so forth.

In explaining the word “accessible”, the Commission also indicated that what matters is not only the formal legal possibility of recourse to a particular dispute settlement mechanism, but also its practical accessibility. The commentary emphasizes that accessibility must be assessed, inter alia, with regard to the cost of the procedure. Such means must be effective and must in no circumstances amount to arbitrariness or denial of justice. In this respect, guideline 11 is closely connected with the following guideline 12.

Guideline 12 complements guideline 11 and concerns the quality requirements for available means of dispute settlement of an adjudicatory character. In the commentary, the Commission clarifies that the expression “means of dispute settlement of an adjudicatory character” encompasses arbitration and judicial settlement.

The requirements for such means of dispute settlement are based on the right to be heard, the principle of equality (or equality of arms), the independence and impartiality of adjudicators, and compliance with due process. The relevant guarantees derive from international human rights standards, customary international law, and the rule of law requirements. The latter explains the mandatory character of the wording chosen for guideline 12.

In the commentary, the Commission notes separately that, for disputes between international organizations and private parties, the principle of equality is of particular importance, since there is often factual inequality between them as a result of power imbalance, lack of resources and access to legal assistance.

Interim conclusions: progress without revolution

It is clear that, following the 77th session, the Commission substantially changed the structure of the provisions proposed by the Special Rapporteur. Instead of separate provisions on immunity, access to justice and requirements for means of dispute settlement of an adjudicatory character, the text of the guidelines adopted on first reading contains a more complex set of interrelated provisions aimed at ensuring a balance between the immunity of international organizations and the right of private parties to access to justice.

The Commission did not radically revise existing approaches to the immunity of international organizations, but neither did it confine itself to a simple confirmation of the need to respect it. Instead, it proposed a more balanced construction — the immunity of international organizations is to be respected; however, international organizations enjoying such immunity must provide appropriate modes of settlement of disputes that ensure private parties’ access to justice. This approach may be regarded as cautious, but it was precisely this approach that enabled the Commission to reflect the existing heterogeneous practice.

At the same time, it should be noted that, for example, guideline 12 concerns only the requirements for the procedural quality of means of dispute settlement of an adjudicatory character.

On the one hand, this approach is understandable: it is with respect to such means that the requirements of independence, impartiality, equality of arms and due process are most firmly established. By contrast, the internal mechanisms of international organizations differ significantly in their character, ranging from administrative tribunals to ombudspersons, inspection panels and other mechanisms, and formulating a single standard for all such mechanisms would be difficult.

On the other hand, it is precisely internal mechanisms that often give rise to the most acute problems from the perspective of access to justice. If an international organization enjoys immunity from the jurisdiction of national courts, and the only mechanism available to a private party is located within the organization itself and is also created or initiated by that organization, it is especially important that such a mechanism should not turn the organization into a “judge in its own cause”.

Therefore, the practical significance of guidelines 9–12, as adopted by the Commission on first reading, will depend also on the extent to which international organizations take into account the requirements of effectiveness, independence, impartiality, equality of arms and due process when creating and using internal dispute settlement mechanisms.

This observation is directly connected with the questions raised at the beginning of this post concerning the discretion of international organizations in determining the character of a dispute, private law or public law, and whether such a determination should affect the very possibility of considering the claims of a private party. In the commentary to guideline 10, the Commission acknowledged that the precise distinction between disputes of a private law and a public law character gives rise to difficulties in practice. Moreover, the commentary expressly notes that the requirement of the private law character of a dispute has been controversially invoked to reject tort claims in the context of UN peacekeeping operations on the ground that such claims involved “political and policy matters”.

In this respect, the commentary to guideline 10 is of great importance. The Commission indicated that there are strong reasons to consider the obligation to ensure access to justice to be broader than merely in relation to disputes of a private law character. From the rule of law perspective, as the Commission observed, “it appears necessary to demand access to justice in regard to all forms of disputes between international organizations and private parties”.

Hence, the Commission identified an important point of guidance in the commentaries: the characterization of a dispute as not being of a private law character should not automatically become an instrument allowing the claims of a private party to be excluded from consideration. This is especially important where such characterization is carried out by the international organization itself and the private party has no access to an independent external review mechanism.

Overall, although the guidelines may still appear to someone as rather general, the commentaries thereto play an important role in interpretation. It is in the commentaries that the Commission provides guidance concerning existing practice, possible approaches, and factors that must be taken into account when using the guidelines. In addition, the form chosen by the Commission for its final “product” is also significant. If, for example, the text took the form of draft articles potentially intended for subsequent incorporation into treaty form, one might expect greater normative precision. The format of guidelines, by contrast, permits more framework-like formulations, the significance of which is revealed primarily through the commentaries and subsequent practice.

In the light of all the foregoing, the outcome of the Commission’s work on the topic at this stage may be characterized precisely as progress without revolution. The further fate of the topic will also likely depend on the comments of States and international organizations, which are to be submitted by 1 December 2027. It is quite possible that States and international organizations will then express their views on whether they are prepared to recognize, for example, a closer interrelationship between respect for immunity and ensuring private parties’ access to justice.