International Organizations: Legal Personality (PDF)

7. International organizations Brownlie's Principles of Public International Law (9th edn) James Crawford p. 156 7. International organizations James Crawford, Judge of the International Court of Justice and former Whewell Professor of...

7. International organizations Brownlie's Principles of Public International Law (9th edn) James Crawford p. 156 7. International organizations James Crawford, Judge of the International Court of Justice and former Whewell Professor of International Law, University of Cambridge https://doi.org/10.1093/he/9780198737445.003.0007 Published in print: 09 July 2019 Published online: September 2019 Abstract This chapter focuses on the main legal problems arising from interstate organizations. Topics discussed include legal personality, privileges and immunities, performance of acts in the law, interpretation of the constituent instrument, relations of international organizations, law-making through organizations, and legal control of acts of organizations. Keywords: international organizations, international legal personality, privileges and immunities, interpretation of constituent instrument, law-making through international organizations 1. Introduction As discussed in chapter 1, in the late eighteenth and nineteenth century states developed multilateral forms of cooperation, supplementing reliance on bilateral treaties and diplomacy. These included the first international organizations. Initially the mandates of such organizations were constrained, for example the European Commission of the Danube (1856) and the International Telegraph Union (1865). But after 1920 the League of Nations and then the UN provided a more developed notion of universal peacekeeping arrangements, and many specialized institutions concerned with technical, economic, and social cooperation were established. The study of international organizations and the multiplicity of institutions and agencies is a department of the political and social sciences: the present chapter can only indicate the 1 main legal problems arising from interstate organizations. Page 1 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations 2. Legal Personality (A) International organizations as subjects of international law 2 Given the large number of international organizations extant, it is difficult to find a catch-all definition p. 157 that is neither under- nor over-inclusive. One starting point is ↵ Article 2(a) of the ILC’s 2011 Articles on the Responsibility of International Organizations, which provides: ‘[I]nternational organization’ means an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. 3 International organizations may include as members, in addition to States, other entities. Whilst useful, this definition was developed in the context of international responsibility, which presupposes legal personality. It is possible for an international organization to have no such personality but still—by virtue of its treaty-based, interstate character and activity—be considered an international organization. Nonetheless, most international organizations will possess separate personality. Although international organizations have existed since the mid-nineteenth century, attributing legal 4 personality to them took some time. A shift began after 1919, though it was characterized by equivocation. 5 The Covenant of the League of Nations made no reference to legal personality. By 1926, however, its 6 modus vivendi with Switzerland included recognition of its separate existence on the international plane. 7 Then, in Reparation for Injuries the International Court went a step further. Following the assassination of 8 UN envoy Count Folke Bernadotte and his entourage by Zionist nationalists, the Court was asked to advise on the capacity of the UN, as an organization, to bring an international claim for injury to its personnel on the lines of diplomatic protection, and in respect of injury to the UN caused by the harm to its agents. The 9 Charter did not contain any explicit provision on the international legal personality of the UN, but the Court drew on the implications of the instrument as a whole, noting that, if the UN was to fulfil its tasks, 10 ‘the attribution of international personality is indispensable’. The Court then analysed the Charter itself and identified those textual elements that implied that the UN was intended to possess such personality, noting, inter alia, the defined position of Members in relation to the UN and the requirement that they assist it (Art 2(5)), the obligation to comply with and enforce decisions of the Security Council (Art 25), the capacity of the General Assembly to make recommendations p. 158 to Members (Art 10), the grant of legal capacity, privileges, and immunities to the UN in ↵ the territory of its Members (Arts 104, 105), and the conclusion of treaties between the UN and its Members (e.g. Art 43). These, the Court held, indicated that: Page 2 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. Still less is it the same thing as saying that it is ‘a super-state’, whatever that expression may mean …. What it does mean is that it is a subject of international law and capable of possessing international rights and 11 duties, and that it has capacity to maintain its rights by bringing international claims. (B) Indicia of international legal personality 12 Two main theories have been offered to explain the decision. The first is that it is the will of the founders 13 that determines whether an international organization possesses international legal personality. If international law is based on the freely expressed consent of states, they may breathe personality into an 14 organization. But some organizations are not expressly endowed with international legal personality, forcing its generation via inference. This problem was pronounced with organizations formed in the early 15 16 years of the UN, but has declined with respect to later institutions. More substantial is the question how organizations created by some states interact with third parties, whose refusal to acknowledge their separate personality could reflect on the potential emptiness of the concept. One solution is to condition personality on recognition by third parties, but in practice the institution of recognition has not been 17 extended to organizations. p. 159 ↵ The alternative and better view is that international organizations are capable of attaining ‘objective’ 18 legal personality independent of recognition by performing certain functions on the international plane. 19 This was the position taken, at least in part, by the Court in Reparation for Injuries. The criteria for the possession of legal personality by an international organization may be summarized as follows: (1) a permanent association of states, or other organizations, with lawful objects, equipped with organs; (2) distinction, in terms of legal powers and purposes, between the organization and its member states; and (3) the existence of legal powers exercisable on the international plane and not solely within the 20 national systems of one or more states. Page 3 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations An organization may exist but lack the organs and objects necessary for legal personality. The Commonwealth of Nations was such an association initially: it is now regarded as a distinct legal entity, 21 though lacking a formal constitution. Similarly, a multilateral convention may be institutionalized to some extent with provision for regular conferences, yet not involve any separate personality. In its IFAD Advisory Opinion, the Court denied that the Global Mechanism to Combat Desertification had legal personality: not only was there no express provision to that effect in the constituent instruments, but the Global Mechanism had ‘not purported to exercise any power to enter into contracts, agreements or 22 “arrangements”, internationally or nationally’. 23 On the other hand, joint agencies of states, for example an arbitral tribunal or a river commission, may 24 have restricted capacities and limited independence but be regarded as a separate legal person. This applies also to agencies and subsidiary organs of organizations, such as the United Nations Conference on Trade and Development (UNCTAD) or the UN High Commissioner for Refugees. Secondly, if an organization has considerable independence and power to intervene in the affairs of p. 160 member states, the arrangement may resemble a federal union. The EU ↵ is sometimes characterized in this way, though this is debatable, as it is only competent to exercise those powers attributed to it by its 25 member states. Thirdly, while an organization with legal personality is normally established by treaty, the source could be 26 the resolution of a conference of states or a uniform practice. The initial basis of the United Nations 27 Industrial Development Organization (UNIDO) was to be found in resolutions of the General Assembly, whilst the Organization of the Petroleum Exporting Countries (OPEC) and the Organisation for Security and Cooperation in Europe (OSCE) derive from government consensus reached at international conferences. In short, at the international level there is no legal and administrative process comparable to the municipal concept of incorporation. Where there is no constitutional system for recognizing and registering associations as legal persons, the primary test is functional. Indeed, it would be fatuous to work from an abstract model in the face of the existence of some 250 organizations of states, varying from the universal to the bilateral. (C) Objective personality and third states One attribute of the objective theory of legal personality for international organizations is that it renders that personality opposable to third states, even though the organization in question is normally the creation of a treaty. This is made clear in the ILC’s commentary to Draft Article 2, where it is said that ‘it would not be necessary to enquire whether the legal personality of an organization has been recognized by an injured State before considering whether the organization may be held internationally responsible 28 according to the present articles’. In this, the ILC saw as conclusive the decision in Reparation for Injuries, 29 with its emphasis on ‘objective legal personality’. Although the Court conditioned its opinion on the quantity and standing of the founding Members of the UN, there are good reasons for applying this proposition to all international organizations, and in practice this has occurred. Page 4 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations p. 161 3. Privileges and Immunities In order to function effectively, international organizations require minimum standards of freedom and legal security for their assets, headquarters, and other establishments, and for their personnel and 30 accredited representatives of member states. By analogy with diplomatic privileges and immunities, the necessary privileges and immunities of agents of international organizations, as well as of the organizations themselves, in respect of the territorial jurisdiction of host states (i.e. those states which have agreed to house the headquarters or other activities of an organization) may be recognized. The 31 analogy is not perfect, however, and three difficulties are apparent. First, in contrast to diplomatic immunity, it is normal for officials of an organization to have the nationality of (and often a special relationship with) a member state, including the host state. A national of the receiving state who is a member of a foreign mission will only be extended diplomatic immunity on a narrow and highly 32 conditioned basis. Secondly, a diplomat, although immune from the jurisdiction of the receiving state, remains under the sending state’s jurisdiction. Thirdly, whereas reciprocity provides an incentive for states to respect international diplomatic law, an international organization does not have access to an effective regime of sanctions. (A) Sources of privileges and immunities (i) Treaty law 33 The privileges and immunities of international organizations derive from multiple sources. In the first 34 place, the constituent instrument of the organization will ordinarily contain at least a general provision stating that the organization and its personnel are to be accorded immunity. Article 105 of the Charter is emblematic: 1. The Organization shall enjoy in the territory of each of its Members such privileges and p. 162 immunities as are necessary for the fulfilment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization. 35 … A further source of privileges and immunities are separate multilateral agreements. The Convention on the 36 Privileges and Immunities of the United Nations is the example most frequently identified as such, having inspired other similar instruments, notably the Convention on the Privileges and Immunities of the 37 Specialized Agencies. These may be further cemented by headquarters agreements between the organization and host state, for example the agreement between the UN and the US with respect to the UN 38 headquarters in New York. Page 5 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (ii) National law National law, especially host state law, is central in ensuring the privileges and immunities of international organizations. It will generally be required to implement relevant international 39 agreements. It may add to these agreements, or act as substitute where the state in question has yet to enter into them. (iii) Customary international law 40 Then there is the question of the role of customary international law in this context. Some governments 41 and municipal courts have adopted the view that immunity exists in custom. The Restatement Third specifies that international organizations are entitled in custom to ‘such privileges and immunities as are necessary for the fulfilment of the purposes of the organization, including immunity from legal process 42 p. 163 and from financial controls, taxes and duties’. Immunity has occasionally been recognized by ↵ the 43 courts of non-member states, and aspects of the immunity may have the status of general principles of law, though it has been suggested that this may only extend to the UN system, due to its universal 44 character. 45 As to organizations of more limited membership, the question remains open. Speaking of the International Tin Council, Bingham J said: [I]nternational organizations such as the ITC have never so far as I know been recognized at common law as entitled to sovereign status. They are accordingly entitled to no sovereign or diplomatic immunity in this country save where such immunity is granted by legislative 46 instrument, and then only to the extent of such grant. 47 According to Higgins, this misses the point: immunity is necessary to allow these organizations to function, and there is no difference between organizations of limited and unlimited membership in this respect. It would seem churlish for a state to agree to house an organization but deprive it of those attributes that would allow it to function as intended. This point was made by the International Court in 48 Privileges and Immunities of the United Nations. A further question is whether international organizations are entitled to immunity with respect to non- 49 member states. Practice suggests that there is no customary rule on point. A Malaysian court held that comity did not require it to acknowledge immunity granted to an organization of limited membership by 50 the UK. A Swiss court held that it lacked jurisdiction over an employment dispute between an 51 organization and one of its officials, though this may reflect a sui generis exception as distinct from a 52 general rule. It may be argued, however, that if the personality of international organizations stems from an objective assessment of their functions and non-parties are required to accept their separate identity, then this personality must be populated with the attributes necessary for the organization to carry out its mandate, 53 including as necessary the immunity of the institution and its personnel. Page 6 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations p. 164 (B) Privileges and immunities attaching to the organization As noted, the source of privileges and immunities of most organizations is a general treaty provision; some international organizations (notably the UN) have concluded additional treaties articulating these 54 immunities. But if they do not, the general provision in the original agreement will need to be given content. In that case, reference may be had to the functional basis of privileges and immunities, with the extension of a particular protection predicated on necessity. Organizations vary, and so may their immunities. As experience with UN peacekeeping forces shows, relations with the host state in particular will depend a great deal on the specific function involved and all the circumstances. Decisions of national courts on the immunities of agents of international organizations do not produce a coherent body of 55 principles. Some decisions rely by analogy on diplomatic immunities; others take a more rigorously 56 functional view. But four broad immunities and privileges are generally identified as attaching to—and 57 58 subject to waiver by —the organization. The first is immunity from jurisdiction, that is, from all forms of legal process of the forum state. It 59 includes immunity from execution, principally in the sense of judgments or arbitral awards. An 60 expanded example may be seen in the General Agreement Article II, section 2, which provides that: the United Nations, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process, except and in so far as in any particular case it has expressly waived its immunity. The key rationale for this immunity is that otherwise member state courts may purport to rule on the legality of acts of the organization. Some jurisdictions have sought to limit the scope of this immunity by 61 reference to acts done jure gestionis as distinct from jure imperii, by analogy with state immunity. But p. 165 practice is limited to a few ↵ states. In a developing trend, some national courts are prepared to deny immunity with respect to claims for denial of justice before administrative tribunals internal to the 62 organization, due to the circumstantial inconsistency of the immunity with other supervening principles of international law. This is notable in the case of the European Court of Human Rights. In Waite and 63 64 Kennedy v Germany and Beer and Regan v Germany the Court held that Germany’s maintenance of the immunity of the European Space Agency (ESA) was consistent with its obligations under ECHR Article 6(1) 65 regarding the right to a fair trial. The Court held, however, that maintenance of the immunity could not be reflexive, and that access to the German courts with respect to actions against international organizations could only be refused to the extent that the organization possessed an internal process of review that could protect adequately the Article 6(1) rights of any claimants, a requirement fulfilled by the 66 ESA Appeals Board. 67 The second common protection concerns the inviolability of the organization’s premises and archives. In practice, this mirrors the protection granted to diplomatic missions; the authorities may not enter the premises of the organization, even when effecting an arrest or serving a writ, without the consent of the administrative head of the organization. On rare occasions, this protection has been breached: for example, schools administered by the United Nations Relief and Works Agency in the Gaza Strip were 68 damaged through the actions of the Israeli Defence Force during 2009 operations against Hamas. Page 7 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations The third protection afforded to international organizations pertains to currency and other fiscal 69 p. 166 matters. Many international organizations administer considerable ↵ funds, often contributed by their membership, the mobility of which is crucial to their operation. General Convention Article II, section 5 provides: Without being restricted by financial controls, regulations or moratoria of any kind, (a) the United Nations may hold funds, gold or currency of any kind and operate accounts in any currency; (b) the United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other 70 currency. This protects the UN from municipal exchange control regimes. It is supplemented by Article II, section 7, which protects it from direct taxation and customs duties, except municipal taxes which are merely a 71 charge for the use of public utilities. 72 The fourth functional protection extended to international organizations is freedom of communication. This is modelled on the similar freedom of diplomatic missions, and includes freedom from censorship, the right to use codes and couriers, the privilege of the diplomatic bag and its attendant inviolability, and, in the territory of each state, treatment of official communications in a manner as favourable as that 73 accorded to diplomatic missions. The exemplar is General Convention Article III, sections 9 and 10. (C) Privileges and immunities attaching to personnel The privileges and immunities of personnel are again functional: international organizations require 74 people to make decisions and carry them out. (i) Immunity attaching to organization officials There is no general agreement on the scope of immunity in the absence of a treaty. The minimum principle appears to be that officials of international organizations are immune from local jurisdiction and execution in respect of all official acts. Thus, General Convention Article VII, section 18 provides: Page 8 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations Officials of the United Nations shall: (a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; (b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations; (c) be immune from national service obligations; (d) be immune, together with their spouses and relatives dependent on them, from p. 167 immigration restrictions and alien registration; (e) be accorded the same privileges in respect of exchange facilities as are accorded to the officials of comparable ranks forming part of diplomatic missions to the Government concerned; (f) be given, together with their spouses and relatives dependent on them, the same repatriation facilities in time of international crisis as diplomatic envoys; (g) have the right to import free of duty their furniture and effects at the time of first taking up their post in the country in question. Whilst such provisions ordinarily extend such immunity to officials of the organization only, some institutions cast the net wider. The International Criminal Court (ICC) Immunities Agreement and the 75 agreement between the UN and Sierra Leone regarding the Special Court for Sierra Leone both grant 76 77 78 immunity to counsel and persons otherwise assisting, witnesses and victims. The ICSID Convention provides for the immunity of parties, agents, counsel, advocates, witnesses, and experts (Arts 21, 22). 79 Difficulties can arise in determining whether an individual has committed an act in an official capacity. The International Court has held that any determination of an official act made by the Secretary-General is 80 binding, a position not adopted with alacrity by states. Treaties may also require that certain officials be given the equivalent of full diplomatic immunity. Both the General Convention (Art V, section 19) and the Council of Europe Immunity Agreement (Art 16) require that such protection be extended to the Secretary-General and Assistant Secretaries-General, their 81 spouses, and minor children. The immunity given to judges of the International Court and other holders 82 of judicial or prosecutorial offices is also equated to diplomatic privileges. (ii) Immunity attaching to state representatives The agreements that provide immunity to the officials of international organizations usually extend 83 protection to state representatives to the organization. General Convention Article IV, section 11 grants representatives to the UN an even broader set of immunities than those ordinarily granted to officials of the Organization. Indeed, state representative immunity has much more in common with full diplomatic Page 9 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations 84 85 p. 168 immunity ↵ than the protections afforded to officials of the Organization, though the two do not completely align, notably in the frequent restriction that a state representative is only granted immunity 86 from legal process with respect to acts done in an official capacity. State representatives to international organizations are not ordinarily accredited to the host state but to the organization itself. A notable exception to this practice is contained in UN Headquarters Agreement, Article IX, section 25, which requires that apart from permanent representatives and certain other high- ranking officials, the staff of the mission must be agreed between the sending state, the US, and the Secretary-General. The question of privileges and immunities of state representatives is addressed by the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal 87 Character, adopted in 1975 in the face of opposition from the major host states. It has not yet entered into 88 force. 4. Performance of Acts in the Law The analogue for the exercise of legal functions in international relations is the state, in spite of the obvious analogical dangers. The most viable type of organization will have legal powers similar to those normally associated with statehood. However, the individuality of each organization must be emphasized: in the first place, the extent of legal capacity will be found in the constituent treaty of the organization. (A) Treaty-making power 89 90 Although the capacity of international organizations to enter into treaties was originally doubted, it is 91 now uncontroversial. The Vienna Convention on the Law of Treaties between States and International 92 p. 169 Organizations or between International ↵ Organizations was adopted on 21 March 1986; it is 93 modelled, perhaps too closely, on the Vienna Convention on the Law of Treaties (VCLT). It is open for accession ‘by any organization which has the capacity to conclude treaties’ (Art 84). It is not yet in force but acts as a legal and practical guide. The existence of legal personality does not necessarily imply power to make treaties, though in practice organizations readily assume a treaty-making power. Additionally, the constituent instrument may limit 94 the treaty-making powers of the organization to certain organs. The competences of the organization as 95 a whole provide a further limitation. Where an agreement is entered into, however, the organization as a 96 97 whole will be bound, even, potentially, where the contracting organ is acting ultra vires. On the other hand, while the organization is committed by the acts of its organs, member states are not as such bound, 98 given their separate legal personality. Constituent instruments do not normally confer a general treaty-making power, but this may be (somewhat problematically) established via the interpretation of the instrument as a whole or the doctrine 99 of implied powers. The UN Charter authorizes the conclusion of trusteeship agreements (Chapter 12), relationship agreements with the specialized agencies (Arts 57, 63), specialized agreements permitting national armed forces to be placed at the disposal of the Security Council (Art 43), and conventions Page 10 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations concerning privileges and immunities (Art 105(3)). But it has concluded headquarters agreements and agreements on cooperation with other organizations, without express authorization. Thus, a specific constrained power to enter into treaties is used to infer legal personality, which is in turn used to infer a 100 general treating-making power. (B) Capacity to espouse international claims In Reparation for Injuries, the International Court held unanimously that the UN was a legal person with capacity to bring claims against both member and non-member states for direct injuries to the 101 Organization. The power to bring such claims was apparently regarded as concomitant with legal personality. However, the Court also expressed its conclusion in terms of implied powers and 102 p. 170 effectiveness. Similar ↵ reasoning may apply to other organizations. The capacity to espouse claims thus depends (1) on the existence of legal personality, and (2) on the interpretation of the constituent instrument in the light of the functions of the particular organization. In contrast, the existence of immunities is not conditioned on the separate legal personality of the entity concerned. As to functional protection of agents, the Court in Reparation for Injuries used similar reasoning to justify 103 its opinion that the UN could espouse claims for injury to its agents. On this point, the Court was not 104 105 unanimous, but the principle is now largely uncontroversial. The situation remains particularly 106 delicate when a claim is made on behalf of an agent who is a national of the respondent state. The Court addressed this difficulty, noting that: The action of the Organization is in fact based not upon the nationality of the victim but his status as an agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not 107 pertinent to the admissibility of the claim. A problem which remains to be solved is the determination of priorities between the state’s right of 108 diplomatic protection and the organization’s right of functional protection. Again by analogy with states, it may be that the right to espouse is concurrent but subject to a rule against double recovery. (C) Standing before international tribunals When an organization has legal personality it has in principle locus standi before international courts and tribunals. But everything depends on the statute governing the adjudicatory body or the compromis 109 concerned, and in many cases international organizations have no such access. Notably, while certain organizations have access to the International Court through its advisory jurisdiction, the Statute still 110 limits standing to states (Art 34). But international organizations may have standing before p. 171 ↵ international tribunals where the jurisdiction of the tribunal may be activated through the treaty- 111 making or contracting capacity of the organization. Page 11 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (D) Capacity to own property Another element of legal personality is the capacity for an international organization to own property under the municipal law of a state. This is a functional necessity. Conversely, ownership of property may 112 act as an indication of legal personality. Any property so owned falls under the aegis of the organization’s privileges and immunities. (E) Responsibility If an organization has a legal personality distinct from that of the member states, and performs functions 113 which in the hands of states may give rise to responsibility, then it is in principle reasonable to impute 114 responsibility to that organization. Such claims are ordinarily predicated on the exhaustion of ‘local 115 remedies’, that is, before any competent organ of the organization. This follows generally from the Court’s reasoning in Reparation for Injuries. The most notable development in the law of responsibility for 116 international organizations is its codification in the ILC’s Draft Articles of 2011, a project which owes much to the Commission’s previous work on state responsibility. Under Article 3, every internationally wrongful act by an organization entails its international responsibility (see also Art 4). Similar rules have also been adopted with respect to attribution (Arts 6–9), breach of international obligations (Arts 10–13), circumstances precluding wrongfulness (Arts 20–27), the content of international responsibility (Arts 28– 42) and its implementation (Arts 41–57). p. 172 ↵ Moreover, separate legal personality presumptively prevents liability from attaching to an organization’s members, as demonstrated in the International Tin Council cases. This litigation commenced as a consequence of the inability of the ITC to meet its liabilities; the issues of international law (e.g. the question of the residual responsibility of the member states) were not faced head-on by the English courts and the decisions turned to an extent on the construction of the International Tin Council (Immunities and 117 Privileges) Order in relation to matters essentially of English law. In the Court of Appeal in the ‘direct actions’ by creditors against the member states, Kerr LJ concluded: In sum, I cannot find any basis for concluding that it has been shown that there is any rule of international law, binding upon the member states of the ITC, whereby they can be held liable, let alone jointly and severally, in any national court to the creditors of the ITC for the debts of the ITC 118 resulting from contracts concluded by the ITC in its own name. 119 The House of Lords agreed with this view. In adopting the Draft Articles, the ILC confirmed that member states cannot generally be regarded as responsible for the internationally wrongful acts of the organization. No doubt, it would be contrary to good sense if one or a few states could avoid responsibility by creating an international organization to do 120 something they could not lawfully do themselves. But regard must be had to each set of circumstances. In relation to the use of forces under UN authority in peacekeeping operations, the general practice is that 121 financial responsibility is determined by agreements between contributing governments and the UN, 122 and between the latter and the host state. Article 7 here contributes, providing that: Page 12 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct. p. 173 ↵ Additionally, provision is made at length in Part V for the joint responsibility of states and 123 organizations with respect to internationally wrongful acts. States may be held responsible for aiding and abetting wrongful acts by organizations (Art 58), as well as the exercise of direction or control (Art 59), coercion (Art 60), and the acceptance of responsibility (Art 62). Of special note is Article 61, which provides that a state member may incur international responsibility if it causes an organization to commit an act that would have breached an international obligation if committed by the state, irrespective of whether the organization by so doing commits a breach. 124 In practice, the UN has accepted responsibility for the acts of its agents. However, in the case of more specialized organizations with a smaller membership, it may be necessary to fall back on the collective responsibility of members. There is a strong presumption against a delegation of responsibility by a state to an organization arising simply from membership. But the organization may occasionally be conceived of as creating risks and incurring liabilities in the course of its activities and as a vehicle for the distribution of costs and risks. This can be seen from Article XXII(3) of the Convention on International Liability for Damage Caused by Space Objects, which, subject to certain preliminary conditions, provides that ‘[i]f an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention 125 shall be jointly and severally liable.’ 5. Interpretation of the Constituent Instrument Unlike states, international organizations do not possess general competence: they may only exercise 126 those powers expressly or impliedly bestowed upon them. The fundamental rule of the law of international organizations is the principle of attributed powers or speciality (compétences d’attribution). This was stated by the International Court in the Nuclear Weapons opinion: [I]nternational organizations … do not, unlike States, possess a general competence. International p. 174 organizations are governed by the ‘principle of speciality’, that is to say, they are ↵ invested by the States which create them with powers, the limits of which are a function of the common 127 interests whose promotion those States entrust to them. Page 13 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (A) Identity of the interpreter (i) Self-interpretation within international organizations Within international organizations, each organ must interpret its own jurisdiction, irrespective of whether 128 a power is expressly conferred. The International Court accepted this reality in Certain Expenses, holding that, in the absence of further direction within the Charter, each constituent organ of the UN was entitled to determine its jurisdiction in the first instance. Moreover, such determinations, when accompanied by an 129 assertion of propriety, are presumptively intra vires. Full advantage of this has been taken by the General Assembly, which has determined its own jurisdiction on multiple occasions. The Security Council has also been willing to engage in such introspection, notably when considering the meaning of ‘threat to the peace’ under Article 39 of the Charter. (ii) Judicial and other third party interpretation In the event of dispute as to the interpretation of an organization’s constituent instrument, the instrument itself may provide for resolution through a judicial organ. In the context of the UN, this is the International 130 Court which, through its advisory jurisdiction, is able to opine on the capacity of the organs and 131 132 specialized agencies of the Organization. But advisory opinions are not—absent special agreement — binding on the organization concerned, although in practice implementation is normal. p. 175 ↵ In Certain Expenses, the Court faced an issue on which members of the UN were divided, the constitutional basis for the use of armed forces in the United Nations Emergency Force (UNEF) and the United Nations Mission in the Congo (ONUC). The Court concluded that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes 133 of the United Nations, the presumption is that such action is not ultra vires the Organization’. The majority opinion held that the operations were in pursuance of the stated purposes and that the corresponding expenses were ‘expenses of the Organization’ under Article 17(2). The Opinion was criticized on the ground that it permitted non-obligatory recommendations to result in binding financial obligations, giving the General Assembly a supranational budgetary power denied to more integrated 134 communities. More generally, this type of judicial control does not reconcile major divisions between member states: indeed, the opinion could have had a disastrous outcome had the issue of arrears 135 attributable to peacekeeping not been settled by negotiation. Aside from judicial options for the interpretation of a constituent instrument, other sui generis options may 136 137 also exist. A constitution may call for the convening of an arbitral tribunal to hear disputes. Alternatively, an arbitral tribunal established under an agreement between an organization and another 138 party may have to interpret the organization’s constituent instrument. Finally, an international tribunal may interpret an organization’s constituent instrument incidentally to determining its own jurisdiction. For example in Tadić, the International Criminal Tribunal for the Former Yugoslavia held that the Security 139 Council had the capacity to establish an international criminal tribunal under Article 41 of the Charter. Page 14 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (B) Principles of interpretation Whilst acknowledging that ‘the constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply’, the Court has sought to 140 distinguish ‘certain special characteristics’: [T]he constituent instruments of international organizations are also treaties of a particular type; p. 176 their object is to create new subjects of law endowed with a certain autonomy, ↵ to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes 141 to interpret these constituent treaties. Thus, when the issue of interpretation relates to an organization’s constitution, a flexible and even teleological approach may be evident. However, this does not justify the abandonment of the unitary process of interpretation outlined in VCLT Article 31(1), as distinct from the reorganization of priorities within it. In Reparation for Injuries, the Court observed that ‘the rights and duties of an entity such as the Organization must depend upon its purpose and functions as specified or implied in its constituent 142 documents and developed in practice’. Interpretation is to be accomplished with reference to what will enable the organization to achieve its goals effectively. Thus, the Court has held that a capacity to establish a tribunal to do justice between the Organization and staff members, absent an express provision, ‘arises 143 by necessary intendment out of the Charter’. (i) Subsequent practice within the organization As indicated in the Nuclear Weapons in Armed Conflict advisory opinion, ‘the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve 144 special attention when the time comes to interpret … constituent treaties’. The Court thus identified the canon of interpretation in VCLT Article 31(3)(b) (‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’) as particularly pertinent. Article 31(3)(b), is not, however, a perfect analogue, referring impliedly as it does to the practice of states 145 parties to the treaty rather than that of the organization itself. When interpreting the text of a constituent instrument, regard is to be had to the fact that ‘[t]he practice of 146 the organization may have altered the application of the text without affecting its actual wording.’ In Namibia, the Court held, in the light of established Security Council practice concerning the use of the term ‘concurring vote’ in Article 27(3) of the Charter, that abstention on the part of a Permanent Member 147 p. 177 ↵ amounted to a concurrence and did not involve the exercise of a veto. The words were barely capable of sustaining that interpretation, but the supporting practice was of lengthy duration and universal in its scope. Page 15 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (ii) Implied powers This raises the difficult issue of implied powers of international organizations. As was stated in Reparation for Injuries: Under international law, an Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being 148 essential to the performance of its duties. The underlying idea is that an international organization is expected to evolve and adapt to changes on the international plane. The organization’s power of appreciation is wide, but it is not unlimited. Thus, in Legality of the Use by a State of Nuclear Weapons in Armed Conflict the Court denied the World Health Organization the capacity to address the legality of the use of nuclear weapons: In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons—even in view of their health and environmental effects—would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned 149 to it by its member States. The need for balance has led Blokker to identify four limitations on the existence and scope of implied 150 powers. First, the implied power in question must be essential or indispensable to the organization. Secondly, it must not contradict the express provisions of the constituent instrument. Thirdly, it must not violate fundamental rules and principles of international law. Fourthly, it must not change the distribution of power between organs of the organization. Testing the boundaries of interpretive power with respect to 151 constituent instruments may lead to significant disagreements between members. p. 178 6. Relations of International Organizations (A) Relations with members A central aspect of any international organization is the relationship between the institution and its membership. International organizations are normally composed of states, but a number of organizations have operated an effectively functional concept of membership compatible with their special purposes. Thus the Universal Postal Union is a union of postal administrations, the World Meteorological Organization a union of states and territories having their own meteorological service, and the World Trade Organization a union of separate customs territories. Under this type of membership regime, dependent territories have functional equality with member states. In other organizations, dependent 152 territories are given ‘associate’ membership, although in practice they may have equality with other members. Page 16 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (i) Decision-making 153 154 In the League of Nations, decisions could in general only be taken on a basis of unanimity. Today the 155 principle of majority decision is commonly adopted, although voting rules vary between organizations 156 and between organs of the same organization. In the International Monetary Fund (IMF), weighted voting applies; in the UN Security Council, the five Permanent Members have a veto on all non-procedural 157 matters. International organizations are constrained by the fact that they are ordinarily poorly situated to carry out 158 substantive decisions directly. For example, the Security Council may identify a threat to international peace and security under Article 39 of the Charter, and seek to redress it under Articles 41 and 42, but it does not have an economy of its own with which to levy sanctions, nor a military with which to forcibly address the situation (absent troop-contribution agreements under Art 43). In effect, all it can do is make 159 decisions binding on UN Members under Articles 25, 39, and 103. p. 179 (ii) Domestic jurisdiction The type of international cooperation undertaken through an organization and its constituent treaty will normally leave the reserved domain of domestic jurisdiction untouched. When the powers of the organization are extensive, as in the case of the UN, an express reservation may be inserted (Art 2(7) of the 160 Charter). However, the Charter does not allow the reservation to affect the application of enforcement measures against states under Chapter VII. The classic declaration of precisely what constitutes domestic jurisdiction was made by the Permanent Court in Nationality Decrees, where it was said that matters remaining solely within the domestic jurisdiction of states are such ‘matters which are not, in principle, regulated by international law’ and ‘with respect to which States, therefore, [remain] sole judge’. The Court continued: The question whether a certain matter is or is not solely within the domestic jurisdiction of a State 161 is essentially a relative question; it depends on the development of international relations. Some elaboration has been provided by Nolte: [T]he concept of ‘domestic jurisdiction’ does not denote specific areas which are clearly defined, irreducible or in any way inherently removed from the international sphere. It rather circumscribes areas which, taking into account the situation in issue, are not even prima facie 162 affected by rules of international law. 163 But provisions such as Article 2(7) have not proved a generally effective restraint. Page 17 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations (iii) Agency By agreement between the states and the organization concerned, the latter may become an agent for 164 member states, and others, in regard to matters outside its ordinary competence. Conversely, a state may become an agent of an organization for a particular purpose, for example as an administering 165 authority of a trust territory under Article 81 of the UN Charter. p. 180 (iv) Applicable law An organization may enter into legal relations both on the international plane and with persons of private 166 law within particular systems of municipal law. In principle, the relations of the organization with other persons of international law will be governed by international law, with the norms of the constituent treaty predominating when relations with member states of the organization are concerned. When an issue arises from relations with persons of private law, the question may be regulated by a choice of law provision in a treaty which refers to a system of municipal law or possibly to ‘general principles of law’. Otherwise, everything will depend on the forum before which the issue is brought and on the rules of conflict of laws 167 applicable. Indeed, for expediency most international organizations will subject their contracts to one or more systems of municipal law (usually that of the host state); thus, the majority of the UPU and WHO contracts are governed by Swiss law, whereas those of the International Civil Aviation Organization (ICAO) are governed by the law of Quebec. As for personal injury and other forms of tort, the host state agreement may provide a regime of liability 168 for the institution. Where no indication exists, however, it is a generally accepted principle that the 169 organization can be held liable, with the applicable law being that of the place of the injury. (B) Relations with non-member states The general rule is that only parties to a treaty are bound by the obligations contained in it, and this rule applies in principle to the constituent instruments of international organizations. An apparent exception appears in UN Charter Article 2(6), which provides: ‘The Organization shall ensure that States which are not Members of the United Nations act in accordance with the Principles so far as may be necessary for the 170 maintenance of international peace and security.’ The exception, if it is one, rests on the special character of the UN as a quasi-universal organization concerned primarily with the maintenance of global peace and security. With international legal personality comes the capacity to contract. Certainly, third states enter into agreements with organizations which are valid on the international plane. Non-member states may also enter into relations with an organization via special missions. However, the existence of legal personality in an organization does not connote the spectrum of legal capacities, and the constituent instrument remains the prime determinant of specific powers in the matter of third state relations. Page 18 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations p. 181 (C) Relation to municipal law An organization will necessarily enter into relations within particular systems of municipal law, both in 171 the state in which the headquarters are sited and in the course of its wider activities. The extent to which the particular system recognizes its legal personality will depend on the local law as modified by any 172 relevant agreement. Thus, the Treaty on the Functioning of the European Union provides in Article 335 that the Union shall be accorded legal capacity in each member state to the greatest extent accorded to ‘legal persons under their laws’. In the case of the ICAO, the Constitution makes no provision as to the precise content of its legal personality, and as a consequence the status of the organization varies according to the uncoordinated municipal laws of its members. In the case of the English courts, a foreign entity will only be recognized as having legal personality if it has been accorded it under the law of a foreign state recognized by the UK. An international organization will be accorded legal personality (and the capacity to sue) if it has been accorded the legal capacity of a corporation under the law of one or more of the member states or of the law of the state where it has its 173 seat, if that state is not a member state. 7. Law-Making Through Organizations The activities of international organizations do not feature in the sources of international law enumerated 174 in Article 38 of the Statute of the International Court. But they are well placed to contribute to its development. This is due primarily to the capacity for international organizations to express collectively the practice of member states. As Higgins has noted: The United Nations is a very appropriate body to look to for indications of developments in international law, for international custom is to be deduced from the practice of States, which includes their international dealings as manifested by their diplomatic actions and public pronouncements. With the development of international organizations, the votes and views of States have come to have legal significance as evidence of customary law … Collective acts of p. 182 States, repeated by and acquiesced in by sufficient numbers ↵ with sufficient frequency, eventually attain the status of law. The existence of the United Nations—and especially its accelerated trend towards universality of membership since 1955—now provides a very clear, very 175 concentrated focal point for state practice. But the UN is a special case in this regard. The same may not be said for other international organizations, 176 the relative influence of which will depend on their competence and membership. The varied roles played by organizations may be distinguished as follows: (A) Forums for state practice Statements on legal questions by governments through their representatives in organs and committees of organs can provide evidence of customary law; so also with the voting on resolutions concerned with legal matters, for example the resolution of the General Assembly affirming the principles of the Nuremberg Page 19 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations 177 Charter. In this sense, there is nothing inherently special about an international organization; whilst it may provide a state with the opportunity to make a statement on or consider an issue, any opinion so expressed reflects state practice with respect to that state alone. (B) Prescriptive resolutions 178 A resolution, not in itself binding, may prescribe principles of international law and purport to be 179 merely declaratory. However, the mere formulation of principles may articulate and develop the law. When a resolution of the General Assembly touches on subjects dealt with in the UN Charter, it may be regarded as an authoritative interpretation: examples are the Declaration on the Granting of Independence 180 181 to Colonial Countries and Peoples and the Friendly Relations Declaration. Resolutions on new legal problems provide a means of corralling and defining the growing practice of states, while remaining 182 formally hortatory. As the International Court said in Legality of the Threat or Use of Nuclear Weapons: General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a p. 183 rule or the emergence of an opinio juris. To establish whether this is ↵ true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradua1 evolution of the opinio juris required for the establishment of a 183 new rule. (C) Channels for expert opinion 184 Organizations often establish bodies of legal experts, the most important being the ILC, the central 185 project of which is the codification and progressive development of international law as a whole. Key areas of ILC influence include diplomatic and consular relations, the law of the sea, the law of treaties, and the law of responsibility. Paradoxically perhaps, it has been less successful in influencing the law of international organizations, emphasizing the diversity and particularity of that field and the unwillingness of states to be subject to indirect constraints or potential liabilities in their action through international organizations. (D) The practice of political organs Political organs, and particularly the General Assembly and the Security Council of the UN, make numerous recommendations and decisions relating to specific issues which involve the application of general international law or the provisions of the Charter and other instruments. Such continued practice may have legal significance. However, as with state practice, the content of the particular decision and the extent to which legal matters were considered must be examined before legal weight is ascribed. Furthermore, to give legal significance to an omission of an organ is problematic. Some jurists seem to treat the decisions of political organs in terms of the arithmetic of voting, the decisions being taken to Page 20 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations represent the views of n states in the majority and their cogency being on a scale n majority divided by n minority states. However, states cannot by their control of numbers of international organizations raise 186 the value of their state practice by reference to the ‘practice of organizations’. On occasion, a consistent interpretation by members of an organ based on a persistent practice, for example in matters of voting, adopted by that organ will be opposable to all members provided that there is p. 184 substantial evidence of general acceptance by ↵ members of the organization. This was the basis for the 187 decision in Namibia as to the meaning of Article 27(3) of the Charter. The International Court has adopted a more liberal view as to the value of the practice of international organizations. In Nuclear Weapons in Armed Conflict, the Court indicated that the practice of the organization is one of the ‘elements which may deserve special attention’ in the interpretation of 188 constituent instruments. The Court went on to consider the practice of the WHO in deciding whether the legality of nuclear weapons fell within its competence as a specialized agency. In the Kosovo advisory opinion, the Court suggested that the ‘silence of the Special Representative of the Secretary-General in the face of the declaration of independence of 17 February 2008’ corroborated the conclusion that the 189 declaration had been made outside the framework established by the Security Council. This is more problematic: the silence of the Special Representative was more likely a result of the neutrality policy adopted by the Secretariat than of a legal conviction concerning the authorship of the declaration. (E) External practice of organizations Organizations may make agreements with member and non-member states and with other organizations, and may present international claims and make official pronouncements on issues affecting them. Subject to what has been said about the need for care in evaluating acts of political organs, the practice of organizations provides evidence of the law. In addition, the behaviour of international organizations ‘in the field’ may influence the discourse of international law, and thereby indirectly influence the formation of custom. (F) Internal law-making Organizations have considerable autonomy in internal matters such as procedure and the relations 190 between the organization and its staff. Resolutions of organs of the UN on questions of procedure create internal law for members. The UN has developed a code of staff regulations governing the service of its officials, and in 1949 the General Assembly established the United Nations Administrative Tribunal (UNAT) to adjudicate on applications alleging non-observance of employment contracts of staff members 191 of the Secretariat. The United Nations Internal Justice System has been reformed, and the UNAT has been replaced by a two-tiered system comprising a United Nations Dispute Tribunal and a United Nations 192 p. 185 Appeals Tribunal. Other ↵ international organizations also have staff tribunals which have 193 collectively built up substantial administrative jurisprudence. Page 21 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations 8. Control of Acts of Organizations (A) Responsibility under general international law There is no compulsory system for review of the acts of international organizations by external bodies. In this situation, limited control is provided by general international law. As noted, the correlative of legal 194 personality and a capacity to present international claims is responsibility. Moreover, when creating institutions states cannot always hide behind the organization when its activities cause damage to third party interests. (B) Internal political and judicial control The question of practical control turns on the powers of the executive and deliberative organs and the 195 constitutional limitations placed upon them. The division of competence between organs and the limits to the powers of the organization as a whole may be carefully drawn, and, as in the UN Charter, the obligations set out in the relevant instrument may be expressed to apply to the organization itself and its 196 organs. Interpretation of the constituent treaty by the organ entrusted with the power in question is the general rule. Under the Charter, however, reference to the International Court depends on the readiness of political organs to request an advisory opinion and to comply with it once given. Thus, in Namibia it was remarked that ‘[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned’. However, the Court did in fact consider the validity of acts of organs ‘in the exercise of its judicial function and since objections have been 197 advanced’. Notwithstanding the self-determining jurisdiction of many organizations, some steps have been taken towards greater accountability, as illustrated by the establishment of an Inspection Panel within the World 198 Bank in 1993 and of an Independent Evaluation Office within the International Monetary Fund in 2001. 199 But these bodies remain exceptional. p. 186 ↵ Judicial organs may produce an impressive and consistent case law on points of interpretation. However, the political organs may support constitutional developments which are distinctly controversial. An early example was the use of the Uniting for Peace Resolution to create the United Nations Emergency 200 Force following the Suez crisis in 1956. A similar situation arose when the Security Council gave a 201 mandate to the Secretary-General to organize forces for operations in the Congo. The practice of the Security Council in passing overtly ‘legislative’ resolutions responding to a general phenomenon as a threat to peace under Article 39, rather than a specific, geographically defined, situation is a more recent 202 example. 203 The fact is that individual states have no right of recourse and minority opinion can be overridden. States in a minority may withdraw from the organization, acquiesce in what they regard as unlawful operations, resist military forces acting under putative authority of the organization, or simply disobey what they perceive to be a resolution ultra vires. As Judge Morelli said in Certain Expenses: Page 22 of 36 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Sheffield; date: 10 October 2024  7. International organizations In the case of acts of international organizations … there is nothing comparable to the remedies existing in domestic law in connection with administrative acts. The consequence of this is that there is no possibility of applying the concept of voidability to the acts of the United Nations. If an act of an organ of the United Nations had to be considered as an invalid act, such invalidity could 204 constitute only the absolute nullity of the act. 205 States may also withhold financial contributions. This course was adopted in Certain Expenses, and 206 eventually the General Assembly requested an advisory opinion. Even at this juncture, political control was prominent. The request was formulated in a manner calculated to narrow the issue artificially to the interpretation of ‘expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter of the United Nations’. Moreover, the Court’s opinion was sought retrospectively, long after the 207 actions were authorized and enormous expenditure incurred. As a general matter, the problems arising from the ultra vires acts of international organizations are far from being resolved. They are certainly not 208 susceptible to resolution through simplified formulatio