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Common Law of

International Organizations

By

Finn Seyersted

LEIDEN • BOSTON
2008
This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Seyersted, Finn.
Common law of international organizations / by Finn Seyersted.
p. cm.
Includes bibliographical references and index.
ISBN 978-90-04-16699-8 (hardback : alk. paper) 1. International agencies. 2. Non-
governmental organizations—Law and legislation. 3. International law. I. Title.
KZ4852.S39 2008
341.2—dc22
2008009747

ISBN 978 90 04 16699 8

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CONTENTS

Foreword ............................................................................................... xi
About the author ................................................................................... xxi
Acknowledgements ............................................................................... xxv

PART ONE
INTRODUCTION

Chapter One Scope and purpose ....................................................... 3


What this book is about ..................................................................... 3
International non-governmental organizations ................................. 6
Intergovernmental organizations: history, number, organs ............... 8
Types of intergovernmental organizations ........................................ 9
The common internal and external law ............................................ 21
Delegated, implied or inherent powers? “Interpretation” of
constitutions or customary law? ........................................................ 29
Terminology ...................................................................................... 33

Chapter Two Intergovernmental organizations – internal and


international law ................................................................................... 37
What constitutes an IGO? The lower and the upper limit ................ 37
What organizations are international persons? The required criteria.
Sovereignty ........................................................................................ 43
Is a convention necessary? ................................................................. 46
Capacity for rights, duties and action under international law ......... 53
Is actual performance of international acts necessary? ..................... 56
Possible reasons for denying the general international personality of
intergovernmental organizations ....................................................... 58
vi contents

Chapter Three Basic general distinctions .......................................... 65


Inherent versus delegated powers – as opposed to the ction of
“implied powers” ............................................................................... 65
Organic jurisdiction and organic contra territorial and personal
connecting factors ............................................................................. 70
Internal law: distinct legal systems parallel to national public law,
not to public international law .......................................................... 72

PART TWO
INTERNAL LAW OF
INTERGOVERNMENTAL ORGANIZATIONS

Chapter Four Types of jurisdiction exercised by self-governing


communities .......................................................................................... 81
Territorial, personal and organic jurisdiction of States ..................... 81
Organic and membership jurisdiction of the Holy See .................... 92
Organic, membership and extended jurisdiction of intergovern-
mental organizations ......................................................................... 96

Chapter Five Inherent jurisdiction over organs and ofcials .............. 107
Internal legislation of intergovernmental organizations ................... 107
Internal administration of intergovernmental organizations ............ 117
Internal judicial power ...................................................................... 120
Scope of the inherent jurisdiction. General ...................................... 122
Organic jurisdiction over ofcials. Relationship of employment ....... 137
Do headquarters agreements providing for application of local law
within the headquarters district interfere with the organic
jurisdiction? ....................................................................................... 174
Conclusions: organic jurisdiction of States, intergovernmental
organizations and other sovereign communities ............................... 177

Chapter Six Extended jurisdiction of some organizations in


substantive matters (delegated powers) .................................................. 183
Introduction ...................................................................................... 183
Territorial jurisdiction ....................................................................... 184
Personal jurisdiction .......................................................................... 208
Decisions binding upon States ......................................................... 215
Legal basis for extended jurisdiction ................................................ 239
contents vii

Chapter Seven Settlement of internal disputes .................................. 245


Introduction ...................................................................................... 245
Constitutional provisions .................................................................. 246
Settlement by administrative decision of the organization ............. 248
Internal courts for disputes involving ofcials .................................. 257
Internal courts for other disputes ..................................................... 279
Internal courts – conclusions ............................................................ 292
Are internal courts governed by the law of international courts? .... 297
External courts .................................................................................. 307
International courts .......................................................................... 317
Binding “advisory” opinions of the International Court of Justice ... 334
Preliminary questions of another legal system ................................ 341
Settlement of disputes, conclusions .................................................. 350

PART THREE
PUBLIC INTERNATIONAL LAW

Chapter Eight Public international law; introduction ........................ 357


Constitutional provisions only for legal personality of national
law ..................................................................................................... 357
Legal theory contra practice: delegated and “implied” contra
inherent powers ................................................................................ 359
Do the international capacities depend upon the constitution and
the intentions of its framers? Scope of the international
personality ......................................................................................... 362
Are the member States subjects of the international rights and
duties? ................................................................................................ 371
Are only States original or necessary subjects of international law?
The position of other sovereign communities ................................. 375
Validity vis-à-vis non-members ......................................................... 380
Conclusions ....................................................................................... 391

Chapter Nine International acts ........................................................ 401


Conclusion of treaties ....................................................................... 401
Other acts .......................................................................................... 406
Advisory opinions of the International Court of Justice ................... 410
viii contents

Chapter Ten Responsibility of intergovernmental organizations ...... 415


Introduction ...................................................................................... 415
The International Law Commission’s work ...................................... 415
Are States relieved of their responsibility if they delegate their
relevant powers to the organization? ................................................. 420
Is the organization relieved of its responsibility if the States which
delegate powers to it remain responsible? ......................................... 429
The responsibility of the organization in elds where no powers have
been delegated to it ............................................................................ 430

PART FOUR
CONFLICT OF LAWS:
RELATIONS WITH PRIVATE PARTIES

Chapter Eleven Internal relations ...................................................... 441


Exclusive application of the internal law of the organization: the
organic connecting factor .................................................................. 441
Delimitation of the organic jurisdiction over ofcials ........................ 443
Relations jure imperii ............................................................................ 445
Other internal relations ..................................................................... 447

Chapter Twelve External relations with private parties,


introduction ........................................................................................... 449
Types of relations .............................................................................. 449
Application of national law ............................................................... 449
Theory on national versus international law ..................................... 450
The autonomy of the parties ............................................................. 456
General principles of conict of laws as a subsidiary or binding
source of each system of conict of laws .......................................... 458
Plan of discussion .............................................................................. 459

Chapter Thirteen Provisions on applicable law ................................. 461


National legislation ............................................................................ 461
General international conventions .................................................... 462
IGO constitutions .............................................................................. 466
Conventions on privileges and immunities. Power of the
organization to enact conicts law .................................................... 471
IGO regulations and general conditions ........................................... 474
Contract clauses referring to applicable law ...................................... 479
contents ix

Clauses in arbitration agreements ..................................................... 485


Rules adopted by the Institut de droit international .................................. 486
Conclusions ....................................................................................... 486

Chapter Fourteen Practice when there is no conicts provision.


Examples of application of law other than national law ....................... 489
Introduction ...................................................................................... 489
General practice ................................................................................ 490
Relations with non-governmental organizations ............................... 491
International bank loan agreements .................................................. 496
An important arbitral award ............................................................. 503

Chapter Fifteen Relationship between international law of IGOs and


general principles of law ....................................................................... 507
The problems .................................................................................... 507
Reasons for avoiding national law. Practice ....................................... 507
General principles of law .................................................................. 510
International law ............................................................................... 513
Internal law of IGOs. Relationship to international and
national law ....................................................................................... 514
General principles of law as a source of the other legal systems ....... 515
Field of application of internal IGO law .......................................... 517
Choice between international law and general principles of law ...... 518
Conclusions. Relations jure gestionis with other sovereign
communities ...................................................................................... 522

Chapter Sixteen Choice between national laws: references to the law


of the organization in traditional conict of laws ................................. 525
General .............................................................................................. 525
Organic connecting factors (in public law) ........................................ 528
Personal connecting factors in the law of persons ............................. 535
Territorial connecting factors (in private law) .................................... 549
Lex domicilii (and lex patria) in economic law .................................. 558
Conclusions ....................................................................................... 564

Chapter Seventeen Relationship between competent courts and


applicable law. Interpretation of jurisdictional clauses .......................... 567
Introduction ...................................................................................... 567
Procedural law ................................................................................... 567
International courts ........................................................................... 569
x contents

National courts .................................................................................. 570


Arbitral tribunals ............................................................................... 572
Internal courts of the organization ................................................... 574
No jurisdictional clause in the contract ............................................. 577

Chapter Eighteen Conclusions .......................................................... 579


Applicable provisions and general principles of conict of laws ....... 579
Internal relations ............................................................................... 580
External relations: the four alternatives ............................................. 580
Substantive presumptions .................................................................. 582
Jurisdictional presumptions ............................................................... 584
Tentative nature of presumptions ..................................................... 584

Table of cases ........................................................................................ 587

Index ..................................................................................................... 589


FOREWORD

When Professor Finn Seyersted passed away in December 2006 he had for
many years worked on a manuscript entitled “Common Law of International
Organizations”, mainly based on his earlier work, listed below, on objective
legal personality. Never nished, the manuscript provides a comprehensive
theory of the system of legal norms that are developed partly in the internal
written (constitutional) law of international organizations and partly through
their consistent practice, and that are therefore common to international orga-
nizations. It was the author’s wish that the manuscript should be completed
and published. As an old student of Professor Seyersted’s I have taken upon
myself to contribute to nalizing the present book.
For generations of students Professor Seyersted was a source of inspiration.
He drew extensively on his own personal experience from working in and
with international organizations in his lectures, and he maintained that any
legal theory that cannot conform to law in practice is of questionable value.
The contradiction and lack of coordination between theory and practice that
he observed, would bring to mind the old German philosophical description
that “theory is when one knows everything and nothing so happens. Practice
is when everything functions and nobody knows why.”1 In this respect he
sided with the Scandinavian school of legal realism. Inspired by the Danish
scholar and legal philosopher Alf Ross,2 the theory of objective personal-
ity of international organizations owes to the reconceptualization of public
international law by Ross as the law applicable to self-governing (sovereign)
communities.
The legal construction presented in this book consists of the following
main elements:

1 “Theorie ist wenn man alles weiß und nichts klappt. Praxis ist wenn alles funktioniert und
keiner weiß warum.”
2 For an analysis of Alf Ross’ contribution to international law, see A.L. Escorihuela; Alf
Ross: Towards a Realist Critique and Reconstruction of International Law, EJIL (2003),
Vol. 14 No. 4, pp. 703–766.
xii foreword

As for all other self-governing communities, all international organizations


possess their own internal law governing their relations with 1) the organs of
the organization, 2) the ofcials and 3) the member States in their capacity
as members of the organization. Some organizations exercise, in addition,
extended (delegated) jurisdiction over States, other organizations and/or
individuals.
Secondly, as for other self-governing communities all international organi-
zations are subjects of public international law in their relations with other
self-governing communities (States and other international organizations),
and in the case of extended jurisdiction, also in relations with individuals
and private entities.
Thirdly, as for all other self-governing communities possessing their own
internal law (their distinct lex personalis), international organizations enter into
relations of a private law nature with both public and private entities. Governed
by the rules on conict of laws, these relations must be determined by assess-
ing relevant 1) personal, 2) territorial and 3) organic connecting factors.
Thus “Common Law of International Organizations” brings together all
those elements pertaining to the theory of objective legal personality that have,
until now, been presented in a scattered fashion, in bits and pieces.
Even so, it is only rarely that one comes across a study on international
organizations without nding references to the work and theory of Professor
Seyersted on objective legal personality. As was noted by Karl Zemanek on
the 1986 Vienna Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations, the textual compromise reached
lends itself to the interpretation “that international organizations possess treaty-
making capacity by virtue of general (customary) international law, if that
capacity is necessary for their exercise of their functions and the fulllment
of their purposes” which “comes very close to, if it is not identical with the
theory which Finn Seyersted has defenced [sic] for many years”.3
The sole purpose of my own involvement in the completion of the manuscript
is to contribute to making available to new generations of legal practitioners,
scholars and students this exposition of the common law of international
organizations based on the theory of objective legal personality. In doing so,

3 Karl Zemanek, The United Nations Conference on the Law of Treaties Between States
and International Organizations or Between International Organizations, The Unrecorded
History of its “General Agreement”, in Karl-Heinz Böckstiegel, Hans-Ernst Folz, Jörg
Manfred Mössner and Karl Zemanek (eds.), Völkerrecht – Recht der Internationalen
Organisationen – Weltwirtschaftsrecht. Festschrift für Ignaz Seidl-Hohenveldern (Cologne,
Berlin, Bonn and Munich, 1988), pp. 665–79 at 671, cited in August Reinisch, International
Organizations Before National Courts, Cambridge 2000, p. 59, note 117.
foreword xiii

I have decided to prefer speed to perfection and have concentrated on the


updates, corrections and completions that have been thought of as essential
to the presentation of the book. Of course I alone stand to be corrected for
any errors committed in this process. Wherever in this book it is referred
to the “present writer” the submissions are a true reference to the original
manuscript of the author.
I would like to thank Henrik Bull, judge at the EFTA Court in Luxembourg,
for valuable inspiration, guidance and corrections, particularly on matters
relating to European organizations and EU Law and Øyvind Hernes, former
executive ofcer/adviser in the Legal Department of the Royal Ministry of
Foreign Affairs, Norway, for providing insight and comments, particularly on
the work of the International Law Commission.

II

Turning to the context of Professor Seyersted’s work, it is worth observing that


his writing has consistently been guided and inspired by the idea that interna-
tional organizations are inherently a good thing in that they contribute to a
system of global governance that other mechanisms of coordination among
sovereign States could not bring about with the same degree of efciency
and legitimacy. His has always been a functional approach, meaning that a
sufcient margin of manoeuvre and independence from unwarranted State
inuence is needed for organizations to be able to deliver results on key com-
mon goals, such as world peace,4 fundamental rights, sustainable development
and distribution of prosperity. This is not to say that the contribution of the
objective legal theory is to let international organizations loose on the rest of
us without constitutional restrictions. On the contrary, the main achievement
of the theory presented in this book is to meaningfully identify the limits of
international organizations’ internal and external powers by breaking down
the concept of their exercise of powers into its various, distinct elements.

4 The aim of the United Nations is no less than “saving succeeding generations from the
scourge of war”, cf. rst preamble paragraph of the Charter. In this context it is inter-
esting to note that the UN, the specialized agencies and the IAEA have been awarded
the Nobel Peace Prize no less than seven times since 1954; UNHCR (1954), UNICEF
(1965), ILO (1969), UNHCR again (1981), UN peace-keeping forces (1988), the UN and
Secretary-General Ko Annan (2001) and IAEA (2005). Moreover, the 2007 peace prize
was awarded to Al Gore and The Intergovernmental Panel on Climate Change (IPCC),
established by WMO and UNEP.
xiv foreword

In this context, organizations have over the years become subject to closer
and more intense scrutiny, and their acts are no longer accepted just like that.5
In parallel, both government policies and business activities of multinational
corporations are being challenged on their values and on the social conse-
quences of their entrepreneurship, not only by their members or shareholders,
but also by the stakeholders. This rethinking of social responsibility has in turn
put pressure on international organizations e.g. in the eld of project funding,
such as the World Bank, to further address the local impacts of their activi-
ties. There is no reason to believe that international organizations generally
will be put to a more lenient test of social responsibility, democratic values,
legitimacy and accountability in the years to come.
In this legal landscape functionalism has in part been replaced by a call for
good governance, and international organizations are seen as a good thing
only insofar as they deliver on those demands. “In order for an organization
to be said to exercise sovereign powers then it must ensure that it is in accord
with sovereign values”.6 For some organizations that only in limited elds of
cooperation are vested with extended powers to commit States, individuals
or entities outside the organization, such as in the eld of trade, nance or
security, there is a growing pressure for them to take into account wider soci-
etal values such as e.g. the environment, human rights, health and consumer
protection.7 The fundamental debate on international organizations’ perceived
“democratic decit” is another important part of this picture. Even to the
extent that international organizations are made up of sovereign, democratic
communities, it is inherently difcult for them to recreate the ideals of repre-
sentative democracy on the international level.8 A more proper starting point
is perhaps the democratic decit that would result from a lack of organized
regional and global coordination between sovereign States.9

5 Cf. Jan Klabbers, The life and times of the Law of International Organizations, Nordic
Journal of International Law, Vol. 70 2001, p. 314.
6 Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers, Oxford
2005, p. 10.
7 On the perception of WTO law favouring narrow commercial interests, see Allan Rosas’
comments on ECJ Case C-149/96 Portugal v. Council, on the possible direct effect of
WTO law in the European Community; Common Market Law Review, Vol. 37 2000, pp.
797–816. Similarly the Multilateral Development Banks have been criticized for a lack
of democratic basis, as their decision-making is based on the ratio of member States’
shareholding.
8 Important questions of democratic distribution of powers were addressed by the Conven-
tion assigned by the European Council to propose a new EU constitutional treaty in the
following way; how to bring citizens closer to the European design and European Institu-
tions; how to organise politics and the European political area in an enlarged Union; and
how to develop the Union into a stabilising factor and a model in the new world order.
9 Cf. also infra, note 17.
foreword xv

“Common Law of International Organizations” contributes in several


ways to addressing, in terms of legal theory, important challenges of good
governance and accountability.
Firstly, it should be underlined that the theory of objective legal personal-
ity may offer a solution to the problem of “soft” organizations or undened
legal constructions in international relations between States or international
organizations. In a sense such undened or autonomous entities may be said
to “exist in institutional and constitutional limbo outside the remit of any
effective judicial or parliamentary control: it is not clear what they can do, how
they can do it, or how they can be prevented from doing whatever it is they
can do. The only thing that is clear is that they harbour and accommodate
executive power, untrammeled, unimpeded, and unchecked”.10 What the theory
of objective legal personality offers is a model to clarify uncertainties as to
the status of “soft” organizations, which are set up as any other international
organization (and not as mere intergovernmental networks), but without the
intention of vesting the organization with the proper rights and obligations
that follows from the common law of international organizations. This is so
because the theory of objective legal personality does not rely exclusively on
the intent of the organization’s founding fathers or on powers “implied” in
its constitution, but on the fact that the organization exists and thus becomes
a subject of international law ipso facto.
Thus, organizations which fulll objective criteria are international orga-
nizations, and the common law described in this book apply to them. This
must imply that the organization as a separate legal person is internationally
responsible for its wrongful acts under public international law. And even
though the organization has no inherent capacity to commit the member
States nancially without legal basis in its constitution or otherwise, member
States will be expected to provide the resources necessary for the organiza-
tion to comply with its promises, as an emerging rule of common law of
international organizations.
There has been a scholarly debate particularly on the legal status of GATT
and the later World Trade Organization (WTO), the Organization for Secu-
rity and Co-operation in Europe (OSCE) and the European Union (EU) as
distinct from the legal personality of the European Community (EC). While
sovereign communities are free to establish or not to establish an international
organization, they have to respect legitimate expectations of third parties in
so doing. In light of EU’s treaty-making capacity, if the EU could nonethe-

10 Jan Klabbers, Soft Organizations in International Law, Nordic Journal of International


Law, Vol. 70 2001, pp. 406–7 and note 19.
xvi foreword

less deny being bound by its agreements under international law because its
drafters never endowed it with legal personality,11 I, for one, would probably
have to be looking for another job. While the issue of classication of GATT
was about as interesting to GATT ofcials as “ornithology is to birds”,12 a
locally engaged OSCE ofcial on mission being thrown to jail because of
uncertainties of her legal status and that of the organization, turns out to
pose entirely different questions.
Certain mechanisms of international coordination may be described as
purely intergovernmental networks, and as such they offer a solution to the
perceived lack of accountability in that the participating national ofcials are
made democratically accountable to their respective publics through domestic
institutions.13 National governmental bodies are, for example, increasingly
representatives of a global administration responsible for implementing inter-
national standards for the achievement of common objectives, e.g. in the eld
of environmental protection.14
The pluses and minuses of not creating a formal organization can be viewed
in light of the reasoning behind the set-up of the Group of 8 (G8):
The G8 has remained informal and light on bureaucracy: it has no secretariat,
no central ofce and no formal rules of procedure. Co-ordination is in the
hands of the rotating Presidency and the Sherpa system provides direct links
to Heads. On the plus side this means that the G8 is able to react quickly to
events while reecting the foreign policy and domestic concerns of the world’s
most powerful leaders. Notable successes have included breakthroughs on debt,
climate change and non-proliferation. The weaknesses are a poor institutional
memory, the absence of an in-built mechanism for following-up or implement-
ing agreements, and the lack of a formal consultative mechanism. Nevertheless,

11 Ibid., p. 414. The EU’s external treaty competence, as distinct from the EC, was introduced
in 1997 by the Treaty of Amsterdam, cf. Art. J.14 (OJ C 340, 10 November 1997). The
Treaty of Lisbon, 13 December 2007 (OJ C 306, 17 December 2007), will merge the
“pillars” and the legal personality of the EU/EC into one.
12 Ibid., p. 407 note 21.
13 In this sense Anne-Marie Slaughter, A New World Order, Princeton 2004, who regards
national governments as guarantors of democratic accountability in international net-
works. As noted by Kingsbury et al., infra note 14, p. 36, this model is not well adapted
and may actually work against the realization of solidarist or cosmopolitan conceptions
of international administration. A further question is: who is the relevant constituency?
If the relevant public is global in character and different from the sum of the national
publics, domestic procedures may be insufcient, at least in their traditional form (Id.
p. 41).
14 Cf. Kingsbury et al., International Law and Justice (IILJ) Working Papers, New York,
2004/1, p. 9. Cf. also N. Krisch and B. Kingsbury, Global Governance and Global
Administrative Law in the International Legal Order, EJIL Vol. 17 (2006) No. 1, pp. 1 ff.
foreword xvii

successive leaders have consistently resisted the temptation to create a Secretariat,


which they believe would swamp the process in bureaucracy.15
Yet, as an intergovernmental network it is perceived as a powerful forum in
world politics. The group’s legal status does not seem to be decisive to dem-
onstrators as there has been no less massive mobilization against G8 summits
compared to the protests at WTO summits or European Council meetings,
although the G8 seems to be challenged more by the positions they do not
take than by the actual results the group delivers. What is important in this
connection, is that the participating States cannot hide behind the veil of the
organization, and accountability for consensus decisions runs, in principle,
through national capitals. On the other hand, from an international perspective
the legitimacy of governance limited within national States is fundamentally
awed in so far as it remains inevitably one-sided and parochial or selsh. It
has been argued that the possibilities of what international law can achieve
are limited by the congurations of State interests and the distribution of
State power.16 International organizations may be designed so as to cure these
deciencies as a correction of national State failures, and they may derive
their legitimacy from this compensatory function.17
In conclusion, objective criteria of international legal personality means
that “what you see is what you get”, or as put by Klabbers,18 “if an entity
looks like an international organization, functions like one, and is treated by
outsiders as one, then it is pretty unlikely that in reality it is, all appearances
notwithstanding, something other than an international organization”.
Secondly, the concept of “common law of international organiza-
tions” opens new possibilities for organizations to adapt their practices to
new demands of democracy, legitimacy, good governance and accountability
through borrowing, copying or importing standards as e.g. set by other orga-
nizations.19 They all have the inherent capacity to adapt their internal law
and organizational structure to meet the demands required by their exercise

15 G8; “Pluses and minuses”, cf. www.fco.gov.uk (visited September 2007).


16 Cf. Jack L. Goldsmith and Eric A. Posner; The Limits of International Law, New York
2005, p. 13, who do not include international organizations in their analysis of international
law. See also the pertinent reminder of the importance of State interests in the formation
of international organizations, in Schermers and Blokker, International Institutional Law,
4th ed., Leiden 2003, § 18.
17 Christian Joerges; Re-Constitutionalising Transnational Governance Through Conict of
Laws: The Example of International Trade – An Outline, paper submitted to The New
International Law Conference, Oslo 15 – 18 March 2007, p. 13.
18 Ibid. note 10, p. 415.
19 Cf. the examples of “borrowing regimes” provided by Sabino Cassese in Shrimps, Turtles
and Procedure: Global Standards for National Administrations, International Law and
Justice (IILJ) Working Paper, New York, 2004/4.
xviii foreword

of governmental functions. Even though each international organization


possesses its own distinct internal law, there will often be a need to supple-
ment its written sources of law with references to general principles of law,
international (or global) administrative law, international peremptory norms
or otherwise.
This legal method is of importance also in order to address the problem
of fragmentation of international law. A “systemic integration” as described
by the International Law Commission’s Study Group
looks beyond the individual case. By making sure that the outcome is
linked to the legal environment, and that adjoining rules are considered –
perhaps applied, perhaps invalidated, perhaps momentarily set aside – any deci-
sion also articulates the legal-institutional environment in view of substantive
preferences, distributionary choices and political objectives. This articulation is
quite important in a decentralized and spontaneous institutional world whose
priorities and objectives are often poorly expressed. It is also important for the
critical and constructive development of international institutions, especially
institutions with law-applying tasks. To hold those institutions as fully isolated
from each other and as only paying attention to their own objectives and pref-
erences is to think of law only as an instrument for attaining regime-objectives.
But law is also about protecting rights and enforcing obligations, above all rights
and obligations that have a backing in something like a general, public interest.
Without the principle of “systemic integration” it would be impossible to give
expression to and to keep alive, any sense of the common good of humankind,
not reducible to the good of any particular institution or “regime”.20
A vehicle to achieve a greater “systemic integration” is found in the so-called
judicial dialogue or interaction between judicial organs of different interna-
tional organizations, a process that also involves national courts of the mem-
ber States inter alia through the legal mechanism of requesting preliminary
rulings. The formulation of human rights as part of Community law has for
example largely been developed through the jurisprudence of the European
Court of Justice.21 Other examples are “imports” from national legal systems
in the development of the principle of proportionality and the precautionary
principle in European law.22

20 Fragmentation of International Law: Difculties Arising From the Diversication and


Expansion of International Law; Report of the Study Group of the International Law
Commission, Finalized by Martti Koskenniemi, Doc. A/CN.4/L.682 13 April 2006, page
244, para. 480.
21 Cf. Allan Rosas, The European Court of Justice and Fundamental Rights, in Carl Bauden-
bacher and Henrik Bull (eds.): European Integration through Interaction of Legal Regimes,
Centre for European Law, University of Oslo, IUSEF No. 50 2007, pp. 33-63.
22 For the latter principle see further Carl Baudenbacher, The Denition of the Precaution-
ary Principle in European Law: A Product of Judicial Dialogue, ibid., supra note 21, pp.
1–31.
foreword xix

Another example of current developments of common law in international


organizations that seems to draw on the principle of “systemic integration” is
the UN draft resolution on the administration of justice at the United Nations.23
By this resolution the General Assembly emphasizes “the importance for the
United Nations to have an efcient and effective system of administration of
justice so as to ensure that individuals and the Organization are held account-
able for their actions in accordance with relevant resolutions and regulations”
and on this basis to decide to “establish a new, independent, transparent,
professionalized, adequately resourced and decentralized system of adminis-
tration of justice consistent with the relevant rules of international law and
the principles of the rule of law and due process to ensure respect for the
rights and obligations of staff members and accountability of managers and
staff members alike”. In the 5th Committee debate on 22 March 2007 the
German representative on behalf of the EU stated inter alia that: “The United
Nation’s system of administration of justice urgently needs to be reformed.
It does currently not comply with international standards. [..] Therefore, the
system must be professionalized and be in conformity with relevant rules of
international law, principles of the rule of law and due process.” Similarly,
the Chinese representative on behalf of the G77 stated that “We consider a
professional, independent and adequately resourced system of internal justice
as a central pillar of the accountability framework of the Organization”.
A further example of “systemic” development of common law is concerned
with targeted sanctions and freezing of funds belonging to or controlled by
private individuals and groups of individuals. In its best practices document,24
the EU states that “The introduction and implementation of restrictive measures
must always be in accordance with international law. They must respect human
rights and fundamental freedoms, in particular due process and the right to
an effective remedy. The measures imposed must always be proportionate to
their objective.” The Court of First Instance of the European Communities
has in several judgments inter alia stated that “According to settled case-law,
observance of the right to a fair hearing is, in all proceedings initiated against
a person which are liable to culminate in a measure adversely affecting that
person, a fundamental principle of Community law which must be guaran-
teed even in the absence of any rules governing the procedure in question”.25

23 See doc. A/RES/61/261, 30 April 2007.


24 Guidelines on implementation and evaluation of restrictive measures (sanctions) in the
framework of the EU Common Foreign and Security Policy, Council doc. 15114/05, 2
December 2005, see also on measures to avoid mistaken identity, EU Best Practices for the
effective implementation of restrictive measures, Council doc. 10533/06, 14 June 2006.
25 See e.g. Case T-228/02, Organisation des Mojahedines du peuple d’Iran v. Council of
the European Union, judgment of 12 December 2006, para. 91, Ofcial Journal of the
European Union 2006/C 331/63.
xx foreword

The UN Security Council, by passing resolution 1730 on 19 December 2006,


committed itself to “fair and clear procedures [. . .] for placing individuals and
entities on sanctions lists and for removing them” and decided to establish a
“focal point to receive de-listing requests [and to perform the tasks described
in the annex]”.
These few examples based on current thinking on organizations’ exercise
of power, support the proposition that the “Common Law of International
Organizations”, starting out from the position of objective legal personal-
ity, is fully compatible with modern requirements of good governance and
accountability of international organizations, and particularly adaptable to
the ideal of “systemic integration” of legal regimes constituting internal law
of the organization.

Tornn Rislaa Arntsen*

* Assistant Director General, Legal Department, Royal Norwegian Ministry of Foreign


Affairs. Nothing in this book shall be understood as reecting the ofcial views of the
Norwegian Ministry of Foreign Affairs.
ABOUT THE AUTHOR

Finn Seyersted (1915–2006) served in the Norwegian Ministry of Justice and


the Ministry of Foreign Affairs from 1943 after completion of law studies at the
University of Oslo, Norway. He served inter alia as head of division in the
Legal Department, Royal Norwegian Ministry of Foreign Affairs, deputy
permanent representative for Norway to the UN during its rst three years
of existence and, subsequently, as expert adviser on international organiza-
tions in foreign ministries of three newly independent states in the Far East.
Author of several works on public international law, he became Doctor Juris
at the University of Oslo in 1966.
Among his appointments and experience may be mentioned: Delegate to
the Geneva Conference on the Law of the Sea, 1958, Director Legal Divi-
sion of the International Atomic Energy Agency, Vienna, 1960–65, Associé
of Institut de droit international, chairman of the committee that drafted the
constitution of the (former) International Maritime Satellite Organization;
participation in conferences and meetings of other IGOs; and member of the
international administrative tribunals until 1991 and of relevant committees
of other IGOs. Norwegian Ambassador 1968–73, Professor of international
law, University of Oslo from 1973.
Selected earlier works by the author:

– “United Nations Forces: Some Legal Problems”, 37 British Yearbook of Inter-


national Law, 1961, pp. 351–475.
– “Can the United Nations Establish Military Forces and Perform Other
Acts Without Specic Basis in the Charter?” in Österreichische Zeitschrift für
öffentliches Recht, Band XII, Heft 1–2, 1962.
– “Settlement of Internal Disputes of Intergovernmental Organizations by
Internal and External Courts”, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht, XXIV 1963, pp. 1–121.
– “Objective International Personality of Intergovernmental Organizations:
Do Their Capacities Really Depend upon the Conventions Establishing
Them?” – Copenhagen 1963 and 34 Nordisk Tidsskrift for International Ret,
1964, pp. 1–112.
xxii about the author

– “International Personality of Intergovernmental Organizations: Do Their


Capacities Really Depend Upon Their Constitutions?” – 4 Indian Journal
of International Law, 1964, pp. 1–74.
– “Is the International Personality of Intergovernmental Organizations Valid
vis-à-vis Non-Members?” – 4 Indian Journal of International Law, 1964, pp.
233–68.
– “Jurisdiction over Organs and Ofcials of States, the Holy See and Inter-
governmental Organisations”, International and Comparative Law Quarterly,
XIV 1965, pp. 31–82 & pp. 493–527.
– “United Nations Forces in the Law of Peace and War”, Leyden 1966.
– “Die Internationale Atomenergie – Organisation, ihre rechtlichen Aufgaben
und Funktionen”, Beiträge zum Internationalen Wirtschaftsrecht und Atomenergierecht,
Verlag Otto Schwartz, Göttingen 1966.
– “Die internationale Atomenergieorganisation (IAEO)”, Verlag Otto Schwartz,
Göttingen 1966.
– “Applicable Law in Relations Between Intergovernmental Organizations
and Private Parties”, 1967 III, 122 Recueil des Cours, pp. 427–616.
– “Has the Government a Duty to Accord Diplomatic Assistance and Protec-
tion to Its Nationals?” – 12 Scandinavian Studies in Law, 1968, pp. 121–49.
– “Diplomatic Freedom of Communication” – 14 Scandinavian Studies in Law,
1970.
– “The Legal Nature of International Organizations”, Comments on Mr.
Reuterwärds article in Nordisk Tidsskrift for International Ret, 51 Nordisk
Tidsskrift for International Ret, 1980, pp. 203–5.
– “The Åland Autonomy and International Law” in Nordisk Tidsskrift for
International Ret, Vol. 51 1982.
– “Treaty Making Capacity of Intergovernmental Organizations: Article
6 of the International Law Commission’s Draft Articles on the Law of
Treaties Between States and Intergovernmental Organizations or Between
Intergovernmental Organizations”, 34 Österreichische Zeitschrift für öffentliches
Recht und Völkerrecht, 1983, pp. 261–7.
– “Binding Authority for the United Nations and Other International Orga-
nizations in Limited Functional and Territorial Fields”, 56 Nordic Journal of
International Law, 1987, pp. 198–204.
– “Autoridad vinculante par las Naciones Unidas y otras organizaciones
internacionales en determinados de lo funcional y territorial” in Anuario
Argentino de Derecho Internacional, III, 1987–1989.
– “Federated and Other Partly Self-governing States and Mini-states in
Foreign Affairs and in International Organizations” in Nordic Journal of
International Law, pp. 369–75, 1988.
about the author xxiii

– “The Relationship between National Law, International Law and the Law
of International Organizations” in N. Mikkelsen, ed., The Implementation in
National Law of the European Convention on Human Rights (Danish Centre of
Human Rights), Copenhagen 1989.
– “The United Nations Decade of International Law” in Nordic Journal of
International Law, pp. 117–27, 1990.
– “Basic Distinctions in the Law of International Organizations: Practice
versus Legal Doctrine” in Theory of International Law at the Threshold
of the 21st Century, Essays in honour of Krzysztof Skubiszewski, Edited
by Jerzy Makarczyk, Klüwer Law International 1996.
ACKNOWLEDGEMENTS

An important source for the work on the common law of intergovernmental


organizations is legal advisers and other ofcials and former colleagues of the
UN and a great number of other IGOs and of national governments, who
have kindly provided information and relevant documents and read and com-
mented upon parts of the manuscript. They are far too many to be listed by
name. The present writer wishes hereby to thank them all whole-heartedly for
their kind assistance, without which this book could not have been written.
IGO and university libraries in Paris, New York, Geneva, Vienna – and
notably Randi Halveg Iversby, Kjersti Selberg, Karen Danbolt and Beate
Heilemann at the University Library in Oslo – have been of invaluable assis-
tance in documenting the practice of the various IGOs and of governments
and other parties in their relations with IGOs.
Thanks are due also to the Department of Public and International Law,
University of Oslo, and particularly to Professor Henning Jakhelln, for pro-
viding funds and numerous scientic assistants. Among the secretarial assis-
tants at the University thanks go to Lisa Sterud, Kari Brenna Oppi and Else
Vera Aas.
The present writer is indebted to the outstanding Danish Professor Alf Ross
and his near namesake Austrian colleague Alfred Verdross, who, already more
than 50 years ago identied the basic concepts of self-governing communities
and internal law of intergovernmental organizations. These legal achievements
constitute two of three basic new concepts which are now indispensable to
a correct theoretical description of customary law, and which are further
developed and supplemented in the present book.
Thanks are due to the publishers of Nordic Journal of International
Law, The Indian Journal of International Law, Zeitschrift für Ausländisches
öffentliches Recht und Völkerrecht, The International and Comparative
Law Quarterly, The British Yearbook of International Law, Österreichische
Zeitschrift für öffentliches Recht und Völkerrecht and Recueil des Cours of
the Hague Academy, who published original studies on the topics dealt with
in various parts of the present book and who have kindly permitted these to
be used as bases for important parts of the present book.
xxvi acknowledgements

Thanks are also due to several institutions which have provided nancial
assistance. The Rockefeller Foundation at the very outset of the work accorded
the present writer a fellowship to study the law of international organizations
in Paris and New York 1950–51. Thanks are also due to the professors there:
Suzanne Bastid, Charles Rousseau, Philip Jessup and Oliver Lissitzyn. The
Norwegian Research Council has also contributed nancially.
Above all, the writer wishes to thank his wife, Sølvi, for her manifold,
enduring and capable assistance.
PART ONE

INTRODUCTION
CHAPTER ONE

SCOPE AND PURPOSE

1.1 What this book is about

This book deals with international organizations of States – so-called inter-


governmental organizations or IGOs – as opposed to non-governmental
organizations, which are composed of private individuals and/or of national
associations of individuals or companies (NGOs).
The present book is neither on specic organizations, nor a comparative
description of several organizations, but concentrates upon the basic common1
law2 of IGOs. Indeed, despite the differences between the various types of
IGOs, there is an important body of customary law which in fact is common
to all IGOs, including even supranational organizations.
This book is intended for use in practice, notably by IGOs and by gov-
ernmental institutions, and as a basic aid for teachers of international law
and for textbook-writers to enable them to take into account modern devel-
opments, which have brought international organizations to the forefront as
important actors and rule-setters in international law. It is especially hoped
that the book may help lecturers and text-book writers to reect the custom-
ary law, common to all IGOs, which has developed in practice, rather than
conne their lectures and books to descriptions of the UN and certain other
important organizations severally and/or to comparative presentations of their

1 Except partly for the narrower concept of “extended jurisdiction”, which is not common
to IGOs other than those exercising such powers, see below chapter 6.
2 On the concept of law applied in this book, one would think that the English word “law”
and the French word “loi” had a common origin. However, this is not so. It has been
pointed out by Professor Gudmund Sandvik of the University of Oslo that “loi” stems
from the Latin “lex”, which in turn stems from the Latin “ligere”, to bind; “law”, however,
stems from the old Norse “lög”, which meant to lay and thus had the same substantive
meaning as the much more modern German word “Gesetz” (from the verb “setzen”, to
prescribe) and which clearly comprises only statutes enacted by the competent authorities.
Thus, while “law” and “loi” have different origins, they both originally meant only enacted
statutes, while “law” today is general and comprises also customary law.
4 scope and purpose

express constitutional and other provisions. This because the present book – in
contradistinction to the dominant current literature – is based upon practice,
not upon an interpretation of “powers” “implied” in constitutional provisions
which were never intended to answer the basic common problems.
We now have several thousand international organizations; many more
than there are States,3 and the number is steadily increasing. IGOs have
become as important actors in both public and private international law as
non-governmental organizations are in national law. In addition, each IGO
has an internal public law of its own.
In these circumstances we have seen an increasing stream of literature on
the law of IGOs. Most books and articles deal with the law of one or more
particular organizations, based upon their constitutional and other written
instruments. We are also getting literature taking up specic problems with
regard to all or several IGOs, but these publications are mostly of a comparative
nature, comparing the relevant provisions of several organizations.
However, the internal and external law of IGOs can no longer be adequately
covered by books on individual organizations or by books based upon their
respective written constitutions. Indeed, existing literature – which concentrates
rather upon such aspects of the law of the organizations as are dealt with in
their constitutions and other conventions – covers only certain aspects of the
internal law of the organizations concerned and, largely, aspects which differ
from one organization to the other.
The present book is neither on specic organizations, nor comparative. It
describes the basic common law which is not primarily laid down in constitu-
tions or other conventions but which has developed in practice as customary
law and which covers the aspects not laid down in the constitutions and other
conventions. This includes the basic aspects of the internal law of the orga-
nizations (constitutional, administrative and procedural law) – as well as the
entire law on their external relations of public and private international law
(international personality and choice of law respectively), which are not at all
dealt with in their respective constitutions. This law is common to all IGOs
(unless they exceptionally have deviating provisions) and is thus “common
law”, both in the literal sense and in the Anglo-Saxon sense of customary
law. A greater number of questions are covered in Schermers and Blokker’s

3 The yearbook of International Organizations 2004–2005 by the Union of International


Associations has selected 33,635 of the most important organizations (past and present).
Of these 5,713 are listed as intergovernmental (IGOs) and 27,922 are international non-
governmental organizations (INGOs).
chapter one 5

comprehensive book on “International Institutional Law”,4 but more as a


comparative description.
In addition to this common, customary law we shall in chapter 6 survey
and compare the different types of extended jurisdiction which are exercised
only by some organizations over territory, persons or States, on the basis of
specic authority as a parallel to the “principle of legality” which applies
in democratic States. This will be done – partly to complete the picture of
IGO-law and to demonstrate the difference from common law – and partly
to demonstrate important elements of common law which apply even here,
notably that the legal authority required does not, as assumed by some writers,
have to be found in the constitution of the organization concerned. IGOs have
inherent capacity to assume even extended jurisdiction which is free or assigned
to them, and there is therefore even here no need to ction powers “implied”
in the constitutional convention.
An important task for this book is to identify the relevant basic legal distinc-
tions. When legal writers have been unable to offer real guidance in IGO-law
beyond the respective constitutions and other specic texts, it is primarily
because they:

– Assume that everything must be derived from the constitution of the orga-
nization concerned (via the useless ction of “implied powers”) and ignore
the basic distinction between inherent and extended powers;
– do not adequately distinguish between external relations, governed by inter-
national law, and internal relations, governed by the same principles as apply
in national public law in all basic respects (subjects, sources in hierarchical
order, separate legal system for each organization, effects in national law);
and because they
– concentrate upon territorial and personal jurisdiction (in internal law and
in public international law) and upon territorial and personal connect-
ing factors (in private international law), ignoring the (for IGOs far more
important) jurisdiction over organs in internal law and public international
law and the corresponding organic connecting factor in conict of laws,
which both take precedence over relevant territorial and personal conict-
ing factors.

The practice reported and analyzed in the present book amply demonstrates
that without these fundamental distinctions no real guidance can be given

4 Henry G. Schermers & Niels M. Blokker; International Institutional Law: Unity within
Diversity, 4th ed., Leiden 2003.
6 scope and purpose

to ll the important gap left by constitutional and other express provisions
without making certain basic distinctions – between delegated and inherent
powers, between the territorial, personal and organic jurisdiction and con-
necting factors, and between public international and internal IGO law, see
below chapter 3.

1.2 International non-governmental organizations

The original subjects of national law are physical individuals, in legal terminol-
ogy referred to as natural persons. In addition, associations of individuals have
developed to become important subjects of national law. They are referred
to as juridical or legal persons. These terms include corporations, companies,
associations and other groups of individuals which act as distinct legal entities,
i.e. which possess rights and duties distinct from those of their members. In
most elds of private and procedural law no adequate statute or legal study
can be written without taking into account the fact that the rights and duties
laid down will be those of corporations and associations, as well as those of
individuals. Indeed, the term “individuals” is frequently used, pars pro toto, for
subjects of national law in general, whether natural or juridical, as are the
terms “persons”, “private parties” and “third parties”. The same is true of
“nationals”, despite the fact that “nationality” in the case of juridical persons
is replaced by domicile, registration or similar tests.
Associations of individuals are in international law referred to as non-gov-
ernmental organizations (NGOs) – in order to distinguish them from associa-
tions of States (intergovernmental organizations – IGOs). NGOs (in the narrow
sense, i.e., excluding companies) which are international in their composition
and purposes are referred to as international non-governmental organizations
(INGOs). These include both direct associations of individuals from differ-
ent countries, like the Institut de droit international, and international unions of
national associations working in the same eld, like the World Federation of
Trade Unions, as well as mixed, or hybrid types, like the International Law
Association and the Association des anciens auditeurs de l’Académie de droit international
de la Haye (AAA). Examples of important INGOs from various functional elds
include a number of international non-governmental organizations which
have an impact on international trade. Among these are the International
Standardization Organization (ISO), which adopts standards to harmonize
product and process specications worldwide, and IATA (International Avia-
tion Transport Association) and CMI (Comité Maritime International), which
attend to the unication of legal rules for the carriage of goods by air and sea.
The International Chamber of Commerce (ICC) has established arbitration
chapter one 7

rules and set up an international Court of Arbitration in the Hague. Other


INGOs have standards and certication mechanisms for certain internationally
traded products, like e.g. fair-trade products and environmentally sustainable
harvest of timber products. The World Economic Forum plays an important
role in shaping overriding global economic policy trends.5 In international
sports the World Anti-Doping Agency (WADA) deals with athletes suspected
of using banned substances, with the attached private review system of the
Court of Arbitration for Sport.
In principle international non-governmental organizations are subjects of
national law like other NGOs, but may also acquire a participatory status in
the law of intergovernmental organizations and inter-State conferences. How-
ever, INGOs as representatives of civil society play an increasingly important
role in international relations. The acts of INGOs may not be much different
from many non-binding intergovernmental public norms, and may often be
more effective.6 Standards and recommendations adopted by INGOs may
subsequently be adopted by IGOs as binding secondary norms.7 Civil society
involvement is to a large extent interlinked with the question of legitimacy
of international decision-shaping. Consequently, various formations of INGO
involvement are component parts of the work of both intergovernmental orga-
nizations and international conferences. This may be reected in constituent
documents of IGOs or conferences as consultative or representative rights,
or otherwise be part of the internal law of the intergovernmental organiza-
tion.8 INGOs may also sometimes be accorded privileges and immunities
and thus be treated by national legal systems similarly to intergovernmental
organizations.9 However, this does not necessarily imply that INGOs become
general subjects of public international law. For the purpose of the present
book INGOs are not further included in the analysis of the common law of
intergovernmental organizations.10
Two examples of particular international organizations should be men-
tioned in this connection as they have important elements of both IGO

5 See further van Houtte, The Law of International Trade, London 2002, pp. 52–54.
6 Kingsbury et al., The Emergence of Global Administrative Law, International Law and
Justice Working Paper, New York 2004/1, p. 10.
7 Cf. the examples of “borrowing regimes” provided by Sabino Cassese in Shrimps, Turtles
and Procedure: Global Standards for National Administrations, International Law and
Justice (IILJ) Working Paper, New York, 2004/4.
8 For a comprehensive study of INGO participation in international relations, see A-K.
Lindblom, Non-Governmental Organisations in International Law, Cambridge 2005.
9 Cf. A. Reinisch, International Organizations Before National Courts, Cambridge 2000,
p. 11 and note 47 and p. 171 note 9.
10 Except that external relations between IGOs and non-governmental organizations will be
discussed below in chapter 14.3.
8 scope and purpose

and NGO character, as a “mixed” or “hybrid” intergovernmental/private


organization:11
The International Committee of the Red Cross is a non-governmental
organization, but it has been given functions of public international law under
the four Geneva-conventions and the additional protocols on international
humanitarian law applicable to situations of armed conicts.
The International Labour Organization (ILO) is an intergovernmental
organization which brings together representatives of governments, employers
and workers in a unique “tripartite” composition. The ILO is also empowered
to produce new public international law in the form of treaties, mainly in
the eld of international labour law.

1.3 Intergovernmental organizations: history, number, organs

The rst IGOs were international commissions set up by a small number of


States for local, regional or ad hoc purposes. Important examples are the still
existing international river commissions, which exercise a limited territorial
jurisdiction on international rivers. The oldest still existing organization is the
Central Commission for the Navigation on the Rhine.12 It was established
rst in 1805 as a bilateral French-German commission. The chief organ was
a directeur-général who, along with a number of subordinate ofcials, exercised
wide legislative, administrative and, apparently, even judicial powers. This
may have been not an IGO strictu sensu, but a joint organ of the two Empires,
acting under their direct responsibility. It was re-established in 1815 by the
Final Act of the Vienna Congress.13

11 A very different type of organization that could be mentioned here is the Internet Corpo-
ration for Assigned Names and Numbers (ICANN), which deals with assigning Internet
addresses. Since 2002, government representatives have become increasingly involved in
the organization’s work, and considerable powers have been allocated to the organization’s
Governmental Advisory Committee, ibid. note 6 above p. 9. Such organizations with a
mixed or hybrid legal character, which count on intergovernmental representation (as
ILO), or which have been recognized as distinct international legal personality based in
treaties (as ICRC), are covered by the common law described in the present book.
12 On the history of IGOs, see El-Erian’s First Report on Relations between States and
Inter-Governmental Organizations to the International Law Commission at its fteenth
session in Yearbook of the International Law Commission, 1963, p. 159; I. Seidl-Hohen-
veldern, Das Recht der internationalen Organisationen einschlisslich der supranationalen
Gemeinschaften, 7th ed., Cologne 1996, pp. 16–43.
13 The assembly in 1814–15 that reorganized Europe after the Napoleonic Wars, see text in
Martens, Recueil des principaux traités, VIII, p. 263. Cf. van Eysinga, La Commission
Centrale pour la navigation du Rhin, Leiden 1935, and the historic summary in French
and English in Annuaire Européen, XIV 1968, pp. 21–42 on the occasion of the 150th
Anniversary. The Convention was revised in 1868, 1922, 1972 and 1979.
chapter one 9

The members of the Commission, appointed one by each member State,


held their constitutive meeting in Mainz on 5 August 1816. The Commis-
sion got a full constitution in the Mainz Convention of 31 March 1831 and
has its present basis in the Mannheim Convention of 14 October 1868, with
minor amendments in the 1920s and in 1963. The Commission sat rst in
Mainz, then in Mannheim and, since 1920, in Strasbourg. Other important
examples – from 1856 and later – are the three Danube Commissions referred
to below, in chapter 6.2, and the then so-called “administrative unions” or
“international bureaux”, which later developed into modern IGOs, like the
Universal Postal Union (of 1874) and the Bureau International des Poids et Mesures,
established by the Convention du Mètre of 20 May 1875.
However, the majority of IGOs were founded after World War I and II.
Today they are much more numerous than the original subjects of interna-
tional law, the States, and the number is steadily growing.
Each of these organizations has an internal law – constitutional, adminis-
trative and procedural – which in its contents corresponds to the national
public law of States.
Most IGOs have a written constitution – usually laid down in a treaty between
the member States. The bigger organizations will normally be set up with
both a plenary organ, on which all members are represented, a more limited
deliberative organ (council), which can meet more frequently, and a secretariat,
as well as subsidiary organs (committees) of these principal organs. Some
organizations also have (internal or even international) courts. The secretariat
usually performs the organization’s external acts.

1.4 Types of intergovernmental organizations

There are many different types of IGOs – inter alia according to:

a) Size (membership): Global, regional or bilateral;


b) Purposes: Politico-general, (UN, Organization of American States, the Afri-
can Union, EU), specic defence and/or security co-operation, (NATO,
WEU (as later integrated in the EU), SCO,14 CSTO,15 ANZUS) – or
specialized-technical (e.g. World Meteorological Organization);

14 The Shanghai Cooperation Organization (SCO) established in 2001 by Russia, China,


Kazakhstan, Tajikistan, Kyrgyzstan and Uzbekistan with its permanent secretariat estab-
lished in Beijing in 2004. See M. Al-Qahtani, Chinese Journal of International Law, Vol.
5 2006, pp. 129 ff.
15 The Collective Security Treaty Organization – CSTO (Armenia, Belarus, Kazakhstan,
Kyrgyzstan, Russia, Tajikistan and Uzbekistan), signed on 7 October 2002 in Chisinau.
10 scope and purpose

c) Functions and powers: Consultative (Council of Europe, Association Of South-


east Asian Nations, ASEAN), operational (European Space Agency), regu-
latory for territory (Antarctic Mineral Resources Commission) or persons
(Mixed Commission for the Exchange of Greek and Turkish Populations),
for States (Organization for Economic Co-operation and Development,
International Energy Agency) or generally (supranational organizations);
d) Duration. Most organizations are permanent, but we also have some tem-
porary IGOs, such as the bilateral Greek-Turkish Commission and the
International Fusion Energy Organization (ITER).16

Indeed, IGOs may be classied by a number of criteria.17 However, most


distinctions have little legal signicance with regard to the common internal
and external law described the present book,18 except that certain parts of the
book are irrelevant in respect of organizations of the type dépendant.

Global and regional organizations

We have global organizations (organisations à vocation universelle) – like the UN


and the Bureau International des Poids et Mesures – open for members from all
parts of the world. And we have regional organizations (ententes régionales) –
like the African Union, ASEAN, Organization of American States and the
Council of Europe – open for members from one region only.19 We even have

16 ITER has an initial duration of 35 years which may not be extended by the States Parties
for more than 10 more years, see Article 24 of the ITER Agreement signed in Paris 21
November 2006 (as reproduced in the Ofcial Journal of the European Union vol. L 358
2006, pp. 62 ff. The now dissolved European Coal and Steel Community (ECSC) had a
xed duration of 50 years (1952–2002).
17 The Union of International Associations describes in its yearbooks the development
of various IGOs by type and function – inter alia by a membership criterion (universal,
intercontinental or regionally oriented membership) and by type (conventional and special
types), id note 3, and appendix 3, number of international organizations by type.
18 An example of legally insignicant distinctions is that between the UN and its specialized
agencies, as the latter, too, are independent IGOs in voluntary co-operation with the UN
and each other.
19 However, despite their nominations, the regional development banks (the Asian Development
Bank (ADB), the African Development Bank (AfDB), the European Bank for Reconstruc-
tion and Development (EBRD), and the Inter-American Development Bank (IDB)) have
a membership that extends beyond the scope of their operational domain as they are to
a large extent funded by the same major industrialized States.
chapter one 11

some bilateral organizations – e.g. to regulate a border river or water levels of


an international lake,20 or to oversee a peace accord.21

General political and specialized technical organizations

We have general, political organizations – like the UN and the regional orga-
nizations cited above. These may in principle take up matters of common
concern within any eld. And we have specialized or technical organizations –
like the Specialized Agencies of the UN22 – which, according to specic
provisions in their constitutions, are to work for limited purposes: Industrial,
technical, economic, legal, relief, military or other. However, such provisions
cannot prevent the organization from going beyond its stated purposes if no
member objects. And neither the organization, nor external parties can invoke
any transgression of the purposes stated in the constitution as a basis for
wiggling out of their obligations under contracts, treaties or general national
or international law,23 any more than States may do under reference to their
constitutional provisions or those of other States.
The specialized agencies of the UN and the Organization of American
States (OAS) are independent IGOs and the relationship agreements they
have concluded with the UN and the OAS are in the nature of agreements
between equal partners, although they do confer upon the UN a few unilat-
eral powers, notably the right to veto the admission of a new member to the
agency, a provision which probably is no longer of practical importance, if
it ever was. Otherwise, specialized agencies and the other types of organiza-
tions retain their full internal jurisdiction and external capacity as described
in this book.

20 E.g. the US-Canadian International Joint Commission regulating the water levels of the
Great Lakes, which was recognized with its distinct legal personality in Soucheray et al. v.
Corps of Engineers of the United States Army et al., US District Court WD Wisconsin,
7 November 1979; 483 F. Supp. 352 (WD Wisconsin 1979).
21 E.g. the bilateral Greek-Turkish Commission.
22 Cf. van der Molen: Subjekten van Volkerecht, the Hague 1949, claimed that, while the
UN has legal personality in international law, the Specialized Agencies and international
river commissions have only limited (“beperkte”) or certain (“zekere”) legal capacities
(“rechtsbevoegdheden”). She thus seemed to confuse capacity to perform different types
of legal acts with the substantive matters they may relate to.
23 This does not imply that IGOs may exercise an extended jurisdiction (i.e. commit States
or other intergovernmental organizations) beyond the extended powers delegated to the
organization.
12 scope and purpose

Consultative, operational and regulatory organizations

We have (a) consultative organizations (organisations de co-opération) – like the Nordic


Council, the Council of Europe and, partly, the United Nations. Their basic
functions are to meet, discuss and adopt non-binding recommendations, and
draft treaties for voluntary accession. On the other hand, we have (b) opera-
tional organizations – such as international and regional banks, commodity
organizations (like the International Coffee Organization and International
Cocoa Organization) and the former International Maritime Satellite Orga-
nization– which operate services for the benet of member States and their
inhabitants. And, more importantly from a legal point of view, we have (c)
regulatory organizations, which make binding decisions for specic territo-
ries or categories of persons or for States. Several organizations, including
the United Nations and its specialized agencies – combine tasks of more
than one of these types. Finally, we have (d) the strongest type of IGOs –
the supranational organizations, which, similar to federal States, in addition
make decisions binding in member States, directly upon their nationals and
inhabitants.

Organizations of intergovernmental organizations24

The members of these organizations are not States, but organizations of States.
An example is the Agreement of July/August 1994 for the Establishment of
the Joint Vienna Institute, between ve economic and nancial IGOs.25 This
is open for accession “by such international organizations as may be decided
by the Board” (Article XVI). Founding members were two regional IGOs
(European Bank for Reconstruction and Development and the Organization

24 Another model of cooperation between IGOs is the establishment of a special intergov-


ernmental organization for the sole purpose of entering into structural cooperation with
another, existing IGO. An example is the Georgetown Agreement establishing the group
of African, Caribbean and Pacic States (the ACP Group) for the purpose of dening a
common stand vis-à-vis the EC on matters covered by the successive ACP-EC partner-
ship agreements, cf. Art. 2 (c) of the Agreement. To facilitate close cooperation with the
relevant European institutions, the ACP Group is headquartered in Brussels. So too are
the EFTA/EEA organs and joint organs between the EU and the EFTA/EEA States
under the association agreement on the European Economic Area, cf. infra, note 25.
25 Another example is the joint decision-making procedure under the Agreement on
the European Economic Area (EEA) in which the EEA Joint Committee is composed
of the European Union (EU) on the one hand and the participating European Free
Trade Association (EFTA/EEA) States, speaking with one voice, on the other hand,
see Norberg et al., EEA Law, Stockholm 1993, pp. 127 ff. and Schermers and Blokker,
op. cit., § 1799.
chapter one 13

for Economic Co-operation and Development (OECD)) and three global IGOs
(Bank for International Settlements, International Bank for Reconstruction
and Development and the International Monetary Fund). The constitution
as formulated in the agreement on the Vienna Institute is parallel to those
of organizations of States, but adds expressly that “the Parties shall not be
responsible, individually or collectively, for any debts, liabilities, or other obli-
gations of the Institute” and that this shall be stated also in any agreements
which the Institute might conclude on privileges and immunities (Article X).
It is no more strange that an organization of IGOs has a status similar to
regular IGOs in respect of internal jurisdiction and external relations than
it is for association of national non-governmental associations to have such
status in national law.

Treaty organs

Certain treaties concluded either independently from or under the auspices of


an IGO may establish treaty organs to supervise or monitor State compliance
with the provisions of the treaty, e.g. in the eld of human rights protection,
protection of the environment or supervising disarmament agreements. Treaty
organs normally report to the plenary organs of the IGO under whose auspices
they operate and may be regarded as a category sui generis as they occupy a
semi-autonomous position.26 Political and legal supervision by the IGO of
such treaty organs of a judicial or quasi-judicial character does not extend
to their performance of these functions. In all other respects treaty organs
possess their own internal law as described in this book. It may sometimes
be difcult to distinguish organs of IGOs from mere treaty administering
organs set up by international agreements falling short of true international
organization status.27

International tribunals

The past two decades have produced a growth in the number and
importance of judicial organs – tribunals and dispute resolution organs –

26 Cf. Churchill and Ulfstein, Autonomous institutional arrangements in multilateral envi-


ronmental agreements: a little noted phenomenon in international law, AJIL 2000, pp.
623–659.
27 Ibid. note 9 above, p. 7, note 27, cf. the cited commentaries concerning joint organs of
free trade agreements.
14 scope and purpose

established to decide in cases involving international law and/or internal law


of intergovernmental organizations. A large number of international tribunals
are organs of the intergovernmental organization to which they are function-
ally assigned, such as the International Court of Justice (a principal organ of
the United Nations, cf. Chapter XIV of the UN Charter and Article 1 of
he Statute of the ICJ), the Court of Justice of the African Union (cf. Article
5 (d) of the Lomé Convention), The Permanent Tribunal of Revision of
Mercosur (cf. Article 17 of the Protocol of Olivos), The Andean Community
Court of Justice (cf. Article 6 of the Cartagena Agreement), The Court of
Justice of the European Communities (cf. Articles 220–245 of the EC Treaty
and Articles 35, 40 and 46 of the EU Treaty), The Inter-American Court of
Human Rights28 and the European Court of Human Rights29 to give but a
few examples.
Other tribunals are intergovernmental organizations in their own capacity,
such as the International Tribunal for the Law of the Sea30 and the World
Trade Organization Dispute Resolution Mechanism.31
International tribunals differ from other (organs of) IGOs in that their
judicial powers are separated and exercised independently from their powers
as intergovernmental organizations, the latter e.g. including their competence
to enter into agreements with States or other IGOs for the fulllment of
their tasks.
Most international tribunals exercise jurisdiction over (member) States based
on their consent to submit such disputes to the extended judicial powers of the
tribunal in question. Tribunals which are organs of an IGO, normally exercise
jurisdiction over the legality of acts of the (various organs of the) organization
in cases brought by member States (or other organs of the organization e.g.
in disputes over competence to perform the contested act). Some tribunals
have competence to hear individual petitions claiming that State acts violate
provisions of a relevant instrument under the tribunal’s competence, or that
acts of the organization violate its internal law. In those cases where an IGO
exercises extended powers directly affecting individuals, internal tribunals of
the organization represent an opportunity for them to have access to justice.

28 Cf. Statute of the Inter-American court of human rights adopted by the General Assembly
of the OAS at its Ninth Regular Session, held in La Paz Bolivia, October 1979 (Resolution
No. 448).
29 Cf. Section II of the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 with subsequent amendments.
30 See UNCLOS Art. 287 (1) and Annexes VI–VIII. States have the choice of using the
ITLOS, the ICJ or arbitral tribunals under UNCLOS.
31 Cf. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes,
33 ILM 1226 (1994), in force from 1 January 1995.
chapter one 15

Individuals and private entities may in those cases directly challenge the
legality of acts of the various organs of the organization. Jurisdiction over
individuals as such is however limited to international criminal tribunals, apart
from the limited jurisdiction of administrative tribunals of IGOs in hearing
disciplinary disputes concerning ofcials of the organization.
In the eld of international criminal law, a permanent International Crimi-
nal Court (ICC) was established by the States parties to the Statute of the
court – in force from 1 July 2002. In addition, several ad hoc tribunals have
been established by the UN Security Council to exercise jurisdiction over
specic situations constituting a threat to international peace and security.
The rst ad hoc tribunal to adjudicate war crimes, since the Nuremberg and
Tokyo tribunals were established by the victorious powers in the aftermath
of World War II, was the International Criminal Tribunal for the former
Yugoslavia (ICTY). The legal basis for the Tribunal was conceived in the
following manner:
In this particular case, the Security Council would be establishing, as an enforce-
ment measure under Chapter VII, a subsidiary organ within the terms of Article
29 of the Charter, but one of a judicial nature. This organ would, of course, have
to perform its functions independently of political considerations; it would not
be subject to the authority or control of the Security Council with regard to the
performance of its judicial functions. As an enforcement measure under Chapter
VII, however, the life span of the international tribunal would be linked to the
restoration and maintenance of international peace and security in the territory
of the former Yugoslavia, and Security Council decisions related thereto.32
The same legal considerations pertain to the International Criminal Tribunal
for Rwanda (ICTR) established by Security Council Resolution 955 (1994).
Common to criminal tribunals competent to exercise criminal jurisdiction over
individuals charged with grave international crimes, is the notion that they
adjudicate on the basis of their own internal law, based on existing norms of
public international law as set out in their constituting instruments, and that
they possess no legislative power on their own, apart from that of establishing
their rules of procedure.
The International Criminal Court (ICC) differs from the ad hoc criminal
tribunals mentioned above in that it is a permanent international criminal
court not being created as a subsidiary organ of the UN, but with a close

32 Paragraph 28 of the report of the Secretary-General pursuant to Paragraph 2 of Security


Council Resolution 808 (1993) presented 3 May 1993 (doc. S/25704) and approved in
operative paragraph 1 of Security Council Resolution 827 adopted 25 May 1993.
16 scope and purpose

relationship with the UN Security Council.33 On the other hand, being a crimi-
nal tribunal, it enjoys the same judicial independence as the ad hoc criminal
tribunals. Thus, the Assembly of States Parties assumes the functions of the
ICC as an intergovernmental organization, whereas the other organs of the
Court represent its judicial functions.34
Another legal construction is the so-called “mixed” or “hybrid” criminal
tribunals, which may be described as tribunals with a necessary legal and
functional basis both in the national legal system where the tribunal is set
up, and in the international agreement which endows the tribunal with its
international character. The Special Court for Sierra Leone,35 the Extraor-
dinary Chambers in the Courts of Cambodia for the Prosecution of Crimes
Committed During the Period of Democratic Kampuchea,36 and the Special
Tribunal for Lebanon,37 established by agreement between the UN and Leba-
non pursuant to UN Security Council resolutions 1664 (2006) and 1757 (2007),
are examples of mixed tribunals. The agreements between the UN and the

33 See K.S. Gallant; The International Criminal Court in the System of States and Inter-
national Organizations, Leiden Journal of International Law, vol. 16 (2003), pp. 533–591
at p. 562.
34 Ibid., p. 557. These organs are: the presidency, the appeals division, trial division and
pre-trial division, the ofce of the prosecution – and the registry, which, similar to other
courts, also functions as the general secretariat. For comparison, the ICJ Registry is tasked
both with the administration of justice and of being the secretariat of an international
organ. Its activities are judicial and diplomatic, as well as administrative.
35 See the Agreement between the United Nations and the Government of Sierra Leone
on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002
pursuant to Security Council resolution 1315 of 14 August 2000. The Special Court
for Sierra Leone has the power to prosecute persons who have committed a number
of specied crimes under Sierra Leonean law and under international law. The Special
Court and the national courts of Sierra Leone shall have concurrent jurisdiction, and the
Special Court shall have primacy over the national courts of Sierra Leone (cf. Art. 8 of
the Agreement).
36 See the Agreement of 19 October 2004 between The United Nations and The Royal
Government of Cambodia concerning the prosecution under Cambodian Law of crimes
committed during the period of Democratic Kampuchea. The subject-matter jurisdiction
of the Extraordinary Chambers comprises the crime of genocide as dened in the 1948
Convention on the Prevention and Punishment of the Crime of Genocide, crimes against
humanity as dened in the 1998 Rome Statute of the International Criminal Court and
grave breaches of the 1949 Geneva Conventions and such other crimes as dened in
Chapter II of the Cambodian Law on the Establishment of the Extraordinary Chambers
as promulgated on 10 August 2001. The Chambers are unique in that they are set up
with a majority of national judges, cf. Art. 3 of the Agreement.
37 As the situation referred to in resolutions 1664 and 1757 does not fall under international
criminal law covered by the Statute of the ICC, the Special Tribunal for Lebanon is
unique among international tribunals in that its material competence is limited to national
(Lebanese) criminal law.
chapter one 17

State requesting assistance from the international community normally contain


provisions on privileges and immunity for both national and international
judges and other international personnel. The mixed tribunal model is seen
as a way to provide full national participation and involvement in the trials
while at the same time ensuring international standards and participation.38
On the other end of the spectrum, the War Crimes Chamber in Bosnia-
Herzegovina and the Special Panels for Serious Crimes in Timor-Leste39 are
examples of national tribunals with an international element,40 and the Iraq
Tribunal can be seen as a national tribunal exercising jurisdiction over certain
international crimes.41
The common law described in this book applies to international tribunals
and to such mixed tribunals that have an international component, the latter
also being organs under the national law of the host (or requesting) State.
The law applicable to internal courts of intergovernmental organizations is
dealt with below, in chapter 7.7.

International public corporations and mixed governmental and non-governmental


organizations

Pure commercial inter-State enterprises or corporations, companies or consortia


are intermediate entities between IGOs and transnational corporations. The
major distinction lies in the nature of its tasks; commercial or governmental

38 However, it remains to be seen if this model will be applied also to any future situations
where the complementary jurisdiction of the International Criminal Court (ICC) has been
established.
39 The Special Panels were established under the auspices of UNTAET, cf., the UN Security
Council Resolution 1272 of 25 October 1999 creating a United Nations Transitional
Administration of East Timor “to which will be entrusted overall responsibility for the
administration of East Timor, and which will be competent to exercise all legislative and
executive functions, including the administration of justice”. Whenever sitting in judgment
on the gravest crimes, the Dili district Tribunal was sitting in a special conguration, being
composed of both Timorese judges and foreign representatives with the necessary legal
expertise in such cases. The same legal basis in international territorial administration
applies to Kosovo courts under UNMIK regulations.
40 Ofcially in operations from 9 March 2005 to alleviate the case-load of the ICTY, the
War Crimes Chamber incorporated an international presence during its initial period of
operation. Each judicial section includes two international judges and a national judge.
The overall stafng of the Tribunal is also of mixed origin. Nevertheless, the international
component is set to reduce over time to disappear completely by 2010.
41 On 11 August 2005, the Iraqi Transitional National Assembly approved a war crimes
tribunal in Iraq, which was originally established by the US-installed Iraqi Governing
Council. The court was mandated to prosecute numerous high level members of the
former Iraqi regime accused of crimes against humanity, war crimes and genocide, but
the main focus was on the most high-prole defendant: Saddam Hussein.
18 scope and purpose

character, e.g. either market regulators (commodity organizations with a “com-


mon good” objective of price stability or development assistance) or market
operator (private cartels or prot-maximizing enterprises). In relation to the
common law of intergovernmental organizations the purpose of the enti-
ties or organs of an organization may be decisive both to the question of
whether or not a distinct IGO has been established, and to the question of
the extension of privileges and immunities granted under national law.42 Inter-
national public-private partnership may be referred to as a system in which
a governmental service or private business venture is funded and operated
through a partnership of government and one or more private sector entity.
The involvement of IGOs in partnerships or in private sector project funding
does not by itself alter the organization’s character of an intergovernmental
organ. On the other hand, there are examples that existing IGOs providing
services, e.g. in the form of access to an international infrastructure, may reach
a stage of development where market operations take precedence over the
organization’s original task of facilitating or constructing a new international
infrastructure.43 A shift in focus and functions may lead to a re-establishment
of an entity in a more appropriate organizational form.
The common law presented here also applies to governmental functions
exercised by “mixed” governmental/non-governmental type of organizations –
exemplied in the eld of telecommunications and positioning services by
satellite, such as the Galileo Global Navigation Satellite System (which was
originally set up as an international public private partnership), the former
European Telecommunications Satellite Organization (Eutelsat)44 and the
former International Maritime Satellite Organization (Inmarsat).45 These
organizations were typically established by two international agreements: A
“convention” between the governments (alternatively a decision of an IGO)

42 See Seidl-Hohenveldern, Corporations in and under International Law, Cambridge


1987.
43 In 1998 the assembly of member States decided to privatize Inmarsat from April 1999 as
the rst intergovernmental organization to be incorporated as a private entity, and to create
a new intergovernmental body (International Mobile Satellite Organization (IMSO)) to
ensure that the new Inmarsat plc. continue to meet its public service obligations. Similarly,
Intelsat, created 20 August 1964 as an intergovernmental organization, was privatized 18
July 2001. Cf. also the resolution adopted by the Institut de droit international in 1985
on “The Law Applicable to Joint International State or Quasi-State Enterprises of an
Economic Nature”, dened as acting for purposes of general economic interest principally
through private law procedures (Art. 1 (b)), and which may be established by a treaty, by
a decision of an international organization or any other act (Art. 2).
44 The operations and activities of the intergovernmental organization Eutelsat were trans-
ferred to a private company called Eutelsat S.A. in July 2001.
45 Cf. supra note 43. Inmarsat was founded as an IGO in 1979 but privatized in 1999 as a
commercial service provider.
chapter one 19

and an “operating agreement” between the national operators, which may


be governmental in some countries and private companies in others. The
operating agreements contain mostly nancial provisions, while the organi-
zational provisions are contained in the intergovernmental agreements, which
establish a plenary organ (Assembly) where governments are represented, and
a Council, where the national operating agencies, which provide the capital,
are represented and vote in proportion to their respective investment shares.
It is the Council which makes the operational decisions – economic and
technical – while the Assembly mostly exercises limited supervisory powers.
This split has not prevented the organizations of this character from func-
tioning as a regular intergovernmental organization and a subject of public
international and private law – both with regard to internal jurisdiction and
external relations.

Temporary intergovernmental organizations

We also have temporary IGOs. These, too, fall under the common law, if
their organs do not by their acts commit the several member States (as joint
organs) or the host State only – although parts of the common law may have
no practical signicance because the questions do not arise. An example of
such temporary IGOs is conferences which run over a series of sessions, and
have their own organs, including a continuous secretariat, which frequently
is managed by the host State.
Another example is the joint Vienna Institute referred to above. Article
XV of its constitution provided that “the duration of this agreement shall be
ve years form the date of coming into force unless the Parties unanimously
decide to extend the duration of this Agreement by one or more successive
periods of twelve months”. Thereupon “the Parties shall forthwith wind up
the Institute”. The parties could even terminate the Agreement and wind up
the Institute earlier if all agree.

Organizations “type dependant”

A weak type of IGOs are organizations of the so-called “type dépendant”. Most
IGOs have their own international secretariat established in a host country.
However, for several old organizations established around and after the former
turn of century, the member States did not establish an international secretariat,
but entrusted the secretariat functions to the government of a member State,
which then normally appointed special ofcials to perform the work. Many of
20 scope and purpose

these organizations have since established their own international secretariats


and become regular independent organizations, such as the Universal Postal
Union and the International Telecommunications Union.
In addition, even at present, if States want to establish a very modest or
a temporary organization, e.g. a permanent or semi-permanent conference
of governmental representatives on a specic subject, they frequently nd
it convenient to entrust the secretariat functions to a permanent host State,
alternatively on a rotation basis.46
Organizations of the type dépendant do not themselves exercise legislative,
administrative and judicial powers over the secretariat and its members.47
But the plenary organ retains normal powers vis-à-vis other deliberative
organs. Externally, the host State normally acts for the organization – but on
its behalf and in its name. Thus, the common law described in the present
book is largely applicable also to organizations of the type dépendant in their
external relations, but major parts of the description of the organization’s
internal law are not relevant.
There are also some IGOs which are not, or no longer, of the dependent
type in the above sense, but which in one or more particular respects are
dependent upon the government of the host country. Thus, under Article 6 of
the Statut organique of UNIDROIT, the President of the Conseil de Direction
of that organization is appointed by the Italian Government. However, such
organizations, as well as those of the dependent type stricto sensu, are inde-
pendent in all those respects in which no special powers have been conferred
upon the government of the host country.48
Such conferences may develop into regular IGOs. Thus GATT (the General
Agreement on Tariffs and Trade) functioned as conferences, before it – with-
out even altering its name – developed into a full-scale specialized agency of
the UN. The Conference on Security and Co-operation in Europe (CSCE)
was established in the early 1970s as a multilateral forum for dialogue and

46 The G7/G8 meetings are held on a rotation basis with no permanent secretariat.
47 See the now repealed Swiss Statute of 31 January 1947 on international ofces placed
under supervision of the authorities of the Swiss federation.
48 Another example is the Extractive Industries Transparency Initiative (EITI) whose secre-
tariat was hosted by the Department for International Development (DFID) in the United
Kingdom, but which at the time of writing is being set up as an independent legal entity
located in Oslo, Norway. EITI is also an example of public private partnerships. It is
open to question whether the Arctic Council, established by the declaration of the foreign
ministers of the Arctic States in Ottawa 1996, counting on a rotating secretariat, which at
the time of writing is located in Tromsø, Norway as part of the Norwegian presidency of
the Council for the period 2006–2008, is an organization of the type dépendant, see further
J. Klabbers, Soft Organizations in International Law, Nordic Journal of International Law,
Vol. 70, 2001, p. 405 and note 11.
chapter one 21

negotiation between East and West. CSCE functioned mainly as a series of


meetings and conferences that built on and extended the participating States’
commitments, while periodically reviewing their implementation. By the 1990s,
the CSCE developed (by objective criteria) into an intergovernmental organi-
zation which was also reected in the decision in 1994 to change its name to
the Organization for Security and Co-operation in Europe (OSCE).49

The common law applies to all types of intergovernmental organizations

All these different types of organizations are independent intergovernmental


organizations and are, both in their internal and external relations, governed
by the same common law, described in the present book, unless their con-
stitutions make special deviating provisions. The supranational organizations,
although they have powers which go far beyond those of other organizations,
also possess the same internal and external powers as other IGOs vis-à-vis
their organs, ofcials, member States and the representatives of the latter,
and of external parties and are in so far governed by the same common law
as other IGOs.
Special problems of special types of IGOs will not be examined in the
present book on common law of IGOs, except those of IGOs exercising
extended jurisdiction.

1.5 The common internal and external law

The common law of intergovernmental organizations50 is not normally found


in the constitutional or other conventions between the member States, but
in customary law developed in common by the numerous existing IGOs.
The present book is conned to matters where such customary law has been
developed (except for the survey of the extended jurisdiction which is exercised
by some organizations only and which requires some other legal basis). The
common law exists on all three levels on which IGOs have legal relations:

49 Cf. below, chapter 2.3.


50 Judge Badawi Pasha, in his dissenting opinion on Reparation for Injuries Suffered in the
Service of the UN, stated: “There is in fact no common law for international persons”
(ICJ Reports, 1949, p. 205). Even the majority did not derive the capacity for the UN to
present an international claim from common law, but from “implied” powers of the UN.
However, the Court dropped that ction in 1962 (ICJ Reports, 1962, p. 108).
22 scope and purpose

a) Internally, with and between their members51 and organs. This internal law
is dealt with in Part Two.
b) Externally, with States and other subjects of public international law. This
law is dealt with in Part Three.
c) Externally, with private persons and other subjects of national (private) law
(often referred to by the misleading term “municipal law”).52 This is dealt
with in Part Four on conict of laws.

In the latter case (c), as well as in the rst case (a), we are concerned, not with
one, but with several distinct legal systems. But even here the important basic
law is in fact common. In Part Two on internal law we are concerned with
genuine jurisdiction (legislative, administrative and judicial) exercised unilater-
ally by the organization – a parallel to the public law of States. In Parts Three
and Four we are concerned with voluntary bilateral relations between equal
parties on the basis of legal capacity. Confusion has arisen from the fact that
in the imprecise English language both jurisdiction and capacity are referred
to as “powers” and that writers have brought these two very different matters
under one hat as “implied powers”.
Important parts of the internal law are laid down in the constitutional
conventions and other legal texts of each organization concerned – and thus
differ in many respects from one organization to the other. These non-com-
mon aspects fall outside the scope of the present book, except that we shall
survey the different types of extended jurisdiction which several organizations
exercise over territory, private individuals or States – in order (1) to complete
the presentation of the common law of IGOs and (2) to demonstrate that it
is only this extended jurisdiction which requires a specic legal basis (parallel
to the “principle of legality” which applies in the national law of democratic
States), but (3) that even this legal basis does not have to be found or “implied”
in the constitutional convention of the organization, as maintained by some
legal writers. – It should also be mentioned that, in addition to the common
customary law of IGOs, there may easily develop special customary law within a
particular organization. The classical example is the effect of the then Soviet
Ambassador Gromyko’s abstention at a vote in the early days of the Security

51 Cf. Bengt Broms: The Doctrine of Equality of States in International Organizations,


Vammala 1959.
52 However, the (Vienna) Convention on Third Party Liability in the Field of Nuclear Energy
of 29 July 1960/16 November 1982, Arts. 11 and 14 uses the adequate term “national
law”.
chapter one 23

Council. The effect of abstention was thereafter established as a rule of the


organization.53
The organization’s external law is normally not laid down in the written
instruments of IGOs (except that many organizations have express provi-
sion for legal personality in national law). Here, IGOs are subject to regular
customary public and private international law. The special problems which
arise in adapting this law to IGOs have been solved in a customary law
common to all IGOs. This law is described in Parts Three and Four of the
present book.
The external law and basic parts of the internal law are thus not normally
found in constitutional and other conventions between the member States,
but in customary law. This is then common law in a double sense: In the
sense of general law for the several IGOs and in the Anglo-Saxon sense of
customary law.
The term “The Common Law of International Organizations” was used
also by Elihu Lauterpacht, as a heading of Chapter II of his Hague lectures
on “The Development of the Law of International Organizations by the
decisions of International Tribunals”,54 where he concluded that the cases
he cited:
. . . show quite clearly, in relation to international instruments that the practice
which has accumulated around other documents of a similar kind cannot
be ignored. They show also that a similar approach has been applied to the
interpretation both of international constituent instruments and of other legal
documents relevant to the structure and operation of international organization.
In this not inconsiderable sense one may properly speak of a “common law of
international organizations”.
Although recognizing that there is a common law, he, like most other writers,
appears to start out from an interpretation of constitutional instruments even
when these contain no relevant provisions – via the ction of “implied powers”.
The present book, however, starts out from and describes the general custom-
ary common law which has developed in practice for external relations and
those basic parts of internal relations where constitutional provisions do not
normally exist. This law has been developed in common by the ever increas-
ing number of IGOs. It differs in several basic respects from the theoretical
points of departure of the vast majority of writers.

53 See discussion in Simma (ed.), The Charter of the United Nations, Oxford 1995, pp.
447–453.
54 Recueil des cours de la Haye, 1976 IV, pp. 381 ff. at p. 402.
24 scope and purpose

First, we shall see that there is no support in practice for the surprisingly
general assumption in legal theory that an IGO can do, internally and
externally, only what is provided, expressly or “implied”, in its constitutional
convention. The implied concept was overruled by the International Court of
Justice already in 1962 in favour of the present writer’s submission of inher-
ent powers. However, this change was not discovered by many legal writers,
who continue to ction “implication” in each particular constitution. This
may be stretched to cover anything, and has therefore effectively prevented
identication of the limits which apply to the internal and external powers
which are inherent in all IGOs under common customary law, as described
in the present book.
Nor is there support in practice for the view defended by some writers that
the internal law of IGOs is part of public international law; on the contrary
it is parallel to national law in all basic respects: Subjects, sources, hierarchi-
cal levels, and, most important, its effects in national law. In particular, the
internal law is governed by the basic “principle of legality” which governs
the national law of democratic States. Thirdly, we shall see that, in addition
to the well known territorial and personal jurisdiction (in internal and public
international law) and the ditto connecting factors (in private international
law) there is an important, third, organic jurisdiction which both States, IGOs
and other self-governing communities exercise under customary law over
their organs and ofcials as such and which, within its important eld, takes
precedence over the territorial and personal jurisdiction, even if the two lat-
ter jurisdictions are combined in the same State. Similar confusion has arisen
in conict of laws from writers ignoring the corresponding organic connecting
factor, which within its important area takes precedence over the well-known
territorial and personal connecting factors.
Legal theory cannot offer the necessary guidance as long as it ignores these
basic distinctions which are consistently made in practice, between internal
and external law, between general inherent and special extended jurisdiction,
between territorial, personal and organic jurisdiction (in internal law) and
between the ditto connecting factors (in conict of laws). As for the latter,
writers have tended to ignore the internal law of the organization and rather
seek a substitute in the law of the host country when the conicts law refers
to the law of the organization.

Internal law of IGOs as distinct legal systems parallel to national, not


international law

As described above, all IGOs (except those of the type dépendant) exercise inher-
ent jurisdiction over their organs and ofcials and other members of the organs
chapter one 25

as such, and some organizations also exercise extended jurisdiction over ter-
ritory and/or persons and States. This gives rises to an internal law for each
organization. That law has in legal writings been considered part of public
international law,55 although most writers now recognize the hierarchically
lower part of the internal law as being distinct. In fact, the entire internal law
is a distinct legal system for each organization, like national law, which is a
distinct system for each State. It is also in substance more parallel to (public)
national law of States than to public international law, but the writers falsely
apply principles of international law also to internal IGO-law, instead of
drawing them from national (public) law, which is the proper analogy.
The confusion of the internal law with public international law has led legal
writers to draw false analogies to internal law from international law.
As for court practice, the then Permanent Court of International Justice
stated in the Serbian Loans case that there are only two legal systems and “any
contract which is not a contract between States in their capacity as subjects
of international law is based on the municipal law of some country”.
However, this was a mere dictum, as the case itself did not concern IGOs
and, moreover, was decided before IGOs had become as well-known actors
as they are today.
But post-war court practice makes the distinction. Already in 1962 the
International Court of Justice, in its advisory opinion on “Certain Expenses
of the UN”, did not identify any “internal law”, but did distinguish between
“the internal plane” and effects in respect of third parties.56
The tendency to clarify the internal law of IGOs as international law has
led to erroneous contentions based upon false analogies from international
law.57 Also the tendency to refer to the internal law of IGOs as “international
administrative law” may be conducive to confusion, because it, too, gives the
impression that it is one legal system for all IGOs and perhaps even part
of public international law. Even a prominent practitioner like Jenks, who
originally introduced the appropriate term “domestic law of international
organisations” and who appropriately pointed out many of its relations to
“municipal” administrative law, spoke mostly of “international administrative
law” as an “integral part of public international law” – and of “a body of

55 Thus Batiffol and, very emphatically, Mann. A.H. Schechter: Interpretation of Ambigu-
ous Documents by International Adminstrative Tribunals, London 1964, compared the
administrative tribunals with (each other and) traditional international law, but not with
national constitutions and national administrative tribunals.
56 ICJ Reports, 1962, p. 168.
57 Director-General of UNESCO and the United States in Judgment of the Adminstrative
Tribunal of ILO upon complaints made against the UNESCO.
26 scope and purpose

international administrative law”.58 The latter formulation reects the reality


that the internal law is to a great extent made up of a customary law which
is common to all IGOs which do not have deviating provisions. The internal
law of IGOs is thus to a great extent lled by a customary law which in fact
is common to all IGOs which do not have special deviating provisions or
practice. However, formally, the internal law is a separate legal system for
each organization, as national law is for each State. And it is via its rules on
conict of laws, not via incorporation in national law, that the internal law
of an IGO is applied by national courts – this is an important difference.
However, even the existence of any deviating provision in internal IGO law
may not be sufcient to overturn the principles of international (or global)
administrative law which must be regarded as norms pertaining to the com-
mon law of intergovernmental organizations, typically in respect of relations
between the organization and third parties.
The internal law is parallel to national (public) law, rather than to (public)
international law, also in nearly all other respects:
The internal law comprises, in all organizations, constitutional and admin-
istrative law – and in many organizations also procedural law. It governs:

(a) Matters falling under the organic jurisdiction, i.e. relations with, between
and within the organs of the organization and the members of the
organs (including representatives of members) as such. This includes the
constitutional and administrative law relating to the deliberative organs
(e.g. rules of procedure) and the secretariat (e.g. staff regulations and rules)
and any courts or other judicial organs of the organization.
(b) Organizational59 relations with the members as such, e.g. budgetary con-
tributions.
(c) Substantive matters falling under the extended jurisdiction of some orga-
nizations, i.e. relations with and between member States and/or private
parties, in case of organizations which have been granted (or excep-
tionally assumed) powers in respect of States, territory and/or groups of
individuals.

These relations differ in substance from those governed by international law


(this is to a great extent true even of the relations with member States and

58 Jenks; The Proper Law of International Organisations, London 1962, pp. xxxi–xli, espe-
cially p. xxxix, and pp. 128–129, italics added.
59 The term “administrative” is also used, but this term can also be reserved for the distinc-
tion between legislative, administrative and judicial (governmental) powers.
chapter one 27

their representatives). Thus the rules governing the composition, procedure and
powers of the organs are more analogous to the constitutional and adminis-
trative rules in States than to the relations between sovereign States governed
by international law, not to mention the relationship of the organization with
its ofcials, or with inhabitants of a territory under its jurisdiction.
The internal law governs to a great extent, or even mostly, subjects other
than the traditional subjects of international law (the self-governing com-
munities). In addition to relations between the organization and member
States as such, it governs relations with, within and between organs and
their members (representatives, ofcials) as such, and in some organizations
also relations with private individuals. This has given several writers who
ignore the distinction between public international and internal law a false
occasion to vastly exaggerate the position of individuals as subjects of public
international law. However, none of these are subjects of public international
law, which must be dened as the law governing relations between (not within)
self-governing communities.
As will be demonstrated in the following parts of the present book, customary
law is a very important source of the internal law. However, only the custom-
ary law developed or recognized in the practice of the particular organization
concerned has a status equal to the other, written sources. Only if neither
of these offer guidance, the common customary law developed within IGOs
generally will be applied – in the absence of specic sources for the organi-
zation concerned.
An express and concrete list of sources is found in Article III of the Statute
of the UNRWA Special Panel of Adjudicators (of which the present writer
was an initial member) of 5 December 1983:
1. The Panel shall apply:
(a) the terms of employment, including all pertinent Regulations and Rules
in force at the time of the alleged non-observance
(b) the general principles of law.
2. The panel shall be guided by the jurisprudence of the Administrative Tribunal
of the United Nations. It may also be guided by the jurisprudence of other
international and national administrative tribunals (italics added).
The reference in 1 (a) to “Rules in force at the time of the alleged non-obser-
vance” illustrates the legislative as opposed to the contractual aspect. The
reference to “general principles of law” refers to national and IGO admin-
istrative law. And the reference to “the jurisprudence of other international
and national administrative tribunals” refers to national and IGO courts.
In public international law the sources are hierarchically equal – the later
source takes precedence over the older, whatever its nature. Internal law,
28 scope and purpose

however, like national law, has different hierarchical levels. The constitution –
if embodied in a treaty – can in principle be amended only by treaty (and
not by any “treaty”).
The internal law is applied externally in the same manner as national
public law under general rules of conict of laws, which will be discussed
below, in Part Four.
However, this application is limited, because normally IGOs have only public
law, except that supranational organizations like the European Community
also have a limited private law, which invokes application also of the better
known parts of conict of laws (private international law).
The appropriate term “internal law” was rst introduced in practice by
the Administrative Tribunal of the League of Nations in its rst judgment
in 1929.60 Two years later the Italian Court of Cassation, in Proli v. Interna-
tional Institute of Agriculture spoke of the self-sufcient “particular system of the
Institute” and stated that it “must be self-sufcient”.61
The rst writers known to distinguish the internal law of IGOs from
public international law were the Austrian professor Alfred Verdross and his
(abbreviated) Danish namesake Alf Ross. They described the internal law,
respectively, as “internes Staatengemeinschaftsrecht” (“intern statsfellesskapsrett”). Later
Adam spoke plainly of the “droit interne propre de l’organisation Internationale”.62
However, like most other writers, he included in this concept only regulations,
not the constitution. On the other hand he maintained that the internal law
governs not merely “la situation juridique du personnel”, but also “les actes conclus
avec d’autres individus, collaborateurs volontaires de l’organisation, tels que les fournisseurs,
les entrepreneurs, etc.”. Relations with ‘fournisseurs’ and ‘entrepreneurs’ are, in the
view of the present writer, usually external relations governed by national
law, cf. Part Four below – references in the contracts to regulations of the
organizations may merely make these contractual terms.
Similar terms were used by Philippe Cahier in his now classic article in
1963 on “Le droit interne des organisations Internationales”, by Georg Ress (“das so
genannte interne Recht internationaler Organisationen”),63 by Amerasinghe64 and by

60 di Palma Castiglione v. ILO.


61 Rivista di diritto internzaionale, Vol. 23 (1931), pp. 386–91.
62 “Les accords de prêt de la Banque Internationale pour la Reconstruction et le Dévelop-
pement”, in Revue général de droit international public, LV (1951) at p. 56 in ne.
63 “Die Bedeutung der Rechtsvergleichung für das Recht internationaler Organisationen”
in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXXVI (1976),
pp. 227–79.
64 “The Internal Courts and the Internal Law of International Organizations, with special
reference to the World Bank Administrative Tribunal” and “The Implications of the Merode
Case for International Administrative Law” in Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht, XXXIII (1983) at pp. 9–13.
chapter one 29

Bernhardt and Miechseler. The present writer, too, has used “internal law”
and/or, for brevity, “IGO law” since the 1960s. Barberis uses the term “el
ordenamento juridico de las organicaciones internacionales.”65

1.6 Delegated, implied or inherent powers? “Interpretation” of


constitutions or customary law?

The basic point of departure for nearly all writers is that an IGO, in contrast
to States and other self-governing communities which are subjects of inter-
national law, can only do – internally and externally – what is provided in
its constitutional convention (or in other treaty between the member States).
In its original form this doctrine of delegated powers was presented by Hans
Kelsen and in practice by the conservative American judge Hackworth in
his dissenting opinion in the 1949 ICJ Advisory Opinion on Reparation for
Injuries Suffered in the Service of the United Nations:
There can be no gainsaying the fact that the Organization is one of delegated and
enumerated powers. It is to be presumed that such powers as the Member States
desired to confer upon it are stated either in the Charter or in complementary
agreements concluded by them. Powers not expressed cannot freely be implied.
Implied powers ow from a grant of expressed powers, and are limited to those
that are “necessary” to the exercise of powers expressly granted.66
By “powers” these two meant not only jurisdiction, but also international (and
legal) capacity to act as an equal partner.
The prominent German (i.e. Roman law) lawyers who edited a major
modern publication: “The Charter of the United Nations”67 apparently felt
that the International Court of Justice went very far in respect of power for
the UN even before 1962, but claim that the UN and the Charter in so far
is in a special position not shared by other IGOs. However, there is no basis
in practice for holding that other IGOs have more limited inherent powers
than the UN.
Most non-Roman law-writers have no problem seeing that in practice
IGOs are not conned to what is provided in their respective constitutions,68

65 Los sujetos del derecho internacional, Madrid 1984, pp. 81–87.


66 ICJ Reports, 1949, p. 198.
67 Bruno Simma et al., The Charter of the United Nations, Oxford 1994, p. 26.
68 E. Suy, in an article on peace-keeping operations in R.J. Dupuy (ed.): Manuel sur les
organisations internationals, Dordrecht 1998, at pp. 542–8 “on Constitutional Aspects
of Peace-keeping Operations” discusses the (weak) relationship to several provisions of
the UN Charter, without getting involved in “implied” – not to mention inherent –
power.
30 scope and purpose

but that, indeed, most of the acts they perform are not so authorized.
However – instead of introducing the relevant distinctions and turning
their point of departure partly around – writers (and the majority of the
International Court of Justice69 prior to 1962) merely modify the doctrine of
delegated powers into “implied” powers. They then pretend – or ction –
that each (internal and external) act is based and depends upon a power
“implied” in the constitution of the particular organization concerned, i.e.
what its authors are supposed to have had in mind.
This restrictive principle was in fact adopted even by the International Law
Commission and the second Vienna Conference on the Law of Treaties.70
The International Court of Justice on the other hand, abandoned the cti-
tious application of “implied powers” already in 1962 when it stated that “the
presumption is that the Organization has the power”. It is not necessary to
provide that the organization may “(a) address communications to non-member
States or organizations; (b) establish and maintain relations with non-member
Governments or organizations to participate in activities of the Organization”,
as done in Article 12 of the constitution of the Organization for Economic
Co-operation and Development; any IGO can do that.
However, the writers neither indicate any limits for such “implied” powers,
nor do they give examples of acts that would not be “implied” nor indicate
any differences between the various organizations that would be a logical
consequence of their point of departure. Instead, in order to avoid a conict
with practice and to escape the consequences of their point of departure
without admitting its falseness, the formula of “implied powers” has had to be
applied whenever the need was felt – in such a wide, ctitious and undened
manner that it offers no guidance, merely an escape from the false point of
departure. The contents, or outcome, of the formula are unpredictable, and
this is why it has been chosen. The doctrine of “implied powers” has thus
prevented identication in legal theory of the relevant rules and distinctions
and of the delimitation which has been established in customary law between
such powers as are inherent in all IGOs and those which do require specic
authority, or which, only exceptionally, is implied in a genuine sense in their
relevant provisions. Indeed, it is impossible to identify the real views of writers
on any limits of what is “implied” as long as the writers perform any kind
of gymnastics to pretend that the power is “implied” in the constitution of
the organization concerned and, in particular, as they avoid giving concrete
examples of internal and external acts whose performance would not be

69 ICJ Reports, 1949, p. 198. Cf. pp. 205 and 182 and ICJ Reports, 1954, pp. 56–57.
70 Cf. Art. 6 of the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations.
chapter one 31

“implied” in the constitution and avoid stating whether such acts would be
invalid.
Legal writers thus retain the point of departure that the powers of IGOs –
both their internal jurisdiction and their external legal capacity – must be laid
down in their respective written instruments, and have resorted to far-fetched,
undened and unlimited applications of the principle of “implied powers” in
order to escape the consequences of that point of departure without admit-
ting its falseness
Practice, on the other hand, has established clear distinctions and limits
between those powers which are inherent in all IGOs; organic and limited
organizational membership jurisdiction, plus external legal and international
capacity (personality), and those powers which require a rm legal basis, in
the constitution or otherwise. This practice constitutes clear customary law,
common to all IGOs which do not have contrary provisions. In addition to
this common customary law, we also have special customary law developed
in and for specic organizations. It is not surprising that writers from Roman
law countries on the European continent and in Latin America take a restric-
tive view of legal and international personality (and then are forced to resort
to ctitious escapes), because under Roman law legal personality requires
a legislative basis. However, even these writers appear to attempt to avoid
denying personality in concrete cases. Nor was it a surprise that the former
communist countries took a restrictive view, because, being in a minority in
global organizations, they wanted to limit the powers of such organizations.
It is more surprising that even Anglo-Saxon writers support a restrictive view
in international law, despite the fact that they (like Scandinavian writers) are
well familiar with legal persons of common law in their own national law.
Even the International Court of Justice used the doctrine of “implied
powers” in its advisory opinions of 1949 and 1954 – until it in 1962 turned
to the contrary principle of inherent powers71 submitted to the judges by
the present writer.72 However, the majority of writers73 never discovered this
turnaround; they still stick to the false point of departure and then escape
via “implied” powers.
A different, and seemingly wider, but in reality more restrictive formula
than “implied powers” is Bekker’s “strictly necessary” for the exercise of the
organization’s functions in fulllment of its purposes, which he applies to legal

71 ICJ Reports, 1962, at p. 168.


72 In the form of the proofs of his article subsequently published in Österreichische Zeitschift
für Öffentliches Recht und Völkerrecht, Vol. XII (1962), pp. 188–229.
73 An exception is N.D. White: The Law of International Organisations, Manchester 1996,
pp. 131–3, cf. pp. 128–31 (on “implied” powers), who supports the present writer’s concept
“inherent powers”.
32 scope and purpose

personality of national law.74 Indeed, while “implied powers” can be stretched


to cover anything (or nothing), “strictly necessary”, if it were to be applied,
would rule out the majority of acts, despite the fact that they are never chal-
lenged in practice. However, here, too, it would have been necessary to see
concrete examples of acts which are not considered “strictly necessary” and
the legal consequences drawn there from to see to what extent his concept
in fact deviates from customary international law, which covers acts designed
to serve the purposes of the organization.75
A study of national jurisprudence has revealed that courts are very reluctant
to use the consequences of a strict functionally limited personality concept
which would provide them with a tool to abstain from adjudicating disputes
involving intergovernmental organizations. As noted by Reinisch, “They have
not accepted the offer made by learned authors who argue that international
organizations cannot act beyond the scope of their functional personality
with the result that any such (attempted) acts would be non-attributable to
the organization. In fact, an explicit reliance on such a concept is totally
exceptional”.76 There is also movement even in legal theory, notably among
Anglo-Saxon writers. Thus, E. Lauterpacht recognizes the existence of a
common law,77 but he appears to remain faithful to the traditional point of
departure inasmuch as he describes it as a similar “interpretation” of inter-
national constitutional instruments and other legal documents in his Hague
lectures cited above.
Even this similar “interpretation” doctrine may conceal the fact that we are
faced with an important basic common law which has developed in practice
as common customary law. That law lls important basic gaps in the internal
and external law of IGOs and it is unnecessary, impossible and misleading to
attempt to derive that law from a fanciful interpretation of the constitutional
or other provisions of each particular organization, which never were intended
to cover the matter.78 It is plain common customary law.

74 P. Bekker: The Legal Position of Intergovernmental Organizations, A Functional Necessity


Analysis of Their Legal Status and Immunities, Dordrecht 1994.
75 At any rate Bekker expresses clear disagreement with the views of the present writer,
although partly on the basis of a too wide presentation of those views, notably op. cit.,
pp. 81 ff.
76 Cf. A. Reinisch, op. cit., note 9 above, p. 83.
77 Similarly, E. Arroyo Lara describes “los elementos communes de las organizaciones inter-
nationales” citing inter alia the present writer.
78 Akehurst has adequately stated that “it is no exaggeration to say that the whole history of
the Charter of the United Nations has been a series of disputes about the correct inter-
pretation of the Charter”, Modern Introduction to International Law, 6th ed., London
1987. This reects the political use that has been made of the interpretation doctrine.
chapter one 33

And it is this customary law which is the subject of the present book, which
shall describe and analyze practice and then establish the basic rules that
apply to IGOs. Leaving aside general diffuse formulations like “implied” and
“necessary”, we are then free to identify the relevant basic distinctions which
have developed in practice as customary law, common to all IGOs which do
not, exceptionally, have deviating provisions. The need for a ctitious escape
through the vague and undened concept of “implied powers” then dwindles
away. It is not merely unnecessary – but also misleading.
A basic general task for the present book is to demonstrate and delimit those
internal and external powers which all IGOs possess automatically; inherent
internal jurisdiction, cf. Part Two, and inherent external capacity, cf. Parts
Three and Four, against those which require specic authority; extended juris-
diction, cf. chapter 6. However, we shall see that even this specic authority
need not be found in the constitution of the organization concerned. It may
be found in other treaty or a unilateral act. In other words, the current point
of departure in legal theory is false even here, as compared to practice. These
are important elements both in internal law and in public international law.
The basic distinctions between inherent, implied and delegated powers are
further elaborated and put together below in chapter 3.
It is no use to attempt to deduce those powers which under customary
law are inherent in all IGOs (that do not have contrary or restrictive provi-
sions) from a fanciful interpretation of irrelevant (or lacking) constitutional
provisions that never were intended to deal with the problem. Only when
there is a question of imposition of new obligations upon parties which
also have a legal existence outside the organization is a special legal basis
required – but even then not necessarily in the constitutional convention –
any treaty or unilateral act by the parties concerned will sufce.

1.7 Terminology

In the present book, the following legal terms are used in the following
sense:

1) International organization, organization and IGO is all used as meaning an


intergovernmental organization – i.e. an organization of States or State organs.
The terms do not include national or international non-governmental
organizations (NGOs and INGOs).
2) Constitution is used for any treaty or other agreed text (resolution) by
which the organization is set up and governed. Some writers have used
“founding treaty”.
34 scope and purpose

3) Secretariat is used for the administrative branch of the organization.


Secretary-General, Director-General and other personal titles are used
only when the reference is to its head in person. However, conventional
and other texts sometimes use such personal titles for the entire organ.
4) National law and national courts are used referring to States. Most writers
refer to these as “municipal” (or “domestic”) laws and courts; however,
we are not concerned with municipalities.
5) The present writer uses the term internal law for the internal law of each
IGO. As described in Part Two, this is a distinct legal system for each
organization and is not part of public international law, except for its higher
part (the constitution) which has a double status. The internal law is in
substance parallel to national public law in most basic respects: Subjects,
sources, hierarchical levels and application by national courts. However,
the International Law Commission (ILC) and the Vienna Conference
on the Law of Treaties have confused matters considerably by introduc-
ing the term “internal law” for national law and then having to invent
the curious (and linguistically narrow) term “rules of the organization”
for internal IGO law. This terminology is fortunately largely ignored
in practice, and is not used in the present book. In its work on respon-
sibility of International Organizations, the ILC again reject the term
“internal law” of the organization on the consideration that the term
has both an internal and an international aspect, and prefer instead to
keep the term “rules of the organization”.79 But also the term “rules of
the organization” includes the organization’s “constituent instrument”,
which typically has a double, internal and international, function.

In addition, in order to ll important gaps, it is necessary to make certain


basic distinctions (described below, in chapter 3) and to introduce some cor-
responding new terms:

6) Organic jurisdiction: As explained below, in Part Two, this jurisdiction comes


in addition to the well-known territorial and personal jurisdiction. It cov-
ers the exclusive legislative, administrative and judicial jurisdiction which
all States, IGOs and other self-governing communities under customary
law exercise over their organs and the members thereof as such if not
otherwise provided. Correspondingly, we have the

79 Cf. ILC’s Second report of the Special Rapporteur on responsibility of international


organizations, doc. A/CN.4/541, 2 April 2004, pp. 8–14 on p. 10. Other frequently used
terms are international institutional law and international administrative law.
chapter one 35

7) Organic connecting factor, which comes in addition to the well-known ter-


ritorial and personal connecting factors. This implies application of the
law of each State, IGO or other self-governing community to matters
concerning its organs, irrespective of territorial or personal attachments.
Within its area the organic connecting factor takes precedence over the
well-known territorial and personal connecting factors.
8) Inherent powers include jurisdiction and international (and legal) capacity
which all States, IGOs and other self-governing communities exercise
as a matter of general customary law – i.e. without specic legal basis –
unless there is a contrary provision.
9) Inherent jurisdiction comprises the exclusive organic jurisdiction described
in Part Two, plus a limited jurisdiction over member States in organizational
matters.
10) Inherent capacity includes a general capacity to act as a subject of inter-
national, national and internal law. The term “inherent” is fundamentally
different from the common term of legal writers of “implied” powers,80
which ctions that the power follows from an extended interpretation of
the constitution of each specic organization. The term “implied” was
introduced in 1949 and 1954 by the International Court of Justice,
which in 1962 abandoned it in favour of the present writer’s doctrine
of inherent powers, although the Court did not use that term.81
11) Extended jurisdiction is used for powers which are not inherent but require
a special legal basis, but not necessarily in the constitution of the organiza-
tion concerned as generally assumed. It includes any jurisdiction over
territory, persons and States – as well as any supranational jurisdiction
(comprising all three) – which has been conferred upon, or otherwise
specially acquired by the particular organization concerned. The Treaty
of Lisbon, 13 December 2007, amending Article 1 of the EU treaty, must
be read in this context to mean conferral of extended competencies: “on
which the member States confer competences to attain objectives they
have in common”.

The partly new terminology used in the present book reects some of the
basic general distinctions described below, in chapter 3.

80 See Rouyer-Hameray: Les competénces implicites des organisations internationales, Paris


1962.
81 It simply turned the presumption around, stating that “the presumption is that such action
is not ultra vires the Organization”, ICJ Reports, 1962, p. 168.
CHAPTER TWO

INTERGOVERNMENTAL ORGANIZATIONS – INTERNAL


AND INTERNATIONAL LAW

2.1 What constitutes an IGO? The lower and the upper limit

The question of the legal concept of IGOs1 – or, more precisely, of identifying
their lower and upper limits – is interlinked with the question of the organiza-
tion’s status as a separate legal subject (legal personality) and of the existence of
rights and obligations possessed by the organization under public international
law (international legal personality). However, a denition of IGOs may easily
become circular. It should also be borne in mind that the application of differ-
ent aspects of the common law may deviate in relation to certain modest types of
IGOs, e.g. those of the type dépendant.
The term “international organization” is dened in various instruments
simply as meaning an “intergovernmental organization”, giving decisive impor-
tance to the membership consisting of States or State organs.2
An IGO may thus be described as an organization of States (and/or State
organs and/or organizations of States)3 which has its own organs. Pastor

1 See Diez de Velasco: Las organizaciones internacionales, 14th ed., Madrid 2006, pp. 43–7;
E. Arroyo Lara: “Elementos denitorios de las organizaciones internacionales y consid-
eracion especial de la estructura institucional para la cooperacion politica del Acta Unica
Europea” in Revista de Instituciones Europeas, Madrid 1990, at pp. 407–19; and C.E.
do Nascimento e Silva: “The 1969 and the 1986 Conventions on the Law of Treaties: A
Comparison” in Y. Dinstein (ed.): International Law at a Time of Perplexity, Dordrecht
1989, at pp. 467–8.
2 The Vienna Convention on the Law of Treaties of 23 May 1969, Article 2 (1) (i) –
UNTS vol. 1155, p. 331, the Vienna Convention on the Representation of States in their
Relations with International Organizations of a Universal Character of 14 March 1975,
Article I (1) (1) – doc. A/CONF.67/16, the Vienna Convention on Succession of States
in respect of Treaties of 23 August 1978, Article 2 (1) (n) – UNTS vol. 1946, p. 3 and the
Vienna Convention on the Law of Treaties between States and International Organiza-
tions or between International Organizations of 21 March 1986, article 2 (1) (i) – doc.
A/CONF.129/15.
3 On membership for members of a federation or for other partly self-governing States, see
Seyersted in Nordic Journal of International Law, Vol. 57 (1988) at pp. 372–3.
38 chapter two

Ridruejo has listed six characteristic elements4 of an international organiza-


tion: Interstate character, voluntary basis, permanent organs, autonomous
will, its own competence, and co-operation between its members to meet com-
mon interests.5 “Voluntary basis” implies that the member States have joined
voluntarily. Except for (or if one precludes) temporary organizations, these
criteria are in fact met by IGOs. Brownlie denes the criteria in organization
as follows: (1) a permanent association of States, with lawful objects, equipped
with organs, (2) a 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 national sys-
tems of one or more States.6 The International Law Commission, in its study
on the responsibility of international organizations, has adopted the approach
that for the purpose of responsibility under public international law, an inter-
national organization must possess a separate international legal personality.
Consequently, an IGO does have a separate international legal personality in
respect of its capacity to possess – even a single – obligation imposed on it under
international law.7
A functional approach implies that the organization must exercise at least
one form of sovereign or governmental function in parallel to such legislative,
executive or judicial functions as are normally exercised by other sovereign
communities.8
There is no requirement, as generally assumed in denitions of IGOs, that
the organization is established by a convention. Thus, there can be little doubt that
the Pan American Union prior to the treaty of Bogotá was an international legal
person even though it was not established by an international treaty. Nor would
there have been anything to prevent the Colombo Plan Organization from e.g.
concluding and being, as an organization, party to an agreement with the host
State (Sri Lanka) concerning privileges and immunities, despite the fact that
the organization was not set up by a formal international convention. Pastor
Ridruejo correctly lists also IGOs which were established by resolutions adopted

4 “Elementos caracteristicos” or “rasgos differenciales”.


5 J.A. Pastor Ridruejo, Curso de derecho internacional publico y organizaciones interna-
cionales, Madrid 1992, at pp. 687–90.
6 I. Brownlie, Principles of Public International Law, Oxford 2003, p. 649.
7 ILC, fty-fth session 2003, cf. docs. A/CN.4/532 pp. 8–9 and A/58/10, see also below,
chapter 10.
8 Id. note 7, p. 12. However, the notion of governmental functions should be understood as
encompassing all similar functions normally exercised by other sovereign bodies, including
e.g. market regulations, loans, grants, development assistance, research and scientic coop-
eration, monitoring of compliance with obligations under international law and dispute
settlement. It would perhaps be reasonable to only include non-prot market operations
as “governmental” functions, as commercial business activities are better performed by
corporations, cf. above, chapter 1.4.
intergovernmental organizations 39

by international conferences (Organization of Petroleum-Exporting Countries


– OPEC) or by pre-existing IGOs (UN Industrial Development Organization
– UNIDO) although in the latter cases the organization may become merely an
autonomous organ of the other organization.
IGOs can be described as international organs (i.e. organs established by two
or more sovereign communities) (1) which are not all subject to the authority
of any other organized community (except that of the participating communi-
ties acting jointly through their representatives on such organs), and (2) which
are not authorized by all their acts to assume obligations (merely) on behalf of
the several participating communities.9 If they are so authorized, they are joint
organs of the participating States, rather than distinct legal entities.
There are other descriptions of what an IGO is and which list a number of
criteria which exist in most – and all better known – IGOs, but which go beyond
the minimum requirements. The latter may, however, be identied differently
on the basis of internal and external status. For external purposes it may be
said that the common organs constitute an IGO if they are not in all respects
authorized to commit the participating States directly. If they are so authorized,
they are (common) organs of the States concerned. For internal purposes a
minimum requirement is that the organs are not in all respects submitted to the
jurisdiction of a State or other international person. Organizations of the type
dépendant have placed only their secretariats under the host State. Both these
and temporary organizations are examples of modest – or partially reduced –
IGOs. Still, they constitute distinct IGOs, with their own international and legal
personality.
An example of an organization which falls below the limit of an IGO, and
thus outside the scope of the present book, may be the Arctic Council. This
Council was established by a “Declaration on the Establishment of the Arctic
Council”, signed by representatives of the eight Arctic States on 19 September
1996. In the text of the declaration the eight governments:
Hereby declare:
1. The Arctic Council is established as a high level forum to:
a. provide a means for promoting cooperation, coordination, coordination
and interaction among the Arctic States,

…………

9 Cf. the description of international organizations in A.S. Muller: International Organiza-


tions and their Host States, Aspects of their Legal Relationship, the Hague 1995, pp. 2 ff.
40 chapter two

5. Responsibility for hosting meetings of the Arctic Council, including provision


of secretariat functions, should rotate sequentially among the Arctic States.
6. The Arctic Council, as its rst order of business, should adopt rules of proce-
dure for its meetings and those of its working groups.
7. Decisions of the Arctic Council are to be by consensus of the Members.
Paragraph 5 is supplemented by paragraph 32 of the Rules of Procedure:
The Host Country shall be responsible for facilitating preparations for forthcom-
ing Ministerial and SAO meetings, liaison and coordination, providing secretariat
support functions, and carrying out such other tasks as the Arctic Council may require or
direct (italics added).
This set-up may involve that also external responsibility vests in the host State.
The Declaration is regarded as a political document, not as a legally binding
instrument. However, like other organizations which start out modestly, the
Arctic Council may easily develop into a regular IGO.
While the question of the lower limit is normally of little signicance (or
rather of a circular nature) in internal IGO law, it is an important issue in
external law.
The upper limit of IGOs – against federal States and confederations – is a
matter of degree of transfer of powers to the common organs. In so far as IGOs
have been given, or assumed, extended jurisdiction, territorial or personal, the
analogy to the internal and external law of States is even stronger than what
will be described in the main parts of this book. In the case of supranational
jurisdiction it gets still stronger, and it is a matter of appreciation when one
passes into the traditional, but different, category of federal State, which is not
a subject for this book.10
On the other hand, it does not detract from the status as an intergovern-
mental organization or from the applicability of the common customary law
described in the present book if some of the members of the organization are
members of a federal State, or otherwise only partly self-governing. Two past
examples are Belarus and Ukraine, which after World War II for purely politi-
cal reasons at that time (to give the Soviet Union stronger representation and
more voting power) were admitted as distinct members of the UN and subse-
quently of other IGOs, in addition to the Soviet Union (USSR) itself, despite
the fact that they were at that time far from sovereign. Another example is the
Faroe Islands, which remained a separate member of the North-East Atlantic

10 The formation of a union or league can be a step in the direction of some sort of con-
federal State, at least where important “sovereign” rights are transferred to the legal entity
in question, see Crawford, The Creation of States in International Law, Oxford 2006,
p. 493.
intergovernmental organizations 41

Fisheries Commission after Denmark joined the European Communities and


gave up its membership in favour of that of the latter.
Separate membership for partly self-governing entities is logical from a legal
point of view whenever the entity has self-government in the eld covered by
the organization. However, the only organization which is known to permit this
on a general basis is the World Meteorological Organization. In accordance
with specic provisions in Article 3 (d)–(e) of its constitution it has admitted
several territories which maintain their own meteorological service as distinct
members of the Organization, subject, however, to certain limitations upon
their right to vote etc. in Articles 10 and 11 of the constitution. The consti-
tutions of some other organizations open for “associate” membership with
limited rights.11 The Nordic Co-operation Agreement of 23 March 1963, as
amended in 1971, 1983 and 1986, provides for more timid status in the Nordic
Council for the so-called “Small Nations of the North” (the islands of Åland,
the Faroe Islands and Greenland).
Various attempts have been made to establish a denition of IGOs.12 Many of
these are merely descriptions of the majority of organizations and list too many
elements to include all IGOs – i.e. they do not identify the minimum elements
(the lower limit).
The briefest denition is given by Schermers and Blokker who dene inter-
national organizations as “forms of cooperation founded on an international
agreement creating at least one organ with a will of its own, established under
international law”.13 Here it may be added expressly that the members should
include States and/or other self-governing communities (including other
IGOs).14
Virally suggests that an international organization can be dened as an asso-
ciation of States, established by agreement among its members and possessing

11 See the constitutions of FAO Art. II 3, UNESCO Art. II3, ITU Art. 1,3 (b), International
Maritime Organization Arts. 8–9 and WHO Art. 8, cf. the detailed text adopted by the
World Health Assembly on 21 July 1948.
12 Such denition has been considered difcult and/or useless or unnecessary by inter alia
Shabtai Rosenne, Pierre Pescatore and the present writer (Annuaire de l’Institut de droit
international, 1973, pp. 329, 344 and 352). Clive Archer: International Organizations,
London 1992, in his chapter on “denitions” (pp. 1–3) contends himself with pointing
to the important substantive difference between “international” and “intergovernmental”
and “institution”.
13 International Institutional Law, 4th ed., Leiden 2003, p. 26, cf. pp. 21–31.
14 See further E. Arroyo Lara, Elementos denitorios de las organizaciones internacionales
y consideración especial de la estructura institucional para la cooperación política del
Acta Unica Europea; Seidl-Hohenveldern, Das Recht der internationalen Organisationen
einschließlich der supranationalen Gemeinschaften, 7th ed., Cologne 2000, pp. 5–7.
42 chapter two

a permanent system or set of organs, whose task it is to pursue objectives of


common interest by means of co-operation among its members.15
This denition highlights ve specic characteristics of international orga-
nizations: Their inter-State basis, their voluntary basis, their possession of a
permanent system of organs, their autonomy and their co-operative function.
Only the last factor is subject of controversy.
If one wants a denition that includes all IGOs – in other words a denition
that draws the lower limit – it may have to differ as to whether one is concerned
with internal law ( jurisdiction) or external law (international and juridical per-
sonality). The internal law described in Part Two of the present book applies
to organizations whose organs are not (all and in all respects) subject to the
jurisdiction of another self-governing community. And it applies only in those
respects where the organization has such jurisdiction, not e.g. in respect of the
secretariat of organizations of the type dépendant. The external law, however,
applies to organizations which are not authorized to commit the member
States severally by all their (external) acts; if they are so authorized, they are
joint organs (but these joint organs may well exercise organic (and extended)
jurisdiction, like IGOs and States do).
If one wants a combined denition of these two aspects of the lower limit,
one may dene IGOs in accordance with Alf Ross’16 denition of international
law on the basis of their sovereignty (self-government), as international organs
(i.e. organs established by two or more sovereign communities) (1) which are not
all subject to the authority of any other organized community except that of the
participating communities acting jointly through their representatives on such
organs and (2) which are not authorized by all their acts to assume obligations
(merely) on behalf of the several participating communities17 (if they are so
authorized, they are joint organs of the participating States, rather than distinct
legal entities). Number (2) is relevant also in respect of legal personality under
national law.

15 M. Virally: “Denition and classication of international organizations: A legal approach”


in G. Abi-Saab (ed.): The Concept of International Organizations (UNESCO 1981),
p. 51, cf. also pp. 52–3 on (autonomous) subsidiary organs and international conferences.
16 See Alf Ross, A Textbook in International Law, London 1947.
17 Branno v. Ministry of War, International Law Reports, 1955, pp. 756–7. The Protocol
of 28 August 1952 on the Status of International Military Headquarters Set up Pursuant
to the North Atlantic Treaty provides in Art. XI (1) that a Supreme Headquarters may
engage in legal proceedings as claimant or defendant and may agree that the receiving
State shall act on its behalf. The Protocol was not ratied by Italy until six months after
the judgment, but that does not affect the incompetence ratione materiae recognized in the
text.
intergovernmental organizations 43

2.2 What organizations are international persons? The required


criteria.18 Sovereignty

States may come into existence in two ways, either through an understand-
ing between the inhabitants of a territory, or through imposition by a group
which assumes power over the inhabitants. Thus an agreement between all the
“members” is not necessary. It is not the acts by which a State is created, but
the objective facts which result from them which constitute the relevant criteria
for the existence of a State.
Similarly, it is submitted that, even if it should so happen that IGOs, as usu-
ally maintained, could only be established by one method, viz. an international
convention, the crucial fact, in their case as in that of States, the Holy See and
other subjects of international law, is not how they have been established, but
that they exist. Once an organization or a State has been established, no matter
how, it is ipso facto a general subject of international law. All that is required is
that it possesses the objective characteristics of a State or organization, respec-
tively. These necessary and sufcient characteristics are, in the case of States,
generally considered to be: Territory, population and a sovereign government.
In the case of IGOs the facts required are submitted to be: International organs
(i.e. organs established by two19 or more sovereign States) which (1) are not all

18 The International Law Commission did not consider it possible to dene IGOs. Nor do the
Vienna Conventions on the Law of Treaties of 23 May 1969 and 21 March 1986 – they
merely State that “international organization means an intergovernmental organization”
(Art. 2 (1) (i)). Brierly included in his 1950 draft the following denition: “An ‘international
organization’ is an association of States with common organs which is established by treaty”.
The revised arrangements for consultation with non-governmental organizations adopted
by ECOSOC resolution 288 (X) of 27 February 1950 State bluntly that: “Any international
organization which is not established by inter-governmental agreement shall be considered
as a non-governmental organization for the purposes of these arrangements”. Zemanek
denes international organization as “eine durch Kollektivvertrag geschaffene, autonom
organisierte völkerrechtliche Verbindung von Staaten zur Verfolgung gemeinsamer Inter-
essen der Mitgliedergemeinschaft” (Das Vertragsrecht der internationalen Organsationen,
Vienna 1957, p. 17). Seidl-Hohenveldern in Archiv des Völkerrechts IV (1953–54), pp.
30–31 lists more restrictive criteria relating to the purposes of the organization. Except
for Brierly’s denition, most denitions which have been proposed are not for purposes
of international personality or treaty-making capacity but are intended to be wider, since
the general view is that not all IGOs have such personality and capacity. The essential
requirements for international personality are, however, well formulated in Mosler’s deni-
tion of ‘necessary’ subjects of international law (States). For a compilations and discussion
of denitions, see International Law Commission, First Report on Relations between
States and Intergovernmental Organizations by Abdullah El-Erian (doc. A/CN.4/161,
11 June 1963) paras. 38–60, and for the purpose of international responsibility, see ILC
doc. A/58/10 2003.
19 K. Zemanek, Das Vertragsrecht der internationalen Organisationen, Vienna 1957, p. 11
considers that two do not sufce.
44 chapter two

subject to the authority of any one State or other organized community20 (but
only to that of the participating States acting jointly through their representa-
tives on such organs), (2) perform ‘sovereign’ and/or international acts21 in their
own name and (3) are not authorized by all22 their acts to assume obligations
(merely) on behalf of the several participating States.23
It will be noted that the only criterion which is common to the two types of
subjects of international law is the fact that they have organs which are sovereign
(or self-governing) or not subject to the jurisdiction of any one other organized
community.24 Indeed, this criterion is common to all subjects of international
law and, as will be explained below, this appears to be the crucial and only
condition for international personality. The other criteria listed, if at all neces-
sary, rather serve the purpose of distinguishing between the various types of
international persons.25

20 This precludes non–governmental organizations and “organizations” with no independent


organs, e.g. the International Organization for Bird Preservation and the International
Association of Lighthouse Authorities. On the other hand, this does not prevent the
voluntary delegation of certain powers to the host State or another organization. Thus,
some organizations have submitted to the social security system of the host State in respect
of their ofcials. The specialized agencies have submitted in respect of pensions to the
United Nations General Assembly and the United Nations Joint Staff Pension Board, cf.
GA resolution 248 (III). Some specialized agencies have submitted judicial settlement with
their staff members to the Administrative Tribunal of the International Labour Organi-
zation or that of the UN. Such delegation does not impair the inherent international
powers of the organization, such as its right to exclusive jurisdiction without interference
from the courts of the host State in matters not delegated to them; cf. a dictum by the
Italian Court of Cassation in Proli v. International Institute of Agriculture (Rivista di
diritto internationale, XXIII (1931) pp. 386 et seq.). – Even the placing of the entire
secretariat of the organization under the supervision of the Government of the host
State as done in the case of the organizations of the so-called “type dependant”, does
not deprive the organization of its international personality (but usually of its capacity
for action, since international acts are performed by the host State on its behalf) if it has
independent deliberative organs to which the host State is responsible for its supervision
of the secretariat.
21 Sovereign acts include acts of territorial, personal or organic jurisdiction. As may be
gathered from chapter 2.1, the present writer is of the opinion that this criterion does
not need to be included. This position is set out in further detail in chapter 2.5.
22 If some categories of its acts commit the member States only, the organization is a distinct
subject of international law only in respect of its other acts, i.e. it is a partial subject of
international law.
23 The latter reservation excludes confederations as dened by Ross. – The criteria listed in
the text do not pretend to serve as an in all respects adequate denition of intergovern-
mental organizations, which even the International Law Commission did not feel able to
formulate.
24 See also Mosler’s denition of ‘necessary’ subjects of international law.
25 Lissitzyn: “Efforts to Codify or Restate the Law of Treaties” in Columbia Law Review,
LXII (1962), p. 1183, stated: “It may, indeed, be doubted that international law contains
any objective criteria of international personality or treaty-making capacity. The very act
or practice of entering into international agreements is sometimes the only test that can
be applied to determine whether an entity has such personality or capacity, or, indeed,
intergovernmental organizations 45

Many writers attach importance, from the point of view of international


capacities and personality, to the fact that IGOs have no territory and that
they are dependent upon their member States, which are themselves subjects
of international law. On these two bases they consider that IGOs are not “sov-
ereign”. However, “sovereign” is used in the present study, not in a restrictive
territorial sense, but broadly as meaning legally independent (i.e. not subject to
the jurisdiction) of any other organized community except the participating
physical or legal persons acting jointly through the organs of the organiza-
tion, State or other organized community concerned.26 IGOs are not the only
subjects of international law which have no territory. The Holy See was in
the same position during the period between 1870 and 1929. Yet the majority
appears to agree that, even during this period, the Holy See was a subject of
international law, despite the fact that it, like IGOs, had exclusive jurisdiction
only over its organs. For dependence of IGOs upon their members, it may be
observed that this dependence is not essentially different from the dependence
of non-governmental organizations (associations and companies) upon their
members, a dependence which does not prevent these organizations from being
considered distinct subjects of the same legal system as these members (national
law). Indeed, as shall be more fully explained below, it is submitted that the
relations of any community, (which is not itself subject to the authority of any
particular other organized community) with other sovereign communities as
such must necessarily be governed by international law; there is no other legal
system which can apply.
Even the criteria listed above are in certain respects too restrictive. Thus,
not all the members of an IGO need to be States. They may also include other
types of sovereign communities. Indeed, in some cases IGOs are members of
other IGOs, and the Holy See is a member of a number of IGOs.27 And there
is no reason why yet other types of sovereign communities should be debarred
from becoming members of IGOs.
The criterion that the international organs must not be authorized to com-
mit the member States only has been considered above. It remains to con-
sider whether the second criterion, the performance of international acts, is

‘statehood’ ”. He probably uses “objective criteria” in a stricter sense than the present
writer, inasmuch as he questions whether such criteria may be found even in respect of
States. It is, of course, not the intention of the present writer to suggest that it is possible
to determine more “objective” criteria for IGOs than for States.
26 This does not represent any attempts at a denition of sovereignty covering all aspects of
that concept. As pointed out by Alf Ross, this would require a splitting up of the concept
into its various elements.
27 Below, chapter 8.
46 chapter two

necessary and whether any criteria are missing in the above enumeration. But
rst an excluded criterion:

2.3 Is a convention necessary?

It will be noted that one of the few criteria which is common to most other
denitions of IGOs, namely that they have been established by an international
convention, is not included in the above enumeration of necessary criteria. It is
true that most IGOs have been established by a convention concluded between
the member States. However, this is not, as generally assumed, a necessary
requirement, neither to constitute an IGO, nor to establish it as a subject of
international law. Quite a number of IGOs have been established pursuant to a
mere resolution adopted by an international conference28 or to some other form
of understanding between the member States. It may of course be maintained
that the member States, by taking part in the organs and the work of the organi-
zation, have tacitly accepted the resolution, or any other text which may embody
certain basic organizational provisions, in such a manner that it may be said to
constitute and international agreement. However, it is not a crucial element that
the member States have legally bound themselves to participate in the work of
the organization. Indeed, such obligation does not really exist even if there is a
convention, if this allows for withdrawal from membership at any time without
previous notice. Accordingly it is submitted that the fact that, for example, the
Nordic Council originally was established by parallel (but originally not identi-
cal) decisions of the Parliaments of the member States – without any common
document and without approval in all countries by the Head of State or gov-

28 Examples in A.J. Peaslee: International Governmental Organizations: Constitutional


Documents (revised 3rd. ed.), (Nijhoff, the Hague 1974–1979), see also: N.J. Rengger:
Treaties and Alliances of the World, 5th ed., London 1990. See for example the con-
stitutions of the International Council for the Exploration of the Sea, the International
Hydrographic Organization, the Asian-African Legal Consultative Committee and the
Council for Technical Co-operation in South and South-East Asia (the Colombo Plan).
Thus the basic documents of the latter organization were not accepted in writing by the
‘co-operating Governments’, but were merely accepted informally by the countries acting
on the arrangements made e.g. by attending Council meetings and operating the Technical
Co-operation Scheme (information supplied by the Director of the Bureau). Cf. also the
Pan American Union prior to the constitution of the Organization of American States by
the Charter of Bogotá of 1948. The Statutes of the Inter-American Statistical Institute
were laid down in an international agreement; however, this was not a multilateral agree-
ment between the member States, but a bilateral agreement between the Institute and
the Organization of American States (Peaslee, op. cit.). Nevertheless, the preamble to the
agreement recognized that the Institute “is an inter-American organization of recognized
international standing”.
intergovernmental organizations 47

ernment who is the organ competent to conclude international agreements –


and the fact that these decisions (i.e. the original Statute of the Nordic Council)29
specically avoided provisions which would involve an obligation to participate
in the Council,30 did not prevent the latter from constituting an IGO and a
general subject of international law, if it otherwise satised the criteria. Indeed,
although the Council was not usually considered as an IGO,31 it was admitted by
writers of authority that it could perform international acts.32 The crucial fact,

29 The revised Statute of the Council was contained in Danish Act (lov) no. 292 of 21
December 1957, in Finnish Decree (förordning) no. 464 of 30 December 1957, in Icelandic
Parliamentary decision (pingsályktun) No. 59 of 30 May 1958, in Norwegian Parliamen-
tary decision (Stortingsvedtak) of 6 June 1957 and in Swedish Decree (förordning) No.
296 of June 1957. See also the Rules of procedure (arbeidsordning), Scandinavian texts
in Nordiska Raadet, 5 sessionen 1957 (Helsingfors 1957), pp. 1739 et seq. On 23 March
1962 a formal Nordic agreement on co-operation was concluded, but only on 13 February
1971 provisions on the organization (the Nordic Council), which already existed in fact,
were added into it as Articles 47 ff.
30 See Max Sörensen; “Le Conseil Nordique” in Revue générale de droit international
public (Paris) LVIII (1955) pp. 63 et seq.; Gustaf Petrén: “Nordiska Raadet, et egenartat
folkrättssubjekt” in Nordisk Tidsskrift for international Ret og Jus Gentium, XXIX (1959)
pp. 112–26, English text ibid., pp. 346–62; Nagel: “Der nordische Rat, seine Organe, seine
Funktionen und seine juristiche Natur” in Jahrbuch für internationales Recht (Göttingen)
VI (1956), pp. 199–214.
31 Thus Sörensen, loc. cit., pp. 67–69, who considered that the Council constituted a legal
order sui generis; Nagel, loc. cit., p. 212; and Petrén, loc. cit., p. 117. The reasons given
for not considering the Nordic Council an intergovernmental organization were, besides
those referred to in the text, that the Council is not composed of governments, but of
representatives from parliaments, and that it had no permanent common secretariat. As for
the rst fact, it is not part of the criteria listed above that the organization is constituted by,
and composed of representatives of, any particular organs of the member States. Doubts
might more easily arise from the fact that the Nordic Council had no real permanent
common secretariat until it was established in Stockholm under Articles 50 and 54 of its
constitutional convention of 13 February 1971. Before then it had, under para. 8 of its
Statute, only secretariats for each national delegation (composed of national ofcials who
are subject to national jurisdiction), although the Rules of Procedure (§ 8) provided that
“the secretary of the delegation in whose country the session is held acts as secretary”
(in fact she acts as secretary, not only to the Council during that session, but also to its
President until the beginning of the next session). This might have deprived the Council
of the factual need for and opportunity to perform international acts, but it could hardly
deprive it of the legal capacity to do so. Moreover, the Council had another ‘standing’
organ, since it, in accordance with § 5 of the Statute, elected “for each session and for the
period until the next session” a President and four Vice-Presidents who together constitute
the Bureau of the Council, which inter alia was to direct the work and the cooperation
of the secretariats (Statute, § 8) and to conduct the current affairs of the Council between
sessions (Rules of Procedure, § 22).
32 Sörensen, loc. cit., p. 68, no doubt correctly, pointed to the reasons listed in the text as
indications that the Nordic Governments did not intend to confer upon the Council any
legal personality vis-à-vis these governments and, still less, vis-à-vis third States. Nevertheless
he considers, also correctly, that the Council could conclude for example a cooperation
agreement with the Council of Europe. It must be presumed that any rights and duties
arising out of such agreement would devolve upon the Council as such rather than upon
48 chapter two

it is submitted, is that the organs exist and that the member States participate,
not that they are legally bound to do so. If the organization has independent
organs (which normally comprise at least a plenary organ, composed of rep-
resentatives of all the participating States, and a secretariat)33 then one cannot
prevent these organs from for example concluding a headquarters agreement
with the host State or an agreement on cooperation with another IGO. On the
same assumptions, one cannot deny that these agreements are treaties of inter-
national law and, provided that the organs have not been authorized by their
acts to commit the several member States, that they create rights and duties
for the organization as a distinct subject of international law. The same must
apply to such other international acts as the organization may be in a practical
position to perform, for example to present and receive international claims
based upon such treaties or upon general international law, to have such claims
settled by international arbitration, to convene intergovernmental conferences,
to receive permanent ‘diplomatic’ representatives from member States etc.,
although this is not very likely to occur in the case of organizations with very
modest functions. Such organizations must also be as entitled as other IGOs
to claim immunity from suit (ratione personae) and from measures of execution

its several member States and, of course, be governed by public international law. Sörensen
concluded that, despite dogmatic doubts and ambiguities, the Council “sans être revêtu
de la personalilté juridique normale en droit international, est muni, néanmoins, d’une
capacité juridique restreinte”. It is submitted, however, that once one (correctly) admits that
the Council can conclude treaties in its own name, it would be hard to deny, in principle,
its capacity to perform also any other international acts which it is in a practical position
to perform, or that such acts become binding upon the organs of the Council and not
upon the member States unless the latter have authorized the Council to commit them.
This means that one must admit the general international personality of the Council,
in the sense this term is used in the present book (legal capacity to perform any type of
sovereign or international acts which it is in a practical positions to perform).
33 The Statutes of the Asian-African Legal Consultative Committee expressly provided for
“a permanent Secretariat” led by a “secretary who may be authorized to act on its behalf
on such matters as the committee may determine” (Article 5). – The Colombo Plan had
a ‘Bureau’, composed of international ofcials appointed by the Council from persons
nominated by the member governments. They were paid from a common budget of the
Bureau, unless the country nominating them volunteered to meet the costs. (Today the
Colombo Plan has as its principle organs a consultative committee, a council and a sec-
retariat.) – The North American Free Trade Agreement (NAFTA) signed 17 December
1992 has a secretariat comprising national sections; cf. Article 2002 of the Agreement.
The national sections are headed by a Secretary appointed by the respective government,
which also bears the cost of its operations. The ASEAN Free Trade Agreements (AFTA)
signed 28 January 1992, provides in Article 7 that the ASEAN Secretariat shall provide
the support to the ministerial-level AFTA Council. AFTA was included in the broader
ASEAN Economic Community (AEC) by the Bali Concord II, 7 October 2003. The
International Council for the Exploration of the Sea also has a secretariat paid over a
common budget, internationally at the professional level.
intergovernmental organizations 49

in national courts to the same extent as foreign States. And they can certainly
claim incompetence ratione materiae if an action is brought in a national court
relating to matters falling under their exclusive organic jurisdiction. The
absence of a convention between the member States cannot in itself deprive the
organization of any of these capacities, rights and duties under international
law, or make the several member States responsible for its acts.
Nor is it necessary that the convention, resolution or other document pursu-
ant to which the organization has been established, denes in detail its organi-
zation, functions, powers and procedures. Here again, it is the factual existence
and functioning of the organization which matters. If this is established, one
cannot deny its capacity to perform the international acts and to claim the
rights under international law described above, nor can one deny the nature of
these as acts and rights under international law pertaining to the organization
as a distinct entity.34 In this respect, too, intergovernmental organizations do not
differ essentially from States, many of which exist, and exercise full international
personality, notwithstanding the fact that their written constitutions do not
cover all the subjects listed above, or that they have no written constitution at
all.35 From a practical point of view it may be useful or even necessary to have
certain rules concerning the internal procedures and the internal distribution of
powers between the several organs of the organization. However, neither this,
nor any rules concerning external capacities or procedures, is necessary from
the point of view of international personality. Indeed, provisions concerning

34 The Court of Appeal of Firenze, in a judgment of 14 March/23 August 1955 in Mazzanti


v. Headquarters Allied Forces Southern Europe, declared the said Headquarters “exempt
from Italian jurisdiction insofar as concerns the employment relationship involved in the
case”, despite the fact that Mazzanti was an Italian national who had been employed
with the Headquarters in Italian territory, and despite the fact that the constitution of the
North Atlantic Treaty Organization merely consists of the following provision (Article 9)
in the North Atlantic Treaty of 4 April 1949: “The Parties hereby establish a council, on
which each of them shall be represented, to consider matters concerning the implementa-
tion of this Treaty. The council shall be so organized as to be able to meet promptly at
any time. The council shall set up subsidiary bodies as may be necessary; in particular it
shall establish immediately a defence committee which shall recommend measures for the
implementation of Articles 3 and 5.” (The constitutions of many other regional defence
organizations are equally brief. See for example Articles 5–6 of the constitution of the
former Warszawa Pact Organization of 14 May 1955.) The Court thus took the same
position in respect of this organization, as other courts have taken in respect of IGOs
with more elaborate constitutions. Indeed, the Court relied upon, and quoted at length,
one of the judgments there cited (Proli v. International Institute of Agriculture). The
Court also referred to the more explicit reasons given in an obiter dictum of the lower
court and in a subsequent obiter dictum on NATO by the Italian Court of Cassation in
Branno v. Ministry of War. Both these obiter dicta are reprinted in International Law
Reports, 1955, pp. 756–762.
35 See Peaslee; Constitutions of Nations, 4th ed., the Hague 1974, for example under the
United Kingdom.
50 chapter two

the external or organic powers of the organization as a whole may do more


harm than good, because they may invite false conclusions a contrario to the effect
that the organization does not have the legal capacity to perform international
or organic acts other than those specied. Rules concerning the internal pro-
cedures and distribution of powers may, moreover, be laid down by subsequent
decisions36 of the plenary organ of the organization, which in the absence of
contrary provisions in the constitution,37 has the supreme power to exercise the
inherent exclusive organic jurisdiction of the organization. However, any such
rules are of a lower hierarchical order than the constitution; indeed, subject to
any eventual establishment of customary law, they have no more legal force
than individual acts decided upon or approved by the same organ.
Thus, even if most IGOs in fact have been established on the basis of inter-
national conventions which dene the organs, their procedures and the internal
distribution of powers between them, and even if such conventions have usually
preceded the establishment of the organization, such conventions and provisions
are not indispensable from a legal point of view, and in particular not from an
external point of view. What is decisive is that the organization exists, i.e. that
it satises the criteria listed above. Those organizations which have not been
established on the basis of any convention, or whose constitutions contain
practically no organizational provisions, bear evidence of the fact that, in this
respect too, IGOs are basically in the same legal position as States, and that the
differences between IGOs and States in this respect are differences of fact and
degree, rather than differences of law. But the most striking evidence may per-
haps be found in those organizations which have been established on the basis
of conventions which pretend that no organization is being set up, or which
even say explicitly that no organization shall be set up,38 but which, neverthe-
less, have the same organs and perform the same ‘sovereign’ and international
acts as other IGOs.39

36 In the commentary to Article 3 (3) of its 1962 draft articles on the Law of Treaties the
International Law Commission stated that it deliberately used the term “constitution” (in
preference to “constituent instrument”) as including also the [relevant] decisions and rules
of its competent organs (OR GA, XVII, Suppl. No. 9, p. 7). In the present book the term
is not used as including such decisions of a lower order.
37 The only known example of such contrary provision relates to an organization which has
a detailed constitution, see Article VI F, cf. Article V E, of the Statute of the International
Atomic Energy Agency of 26 October 1956.
38 See the example cited by Reuter: International Institutions, 1961.
39 GATT (acting under the name of the “Contracting Parties” [of the General Agreement
on Tariffs and Trade], subsequently part of the International Trade Organization) even
performed such acts on the basis of express constitutional provisions, see the ‘informal’
agreement of 9 February 1948 with the International Monetary Fund (IMF, Annual
Report 1949, pp. 75–78; cf. p. 50) which did not create rights and duties also for the
member States. Cf. Gold: The Fund and Non-Members (1966) p. 41, and Art. XXV of
the GATT.
intergovernmental organizations 51

Similarly it is not necessary for the organization to possess international per-


sonality that its international status is dened in the constitutive instrument of
the organization. Some international agreements do have provisions to the effect
that the organization shall enjoy legal personality, as in Article 104 of the UN
Charter or Article 281 of the EC Treaty, to expressly conrm the organization’s
legal personality in the national law of the member States.40 Other (regional)
agreements expressly State that the IGO shall enjoy international personality,41
and some agreements of a specialized-technical nature even do both.42 The
absence of legal personality in national law does not affect the organization’s
status under international law. Since international legal personality ows from
the fact that the organization exists, it is not the intention of the founders of the
organization to confer such personality which in itself creates new rights and
obligations under international law, but rather the actual establishment of the
organization.
In the case of the Organization for Security ad Co-operation in Europe
(OSCE), which prior to the Budapest Summit Declaration of 21 December
1994 was known as the Conference for Security ad Co-operation in Europe
(CSCE), ambiguity of intentions and confronting legal views have drained
resources away from fullling the objectives of the organization in order to
conduct an internal scrutiny of its legal status. The OSCE performs extensive
governmental functions, including in more than 20 OSCE missions and eld
activities located in South-Eastern Europe, the Caucasus, Eastern Europe and
Central Asia. It has its own organs which decide autonomously how to carry
out the organization’s functions, including by entering into international agree-
ments. As has been endorsed by the plenary meeting of the organization, the
OSCE possesses the essential criteria to enable it to be categorized as an inter-
governmental organization.43 Yet, the OSCE seems to aim for the advantages

40 Opposite; A. Reinisch, International Organizations Before National Courts, Cambridge


2000, p. 54 who maintains that it is clear from the context that in Art. 210 (now Art. 281)
EC, international legal personality is meant. The Treaty of Lisbon states in Art. 46A that
“the Union shall have legal personality”, and in Art. 1(b) that “the Union shall replace
and succeed the European Community”.
41 See for example MERCOSUR (Tratado de Asunción, as amended by the Protocolo de
Ouro Preto of 17 December 1994), Article 34, which states that “MERCOSUR tendrá
personalidad jurídica de Derecho Internacional”, and the Andean Community – Comuni-
dad Andina de Naciones (CAN), Article 48 of the Cartagena Agreement, as amended by
the Trujillo Protocol of 10 March 1996, which provides that: “The Andean Community
is a subregional organization with an international legal capacity and status.”
42 As in Article 5 nos. 1 and 2 of the International Fusion Energy Organization, cf. chapter
1 note 9. Cf. also Art. 15 of the Charter of the Shanghai Cooperation Organisation,
supra, chapter 1, note 14.
43 See OSCE Permanent Council Decision No. 383, doc. PC.DEC/383 26 November 2000,
point II.4 of Attachment 1 to Annex, where it is stated inter alia that “some missions
have already experienced cases of arrest and detention of local staff members while they
52 chapter two

of not being an intergovernmental organization proper (the perceived freedom


of exercising coordinated actions under the “veil” of an international institu-
tion without being accountable for the results of such performances) while at
the same time making sure there is no difference between acts of OSCE and
those of other, formal intergovernmental organizations. There is no reason to
treat the OSCE any differently than other IGOs as long as the formal set-up and
functions of the organization satisfy the basic criteria of an intergovernmental
organization as described above.44
A far less consequential debate is about whether the European Union, as
distinct from the already existing European Community, has a separate inter-
national legal personality of its own. Pending the entry into force of the new
Treaty of Lisbon that will merge the different “pillars” of the present legal con-
struction, it must be concluded that two distinct legal persons operate in parallel
and within their respective functions and mandates.45

were performing their ofcial functions”. See also Decision 16/06, doc. MC.DEC/16/06
and Attachment. To exemplify the role of the organization, the OSCE Mission in Kosovo
forms a distinct component of the United Nations Interim Administration Mission in
Kosovo (UNMIK) authorized under UNSCR 1244 (1999).
44 Debating the EU rapid reaction force on 17 February 2001 in Parliament the then UK
Conservative Party leader William Hague stated that “If it looks like an elephant and
sounds like an elephant, it is an elephant”. J. Klabbers notes that: if an international
entity looks like an international organization, functions like one, an is treated by outsid-
ers as one, then it is pretty unlikely that in reality it is, all appearances notwithstanding,
something other than an international organization; cf. Soft Organizations in International
Law, Nordic Journal of International Law, Vol. 70 2001, p. 415.
45 Though the EU satises all relevant criteria to possess international legal personality, e.g.
autonomous decision-making powers (including the capacity to formulate binding com-
mon positions, joint actions, decisions and framework decisions under Articles 12 and 34
TEU) and external treaty-making powers (Articles 24 and 38 TEU), the discussions on
the international legal status of the EU must be seen in the light of the fact that the EC
existed as a legal person both in international law and the national law of the member
States prior to the creation of the EU by the Treaty of Maastricht (1992). The EU does not
replace the EC, and the (new) competencies exercised under the EU Treaty are subsidiary
to the supranational and other powers of the EC (Article 47 of the EU Treaty). It should
also be observed that the Community legal system is founded on the principles of legal-
ity and subsidiarity of powers as set out in Article 5 TEC. For these reasons the notion
of international legal personality may have been mixed up with the capacity to exercise
supranational powers, cf. also below chapter 2.6. In sensitive areas such as foreign and
security policy and justice and home affairs, which are close to the traditional core areas of
national sovereignty, it has been politically important to distinguish the EU competencies
from those of the EC. This notwithstanding, the EU is an intergovernmental organization
in its own right with objective legal capacity under the common law of IGOs described
in this book.
intergovernmental organizations 53

2.4 Capacity for rights, duties and action under


international law

It is submitted that any organization which satises the criteria listed above, is,
on the basis of general international law, ipso facto a general subject of interna-
tional law, in the sense that it, like States, has the inherent capacity to perform
any act of international law which is in a practical position to perform, subject
to such negative restrictions which are laid down in its constitution if and to the
extent that these might be considered to have external effect in respect of (States
and) IGOs. A different matter is that organizations of the so-called type dépendant
may be wholly or partly deprived of their capacity to perform themselves the
international acts (capacity for action), since these are performed, on their behalf,
by the host State.
The fact that intergovernmental organizations have capacity to perform such
international acts as they are in a practical position to perform implies that
such acts give rise to rights and obligations under international law.46 Indeed,
it is submitted that IGOs enter automatically into the rights and obligations
under general international law to the extent that their nature and acts call for
application of such rights and obligations. But their international rights and
obligations are not necessarily identical to those of the traditional subjects of
international law, States.47 There is, however, a good basis for analogy when the
substantive conditions are the same. Thus it is submitted that United Nations
Forces must have essentially the same rights and duties as States under the laws
pertaining to armed conict, if United Nations enforcement actions in fact take
the form of enforcement action rather than of peace-keeping or police action.48
Similarly, IGOs may claim the same immunity before national courts as States
may claim before foreign national courts, even if no convention so provides.49 It

46 Thus, for example the obligation of certain specialized agencies under their relationship
agreements with the United Nations not to admit non-members of the United Nations to
membership if the Economic and Social Council objects, is an obligation of international
law.
47 Alf Ross: Lærebog i folkeret, 6th ed., Copenhagen 1984, §§ 15 II and 19 VIII). The
International Court of Justice in 1949, in its advisory opinion on Reparation for Injuries
Suffered in the Service of the United Nations stated that the UN “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” (ICJ
Reports 1949, p. 179). The present writer would have added the word “necessarily” into
the last phrase.
48 See Seyersted, United Nations Forces in the Law of Peace and War, Leyden 1966, chapters
V–IX.
49 Cf. Godman v. Winterton and Others (representing the Intergovernmental Committee
on Refugees), The Times, 13 March 1940; see also the action against the Pan-American
Union reported by Scott-Peneld in AJIL, XX (1926), p. 257. (In neither of these cases
54 chapter two

is more doubtful whether a State has the same duty under general international
law to grant diplomatic privileges and immunities to permanent representatives
accredited to an IGO with headquarters in its territory, as it has in respect of
diplomatic representatives accredited to that State’s own government. A dif-
ferent matter is that such a duty may be deduced from the act admitting the
organization to its territory or from any headquarters agreement. At any rate,
most or all host States in fact grant diplomatic privileges and immunities to per-
manent representatives to IGOs with headquarters in their territory, and they
undoubtedly have a duty under general international law to grant immunity in
respect of their ofcial acts.
The freedom of action of an IGO may have been restricted by an interna-
tional agreement to which it is a party, or by a unilateral act on its part, in the
same manner as the freedom of action of a State may have been restricted, for
example by a treaty of neutralization. Thus certain specialized agencies did in
their relationship agreements with the United Nations undertake not to admit
non-members of the United Nations to membership if the Economic and
Social Council objects.50 Such restrictions do not deprive the organization of
its capacity to perform the acts concerned;51 these are valid in relation to third
parties and given rise to regular rights and obligations under international law.
Such restrictions therefore do not detract from the international personality of
the organization. The limitation of the purposes of the organization and other
restrictions contained in its constitution merely represent internal restrictions
upon its freedom of actions if they are not considered to have external effect. If
they do have external effect, they constitute limitations upon the international
capacity of the organization.
On the other hand, it is submitted that if an organization does not full the
criteria listed above, it can be a subject of international law only if and to the
extent that States have conferred international functions upon it, and only in
relation to these States and to States which have expressly or by implication
recognized these functions. A special case in this respect is the International
Committee of the Red Cross (ICRC). Although this is a non-governmental
organization, subject in principle to Swiss law, it has been granted general rec-
ognition for its humanitarian activities and a number of specic powers in that
eld under the Geneva Conventions of 12 August 1949, to which practically

was a written opinion given, and it is thus not clear whether the courts (rightly) considered
the organizations as juridical persons distinct from their several member States.)
50 See for example Article II of UNESCO’s relationship agreement (UNTS, I, p. 238).
51 This is pointed out in respect of neutralized States by Alf Ross, op. cit., § 18 A. Eagleton:
“International Organization and the Law of Responsibility” in Recueil des Cours, 1950,
p. 343, took a different view, both in respect of States and of IGOs, however, he, too,
placed these on an equal footing, in contrast to what most other writers do.
intergovernmental organizations 55

all States of the World are parties.52 Moreover, it concludes agreements which,
pursuant to the intention of the contracting parties, are not subject to national,
but to international law.53 This it does both with parties and non-parties to the
Geneva Conventions.54

52 See notably the general provisions in Articles 9 and 125 and the specic provisions in
Articles 10, 56, 73, 123 and 126 of the III Geneva Convention Relative to the Treatment
of Prisoners of War and several similar provisions in the other Geneva Conventions. See
also Article 16 of the Treaty of Peace with Japan of 8 September 1951 (UNTS, Vol. 136,
p. 68).
53 For example the agreement with Greece of 3 November 1969 granting the ICRC access to
places of internment of, and to give aids to, political prisoners, as well as rights of visit for
relatives. Cf. also Taracouzio, The Soviet Union and International Law, A Study on the Leg-
islation, Treaties and Foreign Relations of the Union of Soviet Socialist Republics, New York
1935, pp. 15 and 205–6; and the agreement of 9/12 May 1960 between the United States,
the Federal Republic of Germany, France, the United Kingdom and the Comité interna-
tional de la Croix-Rouge Concerning the International Tracing Service (U.S. Treaties and
Other International Acts Series, No. 4736) and the earlier agreement of 6 June 1955 (U.K.
Treaty Series, No. 11 (1956)) transferring to the Comité the direction and administration of
the international tracing centre at Arolsen. The international character of the agreements
concluded during the Spanish Civil War were denied because they were concluded through
the Spanish Red Cross, see Guggenheim: Lehrbuch des Völkerrechts, I, Basel 1948, p. 262,
note, and text of the agreements in XVIe Conférence internationale de la Croix-Rouge,
Rapport general du Comité international de la Croix Rouge 1934–38, pp. 131 et seq.
The International Law Commission, in its 1959 and 1962 draft articles on the Law
of Treaties, stated categorically that agreements between a State (or other subjects of
international law, possessed of treaty-making capacity) and a private individual or entity
is necessarily and always not an agreement governed by the law of treaties, although “if
several States were involved, together with one or more private entities, the instrument
might operate as a treaty purely in the relations between the States parties to it” (Yearbook
of the International Law Commission, 1959 II, p. 95). The Commission did not specify
whether it also precluded application of international law to the substance and if so, what
law would be applicable (cf. Lissitzyn: “Efforts to Codify or Restate the Law of Treaties”
in Columbia Law Review LXII (1962), p. 1178, note). It is submitted that the agreement
must be governed by international law if it, according to its content and the intention of
the parties, could not be governed by national law. An example may be the agreement of
6 April 1961 between the International Atomic Energy Agency, the Principality of Monaco
and the Institut Océanographique Concerning Research on the Effect of Radioactivity
into the Sea, UNTS, Vol. 396. Reference may also be made to the agreement between
the United Nations and the Carnegie Foundation Concerning the Use of the Premises of
the Peace Palace at the Hague, approved by GA resolution 84 (I) of 11 December 1946.
This agreement provided, in Article XIV: “It is expressly understood that the question
of the establishment of the International Court of Justice at the Peace Palace exclusively
concerns the United Nations and the Carnegie Foundation, and is consequently outside
the jurisdiction of any other organization; the Foundation declares its readiness to accept
all the responsibility arising out of this principle.”
54 See also, on reparation paid to the ICRC by the UN for the killing of three ICRC rep-
resentatives, Seyersted, ibid. note 48, p. 195.
56 chapter two

2.5 Is actual performance of international acts necessary?

There is even one of the criteria listed above which may be dropped from the
list, namely the condition that the organization performs “sovereign” and/or
international acts.
All organizations which are not subject to the jurisdiction of any one State or
other organized community will by denition exercise exclusive, or “sovereign”,
jurisdiction over its organs,55 as well as over any territory or persons or States
if and to the extent these might be placed under its jurisdiction. The condition
that the organization performs “sovereign” acts is thus superuous, in as much
as it follows from the other criteria listed.
On the other hand, there may be organizations of limited functions which
do not perform international acts, in a limited sense, at least during the rst
phase of their existence. Thus the International Tin Council was an IGO which
pursued its main purpose of regulating the tin market by performing business
transactions.56 There is a tendency to deny their international personality in
such cases, or to consider it to be limited to those capacities which they have
actually exercised, e.g. immunity from suit. This is in effect what is suggested by
a number of writers who attempt to mitigate the proposition that international
powers depend upon the constitution of the organization, by adding that they
may be extended by the practice of the organization57 or who attach major
signicance to the latter criterion. This may be a matter of terminology. It is of
course possible to dene “international persons” or “subjects of international
law” in a descriptive sense and xed in time, as communities which have in fact
performed international acts.58 If so, no IGO which does not have territory,
population, military forces etc. could be termed a general subject of interna-
tional law, and some organizations might not be termed subjects of interna-
tional law at all. However, this must not be confused with legal limitations upon
the international capacities and personality of the organizations. Indeed, the

55 Except insofar as they may have voluntarily submitted to local jurisdiction in certain
respects.
56 Se Seidl–Hohenveldern: “Failure of Controls in the Sixth International Tin Agreement”
in Towards More Effective Supervision by International Organizations, Essays in Honour
of Henry G. Schermers, Dordrecht 1994, pp. 255–74, on the question whether, after the
bankruptcy of the International Tin Council, its corporate veil should have been lifted
to allow direct claims against Member States.
57 See for example Kasme: La capacité de l’Organisation des Nations Unies de conclure des
traités, Paris 1960, p. 36 and ICJ Reports 1949, p. 180.
58 Some of the restrictive views which have been advanced (see for example some of those
quoted by Kasme, op. cit., pp. 21–24) may be connected with such deniton. See also
Kasme’s own denition and views, op. cit., p. 35, which are very different from those
submitted in the present study.
intergovernmental organizations 57

concept of international persons would hardly serve any legal purpose if it were
dened by the factual performance of international acts or exercise of interna-
tional rights and duties at a given time and automatically expanded by any new
acts. What one needs to know for legal purposes is which communities have
the capacity to perform (any type of) international acts and to be subjects of
international rights and duties,59 if and when the practical opportunity arises.
And it would be as wrong in the case of IGOs as in the case of States to attempt
to turn factual limitations into legal limitations. The factual limitations may
disappear as soon as the facts change, for example if the organization is given
territorial jurisdiction. If one takes the view that the organization only has the
legal capacity to perform such acts as it has already performed, then one would
logically be denying the capacity of the organization to perform any new types
of acts. This would amount to saying that for example Iceland does not have
the capacity to create an army and to wage war because it in fact never did so,
or that a new State does not have the capacity to conclude treaties because it has
not yet done so.60 On the other hand, if one is prepared to admit the capacity of
a State or organization to perform international acts, or any particular type of
international act, the moment it actually does so, then it would appear articial
and misleading to consider that, before this happens, it lacks the capacity to per-
form international acts, or the particular type of international act concerned,
merely because it has not yet done so. It would also be articial, or wrong, to say
that a sovereign community does not have international capacities until these
have been established by a consistent practice by that community. If one is not
prepared to question the validity of the rst international acts (of each type)
performed by the community, this would be a pure ction which would serve
no purpose other than to conceal the true legal position. On the other hand, if
one were to draw the logical consequence of such a doctrine and question the
legality of the rst acts until they have been repeated sufciently to establish a
practice, one would nd oneself in conict with the facts of international life. It
cannot be required that the international capacities should be established again
and again in respect of each new organization and in respect of each type of
international act. It must sufce that the international capacities and personality
of IGOs, like those of States, have been established as a general principle of
international law through the practice of IGOs generally. And this practice cer-
tainly is consistent and extensive enough to constitute customary international
law. It should be recalled in this connexion that we are not here concerned with

59 It was in this sense that the International Court of Justice expressed itself in Reparation
for Injuries, ICJ Reports, 1949, p. 179.
60 Cf. Lissitzyn’s statement, quoted above, note 52, where he, correctly, places States and
IGOs on an equal footing in this respect.
58 chapter two

a problem of the internal law of each IGO, any more than we are in respect
of States concerned with the national law of each State, but with a question of
general international law. Moreover, as will be demonstrated below, the general
practice referred to merely conrms a logical principle that all “sovereign”, or
self-governing, communities are subjects of international law.

2.6 Possible reasons for denying the general international


personality of intergovernmental organizations

The doctrine that States are the only necessary subjects of international law

It has already been pointed out that the general reluctance of legal writers
to admit the general and objective international personality of IGOs may be
seen as a reminiscence of the ancient doctrine that only sovereign States are
subjects of international law, and as a consequence of the distinction between
‘necessary’ and ‘derived’ subjects of international law. This is contradicted by
a practice which constitutes customary international law.

Assimilation to associations of individuals under certain systems of national law

An underlying reason for the reluctance of some legal writers to admit the gen-
eral international personality of IGOs may be found in an assimilation of the
position of organizations of States in international law to that of associations
of individuals in certain systems of national law. The national law of many
(notably Roman law) States recognizes the legal personality of associations only
if and to the extent that it has been positively conferred upon them by legislative
provisions and/or incorporation. This may work well in systems of national
law, which have a developed legislative and administrative power, except for the
involved problems of drafting if one wishes to enumerate the capacities of each
organization. 61 But it is submitted that it does not lend itself to application by
analogy in international law, where there is no legislative power.

61 The complete American style of legal drafting is shown, for example, in the United States
Act on the American Society of International Law, Title 36 (of 20 September 1950) to
Incorporate the American Society of International Law, and for Other Purposes, repro-
duced in all subsequent issues of the Proceedings of the American Society of International
Law. Paragraph 5 of the Act reads:
“The corporation shall have succession by its corporate name and shall have power to
sue and be sued, complain and defend in any court of competent jurisdiction; to adopt,
intergovernmental organizations 59

If an analogy is to be drawn from national law, it would seem more appro-


priate to draw it from those national systems of national law which take the
opposite approach, by recognizing, without legislative provisions and/or
incorporation, the general juridical personality of associations, subject only to
such restrictions as may be laid down in statute.62 Even in the latter systems it is
obvious that juridical persons, because of their nature, cannot perform certain
types of acts normally performed by physical persons (for example only physi-
cal persons may enter into matrimony, whereas juridical persons may opt for
merger), but these are limitations of fact, which require no legal expression or
which follow from the special laws concerned. This is in line with the factual
limitations which apply in the case of most IGOs, for example that they cannot
exercise any territorial powers as long as no territory has been placed under
their jurisdiction. In the case of international law a transformation of such
facts into legal restrictions would do direct harm, because it would prevent the
organization from acting if, at a later stage, it were put in a practical position to
do so, by relevant cession of territorial jurisdiction or other powers from one or
more member or non-member States.

Confusion with acts which impose obligations upon States, or with scope of nancial
obligations of member States

Failure to recognize the inherent powers of IGOs may also stem from a failure
to distinguish between acts which impose obligations upon member States and
acts which do not. In this connection it is recalled that IGOs cannot impose

use, and alter a corporate seal; to choose such ofcers, managers and agents as its business
may require; to adopt, amend, apply, and administer a constitution, bylaws, and regulations,
not inconsistent with the laws of the United States of America or any State in which the
corporation is to operate, for the management of its property and the regulation of its
affairs; to contract and be contracted with; to take and hold, lease, gift, purchase, grant,
devise, or bequest, in full title, in trust, or otherwise, any property, real or personal, nec-
essary for attaining the objects and carrying into effect the purposes of the corporation
subject, however, to applicable provisions of law of any State (A) governing the amount
of kind of real and personal property which may be held by, or (B) otherwise limiting or
controlling the ownership of real and personal property by a corporation operating in such
State to transfer and convey real or personal property; to borrow money for the purposes
of the corporation, and issue bonds therefore, and secure the same by mortgage subject
in every case to all applicable provisions of federal or State laws; to publish a journal
and other publications, and generally to do any and all such acts and things as may be
necessary and proper in carrying into effect the purposes of the corporation.”
62 This is the system of Scandinavian law. Norwegian, Danish and Swedish laws require
no formalities for the constitution of a non-prot association. See for Norwegian law:
Woxholt: Foreningsrett, Oslo 1990, p. 27, for Danish law: Hasselbalch: Foreningsret,
Copenhagen 1992, p. 50, and for Swedish law: Hemström: Organisationernas rättsliga
ställning, Stockholm 1988, p. 45.
60 chapter two

obligations even upon their member States unless these have authorized it to
do so, in the constitution or otherwise. A recent example of such uncertainty
is provided by Declaration no. 24 of the Final Act of the Treaty of Lisbon,
13 December 2007, concerning the legal personality of the European Union,
where it is stated that: “The Conference conrms that the fact that the Euro-
pean Union has a legal personality will not in any way authorise the Union to
legislate or to act beyond the competences conferred upon it by the Member
States in the Treaties.”
And a constitutional authorization of course does not apply to non-mem-
bers, which are not parties to the constitution. Thus, even if the objective
international personality is admitted or recognized, this does not mean that the
constitution becomes binding upon non-members or that the organization can
impose obligations upon non-member States without authorization from these,
any more than a State whose objective international personality is admitted or
recognized can impose obligations upon other States without special author-
ity from these. This is illustrated by a study on implied powers,63 which deals
indiscriminately with cases involving: (1) Obligations of member States, (2) the
competence of the organization vis-à-vis its member States to deal with mat-
ters which fall outside the stated purposes of the organization, by action which
does not involve the imposition of obligations upon States, and (3) capacity
to perform international acts to attain purposes stated in the constitution and
which do not impose obligations on States.64 It is submitted that the methods
of extensive interpretation of the constitution (by stretching words or presum-
ing intentions of the drafters) discussed generally and partly criticised by the
writer, are not relevant to the third category, which is one of inherent powers
of IGOs generally, not of powers implied in the constitution of the particular
organization.
An important aspect of this is the consideration which is sometimes advanced
that the legal capacities of IGOs must be limited in order to limit the obligation
of the member States to contribute nancially to the organization’s activities.
However, the question of the power of the organization to require its member
States to contribute to the expenses of the organization depends, in principle,
upon an interpretation of the budgetary and other provisions of the constitu-
tion of the organization concerned and of any other commitments the mem-
ber States might have entered into vis-à-vis the organization.65 This internal

63 Rouyer-Hameray: Les compètences implicites des organisations internationales, Paris


1962.
64 Reparation for Injuries, ICJ Reports 1949, p. 179.
65 The limitation of this power was discussed by Sir Gerald Fitzmaurice in his Individual
Opinion in Certain Expenses of the UN, ICJ Reports 1962, p. 198. In its work on respon-
sibility of international organizations, the International Law Commission is divided on
intergovernmental organizations 61

problem is different from the question of the external legal capacities of the
organization under international law,66 indeed it cannot be solved by denying
the organization the capacity under international law for example to conclude
international agreements or to maintain permanent representatives or by deny-
ing it the normal rights and duties of international law arising out of these or
other acts, but it can be solved in part by giving external effect to constitutional
limitations of a substantive (purposes) or procedural nature. It is no more
illogical if these rules of the internal law of the organization and of general
international law, respectively, do not coincide, than it is that associations and
stock companies have full juridical personality under national law while their
power to require their members to contribute to covering the costs arising out
of their activities depends on their internal constitutions. A different matter is
that national law (legislation) usually sets certain limits for the freedom of certain
types of non-governmental organizations in this eld, and that international
law also conceivably may limit the freedom of IGOs in this eld, although it is
hard to nd any practice in this sense.67

Lack of resources for fulllment of obligations

A further underlying reason for the reluctance of many writers to recognize


the general and, in particular, the objective international personality of IGOs,
may be the fact that States to a larger extent than most IGOs possess resources
which enable them to fulll their obligations and against which other States can
take measures to bring about such fulllment. However, the same observation
may be made with regard to juridical persons of national law when compared
to States. Nevertheless, despite the fact that many non-prot-making associa-
tions have very limited resources they are still recognized as juridical persons
in national law. And in international as in national law the absence of any
external obligation of the members will be clear to any third parties which enter
into relations with the organization. At least when such third parties deal with
an IGO of the usual type, or with a supranational organization in respect of
organizational matters, it will be aware of the fact that the organization is not

the question of whether an obligation under international law exists for member States of
a responsible organization to enable that organization, nancially or otherwise, to make
reparation to a third party, cf. draft Art. 43 of the ILC’s report doc. A/62/10, pp. 216–7,
and below, chapter 10.
66 This distinction was the underlying premise of Sir Gerald’s opinion, ibid. pp. 205–7, cf.
pp. 199–200.
67 On the contrary, the International Institute for the Unication of Private Law was, under
the original version of Article 16 of its Statute, dependent upon voluntary contributions
from its member States, except for a xed contribution from Italy.
62 chapter two

authorized to commit its several member States. Problems arise only in certain
cases when the organization has taken over powers from its member States, as
in the case of functional competences of the supranational European Commu-
nity.68 This is not a question of denying the objective international personality
of the organization, but of whether the transfer to the organization of the par-
ticular power and obligation has resulted in liberating the member State con-
cerned from its relevant obligations under general and particular international
law. Such liberation may be denied even by a third party who has recognized
the organization as a subject of international law.

Dependence upon the member States

Those who advocate the responsibility of the several member States for the
acts of the organization and/or deny its objective international personality
have also referred to the inuence which the member States exercise upon the
decisions of the organization.69 However, it is doubtful whether this fact can be
given legal effect in international law to any greater extent than national law
draws legal consequences from the inuence which individuals exercise upon
the acts of juridical persons in which they participate.
Similar considerations apply in respect of the argument which has been
advanced by the same writers, that the existence of an IGO is dependent upon
the will of their member States in the sense that these may dissolve it.70 This too
is paralleled in national law. And even States may be dissolved, with or without
their own will, without a general succession in international obligations taking
place.

Confusion of objective international personality and recognition with duty to enter into
ofcial relations

A nal underlying reason for the general reluctance to admit the validity of
the international personality of IGOs vis-à-vis non-member States which have
not recognized the organization may be found in the same confusion between
objective international personality, recognition and duty to enter into ofcial

68 Cf. Wengler, loc. cit., III, pp. 27–28.


69 Cf. Wengler in Actes ofciels du Congrés d’études sur la CECA, III, p. 63, and Hahn,
loc. cit., p. 1049.
70 Wengler, loc. cit., p. 12.
intergovernmental organizations 63

relations, which, as pointed out by Verdross71 and Bindschedler,72 may origi-


nally well have been at the root of the constitutive view of recognition also in
respect of States.73 In the case of IGOs, as well as in the case of States, objective
international personality merely means that the State or organization is subject
to the rights and duties of international law and that it must be treated as a
subject of international law by any other subject of international law which has
relations with it. But it does not mean that other subjects of international law
have a duty to enter into diplomatic or other special relations with it.74 Even a
positive act of recognition does not oblige them to this, although recognition
is usually not given until the recognizing State is prepared to enter into special
relations, and this is precisely what may cause the confusion. It may of course
in fact be difcult for a State to avoid any contact with another State which it
does not wish to recognize, or with an important global organization like the
United Nations. However, it may be quite possible to avoid contacts with less
important or regional organizations. The only effect of objective international
personality is that, to the extent international relations in fact exist, these create
rights and duties under international law, and the organizations, rather than its
several member States, is bearer of the rights and duties arising out of the acts
performed by it or addressed to it.

71 Völkerrecht, 5th ed., Vienna 1964, pp. 246–7.


72 Archiv des Völkerrechts, IX (1962), p. 386.
73 Alf Ross, op. cit. above, note 47, § 18 III (§ 19 III in later editions in Danish), points
to another reason why the constitutive view came about, viz. the ctitious theory of
international law as a conventional law. Even if written off by most writers in respect of
States, this theory may still play a role in respect of IGOs where nearly everybody takes
the view that their international personality depends upon the conventions establishing
them, rather than upon their objective existence.
74 Cf. Alf Ross, op. cit. It may have been this distinction which Judge Krylov had in mind
when he stated in his dissenting opinion on Reparation for Injuries Suffered in the Service
of the United Nations: “It is true that the non-member States cannot fail to recognize the
existence of the United Nations as an objective fact. But, in order that they may be bound
by a legal obligation to the Organization, it is necessary that the latter should conclude
a special agreement with these States” (ICJ Reports, 1949, pp. 218–9). It is recalled that
Krylov supported the unanimous conclusion of the Court that the United Nations has
the capacity to bring an international claim against a member or non-member State in
respect of damage caused to the organization, but that he, together with Judges Badawi,
Hackworth and Winiarski, dissented from the conclusion that the United Nations has
the capacity to bring such claims against a member or non-member State in respect of
damage caused to the agents of the organization.
64 chapter two

2.7 Conclusions

In conclusion, it is submitted that, although the majority of IGOs have in fact


been established by an international convention between the member States, this
is not from a legal point of view the crucial test of capacity to perform sovereign
and international acts and thus of international personality. IGOs, like States,
come into being on the basis of general international law when certain criteria
exist, and these necessary criteria do not include a convention. The criteria
are: International organs (i.e. organs established by two or more sovereign com-
munities) which: (1) are not all subject to the authority of any other organized
community except that of the participating communities acting jointly through
their representatives on such organs, (2) act in their own name, and (3) are
not authorized by all their acts to assume obligations merely on behalf of the
several participating communities. It is submitted that all organizations which
full these criteria are general subjects of international law, in the sense that
they have the capacity to perform all types of international acts which they are
in a practical position to perform, and which have not been precluded by any
provision of their constitution (if and to the extent that constitutional restric-
tions have external effect). This means that all those organizations which are
commonly referred to as “intergovernmental organizations” are international
legal persons.
CHAPTER THREE

BASIC GENERAL DISTINCTIONS

3.1 Inherent versus delegated powers – as opposed to the fiction


of “implied powers”

The concepts of “implied” and “inherent” capacity are sometimes confused,


as they are both used to achieve the same result in substance. But they are
in fact diametrically opposed in their points of departure. “Implied powers”
departs from the traditional thesis in legal theory that an IGO can do only
what is provided in its constitution, and then wiggles out of it in fact, without
stating where the limit goes. “Inherent powers” refute the traditional thesis
that an IGO can do only what is provided in its constitution – and instead
denes the limit between what it can do without legal basis and what requires
a legal basis, but not necessarily in the constitutional convention. This it does
by making the basic distinction between, on the one hand, inherent internal
jurisdiction over organs and their members as such and inherent external legal
capacity to act as an equal partner, and, on the other hand, extended jurisdiction,
which has been conferred upon some organizations, to make decisions binding
upon parties which have a legal existence outside the organization (States, other
IGOs, individuals and legal persons). While the former powers are inherent in
any IGO, State or other self-governing community as a matter of customary
international law, the extended jurisdiction requires a specic legal basis –
i.e. an authorization from the States concerned. But even that does not have
to be given in the constitution of the organization, as long as the latter does
not contain limitative provisions (e.g. on purposes) which preclude such pow-
ers. “Implied powers” need only be resorted to exceptionally – but then in a
genuine sense – if provisions on extended jurisdiction have been formulated
too narrowly to give effect to what obviously was intended by their framers.
Some writers on the law of intergovernmental organizations start out from
a premise that an intergovernmental organization – in contradistinction to
States and other self-governing communities – can do only what is provided in
its constitution (the instrument establishing it). In its pure form, this is referred
66 chapter three

to as the doctrine of “attributed” or “delegated” powers – meaning powers


given to the particular organization by its member States.) This concept is
applied indiscriminately to all types of acts – from transactions on an equal
and voluntary basis with external parties (legal capacity) to making decisions
binding upon member States and other types of parties ( jurisdiction).
Seeing that this is not so in practice1 and that perhaps most of the acts per-
formed by IGOs have not been authorized by constitutional provisions (other
than by falling within their dened purposes) – writers resort to the ction
of “implied powers”. In theory, this concept starts out from an interpretation
of what the authors of the constitution of the organization concerned are
supposed to have had in mind when they drafted that particular convention.
In the absence of criteria other than the ctitious intentions of the authors,
the concept is in fact applied exibly whenever the need is felt. As has been
stated; the most fascinating aspect of the doctrine of implied powers is its
exibility. Indeed, it offers no guidance,2 merely an escape from a false point
of departure.
Even the International Court of Justice resorted to this ction during its
rst years, when it held that the UN could claim reparation under inter-
national law for damage suffered by its ofcials and representatives in the
performance of their mission for the organization,3 and when it held that
power to establish an administrative tribunal to adjudicate disputes between
the organization and its ofcials “arises by necessary intendment out of the
Charter”.4 However, in 1962 the Court turned the presumption around,5
adopting the principle of “inherent power” advanced by the present writer
in an article written for use in that case and circulated to the judges by one
of them.6 However, the latter advisory opinion appears to have escaped the
attention of legal writers. Or they have not noticed its diametrically opposed
point of departure: “the presumption is that the organization has the power”,

1 See e.g. the practice reported by the present writer in IV Indian Journal of International
Law (1964), pp. 74 and 233–65, and by Schermers and Blokker:, International Institutional
Law, 4th ed., the Hague 2003, §§ 1594–1598.
2 See e.g. Royer-Hameray: Les Compétences des organisations internationales, Paris
1962.
3 Reparation for injuries suffered in the service of the United Nations, ICJ Reports 1949
p. 182.
4 Effect of awards of compensation made by the United Nations Adminstrative Tribunal,
ICJ Reports, 1954, pp. 56–7.
5 Certain Expenses of the United Nations, ICJ Reports, 1962 at p. 168.
6 Can the United Nations Establish Military Forces and Perform Other Acts Without Specic
Basis in the Charter? XII Österreichische Zeitschrift für öffentliches Recht, 1962, pp. 188 ff.,
esp. p. 201 ff., reprinted in Seyersted, United Nations Forces in the Law of Peace and
War, Leyden 1966, chapter IV.
basic general distinctions 67

(in casu to establish military forces other than those provided for in Chapter
VII of the UN Charter), which implies that it is any limitation of the power
that requires a legal basis.
If one also in legal theory would turn the presumption around and make
the relevant distinction between different types of “powers” – on the basis of
consistent practice described by the present writer in earlier articles7 and in
the present book – the problems would fall into place. It then becomes clear
that there are rm principles of general customary law, common to all IGOs,
which determine what an IGO can and cannot do in the absence of specic
authorization in its constitution or otherwise, and that there is no need for
“implied powers” as a ctitious escape.
In the rst place, there is no requirement in international law practice that
the legal personality (external legal capacity) of an international organization
in national and international law must be laid down in its constitution or
other express treaty provision. All intergovernmental organizations have –
and exercise – inherent capacity to act externally as subjects of national
and international law in all relations where they are in a practical position
to do so (international personality follows from well established customary
international law). Any limitation upon that personality requires a legal basis
in the national law concerned, or in the constitution of the organization,
respectively. Examples of such limitation are hard to nd8 – even harder than
it is to nd provisions stating international personality. The tendency among
legal writers to seek authorization in the constitution of each organization
concerned may be understandable in the case of Continental European
lawyers, as their national legal systems require a basis in statute for legal

7 International Personality of Intergovernmental Organizations, IV Indian Journal of


International Law, 1964, pp. 1–74 and 233–265; Jurisdiction over Organs and Ofcials
of States, the Holy See and Intergovernmental Organizations, International and Com-
parative Law Quarterly, 1965, pp. 33–82 and 493–527; Settlement of Internal Disputes
of International Organizations by Internal and External Courts, XXIV Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht, 1964, pp. 1–121; Applicable Law in
Relation between Intergovernmental Organizations and Private Parties, III Recueil des
cours de l’Académie de droit international de la Haye.
8 An enumeration in the constitution of the organization of its purposes is, in principle,
limitative internally, subject to developments by internal customary law. The Vienna
Convention on the Law of Treaties between States and International Organizations or
between International Organizations of 21 March 1986 stipulates in Article 27 (2) that “an
international organization party to a treaty may not invoke the rules of the organization as
justication for its failure to perform the treaty”, and in Article 46 (2) that “an international
organization may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of the rules of the organization regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and concerned a rule
of fundamental importance”.
68 chapter three

personality of associations and companies under national law. But even writers
from Anglo-Saxon countries – which like Scandinavian countries require no
such basis in their national law – tend to start from the opposite (and false)
point of departure in international law. Indeed, it was the American judge
Hackworth who took the most restrictive view (delegated powers) in the rst
ICJ advisory opinion (Reparation for Injuries 1949). A parallel position was
taken by communist countries – as defense against a non-communist majority
of membership in IGOs.
In the second place, every intergovernmental organization exercises inherent
jurisdiction over its organs and their members as such. This organic jurisdiction
is never stated generally in the constitution. It includes legislative, administra-
tive and judicial power, but not power of enforcement,9 which is an aspect of
territorial jurisdiction. The inherent organic jurisdiction includes the power
to establish new organs – unless it should follow from the constitution that
the organs established by its express provisions are to be the only ones. In
practice this means that organizations cannot establish new organs to perform
the decision-making powers which the written constitution has vested in speci-
ed (principal) organs, but that organizations are free to establish subsidiary
organs under the principal organs, as well as judicial organs to evaluate the
acts of principal and other organs. The latter was held by the International
Court of Justice in its advisory opinion on the UN Administrative Tribunal
of 1954, although at that time still relying upon the ction of “implied pow-
ers.” The inherent power to establish other subsidiary organs (in casu military
forces) was recognized by the International Court of Justice in 1962, despite
the fact that the UN Charter did contain provisions for the establishment of
military forces by different organs and methods. The inherent organic juris-
diction comprises also jurisdiction over the representatives of member States
as members of the organs, although there is so far no known precedent for
judicial (only administrative) settlement of disputes in this regard.
Both the inherent international personality and the inherent organic jurisdic-
tion are subject to any limitations contained in the constitution of the particular
organization concerned.10 However, this is not a very practical situation. In
some cases, an enumeration of specic external capacities or of specic acts
of internal jurisdiction could be interpreted a contrario to exclude other types.
But even this is not very practical; normally any such enumeration must be
considered either as descriptive examples of the organization’s legal capacity

9 Unless one includes the limited enforcement (termination of contract and wages etc.) in
the form of disciplinary sanctions imposed as a reaction to wrongful acts of ofcials of
the organization in their capacity as such.
10 See ICJ Reports, 1954, at note 5.
basic general distinctions 69

or as provisions designed to specify procedures or modalities concerning the


specic acts or organs concerned.11 This, too, was conrmed by the Interna-
tional Court of Justice in its advisory opinion of 1962 on Certain Expenses of
the United Nations, when it held that the UN could establish military forces
other than those provided for in Chapter VII of the Charter.
On the other hand, intergovernmental organizations do not have “implied
power” to impose new obligations upon member States or external parties
(States or private persons). In accordance with the principle of the sovereignty
of States, this requires a specic treaty provision or a unilateral commitment by
the States concerned, but even this does not have to be stated in the constitu-
tion of the organization. Organizations do not even have an “implied power”
to do this in substantive – or even in most organizational12 (as opposed to
procedural)13 – matters unless, in exceptional cases, there has been a genuine
or a necessary implication. An example of the latter could be the provision
of Article 34 of the UN Charter that “the Security Council may investigate
any dispute, or any situation which might lead to international friction or
give rise to a dispute, in order to determine whether the continuance of the
dispute or situation is likely to endanger the maintenance or international
peace and security”. This must probably imply a right of access to the ter-
ritories involved for the representatives of the Security Council.14
Thus, legal theory – if it is to conform with practice – must distinguish
between the inherent external legal capacity to act on a voluntary basis as an
equal partner and inherent internal jurisdiction over organs and their mem-
bers as such – on the one hand – and extended power to exercise functional
jurisdiction over or in (i.e. to make decisions binding upon) member States
or private individuals and (other) external parties, on the other hand. The
former exists automatically in all IGOs as a matter of common customary
law for all self-governing communities. The latter – and only they – must
be conferred upon the organization concerned; and thus exist only when so
provided in the constitution or other treaty or unilateral act for the specic
organization concerned – such power is delegated to the organization by the
member (or non-member) States concerned.

11 Normally the widely used “descriptive” personality clauses of IGOs must therefore be
interpreted as non-exhaustive, cf. also A. Reinisch, International Organisations Before
National Courts, Cambridge 2000, pp. 72–3.
12 The organization cannot without legal basis impose upon member States e.g. an obligation
to pay nancial contributions to the organization.
13 The organization can impose upon the representatives of member States on its deliberative
organs e.g. restrictions on their right to speak (closure of debate, limited speaking time).
14 Reference may also be made to some of the opinions and cases reported by Skubiszewski,
loc. cit. infra.
70 chapter three

Only a few writers tend in this direction – and only part of the way. Thus
Skubiszewski, in an article on Implied Powers of International Organiza-
tions,15 makes the basic distinction indicated above, although not as sharply
as is done here, when he underlines that more latitude can be given to impli-
cation “in the internal sphere of the organization” than when “rights and
duties of member States are at stake”. Moreover, he realistically points out
that “the process of implication should not be identied with the discovery
of the intention of the parties” – indeed, he speaks of a “useless ction”
and, in line with Bernhardt, admits that inherent powers “follow directly
from the existence of the organization”.16 However, in contradiction to the
present writer, Skubiszewski concludes that “it is impossible to State a general
and abstract rule”. He contents himself with stating that the application of
the doctrine of implication becomes easier “if obligations of States are not
directly at stake”.
As for terminology, Skubiszewski appropriately points out that inherence
is a factor different from implication. However, many writers do not distin-
guish clearly between the traditional concept of “implied powers” and the
term “inherent powers”. It should therefore be reemphasized that the term
“inherent powers” does not start out from the common point of departure
that an IGO has only such powers as follow from its constitution. Indeed, the
terms “implied” and “inherent” are diametrically opposed in their points of
departure. And they apply in different elds according to the basic distinc-
tions made above: “Inherent” applies generally to internal (organic) jurisdic-
tion and to external capacity – while “implied” may apply exceptionally to
extended jurisdiction.

3.2 Organic jurisdiction and organic contra territorial and


personal connecting factors

Most books on public international law describe in their parts on jurisdiction


the territorial jurisdiction of States over their land, sea and air territory and
the personal jurisdiction of States over their nationals and inhabitants in
personal matters even when they are abroad. There are rules of public and
private international law on which of these two types of jurisdiction shall
take precedence in what respects.

15 International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne, Dor-


drecht 1989, at pp. 855–868.
16 R. Bernhardt: Qualikation und Anwendungsbereich des internen Rechts internationaler
Organisationen, Berichte der deutschen Gesellschaft für Völkerrecht, 7, (12. Tagung 1971)
Karlsruhe 1973, pp. 27–8.
basic general distinctions 71

However, there is also, as will be explained in Part Two, a third type of


jurisdiction which not only States, but also other subjects of international law
(self-governing communities, including insurgents, the Holy See and IGOs)
exercise over their organs and the members of these as such. This organic
jurisdiction, although apparently ignored in legal literature, is a strong juris-
diction which, like the other two, comprises legislative, administrative and
judicial competence. Like the personal jurisdiction, it does not comprise the
power of (external) enforcement. It is fairly clearly delimited in practice. It
is exclusive within its eld – i.e., it takes precedence over both territorial and
personal jurisdiction, even if both of these are combined in another State, as
they are in respect of ofcials who are both nationals of and working in the
State where the organization has its headquarters or other ofces.
The organic jurisdiction shows its effects, not only in the internal law of the
organization and in public international law, but also in conict of laws. Here,
too, one traditionally distinguishes between territorial and personal jurisdic-
tion by applying either territorial or personal connecting factors. However,
there is also the organic connecting factor which – within the eld of organic
jurisdiction – is exclusive and is applied by national courts to determine the
applicable law under national conict of law rules. This is even a duty under
public international law: it would be a violation of international law if e.g. a
State were to impose its law governing public or private employment upon
foreign State or IGO ofcials working in its territory, unless they were engaged
as local personnel under local private law.
The internal law of an IGO may even be the applicable law pursuant
to territorial or personal connecting factors in those special cases where an
IGO has extended jurisdiction – over territory or over special categories of
individuals e.g. refugees – but this is a different matter.
There is no need to establish whether the constitution of any particular
IGO authorizes it to perform specic external acts on an equal footing with
other subjects of internal law, such as concluding treaties, claiming reparation,
or settling disputes by courts of arbitration. Nor is there any need to explore
the constitution in order to establish the organization’s power to legislate
and to make binding administrative and judicial decisions on relations with
and between its organs and their members as such, because that power, too,
is well established customary law, common to all IGOs. It corresponds to a
basic principle in the national law of democratic States,17 referred to as the
principle of legality. The latter implies that the government may impose new
duties upon – or reduce existing rights of – private physical or legal subjects

17 This principle of legality is also enshrined in the Treaty establishing the European Com-
munity, cf. Article 5.
72 chapter three

only by statute or authority delegated by statute, whereas the executive branch


of government in principle has the authority to make both general regula-
tions and administrative acts binding upon – and to establish (administrative)
tribunals or other bodies to settle disputes with – members of administrative
State organs as such. Thus, there is a parallel between the powers of a gov-
ernment to act without basis in statute and those of an IGO to act without
basis in treaty. The limit is drawn in principle in the same way: Only infringe-
ment of rights and freedoms of persons existing as legal subjects outside the
organization or State concerned requires specic legal basis. Other acts do
not: the government or the IGO has inherent internal power ( jurisdiction)
and external capacity – but no inherent external jurisdiction.

3.3 Internal law: distinct legal systems parallel to national


public law, not to public international law

Studying international law in Paris after World War II, the present writer was
told that there are only two types of law and that any law that is not national
law is (public) international law. This was maintained, partly emphatically,
by prominent writers at that time (including Battifol and Mann).18 But if one
regards practice, it becomes obvious that public international law and the
internal law of IGOs are different systems of law.19 Another matter is that
IGOs are also subject to public and private international law (and thereby to
national law) – in their external relations; that law applies externally to IGOs
in essentially the same manner as it does to States, deviations are found more
frequently in legal literature than in practice.
The term “internal law”20 of an IGO was rst used by the Administrative
Tribunal of the League of Nations in 1929. It differs from public international
law and resembles (public) national law in nearly all respects:

18 Thus by Battifol, and by Mann: The Proper Law of Contracts Concluded by International
Persons, British Yearbook of International Law Vol. XXI (1944), at pp. 11 ff.
19 On internal law of international organizations, see Recueil des cours III (1967), at pp.
529 ff. and 536–8.
20 The Vienna Convention on the Law of Treaties between States and International Orga-
nizations or between International Organizations of 21 March 1986, Article 2 (1) ( j)
stipulates that “rules of the organization” means, in particular, the constituent instruments,
decisions and resolutions adopted in accordance with them, and established practice of
the organization.
basic general distinctions 73

1. It is a separate system of law for each organization.


2. While in public international law the sources are equal – the later super-
sedes the earlier, whatever its nature – the sources of internal law are
hierarchical: A constitution in the form of a treaty, takes precedence over
the legislative acts in the form of “regulations”. The latter are mostly
administrative regulations addressed to members of the organs, but in
some organizations – having extended jurisdiction over territory, individuals
and/or States – they are comparable to genuine national legislation under
the principle of legality referred to above. Customary internal law also
comes into play at both levels: The constitutional21 and the (lower) regular
customary law. All this is at both levels supplemented by general principles
of law, which may be drawn from all types of legal systems – including
both national and international law – but above all from the common law
of IGOs. Even so, such principles become part of the particular internal
law of the organization concerned and must be applied when rules on
conict of laws refer to that law. In public international law, however, the
sources are equal.
3. While the primary (and the only general) subjects of public international
law are the self-governing communities (States, IGOs, insurgents and the
Holy See), the subjects (persons) of the internal law are the organization,
its member States as such and their representatives on the organs of the
organization as such, its several organs and their members, including its
ofcials as such. Experts on mission for the organization, however, are
usually more in the nature of independent external contractors, who may
have accepted in their contracts some of the regulations enacted by the
organization.
4. Most important, the effects of the internal law of the organization in the
national law of the member States are twofold. First, the constitution is
normally embodied in a written convention, which has the same effect
as other treaties (public international law) in the law of the contracting
States – i.e., it is incorporated into the national law of member States in
accordance with the constitutional rules of the State concerned. Second,
the entire internal law – including the constitutional treaty, all regulations
and customary law and supplemented by general principles of the inter-
nal law of IGOs and of national law – is applied by national and other
courts in member and non-member States alike when the applicable rule

21 E.g. the practice introduced in the Security Council by Soviet Ambassador Gromyko in
the 1940s, that an abstention is not a veto, despite the words of Art. 27 (3) of the UN
Charter.
74 chapter three

of conict of laws refers to the law of the organization, i.e., in the same
manner as they apply foreign national law. Early writers submitted that
in such cases a substitute national law must be sought, e.g. the law of the
host State. However, in practice this is not so. If the reference is by a
territorial connecting factor (e.g. the place of contract or delict), it refers
directly to the national law governing the territory concerned. But if the
connecting factor is organic (e.g. employment of ofcials) the organization
has its own law – and the administrative law of the host country has no
relation to the matter.22 Personal connecting factors are less relevant to
IGOs (family law, law of succession, law of minors) – but when they are
relevant (legal capacity, competent organs), the answer is usually found in
the internal public law of the organization or in international law. Finally,
if the organization has extended territorial and/or personal jurisdiction,
it also has its own relevant territorial and personal law.23

Thus there are not two, but three types of legal systems, three types of juris-
diction (of internal, national and public international law) and three types of
connecting factors (in conict of laws).

Distinct legal systems parallel to national, not international law

As described above,24 all IGOs (except those of the type dépendant) exercise
inherent jurisdiction over their organs and ofcials and other members of the
organs as such, and some organizations also exercise extended jurisdiction
over territory and/or persons and States. This gives rises to an internal law
for each organization. That law has in legal writings been considered part
of public international law,25 although most writers now recognize the hier-
archically lower part of the internal law as being distinct. In fact, the entire
internal law is a distinct legal system for each organization, like national law,
which is a distinct system for each State. It is also in substance more parallel
to (public) national law of States than to public international law, but writers
falsely apply principles of international law also to internal IGO law, instead
of drawing them from national (public) law, which is the proper analogy.

22 See III Recueil des cours (1967), notably pp. 442 ff.
23 Ibid. pp. 448 ff.
24 See above, chapter 1.5.
25 Thus Batiffol, and, very emphatically, Mann. A.H. Schechter: Interpretation of Ambigu-
ous Documents by International Adminstrative Tribunals, London 1964, compared the
administrative tribunals with (each other and) traditional international law, but not with
national constitutions and national administrative tribunals.
basic general distinctions 75

The confusion of the internal law with public international law has led
legal writers to draw false analogies to internal law from international law.
The internal law is in fact parallel to national (public) law, rather than to
(public) international law, also in nearly all other respects:

Subject-matter

The internal law comprises, in all organizations, constitutional and administra-


tive law – and in many organizations also procedural law. It governs:

(a) Matters falling under the organic jurisdiction, i.e., relations with, between
and within the organs of the organization and the members of the organs
(including representatives of members) as such. This includes the constitu-
tional and administrative law relating to the deliberative organs (e.g. rules
of procedure) and the secretariat (e.g. staff regulations and rules) and any
courts or other judicial organs of the organization.
(b) Organizational26 relations with the members as such, e.g. budgetary con-
tributions.
(c) Substantive matters falling under the extended jurisdiction of some orga-
nizations, i.e. relations with and between member States and/or private
parties, in case of organizations which have been granted (or exception-
ally assumed) powers in respect of States, territory and/or groups of
individuals.

These relations differ in substance from those governed by international law


(this is to a great extent true even of the relations with member States and
their representatives). Thus the rules governing the composition, procedure and
powers of the organs are more analogous to the constitutional and administra-
tive rules in States than to the relations between sovereign States governed by
international law. Not to mention the relationship of the organization with
its ofcials, or with inhabitants of a territory under its jurisdiction.

Subjects

The internal law governs to a great extent, or even mostly, subjects other than
the traditional subjects of international law (the self-governing communities).

26 The term “administrative” is also used, but can better be reserved for the distinction
between legislative, administrative and judicial powers.
76 chapter three

In addition to relations between the organization and member States as such,


it governs relations with, within and between organs and their members
(representatives, ofcials) as such, and in some organizations also relations
with private individuals. This has given several writers who ignore the distinc-
tion between public international and internal law a false occasion to vastly
exaggerate the position of individuals as subject to public international law.
However, none of these are subjects of public international law, which must
be dened as the law governing relations between (not within) self-governing
communities.

Sources

The internal law of IGOs is to a great extent lled by a customary law which
in fact is common to all IGOs which do not have special deviating provisions
or practice. However, the internal law is formally a separate legal system for
each organization, as national law is for each State, and only the customary
law developed or recognized in the practice of the particular organization
concerned has a status equal to the other, written sources. Only if neither of
these offers guidance, the common customary law developed within IGOs gen-
erally will be applied – in the absence of specic sources for the organization
concerned. Moreover, it is via conict of laws rules, not via incorporation in
national law, that the internal law of an IGO is applied by national courts –
this is an important difference.
In some cases there has been doubt about the nature of provisions adopted
by the organization. An example was found in the “Terms and Conditions for
the Utilization by Coast Earth Stations of the INMARSAT Space Segment”
adopted by the former International Maritime Satellite Organization. Some
considered these as purely contractual terms, which could be modied only
by agreement between INMARSAT and each national or private telecom-
munications entity which INMARSAT authorized to use the INMARSAT
telecommunications system. Others considered these as expressing an admin-
istrative power of the organization, which may withdraw and/or decide new
conditions for the use of the space system.

Hierarchical levels

In public international law the sources are hierarchically equal – the later
source takes precedence over the older, whatever its nature. Internal law,
however, like national law, has different hierarchical levels. The constitution –
basic general distinctions 77

if embodied in a treaty – can in principle be amended only by treaty (and


not by any “treaty”).

External application

The internal law is applied externally in the same manner as national public
law under general rules of conict of laws, which will be discussed below in
Part Four.
The Vienna Convention on the Law of Treaties between States and Inter-
national Organizations or between International Organizations of 21 March
1986 contains relevant rules on external application of internal law of the
organization. The convention does not affect “those relations between an
international organization and its members which are regulated by the rules
of the organization”.27 The provisions of the 1986 convention referring to
the rules of the organization are parallel to Articles 27 and 46 of the Vienna
Convention on the Law of Treaties (between States) of 23 May 1969, refer-
ring to “internal law” in the sense “national law” of the State Party.

Conclusion

Legal writers have tended to consider the internal law of IGOs as part of
public international law. However, it will be seen that the internal law of IGOs
is in most respects parallel to national (public) law; subjects, sources, different
hierarchical levels, and above all in its external application: No incorporation
into the national law of the member States, but general application in national
law when their conict of laws refers to the law of the organization.
It is thus clear that the internal law of IGOs is not part of public inter-
national law, but a distinct system of law for each organization – parallel to
national (public) law.

27 Paragraph 13 of the preamble. According to Art. 2 ( j), “rules of the organization” means,
in particular, the constituent instruments, decisions and resolutions adopted in accordance
with them, and established practice of the organization. Art. 6 States that “the capac-
ity of an international organization to conclude treaties is governed by the rules of that
organization”. Art. 27 (2): “An international organization party to a treaty may not invoke
the rules of the organization as justication for its failure to perform the treaty”. See also
Arts. 39 (2), 46 (2), 74 (3) and 84 (1).
PART TWO

INTERNAL LAW OF
INTERGOVERNMENTAL ORGANIZATIONS
CHAPTER FOUR

TYPES OF JURISDICTION EXERCISED BY


SELF-GOVERNING COMMUNITIES

4.1 Territorial, personal and organic jurisdiction of States

States exercise three kinds of jurisdiction – legislative, executive (administrative)


and judicial – in three respects: over their (1) territory, (2) individuals (identi-
ed as nationals (citizens) or inhabitants) and (3) civil and military organs,
including the ofcials and other members of the organs acting as such.

Territorial and personal jurisdiction

Territorial jurisdiction relates to persons and property located, and acts per-
formed, within the territory of the State concerned. It extends also to for-
eigners, in so far as they are present, or have interests, in the territory of the
State. The personal jurisdiction relates to nationals of the State concerned. It
extends to its nationals also when abroad. These may, for example, be called
up for military service, required to pay taxes, etc., and on the other hand
are accorded diplomatic and consular protection by the national State. The
extent to which States may exercise their territorial jurisdiction with regard
to foreigners, in competition with the personal jurisdiction of their national
State, and the extent to which they may exercise their personal jurisdiction
with regard to their nationals abroad, in competition with the territorial
jurisdiction of the host State, is delimited by international law.1 The ques-
tion to what extent States actually do exercise such jurisdiction is answered
in the national law of the several States, in particular in their law concerning

1 See Oppenheim’s International Law, 9th ed., edited by Jennings and Watts, Vol. I, London
1992, chapter 3, §§ 117, 118 and 121.
82 chapter four

foreigners and in their conict of laws (private, criminal,2 procedural and


administrative international law). Because of the interplay between territorial
and personal jurisdiction which may be exercised by different States, neither
of these jurisdictions can be said to be exclusive.

Organic jurisdiction

While the territorial and personal jurisdiction of States (and the correspond-
ing territorial and personal connecting factors in conict of laws) and their
delimitation vis-à-vis each other have been amply discussed in legal literature
on public and private international law, the organic jurisdiction has been largely
ignored3 or confused with immunity, despite the fact that it is an active juris-
diction, entailing incompetence ratione materiae for anybody else.
The organic jurisdiction is the only type of jurisdiction which is exercised by
all kinds of self-governing communities. It thus constitutes the only condition
for being a self-governing community and, thereby, an automatic (inherent)
and, in principle, general subject of international law.
The organic jurisdiction of a State implies that all its relations with – and
all relations between and within – its organs and ofcials as such are governed
by the public law and by the executive and judicial organs of that State and
not by the public or private law or the organs of any other State. The organic
jurisdiction is usually exercised within the territory and/or over the nationals
of the State concerned, and is thus obscured behind its territorial and/or
personal jurisdiction. In such cases it may not manifest itself in international
law as a separate power, although it may, in national law, distinguish itself
from the territorial and personal jurisdiction by the fact that it may be exer-

2 Criminal jurisdiction is exercised by States also in respect of the protective, the universality,
and the passive personality principles. Grave international crimes are considered as part of
States’ universal jurisdiction, e.g. crimes dened in the Rome Statute of the International
Criminal Court (ICC), cf. also crimes treated by States according to the principle of aut
dedere aut judicare (prosecute or extradite), e.g. acts of international terrorism, see further
ILC’s work on the subject, doc. A/62/10, chapter IX. For an overview of extraterrito-
rial criminal jurisdiction of States, see Brownlie, Principles of Public International Law,
Oxford 2003, pp. 299 ff.
3 An exception is Charles Rousseau: Droit international public, Paris 1974, Vol. II, pp.
284–5, who correctly described it as “a compétence relative aux services publics”, which
includes their “organisation”, their “fonctionnement” and their “défence”. Werner Gold-
schmidt: Derecho internacional privado, 3rd ed., Buenos Aires 1977, p. 171 speaks of “the
country whom a person serves” and “lex fori”, thus correctly indicating that lex fori is an
(but only one) example of this connecting factor. See also van Panhuys: “In the Borderland
between the Act of State Doctrine and Questions of Jurisdictional Immunities”, ICLQ ,
VIII (1964), pp. 1192–1213.
types of jurisdiction exercised by self-governing communities 83

cised by executive rather than by legislative action (it falls outside the “legal-
ity principle”). The exclusive organic jurisdiction – or autonomy – of States
arises as an inter-State problem only in those cases where civil or military
organs of one State are temporarily or permanently located in the territory
of another State. The most important examples of this are diplomatic and
consular missions, exile governments, heads of State or government ofcials
on temporary mission to a foreign government, warships visiting abroad and
troops stationed abroad, the latter normally under a Status of Forces (or
Mission) Agreement.
In most cases where State organs are located abroad and there is thus
no territorial jurisdiction to obscure the organic jurisdiction. The latter is
instead covered by the personal jurisdiction and by the so-called privileges
and immunities, which often go far beyond the organic jurisdiction. Thus,
diplomats and heads of State are exempt from the jurisdiction of the host
State, not only with regard to their public law relationship to their own gov-
ernment, but also in many respects with regard to their private law relations
with nationals of the host country. But these exemptions, although general in
the elds of civil and criminal jurisdiction and of enforcement, are far from
general in the eld of substantive law.4 And privileges and immunities do not
extend fully to all State organs abroad. Consular missions, clerical and other
subordinate ofcials, and employees who are nationals of the host State, are
examples of this.
The organic jurisdiction differs from privileges and immunities in all these
three respects. It is conned to the organs and ofcials acting in that capac-
ity, including all aspects of the relationship of employment. But within this
eld it comprises not merely civil and criminal jurisdiction and enforcement,
but also substantive law. And it extends to all organs and ofcials, whether
located at home or abroad, and without regard to the nationality of the ofcial
concerned or to whether the organ or ofcial concerned enjoys privileges
and immunities.
In view of the overlapping with territorial and personal jurisdiction and
with privileges and immunities, it is difcult to nd clear and convincing cases
to prove the existence and the scope of the organic jurisdiction as a compe-
tence of States under international law. And this is probably the main reason
why it has been largely ignored in legal literature. However, legal writers get
into the problem in connection with the lex fori. Werner Goldschmidt,5 in the

4 See Perrenoud: Régime des Privilèges et Immunités des Missions diplomatiques étrangeres
et des Organisations internationales en Suisse, Lausanne, 1949, p. 57; and Guggenheim:
Lehrbuch des Völkerrechts I, Basel 1948, p. 468.
5 Derecho internacional privado, Buenos Aires 1977, p. 171.
84 chapter four

chapter on personal connecting factors of his work on private international


law, got close to the organic connecting factor when he, under the heading of
personal connecting factors, included a part on the country that the person
serves. He correctly points out, rst, that the term lex fori is too narrow, because
the principle applies not only to judicial, but also to administrative functions.
This is an adequate description of what preferably should be referred to as
the organic connecting factor, as it is neither territorial, nor personal.
May be the only case referred to in legal literature6 – although not as
“organic jurisdiction”, which is the present writer’s term – is the case of the
Casablanca Deserters, decided by the Permanent Court of Arbitration at the
Hague on 22 May 1909.7 In this case the German Consulate of Casablanca
had given a safe-conduct to three German deserters from the French Foreign
Legion and attempted to repatriate them. This was prevented by French
soldiers, who forcefully arrested the deserters and removed them from the
protection of the Consulate. This involved a conict between concurrent
jurisdictions. It was beyond dispute that the territorial jurisdiction of the
French occupying forces, no less than that of the Sultan, was superseded by
the exclusive personal jurisdiction which the German Consulate exercised,
under the capitulation régime, over all German nationals. But was the latter
jurisdiction, in turn, superseded by the exclusive organic jurisdiction which
the French corps of occupation exercised over its members? This was the
problem, which the Court propounded in the following terms:
Considérant que, d’après le régime des capitulations en vigueur au Maroc,
l’autorité consulaire allemande exerce, en règle générale, une juridiction exclusive
sur tous les ressortissants allemands qui se trouvent dans ce pays;
Considérant que, d’autre part, un corps d’occupation exerce aussi, en règle
générale, une juridiction exclusive sur toutes les personnes appartenant au dit
corps d’occupation;
Que ce droit de juridiction doit être recunnu, toujours en règle générale, même
dans les pays soumis au régime des Capitulations;
Considérant que, dans le cas où des ressortissants d’une Puissance qui bénécie
au Maroc du régime des Capitulations appartiennent au corps d’occupation
envoyé dans ce pays par une autre Puissance, il se produit, par la force des
choses, un conit entre les deux juridictions sous-indiquées;8
The Court answered the question in the following terms:

6 Rousseau, loc. cit.


7 Reported in James Brown Scott: Les travaux de la Cour permanente d’arbitrage de La
Haye, New York 1921, p. 114, and in Reports of International Arbitral Awards, XI, pp.
119 et seq.
8 Ibid. p. 118.
types of jurisdiction exercised by self-governing communities 85

Considérant que le conit de juridictions dont il a été parlé ne saurait être décidé
par une régle absolue qui accorderait d’une manière générale la préférence, soit
à l’une, soit à l’autre des deux juridictions concurrentes;
Que, dans chaque cas particulier, il faut tenir compte des circonstances de fait
qui sont de nature à déterminer la préférence;
Considérant que la juridiction du corps d’occupation doit, en cas de conit,
avoir la préférence, lorsque les personnes appartenant à ce corps n’ont pas
quitté le territoire placé sous la domination immédiate, durable et effective de
la force armée;9
The Court thus, Solomon-like, decided that the personal jurisdiction of the
German Consulate was superseded by the organic jurisdiction of the French
corps of occupation, where this was cumulated with the territorial “domi-
nation”. This conrmed the existence of an organic jurisdiction, although
not under that name. But the Court did not determine whether the organic
jurisdiction, if standing alone, would supersede the territorial jurisdiction.
That question can be clearly answered only in those exceptional cases
where both the territorial and the personal jurisdiction are vested in a State
other than that to which the organ belongs. Even in such cases, the issue may
by confused by the fact that the organ in question may enjoy privileges and
immunities. But these do not, in principle, extend to substantive law and do
not transfer the legislative power from the receiving to the sending State.
Probably the purest example of the organic jurisdiction of States may be
found in the case of such clerical and other subordinate employees of consular
ofces as are nationals, not of the State in whose employment they serve (the
sending State), but of the State in whose territory they work (the receiving
State or the host country). In such cases the organic jurisdiction of the sending
State stands entirely alone. Nevertheless, it supersedes the combined territorial
and personal jurisdiction of the host State. The relationship of employment
between the sending State and the employee is subject to the public law of
that State and not to the administrative or labour law of the host country.10
This was expressly laid down in the Consular Regulations of the United
States in the following terms: “Foreign laws governing contracts of employ-
ment and employment benets are not considered as applicable to the
ofcial employment by the United States of persons for service in American

9 Ibid. p. 119.
10 However, the United Nations Convention on Jurisdictional Immunities of States and Their
Property of 2 December 2004 lays down in Article 11 that a State cannot invoke immu-
nity from jurisdiction before a court of another State which is otherwise competent in a
proceeding which relates to a contract of employment between the State and an individual
for work performed or to be performed, in whole or in part, in the territory of that other
State, unless the employee either has been recruited to perform particular functions in the
exercise of governmental authority or enjoys diplomatic or consular privileges.
86 chapter four

diplomatic missions and consular ofces.”11 And the United States has on a
number of occasions refused to comply with laws of the host country requir-
ing advance notice or the payment of salary in lieu thereof in the case of
discharge of employees from their consular ofces abroad, even when such
employees were nationals of the host country.12 This stand of the sending
State has been accepted, in most cases, by the judicial, quasi-judicial and
administrative authorities of the host country.
Thus, in Calvaruso v. Byington (1928), an Italian court refused to grant claim
for damages under Italian labour law, brought against the United States
Consul-General in Napoli by a discharged employee of Italian nationality. The
basis of the decision was that the claimant was employed in a public capacity
by the United States, that his relations with the Consul were based upon the
public law of the United States, and that due respect for the sovereignty of
a foreign State prevented the court from examining that law.13
A similar decision was rendered by another Italian court in 1936 in Rosati
c. Rappresentanza Commerciale dell’U.R.S.S. The court held that the defendant was
an organ of public law emanating from the juridical personality of the Russian
State, within the meaning of Articles 2 and 3 of the Treaty of 7 February
1924 between Italy and the Soviet Union. Consequently, the employees of
the delegation did not fall within the Italian law relating to private contracts
of employment and Italian courts had no jurisdiction in respect of disputes
arising out of such contracts.14
The Mexican Central Board of Conciliation and Arbitration of the State, in
a similar decision of 1932, refused to grant the claim of a discharged ofcial
of a United States consulate in that country for compensation under Mexican
labour law, on the ground that the defendant was a representative of a foreign
government, that the claimant was a public employee in the service of that
government, and that the Board consequently was without jurisdiction and
did not consider that the federal Mexican labour law was applicable.15
In 1935 a similar action founded on the local employee’s law was brought
against a United States consul in Colombia by a former employee. The consul
contested the jurisdiction of the court under Article V (2) of the consular
convention of 4 May 1851 between the United States and New Granada,
which read: “Consuls, in all that exclusively concerns the exercise of their

11 Hackworth: Digest of International Law, IV, p. 731.


12 Ibid. pp. 731–735, see notably the Italian case reported at p. 731 and the Belgian case
reported at p. 735.
13 Ibid. p. 732.
14 (1938) 30 Rivista di diritto internazionale 226, translated in Annual Digest of International
Law Cases 1935–37, p. 235.
15 Hackworth, IV, p. 734.
types of jurisdiction exercised by self-governing communities 87

functions, shall be independent of the State in whose territory they reside.”16


The United States Legation at Bogotá was instructed to bring the facts to the
attention of the Colombian Foreign Ofce, to refer to the above provision,
and to State that the Department of State did not consider that consuls were
ordinarily amenable to local jurisdiction for acts performed in pursuance of
ofcial functions. The Legation replied that the Foreign Ofce had concurred
in the view of the Department of State and that the court had been advised
to this effect.17
Another case, Mazzucchi v. American Consulate, was brought before an Italian
court in 1931. In its decision the court said:
Consuls do not possess the true and proper quality of representing the State in
its international political relations; neither are they diplomatic agents. Neverthe-
less, in fullling their mission and in exercising the powers belonging to them
they must be considered as ofcial agents of the governments by whom they are
appointed. It follows that, if consuls enter into relations with private persons in
order to carry out duties which appertain to the political activity of the State
which they represent, no action in respect of such relations can be brought
before the Courts since a foreign State cannot, in the exercise of its political
functions, be subjected to the jurisdiction of another State without suffering a
denial of its sovereignty.
In order to be able to declare whether Mazzucchi should have a right to
compensation, the Labour Court would have to ascertain as a preliminary
step, whether the cause of the dismissal was just. It would have to submit to
examination the motives which led the Consul to dismiss a person employed in
a service of a political nature. It would have to give judgment on a step taken
by the Consul with regard to the execution of a duty which has its origin in
the sovereignty of a foreign State. Such examination and judgment lie outside
the jurisdiction of the Italian Courts.18
A nal example is a Belgian case of 1934, Epoux Prevostchikoff-Germeau v.
Canada. In this case, too, an action (against the Canadian Immigration Ofce
at Antwerpen) for wrongful discharge was dismissed. The court held that
the Immigration Ofce of Canada at Antwerpen was a branch of public
service, and that the Canadian Government in engaging the plaintiff as its
employee was acting as a sovereign State and not in its capacity as a subject
of private law. Belgian courts had no jurisdiction over acts of foreign States
of a political or governmental nature. In particular, they had no jurisdiction

16 Martens: Nouveau recueil général de traités (NRG) 1st ser. XV, (1857), p. 288.
17 Ibid. note 15.
18 Annual Digest of International Law Cases, 1931–32, Case No. 186.
88 chapter four

in respect of an action brought by an agent of a foreign government for


wrongful dismissal.19
These decisions emphasize the exclusive (and overriding) legislative power
of the sending State in relations of public employment. The consular ofce
decisions emphasize the lack of both legislative and judicial power of the
host State. In the last cited cases, as well as in a number of similar cases,20
only the lack of judicial power is emphasized, partly in conjunction with the
exclusive executive power of the sending State.
In so far as the courts refer to the exclusive legislative (and/or executive)
power of the foreign State concerned, or to the lack of legislative and judicial
power of their own State, the legal basis cannot possibly be any other than the
exclusive organic jurisdiction of the State whose organs are involved. Neither
territorial nor personal jurisdiction, nor privileges and immunities, could form
the basis of any such power. These cases therefore constitute clear precedents21
for the existence of an exclusive organic jurisdiction which supersedes the
combined territorial and personal jurisdiction of the host State. Although
each judgment merely constitutes a precedent in respect of its own national
law, it is submitted, on the basis of the uniform attitude taken by the States
whose organs are involved and by the executive and judicial organs of the
host State, that the exclusiveness of the organic jurisdiction also is a rule of
customary international law.
When the courts refer only to their lack of judicial power, the issue is not
so clear. Even if the ofcials concerned do not enjoy privileges and immu-
nities, the foreign State as such will enjoy such privileges and immunities,
including full or partial immunity from suit in foreign national courts. This
immunity, ratione personae, would in itself lead to the same result: dismissal of
the proceedings. In many cases courts have, in fact, preferred to rely upon
this immunity ratione personae rather than upon the incompetence ratione materiae
which results from the exclusive organic jurisdiction of the foreign State.22 In
other cases they have not made clear upon which of these two premises they
relied. Most of those judgments which refer only to the lack of judicial power
therefore do not constitute clear precedents for the existence and extent of the
exclusive organic jurisdiction, although some of them speak in terms which

19 Annual Digest, 1938–40, Case No. 85.


20 Cited in succeeding notes.
21 Although not legally binding in future cases, since most of the States concerned have not
adopted the principle that precedents are legally binding.
22 Little v. Riccio and Fischer, Annual Digest 1933–34, Case No. 68; Kazmann v. Russian
Trade Delegation in Italy, ibid., Case No. 69; Franco-Franco, Journal de droit international
(Clunet) 1954, p. 783.
types of jurisdiction exercised by self-governing communities 89

come closer to incompetence ratione materiae than to immunity ratione personae.23


However this may be it is submitted that the exclusive organic jurisdiction
extends also to the judicial power.24
The exclusive (and overriding) organic jurisdiction extends to all relation-
ships of employment of the State concerned, without distinction between
higher ofcials and subordinate employees. This was clearly expressed in
Mazzucchi v. American Consulate in the following terms:
In the dispute in question the plaintiff maintains that this Court can hear his
claim having regard to the fact that the modest duties entrusted to him were not
of a consular character. In fact he asserts that he had rst the task of disinfecting
emigrants, and then that of stamping the papers issued by the American Consul
so as to make it possible to ascertain, at the moment of embarkation, that the
emigrants had been medically examined by the sanitary ofcers of the Consul-
ate. He does not appreciate that, although his duties were simple, they were
nevertheless still relative to a service of a political nature which the American
State carries on in Italian territory by means of its consuls.25
Most of the other cases, too, related to subordinate employees. Thus the duty
of Calvaruso was to inspect the luggage of the emigrant embarking from an
Italian port for the United States.
The exclusive (and overriding) organic jurisdiction probably extends even
to employees of the purely commercial agencies of a State, such as trade
delegations and State railways. However, in this respect practice has not been
consistent. Some French and Italian courts have declined jurisdiction in actions
brought against the Soviet Trade Delegation by dismissed employees.26 But
other Italian courts have assumed jurisdiction in at least one action against
the Soviet Trade Delegation,27 and in one action against the Norwegian State
Railways, despite the fact that the defendant in the latter case relied upon
exclusive organic jurisdiction rather than upon immunity ratione personae.28 In
these two cases the courts appear to have applied the distinction between
governmental and commercial service, which is applicable in questions of

23 Thus Sakharoff c. Représentation Commerciale de l’U.R.S.S., Revue critique de droit


international, Vol. 31 (1938), p. 175. In this case the plaintiff was a national of the defen-
dant State.
24 The precedents in this sense are clearer, in respect of intergovernmental organizations,
see below.
25 Annual Digest, 1931–32, Case No. 186.
26 Sakharoff c. Représentation commerciale de l’U.R.S.S., Revue critique de droit interna-
tional Vol. 31 (1938), p. 175, and Kazmann v. Russian Trade Delegation in Italy, Annual
Digest 1933–34, Case No. 69.
27 Slomnitzky v. Trade Delegation of the U.S.S.R. in Italy, Annual Digest 1931–32, Case
No. 86.
28 De Semenoff v. Norwegian State Railways, Annual Digest 1935–37, Case No. 92.
90 chapter four

immunity ratione personae, instead of the general test of public employment,


which would have been more proper in questions of organic jurisdiction.
Otherwise, because of the fact that the organic jurisdiction usually coincides
with territorial and personal jurisdiction, or with privileges and immunities,
there is little practice to indicate the extent of the organic jurisdiction of States,
except for the cases and State practice reported above, which demonstrate
that it comprises relationships of public employment including employment
benets. It probably extends to social security insurance in so far as this is
related to the employment. This means that no ofcial can be subjected to
the workers social security system of another State without the consent of
the employer State. Thus the Vienna Conventions of 1961 and 1963 on Dip-
lomatic and Consular Relations, respectively, provide that staff members of
the diplomatic or career consular post shall “with respect to services rendered
for the sending State be exempt from social security provisions which may
be in force in the receiving State.”29 However, for obvious practical reasons
an exception is made for honorary consuls and those members of a career
consular post and of the service staff of a diplomatic mission who are nation-
als of or permanently resident in the receiving State.30 Unless this exception
has given rise to new customary law, it can hardly be imposed upon States
who are not parties to the conventions, but in practice they will usually nd
local insurance more convenient in such cases, both from their own point
of view and from that of their local employees who do not move from one
country to another.31
Otherwise one may, in the absence of further evidence, nd some guid-
ance as to the scope of the organic jurisdiction by drawing on a parallel
concept of national (constitutional) law. Under many or most democratic
constitutions the government may regulate private rights and duties (law in
the sens matériel) only by, or by authority of a statute (law in the sens formel),
whereas rules which are binding merely upon the organs of the government
in many countries may be made by simple decision, usually by the executive
authorities. This “particular legal sphere” of the government comprises its
relations to and relations between and within, State organs and ofcials as

29 Vienna Convention on Diplomatic Relations of 18 April 1961, Art. 33 (1) and Vienna
Convention on Consular Relations of 24 April 1963, Art. 48 (1). Cf. Luke T. Lee: Consular
Law and Practice, 2nd ed., Oxford 1991, pp. 536–9.
30 Convention on Diplomatic Relations of 18 April 1961, Art. 37 (3), and Convention on
Consular Relations of 24 April 1963, Art. 71.
31 See furthermore Lee, ibid. note 29, chapter 33 on Social Legislation and Public
Services.
types of jurisdiction exercised by self-governing communities 91

such. It also comprises conclusions of contracts32 and treaties and in general


such relations with other subjects of national and international law as do not
involve exercise of governmental authority over the latter by making unilateral
decisions binding upon them.33
As the cases referred to above demonstrate, the organic jurisdiction – in
contradistinction to territorial and personal jurisdiction – is truly exclusive
(and overriding) within its eld, inasmuch as it takes priority and excludes, as
far as it extends, the exercise of competing territorial or personal jurisdiction
of other States. Even if both territorial and personal jurisdiction is combined
in one other State, the organic jurisdiction takes precedence. It is submitted
that no foreign jurisdiction can, even as a preliminary issue, try the validity
of acts performed in the exercise of organic jurisdiction. It is thus in the
organic eld that the reciprocal respect for the internal autonomy of States
(and other self-governing communities), which is the basis of international
law, manifests itself in its most rigid form.34
Nevertheless, even the organic jurisdiction must, of course, be exercised in
such a manner that it does not violate the rights of other States or external
private parties. States have, on a number of occasions, intervened in the
internal affairs of other States,35 and many writers even admit their right to
do so in particular cases, notably if their own security is endangered by the
internal act of the other State. In the case of State organs on foreign territory,
the host State must be accorded a right to protect, not merely its security, but
also its public order. Both practice and writers consider the host State entitled
to infringe upon the privileges and immunities accorded to representatives

32 This may only apply to a limited extent, however, as Art. 10 of the United Nations Con-
vention on Jurisdictional Immunities of States and Their Property of 2 December 2004
applies a restrictive immunity that covers acts jure imperii, but not a State’s contractual
relations with private parties as acts jure gestionis.
33 This theory of a “governmental sphere” has a parallel in English public law in the so-
called Act of State doctrine, which, although rejected by the International Law Associa-
tion in 1962, seems to be compatible with the exercise of exclusive organic jurisdiction
as proposed here, cf. International Law Association, Report of the Fiftieth Conference,
Brussels 1962, pp. xiv, 122–131 and 153–156 and I. Brownlie, Principles of Public Inter-
national Law, Oxford 2003, pp. 49 ff. See also on the Act of State doctrine in national
courts in A. Reinisch, International Organizations Before National Courts, Cambridge
2000, pp. 87 ff. who on p. 90 concludes that there is some authority in case law that acts
of international organizations could also trigger its application.
34 This was expressed by Fauchille, Traité de droit international public, Paris 1922, I, § 259,
in the following terms: “les vices de l’organisation administrative d’un Etat ne saurait
autoriser les autres puissances à substituer leur propre action et à s’attribuer la direction
ou la surveillance de tels ou tels services publics, alors même qu’ils auraient, par voie de
répercussion, des résultats dommageables pour elles ou leurs régnicoles.”
35 See the examples quoted by Fauchille, op. cit., I, §§ 254–267, most of which, however, do
not concern the organic jurisdiction.
92 chapter four

of foreign States where this is necessary in order to prevent the performance


or repetition of acts of violence directed against the security of the State,
its government,36 or even its nationals.37 It would appear reasonable to apply
the same principle even to internal acts of organic jurisdiction with regard
to State organs on foreign territory, if such acts might upset the security or
the public order of the host country. However, no such cases are known to
have arisen, apart from the recognized right of the host State to refuse, on
whatever grounds it sees t, to accept the establishment of a foreign diplo-
matic or consular mission or other organ in its territory, or to accept a certain
individual as diplomatic or consular representative.38 At any rate, any such
limitation upon the organic jurisdiction would merely imply a right for the
host State to protest and demand the withdrawal of the organ concerned
or to take other appropriate steps within the limits of its own territorial,
personal or organic jurisdiction in order to avert detrimental effects. In no
circumstances could the host State itself assume the exercise of the organic
jurisdiction of the sending State.

4.2 Organic and membership jurisdiction of the Holy See

The Holy See exercises a jurisdiction over its organs similar to the organic
jurisdiction of States. Since the creation, under the Lateran Treaty of 11
February 1929,39 of the State of the Vatican City, the Holy See also exercises
a limited territorial and personal jurisdiction over that diminutive State.40 But,

36 See the cases quoted in Oppenheim: International Law, 9th ed., London 1992, pp. 1074
and 1098.
37 For example, temporary detention of diplomats driving motor-cars in a dangerous manner
while under the inuence of alcohol. – Art. 31 (2) of the Vienna Convention on Consular
Relations of 24 April 1963 provides that the consent of the head of the consular post
to entry by authorities of the receiving State may be assumed “in case of re or other
disaster requiring prompt protective action”. No similar provision was included in the
Vienna Convention on Diplomatic Relations, and this distinction appears to have been
deliberate in view of the difference between diplomatic and consular functions. Cf. also
the Kosenkina case at the Soviet Consulate in New York, AJIL, Vol. 42 (1948), p. 858.
38 At least the best known cases where the recall of diplomatic envoys has been demanded
by the receiving State do not concern their exercise of organic jurisdiction.
39 Italian text in Martens. NRG 3e sér., XXI, p. 18. English translation in British and Foreign
State Papers, Vol. 130 (1929–I) p. 791 and in AJIL, Vol. 23 (1929).
40 The relationship between the Holy See and the Vatican City is described in Crawford,
The Creation of States in International Law, Oxford 2006, pp. 226–233.
types of jurisdiction exercised by self-governing communities 93

even so, its organic jurisdiction stands out more clearly than that of States,
if not in legal literature,41 than in treaty and practice.
The jurisdiction of the Holy See as such is set forth in the following
terms:
Romanus Pontifex, Beati Petri in primatu Successor, habet non solum prima-
tum honoris, sed supremam et plenam potestatem iurisdictionis in universam
ecclesiam tum in rebus quae ad dem et mores, tum in iis quae ad disciplinam
et regimen ecclesiae per totum orbem diffusae pertinent.
Haec potestas est vere episcopalis, ordinaria et immediata tum in omnes et
singulas ecclesias, tum in omnes et singulos pastores et deles, a quavis humana
auctoritate independens.
It is necessary, however, within the scope of this sweeping statement, to dis-
tinguish between jurisdiction over the central organs, the local organs and
the members of the Catholic Church.

Central organs

With regard to the central organs,42 there is now, in Article 11 of the Lat-
eran Treaty, the following express provision: “The central bodies [enti ] of the
Catholic Church are exempt from all interference on the part of the Italian
State (except for the provisions of the Italian laws concerning acquisitions by
juridical persons), and also from expropriation [conversione] with regard to real
estate.” Thus Italy recognizes that the Holy See has exclusive jurisdiction,
or autonomy, with regard to its central organs, including, presumably, their
ofcials. This jurisdiction would include all relations with or within its organs
(and ofcials) as such, but does not imply jurisdiction over outside parties. The
principle probably was the same during the period 1870–1929, although the

41 The question as to over what the Pope had sovereignty before the creation of the State
of the Vatican City, was raised by Lundborg: Påvestolens Rättsliga ställning efter 1929,
Copenhagen (1932), Nordisk tidsskrift for international ret, and in (1937) 52 Niemeyers
Zeitschrift für Internationales Recht 136, and answered in the following terms: “Über
seine eigene Person und über einen geistlichen Schatz, eine kollektive Zusammenfassung
der katholischen Kirche, die eine Rechtspersönlichkeit bildete.”
42 The exemption of the Pope from the application of Italian law was expressly admitted by
the Italian Prime Minister as early as 2 February 1871, in the following, very broad, terms:
“Le Ministère considère le Pape comme une personne à laquelle, en aucune façon, aucune
disposition de notre droit interne ne peut être appliquée, comme une être international
indépendant de tout état et de toute juridiction” (Rostworowski in Annales de l’Ecole
libre des sciences politiques, VII (1892), p. 117). See, however, below on the Pope’s civil
obligations under the Law of Guarantees.
94 chapter four

Law of Guarantees of 13 May 1871,43 most of whose provisions concern the


“Supreme Pontiff ”, had no clear provisions concerning the general status of
the subordinate organs. Perhaps because of this lack of clarity on the part of
the legislator, Italian courts on one occasion prior to 1929 took cognizance
of claims advanced against the Holy See by its employees, thus disregarding
the courts established by the Holy See for that purpose.44 It should be noted
in this connection that the Law of Guarantees was no agreed document,
but a unilateral Italian act, the validity of which was never recognized by
the Holy See.
The jurisdiction of the Holy See does not extend ipso jure to the private
relations of its ofcials, i.e., to their rights and duties when not acting in an
ofcial capacity. In the course of the discussion of the Law of Guarantees
it was specied that even the Pope would be subjected to the jurisdiction of
the Italian tribunals (and, presumably, to Italian law) with regard to his civil
obligations.45 The Lateran Treaty, on the other hand, accords to some or all
ofcials of the Holy See a number of exemptions from Italian jurisdiction in
such personal matters as involve also the interests of the Holy See, e.g. military
service (Article 10) and taxation of salaries (Article 17), the latter exemption
applying even to temporary employees. The Italian jurisdiction over Holy
See ofcials when acting in their private capacity was further curtailed by
the establishment of the State of the Vatican City. A number of the ofcials
of the Holy See are citizens of that State and, as such, subject to its general
jurisdiction, although, in principle, only within Vatican territory.46

Diplomatic envoys

The diplomatic envoys of the Holy See are – under customary international
law, as conrmed by treaties47 – accorded the same “treatment,” or “pre-
rogatives and immunities,” as the diplomatic envoys of States. The Holy See
exercises the same exclusive jurisdiction over its diplomatic envoys as such as
States do. In addition, the Holy See exercises a limited jurisdiction over its

43 French translation in Martens, NRG, XVIII, p. 41.


44 Martinucci-Theodoli, decided by the Tribunal of Rome on August 16, 1882, and by the
Court [of Appeal] of Rome on 9 November 1882. See Grunebaum-Ballin in Revue de
droit international et de législation comparée, 1921, pp. 80–81.
45 M. Sibert, Traité de droit international public, Paris 1951, p. 421, note 1.
46 Lateran Treaty, Art. 9, cf. Art. 21.
47 Congress of Vienna, rules of 19 March 1815, Arts. 1 and 4, and Act of 9 June 1815;
Lateran Treaty, Arts. 12 and 19. Vienna Convention on Diplomatic Relations of 18 April,
1961, cf. Arts. 14 and 16. See also the Italian Law of Guarantees Art. 11.
types of jurisdiction exercised by self-governing communities 95

envoys in their private capacity, by virtue of the fact that they are citizens of
the Vatican (and of their States of origin), while serving abroad.48
Under Article 13 of the Law of Guarantees, as conrmed and expanded
by Article 39 of the concordat with Italy of 1929,49 all institutions for the
education of ecclesiastics (originally in the Rome area, later throughout Italy)
“shall continue to depend solely upon the Holy See, without any intervention
on the part of the educational authorities of the Kingdom.”

National churches: organs and members

The Holy See also exercises jurisdiction over the Catholic Churches in the
various countries, i.e. over their organs and members as such. But this juris-
diction is limited and precarious inasmuch as it may be exercised only to the
extent permitted by the State concerned, and this varies greatly.50 Apart from
what follows from modern developments with regard to human rights, there is
no rule of customary international law which compels States to permit such
jurisdiction. States may therefore, in principle, refuse permission, or they may
impose such limitation or other conditions as they may see t from time to
time. Basically, the exercise of the jurisdiction of the Holy See over organs
and members of the Catholic Church in the several countries may therefore
be in the same legal position as that of other churches and non-governmental
organizations over their organs and members. However, most catholic and
some non-catholic States have, by concordats, undertaken an international
obligation to permit such jurisdiction within specied limits. They are then
prevented from interfering with the jurisdiction of the Holy See within these
limits, as long as the concordat remains in force.51 If no concordat has been
concluded, the autonomy of the Catholic Church in church matters may

48 M. Sibert, Traité de droit international public, p. 11 note 4. The envoys are not men-
tioned in Art. 9 of the Lateran Treaty, but there is no reason why this provision, which
is concerned with the specic relationship to Italy, should be exhaustive.
49 Italian text in Martens, NRG 3e sér. XXI, p. 27. English translation in British and Foreign
Papers, Vol. 130 (1929), p. 801.
50 M. Sibert, ibid., § 267, and Lundborg: Påvestolens rättsliga ställning efter 1929, Copenhagen
1932 in Nordisk Tidsskrift for international ret 1932 p. 210. Cf. also Rousseau, Droit
international public, Paris 1953, p. 146.
51 The concordat with Austria of 5 July 1933 recognized the right of the Catholic Church
“im Rahmen ihrer Zuständigkeit Gesetze, Dekrete und Anordnungen zu erlassen” (Art. I § 2). The con-
cordat with Italy of 11 February 1929 grants the Catholic Church “giurisdizione in materia
ecclesiastica in conformitá alle norme del presente Concordato” (Art. 1, the subsequent translation
in Documents on International Affairs (1929), p. 227 is incorrect). There is a number of
limitations in the subsequent articles.
96 chapter four

still be recognized by the law of the State concerned, but this is unilaterally
revocable. An example is Chapter II of the Italian Law of Guarantees, which
provides in Article 17: “In spiritual and disciplinary matters, no complaint or
appeal against the acts of the ecclesiastical authorities is admitted, nor are
their acts accorded any execution by force.”
The organs of the Catholic Churches of the several countries may be said
to be organs of the Holy See in so far as they depend upon the Holy See
for organization, appointment of ofcials, etc.52 However, only to the extent
that the jurisdiction exercised by the Holy See over these Churches and
their organs is an exclusive right under treaties in force may it be said to be
organic in the same sense as the jurisdiction over the central organs and the
diplomatic envoys.
The jurisdiction over the regular members of the Catholic Church53 is of
a different nature. It is not organic, but personal jurisdiction. However, it is
very different from the personal jurisdiction which States exercise over their
nationals. In the rst place, it is limited to ecclesiastical matters, although
it may extend also to certain civil law matters, for example with respect to
marriage.54 In the second place, the means of enforcement with regard to
lay members are of a different nature (refusal of sacraments, etc.) from those
which may be applied to nationals and organs. One may therefore prefer to
consider the jurisdiction over members as such, to the extent that it cannot be
interfered with by States, as a distinct fourth type of jurisdiction, “member-
ship jurisdiction,” in addition to the territorial, the personal and the organic
jurisdiction.

4.3 Organic, membership and extended jurisdiction of


intergovernmental organizations

The examples given in the preceding chapters of concurrent territorial,


personal and organic jurisdiction of several States, and of organic and mem-

52 Under the concordat with Italy of 1929, Arts. 19–23, bishops are appointed by the Holy
See, but shall swear allegiance to the Italian State (this was not required under the Law
of Guarantees, Art. 15), whereas other ecclesiastics are appointed by the ecclesiastical
authorities in consultation with the Italian Government. Under Art. 5, no ecclesiastic
may be employed by the Italian Government without the permission of the ecclesiastical
authorities.
53 See Codex iuris canonici, canon 218, § 2.
54 Italy, under Art. 34 of its concordat of 1929, and Austria, under Art. VII of its concordat
of 1933, attribute civil effects to the sacrament of marriage administered according to
Canon Law and undertake to give effect to decisions by ecclesiastical courts concerning
annulment and abrogation of marriage.
types of jurisdiction exercised by self-governing communities 97

bership jurisdiction of the Holy See within States, demonstrate that there is
nothing to prevent individuals from being at the same time subject to the
jurisdiction of different sovereign communities, States or others. The delimita-
tion of such jurisdiction may then be on a functional basis. Such concurrent
jurisdiction does not detract from the sovereignty of the States concerned,
to the extent that these are not themselves subject to the legal order of the
other community55
There is nothing to prevent also intergovernmental organizations from
acquiring jurisdiction in specic respects over individuals who are concurrently
subject to jurisdiction of one or more States in other respects. Such concur-
rent jurisdiction, delimited on a functional basis, can likewise be exercised
over territory,56 and over subjects of law other than individuals. However,
intergovernmental organizations usually have neither territory nor nationals.
But they all have organs. And they all have members. Thus, as far as inter-
governmental organizations are concerned, it is the question of their organic
and their membership jurisdiction which is of primary importance.

Organic and organizational membership jurisdiction

Under well established customary law, all IGOs which do not have deviating
provisions (organizations of the so-called type dépendant, where the secretariat
functions are entrusted to the host State acting through its own organs) exer-
cise legislative, administrative and judicial jurisdiction over their organs and
the members hereof as such. This jurisdiction is inherent in the IGOs as it
is in States and the Holy See – it requires no basis in constitutional or other
provisions. The organic jurisdiction is essentially the same in States, the Holy
See and IGOs. Its different aspects will be examined in the following chapters
in relation to IGOs.
Exceptionally, important organic jurisdiction in IGOs is vested in States.
Thus in organizations of the type dépendant the secretariat are managed by
the government of the host State. Another important example is interna-
tional peace support operations composed on national contingents provided
by troop contributing nations, where major legislative, administrative and

55 This was pointed out already by Alfred Verdross, Völkerrecht, 1st ed. Berlin 1937, p. 46.
The reservation excludes not only members of federal States, but also members of supra-
national organizations.
56 Thus the Permanent Court of International Justice, in its Advisory Opinion on the Juris-
diction of the European Commission of the Danube, divided the powers of the Com-
mission and those of Romania in the ports of Braila and Galatz on a functional basis;
PCIJ, Ser. B, No. 14, p. 67.
98 chapter four

judicial powers over members of the contingents remain in the hands of the
national authorities providing the troops, although under unied command
and control of the organization.57
The great majority of organizations – which have neither territorial juris-
diction over their premises, nor personal jurisdiction over their ofcials – are
entirely dependent upon their organic and their membership jurisdiction,
and particularly upon the former. This implies that the organic jurisdiction
is at once more important and at the same time stands out more clearly in
the case of intergovernmental organizations than in the case of States, indi-
rect condominia and other subjects of international law that have territorial
and personal jurisdiction as well. It is therefore possible in the case of such
organizations to verify the existence and extent of the organic jurisdiction
with much more certainty and clarity than in the case of territorial subjects
of international law. The organic jurisdiction will therefore be examined in
the following chapters in relation to intergovernmental organizations. The
delimitation thus arrived at may offer guidance also for the delimitation of
the organic jurisdiction of States, in those respects where this is of practical
importance.58 Thus, while the law of intergovernmental organizations has to
a great extent been built upon the law applicable between and within States
(international and national law), the present book represents, in fact, a eld
where guidance for the law applicable to States may be sought from the law
of intergovernmental organizations.
The questions of organic and membership jurisdiction arises with regard
to all intergovernmental organizations. They are, in fact, the only types of
jurisdiction which are common to all such organizations. Indeed, the organic
and, to some extent, the membership jurisdictions are essentially the same in
all intergovernmental organizations.
Other types of jurisdiction – over territory, individuals and States – are
vested only in certain organizations, and differ considerably in nature and scope
from one organization to another. This will be surveyed below, in chapter 6
on extended jurisdiction.
The organic jurisdiction and the organizational membership jurisdiction
within its narrow limits are genuine jurisdictions also in the sense that it is
for the organization, or the organ concerned, to decide in what manner the
jurisdiction shall be exercised and how decisions shall be made – within any
limits set in the constitution. Unless otherwise provided, deliberative organs

57 See Seyersted: United Nations Forces, Leyden 1966, chapter II, see also below, chapter
10.3.
58 For example in respect of the recognition of foreign judgments and the competence to
try the validity of the acts of foreign States, see below, chapter 7.
types of jurisdiction exercised by self-governing communities 99

normally make binding majority decisions on organizational matters. A clear


example is the fact that rules of procedure of intergovernmental organization
are adopted by majority vote.59 This is true also of staff regulations and other
internal regulations – even if the constitution of the organization concerned
contains no relevant provision. It has also been pointed out that members of
the International Law Commission construed the similar practice of inter-
national conferences of adopting their rules of procedure by majority vote, as
a subsequent factual (implied) consent by the minority that voted against,
and (rightly) that this is a ction which cannot be maintained (not even for
conferences, and certainly not) in intergovernmental organizations.
Indeed this is yet another example of the contradiction between traditional
theoretical doctrine (which governed the professors of the International Law
Commission rather that the judges of the International Court of Justice) and
practice – and of the kind of ction one must invoke if one fails to distin-
guish between, on the one hand, international law, which governs relations
between equal, sovereign (self-governing) entities (and from which the Interna-
tional Law Commission and most writers departed) and, on the other hand,
internal law, which governs internal relations within each intergovernmental
organization, and which is parallel to national (public) law. While the former
is based upon a requirement of common consent, the latter relies upon the
unilateral jurisdiction (legislation, administration and adjudication) of the
organization (within the limits that may be set by its written constitution or
by constitutional customary law developed within the organization concerned).
In order to explain the latter, members of the International Law Commis-
sion (not including Verdross, who already at that time was well aware of the
internal law concept) adduced the fact that the outvoted minority remain
in the conference as tacit acceptance of a decision that really should have
been made by unanimity (or consensus). It is more sensible to regard such
conferences as temporary intergovernmental organizations, which exercise
jurisdiction over their organs and their members in that capacity, within the
limits set by customary law relating to conferences.
As part of their inherent organic jurisdiction, IGOs, like States and the Holy
See, also exercise inherent jurisdiction over the representatives of member
States in their capacity of members of the organs, e.g. on the right to assist
at meetings, to speak and to vote. In addition, IGOs have a limited inherent
power in respect of other organizational matters, such as admission to and

59 Cf. Ingrid Detter, Law Making by International Organizations, Stockholm 1965, pp.
52–55.
100 chapter four

exclusion from membership (but hardly with regard to nancial contributions


to the budget), within the limits set by relevant constitutional provisions.
However, it is at any rate necessary to distinguish between organizational
and functional matters. Jurisdiction in functional matters can be exercised only
if and to the extent that the States concerned have authorized the organiza-
tion concerned to do so, while a limited jurisdiction over member States in
organizational matters exists even if there are no relevant provisions. We shall
therefore refer only to the organizational jurisdiction as membership jurisdic-
tion and to refer to any substantive jurisdiction as extended jurisdiction.
In addition to the inherent organic and the limited inherent organizational
membership jurisdiction, a few IGOs also exercise extended jurisdiction over
territories, specic categories of persons, States or even in States directly over
their territory and persons (supranational organizations). However, this requires
a special legal basis, in the constitution of the organization or in other treaty
or unilateral act. International territorial administration by IGOs based on
authorization of the UN Security Council in accordance with Chapter VII of
the UN Charter is still a practical example and includes the recent examples
of Kosovo and East Timor.60
Thus a small number of intergovernmental organizations exercise full or
partial jurisdiction over a specic territory.61 The League of Nations exercised
full territorial jurisdiction in the Saar until 1935, while Allied intergovern-
mental bodies exercised territorial jurisdiction in certain important or specic
matters in Germany (and Austria) after World Wars I and II, the remainder
of the territorial jurisdiction being exercised rst by the Zone Commanders
and later by the national governments. Similarly, international river commis-
sions exercise a limited territorial jurisdiction in respect of navigation on the
rivers concerned, while the United Nations also exercised certain powers in
respect of the former Italian Colonies.62
Even organizations which have no territorial jurisdiction in the proper sense
have the capacity to exercise similar powers in respect of ships, aircraft and
space vehicles registered with them and operated under their ag, rather than
under that of any State, although in those few cases which have occurred so

60 For an overview of territorial jurisdiction by IGOs, see R. Wilde, From Danzig to East
Timor and beyond: The role of International Territorial Administration, AJIL 2001 Vol.
95, pp. 583–606, and J. Crawford, The Creation of States in International Law, Oxford
2006, pp. 546–564.
61 See an article by the present writer in (1961) 37 BYIL, pp. 451–453.
62 See Annex XI to the Treaty of Peace with Italy (49 UNTS. 215), and General Assembly
resolutions 289 (IV), 388 (V), 390A (V) and 530 (VI); cf. Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 1964, p. 49.
types of jurisdiction exercised by self-governing communities 101

far it has not been necessary to exercise legislative or judicial powers.63 These
powers include – in addition to the organic jurisdiction over the captain and
the crew, if they are ofcials of the organization – legislative, executive and
judicial powers in civil and criminal matters in respect of transactions taking
place and acts done on the vessel while it is outside the territorial jurisdiction
of any State. However, the organization will usually nd it convenient or
even necessary to delegate many of the latter powers, and particularly that
of criminal jurisdiction,64 to a member State.65
In a few cases intergovernmental organizations also exercise a limited
jurisdiction over specic categories of persons. Thus the Mixed Commission
for the Exchange of Greek and Turkish Populations, under its constitution,
a Greco-Turkish agreement of 1 December 1926, performed a number of
different functions with regard to the emigration of minorities in the two
countries and the liquidation of their property. These functions were expressly
classied as administrative, legislative and judicial by the Permanent Court of
International Justice.66 The UN High Commissioner for Refugees has assumed
regulatory tasks to conduct refugee status determinations and administering
refugee camps in many countries, thus exercising jurisdiction over persons in
determining their legal status under the relevant provisions of international
refugee law.

63 Thus in the case of the vessels operated under United Nations ag in Korea and the
Middle East, see (rst) United Nations Conference on the Law of the Sea, Geneva 1958,
Ofcial Records, IV, pp. 138–140, cf. Art. 7 of the Convention on the High Seas of April
29, 1958.
64 On the capacity of the United Nations itself to exercise criminal jurisdiction, see Seyersted,
United Nations Forces, Leyden 1966, chapter VIII (11).
65 This is prescribed, in respect of criminal jurisdiction, by Art. 18 of the Tokyo Conven-
tion on Offences and Certain Other Acts Occurring on Board Aircraft of 14 September
1963. It is also prescribed, in respect of civil jurisdiction, in a draft article to the Brussels
Convention on Liability of Operators of Nuclear Ships of 25 May 1962, elaborated in
1964 by the Standing Committee of the Diplomatic Conference on Maritime Law. That
article also prescribes delegation of most of the legislative power to the State to whose
courts the judicial power is delegated, while retaining certain legislative powers with the
organization. (New Art. XXV bis, paragraph 1 (c), International Atomic Energy Agency
document CN-6/SC/13, 1965). No relevant provisions have as yet been made for space
vehicles. Thus the constitution of the European Space Research Organisation (ESRO)
of 14 June 1962 contains no provision, and that organization’s agreement with Sweden
concerning the Kiruna Launching Range of 29 July 1964 merely provides, in Art. 7, that
“the activities of the organisation in Sweden shall be governed by Swedish law”. United
Nations General Assembly resolution 1962 (XVIII), para. 5, and the successive reports
of the United Nations Committee on the Peaceful Uses of Outer Space, as well as of its
legal sub-committee, deal with the problem of responsibility of the space vehicle, but not
with that of jurisdiction.
66 Advisory Opinion on the Greco-Turkish Agreement of 1 December 1926, PCIJ, Ser. B,
No. 16, pp. 17–18.
102 chapter four

A larger number of organizations, including the League of Nations,67 the


United Nations,68 the World Health Organisation,69 sheries commissions70
and certain other regional organizations71 exercise a limited jurisdiction over
States inasmuch as they may take certain decisions which are binding upon
these. Some organizations even exercise jurisdiction within States, directly over
their territory, nationals and organs, by taking decisions which are binding
directly upon the inhabitants, nationals and organs; this is partly so in respect
of certain acts of the European Community. Membership jurisdiction, too, is
essentially jurisdiction over States. But it is convenient, for practical reasons,
to make a distinction in this respect between organizational and functional72
matters. The former term refers to the organizational set-up or to the organiza-
tion in general, such as membership and contributions. By functional matters
is meant the specic, substantive functions performed by the organization
pertaining directly to the realization of its purposes. It is convenient to refer
only to jurisdiction in organizational matters as membership jurisdiction, and
to refer to jurisdiction in functional matter as jurisdiction over States, inter alia,
because the latter jurisdiction may be exercised also over non-member States
and because it can only be exercised if and to the extent that the States con-
cerned have authorized the organization to do so, while a limited jurisdiction
over member States in organizational matter is inherent.
States have, from their inception, territorial jurisdiction over their territory,
personal jurisdiction over their nationals and organic jurisdiction over their
organs. This follows ipso facto from their existence as States. No constitutional
provision is necessary to enable a State to exercise such jurisdiction. Nor is, in
principle, any act by other States necessary, although in order to come into
existence the State must, of course, obtain control of a specic territory, by
original or derivative acquisition. Territorial, personal and organic jurisdiction
is thus inherent in States as such.
After their establishment, States may extend this jurisdiction over new ter-
ritory, new categories of persons, and even over other States, which thereby
may lose part of their sovereignty. Such acquisition may be effected by unilat-

67 Notably under minority treaties, for example, Art. 57 of the Treaty of Peace with Bulgaria
after World War I.
68 See Art. 25 and Chapter VII of the Charter.
69 WHO Constitution, Arts. 21–22.
70 See, for example, the North East Atlantic Fisheries Convention of 24 January 1959.
71 See, for example, the constitutions of the Organisation for Economic Co-operation and
Development (OECD), Art. 14, and of the Arab League, Art. 7.
72 Possible alternatives to this term are operational and non-organizational, the latter being
the only term not also used in other connotations. The distinction between organiza-
tional and functional matters is different from that between procedural and substantive
matters.
types of jurisdiction exercised by self-governing communities 103

eral, bilateral or multilateral State action; but it does not require any positive
authorization in the constitution of the acquiring State, unless the acquisition
should be contrary to an existing constitutional rule. This distinction may
recall the one made more than two hundred years ago by Martens between
rights which he called “absolus et innés” or “primitifs” (the present writer uses
the term “inherent”) and rights which may be acquired73 – a basic distinc-
tion which subsequent writers have ignored while attending to the doctrine
of “implied power”.
The distinction between inherent and acquired jurisdiction is of little
practical importance as far as States are concerned. But in the case of inter-
governmental organizations it is of fundamental importance to establish, with
regard to each particular type of jurisdiction, whether and to what extent it
is inherent in all intergovernmental organizations by the mere fact of their
existence as such, or whether it may be exercised only if and to the extent
that the organizations concerned has been specially empowered to do so. If
one talks in the rst case of inherent jurisdiction, one may in the second case
talk of extended jurisdiction.
No intergovernmental organization can exercise functional jurisdiction over
States, or over territory, nationals and organs of States, without having been
authorized to do so by these States. This follows from the established rule
of law that a restriction of the sovereignty of States cannot be presumed, as
was stated by an arbitral tribunal set up by UNESCO in 1949.74 However, it
is not necessary – as the majority of writers assume – that this authority be
contained in the constitution of the organization. As several of the examples
cited above demonstrate, it is sufcient that the States concerned grant the
authority by a separate treaty.75 Intergovernmental organizations may even
assume extended jurisdiction without interfering with the sovereignty of any
State and thus without any kind of authorization from a State, if they have,
by occupation or creation, brought themselves in a position where they can
exercise jurisdiction over territory, objects or persons who are not subject to
the jurisdiction of any State or other sovereign community. Practical examples
are ships, aircraft and space vehicles registered with and operated under the
ag of the organization.

73 Prècis du droit des gens modernes de l’Europe, Göttingen, 1st ed., 1788, Livre II, chapter
I, § 34, and Livre IX, § 340 (in the 1801 edition, pp. 64 and 499, in the 1864 edition,
Vol. I, p. 1124, and Vol. II, p. 383).
74 (1949) Annual Digest of International Law Cases, Case No. 113 at p. 336, citing several
judgments and advisory opinions of the Permanent Court of International Justice.
75 Cf. articles by the present writer in BYIL 1961, pp. 451–460 and in Nordisk Tidsskrift
for international Ret og jus gentium 1964, pp. 29–30.
104 chapter four

It is clear that jurisdiction over the organs of the organization does not
interfere with the sovereignty of States. We shall examine in the following
chapter to what extent intergovernmental organizations exercise and can
exercise jurisdiction over their organs and ofcials as such without specic
authority therefore.
Like individuals serving as members of State organs, States and their rep-
resentatives serving as members of IGO organs are, in that capacity, subject
to the inherent organic jurisdiction of the organs concerned.
In addition, as will be described in more detail below, in chapter 5, all
IGOs exercise a limited jurisdiction over their member States as members
of the organization as a whole, in organizational matters, e.g. on admission to
and exclusion from membership. This membership jurisdiction over sovereign
States is different from the personal jurisdiction which States and the Holy See
exercise over their members, who are private individuals or legal persons.
The membership jurisdiction is in many respects laid down in the con-
stitution, e.g. admission to and expulsion from membership76 and payment
of contributions to the budget. Such express provisions77 are not common
law in either sense – neither customary, nor common to all IGOs. In these
circumstances it is not so easy to identify sufcient practice to establish to
what extent IGOs lacking express provisions have such jurisdiction under
common customary law.
A question on the borderline between organic and organizational member-
ship jurisdiction is to what extent States may refuse to participate in delib-
erative organs. This has not been claried in practice. Members of the UN
have on some occasions refused to serve on new organs not provided for in
the constitution – on the basis of a new (not well-founded) charge that the
organs under their terms of reference were to perform functions which they
or the organizations were not legally entitled to perform. In the early days of
the UN the Soviet Union refused to serve on the Interim Committee of the
General Assembly established by GA resolution 111 (II), and the Ukrainian
SSR refused to serve on the UN Temporary Commission on Korea.78

76 Cf. Nagendra Singh: Termination of Membership in International Organizations, London


1958, on the law and practice of voluntary and involuntary termination, with or with-
out constitutional provisions. A resolution No. 47 (1) adopted later by the International
Institute for the Unication of Private Law (UNIDROIT) provides that any Government
which is more than four years behind in the payment of its contributions to the budget
shall be excluded from membership.
77 See e.g. Arts. 4–6 and 17 (2) of the UN Charter. On the scope of the latter, see the ICJ
advisory opinion on Certain Expenses of the UN, ICJ Reports, 1962.
78 The question was also debated in connection with the Special Committee on Information
concerning Non-Self-Governing Territories, established by General Assembly resolution
types of jurisdiction exercised by self-governing communities 105

It is submitted that, in the absence of specic provisions, IGOs have an


inherent power to decide admission to and exclusion from membership, but
not to impose a duty to contribute to the budget79 or to accept establishment
of headquarters on national territory,80 or merely to hold meeting on their ter-
ritory, nor to amend the constitution of the organization other than by treaty
revision. If no provision has been made in the constitution for amendments,
it may hardly be amended by an informal decision, although a unanimous
decision would probably be respected. At any rate, amendments may be –
and have been – effected by practice which established new customary law for
the organization concerned. Thus, rmly established practice has limited
the scope of the domestic jurisdiction clause in Article 2 (7) and of the veto
power in Article 27 (3) of the UN Charter (to the effect that abstention does
not imply a veto).
It is submitted that IGOs have a power to dissolve themselves by simple
decision of a plenary organ or meeting. However, a dissenting minority must
have the right to continue the organization and retain its assets.

Jurisdiction over member (or other) States

Jurisdiction in substantive matters is denitely dependent upon special author-


ity and thus not a matter of common law, neither in the sense of customary
law, nor in the sense of law common to all IGOs. This is clearly extended
jurisdiction and will be considered below in chapter 6. In that connection,
we shall also have a closer look at the limits of membership jurisdiction in
organizational matters, which is a subject on the border-line between inherent
and extended jurisdiction.

332 (IV). Suzanne Bastid, p. 459, tends to support the view that members are under no
obligation to serve.
79 On the interpretation of the relevant provision in Art. 17 (2) of the UN Charter, see
Rama Rao in the Indian Yearbook of International Affairs, 1963, pp. 158 ff.
80 The latter problem was discussed already by H. Kelsen, who suggested that the silence
of the UN Charter might be interpreted either way.
CHAPTER FIVE

INHERENT JURISDICTION OVER ORGANS AND OFFICIALS

5.1 Internal legislation of intergovernmental organizations

Organizational and functional regulations enacted by the organization

The basic provisions concerning the internal organization of an intergovern-


mental organization are laid down in its constitution. However, the drafters
of a constitution cannot – and do not purport to – provide an exhaustive set
of rules for the internal operation of the organization. Most organizations
therefore nd it necessary already at the outset to enact general legal rules to
implement and to supplement the constitutional provisions. And this process
continues as the organization grows and gains experience, establishes new
(subsidiary) organs, and assumes new functions. The following are some of
the most common types of such legislation:

a. Rules of procedure for the various deliberate organs.


b. Staff regulations adopted by the plenary organ and detailed staff rules
enacted by the head of the secretariat.1
c. Financial regulations and audit procedures.
d. Terms of reference for organs not provided for in the constitution, such as
statutes of administrative tribunals,2 the Statute of the International Law

1 The United Nations Staff Regulations were adopted originally by General Assembly reso-
lution 590 (VI) and later amended on a number of occasions. See also the Regulations
for the United Nations Joint Staff Pension Fund, adopted originally by General Assembly
resolution 248 (III) and amended by a great number of subsequent resolutions, and the
United Nations Staff Assessment Plan, adopted originally by General Assembly resolution
239 (III). The specialized agencies have adopted staff regulations and rules modeled upon
those of the United Nations. The European Communities have adopted common staff
regulations of 29 February 1968 (as amended) entitled “The Staff Regulations of Ofcials
and the Conditions of Employment of Other Servants of the European Communities”
(Council Regulation No. 259/68 as amended).
2 Citations below.
108 chapter five

Commission,3 the resolution establishing the United Nations (International)


Children’s (Emergency) Fund (UNICEF)4 and the terms of reference of
the regional Economic Commissions of the United Nations.5

Irrespective of their different denominations these are in the present book


referred to generally as regulations. Important regulations are enacted by
majority decisions of the plenary organ (e.g. the UN General Assembly) or
by the other deliberative organs concerned. Exceptionally, they are laid down
in annexes to the constitutional convention, e.g. the FAO Financial Regula-
tions – a cumbersome method. Less important or more detailed regulations
are enacted by the Secretariat, but only pursuant to authorization from the
competent deliberative organ if they are directed to member States or their
representatives (as opposed to ofcials of the organization). The regulations
and rules have suffered innumerable amendments, but the basic substantive
features of organizational regulations are similar in various IGOs.
The regulations are mostly of an organizational nature, i.e., they con-
cern the organizational set-up rather than the substantive functions of the
organization. But intergovernmental organizations enact regulations also in
functional matters.6 However, as pointed out below, such regulations require
specic authority if they establish new obligations for member States, private
individuals or other parties having a legal existence outside the organization
(extended jurisdiction). Prominent examples are the World Health Regula-
tions adopted by the World Health Organization pursuant to Articles 21–22
of its constitution,7 and the Regulations on the Registration and Publication
of Treaties and International Agreements, enacted by the United Nations
General Assembly to give effect to the provision in Article 102 of the Charter
and containing detailed rules which are required to implement the general
provisions contained in that article, not to mention the important substantive
regulations enacted by the European Community and other supranational
organizations.
The regulations may be adopted by resolution of a deliberative organ of
the organization or enacted by the Secretariat.
The examples above are mostly comprehensive sets of rules, arranged in
articles and/or sections, similar to statutes and regulations enacted by States.

3 General Assembly resolution 174 (II) as amended.


4 General Assembly resolution 57 (I) and 417 (V) as amended.
5 The rst by ECOSOC resolution 36 (IV) establishing the Economic Commission for
Europe.
6 On the distinction between organizational and functional matters, see above chapter
4.3.
7 The regulations are discussed below, chapter 6.
inherent jurisdiction over organs and officials 109

If enacted by resolution of a deliberative organ, they are usually annexed to


that resolution. General binding rules are also often enacted in less elaborate
form, for example in the text of a resolution.8 And, as the examples cited
above demonstrate, the rules may be enacted under different denominations:
Regulations, statutes, rules, resolutions, decisions, etc. As long as they contain
general binding rules, the difference is one of form rather than of substance.
For convenience, the present book refers to them all as regulations, even if
they were enacted under some other denomination.9

Absence of constitutional provisions

Some constitutions expressly authorize the enactment by the organization of


certain types of regulations, notably organizational regulations, such as staff
regulations and rules of procedure. Thus the United Nations Charter provides
in Article 101 (1) that “the staff shall be appointed by the Secretary-General
under regulations established by the General Assembly,” and in Articles
30, 72 (1) and 90 (1) that the three Councils shall adopt their own rules of
procedure, including the method of selecting their President. And Article
283 of the Treaty establishing the European Community provides that the
Council shall “lay down the Staff Regulations of ofcials of the European
Communities and the Conditions of employment of other servants of those
Communities”.
Writers on the subject of legislation by intergovernmental organizations,
who usually make no distinction between the various types of regulations,
frequently talk of them all in terms which seem to suggest that constitutional
provisions are necessary – i.e. that regulations can be enacted only by those
organizations upon which the power has been “conferred” in the constitu-
tion, and only within the elds covered by such constitutional “delegation”,10

8 For example, General Assembly resolutions determine the scale of assessments for the
apportionment of the expenses of the United Nations; and resolution 878 (IX) determined
that certain types of United Nations documents should be published in the Arabic language
(Arabic was subsequently made a regular ofcial language).
9 Kunz in Iowa Law Review, XXXI (1945–46), p. 53. Legislation by intergovernmental
organizations – “International Administrative Ordinances” – in preference to “droit
interne des communautés d’Etats” as used by Gascón y Marín and “inneres Staatenge-
meinschaftsrecht” as used by Verdross. However, the two latter terms are much more
comprehensive, inasmuch as they also comprise the unwritten parts of the internal law.
10 In this sense, Kunz in Iowa Law Review XXXI (1945–46), pp. 52–53, mentioning as
examples, inter alia, rules of procedure and staff regulations. Verdross: Völkerrecht, 5th
ed., Vienna 1964, pp. 152 and 577, describes the same examples in less explicit terms.
Certain other writers talk in more liberal, but still too restrictive terms. Thus M. Sibert,
110 chapter five

but many writers resort to an extensive interpretation of the provisions of


the constitution.
However, it is not possible to nd a legal basis for limitation of the legisla-
tive power which all IGOs exercise in internal matters stricto sensu and which
is common customary law. Only a few constitutions contain general provisions
authorizing the organs of the organization to enact the necessary regulations.11
Most constitutions merely provide for adoption of rules of procedure and
staff regulations, as well as establishment of subsidiary organs. And some
constitutions do not even provide for that.12 This despite the fact that all
organizations – or at least all larger ones – need and enact regulations for
a number of matters – including not merely staff, procedure and subsidiary
organs – but also other subjects, such as nance, for which there is only in a
few cases express authorization in the constitution.
The only authority outside the organization itself which would have the
power, without authorization, to enact regulations for the organization would
be all member States acting in concert. If they do not wish to do this through
the organs of the organization – i.e., by decision of the organization itself –

Traité de droit international public, Paris 1951, II, § 1399, wrote that the General Assembly
of the United Nations “exerce dans une mesure déjà large le pouvoir réglementaire. Elle
le tient ou de la Charte même ou de plus en plus de ce droit prétorien issu de ses propres
Résolutions.” As pointed out below, an organization cannot by its resolutions authorize
itself to exercise powers which it does not already possess.
11 More or less general authorizations are contained in the constitutions of the Bureau inter-
national des Poids et Mesures (Art. 15 of the Règlement annexed to the constitution), the
Bank (Art. V (2) (f )), the Fund (Art. XII (2) (g)), the Council of Europe (Arts. 16–18), the
former International Institute of Agriculture (Part II, Arts. 4 and 5), the former European
Coal and Steel Community (Art. 16 original wording), the European Community (sev-
eral Articles, some containing references to Arts. 249 ff.), the Organization of American
States (Art. 52) and the organic statute of the International Institute for the Unication
of Private Law (UNIDROIT of 15 March 1940, Art. 17 (1)). The latter provides: “Rules
governing the administration of the Institute, its internal operations and the conditions
of service of the staff shall be adopted by the Governing Council and must be approved
by the General Assembly and communicated to the Italian Government.” It will be noted
that the latter and some other provisions are concerned with the distribution of powers
within the Organization and are worded in terms which (properly) rather presuppose the
power to enact internal regulations.
12 Thus there is no provision concerning rules of procedure in the constitutions of the Orga-
nization for European Economic Co-operation (OEEC) or its successor, the Organization
for Economic Co-operation and Development, no provision authorizing staff regulations in
the constitutions of the League of Nations and UNRWA, and no provision authorizing the
establishment of subsidiary organs in the constitutions of the International Telecommuni-
cation Union (ITU) and the former International Refugees Organisation. The constitution
of the Benelux Customs Union of 29 April 1969 made no provision for organizational
regulations, nor do the constitutions of most regional defense organizations, except for a
provision concerning the establishment of subsidiary bodies and provisions concerning
“implementation” of the provisions of the constitution or concerning “concerted action”
(NATO Pact, Art. 9; former Warszawa Pact, Arts. 5–6).
inherent jurisdiction over organs and officials 111

they can do so by convention. But to conclude supplementary conventions


between all member States for this purpose is a much too cumbersome, slow
and inexible procedure, which was never envisaged by the drafters of the
constitutions and which is not followed in practice.
A legislative power for the host State or any other particular member State
with regard to the internal matters of the organization would – except for
special cases of express delegation – run counter to the constitutional system
of organizations of the independent type, which is based upon the principles
of the independence of the organization and the equality of its members.
And even IGOs of the so-called type dépendant, i.e., organizations where the
secretariat functions were entrusted to the host State, are not ipso facto subject
to the general law of the host State, but only to regulations enacted specially
for the organization by the government of that State.13
All organizations of the independent type have in fact themselves enacted
those regulations which they have required14 – without regard to whether such
legislation was authorized in the constitution or could be deduced from any of
its provisions by some method of extensive interpretation. And organizations,
whose constitutions expressly authorize legislation in certain internal matters,
have also enacted regulations concerning other internal matters. Thus rules of
procedure, staff regulations and terms of reference for subsidiary organs have
been adopted no less by organizations lacking constitutional authorization to
do so.15 And nancial and other regulations, which are not provided for in
most constitutions, have been adopted by a great number of organizations,
including the United Nations and a number of its specialized agencies.16

13 The former Swiss Law of 31 January 1947 on the Status of the International Ofces Placed
under the Supervision of the Authorities of the Swiss Federation provide that “the Unions
and their Ofces may not be sued in a Swiss court or subject to the regulations enacted by
Swiss public authorities without the express consent of the supervising authority” (Art. 4)
and that “the organisation and the operation of the Ofces shall be governed by regulations
to be prescribed by the Federal Council” (Art. 13). Such prescription was authorized in
the constitution of the Bern and the Paris Unions for protection of intellectual property
rights (Arts. 21 (2) and 13 (1), respectively, and implicitly in the constitution of the Uni-
versal Postal Union (UPU, Art. 19). After World War II organizations of the type dépendant
in Switzerland have established their own secretariats and become regular independent
intergovernmental organizations: ITU, UPU, World Intellectual Property Organization
(WIPO) and Organisation pour transport international par Ferrocaril (OTIF).
14 In a few special elds they decided to apply the national law of the host State rather than
enact regulations of their own.
15 For example, the rules of procedure of the OEEC (the forerunner of OECD), the staff
regulations of the League of Nations (H. Aufricht: Guide to League of Nations Publica-
tions, New York 1951, p. 440) and the terms of reference of the Committee on Dependent
Territories of the OAS and of the Co-ordination Committee of the ITU.
16 See e.g. General Assembly resolution 456 (V) and numerous subsequent amending resolu-
tions, cf. Arts. 10 and 17 of the Charter.
112 chapter five

Subsidiary organs have been established e.g. also by the UN Trusteeship


Council, which, in contrast to the other principal organs of the UN has no
authorizing provision in the Charter to do so.
The right thus assumed by IGOs to enact internal regulations is not known
to have been contested by States. On the contrary, the host States and their
courts – which are the only other authorities which might conceivably be
in a position to assume powers of regulation, by virtue of their territorial
jurisdiction over the territory upon which the organization operates and their
personal jurisdiction over a great number of its ofcials – have refrained from
assuming any power with regard to the internal matters of the organization.17
Host States and other external authorities assumed powers with regard to such
internal matters in special cases where they have been specically authorized
to do so in the constitution (e.g. the now more outdated organizations of the
type dépendant) or by voluntary act of the organization itself.

Genuine legislation?

As was pointed out, the internal regulations of IGOs are binding upon their
organs and ofcials. However, this is true of non-governmental organizations
as well. The important difference is that the power of internal legislation of
intergovernmental organizations is exclusive and overrides any other law,
including the mandatory law of the host State,18 and that it is supplemented by
general principles of law, not by the law of the host State. Non-governmental
organizations, too, make rules concerning their internal matters, and these
rules, too, are binding upon their organs and their members. But such regu-
lations must always keep within the limits set by the law of the State under
whose jurisdiction the organization falls. This State has the power to enact
law which is binding upon the organization and its organs and members and
which takes precedence over its internal law. Gaps in the internal law of the
organization are lled by the law of that particular State. In all these respects
the position of intergovernmental organizations is entirely different.

17 Thus the United Nations Secretariat on 7 October 1965 rejected a request from a host
State that all locally recruited UN employees be given employment contracts in accordance
with a “form of agreement” prescribed by the Government, stating that locally recruited
personnel are staff within Article 101 (1) of the Charter and that “no member State has
failed to accept the application of United Nations Regulations and Rules to local person-
nel, of whatever nationality, within its territory” (UN Juridical Yearbook 1965, pp. 236–7).
See below, chapter 5.3 with regard to Staff Regulations and other legislation concerning
ofcials.
18 See below, chapter 5.7.
inherent jurisdiction over organs and officials 113

It does not detract from the character of IGO regulations as binding legal
rules that IGOs usually do not have criminal jurisdiction19 and therefore can-
not enforce their regulations by criminal sanctions (but only by disciplinary
or civil action). This they have in common with many rules of national law.
Ross maintained that the duties which the Statute of the International Court
of Justice “apparently impose on the judges, e.g. to motivate the decision,
are not real duties but a condition of the competence attributed to them
as judges, the transgression of which may at most entail invalidity.”20 This
statement would, a fortiori, apply to duties imposed upon judges by the Rules
enacted by the Court. It is true that judges are more shielded from disciplin-
ary and other sanctions than are other ofcials. But so are judges in States.
There are even State ofcials, e.g. monarchs, who are entirely exempt from
sanctions, criminal as well as civil.21 But still their duties, for example, under
the constitution, are considered to be genuine legal duties. Moreover, this is
not merely a matter of judges. One must consider also the ofcials of the
Registry and the much more numerous ofcials of other organizations, who
all have duties under regulations enacted by their respective organizations,
and who are all subject at least to disciplinary sanctions. The purpose of Ross’
statement is to demonstrate that individuals are not subjects of duties under
international law. However, this is not true of the internal law of international
organizations (which, like the national law of States, is distinct from public
international law, as Ross correctly marks inter alia in his following paragraph
with regard to the European Danube Commission), not even of those parts
of that law which have been laid down by treaty and thus also constitute
part of international law.
On the question of binding force in practice, it has been pointed out that,
while violations of the constitution are always denied by resorting to liberal
or excessively liberal interpretations, deviations from rules of procedure are

19 Certain international river commissions and other organizations exercising territorial juris-
diction do enforce their legislation by criminal sanctions, sometimes supported by police
or military force. Such legislation is, however, not inherent, but extended. See the other
examples of criminal jurisdiction referred to in Chapter VIII (11) of Seyersted: United
Nations Forces, Leyden 1966, pp. 361 ff.
20 Alf Ross: Lærebog i Folkeret, 6th ed., Copenhagen 1984. English translation of rst edi-
tion entitled A Textbook of International Law, London 1947. German translation of 2nd
edition entitled Lehrbuch des Völkerrechts, Stuttgart 1951, § 2 V.
21 This is the position of the King of Norway under § 5 of the Constitution. On the position
in the United Kingdom, see the Crown Proceedings Act of 31 July 1947 as amended,
notably Section 29 and 40.
114 chapter five

made openly. However, deviations from such rules should be guided by a


principle of objectivity and impartiality.22
It may be argued that internal, organizational regulations are not genuine
“legislation”, because they are not binding upon private individuals (they are
binding upon individuals only in their capacity of members of the organs of
the organization). Still, the United Kingdom and the Director-General of the
World Health Organization correctly used the term “legislative” in respect of
the resolution adopted by the plenary organ of that organization to specify the
categories of ofcials who should enjoy privileges and immunities under
the Convention on Privileges and Immunities of the Specialized Agencies.23
However, this particular resolution became binding upon the parties to that
Convention pursuant to section 18 thereof.
Similarly, Kelsen (rightly) refers to the United Nations Flag Code, enacted
by the Secretary-General on 19 December 1947 pursuant to authorization
in General Assembly resolution 167 (II), as “legislation”.24 He considers
these “general rules regulating the use of the ag binding upon the member
States.”25 He quotes in this context two relevant paragraphs of the Code,
which, as slightly amended on 11 November 1952, read: “The ag shall not
be used in any manner inconsistent with this Code or with any regulations
made pursuant thereto” (paragraph 7) and “Any violation of this Flag Code
may be punished in accordance with the law of the country in which such
violation takes place” (paragraph 10).26 However, despite these sweeping provi-
sions, the Code is directly binding only upon the organs of the organization
and their members as such. It is not directly binding upon the member States,
because, as Kelsen himself points out, neither the General Assembly nor the
Secretary-General could enact regulations binding upon these without specic
authorization, and the Charter contains no such authority. The UN emblem
is, however, protected under Article 6 ter paragraph 1 (b) of the Paris Conven-
tion for the Protection of Industrial Property, in those countries which have

22 B. Conforti: The Legal Effect of Non-Compliance with Rules of Procedure in the U.N.
General Assembly and Security Council in AJIL, Vol. 63 (1969), pp. 479–89.
23 Ofcial Records of the World Health Organisation, No. 91, Executive Board, Twenty-third
session, Part I, pp. 105–106.
24 Recent Trends in the Law of the United Nations, London 1951, p. 938. The Flag Code
was revised in 1952 and 1985, retaining the substance of paras. 8 and 11 in new paras.
7 and 10. Text in Yearbook of the International Law Commission II (1967), pp. 236–8.
25 Judge Alvarez, speaking of the “legislative” function of the General Assembly, also use this
term in the substantive sense (sens matériel) as regulations binding upon member States,
ICJ Reports, LII (1951), p. 52.
26 See also the letters, opinions and provisions published in United Nations Yearbook 1971,
pp. 186 and 188–9 and 1973, p. 138 conning use of the ag to operations supported by
UN or Specialized Agencies.
inherent jurisdiction over organs and officials 115

acceded to that convention.27 But the Flag Code becomes binding – as a matter
of conict of laws – in both member and non-member States, upon persons
subject to their law, to the extent that their legislation or conicts law refers
to the law of the United Nations, expressly or by implication, on the same
footing as it may refer to the ag code or a foreign State. Indeed, in principle
the regulations and other internal law of the United Nations and other IGOs
have the same effects under the private and criminal international law of a
State as has the national law of a foreign State, and the UN has acted in this
sense. For this and other reasons it is not inappropriate to refer to the Flag
Code and to any other regulations enacted by IGOs as “legislation”, even if
they are not ipso facto binding upon member States or external parties.
Still, most writers refrain from using the terms “legislation” and “legislative
power” ( pouvoir législatif ) with regard to IGOs, even when writing on regula-
tions enacted by the international river commissions and on other legislation
which is not internal stricto sensu, but extended and binding also upon member
States and private individuals. Instead, they talk of “regulative power” or pouvoir
réglementaire. It is true, in respect of States, that regulations which, although
general, are binding upon organs only, and not upon private individuals
(“members”), are not legislative in the substantive sense (sens matériel) of the
term (general rules governing the rights and duties of the members of the
community), but administrative. But they are partly enacted as legislation in
the “formal” sense of the word (statutes enacted in the manner prescribed in
the constitution, i.e. usually by Parliament). As for IGOs, regulations which
are binding upon member States, and, even more clearly, regulations which
are directly binding upon individuals other that ofcials (e.g. regulations of
international river commissions and other supranational legislation), constitute
legislation (law) also in the sens matériel.28 However, this is not true of organic
legislation. On the other hand, regulations enacted by the plenary organ
are comparable to legislation in the “formal” sense, even if they are binding
only upon organs and ofcials. However, a number of regulations, especially
in the latter category, are merely enacted by an executive council or the
Secretariat and may thus not be comparable to State legislation even in the
“formal” sense. For practical reasons, the present book avoids the distinctions
applicable to States, and uses the terms “regulations”, “legislation” and “legis-
lative” for any binding general rules of law enacted by an IGO, whether or

27 See UN Juridical Yearbook 1976, pp. 176–7.


28 In its advisory opinion concerning the Mixed Commission for the Exchange of Greek and
Turkish Population, the Permanent Court of International Justice spoke of the Commis-
sion as having “une fonction règlementaire ou législative dans le sens matériel du mot”,
PCIJ Ser. B, No. 16, p. 18.
116 chapter five

not they are binding also upon subjects which have a legal existence outside
the Organization, and irrespective of whether they have been enacted by a
deliberative or an executive organ.
As more fully explained above, in chapters 1.5 and 3.3, the regulations
enacted by each intergovernmental organization form part of a distinct legal
system; the internal law of the organization, which is not part of international
law but in most respects comparable to the national law of States. It is applied
in foreign States whenever their national rules on conict of laws refer to
the law of the organization, and then without distinction as to hierarchical
level or denomination.

Conclusion

It is accordingly submitted that IGOs have general power of legislation in


their internal organizational and even functional matters, whether or not their
constitutions so provide. But such legislation is not ipso facto binding upon
outside parties, otherwise than by virtue of regular rules of conict of laws
or by specic authority granted in the constitution, other treaty or unilateral
act. The internal legislation is ipso facto binding, in the rst place, upon the
organs and the ofcials as such. It is, in fact, an organic legislative power, similar
to that exercised by States and the Holy See (and any other sovereign com-
munity). The legislation is binding also upon the member States and their
representatives in their capacity as members of the organs of the organiza-
tion. It may also, within narrow limits, be binding upon member States in
organizational matters relating to their membership of the organization as a
whole. In this aspect it is a membership jurisdiction, the membership being
in this case made up of States, not of individuals as in the case of the Holy
See. However, to become binding in substantive matters special authority is
required (extended jurisdiction, cf. chapter 6 below).
This internal legislative power all intergovernmental IGOs have ipso facto, i.e.
even if there is no provision in their constitution. It follows from the fact that
they are intergovernmental organizations, just as the organic jurisdiction of
States follows from the fact that they are sovereign States and that of insurgents
and the Holy See from the fact that they are self-governing communities. Or
conversely one may say that their sovereignty or self-government follows from
their exclusive organic jurisdiction, which is the only common denominator
(and condition) for all general and automatic subjects of international law
(below, Part Three). This may remind of Grotius’ “laws of nature”, but if
so it certainly is a rule of that law which has been conrmed by customary
inherent jurisdiction over organs and officials 117

law no less rmly than many a rule of traditional customary law. The scope
of the inherent legislative power of IGOs over their organs and ofcials will
be examined below.29
We are not here concerned with the distribution of powers within the orga-
nization, which may vary from one organization to the other according to its
constitutional set-up. It may nevertheless be mentioned that what has been
said above applies to a great extent also to each organ of the organization
within its eld of competence, provided that nothing to the contrary follows
from the constitution or from the terms of reference of the organ concerned
or from some other decision of a superior organ. Thus, subsidiary organs
do not have to refer back to the plenary organ or to another superior organ
for enactment of rules of procedure, even if their terms of reference do not
expressly authorize them to enact these themselves.30 This principle will, of
course, be denied by those who deny the competence of the organization
as a whole to enact regulations without constitutional authorization. Kelsen
even doubted whether the United Nations General Assembly could transfer
its power to establish subsidiary organs under Article 22 of the Charter
to the Trusteeship Council, upon which the Charter does not confer such
power.31 It is submitted that such transfer is not even necessary; the Trustee-
ship Council can establish subsidiary organs without any authorization and
has in fact done so.32
Indeed, it is submitted that it is entirely useless to specify any power of
organic legislation in the constitution of an IGO, unless this is done for the
purpose of assigning the power to an organ other than that which would
normally be competent, or of laying down some other specic procedure, or
of limiting the power (e.g. by laying down the main principles). Otherwise the
specication can only give rise to unjustied a contrario interpretations that the
organization lacks legislative power over its organs in other respects, or that
other organs lack the same power.

5.2 Internal administration of intergovernmental organizations

The internal jurisdiction of IGOs is not limited to the enactment of gen-


eral rules. IGOs also make decisions in individual cases and perform other

29 Chapter 5.4 ff.


30 But see Kunz loc. cit. p. 53 (3), and Verdross: Völkerrecht 5th ed., Vienna 1964,
p. 577.
31 Kelsen, The Law of the United Nations, London 1950, p. 653, note.
32 See for example the Council’s resolutions 293 (VII) and 425 (X).
118 chapter five

concrete acts pertaining to the organization as such or to its functions. Such


concrete acts, as far as they are not judicial, will be referred to as executive
or administrative.
The power of the deliberative organs and of the Secretariat to make such
decisions follows in many cases from the constitution. Thus most constitu-
tions directly empower the plenary organ to decide on the admission of new
members and on the allocation of funds, and the head of the Secretariat to
appoint ofcials.33 In other cases the power follows indirectly from the con-
stitution, for example, when the budget, approved by the plenary organ in
accordance with a direct constitutional authorization, in turn empowers the
Secretariat to incur expenditure in concrete cases.
However, most administrative powers are exercised by the various organs
without any constitutional authorization. Thus the various organs of IGOs
currently establish subsidiary organs, whether or not the constitution so autho-
rizes.34 The Charter of the UN authorizes the General Assembly, the Security
Council and the Economic and Social Council to establish subsidiary organs,
in Articles 22, 29, 68 and Chapter XIII, but this has not prevented the Trust-
eeship Council and a great number of subsidiary organs not mentioned in
the Charter from doing likewise. And the UN has established military (peace-
keeping) forces without utilizing the provisions on military (enforcement) forces
in Chapter VII of its the Charter. This was approved by the International
Court of Justice in its advisory opinion of 1962 on Certain Expenses of the
United Nations,35 relying on inherent powers, not on the ction of “implied
powers” as it did in its earlier (1954) advisory opinion on the establishment of
an administrative tribunal. IGOs even establish judicial organs not provided
for in the constitution, and this was approved by the International Court of
Justice in its advisory opinion of 1954 on Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal,36 although at that time still relying
upon the ction of “implied” powers. In some cases administrative powers not
authorized in the constitution are exercised pursuant to internal regulations or
external treaties, the latter even if the enactment or conclusion of which are
not authorized in the constitution. Thus, when the United Nations Secretariat
makes administrative decisions in connection with the ling and recording of
treaties not subject to registration under Article 102 of the Charter, it acts

33 For other examples, see e.g. the functions of the World Health Assembly enumerated in
the WHO constitution, Art. 18.
34 On ways of establishing organs and on types of organs see Diez de Velasco: Las orga-
nizaciones internacionales, 14th ed., Madrid 2006, pp. 101–9.
35 ICJ Reports, 1962, p. 168, cf. 1954 p. 47
36 Advisory Opinion of 13 July I954, ICJ Reports, 1954, p. 47.
inherent jurisdiction over organs and officials 119

on the basis of Regulations on Registration and Publication of Treaties and


International Agreements adopted by General Assembly resolution 97 (I). In so
far as the ling and recording of such treaties are concerned, these regulations
were not authorized in the Charter.37 The conclusion of contracts, which is
not mentioned in most constitutions, may nd a limited authority in the gen-
eral conventions on privileges and immunities, which usually confer expressly
upon the organization the capacity to contract. However, these conventions
are not always acceded to by all member States. Moreover, a great number of
contracts are concluded by organizations which have neither a constitutional
provision authorizing contracts nor a general convention on privileges and
immunities. Most of the organizations constituted before the Second World
War are – or were – in this position. Other examples of administrative deci-
sions which are made very frequently without any authorization, not even in
a non-constitutional regulation or in a treaty other than the constitution, are
decisions concerning the distribution of work in the secretariat, concerning
the administration of ofce buildings and equipment, and the “diplomatic”
protection of ofcials. The right of the United Nations to exercise such pro-
tection, in casu by bringing an international claim for reparation for injuries
suffered by the ofcial in the performance of his duties, has been recognized
by the International Court of Justice and in certain staff regulations, without
constitutional authorization, although, at that time, still resorting to the ction
of powers “implied” in the constitution.38
Thus, the function of administration, no less than that of legislation, is
being performed by IGOs in a great number of matters without constitu-
tional authorization. This power is not known to have been contested by
States, neither in their capacity as member, nor as host States. Indeed, it is
conrmed by customary law which is even more rmly established than that
relating to internal legislation.
Moreover, like the internal legislative power, the internal executive power
of the organization is exclusive. Neither the host State, nor any other State
can assume any part thereof without delegation from the organization. A
different matter is that the host State and other member States frequently
attempt to inuence the competent organs of the organization in respect of
the executive decisions they have to make. This is notably true in respect of
appointment, dismissal and instruction of ofcials, which is discussed sepa-
rately below, in chapter 5.5.

37 Kelsen, op. cit., pp. 703–704. See, on the whole subject of registration, ibid. pp. 698–705
and pp. 75–77.
38 See above, chapter l.6.
120 chapter five

5.3 Internal judicial power39

The inherent powers of intergovernmental organizations are not conned


to legislative and executive acts. They also imply the power to establish tri-
bunals to adjudicate upon disputes arising out of matters falling under the
organization’s legislative and executive authority (over its organs and ofcials),
and even the power to delegate such judicial power to external courts. As
related in detail below, notably in chapter 7.4–7.6, IGOs have to a great
extent established such courts – mostly without basis in any constitutional
provision.40
In particular, as there demonstrated, intergovernmental organizations in
fact exercise exclusive judicial powers in respect of their ofcials as such. A
number of organizations have, despite the absence of any specic provisions in
their constitutions, established administrative tribunals or other judicial bodies
to adjudicate disputes between the organization and its ofcials arising out of
the relationship of employment. These tribunals have rendered thousands of
judgments in actions brought against the organization by its ofcials. Many
organizations have, alternatively, conferred jurisdiction in such disputes upon
the administrative tribunals of another organization, by bilateral agreement
with that organization, without basis in their respective constitutions.
The administrative tribunals adjudicate upon actions brought by the ofcials
against the organization. In some cases, as e.g. under Article 236 of the Treaty
Establishing the European Community, the internal courts of the organization
are competent under their statutes also to adjudicate upon actions brought
by the organization against its ofcials, although in practice it is normally not
necessary for the organization to sue its ofcials, because the organization
can instead make an administrative decision and leave it for the ofcial to
sue the organization if she wants to contest that decision.41 Nevertheless, the
organization also has an inherent power to confer upon its courts compulsory
jurisdiction over its ofcials as such without basis in constitutional provisions.
Indeed, as will be demonstrated below, this compulsory jurisdiction extends
not only to internal disputes between the organization and its ofcials as
such, but also to external disputes between ofcials and third parties arising

39 Cf. W. Jenks: The Proper Law of International Organizations, London 1962, chapter 8
on “Judicial Control of Discretionary Powers”.
40 NATO, which like most IGOs has no relevant provision in its constitution, has a relevant
provision in its general convention on Privileges and Immunities.
41 See Smit and Herzog: The Law of the European Community, New York 1996, V, Art.
179,06.
inherent jurisdiction over organs and officials 121

out of the former’s ofcial acts, such jurisdiction can be made compulsory
only upon the ofcials.
The organization has a similar compulsory jurisdiction over its (other)
organs. It may confer upon its courts compulsory jurisdiction vis-à-vis itself
and its organs, although there has so far been little practical need and little
practice in this respect.
An intergovernmental organization may also establish courts to adjudicate
disputes involving its member States. But it may confer upon such courts com-
pulsory jurisdiction only vis-à-vis the organization, not vis-à-vis the member
States without their consent. The latter is true even in respect of disputes
involving the member State in its capacity as a member of a deliberative
organ of the organization, despite the fact that in this respect the member
States are subject to the exclusive and compulsory legislative and administra-
tive power of the organization.
Intergovernmental organizations which possess no territory may not have
sufcient means for themselves enforcing judgments rendered by their courts
against parties who also have a legal existence outside the organization
(ofcials and member States). However, in the absence of special provisions,
national courts must give the judgments the same effect as they give to judg-
ments pronounced by other foreign (State) courts of competent jurisdiction.
Indeed, IGO and State courts are courts of competent jurisdiction in respect
of matters falling under the organic jurisdiction of their organization or State,
respectively; in fact they are the only competent courts in these matters.
The exclusive nature of the judicial power of the organization over its
ofcials in internal disputes has been recognized by national courts in a
number of decisions where such courts have declined competence in disputes
between the organization and its ofcials arising out of the relationship of
employment.42
The exclusive nature of the judicial power of the organization extends also
to other internal disputes involving organs. No external court can assume
jurisdiction in a dispute between two organs of the same organization – or
between an organ and the organization – without the organization’s consent,

42 Amerasinghe (e.g. ICLQ XXXI (1982), pp. 750–1) has pointed out that the provisions in
the constitutions of the World Bank (Art. VII (a)), the International Development Asso-
ciation and the International Finance Corporation that these organizations may be sued
in national courts, might have been abused by ofcials to bring also internal suits, but
that this may be precluded in the US (the host State) by the International Organizations
Immunities Act and judicial precedent. It is submitted that even in other countries courts
cannot apply such provisions to internal, organic disputes.
122 chapter five

i.e. without delegation of the judicial power.43 Disputes between member States,
however, may be adjudicated by external (international) courts without the
consent of the organization, even if they arise out of matters which are sub-
ject to the exclusive legislative and administrative power of the organization.
The organization does not have exclusive (or compulsory) judicial power over
member States unless this has been specically provided, in the constitution
or otherwise, as in Article 292 of the EC Treaty. But external courts must
then apply the law of the organization in matters falling under its legislative
and administrative jurisdiction, in accordance with the applicable rules of
conict of laws described in Part Four below, where these and other relevant
matters are discussed in more detail.

5.4 Scope of the inherent jurisdiction. General

It follows from the practice described in the preceding chapters, which has
attained the force of customary law, that IGOs have general and exclusive
legislative and administrative jurisdiction in internal organic matters, and
that they also have compulsory judicial power over their organs and ofcials
as such.
This jurisdiction is inherent, i.e., it may be exercised, with the exceptions
indicated below, by all intergovernmental organizations without specic
authorization in their constitutions or otherwise. It would be a useless ction
to term this jurisdiction “implied”, in the sense that it were implied in the
constitution of each organization or the intention of its drafters. The exclusive
internal jurisdiction – like the external (legal and) international personal-
ity – appertains to all intergovernmental organizations, whether or not the
constitution so provides (which it never does generally) or its authors had it
in mind, and also if there is no formal constitution at all. The jurisdiction
is inherent in all intergovernmental organizations unless their constitutions
should provide otherwise. In the hypothetical case that the constitution were
to preclude this jurisdiction generally, then it would not be an intergovern-
mental organization.44
It is to the same practice that one must look, in the rst place, for a delimi-
tation of the jurisdiction. In cases of doubt, one may perhaps also seek some
guidance in the parallel delimitations within democratic States between those

43 And even then the external court may be prevented from assuming jurisdiction under its
own law, cf. below, chapter 5.4.
44 Reference is made, in this respect, to the parallel discussion of international personality
in chapter 2 above.
inherent jurisdiction over organs and officials 123

powers which these may exercise by executive action and those which require
formal statute.

Internal relations stricto sensu

The inherent organic jurisdiction exercised by intergovernmental organizations


comprises all relations within the organization, between and in its various
organs and ofcials as such.45 It comprises also relations with member States
(and their representatives) in their capacity of members of the organs of the
organization.46 This jurisdiction is exclusive – member and non-member States,
as well as other organizations, are incompetent ratione materiae.
Such internal relations include in the rst place organizational matters,
which usually are of an internal nature or have important internal aspects.
But functional matters also often have internal aspects.
The rules of procedure enacted for the several deliberative organs of most
organizations regulate in the rst place relations within the organ concerned,
notably the rights and duties of the individual members thereof vis-à-vis the
organ as a whole, but also relations with other organs. Thus, the terms of
reference for a subsidiary organ adopted by the superior organ establishing
it, regulate inter alia the relations between these two organs. Financial regula-
tions govern relations within the secretariat as well as relations between the
secretariat and other organs, such as the plenary organ, the executive council
and the auditors.
The same is true of concrete (executive) decisions made by the deliberative
organs or the secretariat in pursuance of or in the absence of such regulations.
Thus concrete decisions of the deliberative organs with regard to their own
procedure govern relations between the organ concerned and its members
or its subsidiary organs and/or between these inter se.
Similarly, administrative tribunals adjudicate disputes arising out of the
relationship of employment between the organization and its ofcials.

45 In its Advisory Opinion on Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal, the International Court of Justice said that the Administrative
Tribunal was functioning “within the organised legal system of the United Nations, and
dealing exclusively with internal disputes between the members of the staff and the United
Nations represented by the Secretary-General”, ICJ Reports, 1954, p. 56.
46 The organization may also have a limited inherent jurisdiction over the member States
in their capacity as members of the organization as a whole, in such matters as their
election to deliberative organs, their expulsion from the organization, or the dissolution
of the organization. However, any such inherent membership jurisdiction is conned to
certain purely organizational matters. This is not specically dealt with in this book.
124 chapter five

States, including the host State, refrain from exercising jurisdiction in these
relations. Acting either in their capacity of member States or in that of host
States, they may express legitimate views or desires – in these matters as in
any other matters pertaining to the organization – either in the deliberative
organs of which they are members or to the Secretariat. However, in certain
respects, notably appointment of ofcials, this has gone too far and taken the
form of undue intervention. While the ultimate (formal) decision rests with the
organs of the organization, which alone can exercise direct jurisdiction over
the organs and the ofcials as such, the appointment – and even dismissal – of
ofcials has in many cases been made in reality by national governments.
Such internal jurisdiction is directly and ipso facto binding only upon the
organs and the ofcials and, to a limited extent, upon the members. It is
binding upon them only in their capacity as ofcials or members of organs,
not when they act in the capacity as private individuals or States. It is thus
organic jurisdiction. Conned to organic relations, its validity cannot be
contested by any outside party. It is indirectly, or pre-judicially, binding also
upon external parties, just as the acts performed by a State in the exercise of
its organic jurisdiction must be recognized as valid by other States and their
nationals, irrespective of whether the Act of State doctrine is recognized in
other respects.

Bilateral external relations

The organic jurisdiction extends also to external relations (actes de liaison), i.e.
relations with other subjects of national or international law, such as conclusion
of contracts and treaties and performance of unilateral acts. It even extends
to those functions which the organization performs with regard to relations
between other subjects of international law inter se. But in both respects the
organization has inherent jurisdictional powers only over the organs of the
organization and not over the other party or parties.
Thus intergovernmental organizations may – and do, mostly without express
constitutional authorization – make regulations and administrative decisions
concerning the conclusion of contracts with private individuals and rms
and of treaties with States and other organizations. Thus United Nations
Children’s Fund (UNICEF), which has concluded a great number of both, has
adopted, on the one hand, general instructions and conditions for contracts
to be concluded with suppliers of goods47 and, on the other hand, a master

47 UN document E/ICEF/19. See also “Cahier des clauses et conditions générales applica-
bles aux marchés passés par le Conseil de l’Europe”, enacted by the Council of Europe,
originally on 25 January 1950 (A/745).
inherent jurisdiction over organs and officials 125

agreement to serve as a model for treaties to be concluded with the several


countries receiving assistance from UNICEF.48 These are – to the extent the
organs adopting them have so intended – binding upon those other organs
of UNICEF which negotiate each contract or treaty. But they are not bind-
ing upon the other party until it has voluntarily accepted them (or unless the
applicable system of national law refers to the internal law of the organization).
As far as the other party is concerned, they represent an offer and not a deci-
sion. Similarly, any regulations of specic decisions concerning the admission
of new members are binding upon the organs of the organization, but they
are not binding upon the State concerned until it has voluntarily applied for
or accepted membership. Furthermore, decisions to collect information from
member States and/or other outside parties with regard to a specic matter
will usually be binding orders as far as the secretariat is concerned, but they
are not binding upon the States, unless these have undertaken, in the consti-
tution or otherwise, to supply such information. Finally, international courts
may, even in the absence of constitutional authorization, make regulations,
within the general framework of their constitutions, concerning not merely
their own organization, but also concerning the detailed rights and duties of
the parties to disputes before the courts. But such regulations are not bind-
ing upon these parties until they have voluntarily accepted the jurisdiction of
the court, expressly, by treaty or declaration, or tacitly, by appearing before
the court.
It may be said in general that the organic jurisdiction – as a binding
jurisdiction – comprises also external relations, but only in so far as the acts
of the organization are concerned. Also in this eld the jurisdiction of the
organization is exclusive so far as it goes. Neither the host State, nor any other
outside authority, can instruct the organs of the organization as to whether or
how they should conclude contracts or treaties with other subjects of national
or international law, or as to the contents of such contracts or treaties. They
can only present their views and demands as the other contracting party.
There is frequently confusion on the subject of the binding or non-binding
nature of the resolutions of intergovernmental organizations because of failure
to make this distinction between their obligatory internal effect and their non-
obligatory external effect. However, some resolutions indicate this distinction
by their own terms. An example of this is General Assembly resolution 268
(III) which adopted “the annexed articles relating to the composition and
use of the Panel for Inquiry and Conciliation”. Under Article 1 this panel
“shall” consist of persons designated by member States. But in the resolution,
the member States are only “invited” to designate such persons, whereas the

48 UNTS, Vol. 65, p. 7.


126 chapter five

Secretary-General is “directed” to take charge of the administrative arrange-


ments connected with the composition and use of the panel. Otherwise the
articles of course become binding upon States only when these voluntarily
decide to make use of the panel for the purpose of settling controversies.
This distinction is, however, not always brought out so clearly as in this
case. Nevertheless, even if a resolution employs obligatory terms (“decides,”
“determines,” etc.), it usually cannot be interpreted as mandatory with regard
to States and other outside parties, unless the organization has special author-
ity to make decisions binding upon them.49 On the other hand, even if a
resolution uses “recommends” or a similar term, it must in many respects be
considered as binding so far as the Secretariat and other subordinate organs
of the same organization are concerned.50
A legal opinion of the United Nations Secretariat communicated to the
Security Council on 5 March 1948, may be of some interest in this con-
nection. The opinion suggested that the Security Council had the power to
accept the responsibilities assigned to it by General Assembly resolution 181
(II), which “recommended” to the mandatory and all other member States
the adoption and implementation of the plan of partition of Palestine. After
citing the acceptance by the Security Council of responsibilities with regard
to the proposed Free Territory of Trieste51 as precedent, the opinion went
on to say:
It is submitted that it if the Security Council deemed that it was within its
competence to accept responsibilities for the carrying out of certain provisions
of a treaty negotiated and concluded outside the United Nations, it is still more
appropriate that it should accept responsibilities for the implementation of a
plan adopted by the General Assembly.

49 Cf. for example the United Nations Flag Code.


50 Not even with regard to States is the word “recommend” always used in a non-obligatory
sense, see Sloan in BYIL (XXV) 1948, pp. 13–14. – A clause “authorizing” the Secretary-
General to provide a committee with staff and facilities (for example, General Assembly
resolution 181 (III) A in ne) is usually to be understood as obligatory. The same is true
of the usual form of resolutions convening international conferences, when these “request”
the Secretary-General to convene the conference at a given time and place. See, on the
other hand, ECOSOC resolution 667 H, operative para. 2, which “invites,” inter alia,
the Commission on Narcotic Drugs to take a certain action and the Commission’s report
on the thirteenth session (OR ECOSOC, XXVI, Suppl. No. 9, paras. 114–117), from
which it appears that it did not comply with the invitation. ECOSOC, in its report to the
General Assembly, merely “noted that the Commission had not followed the Council’s
recommendation” (OR GA, XIII, Suppl. No. 3, para. 556). It should be noted, however,
that the Commission was acting under the authority of a special treaty, not under the
Charter of the United Nations.
51 Cf. BYIL, 1961, pp. 451–2.
inherent jurisdiction over organs and officials 127

A leading ofcial of the Legal Department of the United Nations Secretariat


has commented on this statement as follows:
It may possibly be inferred from this last statement that in the view of the
Secretariat the resolution of the General Assembly added to the power of the
Security Council in regard to the partition plan. It is doubtful whether this
was the intention. In view of the prevailing opinion that a General Assembly
recommendation does not have binding force, the reference to the Assembly
resolution as an “appropriate” reason for accepting responsibilities would appear
to be more of an argument of policy than a suggestion that it is a legal source
of power.52
Even if the resolution was merely a “recommendation” with regard to the
member States, this is not necessarily signicant in respect of the organs of
the United Nations.53 It is true that the distinction between binding decisions
and recommendations may not be relevant in the case under consideration,
because, according to the Charter, the Security Council is not subordinate to
the General Assembly in so far as the maintenance of peace and security is
concerned. However, there can be no doubt that the Security Council had an
inherent power to accept the functions entrusted to it (which fell well within
the purposes of the UN and the Security Council dened in the Charter), just
as it had an inherent power to accept those entrusted to it in respect of the
proposed Free Territory of Trieste,54 and that it is irrelevant from this point of
view whether or not the resolution was binding upon the member States.

Unilateral external decisions

Like States and other entities, intergovernmental organizations cannot without


special authorization make unilateral decisions directly binding upon outside
parties. They cannot even make decisions binding upon the member States
other than in their role of members of the organs of the organization and in
some other organizational, as opposed to functional, matters, including admis-
sion to and exclusion from membership, but excluding duty to contribute to

52 Schachter in BYIL, 1948, p. 100.


53 Reference may also be made to the tendency of administrative and judicial organs of
States to observe the public policy of the government, even if the policy is not laid down
in a formally binding rule of national law. Similarly, the Universal Declaration of Human
Rights, “proclaimed” by General Assembly resolution 217 (III), may be binding upon
subordinate organs of the United Nations, even if it is not binding upon States, regarded
as a binding instruction on subordinate organs. The declaration may also become binding
as an expression of customary international law.
54 Cf. below, chapter 6.2.
128 chapter five

the budget of the organization. But States have in many cases conferred upon
intergovernmental organizations functions which involve the power to make
decisions binding upon these States themselves and/or upon their nationals or
other parties under their jurisdiction. Such powers are, of course, not inherent,
but extended – they require a specic legal basis (delegated powers).55 However,
the capacity of the organization to accept even these powers is inherent. And
once any such function has been conferred upon the organization, then it
will also, ipso facto, have the power to make such procedural and other bind-
ing decisions as are necessary for the performance of the functions (implied
powers in the proper sense – as opposed to the ctitious sense in which that
term has been used by writers – both with regard to organic jurisdiction and
to international personality). There are many examples both of legislative and
executive action in this sense.
Thus, if the constitution provides that the expenses of the organization
shall be borne by the members, then it is merely an implementation of this
provision if the organization determines the manner in which payment shall
be made. Another example is procedural decisions made by an international
court after the parties have accepted its jurisdiction. Such powers are genuinely
implied in the empowering act.
An example in the functional eld was the detailed Rules of Accounting
for German External Assets56 of the Inter-Allied Reparation Agency after
World War II. These were enacted by the Assembly of that Agency in order
to implement the provisions in Article 6 of Part I of its constitution of 14
January 1946 that such assets were to be charged against the reparation share
of the members within whose jurisdiction they were. In addition to impos-
ing purely procedural duties upon member States, these Rules delimited the
assets to be charged against reparation accounts. This delimitation was not,
and could not be, a purely legal interpretation of the constitution. It neces-
sarily involved to a great extent an arbitrary delimitation, which in essence
amounted to waivers and imposition of specic substantive obligations within
the general framework of the obligations of the member States laid down in
the constitution. Under some of the provisions57 the decision was to be made
in each specic case by administrative decision of the Secretary-General,
subject to review by the Assembly.
A more extreme example in the functional eld may be the petition with
regard to mandates. Although neither the League of Nations Covenant nor the

55 Cf. below, chapter 6.5.


56 Text in Inter-Allied Reparation Agency, Report of the Secretary-General for the Year
1949, p. 90.
57 Rules 9 B and 19 B.
inherent jurisdiction over organs and officials 129

mandates mention the right of petition, the Council of the League adopted
provisionally on 31 January 1923 rules of “procedure” under which petitions
from communities or sections of the population were to be transmitted to the
League by the mandatory, who was to attach such comments as it might con-
sider desirable.58 The International Court of Justice, in its Advisory Opinion
on the International Status of South-West Africa, considered that the inhabit-
ants had thereby acquired a “right” of petition, and that the mandatory had
similarly acquired a duty to transmit the petitions to the League of Nations,
or, later, the United Nations.59
In principle, however, accessory jurisdiction depends upon an interpreta-
tion of the treaty or other act conferring the extended jurisdiction upon the
organization. It is a case of jurisdiction implied in the extended jurisdiction
already conferred upon the organization rather than that of inherent juris-
diction as discussed in the present chapter. And it is not organic, except in
so far as it is exercised over organs and ofcials. In respect of such extended
jurisdiction, Judge Hackworth’s statement would have been basically cor-
rect: “implied powers ow from a grant of express powers, and are limited
to those that are “necessary” to exercise of powers expressly granted”,60
although the term “necessary” cannot be interpreted too restrictively, as the
examples reported above demonstrate. However, Hackworth’s statement was
not correct in the context in which it was made, viz., the advisory opinion
on Reparation for Injuries Suffered in the Service of the United Nations. The right to
exercise functional protection of its ofcials and other agents is an aspect of
the inherent organic jurisdiction and international personality of any inter-
governmental organization.

The Regulations on Registration of Treaties

The Regulations on Registration of Treaties were adopted by resolution 97 (I)


of the First General Assembly of the United Nations, with subsequent minor
amendments and additions in 1963 and 1978. They provide clear examples
of the extent of the jurisdiction of IGOs in functional matters in all the three
respects in the preceding chapters.

58 Journal Ofciel 1923, p. 200.


59 ICJ Reports, 1950, pp. 137–8, cf. p. 173.
60 ICJ Reports, 1949, p. 198.
130 chapter five

Part One of the Regulations61 contains rules concerning registration which,


without going beyond the framework of the general duty to register treaties
laid down in Article 102 of the Charter, delimit this duty positively and
negatively and impose a number of specic obligations upon the contract-
ing States. Thus the registering State or organization shall certify that the
text submitted for registration is a true and complete copy of the treaty, and
shall, moreover, submit the text in all original languages, with two additional
copies and certain additional information (Article 5). Also subsequent action
which effects a change in the parties, terms, scope or application of the treaty
shall be registered (Article 2). These provisions involve implementation of the
extended jurisdiction laid down in the Charter, (below, chapter 6) and are
binding upon member States.
Part Two of the Regulations may serve as an example of the voluntary
external relations dealt with above. It imposes upon the Secretariat a duty
to “le and record” treaties which are not subject to registration under the
terms of Article 102 of the Charter. The submission of such treaties for ling
and recording is not a duty, but a voluntary act on the part of the parties to
them, and the Regulations become binding only pursuant to such voluntary
submission.
Finally, Part Three contains provisions of an internal (organic) nature (see
above), imposing upon the Secretariat the duty to publish the treaties which
have been registered or led and recorded. Of the same character is Article
4 (1) of Part One, which imposes upon the Secretariat the duty to register
certain treaties ex ofcio.
Kelsen, although admitting that the provision of Article 102 (1) of the
Charter is insufcient, criticized Part Two, Article 2, Articles 1 (3) and 2–4
of the Regulations as going far beyond the provisions of Article 102 of the
Charter.62 However, if the jurisdiction outlined in the preceding sections of
the present chapter is accepted as inherent in the United Nations as in other
intergovernmental organizations, there does not appear to be any foundation
for such criticism. Thus the provisions in Part Two on ling and recording
of treaties not covered by Article 102 are binding (only) upon the Secretariat
and upon such States and intergovernmental organizations as voluntarily
submit treaties for registration. Furthermore, the obligation imposed upon the
contracting parties under Article 2 to register subsequent action with regard

61 See also Art. 80 of the Vienna Convention of 23 May 1969 on Treaties between States
and Art. 81 of the Vienna Convention of 21 March 1986 on Treaties between States and
International Organizations and the comments to the latter in Yearbook of the Interna-
tional Law Commission, 1987, Vol. II.
62 The Law of the United Nations, London 1950, pp. 699 and 703–705.
inherent jurisdiction over organs and officials 131

to treaties, does not go beyond the framework of the general obligation in


Article 102: indeed, it is necessary in order to make that obligation effective.
Article 1 (3), which provides that registration “may” be effected by any party
to the treaty, does not impose any duty upon non-members (or any new duty
upon members). And Article 4, which provides for ex-ofcio registration of
certain treaties, imposes new duties only upon the Secretariat. Finally, Article
3 releases the parties to treaties from their obligation to register if registration
has already been effected, and imposes no obligation upon such parties.

Constitutional limitations

Although no constitutional authorization is required in order to enable an


intergovernmental organization to exercise organic and other inherent orga-
nizational jurisdiction, such jurisdiction cannot, of course, be exercised in
conict with any provision of the constitution.
Any constitutional provision which might preclude exercise by the orga-
nization of its organic jurisdiction in any particular respect would clearly
be binding upon the organization. But it would probably be hard to nd
examples of a provision precluding organic legislative or executive functions,
except by way of delegation, cf. below. The most frequent constitutional pro-
visions which expressly authorize the enactment of rules of procedure and
staff regulations and the establishment of subsidiary organs do not appear
to imply any such limitations,63 unless they were to be interpreted a contrario
in respect of regulations on other matters or by other organs, which in most
cases would not be justied. If a constitution expressly authorizes certain of
its organs to enact rules of procedure and to establish subsidiary organs, this
could not usually be, and has not in practice been, interpreted a contrario to
mean that the other organs may not do so. Thus the Trusteeship Council
has established subsidiary organs, despite the fact that the UN Charter only
authorizes the other Councils and the General Assembly to do so. Such pro-
visions may at most be regarded as provisions concerning the distribution of
powers within the organization, and may then imply that the other organs
may not themselves establish rules or procedure of subsidiary organs. But
even in this respect the provisions could not be, and have not in practice
been, interpreted a contrario. In other words, even if not directly harmful, such
provisions are certainly useless.

63 Nor do they usually confer upon the organization any powers beyond those it would have
had without express provision.
132 chapter five

Another matter is that all constitutions themselves contain a number of


provisions on organizational and other internal subjects – including member-
ship, elections, voting, staff and nance. Such regulations and administrative
decisions of the organization on these subjects must never conict with the
rules already laid down in such constitutional provisions.
Constitutional provisions concerning the manner in which decisions shall be
made must also be observed in the enactment of regulations and in the mak-
ing of executive decisions. Difculties may arise in this respect with regard to
the application of the rules of voting. These often prescribe a simple majority
for procedural decisions and a qualied majority or unanimity for substantive
decisions, without distinguishing, in the latter case, between internal organic
jurisdiction and extended jurisdiction.64 Such provisions ignore the fact that
the motivation to apply a rule of qualied majority or unanimity is often
stronger with regard to extended functional matters than with regard to non-
nancial internal organizational matters, because the former are more likely
to affect the member States.

Public order of the host country

Like States, intergovernmental organizations cannot, of course, exercise their


jurisdiction in a manner which would violate the legitimate rights of States.
In particular they may not upset the security or the public order of the host
country. Article 25 of the Headquarters Agreement between the International
Labour Organization and Switzerland provides:

1. Nothing that the present Agreement shall affect the right of the Swiss
Federal Council to take the precautions necessary for the security of
Switzerland.
2. If it considers it necessary to apply the rst paragraph of this Article the
Swiss Federal Council shall approach the International Labour Organiza-
tion as rapidly as circumstances allow in order to determine by mutual
agreement the measures necessary to protect the interests of the Interna-
tional Labour Organization.

64 See, for example, Art. VI of the constitution of the (now inactive) Caribbean Commission
of 30 October 1946.
inherent jurisdiction over organs and officials 133

3. International Labour Organization shall collaborate with the Swiss authori-


ties to avoid any prejudice to the security of Switzerland resulting from its
activity.65

With regard to the Holy See during the period 1871–1929, Article 17 of the
Italian Law of Guarantees provided, inter alia, that the acts of the ecclesiasti-
cal authorities demeurent sans effet [in Italy] s’ils sont contraires aux lois de l’Etat ou
à l’ordre public, ou s’ils lèsent les droits des particuliers, et ils memeurent soumis aux lois
pénales s’ils constituent un delit.
However, the validity of this Law was never recognized by the Holy See. At
any rate, acts of organic jurisdiction could not be considered invalid merely
because they were contrary to Italian law, in so far as they were addressed to
the central organs of the Holy See, because Italian law was inapplicable to
organic matters of the Holy See (incompetence ratione materiae).

Delegation

In some cases certain legislative administrative and/or judicial powers of the


organization have been delegated to another authority, usually to the host
State or to another intergovernmental organization. Such delegation may
have been laid down in the constitution, or the organization may voluntarily
and without constitutional authorization delegate specic aspects of its juris-
diction to the host State or to the other authority concerned. This power of
delegation has been recognized, in its legislative aspect, by the Italian Court of
Cassation. In a dictum the Court said that substantive or procedural State law
may be applicable in the organizational relations of the organization when its
constitution or its internal regulations “contain a reference, by incorporation,
to rules of some other system”.66
The major examples of delegation by constitutional provision are the orga-
nizations of the dependent type, where jurisdiction over its Secretariat has
been delegated to the host State.67 But the examples of a limited delegation
by voluntary agreement, without basis in specic constitutional provision, are
probably more frequent. Organizations have found it convenient to submit in

65 UNTS XV, p. 392, French text in Martens: Nouveau Recueil Général, XVIII, p. 41. Cf.
also Art. 33 of the Treaty establishing the European Union on limits to EU’s extended
jurisdiction.
66 Proli v. International Institute of Agriculture, Rivista di diritto internazionale, XXIII
(1931), pp. 386–91.
67 See, for example, the constitutions of the Berne Union, Art. 21 (2), and of the Paris Union,
Art. 13 (1).
134 chapter five

particular respects to the well-established law or administration of the host


State.68 Thus a number of organizations have decided to take advantage for
their ofcials of the social insurance system of the host country, rather than
establish rules and an administration of their own in this respect.69 Fur-
thermore the United Nations has, by an agreement with the United States
approved by General Assembly resolution 454 (V), entrusted the operation
of its Post Ofce in the headquarters district to the United States Post Ofce
Department.70 And Inter-American Conferences were, before the switch from
the Pan-American Union to the Organization of American States, convened,
not by the Pan-American Union or its Governing Board, but by the govern-
ment of the country where the conference was to be held. In none of these
cases was there any constitutional provision authorizing delegation of the
power concerned.
Delegation may also be to other intergovernmental organizations. The
United Nations Joint Staff Pension Fund is an example of this. By joining
it, the specialized agencies delegate legislative powers over their ofcials in
respect of pensions (and relevant salary deductions) to the United Nations
General Assembly, as well as legislative and executive powers to the Joint

68 Cf. § II (1) of the Agreement of 13 January 1948 between the Preparatory Commission for
the International Refugee Organisation (PCIRO) and the French Government Concern-
ing the Establishment and Activity of the PCIRO Ofce in France may be cited in this
context. It reads: “PCIRO shall fulll the functions assigned to it and authorized under
its Constitution, and shall, in the discharge of such duties, be subject to the laws and
regulations in force in French home territory.” Presumably, this provision envisaged only
territorial jurisdiction, and was thus not an example of delegation of organic jurisdiction
(cf. also the agreement of the same date between the same parties granting to the PCIRO
the usual privileges and immunities). However, the provision was not clear. It was given a
different form in other agreements. Thus it was provided in para. 3 of the similar agree-
ment of 21 August 1948, between the International Refugee Organisation (IRO) and the
Commander-in-Chief, European Command, as to IRO’s Operation in the U.S. Area of
Control in Germany: “IRO will carry out its activities as authorised and required by its
Constitution subject to the terms of this Agreement. It will operate in accordance with
military regulations, military government enactments and general laws in force in the
U.S. area of control, but will not be subject to specic military or military government
direction in regard to its routine activities, except as provided in Paragraph 1.b. (relating
to “the supreme authority of the Commander-in-Chief, European Command, as the
Occupation Authority, and his responsibility for the maintenance of law, order, security
and the economy in the U.S. area of control”).
69 Cf. below, chapter 5.5.
70 Postal Agreement between the United Nations and the United States approved by General
Assembly resolution 454 (V). Externally, however, the United Nations Postal Administra-
tion remains a separate postal administration; represented by the United Nations, for
example in the Universal Postal Union, see Agreement between the United Nations and
the Universal Postal Union of 4 July 1947, Art. II.
inherent jurisdiction over organs and officials 135

Staff Pension Board.71 They also have delegated the relevant judicial powers
to the United Nations Administrative Tribunal.72 Otherwise most special-
ized agencies in Europe have delegated general judicial power with regard
to their relationships of employment to the Administrative Tribunal of the
International Labour Organization.73 In some cases there is express authority
in the constitution of the specialized agency concerned for the establishment
of common services,74 in other cases there is merely a provision that they
shall “establish effective relations and co-operate closely” with other inter-
governmental organizations,75 and in yet other cases there is not even that.
Even the specialized agencies themselves have not been expressly authorized
in their constitutions to do more than appoint the staff of the Secretariat in
accordance with staff regulations to be adopted by the organization,76 and in
some cases not even that.77
Any delegation which is not laid down in the constitution in a mandatory
way can of course be revoked, subject to the provisions of any agreement
which the organization may have concluded with the authority to which
delegation has been effected.
It will depend upon the circumstances of each particular case to what extent
the host country, or the international organ(ization) to whom the power was
delegated, may act at its own discretion in the exercise of delegated jurisdic-
tion, and to what extent it is bound by the special position and the decisions
of the delegating organization. The United Nations Administrative Tribunal,
in adjudicating disputes between the United Nations Joint Staff Pension
Fund and an ofcial of a specialized agency, shall give “full faith, credit and
respect” to “the proceedings, decisions and jurisprudence of the Administra-
tive Tribunal, if any, of the Agency concerned relating to the staff regulations
of that agency, as well as to the established procedures for the interpretation
of such staff regulations.” Reference may also be made to the action taken
by Brazil with regard to the convocation of the Inter-American Conference

71 Regulations of the United Nations Joint Staff Pension Fund (adopted by General Assembly
resolution 248 (III) and amended by a stream of subsequent resolutions) Arts. 3 (c) ff.
72 By bilateral agreements (see for example UNTS Vol. 214 p. 388) concluded pursuant to
General Assembly resolution 678 (VII), cf. Art. 48 of the Regulations of the Fund.
73 Cf. Art. II (5) of the Statute of the Tribunal and, for example, ICJ Pleadings, Judgments
of the ILO Administrative Tribunal (1956) pp. 17–18.
74 UNESCO constitution Art. VI (6).
75 WHO constitution, Art. 70. See also IMO constitution Arts. 60–61.
76 WHO constitution, Art. 35. But see ICAO constitution, Art. 58, and IMO constitution,
Art. 22.
77 FAO constitution, Art. VIII (1). The constitutions of the Fund, Art. XII 4, and the Bank,
Art. V 5, merely provide that the Managing Director (Fund) or the President (Bank) “shall
be responsible for the organization, appointment and dismissal” of the staff.
136 chapter five

for the Maintenance of Continental Peace and Security at Rio de Janeiro in


1947. Before invitations were sent out, a new government came into power
in Nicaragua “under abnormal circumstances.” It had not been recognized
by Brazil, or by most of the other member States. Rather than discriminate
between the member States on the basis of its own relations with them, Bra-
zil delegated the task of inviting the member States back to the Governing
Board of the Pan-American Union, which, after extended discussion, nally
decided not to invite Nicaragua.78

Distinct legal units as parts of the organization

Although not appropriately acknowledged by legal writers, the organic juris-


diction has apparently not given rise to serious difculties in practice, so long
as it is exercised over organs which only exist as parts of the organization.
In such cases no outside authority, including the member States and the host
States, will easily have occasion to challenge the exclusive authority of the
organization.
The matter is more readily brought to an issue when the organic jurisdic-
tion is exercised over such parts of the organization as have not been created
by the organization itself, but which also have a legal existence outside the
organization, viz. ofcials, representatives of member States and the member
States themselves. These are in a position themselves to challenge the jurisdic-
tion of the organization. Moreover, they are subject to the jurisdiction of the
organization only in their position as parts of the organization, a fact which
gives rise to special problems of delimitation. The problems which arise in
this connection – and some others – are considered especially with regard
to ofcials below.

78 Inter-American Conference for the Maintenance of Continental Peace and Security, Report
on the Results of the Conference, submitted to the Governing Board of the Pan-American
Union by the Director-General (Pan-American Union, Washington 1947), pp. 5–6.
inherent jurisdiction over organs and officials 137

5.5 Organic jurisdiction over officials. Relationship of


employment

Introduction

It is necessary to enter further into the jurisdiction which the organizations


exercise over their ofcials, both because this is perhaps the most practical
aspect of the inherent organic jurisdiction and because it illustrates well sev-
eral of its general aspects. Special aspects of this have been dealt with above,
including appointment and dismissal and delegation. In respect of ofcials,
special problems of delimitation of the jurisdiction arise, because ofcials
also have a legal existence outside the organization, where they are subject to
State jurisdiction. So are also delegates, as members of deliberative organs,
but they are subject to the jurisdiction of the organs in procedural matters
(right to speak, speaking time, voting, time of meetings etc.).
The relationship of employment in IGOs – like that of States – has cer-
tain contractual elements (grade and, thereby, salary; duration: permanent
or temporary), but in most respects it is governed by the regulations and
rules enacted by the organization – i.e. it is statutory. This is true of regular
international ofcials. However, there are many special types of employees
where the contractual element is stronger and/or where local private labour
law applies in lieu of the organization’s public administrative law.79 In the
following we shall concentrate upon the regular international ofcials.
These are, as already stated, in their capacity of international ofcials,
subject to the exclusive organic jurisdiction of the organization. This is an
important aspect of their international character, which is expressly conrmed
in Article 100 of the UN Charter and similar provisions in some other con-
stitutions. In their private capacity, however, the ofcials remain subject to
the territorial jurisdiction of the host State and the personal jurisdiction of
their national State, except in so far as they enjoy privileges and immunities
in respect of private relations, in which case the organization may have to
ll the gap by extending its jurisdiction to cases where it does not wish to
waive the ofcial’s immunity. The ofcials are thus subject to the concurrent

79 Cf. Diez de Velasco: Las organizaciones internacionales, 14th ed., Madrid 2006, pp.
114–20. Under Title I, Regulation 1 (d) in the OECD Staff Regulations 1, rules and
instructions applicable to ofcials of the organization, local staff is subject to local (national)
law if they are “to carry out transactions of a commercial nature”. Cf. also UNRWA’s
“General Conditions of Service Contract”.
138 chapter five

jurisdiction of different communities.80 The limit between the jurisdiction


of the organization and that of the States concerned is drawn according to
functional criteria.81
As for the question of who are international “ofcials” and the extension
of the organic jurisdiction to other categories of personnel working for the
organization82 – and on many other aspects of the position of international
ofcials – reference is made to an extensive literature on the international civil
service,83 and to the brief examples given below, in Part Four in connection
with the question of applicable law. In particular, there is a basic distinction

80 Cf. the other examples of concurrent jurisdiction by several sovereign entities over the same
persons above, chapter 4. – In its Advisory Opinion on Reparation of Injuries Suffered
in the Service of the United Nations the International Court of Justice stated that “it is
not possible, by a strained use of the concept of allegiance, to assimilate the legal bond
which exists, under Article 100 of the Charter, between the Organization on the one hand,
and the Secretary-General and the staff on the other, to the bond of nationality existing
between a State and its nationals” (ICJ Reports, 1949, p. 182).
81 Cf. Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp.
113–5 on the position of members of UN forces.
82 See e.g. the relatively wide denition of “United Nations personnel” and “associated per-
sonnel” in the Convention on the Safety of United Nations and Associated Personnel” of
9 December 1994, Article 1. See also Article 12, 2–3 of the Supplementary Agreement
between Norway and NATO of 3 October 1968 which provided that NATO-regula-
tions shall govern “terms and conditions of employment” for “NATO-civilians” whereas
Norwegian Law shall govern those of “Local Wage Rate personnel”. Cf. Elvan and Ost:
“Kollisionsrechtliche Probleme bei Arbeitsstreitigkeiten zwischen einer Internationalen
Organization und ihren Ortskräften, dargestellt Beispiel der Arabischen Liga“, Praxis des
Internationalen Privat- und Verfahrensrechts, Vol. 15, Bielefeld 1995, pp. 1–8.
83 On the law as applied by IGO administrative tribunals, see the books by the Executive
Secretary C.F. Amerasinghe: The Law of the International Civil Service, 2nd ed., Oxford
1994, two volumes, and Case Law of the World Bank Administrative Tribunal, Oxford
1989, and Pescatore: “Les principes généraux du droit régissant la fonction publique
internationale (Etude de jurisprudence comparée) in Hacia un Nuevo orden internacio-
nal: Estudios en homenaje al Profesor Don Manuel Diez de Velasco, Madrid 1993, pp.
565–86. On the relationship more broadly, see Alain Plantey: Droit et pratique de la
fonction publique internationale, Paris 1977, English edition entitled: “The International
Civil Service”, New York 1981, and Spanish edition: “Derecho y práctica de la función
publica”, Madrid 1981; Schermers and Blokker, International Institutional Law, 4th ed.,
Leiden 2003, pp. 314–86; D. Bowett: The Law of International Institutions, 4th ed., Lon-
don 1982, pp. 99–107; M. Diez de Velasco: Las organizaciones internacionales, Madrid
2006, pp. 114–120; C.F. Amerasinghe: Principles of the Institutional Law of International
Organizations, Cambridge 1996, pp. 327–367; International Administration, Law and
Management Practices in International Organizations, ed. Chris de Cooker, Dordrecht
1990, loose-leaf with subsequent supplements; M.B. Akehurst: The Law Governing
Employment in International Organizations, Cambridge 1967; and I. Seidl-Hohenveldern:
“Die Rechtstellung der internationalen Beamten”, Anzeiger der phil.-historischen klasse
der österreichischen Akademie für Wissenschaften, 124 Jahrgang (1987), pp. 184–99; J.D.
Busch: Dienstrecht der Vereinten Nationen, Das Common System in Wiese (ed.): Handbuch
des öffentliches Dienstes, IV (2), Cologne 1981. The pioneer work on the subject was S.
Basdevant: Les fonctionnaires internationaux, Paris 1931.
inherent jurisdiction over organs and officials 139

between international ofcials and local personnel, which is hired under local
law or under conditions prescribed by the organization following local practice
to the extent possible.84

Performance of ofcial duties. Functional protection

The organic jurisdiction also covers the rights and duties of the ofcial in
the performance of his functions. The exclusive nature of this jurisdiction
has been expressly conrmed in a number of post-war constitutions. Thus
it is provided in Article XII, 4 of the constitution of the European Space
Agency of 30 May 1975:
The responsibilities of the Director General and the staff in regard to the Agency
shall be exclusively international in character. In the discharge of their duties
they shall not seek or receive instructions from any government or from any
authority external to the Agency.
Each Member State shall respect the international character of the responsibili-
ties of the Director General and the staff, and shall not seek to inuence them
in the discharge of their duties.
Similar provisions are contained in Article 100 of the Charter of the United
Nations, in Article 37 of the WHO constitution and in the constitutions of
many other organizations. The principle was conrmed, in respect of the
International Court of Justice, by Article IX of the 1946 agreement between
the UN and the Carnegie Foundation concerning the use of the Peace Palace
at the Hague (“Such ofcials shall in no way be under the authority of any
other institution”). However, this is general customary law, applicable to all
intergovernmental organizations which have no special deviating provisions.
In its internal aspects, the organic jurisdiction of intergovernmental orga-
nizations over their ofcials with regard to the direct performance of their
duties is not known to have been openly contested legally, whether or not the
organization concerned has relevant constitutional provisions. Nevertheless, the
jurisdiction and the independence of intergovernmental organizations has in
fact (politically) been subject to serious challenge in its administrative aspect
from several governments, notably in respect of national ofcials “seconded” to
the organizations for a limited period of time.85 The fascist and Nazi govern-
ments before World War II and post-war governments in communist countries

84 See e.g. para. 20 of the Regulations for the UN Force in Cyprus of 24 April 1964.
85 See Seidl-Hohenveldern: “The Secondment of National Ofcials to International Orga-
nizations”, Hacia un nuevo orden internacional, Estudios en homenaje al Profesor Don
Manuel Diez de Velasco, Madrid 1993, pp. 689–700.
140 chapter five

and the United States (during the cold war witch-hunt for “communists
and fellow travellers”) in fact frequently appointed, instructed and withdrew
ofcials.86 Indeed, many posts were lled more or less permanently with people
from the same country, appointed and replaced in fact by their governments.
There are still many elements in the practice of seconding national ofcials
for temporary service with international organizations which can give certain
member States undue inuence in the international secretariats.87
In its external aspects the exclusive jurisdiction of the organization was
openly questioned in connection with the UN agents killed on service in
Palestine in 1948 after the British surrender of the mandate over that coun-
try. Their mission followed the adoption by the UN of the Plan of Partition.
It was considered by some to be for the national State of the agent, rather
than for the organization, to afford him diplomatic protection vis-à-vis the
State responsible for the injury. They therefore maintained that any claim for
reparation in respect of the damage caused to the agent should be presented
by his national government. However, the International Court of Justice, in
its advisory opinion on Reparation for Injuries Suffered in the Service of the United
Nations, held, by eleven votes to four:
That, in the event of an agent of the United Nations in the performance of his
duties suffering injury in circumstances involving the responsibility of a Member
State [or of a State which is not a member], the United Nations as an Organisa-
tion has the capacity to bring an international claim against the responsible de
jure or de facto government with a view to obtaining the reparation due in respect
of the damage caused to the victim or to persons entitled through him.88
In reply to a second question as to how such action by the United Nations
was to be reconciled with such rights as may be possessed by the State of
which the victim was a national, the Court held, by ten votes to ve:
When then United Nations as an Organisation is bringing a claim for repara-
tion of damage caused to its agents, it can only do so by basing its claim upon
a breach of obligations due to itself; respect for this rule will usually prevent a
conict between the action of the United Nations and such rights as the agent’s
national State may possess, and thus bring about a reconciliation between their
claims; moreover, this reconciliation must depend upon considerations applicable
to each particular case, and upon agreements to be made between the Organisa-
tion and individual States, either generally or in each case.89

86 See Schermers and Blokker, op. cit., pp. 368–9, with citations.
87 See inter alia Theodor Meron: ”L’indépendence de la fonction publique et son avenir” in
Institut international d’études diplomatiques: L’avenir des organisations internationales,
Paris 1984, pp. 221–40.
88 ICJ Reports, 1949, p. 187, cf. pp. 181–185.
89 Ibid. p. 188, cf. pp. 185–186.
inherent jurisdiction over organs and officials 141

Pursuant to this opinion the UN, after consultation with the governments of
the States of which the victims were nationals, presented claims to the gov-
ernments considered responsible for the injury. In some cases these accepted
responsibility and made reparation. In other cases they denied that the deaths
had been caused by persons for whom they were responsible. But none of
them denied the right of the UN to exercise functional protection. This pro-
cedure was followed, not merely with regard to regular staff members,90 but
also with regard to ad hoc agents.91 This was in conformity with the following
statement in the Advisory Opinion:
The Court understands the word “agent” in the most liberal sense, that is to
say, any person who, whether a paid ofcial or not, and whether permanently
employed or not, has been charged by an organ of the Organisation with car-
rying out, or helping to carry out, one of its functions – in short, any person
through whom it acts.92
Indeed, the UN has exercised functional protection also of the members of
its military peace-keeping forces composed of national contingents,93 although
these are not considered as UN “ofcials” in the technical sense.
In the latter and in certain other cases such functional protection has been
expressly provided for in regulations enacted by the Organisation.94 However,
protection was afforded long before these regulations had been enacted. More-
over, the regulations could not be based upon specic provisions of the consti-
tution, because there were none.95 Indeed, in no case where an organization

90 The rst staff member to be killed in the service of the United Nations was Ole Helge
Bakke, a Norwegian national. The claim for reparation was presented to the Government
of Jordan by the United Nations, after consultation with the Norwegian Government.
However, the Jordanian Government declined responsibility, maintaining that the shot
which killed Mr. Bakke had not been red by an Arab soldier. See Annual Report of the
Secretary-General, 1950–51, p. 189, and 1951–52, p. 160, cf. ibid. 1952–53, pp. 144–145;
1953–54, p. 109; OR GA. V Annexes II, Agenda item 50; OR GA, VII. Sixth Committee,
357th meeting, pp. 293–299, and A/2180, 12 September 1952.
91 Reparation for the assassination of the United Nations Mediator in Palestine, Count
Bernadotte, a Swedish national, and Colonel Sérot, a French national, was claimed by
the United Nations, after consultation with the Swedish and French governments. The
government of Israel accepted responsibility and paid the reparation demanded.
92 ICJ Reports 1949 p. 177. See Report of the Secretary-General of 5 September 1950, OR
GA, V, Annexes II, A.i. 50; Annual Report of the Secretary-General 1952–53 p. 145, cf.
ibid. 1950–51 p. 189, 1951–52 p. 161, and A/2180.
93 See Seyersted, United Nations Forces, Leyden 1966, pp. 112–6.
94 General provisions were contained in the earlier OECD Personnel Regulation 5b, in
UNEF Regulation 30 and in Regulation 25 of the Regulations for the United Nations
Force in the Congo. A limited provision was included in the common Art. 24 of the Staff
Regulations of the European Communities.
95 The UN and the specialized agencies and some other organizations have express provisions,
not in their constitutions, but in their general conventions on privileges and immunities,
142 chapter five

has exercised the power of functional protection is there known to have been
any provision in its constitution “conferring” such power upon it.
The United Nations has extended its protection also to matters which are
not directly related to the ofcial functions.96 Indeed, the relevant United
Nations Regulations refer, not to “functional”, but to “legal” protection. As
stated by Eagleton: “the United Nations can, of course, present no claim based
merely on nationality, since it has no nationals; but it may ask reparation for
losses suffered by its agent as an individual.” Eagleton also stated that “where
conict arises between the claim of the State of nationality and the claim of
the United Nations, the claim of the United Nations should have priority”
because it “is upon a higher level than that of the State of nationality, since
it is based upon the protection of its agents, whereas the claim of the State
could only be based upon protection of one of its nationals.”97 In cases related
to the ofcial functions this conforms with the superseding force of organic
jurisdiction over (territorial and) personal jurisdiction.

Appointment and dismissal of ofcials. Their independence. Political deviations

The power of the organization to appoint ofcials98 is usually expressly laid


down in the constitution, but even if it is not,99 it rests exclusively with the
organization. It implies, as a necessary corollary, also the power to dismiss
ofcials.100 The Preparatory Commission of the United Nations decided in
1945 that this power should vest exclusively in the Secretary-General, after
rejecting a proposal that appointment should be subject to the consent of the

Arts. VII and VIII respectively, on the issuance of laissez-passer to ofcials to serve as
travel documents in lieu of or in addition to national passports. However, not all member
States acceded to these conventions. Accession is no condition for the issuance of travel
documents or other documents identifying agents or the organization, but a majority of
the States have acceded the Convention on the Privileges and Immunities of the United
Nations of 13 February 1946 and to the Convention on the Privileges and Immunities
of the Specialized Agencies of 21 November 1947.
96 See Seyersted, op. cit., p. 116.
97 Recueil des Cours de l’Académie de droit international de la Haye, 1950 I, p. 381, cf.
pp. 359–65.
98 On “Non-conrmation of Probationary Appointments”, see C.F. Amerasinghe and
D. Bellinger in BYIL 1983, pp. 167–206. As for the freedom of the organization in
electing individuals as members of deliberative organs, see the UNESCO (Constitution)
Case in Annual Digest of International Law Cases, 1949, Case No. 113.
99 Art. 21 of the Statute of the Permanent Court of International Justice provided only
for appointment of a Registrar.
100 Judgment No. 19 of the United Nations Administrative Tribunal and Judgment No.
23, Judgments of the United Nations Administrative Tribunal, Numbers 1–70 (United
Nations, 1958), at p. 73.
inherent jurisdiction over organs and officials 143

government of the member State of which the candidate was a national.101


Even the much (and rightly) criticised Commission of Jurists appointed by the
Secretary-General in 1952 (during the McCarthy-period of communist hunt)
to advise him on certain questions arising in connection with his personnel
policy stated that “the independence of the Secretary-General and his sole
responsibility to the General Assembly of the United Nations for the selec-
tion and retention of staff should be recognised by all member nations and
if necessary asserted, should it ever be challenged”.
A different matter is that several international ofcials have been appointed
by the organization from national ofcials who are then “seconded” by their
governments for service with the organization for a limited period (usually
not more than ve years).102 These are under the same exclusive jurisdiction
and power of instructions of the organization as are its permanent ofcials,
but in practice seconded ofcials, notably those from communist countries and
from the United States during the cold war, were more subject to undue pres-
sure from their national governments than were other international ofcials.
Member States frequently make representations and submit information
to the organisation in order to obtain the appointment of certain of their
nationals as ofcials, and in some cases even to obtain their non-appoint-
ment or dismissal. Some big powers have even exercised pressure or taken
it for granted that if their nationals on the secretariat staff resign, they shall
be succeeded by another national selected by them. Such representations
have to some extent been complied with by the organization.103 However,
the decision rests with the latter, and it is the organization, not the member
State, which makes the appointment. As the second Secretary-General of the

101 Repertory of Practice of United Nations Organs, V, pp. 233–234; Report of the Sec-
retary-General. OR GA, VII, Annexes II, A.i. 75, pp. 4 ff.
102 See I. Seidl-Hohenveldern: “Die Abstellung nationaler Beamter zu Internationalen
Organisationen” in Verantwortung in unserer Zeit, Festschrift für Rudolf Kirchschläger,
Vienna 1990, pp. 211–20.
103 On the practice of the League of Nations, see Ranshofen-Wertheimer: The International
Secretariat, Washington 1945, pp. 326–327. As for the United Nations, see, in addi-
tion to the citations in the preceding notes, the three reports of the Secretary-General
on personnel policy in OR GA VII, Annexes Vol. II, Agenda item 75; OR GA XIII,
Annexes, A.i. 51, OR GA XII, Annexes A.i. 51, and Repertory of Practice of United
Nations Organs under Art. 101 (Vol. V of Suppl. No. 5). On the representations which
successfully prevented Italian and German plans to deport Jews and expel Allied Nationals
among the ofcials of the International Institute of Agriculture (the pre-war fore-runner
of FAO), see van Haastert: Het Internationaal Landbouw Instituut en de Organisatie
voor Voedsel en Landbouw, s’Hertogenbosch 1947, p. 107 and International Institute
of Agriculture: The Legal and Moral Position and the Diplomatic Prerogatives of the
International Institute of Agriculture, Rome 1943, pp. 45 et seq. On NATO, see R.S.
Jordan: The NATO international staff/secretariat, London 1967.
144 chapter five

United Nations, Dag Hammarskjöld, stated to the press in 1953, any govern-
ment may express its views or desires, but the Secretary-General makes the
nal decision in complete independence. The inconclusiveness of national
administrative decisions and regulations was also reected in his nal report
of 1957 on personnel policy, which stated:
There are two basic underlying principles. These are:
(a) The Secretary-General, in deciding whether to employ or terminate a staff
member, must have sufcient information on which to make an independent
decision; he cannot act on charges unsupported by satisfactory evidence. This
principle derives directly from the Secretary-General’s responsibilities and pre-
rogatives under the Charter with respect to the appointment and termination
of the staff, and has been recognised by the General-Assembly;
(b) The standards to be applied by the United Nations are those of the Charter,
and the tests to be applied in regard to these standards are not necessarily the
same as those which might be applied by a Member State in passing on ques-
tions of suitability for government employment. This principle is also based on
the Charter and decisions of the General Assembly.104
As for local personnel, the situation was described as follows in paragraph 27
(c) of the host agreement of 27 November 1961 between the United Nations
and the Congo:
Toute décision concernant le recrutement, la continuation ou la cessation de
l’emploi de tout membre du personnel local ressortit à l’autorité exclusive du
Représentant spécial du Secrétaire-général; ce dernier examine, avant de se
prononcer, tous les éléments qui lui sont présentés.
The question of the exclusiveness of the power of intergovernmental orga-
nizations to dismiss their ofcials was subject of a decision of 24 April 1929
by the French Conseil d’Etat.105 That court upheld a decision by the French
Ministry of War refusing to interfere with a decision by the administration of
the railways in the Rhineland under allied occupation, dismissing a French
national from his service with that administration. It was held that the admin-
istration, which had been instituted by a decree of the Inter-Allied Rhineland
High Commission, was an “organisme international dont les décisions ne relevaient
pas du Ministre de la Guerre.” The latter was therefore right in rejecting, “comme
porté devant une autorité incompétente,” the complaint of the ofcial concerned.
Similarly, in a decision of 20 February 1953, the Conseil d’Etat declared itself
incompetent in respect of a complaint by an ex-ofcial of the International
Institute of Intellectual Co-operation against the French Government based

104 OR GA, XII, Annexes, A.i. 51, p. 21.


105 Re Marthoud, Recueil des arrêts du Conseil d’Etat, 1929, p. 409.
inherent jurisdiction over organs and officials 145

on the latter’s failure to support his claims against the Institute and his alleged
entitlement to a position with the UNESCO when this organization succeeded
the Institute. The Conseil d’Etat declared that the relations of the French
Government with international organisations, and its acts with respect to the
candidature of French nationals to such organisations, like the appointments
themselves, were outside the competence of the Conseil d’Etat.106
The question of decisions to dismiss national judicial proceedings based on
a lack of jurisdiction has also been raised in international courts. In the case
of Waite and Kennedy v. Germany,107 the European Court of Human Rights
dismissed the claim that the respondent State had infringed the applicants’
procedural rights (under the European Convention on Human Rights) by
not allowing their claims against the European Space Agency (ESA) on their
status of employment with ESA to be tried before German courts for lack of
jurisdiction ratione personae. The ECHR observed in a general sense that:
(t)he attribution of privileges and immunities to international organisations is an
essential means of ensuring the proper functioning of such organisations free
from unilateral interference by individual governments (para. 63).
(t)he test of proportionality cannot be applied in such a way as to compel an
international organisation to submit itself to national litigation in relation to
employment conditions prescribed under national labour law. To read Article
6 § 1 of the Convention and its guarantee of access to court as necessarily
requiring the application of national legislation in such matters would, in the
Court’s view, thwart the proper functioning of international organisations and
run counter to the current trend towards extending and strengthening interna-
tional cooperation (para. 72).
Indeed, while organizations have managed to defend their exclusive legisla-
tive and judicial power, their exclusive administrative power with regard to
appointments and dismissal has been seriously threatened. The rst – and
the most formal and open – challenge was an Italian (fascist) law of 16 June
1927 which, subject to heavy punishment, required Italian nationals (not
merely governmental ofcials) to obtain permission to enter international
service, and to quit if ordered by the government. The (rst, fascist) Peron
regime in Argentine after World War II pressed IGOs to refuse to employ
Argentinean anti-peronists.

106 Re Weiss, Journal de droit international (Clunet), Vol. 81 1954, p. 744, with a note by
Huet.
107 Judgment 18 February 1999, application no. 26083/94. Since Waite and Kennedy had
not been directly employed by ESA, but had worked there under contract with a third
person, the German courts did not consider the question of competence ratione materiae,
but the Federal Labour Court observed the “rather broad competence of international
organizations to regulate staff matters” cf. para. 25 of the cited judgment.
146 chapter five

Much more serious consequences had the practice displayed during the cold
war by the communist States and the United States. They did not appreciate
the principle of the independence of international ofcials and wanted in
reality to decide appointments and dismissals of their nationals in secretariat
posts within determined quotas and even to instruct both them and nationals
of allied States in the performance of their functions. While the administra-
tive tribunals were able to intervene against abuse in respect of dismissals,
they could do nothing in respect of appointments.
During the rst years of the UN, Secretary-General Trygve Lie pursued
a correct course, appointing the ofcials of the Secretariat independently.
Among the ofcials were a number of Eastern Europeans who really were
political refugees from their countries and who were appointed because of
their qualications, including the linguistic one. On the other hand there
were several US nationals who had a more liberal or radical conviction than
the US government and who were accused by McCarthy-adherents of being
communists or “fellow travellers”.108
The administrative tribunals of the organizations concerned determined
that several dismissals were not authorised in the terms of appointment (the
staff regulations) or involved an abuse of right. They were backed up by two
advisory opinions of the International Court of Justice.109 However, despite
these decisions, the new trend survived and spread to other organizations and
other countries, including all communist countries.
Moreover, the tribunals did not call for reinstatement, but gave the Sec-
retary-General (or the Director-General) the choice between reinstatement
and nancial compensation. So these – and others after them – chose the
latter.110 Furthermore, in its relevant judgments, the United Nations Admin-
istrative Tribunal made a preliminary statement to the effect that “under
the terms of its Statute the Tribunal is not competent to pass judgment on
the validity, in relation to the Charter, of an agreement made between the
Secretary-General and a Member State, whatever inuence this agreement
might actually have had on the decision taken in respect of the Applicant”.

108 See also Bowett, The Law of International Institutions, 4th ed. London 1982, pp. 97–99. –
During the communist-hunt in the United States during the McCarthy-period in the
early fties – Trygve Lie unfortunately gave in to pressure from the U.S. government
to discharge such American nationals. And so did the American Director-General of
UNESCO, Mr. Evans. Later, other IGOs followed suit, although e.g. UN Secretary-
General Hammarskiöld fought for the independence of UN ofcials more bravely than
did Trygve Lie.
109 ICJ Reports 1954, p. 47, and 1956, p. 77.
110 See the report and criticism by T. Meron: “In re Rosescu and the Independence of the
International Civil Service” in AJIL, Vol. 75, 1981, pp. 910–25.
inherent jurisdiction over organs and officials 147

Indeed, in many respects particularly the two most important administrative


tribunals, and notably that of the UN, displayed a weak and evasive attitude,
avoiding facing the key issue of undue pressure from the big powers.
The abuse also spread to the procedure of appointments. Thus, the custom
developed in the UN and the specialized agencies of accepting political ques-
tionnaires from the US authorities for transmittal to applicants of American
nationality for international positions. Furthermore, the custom developed of
giving preference to candidates who had been proposed by their governments
and even of not appointing new ofcials without rst obtaining the approval
of the government concerned, a practice which obviously was detrimental to
the independence of international ofcials. The US instituted under Executive
order No. 10422 of 9 January 1953 an International Organization Employ-
ees Loyalty Program to screen the loyalty of US nationals in international
service; however, 33 years later this was declared unconstitutional by a US
District Court in that it violated the rights of American citizens under the
First Amendment to the US Constitution.111
The big powers also initiated an earmarking of specic posts for candidates
from specic countries, which, of course, fell nicely in with nominations from
the countries concerned of specic candidates (for secondment from national
government service) whom the organizations could not – or at least did not –
refuse to accept. Some other States, rather than oppose the abuse, were only
too willing to follow suit. Thus many appointments were in fact made by
national governments – in form only by the organization.112
With the end of the cold war, member States could move back to the correct
procedure: Appointment and dismissal by the organization itself – in reality
as well as in form – and appointment according to personal qualications,
subject to a reasonable geographic total distribution. The 1986 US District
Court decision reported above was a good start.
An important factual element in the independence of international ofcials
is the distinction between permanent and temporary contracts of employ-
ment. Ofcials who are not given permanent contracts (career service) are
appointed for a few years and may be renewed, but only up to a total of ve
years. Such ofcials are frequently national ofcials who are seconded by their
governments113 and who normally return to their national service at the end

111 Hinton v. Devine (Civ. Co. 84–1130) 8 April 1986, reported by Mark A. Roy in AJIL,
Vol. 80 1986, pp. 984–5.
112 It started out with the Assistant Secretaries-General of the UN, and then spread to
Directors and senior ofcers, and even below.
113 These problems of secondments and relevant decisions by administrative tribunals have
been examined by Seidl-Hohenveldern: “Die Abstellung nationaler Beamten zu Inter-
nationalen Organisationen” in Verantwortung in unserer Zeit, Festschrift für Rudolf
148 chapter five

of their service with the organization. Such ofcials from totalitarian or big
powers often found it difcult to act independently as international ofcials.
The question of the extent to which an intergovernmental organization can
take into account the wishes of the host State and of other member States
in its personnel policy – without prejudicing its independence and the equal-
ity of its members and without violating its specic constitutional provisions
safeguarding the exclusively international character of its staff114 and its staff
regulations – was the subject of heated discussion, particularly in the United
Nations and UNESCO during the McCarthy period of US communist hunt
from 1952 onwards,115 as well as of an extensive literature116 and a number
of decisions by administrative tribunals,117 followed by two advisory opinions
of the International Court of Justice.118 On the whole, the courts and writers
upheld the principle of the internal autonomy of the organizations concerned;
some of the dismissals decided upon by the executive heads of the United
Nations and UNESCO under undue pressure from certain member States

Kirchschläger, Vienna 1990, pp. 211–20. English translation: “The Secondment of


National Ofcials to International Organizations” in Hacia un nuevo orden interna-
cional. Estudios en homenaje al profesor Don Manuel Diez de Velasco, Madrid 1993,
pp. 689–99. See also Schermers and Blokker, op. cit., §§ 522 and 526; A. Plantey: The
International Civil Service, New York 1981, pp. 165–67 and Theodor Meron, op. cit.,
pp. 910–25.
114 See, for example, Art. 37 of the WHO constitution and Art. 100 of the UN Charter,
which provide what Sir Gerald Fitzmaurice stated “must in any event result implicitly
from their position as international civil servants”, BYIL, XXIX (1952), p. 11.
115 See the reports of the Secretary-General of the United Nations cited in note 122, the
Repertory of Practice of United Nations Organs, at Art. 100, the report of the Commis-
sion of Jurists referred to in the text above (reprinted in OR GA. VIII. Annexes II. Agenda
item 51, pp. 23–33, cf. International Organization, VII (1953), pp. 128–130, 243–248,
421–423 and 590–591) and the criticism thereof by Henri Rolin, “Avis consultatif sur
les droits et obligations des fonctionnaires internationaux, avis rédigé sur la demande de
la Fédération des associations de fonctionnaires internationaux et approuvé par Tomaso
Perassi et Charles Rousseau” (mimeographed, 1953).
116 For a thorough discussion of the entire problem at the time, see S.M. Schwebel: “The
International Character of the Secretariat of the United Nations”, BYIL, XXX (1953),
pp. 71–115. See also L.C. Green: “The International Civil Servant. His Employer and
His State”, Grotius Society Transactions 1954, pp. 147 et seq., especially pp. 168–174;
Martin and Edwards: The Changing Charter, London 1955, pp. 34–36; Maxwell Cohen
in AJIL, XXXXIX (1955), pp. 295–319 and the articles cited by him at p. 295; and
Siotis: Essai sur le secrétariat international, Geneva 1963, pp. 209–218.
117 See judgments Nos. 29–37 and other judgments reported in Judgments of the United
Nations Administrative Tribunal (United Nations 1958) and, in particular, judgments
Nos. 17–19 and 21 of the International Labour Organisation Administrative Tribunal
of 26 April and 29 October 1955, summarised by Mercier in Annuaire français de droit
international, 1955, pp. 302–309. On subsequent judgments of the ILO Administrative
Tribunal, see Lemoine, ibid., 1960 ff.
118 Effect of Awards for Compensation Made by the United Nations Administrative Tri-
bunal, ICJ Reports 1954, pp. 47 ff., and Judgments of the Administrative Tribunal of
ILO upon Complaints Made against UNESCO, ICJ Reports, 1956, pp. 77 ff.
inherent jurisdiction over organs and officials 149

were invalidated as not authorized in the staff regulations or as involving an


abuse of power.

The relationship of employment. General

Kelsen119 maintained that the relationship of employment has the character


of a contract of private law, and that the organization had no power to
establish, by unilateral act, duties and rights of individuals in their relation
to the United Nations, but that the relationship was governed by the national
law of the host State.
Jessup, too, considered that “such contracts might be made with reference
to the law of a particular State, such as that of the State in which the head-
quarters of the United Nations is located.” However, he added:
It would seem more appropriate, given the acceptance of the position of the
individual as a subject of international law, to conclude such agreements under
international law and make that law applicable to disputes concerning interpre-
tation and the like. On the procedural side it is to be presumed that special
tribunals will be established for the solution of such controversies, but the law
to be applied and developed by such special tribunals should be a branch of
international law, not of some national law.120
Both of these early writers appear to have started out from the premise that
there are only two types of legal system, national law and international law.
As expressed by the Permanent Court of International Justice in the Serbian
Loans Case: “Any contract which is not a contract between States in their
capacity as subjects of international law is based on the municipal law of
some country.”121
However, there is a third system, which does not presuppose the recognition
of individuals as subjects of international law, namely, the internal law of the
organization.122 The internal law of intergovernmental organizations consti-
tutes a third type of independent legal systems, comparable in most respects
to (public) national law, rather than to international law. It is this law which
governs international ofcials as such. Like national law and unlike public
international law it has a hierarchical system of sources: The constitution of

119 The Law of the United Nations, London 1950, pp. 313–314 and 318.
120 A Modern Law of Nations, New York 1949, p. 132. Italics added.
121 PCIJ, Ser. A, No. 20, p. 41.
122 As pointed out by Jessup in a subsequent publication (Transnational Law, New Haven
1956, p. 87) this term was used already in 1929 by the League of Nations Administrative
Tribunal.
150 chapter five

the organization takes precedence over the staff regulations enacted by the
plenary organ, which, again, take precedence over the staff rules enacted by
the head of the secretariat, which again, may take precedence over manu-
als and other documents emanating from the secretariat.123 However, the
common unwritten law of IGOs and States also plays an important part.
This was put on paper in Article III of the Statute of the UNRWA Special
Panel of Adjudicators of 1983, which stated that the Panel shall apply the
terms of employment, including all pertinent Regulations and Rules and the
general principles of law, and that it shall be guided by the jurisprudence
of the UN Administrative Tribunal and of other international and national
administrative tribunals.
The staff (of the registry) of administrative tribunals and other IGO courts
are appointed and remunerated by the organization and are, in the discharge
of their duties, responsible to the tribunal and to the organization. The Statute
of the administrative tribunal of the World Bank provides that the Executive
Secretary shall be responsible only to the tribunal (Article VI 2).
On the other hand it is quite possible for intergovernmental organizations
in addition to its international ofcials to hire local personnel under local law
for performance of work which does not involve performing public functions,
e.g. service providers.
Military personnel in UN forces are a special category. These remain
national personnel with regard to employment, but are international person-
nel with regard to performance of their functions. Thus, paragraph 6 of the
Regulations for the UN Force in the Congo provided:
The United Nations Force in the Congo is part of the subsidiary organ of the
United Nations referred to in Regulation 5 (b) above (ONUC) and consists of the
Commander and all military personnel placed under his command by Member
States. The members of the Force, although remaining in their national service,
are, during the period of their assignment to the Force, international personnel
under the authority of the United Nations and subject to the instructions of
the Commander, through the Chain of command.124
The following discussion will be conned to regular international ofcials.
However, even here there are differences in the sense that even international
ofcials may be given a contractual status in certain respects, notably with
regard to level, salary and duration.

123 See C.F. Amerasinghe: The Law of the International Civil Service, Oxford 1994,
pp. 146–9 on the relationship between Staff Rules and other subsidiary instruments.
124 ONUC Reg. 6 (ST/SGB/ONUC/1, 15 July 1963). See also the similar provision in
UNEF Reg. 6, UNTS, Vol. 271, p. 174.
inherent jurisdiction over organs and officials 151

Contractual or statutory?125 Private or public law? Acquired rights126

In most cases the relationship of employment is partly in the nature of a con-


tract. International ofcials usually sign or accept a “letter of appointment”127
or other letter128 or “contract”,129 indicating their acceptance of the offer and
the terms of employment.130 However, also the relationship of public employ-
ment with national governments is essentially dependent upon the consent
of both parties, in so far as usually no ofcial is appointed without having
indicated by application or otherwise his willingness to serve,131 and in so far
as also national ofcials usually have the right to resign.132 This is so also in
those States where the relationship of public employment is considered to be
of a statutory, rather than of a contractual nature.
The contracts or letters of appointment of international ofcials usually
specify only those terms of employment which are particular to the ofcial
concerned, notably his grade, his salary and the duration (type) of his con-
tract. With regard to most other conditions of service, the contract or letter
of appointment merely refers to the staff regulations and rules enacted by the
organization. This in itself does not necessarily derogate from the contrac-
tual nature of the relationship since such regulations and rules are, or may

125 For a clear exposition of the two opposing systems, in States and pre-war organiza-
tions, see Suzanne Basdevant (Bastid): Les fonctionnaires internationaux, Paris 1931,
pp. 63–106.
126 On acquired rights, see also Grisel: “Les droits acquis des fonctionnaires internationaux”
in Im Dienst an der Gemeinschaft, Basel 1989, pp. 75–96; Arts. 13.3 and 14 of the Staff
Regulations of the International Court of Justice, and C.F. Amerasinghe: Principles of
the Institutional Law of International Organizations, Cambridge 1996, pp. 360 ff. On
acquired rights in respect of rules on promotion, see Judgments No. 266 (of 20 November
1980) and 295 (of 6 October 1982) of the United Nations Administrative Tribunal.
127 League of Nations Staff Regulations, Art. 13; United Nations Staff Regulation 4 (1) and
Annex II, cf. Staff Rule 104,1 and the forms for “Letter of Appointment”; Inter-Allied
Reparation Agency Staff Regulations, para. 11; FAO Staff Rule 301.04 and Annex II;
OECD Staff Regulation 8; Staff Regulations for the Registry of the International Court
of Justice, Art. 5; International Atomic Energy Agency Staff Regulation 3.05.
128 UNESCO Staff Regulations, Art. IV.1. Experts on mission for UNESCO, however,
sign an “agreement” which does not refer to the Staff Regulations and which species
that the expert is not to “be considered in any sense as a member of the staff, agent or
attorney of UNESCO.”
129 ILO Staff Regulations, Art. 4 (7).
130 ILO Staff Regulations, Art. 4 (7); Staff Regulations for the Registry of the ICJ, Art. 5;
OECD Staff Regulations 8; UNESCO Staff Regulations, Art. IV 1. – The Staff Regula-
tions of the League of Nations are found in H. Aufricht: Guide to League of Nations
Publications, New York 1951, p. 440 and those of the United Nations in ST/SGB/Staff
Rules/1 (Rev. 7 dated 1990). Most organizations have published their staff regulations
separately.
131 See, for example, the German Bundesbeamtengesetz, § 8 (1).
132 Ibid., Bundesbeamtengesetz, § 30.
152 chapter five

be considered to have been, incorporated in the contract by reference. But


the organization also has the power to amend the regulations and rules by
unilateral legislative action. Such amendments are, within certain limits, bind-
ing even upon ofcials appointed prior to the enactment of the amendment.
This is expressly provided in many staff regulations133 and/or in the letters
of appointment.134 As stated in Judgment No. 273 by the UN Administrative
Tribunal of 15 May 1981:
The summary provisions contained in the letter of appointment are supple-
mented by documents of general application which are much more detailed.
The letter of appointment refers to these in stipulating that the appointment
is offered “subject to the provisions of the Staff Regulations and Staff Rules,
together with such amendments as may from time to time be made to such Staff
Regulations and such Staff Rules”. Thus, by virtue of that provision, documents
of general application are made an integral part of the contract and the staff
member accepts in advance any amendments which may be made to them.
At the time of appointment, copies of the Staff Regulations and Staff Rules
are transmitted to the person concerned and that fact is noted in the letter of
appointment. Further, every staff member is notied of subsequent amendments
to those documents through the publication of administrative circulars, which
give the text of the relevant new provisions and their date of entry into force
( Judgment No. 249, Smith). On that date, the new provisions become an integral
part of the contract.
In the chapter headed “General provisions”, the UN Staff regulations 12.2–
12.4 of 7 February 2003 read as follows:
Such staff rules and amendments as the Secretary-General may make to imple-
ment the present Regulations shall be provisional until the requirements of
regulations 12.3 and 12.4 below have been met.
The full text of provisional staff rules and amendments shall be reported annually
to the General Assembly. Should the Assembly nd that a provisional rule and/or
amendment is inconsistent with the intent and purpose of the Regulations, it
may direct that the rule and/or amendment be withdrawn or modied.
The provisional rules and amendments reported by the Secretary-General, taking
into account such modications and/or deletions that may be directed by the
General Assembly, shall enter into full force and effect on 1 January following
the year in which the report is made to the Assembly.

133 Thus, Art. 14 of the ICJ Staff Regulations provides that they “may be supplemented or
amended by the Court, without prejudice to the acquired rights of staff member”.
134 Thus the letters of appointment of the International Atomic Energy Agency shall State
that “the appointment is subject to the provisions of these Regulations and of the rules
applicable to the category of the appointment in question, and to changes which may
be duly made in such Regulations and rules from time to time” (IAEA Staff Regulation
3.05 (a)).
inherent jurisdiction over organs and officials 153

These texts empower the Secretary-General to establish and amend the Staff
Rules within the limits laid down by the Staff Regulations. The Secretary-
General has the duty to report to the General Assembly on the exercise of
his rule-making authority, which is derived from the Charter and from the
Staff Regulations, but the bringing into force of the provisions established by
the Secretary-General, is subject to the General Assembly’s directions. The
legal status of a staff member is thus governed by the provisions of the Staff
rules immediately on their entry into force.
The question arises, however, whether amendments may be given retroactive
effect even when this would prejudice the acquired rights of the ofcials.135
This question is in some cases dealt with by express provision in the staff
regulations. Thus Personnel regulation 22 (a) of the former International
Refugee Organization provided that “staff members shall be required, subject
to due notice in the case of acquired contractual rights, to comply with such
amended regulations as the Organization may issue.” Staff regulation 12.1
of the United Nations provides: “These regulations may be supplemented
or amended by the General Assembly, without prejudice to the acquired
rights of staff members.” And regulation 12.5 decides that the “Staff rules
shall not give rise to acquired rights within the meaning of regulation 12.1
while they are provisional”. The Staff Regulations of the League of Nations,
the International Labour Organization (ILO) and other specialized agencies
contain similar provisions.136 But the provisions of the League and the ILO
were addressed to the Secretary-General (in consultation with other specied
organs) only. The plenary organs of these organizations were empowered
by another provision of the regulations to modify the terms of contracts of
ofcials appointed or promoted after 1932 without reservation for acquired
rights.137 And so was the Committee of Ministers under Article 11 of the
Staff Regulations of the Council of Europe with regard to salary.
On the other hand, the problem is not solved by a provision in the staff
regulations to the effect that acquired rights shall be respected. A number of
disputes have arisen, precisely with reference to organizations having such a
provision, on the question of what constitutes “acquired rights”. These disputes
have been decided by the administrative tribunals or the plenary organs, in

135 See e.g. the provisions in Arts. 13.3 and 14 of the Staff Regulations of the International
Court of Justice; A. Grisel: “Les droits acquis des fonctionnaires internationaux” in Im
Dienst der Gemeinschaft, Basel 1989, pp. 75–96; Schermers and Blokker, op. cit., § 539
and C.F. Amerasinghe: The Law of the International Civil Service 2nd ed., Oxford
1994, pp. 419–440.
136 League of Nations Staff Regulations, Art. 80, and the old ILO Staff Regulation 14
(7).
137 Ibid. Art. 30 bis, and the old ILO Staff Regulations, Art. 16 bis.
154 chapter five

the latter case usually on the basis of a report from a committee appointed
for the specic purpose of studying the problem. These decisions and reports
have not, however, established any settled general doctrine or practice as to
what constitutes “acquired rights.”
In 1932 the League of Nations Assembly – which was not bound by the
provision on acquired rights addressed to the Secretary-General – decided to
refrain from taking any action with a view to reducing the salaries of ofcials,
following an opinion delivered by a special Committee of Jurists to the effect
that it lacked the power to do so because that would violate the acquired rights
of the ofcials. The Opinion stated that, although the League could have
made the relationship statutory, it had in fact chosen to make it contractual
but not “a legal relationship of private law within the meaning of the civil
law of any country”. The question as to whether the Assembly nevertheless
had the right to derogate from these contractual rights of the ofcials in the
exercise of its budgetary authority did not “arise in the same manner as it
arises for a Parliament which, besides its budgetary authority, has the power
to legislate – that is to say, to make rules of law which can supersede other
rules of law”.138 The opinion may here have confused organic and territo-
rial/personal jurisdiction.
The same view was taken by the League of Nations Administrative Tri-
bunal, in a judgment of 26 February 1946,139 with regard to an Assembly
resolution of 14 December 1939 which decided to reduce from six months
to one the period of notice of termination of contract and to pay the termi-
nal compensation in four annual installments, not in one payment as before.
The Tribunal held that this could not be applied to an ofcial who had been
appointed before the coming into operation (in 1932) of Article 30 bis of the
Staff Regulations, which provided that the terms of appointment might be
modied by the Assembly. However, the Tribunal based this in part upon an
assumption that the Assembly would not have intended, by its Resolution of
14 December 1939, to affect acquired rights without expressly so stating and
without even mentioning Article 80 of the Staff Regulations, which estab-
lished the principle of respect for acquired rights.140 Despite this judgment,
the Assembly adopted a majority report delivered by a sub-committee of its
Second (Finance) Committee, to the effect that the amendment be applied to

138 Annual Digest 1931–32, pp. 408–410, full text in Journal ofciel, Supplément spécial
No. 107, pp. 206–208.
139 Annual Digest 1946, Case No. 91, pp. 199–202.
140 Journal ofciel, Supplément special No. 194 (1946), p. 245.
inherent jurisdiction over organs and officials 155

all ofcials.141 The report held that the Tribunal had wrongly interpreted the
intention of the Assembly resolution of 1939, and stated moreover that “the
League does possess, in regard to the ofcials with whom it contracts, what
are in effect sovereign powers . . . We think it necessary for the proper discharge of
the functions of a world organization of States that it should possess a power
if necessary to set aside the vested rights of private individuals employed in
its administration.”142
The US pursued a policy of ousting American nationals whom they
accused of being communists or “fellow travellers” from public ofce both in
their own administration and in secretariats of international organizations.
They pressed the Secretary-General of the UN and other organizations to
discharge ofcials on the basis of new provisions in the staff regulations. This
naturally gave rise to several appeals to administrative tribunals. Thus the
United Nations Administrative Tribunal, in a series of decisions in 1953–54,
held that ofcials could not invoke Staff Regulation 12.1 – which provided
that the Regulations “may be supplemented or amended by the General
Assembly, without prejudice to the acquired rights of staff members” –
against new provisions in the Staff Regulations authorizing the Secretary-
General to terminate appointments “if, in his opinion, such action would
be in the interest of the United Nations” (Article 9.1 (c)) and to “summar-
ily dismiss a member of the staff for serious misconduct” (Article 10). The
Tribunal said on this point:
The Tribunal considers that relations between staff members and the United
Nations involve various elements and are consequently not solely contractual
in nature.
Article 101 of the Charter gives the General Assembly the right to establish
regulations for the appointment of the staff, and consequently the right to
change them,
The General Assembly under that Article established new Staff Regulations
and decided that these new Staff Regulations should become effective on March
1, 1952, and supersede all previous Staff Regulations.
It follows from the foregoing that notwithstanding the existence of contracts
between the United Nations and staff members, the legal regulations governing
the staff are established by the General Assembly of the United Nations.
In determining the legal position of staff members a distinction should be
made between contractual elements and statutory elements:

141 This was prior to the advisory opinion of the International Court of Justice of 13 July
1954 on Effect of Awards of Compensation made by the UN Administrative Tribunal,
ICJ Reports, 1954, p. 47.
142 Italics added. Cf. the divergent interpretations given in ICJ Pleadings, Effect of Awards
of Compensation Made by the United Nations Administrative Tribunal (1954), pp.
129–130 and 165–181.
156 chapter five

all matters being contractual which affect the personal status of each staff
member, e.g., nature of his contract, salary, grade;
all matters being statutory which affect in general the organization of the
international civil service, and the need for its proper functioning, e.g., general
rules that have no personal reference.
While the contractual elements cannot be changed without the agreement of
the two parties, the statutory elements on the other hand may always be changed
at any time through regulations established by the General Assembly, and these
changes are binding on staff members.
The Tribunal interprets the provisions of Regulation 28 of the Provisional Staff
Regulations and Article XII of the new Staff Regulations in this manner.
With regard to the case under consideration the Tribunal decides that a statutory
element is involved and that in fact the question of the termination of temporary
appointments is one of a general rule subject to amendment by the General
Assembly and against which acquired rights cannot be invoked.143
The Vice-President of the Tribunal, Mr. Sture Petrén, added:
On the question of acquired rights, I have reached the same conclusion as the
majority of the Tribunal, as the General Assembly, in adopting the new Staff
Regulations, did not contemplate a transitional stage for contracts in force at
the time of its decision, and as the Applicant’s contract contained no provision
prohibiting the immediate application of the new Staff Regulation 9.1 (c).
On the question of the power of the organization to cut remunerations by
regulations with effect for current contracts the ILO Administrative Tribunal
in its judgment No. 51 of 23 September 1960, held that “the amount of the
non-resident’s allowance cannot be the subject of acquired rights” and that
it could therefore be reduced with effect for contracts in force, despite the
provision in FAO Staff Regulation 801.121 that the Staff Regulations may
be amended without prejudice to the acquired rights; however, the reduction
could not be given retroactive effect to cancel amounts earned before the date
of the approval of the reduction, despite the fact that it had been more than
off-set by a simultaneous rise in salary. In its Judgment No. 61 of 4 September
1962144 the same Tribunal annulled a decision by the International Telecom-
munication Union to apply new regulations on termination indemnities and

143 Judgment No. 19 of 21 August 1953. Judgments Nos. 20–25 and 27 were in the same
terms. And so was Judgment No. 53, except that it concluded that “the question of the
procedure to be followed in the case of disciplinary measures is one of a general rule
subject to amendment by the General Assembly and against which acquired rights cannot
be invoked.” Text of the judgments in Judgments of the United Nations Administrative
Tribunal, Numbers 1 to 70 (United Nations 1953), p. 260.
144 Reported by Lemoine in Annuaire français de droit international VIII (1962), p. 407.
inherent jurisdiction over organs and officials 157

pensions to a permanent contract already in force,145 but refused to do the


same in respect of new regulations relating to family allowances, because
on the whole they were more favourable to the ofcials. In 1964 the United
Nations family of organizations abandoned the “service benets,” but not
with effect for contracts in force. Indeed, there is an administrative practice
within the United Nations family of organizations not to apply to contracts
in force any regulations which reduce the total amounts (“take-home money”)
which their ofcials receive. An aspect of this question was put to the General
Assembly at its Second Session. Speaking in the Fifth Committee in favour
of the inclusion in the budget of an appropriation for reimbursement of
national income taxation paid by ofcials upon their salaries, the Assistant
Secretary-General for Legal Affairs stated that the tax refund constituted a
material part of emoluments and constitute acquired rights and that elimina-
tion of tax exemption would therefore constitute a breach of contract.146 The
appropriation for reimbursement of national income taxes was eventually
approved, but at the same time the General Assembly, in resolution 160 (II),
“invited” the Secretary-General to omit from all future personnel contracts
any clause which would bind the United Nations to refund national income
taxes in the absence of annual authorization by the Assembly.147 However, the
letters of appointment of other organizations of the United Nations family,
such as the International Atomic Energy Agency, continued to provide for
reimbursement of income taxes in accordance with the staff regulations and
rules. The UN Administrative Tribunal has held both for and against acquired
rights against new rules regarding promotion.148
On the basis of the regulations and the practice cited above it is clear that
intergovernmental organizations establish statutory relationships of employ-
ment with their ofcials with only a few contractual elements relating normally
to type and duration of contract, grade and salary.149 Only the latter constitute
acquired rights, while the former may be altered by the organization.

145 In this sense also Judgment No. 273 of 15 May 1981 by the UN Administative Tribunal,
on entitlement to a representation grant at the end of service, Judgments of the UN
Administrative Tribunal, Nos. 231 to 300 (1978–82), p. 426 ff.
146 OR GA, II, Fifth Committee, Summary Records, p. 333.
147 See also A/C5/657 of 1956, conrming the resulting legal difference between ofcials
appointed before and after 1947.
148 Judgments No. 266 of 20 November 1980 and No. 286 of 6 October 1982 in Judgments
of the UN Administrative Tribunal, pp. 340 ff. and 596 ff.
149 Suzanne Bastid, the rst President of the United Nations Administrative Tribunal,
wrote already in 1957: “dans beaucoup de cas, on peut dire que l’élément contractual
est limité à la creation du lien juridique, l’ensemble de la situation, droit et obligations
étant determine par voie des dispositions générales de facon unilateral” (Grundprobleme
des internationalen Rechts, Bonn 1957, p. 37).
158 chapter five

It may therefore be concluded that, although the relationship of employ-


ment usually involves both a contractual and a statutory element, it bears on
the whole more resemblance to public than to private law relationships,150
being subject to a great extent to the sovereign151 legislative power of the
organization. Analogies must therefore usually be drawn from the public,
rather than from the private law of States. Indeed, already in 1925 an ad hoc
tribunal of the League of Nations applied “general principles of public law
and administrative legislation” in granting a claim by an ofcial against the
organization.152 And later the League of Nations Administrative Tribunal
refused to apply by analogy a principle of civil law which did not also apply
to an administrative relationship governed by public law.153 In 1957 the United
Nations Administrative Tribunal – after citing General Assembly resolution
302 (IV) which established the United Nations Relief and Works Agency for
Palestine Refugees in the Near East (UNRWA) and authorized its Director to
“appoint his staff in accordance with general arrangements made in agreement
with the Secretary-General, including such of the staff rules and regulations
of the United Nations as the Director and the Secretary-General shall agree
are applicable” – stated:
It follows from this resolution that the staff of the Agency is placed under the
legislative authority of the Assembly, like the whole of the staff referred to in
Chapter XV of the Charter, but no provision of that Chapter obliges the Assem-
bly to establish uniform rules for all who serve the United Nations.154
As a matter of fact, UNRWA enacted special Regulations and Rules, not only
for its 152 international staff, but also for its great number of area and local
staff. Indeed, the public character of the relationship of employment applies
in principle to all ofcials. As was pointed out already by Borsi,155 intergov-
ernmental organizations do not ordinarily apply the distinction, usually made
in the national law of States, between ofcials who perform public functions
and those who do not (for example service providers). They all have a status

150 Cf. the following statement by a French court: “les fonctionnaires internationaux se
reconnaissent à ce qu’ils exercent leur activité dans un interêt public mais de caractère
international” (Chemidlin v. International Bureau of Weights and Measures, in Annual
Digest of international Law Cases, 1943–45, p. 231.
151 This term was used already by a League of Nations Committee.
152 The Monod Case, Journal Ofciel 1925, pp. 858 and 1441, and Hudson: International
Tribunals, p. 221.
153 (1933–34) Annual Digest, Case No. 203.
154 Judgments of the United Nations Administrative Tribunal, I, Judgment No. 70,
p. 425.
155 “Il rapporto d’impiegonella Società delle Nazioni”, Rivista di diritto internazionale Vol.
15 (1923).
inherent jurisdiction over organs and officials 159

similar to that of national ofcials performing public functions, subject to


special rules for so-called local personnel. Kelsen’s statement (p. 318) that
“an international organization, such as the United Nations, has no legisla-
tive power with respect to employment contracts” and that the relationship
of employment has the character of a contract of private law is thus not in
accordance with practice in respect of international ofcials.
A different matter is that there may be variations between different organi-
zations – and between different types of ofcials within an organization – as
to the extent to which certain aspects of the relationship of employment even
of international ofcials (as opposed to local personnel and contractors) are
made contractual rather than statutory.156
As for the delimitation of acquired rights, it would seem that these, whether
expressly provided for or not, exist as a barrier to the legislative authority of
the organization only in matters which affect the specic status of the ofcial
concerned as stated in his individual contract/letter of appointment. In other
respects the organization has full legislative authority, but it cannot deprive
ofcials of money already earned. It is not known whether Schermers and
Blokker propose to go further in protecting acquired rights when they say that
if a contract pre-dates the staff regulations, it is in general assumed that the
contract prevails – “staff regulations which have been drafted subsequently
cannot affect rights already acquired.” This may be a reasonable interpreta-
tion if the new rules are not clear in this respect.157
Even when the principle of acquired rights does not apply, ofcials may be
protected by the principle of détournement de pouvoir, which applies generally in
the public law of States as well as IGOs. Such abuse of power for illegitimate
purposes has led to the annulment of several administrative decisions. It may
also lead to the non-application of legislative provisions, as explained, but not
done, by the World Bank Administrative Tribunal in the Merode Case.158

156 On this and many other aspects of the relationship of employment, see Amerasinghe:
The Law of the International Civil Service, 2nd ed., Oxford 1994, pp. 82–99.
157 See judgments No. 266 and 295 (and the judgments cited in judgment No. 273) of the
UN Administrative Tribunal and the works cited by Schermers and Blokker, op. cit.,
§ 539 at pp. 379–80 note 473.
158 Decision No. 1 (1981). See the full discussion of “Détournement de pouvoir in Inter-
national Administrative Law” by C.F. Amerasinghe in Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht, XXXXIV (1984), pp. 439–81.
160 chapter five

Internal, not national or international courts

Kelsen – invoking Article 104 of the United Nations Charter, Article I of the
general Convention on the Privileges and Immunities of the United Nations
and § 7 of its headquarters agreement with the United States – maintained
that relationship of employment with the UN is governed by the “municipal”
(a term referring to the local, State or national) law of the host country.159
However, it has been demonstrated above that the relationship of employ-
ment with intergovernmental organizations, such as the United Nations, to a
great extent is of a statutory nature, and that the statutes to be applied are
the regulations of the organization. There is a consistent practice on the part
of other intergovernmental organizations and their administrative tribunals,
and also on the part of the host States and their courts, to the effect that
these are the only statutes applicable, and that even in its contractual aspects
the relationship of employment is not subject to the national law of the host
country, whether mandatory or non-mandatory, or to any other particular
system of national law. The latter was expressly said already in an opinion of
a Committee of Jurists of the League of Nations cited above. The Interna-
tional Labour Organization even stated this expressly in its early letters of
appointment, in the following terms:
This letter of appointment and your acceptance thereof by a letter of accep-
tance . . . will . . . constitute a contract governed by general principles of law but
will not create a contractual relationship subject in any respect to the law of
any one country.
The United Nations Administrative Tribunal – which under Article 2 (1)
of its Statute160 is “competent to hear and pass judgment upon applications
alleging non-observance of contracts of employment of staff members of
the Secretariat of the United Nations or of the terms of appointment of
such staff members” – has never resorted to rules of any particular system
of national law in order to interpret or supplement such contracts or terms
of appointment. The Tribunal has relied exclusively upon the statutory and
the customary law of the United Nations – including the Charter, the Staff

159 The Law of the United Nations, London 1950, pp. 313–314. For § 7 of the Headquarters
Agreement, see below.
160 General Assembly resolution 351 (IV). Amerasinghe, The Law of the International
Civil Service, 2nd ed., Oxford 1994, pp. 5 ff. rightly rejects both the proposition of
the “municipal” and of the conicts law of the host State and describes the reasons
why an independent system of law is required. Reference is also made to his thorough
examination, pp. 103–200, of the sources of international administrative law. – See also
on the theory of an emerging global administrative law, Kingsbury et al., Institute for
International Law and Justice (IILJ) Working Paper, New York, 2004/1.
inherent jurisdiction over organs and officials 161

Regulations, the Staff Rules and other pertinent regulations – and upon general
principles of law drawn from the practice of other IGOs and from the general
practice of State administrations. And so do other administrative tribunals.
Already in its Judgment No. 2, of 1929, the League of Nations Administra-
tive Tribunal declared that it had to “apply the internal law of the League
of Nations [. .] and the stipulations agreed upon between the administration
and its ofcials.”161 It supplemented these by general principles of law. Thus
it applied, for example, the principle of public law that a person cannot be
responsible for fulllment of a promise which it was outside his competence
to make, and the general principle of law that legal costs are payable by the
unsuccessful party, as well as the doctrine of unjust enrichment, without bas-
ing this on any particular system of law.162
Even if the organization sues its ofcials in national courts, the latter must,
if they assume jurisdiction, apply the internal law of the organization to the
relationship of employment.163 This follows from general principles of conict
of laws. Thus in an action for reimbursement of over-payment of salary, the
national court must look to the internal law of the organization in order to
determine whether the payment was in fact an over-payment.164 But the court
may, under its conicts law, decide to apply its own national law rather than
general principles of law in order to determine whether an ex-ofcial is under
an obligation to reimburse such over-payment and whether the amount is
to be repaid in full (condictio indebiti and the doctrine of unjust enrichment)
if its relevant rule on conict of laws does not refer to foreign law in these
respects.165 However, the regulations of the organization may contain provi-
sions in these respects,166 and these must then be applied, as integral parts of
the terms of appointment.

161 Full text in Journal ofciel, Suplément Spécial No. 107 (1932), p. 207. Italics added.
162 Schumann v. League of Nations, Annual Digest of International Law Cases, 1933–34,
Case No. 203. See also Perasse v. League of Nations, ibid. p. 463.
163 Cf. below and UN v. B and Others, Tribunal Civil de Bruxelles, 27 March 1952, text in
Pasicrisie Belge, 1953, No. 10, p. 65. The judgment did not indicate which law it applied,
except that it, of course, applied national (Belgian) procedural law. See also another case
mentioned in the Annual Report of the Secretary-General, 1952–53, p. 149.
164 Below, Part Four.
165 On rules of conict of laws in this respect, see The Conict of Laws, II, Chicago 1950,
pp. 366–379, Loussouarn/Bourel; Droit international privé, Paris 1993, pp. 401 and 410,
and G. Kegel: Internationales Privatrecht, 7th ed., Munich 1995, pp. 526–28. The fact
that the substance of a debt and certain modalities of its payment may be governed by
different legal systems was emphasized by the Permanent Court of International Justice
in the Serbian Loans Case (PCIJ, Ser. A. No. 20, p. 41).
166 Cf. also Art. 38 (1) of the staff regulations of the European Communities: “Any sum
overpaid shall be recovered if the recipient was aware that there was no due reason for
the payment”.
162 chapter five

As already pointed out, the national law of the host country is applicable
to the relationship of employment in those exceptional cases where this has
been provided for in the constitution or specially agreed to by the organiza-
tion (delegation). Organizations of the type dépendent might be an example of
the former. But even in their case the general law of the host country was
not applicable ipso facto.167
In the absence of constitutional provision, the national law of the host
country may be referred to expressly, or by tacit implication, in the contract
of employment – or the organization may specially authorize its application
by unilateral regulation or by agreement with the host State. This has been
done – especially in the past – in certain limited respects, notably with regard
to social security insurance,168 where many organizations preferred to take
advantage of the established system of the host country, rather than establish
a legal regime and an administration of their own. Thus the ofcials of the
former OEEC in France were included in the French social security system by
an agreement of 12 July 1949 between the OEEC and France.169 With regard
to auxiliary staff recruited locally for its Cambridge Research Unit, the former
OEEC (now OECD) provided by regulation in general terms that they “are
subject to United Kingdom Legislation, when appropriate, as to conditions of
employment.”170 Similarly, the United Nations Relief and Works Agency for
Palestine Refugees (UNRWA) incorporated in its provisions for local personnel
referred to above the substance of certain particular provisions of national
law, for example for assessing the quantity of the compensation payable to a
locally recruited staff member for an injury attributable to service, this being
expressly provided for in UNRWA Area Staff Rule 106.4. At an early stage

167 Thus Swiss law did not govern the contracts with non-Swiss ofcials of the organizations
of the type dépendent. See the Swiss Law of 31 January 1947 on the Statut des Bureaux
internationaux placés sous la surveillance des Autorités de la Confédération Suisse, Arts.
4 and 13.
168 The question whether this falls under the exclusive organic jurisdiction is discussed
below.
169 With regard to family benets, the ofcials were subject to the organization’s own system.
Similarly the United Nations, apparently without formal agreement, submitted to the
New York Act on Workmen’s Compensation until 1951, when it set up a compensa-
tion system of its own, cf. Staff Regulation 6 and Headquarters Regulation No. 1. The
International Atomic Energy Agency participates in the Austrian social security system
in respect of some of its local staff, pursuant to § 26 of its headquarters agreement of
11 December 1957, which gave it the right to do so, cf. IAEA Staff Regulation 8.01.
Other organizations have their own social security system.
170 Regulation No. 25 of the Secretary-General concerning the Staff Regulations for Mem-
bers of the Research Unit on National Income at Cambridge of 24 December 1949,
Art. 7. Other staff of that center was subject to the regulations and rules of the OEEC
(ibid. Art. 1).
inherent jurisdiction over organs and officials 163

of UNRWA’s existence, specic reference was also made to other provisions


of local law.171 Subsequently, however, specic references to local law were
largely removed from the Agency’s contractual and statutory conditions of
service, although, in establishing and revising the conditions of employment of
UNRWA’s locally recruited staff, the Agency endeavoured to take into account
the relevant provisions of the national law of the country in which UNRWA
is operating. Similar arrangements have been made by agreement between
States, in respect of local personnel employed by one State in the territory of
the other, for example, Japanese employees of United States clubs in Japan.172
But all these examples of specic delegation are exceptions to the general
rule that the relationship of employment is subject to the exclusive organic
jurisdiction of the (State or) organization whose ofcials are concerned.173
As explained in chapter 7 below, the relationship of employment is subject
to the jurisdiction of the organization not only in its legislative, but also in
its judicial aspect. The organizations themselves settle disputes with regard to
this relationship by administrative appeal174 or by decision of administrative
tribunals, although their constitutions contain no provision on this subject.
And their competence in this respect is exclusive, i.e. no external courts can
assume jurisdiction without the consent of the organization. This is conrmed
by decisions made by national courts in actions brought against the organiza-
tions by former ofcials claiming compensation for the termination of their
contracts. In most such cases, the ofcials based their claim partly or wholly
upon the private or public law of the host country, the country where they
were employed or of which they were nationals. Such actions have been
unsuccessful in all cases known to the writer, except for certain actions brought
against the United Nations. The pattern was set by the following pioneer cases:
Proli v. International Institute of Agriculture (IIA), decided by the Italian Court

171 See for example the provisions discussed in Judgments of the United Nations Adminis-
trative Tribunal, I, Judgments No. 65 and 70.
172 Administrative Agreement between Japan and the United States, Art. XV (4): quoted in
a Japanese judgment reported in Japanese Annual of International Law, 1958, p. 143.
173 Thus the terms of employment of local personnel recruited by United Nations Forces in
the Middle East (UNEF) and in the Congo were prescribed by the organization even if
they “to the extent practicable, follow the practice prevailing in the locality”, and even if
such personnel was not subject to the Staff Regulations of the United Nations, see UNEF
Regulation 19 (c) (271 UNTS 169) and ONUC Regulation 20 (c) (ST/SGB/ONUC/1)
and para. 27 of the host agreement with Congo of 27 November 1961 (text in Révue
générale de droit international public 1961, p. 105).
174 See the examples given with regard to the League of Nations by McKinnon Wood in
Transactions of the Grotius Society, XXX (1944), p. 144.
164 chapter five

of Cassation on 26 February 1931175 on appeal from a contrary judgment


by the Court of Appeal of Rome,176 Chemidlin v. International Bureau of Weights
and Measures (BIPM), decided by the French Civil Court at Versailles on 27
July 1945,177 Diaz Diaz v. United Nations Economic Commission for Latin America
(ECLA), decided by the Mexican Supreme Court on 28 April 1954, on appeal
from a contrary decision by the Arbitration Tribunal; Schuster v. United Nations
Information Centre, Buenos Aires, decided, rst by the Labour Court of Buenos
Aires on 10 April 1951, and then, on appeal, by the Argentine Supreme
Court of Justice on 20 December 1951. Other cases have been avoided by
the organization invoking its immunity from suit.
In the rst three – and the fth – cases the court declined jurisdiction,
basing itself, not upon the general immunity of the organization from suit
in national courts, ratione personae, but upon the fact that the suit concerned
a matter which was not governed by the law of the host country and not
subject to the jurisdiction of its courts ratione materiae. The cases thus follow
very closely the pattern of the judgments reported above in 5.1 with regard
to consular employees of States.178 In none of the cases under review did the
court make any reference to, or try to support its conclusion on, the particular
provisions of the constitution of the organization concerned.179 The court
did not even do so in the cases concerning the United Nations, although the
constitution of that organization contains express provisions both concerning
privileges and immunities (Article 105) and concerning the power to enact
staff regulations (Article 101).
It was expressly stated in the judgments that the national law of the
host country was inapplicable, without any distinction being made between
mandatory and non-mandatory law, and without any question raised as to
whether the organizations had themselves enacted rules covering the matter.
The French court held that French legislation was not applicable in the case,
since Chemidlin was an international ofcial who beneted from a special
status which depended on conventions and regulations outside the scope of

175 Rivista di diritto internazionale, XXIII (1931), pp. 386–91.


176 Ibid. XXII pp. 409–426. Both decisions are reported also in Annuario di diritto com-
parato e di studi legislative, IX, p. 344.
177 English translation in excerpts in Annual Digest and Reports of International Law Cases,
1943–45, p. 231.
178 Above, but see above, chapter 4.2 for a contrary decision in respect of employees of the
Holy See.
179 Except that the judgment concerning the BIPM referred to Art. 17 of the constitution,
which provided that “le directeur nommera les autres members du personnel, dans les
limites établies par le Règlement établi par le Comité et xant l’effectif maximum”,
without, however, basing any arguments upon it other than the conclusion that Chemidlin
had been appointed in a constitutional manner.
inherent jurisdiction over organs and officials 165

French legislation. The Mexican Supreme Court stated in general terms


that it was not correct, as had been held by the Arbitration Tribunal, “that
international commissions, because they operate in Mexico, should be sub-
jected to the positive legal Mexican provisions, since, as in the present case,
they may enjoy the immunities recognized by international law”. The Italian
court emphasized that the particular system of the International Institute of
Agriculture must be self-sufcient, and that “the gaps in its substantive law
are lled by means common to all autonomous legal systems, that is, by anal-
ogy and by assimilation, through a process of deduction, from the general or
universal principles of law”.180
The Italian court stated in general that “the sovereignty of the Italian
State, among whose attributes is the potere di giurisdizione, cannot be exercised
with regard to the International Institute of Agriculture, in so far as this
international body exercises an activity directed at its organization and the
consequent regulation of its relations of employment”. The International
Institute of Agriculture, like other organizations of the independent type,
had legislative, administrative and judicial autonomy in its organizational or
internal affairs. This autonomy included the power of “establishing its own
organization and of regulating the organizational relations both in their nor-
mal and exceptional developments” and “whether substantive or procedural”,
except when the organization consents thereto.

180 The relevant parts of the French judgment read as follows (in the heavy French one-
sentence-per-judgment-style):
Attendu en effet que les fonctionnaires internationaux se reconnaissent à ce qu’ils
excercent leur activité dans un interêt public mais de caractère international en dehors
du cadre juridique de l’Etat auquel ils appartiennent –
Attendu quel’Etat Français n’ayant pas été chargé en l’espèce par la convention
internationale de remplir les functions necessaires à l’aide d’agent recrutés par lui, il
apparait en effet, que les conventions et règlements à apprécier pour trancher le litige
élevé par CHEMIDLIN étant demeurés en dehors du cercle de la législation française
pour conserver leur caractère purement international, cette législation française n’est pas
applicable en la circonstance.
Attendu que le règlement des traitements en francs est l’une des conséquences du carac-
tère international du contrat de travail qui fait l’objet du proces, que cependant CHEMID-
LIN n’hésite pas à demander au Tribunal de juger qu’il a droit à un tel règlement.
Attendu que suivre CHEMIDLIN dans l’examen de ses demandes serait s’immiscer
dans de fonctionnement d’un organisme qui n’est pas régi par la loi que ce Tribunal a
charge de faire respecter et provoquer des conits entre les intérèts de ressortissants des
divers pays signataires.
Attendu que l’ordre public s’oppose à de telles conséquences.
Attendu qu’il convient donc pour ce Tribunal, non pas de déclarer l’action de CHEMID-
LIN mal fondée, mais de décliner sa competence.
PAR CES MOTIFS
Se déclare incompétent ratione materiae sur la demande de CHEMIDLIN fonction-
naire international dirigée contre le Bureau International des Poids et Mesures.
166 chapter five

The judgments concluded by declaring the lack of jurisdiction of national


courts in disputes concerning employment with intergovernmental organiza-
tions. It should be noted in this connection that neither in the case of the
International Institute of Agriculture, nor in that of the International Bureau
of Weights and Measures, was there any constitutional or other treaty provision
concerning privileges and immunities, although an Italian statute conferring
privileges and immunities upon the International Institute of Agriculture had
been enacted prior to the second judgment (the Court of Cassation). Nor did
any of these organizations have administrative tribunals for the adjudication
of disputes with their employees. As the Italian court put it: “The particular
system of the Institute must be self-sufcient, both in its substantive rules and
with regard to rules governing the enforcement [realizzazione coattiva] of these
relations of its internal life, such as those concerning employment. [. .] The
gaps with regard to providing guarantees for the implementation [realizzazi-
one] of the relations if some difculty arises in their development [. .] cannot
be lled arbitrarily, even if the need is recognized for this particular system
to adapt itself to the progress of the more developed legal systems.” The
International Institute of Agriculture “has complete autonomy vis-à-vis any
and every member State and [. .] intervention by State sovereignty is excluded
even in its judicial function, regardless of what form of organization and what
internal administrative institutions of justice the Union itself might have been
able or intended to adopt”. The French court declared that an examination
of the ex-ofcial’s claims “would mean interfering in the functioning of an
organization not governed by the law which this court is called upon to
enforce, and would give rise to conicts of interests among the nationals of
the several signatory countries” and that such consequences would be against
public order. The Mexican Supreme Court said that if one accepted in full
the theory of the Arbitration Tribunal, which had assumed jurisdiction in
the dispute, it “would lead to the absurd result of granting it competence in
matters pertaining to foreign countries or to international organizations which
are outside the jurisdiction of the Government of Mexico”. The Mexican
Law concerning the Workers in the Service of the three Branches of Govern-
ment did not, and could not grant competence to settle disputes involving
organizations other than government agencies.
The Mexican Arbitration Tribunal, in its preceding decision in the same
case, had referred to earlier cases concerning other international commissions,
including the Mexican-American Commission for the Eradication of Foot and
Mouth Disease and the International Commission of Frontiers and Waters
between Mexico and the United States. In these cases the Labour Court
had assumed jurisdiction and applied the Mexican Law just referred to. The
inherent jurisdiction over organs and officials 167

Supreme Court, adopting the argument of the counsel for the United Nations,
admitted the competence of the Arbitration Tribunal “to try disputes between
workers and the Mexican-American Commission for the Eradication of Foot
and Mouth Disease, but this was because the said commission was composed
in part of Mexican ofcials, employees and workers, appointed directly by
the Mexican Government and subject to the decisions of our government as
regards the duration of their employment; however, this criterion cannot be
extended to the case under review, since the employees of the United Nations
Organization are not appointed by the Mexican State, nor are they in any
way subject to its decisions”.
In the fourth case listed above, Schuster v. United Nations Information Centre,
Buenos Aires, events took a different turn. The Labour Court, which dealt with
the case in the rst instance, observed in the rst place that, as had been
pointed out during the proceedings by the representative of the Public Ministry,
the case raised two questions: (1) The incompetence of jurisdiction based on
the personal immunity of the Director of the United Nations Information
Centre, and (2) the incompetence of jurisdiction based on the immunity of
the United Nations.
With regard to the rst question, the court correctly pointed out that § 22
of the General Convention on the Privileges and Immunities of the United
Nations, which had been invoked by that organization, was inapplicable, since
the case was not one against the Director of the Information Centre in his
personal capacity. It was therefore not necessary to consider the legal problem
arising from the fact that Argentina had not ratied that Convention.
With regard to the second question, the court correctly observed that, the
Information Centre being part of one of the Departments of the Secretariat
of the United Nations, the defendant was this organization itself “which
was acting as a juridical person of public international law”. Therefore the
competence to judge its acts lay outside the jurisdiction of the court, “for it is
evident from the preamble to decree 32347/44, ratied by law 12948, that the
jurisdiction established by Article 13 of the same, refers only to cases arising
between persons of real or ideal existence who have acted as legal persons
of private law”. For these reasons “and on the rm basis of the statement
in folios 41/44 by the Representative of the Public Ministry” the Labour
Court resolved “to declare itself incompetent to continue hearing this case”.
Thus, without invoking any provision of the United Nations Charter or of
the General Convention on Privileges and Immunities, the court held that
the acts of the United Nations, which was acting as an international person,
were not subject to its jurisdiction. It does not appear quite clearly to what
extent the court based this nding upon specic provisions of national law,
168 chapter five

upon incompetence ratione materiae, or upon immunity ratione personae. It is at


any rate clear that the organization enjoyed also immunity ratione personae under
Article 105 of the United Nations Charter and under general international
law, as do all States and intergovernmental organizations even if no conven-
tion so provides.181
However, the Supreme Court, on appeal, reversed the decision. It dis-
regarded expressly the question of immunity from jurisdiction, since such
immunity, according to the court, had not been invoked, but in fact waived,
by the United Nations. The case was pleaded by the eld ofce and a local
attorney, apparently without instructions from the Legal Ofce at United
Nations Headquarters. Subsequently the latter has conrmed its adherence
to the principle of internal autonomy and incompetence ratione materiae advo-
cated above.
The Attorney-General had, in a written opinion submitted to the court,
expressed the view that the principle of Article 96 of the Argentine Constitu-
tion should be applied by analogy to the United Nations. The article provides
that: “The Supreme Court of Justice shall have original and exclusive juris-
diction in cases arising between the Nation or a province or its inhabitants
and a foreign State” However, the court did not apply that article, because
it held that the organization was not “a foreign State”, and because it was
the “doctrine” of the Court that its original jurisdiction was not subject to
extension by analogy.
The Supreme Court concluded that the inapplicability of Article 96 of the
Constitution – together with the facts that there was in the present case no
problem of immunity from jurisdiction and that the Labour Court, although
its competence had not been contested “on the grounds of subject and place,
nevertheless declared itself incompetent because it felt that the defendant
had immunity from jurisdiction” – would amount to depriving the plaintiff
of justice. Consequently the Court declared that the case came within the
original jurisdiction of the Labour Court and not within that of the Supreme
Court. The parties did not, however, re-submit the case to the Labour Court,
but settled it out of court.
The Supreme Court did not specify what it had in mind when referring to
immunity from jurisdiction. It may have envisaged in the rst place immunity
from suit ratione personae. However, speaking of the decision of the Labour
Court, the Supreme Court referred to competence “on the grounds of subject
and place”. In view of the attitude of the Court that Argentine courts could
not consider themselves incompetent for reasons not invoked by the parties,

181 Cf. Seyersted, United Nations Forces, Leyden 1966, p. 152 note 101.
inherent jurisdiction over organs and officials 169

the judgment constitutes no precedent for or against the recognition of the


internal autonomy of intergovernmental organization.
In the last case listed above, Mazzanti v. Headquarters Allied Forces Southern
Europe, the Italian court clearly recognized its incompetence ratione materiae in
respect of a (similar) action brought by a former international employee. The
court declared the said Headquarters “exempt from Italian jurisdiction in so
far as concerns the employment relationship involved in the case”, despite
the fact that Mazzanti was an Italian national who had been employed with
the Headquarters in Italian territory, and despite the fact that the constitu-
tion of the Organization merely consists of the following provision (Article 9)
in the North Atlantic Treaty of 4 April 1949: “The Parties hereby establish
a Council, on which each of them shall be represented, to consider mat-
ters concerning the implementation of this Treaty. The Council shall be so
organized as to be able to meet promptly at any time. The Council shall
set up subsidiary bodies as may be necessary; in particular it shall establish
immediately a defense committee which shall recommend measures for the
implementation of Articles 3 and 5.” The court relied upon, and quoted at
length, the judgment in Proli v. International Institute of Agriculture. The court
also referred to the more explicit reasons given in an obiter dictum of the lower
court and in a subsequent obiter dictum of the Italian Court of Cassation in
Branno v. Ministry of War.182
The United Nations Administrative Tribunal has conrmed that its com-
petence extends also to United Nations ofcials serving at regional ofces and
organs for which no special provisions have been made,183 although, as already
pointed out, this is no condition for the incompetence of national courts. In
one of the relevant cases, where the ofcial had rst instituted proceedings in
the local courts, the Secretary-General stated, inter alia, that “resort to local
courts by H [. .] on internal questions involving terms of his service with the
United Nations [. .] violates the principle of international employment”. The

182 “Por la razon de la materia y del lugar” (italics added). Both obiter dicta are reprinted in
International Law Reports, 1955, pp. 756–62.
183 Judgments Nos. 57 (UNRWA) and 58 (UN Information Centre at New Delhi) and 70
(UNRWA), Judgments of the United Nations Administrative Tribunal, I, (United Nations
1958), pp. 296 et seq. and 428. The competence of the Tribunal does not extend to the
ofcials of the Registry of the International Court of Justice; disputes relating to their
terms of employment are decided by that Court in accordance with Art. II (and Annex
VI) of the Staff Regulations of the Registry.
170 chapter five

case was subsequently withdrawn from the local courts and brought before
the Administrative Tribunal.184
In a number of decisions after the First World War the French Conseil d’Etat
held that French nationals serving with the various inter-allied commissions in
occupied Germany were not French ofcials, but international ofcials. Their
position was governed by “international”185 law,186 and French administrative
authorities were not competent to consider questions relating to their employ-
ment. These decisions demonstrate that the organic jurisdiction of intergov-
ernmental organizations is exclusive, not merely vis-à-vis the host State, but
also vis-à-vis any (other) State of which the ofcial is a national.
Although the judgments reported above formally express only the national
law of the States concerned, the coinciding rule of the law of these States
which they reect is derived from, and conrms, a principle of public inter-
national law which is binding upon all States and which, as has been pointed
out above in chapter 4.1, applies to ofcials of foreign States as well as to
ofcials of intergovernmental organizations. This principle is to the effect
that ofcials in that capacity, including their relationship of employment, are
subject exclusively to the legislative, executive and judicial power of the State
or organization whose ofcials they are, irrespective of their nationality and
place of employment and residence.
The relationship between the law of the organization and that of the host
State is one of conict of laws. This implies that lacunae in the internal law of
the organization are not lled by local law, but by general principles of law.
This was expressly stated in the Italian judgment, but it is also implicit in the
general statements in other judgments to the effect that the relationship of
employment is not governed by local law. This is true even of the mandatory
law of the host State. Even this cannot be applied to ll lacunae in the law of
the organization. And it certainly cannot overrule any contrary provision of
that law. Indeed, in several of the actions referred to above the ex-ofcial was
claiming precisely the application of mandatory provisions of the law of the
host State. Thus, Chemidlin claimed a right to re-entry, after completed war
service, in his pre-war job on the same conditions as before, pursuant to a
French law which imposed this obligation upon employers. Nevertheless, the
court stated expressly that this French legislation was not applicable because
the matter under dispute was governed by legal norms outside the French

184 Judgment No. 57, loc. cit. at pp. 298–299 and 305.
185 In fact, it is not a question of “international” law, but of internal law of the organization.
186 Re Dame Adrien et autres, Sirey (Recueil général des lois et des Recueil des arréts) 1932,
para. 3, p. 81, with comments by S. Basdevant. Cf. also Re Antin, Recueil des arréts du
Conseil d’Etat, 1928, p. 764.
inherent jurisdiction over organs and officials 171

legal system. Similarly, the social security legislation to which the practice
referred to below relates is mandatory.
The judgments offer less guidance as to where the limit is to be drawn
between matters governed by the organic law on employment conditions and
those governed by the territorial law of the host State. Most of the judgments
were concerned with termination indemnities and other rights relating to
dismissal. Indeed, it is clear that all problems relating to appointment, as well
as dismissal, fall under the exclusive organic jurisdiction. And so do other ques-
tions relating to employment, such as nancial and disciplinary responsibility
of the ofcial vis-à-vis the organization. These matters are dealt with in the
staff regulations of the organizations concerned,187 although that fact alone
is not necessarily conclusive. The constitutions of the European Community
and EURATOM provide expressly that “The personal liability of its servants
towards the Community shall be governed by the provisions laid down in their
Staff Regulations or in the conditions of Employment applicable to them.”188
The organic jurisdiction must also comprise the working conditions, at least
in so far as they involve rights and obligations for the employer and do not
directly affect the surrounding community. Thus even mandatory laws of the
host State on matters such as maximum working hours, minimum salaries,
minimum vacations, representation of workers vis-à-vis the employer and
protection of their representatives, are not applicable to foreign States and
intergovernmental organizations. A different matter is that the host State could
make representations (but not itself assume legislative, executive or judicial
powers) if the conditions of employment were such as to prejudice public
order within its territory. On the other hand, safety precautions against re,
accidents, etc. are not directly related to the relationship of employment and
are in principle governed by the territorial law, except that the host State may
be prevented from enforcing it by privileges and immunities which the foreign
State or organization enjoys.
The conclusion thus is that international ofcials are governed, not by
national law, as proposed by Kelsen, nor by international law, as suggested
by Jessup, but by the particular legal system of the organization concerned.
This constitutes distinct systems of genuine law, which differ from organization
to organization, although there are great similarities between the systems of
the various organizations, as there are between the legal systems of States.
In respect of sources, subjects, contents and hierarchical order, the internal
law of intergovernmental organizations is comparable, not to international

187 See, for example, United Nations Staff Regulation 10.2 and Staff Rule 112.3.
188 EC constitution, Art. 288 in ne; EURATOM constitution, Art. 188.
172 chapter five

law, but to national law (except that those parts of it which govern exclusively
relations between entities which are also subjects of international law – i.e. the
organization and its member States – are also comparable to, end even part
of, particular international law). Thus the internal law of intergovernmental
organizations is based upon the general principles, not of international law,
but of the internal law of IGOs generally and of the national public law of
States, and it is supplemented by analogies from general principles of the
latter legal systems. The same is true of internal courts of intergovernmental
organizations.189 Moreover, as demonstrated below in Part Four, the internal
law of intergovernmental organizations must, for purposes of conict of laws,
be applied in the same manner as the national law of States, whenever the
applicable conict rules refer to the “personal law” of the organization.

Social security

The internal autonomy extends also to social security attached to the rela-
tionship of employment. Thus, in the absence of any contrary provision in
the headquarters agreement or elsewhere, the host State cannot impose its
social security system upon the ofcials in their capacity as employees of the
organization and upon the organization as an employer and thereby require
the latter to participate in the social security system of the host State. A dif-
ferent matter is that the host State, by virtue of its territorial jurisdiction, can
require the ofcials to participate in a personal capacity, without involving the
organization or their relationship of employment, if this is not precluded by
any provision of the headquarters agreement,190 by privileges and immunities
or other arrangements made with the organization.
As for general practice, most large organizations have established their
own systems of social security, 191 which alone are applicable to their
ofcials. On the other hand, many organizations have submitted to the social
security system of the host State in respect of some or all of their ofcials.

189 Below, chapters 7.4 ff.


190 For example, § 25 of the headquarters agreement of the International Atomic Energy
Agency, which provides: “The IAEA shall be exempt from all compulsory contributions
to, and ofcials of the IAEA shall not be required by the Government to participate in
any social security scheme of the Republic of Austria.”
191 Thus the United Nations, UNESCO (Actes de la Conférence générale de l’Organisation
des Nations Unies pour l’éducation, la science et la culture, troisième session, Beyrouth
1948, p. 55), the World Health Organization and the European Communities. Similarly
all those specialized agencies which are members of the United Nations Joint Staff Pen-
sion Fund in so far as pensions are concerned.
inherent jurisdiction over organs and officials 173

However, such submission has been effected voluntarily, as a matter of prac-


tical convenience, usually by a special agreement concluded between the
organization and the host State.
In 1951, when the United Nations ceased to submit to the New York
Workmen’s Compensation System, because it had decided to establish its own
system, the competent New York authorities declared that their system was
not compulsory upon the United Nations, which was like a foreign State, and
thus recognized that social security falls under the exclusive jurisdiction of
the organization. Nevertheless, the United Nations, instead of relying upon
its inherent organic jurisdiction, enacted a headquarters regulation on the
subject192 under the special legislative powers conferred upon it by § 8 of its
headquarters agreement with the United States of 26 June 1947,193 which
reads in part:
The United Nations shall have the power to make regulations, operative within
the headquarters district, for the purpose of establishing therein conditions in
all respects necessary for the full execution of its functions. No federal, State or
local law or regulation of the United States which is inconsistent with a regula-
tion of the United Nations authorized by this section shall, to the extent of such
inconsistency, be applicable within the headquarters district.
The UN Secretariat may have overlooked that this power to enact headquarters
regulations is an (extended) territorial jurisdiction, which is conferred specially
upon the UN and a few other organizations. It is different from the organic
jurisdiction, which is inherent in all intergovernmental organizations. While
the latter applies to all ofcials in that capacity, wherever they are stationed,
the former applies to everybody and everything within the headquarters
district, whoever they are, in those respects in which they are governed by
territorial law, but not to ofcials or other persons at regional ofces.194 This
is not to say that the United Nations could not also use its territorial power
under § 8 to impose social security and other organic obligations upon its

192 The text of the Regulation is annexed to GA resolution 604 (VI). See also the discussions
in OR GA, V, Sixth Committee, Summary Records, 248–249th meeting (see especially
Mr. Kerno’s statement, p. 266) and ibid., VI, 301st meeting.
193 Text in 11 UN Treaty Series, and in General Assembly resolution 169 (II).
194 The two other headquarters regulations approved by and annexed to General Assembly
resolution 604 (VI) were of a territorial nature and were thus correctly enacted as head-
quarters regulations. It must be for the territorial sovereign to determine the qualications
to be required of nurses who are to treat ofcials, delegates and visitors in the headquar-
ters district, and the days upon which a bar serving delegates, ofcials and visitors shall
be closed. Therefore, when the United Nations wanted to employ nurses who fullled
requirements set by non-American legal systems, or to maintain bar service on United
States election days, it had to use the territorial legislative power delegated to it under
§ 8 of the headquarters agreement.
174 chapter five

ofcials, but merely to say that it is not necessary for the organization to use
this power and that, if it does, it reaches thereby only those ofcials who
work within the headquarters district. The vast majority of organizations,
which have no territorial legislative power, can only rely upon their inherent
organic jurisdiction. And if this did not include social security, then the host
State could impose its social security system upon the organization and its
ofcials as such. However, no host State is known to have done this without
the consent of the organization. The declaration of the competent New York
authorities cited above was made before the UN had decided to enact its
relevant headquarters regulation.
Regarding the status of social benets provided by IGOs in the national
law of the host State, headquarters agreements and actual privileges granted
to the organization and its ofcials vary as does the internal law of IGOs, on
the status of e.g. retirement schemes.195

5.6 Do headquarters agreements providing for application of


local law within the headquarters district interfere with
the organic jurisdiction?

The United Nations, unlike other intergovernmental organizations, in some


early cases attempted to nd an internal or national statutory basis for the
non-application of national law to internal, organic relations of the organi-
zation, rather than rely upon its inherent internal autonomy. This may have
been based partly upon too wide an interpretation of a treaty provision which
is peculiar to the United Nations and a few other organizations, viz. § 7 (b)
of the headquarters agreement with the United States, which provides that
United States law shall apply within the headquarters district.196
It is submitted that this provision, like § 8 of the same agreement, is
concerned exclusively with territorial jurisdiction, and is not relevant to rela-
tionships of public employment and other aspects of organic jurisdiction. It
thus does not extend the application of United States law to these matters,
not even within the headquarters district, and, of course, no more in other
countries. Any possible doubt on this point is removed if the clause contained
in § 7 (b) is viewed in its context. § 7 reads:

195 Cf. the arbitral award 14 January 2003 between France and the UNESCO on the scal
regime applicable to precisions payable to retired ofcials residing in France, see also
O. Hamady, Revue belge de droit international, Vol. XXXIX (2006–2) pp. 742–75.
196 Also Kelsen cites this provision, The Law of the United Nations, p. 314.
inherent jurisdiction over organs and officials 175

(a) The headquarters district shall be under the control and authority of the United
Nations as provided in this agreement.
(b) Except as otherwise provided in this agreement or in the General Conven-
tion, the federal, State and local law of the United States shall apply within the
headquarters district.
(c) Except as otherwise provided in this agreement or in the General Convention,
the federal, State and local courts of the United States shall have jurisdiction over
acts done and transactions taking place in the headquarters district as provided
in applicable federal, State and local laws.
(d) The federal, State and local courts of the United States, when dealing with
cases arising out of or relating to acts done or transactions taking place in the
headquarters district, shall take into account the regulations enacted by the
United Nations under section 8.
It was the fact that the headquarters agreement provides for the establishment
of a headquarters district which “shall be under the control and authority
of the United Nations as provided in this agreement” (and that the United
Nations shall have a legislative power in that district) which made it necessary
to provide expressly that the “law of the United States shall apply within the
headquarters district”. This provision was merely intended to preserve the
normal territorial legislative power which the host State has within its terri-
tory, including the premises of an intergovernmental organization, as long as
no special provisions have been made. It was in no way intended to interfere
with the exclusive organic jurisdiction which the United Nations, like any other
intergovernmental organization or State, enjoys over its organs wherever they
are located, whether in a headquarters district, elsewhere in the United States
or in other countries. Similarly, it was provided that the United States courts
should have jurisdiction [also] over acts done in the headquarters district,
without thereby intending to give these courts any more far-reaching juris-
diction than they normally have within United States territory, i.e. without
thereby interfering with the exclusive jurisdiction of the United Nations’ own
courts in organic disputes, a jurisdiction which in fact has been exercised by the
United Nations Administrative Tribunal without basis in any specic treaty
provision or in any prior consent of United States authorities.
The headquarters agreements of UNESCO (of 2 July 1954 Article 5) and
the International Atomic Energy Agency (of 11 December 1957 § 7) follow the
same pattern as that of the United Nations and must obviously be interpreted
in the same sense.197 And so must § 6 of the headquarters agreement of 31
October 1950, between the Food and Agriculture Organization of the United

197 The UNESCO agreement deviates from that of the two other organizations in that it
provides that “the Organization shall have the right to make internal regulations appli-
cable throughout headquarters in order to enable it to carry out its work”. The addition
176 chapter five

Nations (FAO) and Italy.198 Although the latter contains no provision for a
legislative power of the organization, it does provide that the headquarters
seat of FAO “shall be under the control and authority of FAO as provided
in this agreement” and then naturally has to add, under (b), that “except as
otherwise provided in this agreement, the laws of the Italian Republic shall
apply within the headquarters seat”.
However, the clause on local law being applicable within the headquarters
district has also been copied in Article 1 of the headquarters agreement
between the Council of Europe and France of 2 September 1949.199 This
otherwise conforms with the usual type of headquarters agreements, in so
far as it does not provide for any headquarters district under the “control and
authority” of the organization (nor for any legislative power of the organiza-
tion), but merely contains the usual clause on inviolability of the premises
(Article 3). In these circumstances an express clause on the application of the
law of the host State is out of place and unnecessary. It is obvious that French
law applies in French territory within the limits of general international law,
as long as no contrary provision has been made. And it was surely not the
intention of the contracting parties to extend the application of French law
to such matters as, under general international law, fall under the organic
jurisdiction of the organization. In the absence of any evidence that the clause
was so intended, it cannot be interpreted as saying any more than what would
apply in any case. It is then as superuous as an express provision to the effect
that the organization shall exercise exclusive jurisdiction over its organs and
ofcials as such would have been. And such a provision is never included in
headquarters agreements, or in other conventions on privileges and immunities,
or in constitutions of intergovernmental organizations. A different matter is
that, if the territorial jurisdiction of the host State is expressly stated (out of
context, as it is in the headquarters agreement of the Council of Europe), the
organic jurisdiction, could also have been expressly stated, to guard against
any possible confusion between the two types of jurisdiction. Indeed, once
one starts stating the self-evident, it is hard to know where to stop.

of the word “internal” might indicate that the drafters had in mind organic legislation
(which requires no specic authority) rather than territorial legislation.
198 Texts in United Nations Legislative Series, Legislative Texts and Treaty Provisions Con-
cerning the Legal Status, Privileges and Immunities of International Organizations, II,
pp. 190 (FAO), 241 (UNESCO) and 330 (IAEA).
199 Ibid., p. 396.
inherent jurisdiction over organs and officials 177

5.7 Conclusions: organic jurisdiction of States, intergovernmental


organizations and other sovereign communities

It has been demonstrated above that States, the Holy See (at least as far as its
central organs are concerned) and intergovernmental organizations exercise
legislative, executive and judicial powers over their organs and ofcials as
such, and that they exercise legislative and executive powers even over their
members in their capacity as members of these organs. This is true of all
States and of all intergovernmental organizations.200
This jurisdiction, which it is proposed to term organic jurisdiction, is an
independent type of jurisdiction, distinct from the territorial and personal jurisdic-
tion, which is exercised by all States and, to a limited extent, by the Holy See
and a few intergovernmental organizations. Intergovernmental organizations
exercise territorial and personal jurisdiction only in those exceptional cases
where States, by treaty or unilateral act, have placed territory or persons fully
or partly under their jurisdiction, or where the organization itself has occupied
or created objects of territorial or personal jurisdiction. It is no condition that
such jurisdiction is authorized in the constitution of the organization, as long
as it does not fall outside any purpose stated therein.201 Territorial jurisdiction
is exercised over a specic territory and over persons and objects while situ-
ated therein. Personal jurisdiction is exercised over nationals (and inhabitants)
wherever they are at any given moment. Organic jurisdiction is exercised over
organs and members thereof as such, wherever they are and whatever their
nationality and country of residence. In the case of States, the organic juris-
diction does not usually stand out, because the organs in most cases are in the
national territory and are composed of nationals of the State concerned, so
that the jurisdiction over them may appear as merely territorial and personal
jurisdiction. However, in certain cases States maintain organs abroad, and
these frequently have foreign employees. In the case of intergovernmental
organizations this is the rule. Even in such cases the “sending” State or the
organization, respectively, exercise their legislative, executive and judicial pow-
ers in all matters relating to the organs and their members as such, while the
host State exercises legislative, executive and judicial powers in other matters
to the extent that it is not prevented by privileges and immunities.
Like the territorial and personal jurisdiction, the organic jurisdiction is an
active jurisdiction and should not be confused with privileges and immunities

200 Per denition, cf. above, chapter 1.3.


201 Cf. Seyersted, “United Nations Forces: Some Legal Problems”, 37 British Yearbook of
International Law, 1961, pp. 351–475, at pp. 449–457. On external validity of acts
falling outside the purposes, see below, Part Three, chapter 8.3.
178 chapter five

(as many writers do) which involve merely (passive) exemption from State juris-
diction. Indeed, immunity is fundamentally different from organic jurisdiction.
Immunity has a wider eld of application inasmuch as it applies to all ofcial
acts – external as well as internal – and partly even to private acts. On the
other hand, it only exempts from foreign judicial acts and enforcement and
partly from administrative acts. It does not normally give exemption from
substantive law and not even from all administrative acts. Organic jurisdiction,
on the other hand, exempts from all types of external jurisdiction, including
application of foreign substantive law. On the other hand, organic jurisdiction
is conned to relations within and between the organs, including the internal
aspects of external acts. In their relations with external parties, States and
IGOs enjoy only immunity.
In some cases certain aspects of the organic jurisdiction are provided for in
the constitution of the State or organization concerned. However, it is never
provided for in all its aspects. Yet the organic jurisdiction is fully exercised by
all States and intergovernmental organizations, as well as by the Holy See,
which has no written constitution. This proves that the organic jurisdiction is
under customary law inherent in all State and intergovernmental organizations
(as it is, per denition, in all sovereign communities). Accordingly, it would
be unnecessary to attempt to make provision for the organic jurisdiction in
the constitution, in an agreement on privileges and immunities or in a head-
quarters or host agreement. To provide for specic aspects of the organic
jurisdiction, such as the right of certain organs to adopt rules of procedure
or to establish subsidiary organs (unless designed e.g. to avoid interference by
superior organs) is even more useless and may create confusion by inviting
unwarranted a contrario conclusions.
Acts of organic jurisdiction are legally binding upon the organs and the
ofcials as such. They are binding upon the members of the community only
in so far as they act as members of the organs. The acts are not directly bind-
ing upon external parties. However, like territorial and personal legislation,
the organic legislation must, for purposes of conict of laws, be recognized
by external parties as part of the internal law of the community (State, IGO
or the Holy See). Similarly, judgments rendered by the internal courts of
the community in disputes falling under the organic jurisdiction must prob-
ably, in the absence of any contrary provision, be recognized as binding by
foreign courts.
The organic jurisdiction is exclusive as far as it goes. No external authority
may assume any part of it without delegation or consent from the community
concerned by treaty, unilateral act or otherwise. Also in this respect is practice
sufcient to constitute customary law. This applies even to the judicial aspect
of the organic jurisdiction: External courts are incompetent ratione materiae
in matters falling under that jurisdiction. The most spectacular conrmation
inherent jurisdiction over organs and officials 179

of the exclusive nature of the organic jurisdiction may be found in those


judgments where courts of a host State have declined competence in actions
brought by nationals of that State against a foreign State or an intergovern-
mental organization in respect of a relationship of employment with that
State or organization in the territory of the host State. Indeed, in most cases
no attempt is made to bring such actions in the courts of the host State.
The organic jurisdiction is different from the powers which non-govern-
mental organizations exercise over their organs and employees in that it is
“sovereign”. Non-governmental organizations exercise jurisdiction over their
organs only to the extent and on the conditions prescribed by the applicable
territorial and personal law. Mandatory laws of the host State are binding
upon them even in their internal relations. And where their internal regulations
contain no provisions, they are supplemented even by the non-mandatory rules
of the applicable territorial or personal law. Organic jurisdiction exercised by a
State, the Holy See or an intergovernmental organization, on the other hand,
is not subject to the limitations which follow from the mandatory laws of the
host State or of any other State. And lacunae are lled, not by the law of any
particular State, but by general principles of law. The organic jurisdiction is
thus a sovereign jurisdiction, and the law created under it – the internal law
of the organization – constitutes an independent system of genuine law.
The organic jurisdiction comprises the internal relations of the “govern-
ment” of the State or organization concerned, i.e. the relations with, between
and within its organs and ofcials and other members of the organs (including
delegates and committee members) as such. The organic jurisdiction covers
also the external relations of the “government,” inside or outside the State or
organization concerned, such as the conclusion of contracts and treaties and
the performance of functional or “legal” protection, however, only as far as the
acts of the organs of the State or organization are concerned, since the organic
jurisdiction is directly binding only upon these. Indeed, the main limitation
of the exclusive organic jurisdiction is twofold: First, it is binding only upon
the organs and the constituent parts thereof. Secondly, it binds these only in
so far as they act as organs or parts thereof. Both these limitations are clear
in principle. However, the second may give rise to some practical difculties
of delimitation. As far as ofcials are concerned, there is sufcient practice to
prove that the exclusive organic jurisdiction comprises both the performance
of the ofcial functions and the relationship of employment. The former
extends also to the right to exercise protection whenever they act or travel
in their ofcial functions, while diplomatic protection in relations which have
no connection with the ofcial functions remains within the competence of
the State of which the ofcial is a national. The relationship of employment
probably extends also to social security attached to that relationship, but not
to social security attached to persons irrespective of employment.
180 chapter five

The organic jurisdiction is in certain respects more absolute than territorial


and personal jurisdiction. The territorial jurisdiction of a State over a given
territory must suffer certain diminutions because of the personal jurisdiction of
other States over their nationals in that territory, and because of the organic
jurisdiction of other sovereign communities over their organs therein. Similarly,
the personal jurisdiction of a State over its nationals must suffer radical dimi-
nutions because of the territorial jurisdiction of the States in whose territory
they stay and because of the organic jurisdiction of other sovereign commu-
nities with which they may be employed. The organic jurisdiction, however,
is absolute within its eld; it supersedes concurrent territorial and personal
jurisdiction, even if the two are combined in one (other) State, as they are
in the case of local employees of diplomatic missions and intergovernmental
organizations. The practice in this sense constitutes clear customary law.
The difference in legal force between organic and other jurisdiction is
particularly striking in the judicial eld. Within the limits of their own law
of venue, courts are not prevented from assuming jurisdiction in a dispute
merely because it arises out of a matter which is governed by the territorial
or personal law of a foreign State, or of an intergovernmental organization
upon which territorial or personal jurisdiction has been conferred. Indeed,
it does happen in practice that courts adjudicate upon disputes arising out
of matters falling under the territorial or personal jurisdiction of a foreign
State, and they then, in accordance with their own conict rules, apply for-
eign territorial or personal law to the substantive aspects. However, practice
demonstrates that no court can assume jurisdiction in disputes of a foreign
State or intergovernmental organization,202 unless that foreign community
has delegated its jurisdiction or has consented to its exercise by the court
concerned, for example, by suing, or by accepting suit without objection.
And even then the court may not feel competent under its own law to accept
jurisdiction, because incompetence ratione materiae is more extensive than
immunity ratione personae.
Up to this point practice is sufciently consistent to constitute customary
law. However, the difference between organic jurisdiction and territorial/per-
sonal jurisdiction probably goes further than that. It is submitted that a court
cannot even as a preliminary issue (question préjudicielle) try the validity of an
act performed by a foreign State or intergovernmental organization in the
exercise of its organic jurisdiction. This is so despite the fact that otherwise
(i.e. in respect of territorial or personal jurisdiction) the so-called Act of
State doctrine is not recognized as a binding rule of general international

202 See notably the cases reported above.


inherent jurisdiction over organs and officials 181

law. Indeed, unless otherwise provided, even courts which do not normally
recognize the binding force of foreign judgments must recognize the binding
force of foreign judgment rendered in disputes arising out of such matters
as fall under the organic jurisdiction of the State or organization concerned.
However, in this respect the present writer is not aware of sufcient practice
to justify a submission that this constitutes customary law.
The organic jurisdiction is of particular theoretical and practical importance
in respect of intergovernmental organizations and other sovereign communities
which have no territory properly speaking. It is also of practical importance in
respect of States and other territorial communities in so far as they maintain
organs abroad. Even in respect of State organs in the home territory it is of
some importance to distinguish between the seemingly coinciding organic
and territorial/personal jurisdiction, because acts performed in the exercise
of organic jurisdiction in some respects have stronger legal effects abroad than
acts performed in the exercise of territorial or personal jurisdiction. This is
quite apart from any internal, constitutional differences, notably in the sense
that – under the principle of “legality” of many democratic countries and
certain intergovernmental organizations – the territorial and personal jurisdic-
tion, but not the organic jurisdiction, requires basis in formal statute.
In summary, it follows from fairly consistent practice, which no doubt
constitutes customary international law, that organs and ofcials of States,
intergovernmental organizations and other sovereign communities are, in their
capacity as organs or ofcials, subject exclusively to the legislative, executive
and judicial power of these communities, unless these delegate their power
to an external authority. Indeed, it is submitted to be the basic criterion of a
sovereign community that its organs are not subject to the authority of any
external organized authority, except to that of the members of that commu-
nity acting through those very organs. If the denition of international law
is extended from comprising the law governing relations between sovereign
States as such to comprising the law governing sovereign communities as
such – as it must be in order to take into account the facts of international
life – then the exclusive organic jurisdiction stands out as the only common
denominator of subjects of international law and as the only necessary condi-
tion for international personality.
Finally, it should be reemphasized that the practice reported in this chap-
ter demonstrates that the general organic jurisdiction is not “implied” in the
special provisions contained in the constitution of each State or organization
concerned – it is inherent in, and common customary law for, all States, IGOs
and other self-governing communities.
In addition to the organic jurisdiction, IGOs also have a limited member-
ship jurisdiction over their member States. Even this is inherent for certain
182 chapter five

organizational matters, e.g. admission to membership. But in other organiza-


tional matters, e.g. budgetary contributions,203 and in all functional (substan-
tial) matters it is not inherent but depends upon special provisions for each
organization (in the constitution or otherwise) whereby the member States
delegate to the organization concerned the power to make decisions binding
upon them in certain respects (extended jurisdiction). This is not common
law in either sense, but will, nevertheless, be briey described in the follow-
ing chapters.

203 See also ILC’s proposed draft Article 43 on responsibility of international organizations,
doc. A/62/10 (2007), pp. 214–7, and chapter 10 below.
CHAPTER SIX

EXTENDED JURISDICTION OF SOME ORGANIZATIONS


IN SUBSTANTIVE MATTERS (DELEGATED POWERS)

6.1 Introduction

The extended jurisdiction which some IGOs exercise over territories, catego-
ries of persons and in or over States, is not common law, but special law for
each organization – and it requires a legal basis in each case. Still, we shall
survey it in the present book in order to complete the picture of IGO-law,
to offer guidance (choice of alternatives) for establishment of new extended
jurisdiction, and, primarily, to illustrate the relevant aspects of common law,
notably what kind of legal basis is required for extended jurisdiction. As we
shall see, there is even here no basis in practice for the general evasive point of
departure of legal writers that the authority must be laid down or “implied”
in the constitution of the organization concerned, which has given rise to
purely ctitious assumptions and offers no guidance.
Even in respect of extended jurisdiction the approach of writers that the
powers of an IGO must be prescribed or “implied” in its constitutional
instrument is false. IGOs in practice assume governmental powers over their
territories, categories of persons, or States on bases other than their written
constitutions; e.g. by occupation or by transfer from States or other intergov-
ernmental organizations. It serves no useful purpose to attempt to interpret
such powers into constitutional provisions that were never meant to cover
them and the lack of which does not rule them out. The present writer has
collected ample material from practice which demonstrates that the power
of IGOs to assume such extended jurisdiction and to perform external acts
under international law is not contingent upon relevant constitutional provi-
sions, as long as there is no provision precluding it. But it does require some
legal basis – in the form of an act by the organization or by the other parties
concerned. Moreover, any such existing provisions authorizing specic powers
cannot automatically be interpreted a contrario.
184 chapter six

6.2 Territorial jurisdiction

Internationalized territories

Although most IGOs do not have a territory of their own in the same sense
as States, the League of Nations, the UN and other IGOs have, on several
occasions, been granted, or decided to assume, full or limited powers of
jurisdiction over certain disputed or other territories – mostly on a temporary
basis. In other cases a special IGO was established to govern the area.
The League of Nations after World War I exercised limited powers in
respect of fourteen mandated territories1 in accordance with explicit provisions
in Article XXII of its constitution and the UN did likewise after World War
II over eleven trust territories in accordance with Chapter XII of its Charter.2
All of these subsequently became independent States. Under Article 81 of
the UN Charter, the administering authority of a trusteeship territory “may
be one or more States or the Organisation itself ”. The latter happened with
regard to South-West Africa for a transitional period after the UN General
Assembly terminated the mandate exercised by South Africa.3 But even in
this case the functions of the organization were conned to the more limited
supervisory functions involved when States are entrusted with trusteeship.
In addition, both the League of Nations and the UN have exercised ter-
ritorial powers without basis in relevant constitutional provisions:
Thus the League exercised full powers of government in the Saar from
1920 to 1935, through a Governing Commission appointed by and respon-
sible to the League4 and limited powers in respect of Danzig, through a High

1 The resolution on mandates adopted by the Institut de droit international in 1931, Annu-
aire de l’Institut de droit international XXXVI (1931), II, p. 53, may have overstated the
independent legal position of mandates.
2 On South-West Africa’s transformation from LN mandate to UN trusteeship, see the ICJ
advisory opinion on the International Status of South-West Africa in ICJ Reports, 1950,
esp. pp. 136–8 and 143. See also the advisory opinion on Admissibility of Hearings of
Petitioners by the Committee on South-West Africa ibid., 1956, pp. 23 ff. For details of the
trusteeship system, see Oppenheim: International Law, 9th ed., Harlow 1992, pp. 295–318.
Cf. also e.g. Art. 7 of the Trusteeship Agreement for the Territory of Tanganyika of 13
December 1946, which provided that the Administering State undertakes to apply “the
provision of any international conventions and recommendations” drawn up by the UN
or by the specialized agencies “which may be appropriate to the particular circumstances
of the Territory and which would conduct to the achievement of the basic objectives of
the International Trusteeship System” (UNTS, Vol. 6, p. 96).
3 General Assembly Resolution 2145 (XXI) 1966, paras. 4–6.
4 Treaty of Versailles, Arts. 45–50 with Annex; cf. Council Resolution of 13 February 1920,
Société des Nations, Journal Ofciel, 1920, p. 50. Cf. also the powers of the Western
extended jurisdiction of some organizations 185

Commissioner appointed by the Council.5 This was provided in the Treaty


of Versailles, which was only one of the ve peace treaties into which the
Covenant was incorporated, and which was not ratied by all members of
the League. Later the League also, through a Commission, administered the
Leticia area, which was disputed between Colombia and Peru, for one year
1933–34, keeping order by means of a few Colombian troops wearing LN
armbands and placed under the League’s command and regarded as an
international force.
After World War II, the United Nations has, on certain occasions, decided
to assume limited governmental functions in disputed territories, although the
Charter contains no provisions authorizing it to exercise jurisdiction in respect
of territories other than trust territories.6
The annexes to the Treaty of Peace with Italy conferred upon the UN
Security Council certain limited functions relating to the government of the
proposed Free Territory of Trieste, and the Council, after a juridical debate,
on 10 January 1947 by ten votes to none and with one abstention adopted
a resolution approving the relevant annexes to the Peace Treaty and accept-
ing the responsibilities devolving upon it under the Treaty. Some members
of the Council questioned its competence to assume these responsibilities in
the absence of specic authorization in the Charter.7 These objections were
met, inter alia, by a reference to Article 24, which confers on the Security
Council “primary responsibility for the maintenance of international peace
and security”, without saying anything about power to exercise territorial
jurisdiction. However, the arguments of the opposition and the ensuing
discussion referred only to the power of the Security Council, and thus, like
Article 24 itself, appear to have been concerned primarily with the distribu-
tion of powers within the organization, rather than with the power of the
organization as a whole, acting through the General Assembly, although this

European Union to supervise the implementation of the French-German agreement on


the Status of the Saar of 23 October 1954.
5 Treaty of Versailles, Arts. 100–108; cf. Council Resolution of 13 February 1920 dening
the duties of the High Commissioner, ibid., p. 53.
6 See The Charter of the United Nations, A Commentary, edited by Bruno Simma, Oxford
1994, pp. 933–8; S.M. Schwebel: “Human Rights in the World Court”, Vanderbilt Journal
of International Law XXIV (1991) describes, at pp. 950 ff. and 961 ff., the role of the
Permanent Court of International Justice in protecting human rights in Danzig before
World War II and of the International Court of Justice in protecting human rights in
South-West Africa/Namibia immediately after World War II.
7 Kelsen: The Law of the United Nations pp. 833–4 unduly denied the competence of the
Security Council because no provision in the Charter authorizes it to exercise rights of
sovereignty over a territory which is not a trust territory.
186 chapter six

distinction was brought out by one delegate only.8 However, the plan was
never implemented.
Another abortive decision was the General Assembly’s adoption later in
the same year, of a plan for partition of Palestine whereby the UN would
assume certain governmental functions in the country, notably in respect
of the City of Jerusalem, which was to be established as a corpus separatum
under a ‘special international régime’. More specically, the City was to be
administered by the UN through a Governor, appointed by and responsible
to the Trusteeship Council and assisted by an administrative staff classed
as international ofcers within the meaning of Article 100 of the Charter.
The Governor was to exercise on behalf of the UN all powers of admin-
istration, including the conduct of external affairs.9 As was expressly stated
in a subsequent report to the Trusteeship Council, the City was not to be
a trust territory, and Chapters XII–XIII of the Charter were not generally
applicable.10 Nevertheless, the partition plan was adopted by 33 votes to 13
(ten Islamic and three non-Islamic States), with ten abstentions.11 However,
it was never executed.
When some IGOs did not carry out governmental functions assigned to
them, this was not due to any legal incapacity of the organization, but to lack
of co-operation of the States having control over the territories. Indeed, if

8 The Polish delegate, who appropriately stated: “We do not have any legal qualms about
the Security Council accepting the responsibilities it is asked to accept. I know that it
may be somewhat difcult to point to a specic phrase in the Charter which would justify
the taking over of the functions we are asked to assume. However, I think it would be
entirely within the general spirit of the Charter of the United Nations, if it were decided
to form a Free Territory under a quasi-international administration. We believe it is only
proper that the United Nations, as an Organization, should be given the responsibility of
supervision over its administration. And since it is a matter which involves international
peace and security, we believe that the Security Council is the logical organ to carry out
these functions.” OR SC, 1974, pp. 4–19 and 44–61. See also Schachter in BYIL, XXV
(1948), pp. 96–101.
9 General Assembly Resolution 181 (II), Annex, part III; cf. General Assembly Resolutions
194 (III) and 303 (IV) and Trusteeship Council Resolution 234 (VII).
10 Kelsen, op. cit., p. 687, with citations. On this basis the competence of the Trusteeship
Council was denied by those opposed to the partition plan (Kelsen, loc. cit., who also
himself denied the competence pp. 133–4). This denial disregards the inherent power
of the General Assembly to delegate its powers to other organs of the Organization,
rather than the competence of the organization as a whole (acting through the General
Assembly) to govern a territory. – In addition, several speakers of the opposition chal-
lenged the legality of the entire partition plan because it was said to violate the right
of self-determination of the peoples, exceed the terms of the mandate, and for other
reasons, but apparently without alleging (at least in the plenary meetings) any incompe-
tence of the organization to assume territorial jurisdiction not specied in the Charter
(OR GA, 2nd session, plenary meetings, pp. 1310–1427), although certain statements
might be interpreted as hints in this sense (ibid., pp. 1326–7, 1329, 1338–9, 1371).
11 Ibid., pp. 1325, 1327; cf. pp. 1370–71.
extended jurisdiction of some organizations 187

the UN and other modern organizations have only to a limited extent exer-
cised territorial jurisdiction, it is for the external reason that most territory is
under the control of States, and that the UN, like any other authority, cannot
assume jurisdiction over such territory unless these States cede their powers.
An intergovernmental organization cannot without specic legal basis impose
its jurisdiction upon States. But in those cases where the States concerned have
ceded their powers, or where there is no territorial sovereign, it has rightly not
been considered necessary to look for a provision in the constitution of the
organization concerned authorizing it to exercise territorial jurisdiction.12
An example of the latter was the successful administration of West
New Guinea (Irian Barat/West Irian) by the UN from 1 October 1962 to
1 May 1963 through a Temporary Executive Authority comprising thirty-two
nationalities, including Dutch and Indonesian personnel. As has already been
explained elsewhere, full authority to administer that Territory was conferred
upon the organization by a bilateral Agreement of 15 August 1962 between
Indonesia and the Netherlands.13 The General Assembly conned itself to
adopting a resolution in which it:

1. Takes notes of the Agreement;


2. Acknowledges the role conferred upon the Secretary-General in the Agree-
ment;
3. Authorizes the Secretary-General to carry out the tasks entrusted to him
in the Agreement.14

No objection was made against this resolution on legal grounds. No member


voted against. And those 14 members who abstained appear to have done

12 During the consideration of military enforcement measures at the San Francisco Confer-
ence, an amendment presented by the Norwegian delegation, to provide that the Security
Council may ‘take over on behalf of the Organization the administration of any territory
of which the continued administration by the State in possession is found to constitute a
treat to the peace’, was withdrawn, after it had been indicated that such a reference to a
particular procedure could be interpreted as restrictive and of such nature as to limit the
eld of application of measures at the disposition of the Council (Report of Rapporteur
of Committee III/3 to Commission III on Chapter VIII, Section B, Doc. 881), part II B,
United Nations Conference on International Organization, San Francisco 1945, Selected
Documents (Washington 1946). This Conference thus appeared to take the view that a
general provision authorizing the Council to make binding decisions and to apply military
sanctions constituted sufcient authority for it to establish cession of jurisdiction, and that
no specic mention of territorial jurisdiction was necessary to enable the Organization to
assume such jurisdiction.
13 Cf. Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp.
76–79.
14 Resolution 1752 (XVII) of 21 September 1962.
188 chapter six

so on other grounds.15 Only two of them explained their abstention, stating


partly that a referendum under neutral control should have been held before
any transfer of the territory, and partly that this important decision should
not have been made in such haste, without adequate study.
Another post-war project, which was implemented, was the Saar, which after
1955 was under supervision of the Western European Union, acting through
a European Commissioner appointed by and responsible to the Council of
Ministers.16 After World War II the UN also exercised certain functions in
respect of the former Italian colonies.
On the other hand, the UN is not known to have used the power expressly
conferred upon it in Article 81 of the Charter to act itself as administering
authority of a trusteeship territory, as it might have done e.g. on the basis of
General Assembly resolution 2145 (XXI) on South-West Africa.
In none of the above cases where IGOs assumed territorial jurisdiction
did the constitution of the organization contain provisions authorizing it to
exercise even temporary jurisdiction over the territory concerned. The Cov-
enant of the League of Nations and the UN Charter had only provisions
for mandates17 and trust territories18 to be administered by an administering
State, with only supervisory functions for the organization.19 Article 81 of
the UN Charter provides that “the administering authority may be one or
more States or the Organization itself ”; however, the several cases where
the UN did itself exercise the jurisdiction were not trusteeships based upon
that provision. Indeed, it was assumed already at the 1945 San Francisco
Conference, which adopted the UN Charter, that the UN had the power to
exercise territorial jurisdiction. At that conference the correct view was taken
that military sanctions constituted sufcient authority and that no specic
mention of territorial jurisdiction was necessary to enable the Organization
to assume such jurisdiction.
In some cases – such as (indirect) condominia and coimperia – a special IGO
is established to govern a territory – fully or in certain respects, cf. below.
In such cases the territorial jurisdiction will normally follow from the treaty

15 Seyersted, op. cit. p. 141. No-one suggested that UN participation in the transfer of
authority was ultra vires, see Crawford, The Creation of States in International Law,
Oxford 2006, p. 556.
16 European Statute for the Saar, signed at Paris on 23 October 1954, Arts. 2 and 5, cf.
Keesing’s Contemporary Archives, 1954, pp. 138–45.
17 Cf. Oppenheim’s International Law, I, 9th ed., Harlow 1992, pp. 295–307.
18 Cf. ibid., pp. 308–18.
19 Cf. the Text of Agreements of (nine) Trust Territories in UN, Ofcial Records of the Sec-
ond Part of the First Session of the General Assembly, Suppl. No. 5 (1947), and Ofcial
Records of the Second Session, Suppl. No. 10 (1948).
extended jurisdiction of some organizations 189

establishing the regime (and the capacity to act externally on behalf of the
territory follows from the jurisdiction). A historic example is the International
Commission of the Cape Spartel Lighthouse20 established by a convention
of 31 March 1958, which left the administration of the lighthouse in the
hands of the local sovereign, the King of Morocco. Other examples were
the Inter-Allied Rhineland High-Commission after World War I21 and other
intergovernmental occupation regimes during or after a war, including those
in Germany (and Austria) after World War II.
In later years there has been resurgence in international territorial adminis-
tration by IGOs.22 We have thus seen pre-existing IGOs (UN, NATO) exercis-
ing territorial jurisdiction both in respect of civil administration and military
security with wide powers covering a broad range of activities in parts of the
former Yugoslavia (Bosnia and Kosovo) and in East Timor.23
The legal basis for IGOs exercising such territorial administrative powers
may be vested in the consent of the former sovereign power or an authoriza-
tion of the UN Security Council, alternatively on a combination of the two
(e.g. in which the UN Security Council takes note of an agreement between
the sovereign power and an IGO.) However, there is no legal obstacle to the
UN or another IGO assuming the territorial legislative, administrative, judicial
and other functions which devolve upon an occupying power under custom-
ary international law – despite the fact that the codication of these rules in
Article 42 et seq. of the Regulations on Land Warfare annexed to the Fourth
Hague Convention of 1907 and in the Fourth Geneva Convention of 1949
Relative to the Protection of Civilian Persons in Time of War and its First
Additional Protocol of 1977 may only be acceded to by States.24

20 Cf. Manley Hudson: International Legislation, VI, p. 851.


21 Cf. Clunet, LIII (1926), pp. 1045 and 1048, and Annual Digest of International Law
Cases, 1925–26, Case No. 36.
22 As described by Wilde, From Danzig to East Timor and Beyond: The Role of International
Territorial Administration, AJIL Vol. 95 2001, pp. 583 ff.
23 In the case of Kosovo, UN Security Council Resolution 1244 (1999) authorizes both an
international civil and security presence with broad mandates to the effect that the province
of Kosovo is subjected to international administration. The Kosovo Force (KFOR) is a
NATO-led security presence in Kosovo. The international civil presence is led by United
Nations Mission in Kosovo (UNMIK). Other intergovernmental organizations assist in the
performance of UNMIK’s mandate, such as the Organization for Security and Co-opera-
tion in Europe (OSCE), the European Union (EU) and the Council of Europe. The United
Nations Transitional Authority in East Timor (UNTAET), established by UN Security
Council Resolution 1272 (1999), was empowered to exercise all legislative and executive
authority, including the administration of justice during the three year transitional period
to independence.
24 Regardless of this limitation, the better part of the laws of occupation aimed at protecting
civilians and other non-combatants is now considered part of customary international law
and as such also binding on IGOs when engaged in a situation regulated by humanitarian
190 chapter six

Except for mandates, trust territories, condominia and coimperia – there was
in none of the cases cited above any constitutional provision authorizing the
organization to exercise territorial jurisdiction.

Condominia and coimperia

In joint military occupation regimes and other cases where two or more States
exercise joint territorial jurisdiction (condominium or coimperium)25 through joint
organs established specially for the purpose, the question arises whether juris-
diction and international responsibility vest in the participating States severally
and jointly (direct condominium or coimperium) or in the joint organs they have
established to govern the territory, as an IGO having its own international
personality identical to that of the territory (indirect condominium or coimperium).
Whatever the answer, a territory which is not subject to the sovereignty of
one State, must constitute a distinct subject of international law, as it cannot
at the same time be part of the international personality of two or more
States. This will normally be the case26 and was on good grounds decided in
respect of the Inter-Allied Rhineland High Commission by a Belgian court-
martial (acting as court of occupation) by a decision of 9 April 1926, upheld
by the Court of Appeal at Aachen on 9 June 1926.27 The distinction – and
the question – is well put in Article 35 (5) of the ILO constitution:
A declaration accepting the obligations of any [International Labour] Conven-
tion may be communicated to the Director-General of the International Labour
Ofce . . .
a) by two or more Members of the Organisation in respect of any territory
which is under their joint authority; or
b) by any international authority responsible for the administration of any
territory, in virtue of the Charter of the United Nations or otherwise, in respect
of any such territory.

law, see Henckaerts and Doswald-Beck, Customary International Humanitarian Law,


International Committee of the Red Cross, Cambridge 2005, pp. 299 ff.
25 Some writers use the term condominium, others coimperium. Verdross has pointed out
that condominium is the proper term where the governing States share the sovereignty
over the area (Gebietshoheit ausüben), while coimperium is the term where they merely
jointly administer a territory which belongs to another State. A. Verdross: Völkerrecht 5th
ed., Vienna 1964, pp. 297–8.
26 Cf. the examples cited by Lawrence: The Principles of International Law, p. 172 and by
Kunz; Staatenverbindungen, pp. 281–2.
27 Clunet: LIII, pp. 1045 and 1048; Annual Digest of International Law Cases, 1925–26,
Case No. 36.
extended jurisdiction of some organizations 191

This is an aspect of the question of the lower limit for and denition of
IGOs.28 However, when a pre-existing IGO takes over administration of
a territory, there is no doubt that jurisdiction and responsibility vest in the
organisation alone,29 despite the fact that some writers have used the terms
“condominium”30 and “coimperium” even in such cases.31

International rivers

As described in chapter 1 above, the rst known IGO to be established was


the Central Commission for the Navigation on the Rhine of 1815, which is
still operating. Another well-known river commission, the European Danube
Commission, was established in 1856 and continued in operation until it after
World War I was replaced by two commissions, one for the river’s mouth and
one for the rest of the river.
Several such international river commissions exercise binding legislative,
administrative, judicial and scal powers to co-ordinate, regulate and control
the use of the rivers, notably the navigation on the rivers concerned of ships
of both member and non-member States, normally on the basis of express
provisions in the constitutional (and subsequent amending) conventions.
The riparian States have thus ceded to the organization sovereign author-
ity within the limited territory and the limited functional elds concerned.
Most of these river commissions exercise their authority by decisions made
by weighted voting, directly or in disguised form. In some cases, however,
the decisions of the organization are not directly binding upon the ships, but
merely upon the contracting States, which enforce them upon their ships via
their own national legislation. In such cases we are not faced with territorial
IGO jurisdiction, but merely with jurisdiction over States. This is also the
method used in order to prevent or limit pollution of the rivers, notably by
the Commission internationale contre la pollution du Rhin.

28 Above, chapter 2.
29 Although controversial in relation to a mounting number of international peace support
operations, this position has been strengthened by the Grand Chamber decision of the
European Court of Human Rights as to the admissibility of the joined cases Behrami
and Behrami v. France and Saramati v. France, Germany and Norway of 2 May 2007,
which rejected as inadmissible claims holding troop contributing States responsible for
alleged wrongful acts committed during the conduct of a peace support operation under
international unied control and command, see further below, chapter 10.
30 Oppenheim: International Law I, in respect of the Free Territory of Trieste.
31 Verdross: Völkerrecht, in respect of the UN Headquarters District in New York.
192 chapter six

Ships, aircraft and space vessels 32

In many of those cases where IGOs operate ships and aircraft, these have
been lent by member States and remain on their register even if they y the
organization’s ag. They are then subject to the national territorial law of the
State concerned. However, in several cases IGOs themselves own and operate
ships, aircraft and space vessels.33 This occurred rst by a pre-existing organi-
zation – the UN – operating ships under its ag after World War II in Korea
and the Middle East34 and subsequently in Western New Guinea (1962–63).
Later we got IGOs specially established for the purpose of launching and
operating space vessels (satellites), notably for telecommunication purposes;35
Intelsat, Intersputnik,36 Inmarsat,37 Eutelsat, Arabsat,38 and the European Space

32 Cf. also the report of E. du Pontavice on “Les aspects juridiques de l’exploitaton des maisons
sous la mer” in International Law Association, Report of the Fifty-Seventh Conference,
Madrid 1976, pp. 344–95. – On the position of ships in the territorial sea, see Arts. 14–23
of the Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958
and Arts. 17–33 of the 1982 UN Law of the Sea Convention. On criminal jurisdiction
over aircraft while in the air above national and international land or sea territory, see
Arts. 3–4 of the Convention on Offences and Certain Other Acts Committed on Board
Aircraft of 14 September 1963.
33 On the latter, see G. Causacchi di Amelia: “Les véhicules spatiaux et le droit international
in Um Recht und Freiheit, Festschrift für Friedrich August Freiherr von der Heydte,
Berlin 1977, pp. 123–32 and A. Javenko: “International Space Law: Urgent Issues” in
International Affairs, XXXXV (1999), pp. 82–92. On liability for space objects (satellites)
of IGOs, see below.
34 See report of 8 May 1956 by J.P.A. François, Special Rapporteur on the Right of Inter-
national Organizations to Sail Vessels Under Their Flags in Yearbook of the International
Law Commission 1956, II, p. 103; note by the UN Secretariat in United Nations [rst]
Conference on the Law of the Sea, 1958, Ofcial Records, II, pp. 102–3 and IV pp. 65–76,
129 and 138–40, and United Nations Review, IX (1962), No. 12, p. 26; H. Meyers: The
Nationality of Ships, the Hague 1967, pp. 323–51 described early practice and relevant
agreements and the problems involved.
35 On many of these and other relevant global and regional IGOs, see N. M. Matte: Droit
aérospatial de l’exploration scientique à l’utilisation commerciale, Paris 1976, and:
“Aerospace Law: Telecommunication Satellites” in Recueil des Cours de l’Academie de
droit international, 1980 I, at pp. 145 ff. and 151 ff., and K.H. Böckstiegel and M. Benkö
(eds.): Basic Legal Documents, Dordrecht 1990, Vol. Two A
36 Intersputnik is an intergovernmental organization with 25 member States. The constitu-
tional agreement of 15 November 1971 (UNTS Vol. 862) refers to the Treaty of 27 January
1967 governing the Activities of States in the Exploration and Use of Outer Space, and
has been supplemented by an agreement of 20 September 1976 on the Organization’s
legal capacity and privileges and immunities.
37 Inmarsat was, like Intersat and Eutelsat, originally established as an IGO by an Agreement
and an Operating Agreement of 3 September 1976, cf. above chapter 1, note 32.
38 Arabsat is an intergovernmental organization founded by the Arab League in 1976. It is
governed by the General Assembly, the Board of Directors and the Management Com-
mittee. The relevant constitutional conventions of these and other regional and global
space organisations are listed in N. Jasentuliyana: International Space Law and the United
Nations, the Hague 1999, pp. 7–8.
extended jurisdiction of some organizations 193

Agency.39 In modern times we have also permanent manned space stations. The
station “Freedom” was established internationally by Agreement of 29 Septem-
ber 1988 between the US, the member States of the European Space Agency,
Japan and Canada, on Cooperation in the Detailed Design, Development,
Operation and Utilization of the Permanently Manned Civil Space Station.40
The relevant treaties contain some provisions on jurisdiction on the vessels
and on responsibility, but they do not carry far.
When IGO vessels are in national territory, they are under the territorial
jurisdiction of the State concerned, subject to any applicable privileges and
immunities. The crew, if they are international ofcials, is subject to the
organic jurisdiction of the organization wherever the vessel is. The former was
expressly stated in an agreement of 29 July 1964 between the European Space
Research Organisation (ESRO) and Sweden concerning the Kiruna Launch-
ing Range: “The activities of the organization in Sweden shall be governed by
Swedish law” (italics added). However, it was added in Article 6:
Sweden shall not incur by reason of the activities of the Organisation on
its territory any international legal responsibility for acts or omissions of the
Organisation or of its agents acting or abstaining from acting within the limits
of their functions. If Sweden, however, should incur such responsibility, Sweden
shall have the right of recourse to the Organisation.41
When outside national territory – i.e. in the global commons – the vessels
are subject to the territorial jurisdiction and international responsibility of
the ag State. This is stated expressly for ships in Article 92 of the 1982 UN
Convention on the Law of the Sea.42 If they have not been registered with –

39 Convention for the Establishment of a European Space Agency of 30 May 1975, Inter-
national Legal Materials, XIV (1975) pp. 864 ff. Cf. F.G. von der Dunk: Private Enterprise
and Public Interest in the European Spacescape, Leiden 1998, pp. 229–39.
40 Space Station Freedom was the name given to NASA’s project to construct a permanently
manned earth-orbiting space station. Although approved by then US president and
announced in the 1984 State of the Union Address, Freedom was never constructed or
completed as originally designed, and after several cutbacks, the remnants of the project
became part of the International Space Station, a joint project between ve space agen-
cies: the National Aeronautics and Space Administration (NASA, the US), the Russian
Federal Space Agency (Roskosmos, Russian Federation), the Japan Aerospace Exploration
Agency ( JAXA, Japan), the Canadian Space Agency (CSA, Canada) and the European
Space Agency (ESA). Full English text on “Freedom” in European Space Agency publi-
cation SP-305 (1990), on an International Colloquium of 1989 on Les Stations spatiales
habitées, Aspects juridiques, at pp. 147–172, cf. an additional bilateral agreement between
the European Space Agency and the US National Aeronautics and Space Administration
at pp. 173–224, and commenting articles at pp. 27–34 and 55–77. Cf. also E. Kamenet-
shaya: “Large Space Systems Belonging to International Organizations: Certain Problems
of Registration, Jurisdiction and Control” in the earlier Proceedings of the Twenty-Third
Colloquium on the Law of Outer Space, p. 179.
41 Cf. also Arts. 12–14 of the Agreement.
42 See also Art. 6 of the Convention on the High Seas of 29 April 1958.
194 chapter six

and/or y the ag of – a State, they are subject to the territorial jurisdiction
of the organization (in addition to its organic jurisdiction over members of
the crew who are international ofcials), whether or not the vessel formally
ies the ag of the organization and/or is registered with it, as done in certain
cases. It is also conceivable that IGO-vessels may be registered with and/or
y the ag of a specialized agency or other relevant central organization –
e.g. the International Maritime Organization for ships and the International
Civil Aviation Organization for air-vessels.43 Whatever model is chosen, IGOs
normally lack an applicable law and courts as States have.
The question of ships under UN ag was raised by the UN Secretariat at
the rst UN Conference on the Law of the Sea in 1958. However, the problem
was too novel for the Secretariat or delegates to take a position, particularly
during the cold war. Instead, the Conference adopted the following reserva-
tion (proposed by the present writer for Norway and co-sponsored by Mexico,
United Arab Republic and Yugoslavia) as Article 7 of the Convention on the
High Seas of 29 April 1958:
The provisions of the preceding articles do not prejudice the question of ships
employed on the ofcial service of an intergovernmental organization ying the
ag of the organization.44
Afterwards the then communist States realized that also NATO could benet
from such a general provision and they therefore caused the corresponding
Article 93 of the 1982 Convention on the Law of the Sea to be conned to
“ships employed on the ofcial service of the United Nations, its specialized
agencies or the International Atomic Energy Agency”. It is submitted that
the latter article cannot be given limitative (a contrario) effect – precluding ships
ying the ag of other IGOs – not even between the contracting parties, and
certainly not in common law.
As for registration, we already have provisions for international registration
of aircraft, adopted by the International Civil Aviation Organization (ICAO).
Article 77 (cf. Articles 78–79) of its constitution provides that “the Council
shall determine in what manner the provisions of this Convention relating to
nationality of aircraft shall apply to aircraft operated by international operating
agencies”. ICAO, by its relevant resolution,45 established two types of non-
national registration, described as follows in Appendix 1 to the Resolution:

43 Cf. Bin Cheng: “Nationality of Aircraft Operated by Joint or International Agencies” in


Yearbook of Air and Space Law, Montreal 1966, pp. 5–31.
44 Cf. United Nations [rst] Conference on the Law of the Sea, Ofcial Records, IV, pp.
138–40, and Yearbook of the International Law Commission, 1956, II, pp. 102–3 and 279.
45 Council resolution of 14 December 1967 on joint and international registration of aircraft,
doc. 8722-C/976.
extended jurisdiction of some organizations 195

For the purpose of this Resolution


– the expression “joint registration” indicates that system of registration of
aircraft according to which the States constituting an international operating
agency would establish a register other than the national register for the joint
registration of aircraft to be operated by the agency, and
– the expression “international registration” denotes the cases where the aircraft
to be operated by an international operating agency would be registered not on
a national basis but with an international organization having legal personality,
whether or not such international organization is composed of the same States
as have constituted the international operating agency.
The basic distinction between these two types is not the legal personality46 –
because the “joint registration” may well involve establishment of interna-
tional organs which constitute a modest new IGO for the special purpose.
The difference is that “international registration” involves a pre-existing IGO
which (also and primarily) works for broader purposes, e.g. ICAO or a regional
organization such as the League of Arab States.
As for space vessels, the early treaties on Principles Concerning the Activities
of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies of 27 January 1967 and on the Return of Astronauts
and the Return of Objects Launched into Outer Space of 22 April 1968,
speak of States only. The subsequent conventions on the Liability for Damage
Caused by Space Objects of 22 March 1972 and on Registration of Objects
Launched into Outer Space of January 1975 speak of the “launching State”,
which includes “a State which launches or procures the launching of a space
object” or “a State from whose territory or facility a space object is launched”
(Article I). But the Registration Convention adds, in Article VII:
1. In this Convention, with the exception of Articles VIII to XII inclusive [the
nal clauses], references to States shall be deemed to apply to any international
intergovernmental organization which conducts space activities if the organiza-
tion declares its acceptance of the rights and obligations provided for in this
Convention and if a majority of the States members of the organizations are
States Parties to this Convention and to the Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies.
2. States Members of any such organization which are States Parties to this
Convention shall take all appropriate steps to ensure that the organization makes
a declaration in accordance with paragraph 1 of this article.

46 As assumed by a Panel of the International Law Association, cf. Bin Cheng, op. cit. at
pp. 16 ff. He considers, for other reasons, that joint registration is not permissible under
the Chicago Convention (the ICAO constitution).
196 chapter six

And the Liability Convention provides the same in its Article XXII (3) that
the “organization and those of its members which are States Parties to this
Convention shall be jointly and severally liable if the organization has not paid
within six months”. The Treaty of 27 January 1967 on Principles Governing
the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies, was (also) evasive in its Article XIII:
The provisions of this Treaty shall apply to the activities of States Parties to the
Treaty in the Exploration and use of outer space, including the Moon and other
celestial bodies, whether such activities are carried on by a single State Party to
the Treaty or jointly with other States, including cases where they are carried
on within the framework of international intergovernmental organizations.
Any practical question arising in connection with activities carried on by inter-
national intergovernmental organizations in the exploration and use of outer
space, including the Moon and other celestial bodies, shall be resolved by the
States Parties to the Treaty either with the appropriate international organization
or with one or more States members of that international organization, which
are Parties to this Treaty.
The immediately succeeding provision in Article 6 of the Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space of 22 April 1968 was more advanced:
For the purposes of this Agreement, the term “launching authority” shall refer to
the State responsible for launching, or, where an international intergovernmental
organization is responsible for launching, that organization, provided that that
organization declares its acceptance of the rights and obligations provided for in
this Agreement and a majority of the States members of that organization are
Contracting Parties to this Agreement and to the Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies.
However, even this Agreement was, under its Article 7 open only to States for
regular signature and ratication.
A similar provision is contained in Article XXII of the subsequent Con-
vention of 29 March 1972 on International Liability for Damage Caused by
Space Objects:
1. In this Convention, with the exception of Articles XXIV to XXVII, refer-
ences to States shall be deemed to apply to any international intergovernmental
organisation which conducts space activities if the organisation declares its
acceptance of the rights and obligations provided for in this Convention and if
a majority of the States members of the organisation are State Parties to this
Convention and to the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies
3. If an international intergovernmental organisation is liable for damage by
virtue of the provisions of this Convention, that organisation and those of its
extended jurisdiction of some organizations 197

members which are State Parties to this Convention shall be jointly and severally
liable; provided, however, that:
(a) any claim for compensation in respect of such damage shall be rst presented
to the organisation.

Global commons47

This modern term, like the term “the common heritage of mankind”48
comprises areas which under customary international law – partly conrmed
in express treaty provisions – are not subject to appropriation by any State:
The high seas, the international sea-bed and outer space. Antarctica, whose
status is controversial, will be dealt with separately below. The Commission
on Global Governance’s 1996 report “Our Global Neighborhood” recom-
mended amending Chapters XII and XIII of the UN Charter to give the
Trusteeship Council authority over the global commons, but this has not
been followed up.

The high seas


The high seas49 are a exible concept, as they are delimited by various types
of costal zones50 of States (and even of IGOs when they exercise jurisdiction

47 Cf. M. Diez de Velasco: Institutiones de derecho international publico, 11th ed., Madrid
1991, pp. 485–595; Young and Oskerenko (eds.): Polar Politics Creating International
Environmental Regimes, Ithaca and London 1993, with contributions on, inter alia, the
formation of international regimes and on regimes for land and sea areas and for the
stratosphere.
48 R.M. Malkassian: “Contenido del principio de patrimonio comun de la humanidad” in
Anuario Argentino de Derecho Internacional, II, 1984–86, uses the term”patrimonio
comun de la humanidad”, but speaks only of outer space and the international sea-bed.
T. Fitschen: “Common Heritage of Mankind” in Wolfrum/Philip (eds.): United Nations
Law, Policies and Practice, Dordrecht 1995, pp. 149–59, includes in this concept primarily
the high seas and outer space.
49 Cf. International Organizations and the Law of the Sea, Documentary Yearbooks issued by
the Netherlands Institute for the Law of the Sea, the Hague; N. Grief: Public International
Law in the Airspace and the High Seas, the Hague 1994; C.C. Joyner: Antarctica and
the Law of the Sea, the Hague 1992; United Nations: The Law of the Sea. Multilateral
Treaties, revised edition 1997; E. Franck: Maritime Claims in the Arctic, Dordrecht 1993;
K. Baslar: The Concept of the Common Heritage of Mankind in International Law, the
Hague 1998, pp. 205–42; R. Wolfrum: Die internationalisierung staatsfreier Räume, Berlin
1984, pp. 101–268 and 328–679; F. Wolf: “L’organisation Internationale du Travail et la
convention des Nations Unies sur le droit de la Mer” in Y. Dinstein (ed.): International
Law at a Time of Perplexity, Dordrecht 1989.
50 See Arts. 2 ff., 33 and Parts V and VI of the 1982 Convention on the Law of the Sea.
These zones are relevant also for IGOs when they, exceptionally, have jurisdiction over land
territory, as exemplied above. For a general survey of the various parts of the high seas
outside the limit of the territorial sea, see M. Diez de Velasco, op. cit., pp. 393–456.
198 chapter six

over an international land territory). These zones were developed in modern


customary law, partly because there was (as yet) no way of exercising effective
international control as necessitated by modern technical developments.
The law on the high seas was codied in the 1958 Convention on the High
Seas of 29 April 1958, in the adoption of which the present writer took an
active part. A revised version was incorporated as Part VII of the UN Con-
vention on the Law of the Sea of 10 December 1982, which entered into
force in 1994. That convention contains special provisions on IGO jurisdiction
over their ships (Article 93) and on the jurisdiction of the International Sea-
Bed Authority (Part XI)51 both of which are discussed separately below. The
convention also contains in its Annex VI provisions on the International
Tribunal for the Law of the Sea, with unclear provisions for a limited access
for IGOs to act as parties to disputes (Articles 20–22 of Annex VI). In addi-
tion, Annex IX to the Convention contains some not very clear provisions
for limited participation by IGOs in the Convention generally.52 However,
these provisions give neither States nor IGOs genuine jurisdiction over the
high seas proper.
We also have a great number of separate international conventions which
establish IGOs to adopt binding regulations for sheries and exploitation of
other living resources of the high seas. However, these are so far not examples
of territorial jurisdiction binding upon everybody operating in the territory,
but of decisions which become binding upon the contracting States only, cf.
above, chapter 4.2.
Under customary law the high seas are not subject to State sovereignty
beyond the limits of the national coastal zones. This was conrmed in Article 2
of the (rst) 1958 convention on the High Seas and in Article 89 of the
1982 UN Convention on the Law of the Sea which provides that no State
may validly purport to subject any part of the high seas to its sovereignty.
It is submitted that these provisions do not prevent the UN or a specially
established global IGO from assuming the power to exercise binding territo-
rial authority on the high seas. We already have an example: The International
Sea-Bed Authority.

51 Cf. Art. 8.2 of the Agreement of 28 July 1994 relating to the implementation of Part XI
of the 1982 Law of the Sea Convention.
52 Cf. Arts. 305.1 (f ) and 307 of the 1982 Law of the Sea Convention, and Art. 8.2 of the
Agreement of 18 July 1984 relating to the implementation of Part XI of that Convention.
extended jurisdiction of some organizations 199

The international sea-bed53


A rather special provision, in the form of a “recommendation” with legal
effects, is Article 76 (8) of the UN Convention on the Law of the Sea of 10
December 1982:
8. Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical
representation. The Commission shall make recommendations to coastal States
on matters related to the establishment of the outer limits of their continental
shelf. The limits of the shelf established by a coastal State on the basis of these
recommendations shall be nal and binding.
Under Article 6 (2) of Annex II the Commission shall decide by a majority
of two thirds.54 The last sentence of Article 76 (8) implies that other States
lose their right to object if the coastal State follows the recommendation;
otherwise they retain that right.

Outer space55
While the air-space is part of national land territory or of the high seas, outer
space is one of the global commons. As described above, we have a number
of IGOs which operate their own satellites and services in outer space. We

53 Cf. Said Mahmoudi: The Law of Deep Sea-Bed Mining, Stockholm 1987; B. Ellingsen
Tunold: “The Deep Sea-Bed Regime: An Introduction to Major Problems. Innovation or
a Perpetuation of the Status Quo?” in Koers and Oxman (eds.): The 1982 Convention
on the Law of the Sea, Honolulu 1982.
54 Cf. also Said Mahmoudi, op. cit., p. 78.
55 Cf. inter alia (even this long listing is far from complete) the following books: K. Nyman
Metcalf: Activities in Space – Appropriation or Use?, Uppsala 1999; R.L. Malkassian:
“Contenido del principio de patrimonio común de la humanidad en el derecho interna-
cional positivo” in Anuario argentino de derecho internacional, II, 1984–86, pp. 277–86,
K.H. Bøckstiegel and M. Benko: Space Law – Basic Legal Documents, Dordrecht 1991;
Zhukov and Kolosov: International Space Law, New York 1984; B. Cheng: Studies in
International Space Law, Oxford 1997; F. Francioni and F. Pocar (eds.): Il regime inter-
nazionale dello spazio, Milano 1993; M. Diez de Velasco: Instituciones de derecho inter-
national, I, 9th ed., Madrid 1991, pp. 456–71; Dutheil de la Rochère: Droit de l’espace,
Aspect récents, Paris 1988; J. Fawcett: Outer Space, New Challenges to Law and Policy,
London 1984; T. Zwan: Space Law, Views of the Future, Denver 1988; G. Lafferanderie
(ed.): Outlook on Space Law Over the Next 30 Years, Dordrecht 1997; C. Christol: The
Modern Law of Outer Space, New York 1982; N. Jasentuliyana: International Space Law
and the United Nations, the Hague 1999; M. Smith: International Regulation of Satellite
Communication, Dordrecht 1990; N. M. Matte: Legal Implications of the Exploration and
Uses of the Moon and Other Celestial Bodies (with innumerable references), published by
the International Astronautical Federation; the UN publication on Space Activities of the
200 chapter six

also have several UN resolutions56 and treaties on space vessels and outer
space itself. However, the treaties are concluded between States and open
for accession by States only.57 One important exception is the Convention on
International Liability for Damage Caused by Space Objects of 29 March
1972.58 It provides in Article XXII:
1. In this Convention, with the exception of articles XXIV to XXVII, refer-
ences to States shall be deemed to apply to any international intergovernmental
organization which conducts space activities if the organization declares its
acceptance of the rights and obligations provided for in this Convention and if
a majority of the States members of the organization are States Parties to this
Convention and to the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies.
2. States members of any such organization which are States Parties to this
Convention shall take all appropriate steps to ensure that the organization makes
a declaration in accordance with the preceding paragraph.

United Nations and International Organizations, a Review of the Activities and Resources
of the United Nations, of its Specialized Agencies and of Other Competent International
Bodies Relating to the Peaceful Uses of Outer Space, New York 1980; and the publications
of the European Centre for Space Law and of the Centro de Investigación y Difusión
Aeronautico y Espacial, Montevideo, Uruguay, including Estado actual de los problemas
juridicos del espacio ultraterrestre and Problematica juridica de los recursos naturales de
la luna (1981). A.S. Piradov: International Space Law, Moscow 1976, concentrates on the
rôle of States, but mentions the rôle of IGOs in law-making, pp. 77–9. – See also articles
by R. Steinhardt in Schachter and Joyner (eds.): United Nations Legal Order, Cambridge
1995, at pp. 733–87 with citations; by L. Sittenfeld in Fordham International Law Jour-
nal, 1980–81, No. 1, pp. 199–212, by C.Q. Christol on “The Moon Treaty Enters Into
Force” in AJIL, Vol. 79 (1985), pp. 163–8; by Andrzej Gorbiel on “Twenty Years of the
International Space Law Development in the United Nations”, by H. van Traa-Engel-
man: “Settlement of Space Law Disputes” in Leiden Journal of International Law, Vol. 3
(1990), pp. 139–55.
56 Starting out with General Assembly Resolutions 1472 (XIV) of 12 December 1959, 1721
(XVI) of 20 December 1961 and 1962 (XVIII) of 13 December 1962.
57 Thus, the following important conventions are open for accession only by States: The
Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies of 27 January 1967, the
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space of 22 April 1968, and the Convention on Registra-
tion of Objects Launched into Outer Space of 14 January 1974.
58 An exception is also the draft Convention on Settlement of Disputes Related to Space
Activities, which the International Law Association in 1998 proposed for signature and
ratication by States and IGOs. Subsequently, the ILA Space Law Committee and its
reporter, Sylvia Maureen Williams, elaborated a comprehensive report and further propos-
als for discussion at the International Law Association’s conference year 2000. The report,
the discussion and the resolution are reproduced in International Law Association, Report
of the Sixty-Ninth Conference (2000). Particular attention is drawn to the contribution
by Vladimir Kopal of the University of Pilsen on “Existing UN Space Treaties: Strenght
and Needs”.
extended jurisdiction of some organizations 201

3. If 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 shall be jointly and sever-
ally liable; provided, however, that:
(a) Any claim for compensation in respect of such damage shall be rst presented
to the organization;
(b) Only where the organization has not paid, within a period of six months,
any sum agreed or determined to be due as compensation for such damage,
may the claimant State invoke the liability of the members which are States
Parties to this Convention for the payment of that sum.
4. Any Claim, pursuant to the provisions of this Convention, for compensation
in respect of damage caused to an organization which has made a declaration
in accordance with paragraph 1 of this article shall be presented by a State
member of the organization which is a State Party to this convention.
Another exception is the Agreement Governing the Activities of States on
the Moon and Other Celestial Bodies of 18 December 1979, which permits
IGOs to become parties.
The relevant treaties and resolutions have not as yet established any IGO
or other international authority for outer space itself, as has been done for
the International Sea-Bed. Instead, they formulate important principles, on
the basis of existing customary international law.
Already in 1961, in its unanimous resolution No. 1721 (XVI), the UN
General Assembly declared that outer space and celestial bodies are “not
subject to national appropriation” (italics added). This was repeated in Article
2 of the basic treaty of 25 January 1967 on Principles Governing the Activi-
ties of States in the Exploration and Use of Outer Space – which, like the
Law of the Sea Convention, has been ratied by a majority of the States of
the world – as follows: “Outer space, including the Moon and other celestial
bodies, is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.” This does not preclude
international occupation.
In addition to this early negative or passive prohibition, the UN has also,
in its subsequent resolutions and conventions, introduced more positive, active
concepts, such as res communis and “the common patrimonium (or heritage) of
mankind”.59 Such concepts leave the road open for – or even point to – the
possibility of establishing some international government for the global com-
mon by global, open and representative IGOs. And this is not precluded by
the prohibition of “national appropriation.”

59 Cf. C.Q. Christol, op. cit., pp. 164–8.


202 chapter six

This could be done most effectively by the UN or a special global and


representative IGO established for the purpose (parallel to the International
Seabed Authority) occupying outer space and thereby acquiring legislative
and other territorial powers. It would enable the organization to establish
further rules with effect for all States, whether or not they are parties to the
1967 treaty. Politically, it would of course be necessary rst to negotiate the
terms of an international regime for outer space. But a formal occupation
would prevent such regime from being stopped or disobeyed by a minority
of States, as it would give the regime legal effect vis-à-vis all States. This
would be the most effective follow-up of the statement of the World Com-
mission for Environment and Development, in its UN Report of 1987, that
the international society should try to establish a governing organ to secure
that outer space remain a peaceful area for the benet of all.

Antarctica60
In the Arctic, all land territory is national and territorial dispute is conned
to the question of expansion of national jurisdiction to ice-covered and open
parts of the sea.61
For the large, but uninhabited continent of Antarctica the situation is more
complex and controversial. Seven States claim sectors, but their claims have
not been recognized by most other States. Moreover, three States are claiming
much the same part of the most important sector (the Graham Peninsula south

60 Cf. F. Francioni and T. Scovazzi (eds.): International Law for Antarctica, 2nd ed., the
Hague 1996; O.S. Stokke and D. Vidas (eds.): Governing the Antarctic. The Effectiveness
of the Antarctic Treaty System, Cambridge 1996; with special articles on inter alia the
effectiveness of the 1980 Convention on the Conservation of Antarctic Marine Living
Resources and its two-tired institutional structures (pp. 120–51) and the convention on
the Regulation of Antarctic Mineral Resource Activities of 2 June 1980 (text ibid., Vol.
XXVII (1988) pp. 868–900); C.E. Joyner: Antarctica and the Law of the Sea, the Hague
1999; E.J. Rey Caro: “Antarctica” in M. Bedjaoui (ed.): International Law, Achievements
and Prospects (UNESCO 1991) pp. 778 ff., esp. p. 984; D.R. Rothwell; The Polar Regions
and the Development of International Law, Cambridge 1996; F. Francioni: “Resource
Sharing in Antarctica; For Whose Benet?” in European Journal of International Law,
Vol. I (1990) pp. 258–268; R. Wolfrum: Die Internationalisierung staatsfreier Räume,
Berlin 1984, pp. 30–100; K. Baslar: The Concept of the Common Heritage of Mankind
in the International Law, the Hague 1998, pp. 243–76.
61 Cf. Erik Frank: Maritime Claims in the Arctic. Canadian and Russian Perspectives, Dor-
drecht 1993, and D. Pharand: “Les problèmes de droit international dans l’Arctique” in
Etudes internationales, XX (1989), who proposes (pp. 162–3) development on the basis
of Art. 123 of the 1982 Law of the Sea Convention.
extended jurisdiction of some organizations 203

of South-America). Only one sector (Eastern Pacic) has not been claimed
and may thus be regarded as uncontested global commons.
The claimant and a number of non-claimant States have through the
Antarctic Treaty of 1 December 1959 established a successful co-operation –
though a modest IGO, consisting of regular meetings (without a permanent
secretariat) which have adopted a great number of Recommendations and
Agreed Measures by unanimity. Article IX of the Treaty, which is in fact the
constitution of the organization, reads:
1. Representatives of the Contracting Parties named in the preamble to the pres-
ent Treaty shall meet at the City of Canberra within two months after the date
of entry into force of the Treaty, and thereafter at suitable intervals and places,
for the purpose of exchanging information, consulting together on matters of
common interest pertaining to Antarctica, and formulating and considering, and
recommending to their Governments, measures in furtherance to the principles
and objectives of the Treaty, including measures regarding:
(a) use of Antarctica for peaceful purposes only; . . .
(c) facilitation of international scientic cooperation in Antarctica;
(d) facilitation of the exercise of the rights of inspection provided for in Article
VII of the Treaty;
(e) questions relating to the exercise of jurisdiction in Antarctica;
(f ) preservation and conservation of living resources in Antarctica.
2. Each Contracting Party which has become a party to the present Treaty by
accession under Article XIII shall be entitled to appoint representatives to par-
ticipate in the meetings referred to in paragraph 1 of the present Article, during
such time as that Contracting Party demonstrates its interest in Antarctica by
conducting substantial scientic research activity there, such as the establishment
of a scientic station or the dispatch of a scientic expedition.
3. Reports from the observers referred to in Article VII of the present Treaty
shall be transmitted to the representatives of the Contracting Parties participating
in the meetings referred to in paragraph 1 of the present Article.
4. The measures referred to in paragraph 1 of this Article shall become effective
when approved by all the Contracting Parties whose representatives were entitled
to participate in the meetings held to consider those measures.
Thus, only those contracting parties which conduct substantial scientic
research in Antarctica, including all claimant States, are recognized as “con-
sultative parties”, which may take part in the meetings and the decision-
making (Articles IX (2) and (4)). And – more important – the measures they
adopt become binding only upon the participating States. The measures are
thus, legally speaking, not territorial jurisdiction binding upon everybody, but
treaties adopted by a simplied procedure and formally binding only upon
the consultative parties.
204 chapter six

A more specialized treaty is the subsequent Convention on the Conserva-


tion of Antarctic Marine Living Resources of 20 May 1980.62 It established
a Commission for the Conservation of Antarctic Marine Living Resources,
as a regular IGO with elected ofcers, a permanent secretariat in Australia
and a Scientic Committee (Articles VII–XX). The convention also provides,
in Article XXIII, that the Commission and the Scientic Committee shall
co-operate with the “Antarctic Treaty Consultative Parties”, which thus may
become the name of the rst – general, but legally more modest – IGO for
Antarctica. Under Article IX of the Living Resource Convention the Com-
mission shall adopt conservation measures which become binding upon all
members who do not object within 90 days. Article IV provides that “with
respect to the Antarctic Treaty area, all Contracting Parties, whether or not
they are Parties to the Antarctic Treaty are bound by Articles IV and VI of
the Antarctic Treaty in their relations with each other”. This means that no
national claims shall be affected – in a positive or negative sense. Indeed, this
convention, too, is in the nature of decisions binding upon member States,
rather than of territorial jurisdiction.
The same is true of the Convention on the Regulation of Antarctic Mineral
Resource Activities of 2 June 1988.63 It established an Antarctic Mineral
Resources Commission which takes decisions governing exploitation and
protection of mineral resources by consensus or a 3/4 majority of the mem-
bers present and voting (Article 22). The Convention also established several
subsidiary organs and – in an Annex – an Arbitral Tribunal.
The subsequent Protocol of 4 October 1991 on Environmental Protection
to the Antarctic Treaty64 established a more modest Committee for Envi-
ronmental Protection, which is more closely linked to the Antarctic Treaty
Organization.
There are also other treaties on protection of the environment in Antarctica
which, however, do not as yet provide for binding decisions.65
The Antarctic Treaty of 1959 establishes certain international obligations,66
but it does not solve the basic and controversial problem of territorial sov-

62 Text in International Legal Materials, XIX (1980), pp. 837–59.


63 Text in International Legal Materials, Vol. 27 (1988), pp. 868–900.
64 International Legal Materials, Vol. 30 (1991), pp. 1461–86.
65 See M. Diez de Velasco: Instituciones de derecho internacional publico, I, 10th ed., Buenos
Aires 1994, pp. 546 ff., esp. pp. 549–51, who also discusses the maritime areas, and the
literature he cites pp. 556–7.
66 And so do some other conventions which do not fall into the IGO-sphere of the “consulta-
tive parties” of the 1959 Antarctic Treaty, including the Protocol to the Antarctic Treaty
of 4 October 1991 on Environmental Protection, International Legal Materials, XXX
(1991), pp. 1455–86.
extended jurisdiction of some organizations 205

ereignty. On the contrary, it provides in Article IV that nothing it contains


shall be interpreted as a renunciation by any “Contracting Party” or “State”
of previously asserted rights of or claims to territorial sovereignty or of any
basis of such claim – but that activities taking place while the Treaty is in
force shall not constitute a basis for such claims, and that no new claims may
be asserted while the Treaty is in force. Other basic weaknesses of the system
lie in the fact that each consultative party has a veto and that the decision may
be considered binding only upon the consultative parties unless they occupy
Antarctica. However, the Treaty may be seen as an implicit occupation of –
at least – the unclaimed sector.
Already before the Antarctic Treaty was concluded, proposals were advanced
for full or partial internationalization of Antarctica which would imply genu-
ine territorial jurisdiction – such as establishment of a condominium or a
trusteeship territory, or a combination of restricted national sovereignty and
international control.67
Also the exploitation of resources, which is not now covered by the Antarctic
Treaty, should be included in an international territorial governance system,
which would have effect vis-à-vis all States, rather than be left to separate
treaties which are binding only upon the contracting parties.
The most effective solution would be a territorial occupation by the Antarctic
Treaty Organization. This should at least be done for the unclaimed sector.
But also in the other sectors, the present national claims should be replaced
by such an international occupation.
In 1983, Malaysia proposed that Antarctica should be regarded as com-
mon heritage of mankind and not just the exclusive preserve of a few nations
that have access to it. This was subsequently supported by the non-aligned
countries, but not by those States which are most active in the area. It would
place Antarctica on line with the global commons (the high seas and outer
space) where, however, so far effective international jurisdiction has developed
only for the international sea-bed. Indeed, also for the high seas and outer
space territorial jurisdiction should be established for relevant existing or
new IGOs.

67 See the review of these early proposals in J.C. Puig: La Antartida Argentina ante el
derecho, Buenos Aires 1960, pp. 87–104. Later F.M. Auburn: “Offshore and Oil and
Gas in Antarctica” in German Yearbook of International Law, Vol. 20 (1977), p. 73 (cf.
pp. 139–172) stated pessimistically: “Various proposals are being canvassed within the
framework of the Antarctic Treaty. All may founder on the rock of national sovereignty.
Unanimity requirements ensure that any Consultative Party has a veto. The most practical
solution would seem to be in limited bilateral agreements”.
206 chapter six

Territorial jurisdiction erga omnes or only decisions binding upon the


participating States
Some of the powers exercised by IGOs in the global commons described
above is territorial jurisdiction, because otherwise regulations enacted by
the organization might not be binding erga omnes, but only upon – and via –
its member States. This limitation is expressly stated e.g. in Article IX 6 of the
Convention on the Conservation of Antarctic Treaty of 1 December 1959
which wisely steers away from clarifying the problem. Article IX 4 of the 1959
Antarctic Treaty merely provides that the measures adopted at the meeting
of the Contracting Parties shall “become effective when approved by all the
Contracting Parties whose representatives were entitled to participate in the
meetings held to consider those measures”. Antarctica is a special case, because
here we also have national territorial claims. But the problem arises in full in
respect of the unclaimed sector and in respect of the other global commons.
The 1982 Law of the Sea Convention provides that the International Sea-
Bed Authority can, by a 2/3 majority, adopt rules, regulations and procedures
relating to “prospecting, exploration and exploitation” in the International
Sea-Bed Area (Articles 160 (2) (f ) and 162 (2) (o)), without making clear
whether this is merely a contractual power between the contracting States,
or also assumption of a territorial power vis-à-vis everybody, as a unilateral
occupation of the territory by the organization. If the latter is admitted in the
case of the Antarctic treaty – and of the International Sea-Bed Authority –
these will be the rst examples of global commons, which by denition are
precluded from occupation by States, being occupied by competent IGOs in
order that the organization may exercise jurisdiction with effect erga omnes.
However, any such occupation should be claried or conrmed by the several
organizations thus established.
The Argentine author E.J. Rey Caro wrote in 1993 that the Antarctic
Treaty is one of those which, by establishing an “objective regime”, may be
opposable “erga omnes”, a claim which has been accepted by “calicada doctrina
y jurisprudencia internacionales”.68 This despite the fact that unlike the Law of the
Sea Convention, only a minority of the States of the world are parties to the
Antarctic Treaty; however all States who are active in the area are parties.
The most effective method to obtain this could be for the Antarctic Treaty
Organization to occupy Antarctica, which would imply an amalgamation of
the national territorial claims. If not all claimant States can accept this, the

68 La Antardida a nes del siglo XX, Academia Asturiana de Jurisprudencia, Oviedo 1993,
discussing inter alia the future of the Antarctic Treaty System.
extended jurisdiction of some organizations 207

organization could at least occupy the unclaimed sector, in order to be able


to exercise powers inter alia for protection of the environment and avoidance
of conicts.

International occupation
We have rm customary law to the effect that the global commons are
not subject to national territorial occupation or jurisdiction. We also have
UN resolutions and conventions that State this. In the global commons
States may only exercise territorial jurisdiction over their vessels and personal
jurisdiction.
However, it is submitted that a competent intergovernmental organization
could occupy a global common and thereby acquire unilateral territorial
jurisdiction, and even sovereignty, which must be respected by States. Thus
the Antarctic Treaty Organization could occupy the unclaimed sector in
Antarctica – or even the entire Antarctic area, if the claimant States agree –
and then enact regulations for all States acting in the area. Occupation of a
global common could also be undertaken by the UN – or by IGOs specially
established for the purpose as already done by the International Sea-Bed
Authority under Part XI of the United Nations Convention on the Law of
the Sea of 10 December 1982.

Nuclear safeguards
A very special and limited type of “territorial” jurisdiction is the nuclear
safeguards which the International Atomic Energy Agency69 exercises under
safeguards agreements which it concludes with States which assist in developing
nuclear energy for peaceful purposes. The safeguards imply periodic interna-
tional inspections on the spot to verify that no nuclear weapons are produced
or prepared. The safeguards are described in Article XIII of the constitution
of the Agency, but authority for the Agency to carry out the functions in a
given country is provided by separate bilateral treaty between the Agency
and the State concerned or in separate multilateral treaties, e.g. including the
treaty of 1969 on non-proliferation of nuclear weapons and the Tlatelolco
Treaty (Treaty for the Prohibition of Nuclear Weapons in Latin America) of
1967 prohibiting nuclear weapons in Latin America.70

69 Cf. also the rôle the European Nuclear Energy Agency under the Convention on the
Establishment of a Security Control in the Field of Nuclear Energy of 20 December 1957.
70 See Hans Blix: “Aspects juridiques des garanties de l’Agence internationale de l’energic
atomique” in Annuaire français de droit international XXIX (1983), pp. 37–53.
208 chapter six

6.3 Personal jurisdiction

Many IGOs exercise limited jurisdiction over individuals, more or less linked
with other types of jurisdiction (organic or extended). There are also some
organizations which exercise a clearly separate jurisdiction over certain cat-
egories of individuals. An example of the former is:

Inhabitants of a territory administered by the organization

When an IGO governs an inhabited territory, it usually exercises – in addi-


tion to the territorial jurisdiction over everyone and everything within that
territory – also a personal jurisdiction over the inhabitants, or nationals, of
the territory wherever they are. This jurisdiction is similar to the personal
jurisdiction of States over their nationals, which also applies when the inhab-
itants or nationals are abroad. In these cases the organization acquires the
personal jurisdiction by the same act as it acquires its territorial jurisdiction –
i.e. in most cases without any relevant provision in its constitution. On the
other hand, when international river commissions exercise jurisdiction over
individuals – viz. those who navigate the river – this is not a personal jurisdic-
tion which applies to the persons wherever they are, but a purely territorial
(and functional) jurisdiction over persons while navigating within a specic
territory.

Private relations and taxation of international ofcials and other agents

As described above, IGOs have inherent jurisdiction over their ofcials as such.
But this is organic, not personal jurisdiction, and extends only to their activities
in an ofcial capacity. However, in certain cases IGOs extend their jurisdiction
also to include personal relations of their ofcials and other agents (experts),
which are normally governed by the personal law of their national States.

(a) An example is the laissez-passers which IGOs issue to their ofcials and
which these used even generally as travel documents, in addition to or in
lieu of national passports.71
(b) The organization may also wish to regulate personal relations because of
the bearing they may have upon the ofcial functions of the staff. Thus a
number of IGO staff regulations, enacted unilaterally by the organization,

71 See Schermers and Blokker: International Institutional Law, 4th ed., Leiden 2003, §§
1863–6.
extended jurisdiction of some organizations 209

limit the right of ofcials to engage in political activities and to receive


decorations and other favours from governments.72 As long as such staff
regulations do not impose obligations upon other parties and do not
conict with the law of the host State, IGOs have power to enact them
unilaterally – i.e. without consent of the State under whose territorial or
personal jurisdiction the ofcial belongs. Such regulations cannot be con-
tested, even though the regulations govern the ofcial’s relations, not with
the organization, but with third parties. The Swiss Government recognized
this right lex lata by declaring that: “L’organisation peut leur imposer l’obligation
de ne pas jouer un rôle actif dans la vie politique du pays.”73 Such power may be
exercised even by non-governmental organizations and is not necessarily
a genuine legislative power, comparable to that of States.
(c) IGOs may also wish to assume civil jurisdiction over their ofcials in
personal matters in order to ll the lacuna arising from exemptions from
State jurisdiction (privileges and immunities) which IGO ofcials enjoy even
outside the eld or organic jurisdiction. Criminal jurisdiction, however,
usually assumes territorial power.74

One example, albeit poor, is taxation of salaries of IGO ofcials. Under express
provisions in conventions on privileges and immunities and other treaties
ofcials are to be tax-exempt in member and host States. However, the US
already at an early stage refused to accept this and insisted upon taxing US
nationals working e.g. with the UN in New York. The UN General Assembly
(and later other IGOs) then, by its resolution 973 (X), introduced its own
nominal, taxing system (“Staff Assessment”) in order to avoid US and other
national taxes as creating double taxation. This IGO taxation is, however,
not real, as the salaries were correspondingly increased to compensate for the
deducted tax to the organization – and this was fair enough, as the salaries
had originally been stipulated on the basis that they would be tax-exempt.
A more relevant example is the lacuna resulting from the ofcials’ immunity
from suit. International ofcials enjoy immunity from legal process in respect
of their ofcial acts under customary international law, usually conrmed in
conventions on privileges and immunities.75 These are acts of the organization,

72 Se e.g. the staff regulations of the Inter-Allied Reparation Agency, paras. 4 and 5; of the
UN, Arts. 1 (6) and (7).
73 Message du Conseil fédérale concernant le statut juridique en Suisse de l’Organisation
des Nations Unies, d’institutions spécialisées de Nations Unies et d’autres organisations
internationales, Bern 28 July 1955, p. 9.
74 § 10 of the UN-US headquarters agreement envisages the penalty of expulsion or exclu-
sion (of visitors) from the New York headquarters district.
75 See e.g. Section 18 (a) of the Convention of the Privileges and Immunities of the United
Nations, adopted by the UN General Assembly on 13 February 1946.
210 chapter six

for which the organization itself is responsible. On the other hand, interna-
tional ofcials cannot claim immunity in respect of their private acts unless
this has been specically provided. Such provisions – for diplomatic privileges
and immunities – are usually made for the highest ofcials – in the general
conventions on privileges and immunities,76 in certain bilateral headquarters
and host agreements,77 and in some IGO constitutions.78
In the case of national diplomats such immunity does not leave a vacuum,
since they may be sued instead in their national courts. And so may members
of permanent delegations to IGOs (who are also usually accorded diplomatic
privileges and immunities), since these, too, are State ofcials. Even interna-
tional ofcials have been assimilated to diplomats in this respect in at least one
case where a civil action was successfully brought in the courts of the State of
which the ofcial was a national.79 However, here the analogy does not apply.
International ofcials must be treated as such also in their home State.
General conventions on privileges and immunities and headquarters agree-
ments provide that the organization shall make provision for “appropriate
modes of settlement” of disputes involving any ofcial who by reason of his
ofcial position enjoys immunity, if immunity has not been waived by the
organization.80 Indeed, it is submitted that IGOs have an inherent power to
establish internal courts to adjudicate private claims against their “diplomatic”
ofcials and that such judgments must be recognized – even in non-member
States – to the same extent and on the same conditions as they recognize
judgments rendered by foreign national courts.
In order to prevent a denial of justice, without allowing the international
status of their ofcials to be violated, IGOs may establish their own courts
for adjudication of private claims against those of their ofcials who enjoy
diplomatic immunity (or they may confer jurisdiction in such cases upon
their administrative tribunals), but this need does not appear to have arisen
in practice as yet.81 The organizations in practice so far appear to have pre-

76 E.g. the general conventions on the privileges and immunities of the United Nations,
Section 19, and of the Specialized Agencies, Section 21.
77 E.g. Art. 16 of the headquarters agreements of the ILO and the WHO with Switzer-
land.
78 E.g. the League of Nations Covenant, Art. 7 (4).
79 Avenol v. Avenol, Annual Digest, 1935–37, Case No. 185.
80 E.g. the General Convention on the Privileges and Immunities of the Specialized Agencies,
§ 31 (b), and the Headquarters Agreement between Switzerland and the WHO, Art. 23 (b).
81 See Message du Conseil fédéral concernant le statut juridique en Suisse de l’organisation
des Nations Unies, d’institutions spécialisées des Nations Unies et d’autres organisations
internationales, 28 July 1955, p. 9, where the Swiss Government stated that the extended
immunity accorded to certain catagories of higher international ofcials have never given
rise to difculties “car les organsations interviendraient d’elles-mêmes avec énergie contre
extended jurisdiction of some organizations 211

ferred simpler solutions, such as waiver of immunity82 or resort to external,


arbitral or ad hoc courts.
IGOs may even assume criminal jurisdiction over their ofcials in cer-
tain cases where national courts are deprived of jurisdiction by the ofcial’s
immunity. This may be practical in respect of members of a UN or other
IGO military force, as described in an earlier book by the present writer.83
However, enforcement may require co-operation of a territorial sovereign. As
a response to reports indicating that UN personnel have conducted serious
criminal acts while serving in international missions, an Ad Hoc Committee
on criminal accountability of United Nations ofcials and experts on mission
was established on 4 December 2006.84

Refugees and stateless persons85

This is a clear example of unilateral assumption by IGOs of “vacant”


personal jurisdiction. The Nansen ofce after World War I and the Inter-
national Refugee Organization after World War II, followed by the permanent
UN High Commissioner for Refugees86 issued laissez-passers or other ofcial
identity papers and travel documents (“Nansen passports”, the (1951) “con-
vention travel document”)87 – and rendered international (legal and political)

tout fonctionnaire qui ne se conformerait pas au droit en vigueur ou dont la conduite


donnerait lieu à des plaintes”.
82 Cf. e.g. § 22 of the Convention on the Privileges and Immunities of the Specialized Agen-
cies of 21 November 1947.
83 See Seyersted, United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 364 ff.
84 See doc. A/RES/61/29. The committee held its rst session 9–13 April 2007, see its
report in doc. A/62/54.
85 Refugees are still governed by the Convention relating to the Status of Refugees of 28 July
1951 and the Protocol Relating to the Status of Refugees of 31 January 1967, both of
which have been adhered to by 144 States as of 1 December 2006, Cf. A. Grahl-Madsens
two books: International Refugee Law to-day and to-morrow, Tybingen 1982, and The
Emergent International Law Relating to Refugees, Bergen 1985; G.S. Goodwin-Gill: The
Refugee in International Law, Oxford 1996, esp. at pp. 207 ff. on international institutions
for protection; UN General Assembly Resolutions Nos. 150–2 of 21 December 1995;
I. Khan: “UNHCR’s Mandate Relating to Statelessness and UNHCR’s Preventive Strat-
egy”, in Austrian Journal of Public and International Law 1995, pp. 93–98; and the
Report from the New Dehli Workshop on International Refugee Law published in The
Indian Journal of International Law, Vol. 39 (1999), pp. 1–31.
86 Established by General Assembly resolution no. 428 (V) of 14 December 1950 and the
Annexed Statute of the Ofce of the United Nations High Commissioner for Refugees.
Cf. V. Türk; Das Flüchtlingskommissariat der Vereinten Nationen, Berlin 1992, which
gives a detailed and comprehensive analysis of the High Commissioner’s competence
and functions. Cf. also the Agreement of 30 June 1928 Concerning the Functions of the
Representatives of the League of Nations High Commissioner for Refugees.
87 See A. Grahl-Madsen; “The Refugee Problem on Universal, Regional and National Level”,
in Thesaurus Acroasium, Vol. XIII, Thessaloniki 1987, esp. at pp. 230–4.
212 chapter six

protection and various forms of assistance – to refugees and stateless persons


who lacked diplomatic protection from their home State.
The power of the International Refugee Organization was laid down in
Article 2 (1) of its Statute – to the effect that the Organization should render
“legal and political protection” – and in the Agreement concerning the Func-
tions of the Representatives of the League of Nations High Commissioner
for Refugees of 30 June 1928, Article 1.88 The agreements concluded by the
International Refugee Organization with, for example, Brazil and Denmark
authorized the Organization to exercise the same protection in respect of per-
sons within its mandate as that which consuls exercise in respect of nationals
of their country.89 The Statute established legal obligations for refugees only
as condition for assistance.
The powers of the High Commissioner are not laid down in the UN
Charter, but in UN General Assembly resolution 428 (V) of 1950 which
established his ofce and in subsequent resolutions and conventions. However,
their powers have been exercised generally; vis-à-vis all States, whether or not
they were members of the UN or parties to any relevant conventions. The
functions are thus examples of IGOs, even unilaterally, assuming extended
jurisdiction which is “vacant” and are thus parallel to assumption of powers
in stateless territory.
The customary law of armed conict and the 1949 Geneva Conventions
on warfare recognize the right of neutral States to act as “protecting power”
for prisoners of war and other war victims. It is submitted that a competent
IGO – like the UN or the UN High Commissioner for Refugees – must have
a similar right in respect of persons who cannot be adequately protected by
a State. Thus, writers90 submit that the UN High Commissioner for Refugees
may substitute for the protecting power according to Article 5 of Additional
Protocol I to the 1949 Geneva Conventions for the protection of victims of
armed conict. Indeed, this right must be admitted despite the absence of
conventional provisions to that effect, except that the right must be exercised

88 UNTS, XCIII, p. 379.


89 See also the Agreement with France of 15 January 1948 (IRO doc. DC/LEG/11); the
Convention Relating to the Status of Refugees of 28 July 1951, Arts. 1, 25 and 35 (UNTS,
Vol. 189, p. 170); the Statute of the UN High Commissioner for Refugees, adopted by
UN General Assembly resolution 428 (V), paras. 1 and 8; the agreements concluded by
the High Commissioner with e.g. Italy in April and in July 1952, cf. the Italian Act of
15 December 1954 (reported by Grahl-Madsen: The Status of Refugees in International
Law). On the possible conict between such international protection by IGOs and consular
protection by States, see Grahl-Madsen in Journal of Peace Research, 1966, at p. 284,
and UN Conference on Consular Relations, OR, II, pp. 52 and 67, and I, pp. 96–97,
218–229 and 238–239.
90 V. Türk, op. cit., at pp. 218 ff.
extended jurisdiction of some organizations 213

by a neutral organization. If the UN has declared sanctions against an aggres-


sive State, that State cannot be expected to recognize the organization as a
neutral protecting power.
IGOs may – by analogy with States – grant asylum to refugees in the
cases described above where the organization has a territory of its own.
Otherwise the organization may only provide “temporary refuge” as an ofce
of humanity91 on its premises, including any headquarters district, “in quite
exceptional circumstances, as in the case of breakdown of civil authority of
the host State”.92
The Mixed Commission for the Exchange of Greek and Turkish Populations
performed a number of different functions with regard to the emigration of
minorities in the two countries and the liquidation of their property. These
functions were expressly laid down in its constitution, a Greco-Turkish agree-
ment of 1 December 1926 and were classied as administrative, legislative
and judicial by the Permanent Court of International Justice.93

International crimes94

Criminal jurisdiction is generally regarded as a territorial power, which can


be exercised only by the territorial sovereign, who normally is a State.95
However, this is required only in respect of enforcement of the punishment

91 Cf. “diplomatic asylum” in Latin America.


92 A. Grahl-Madsen: The Status of Refugees in International Law, II, Leiden 1972, p. 76.
Cf. also K.-S. Cavellin: UNIFIL och dess rätt att bevilja intern asyl, Uppsala University
1986. Cf. also UN attempts at creating “safe zones” in Rwanda and Bosnia.
93 Advisory Opinion on the Greco-Turkish Agreement of 1 December 1926 PCIJ Ser. B
No. 1, pp. 17–18.
94 H. Ahlbrecht: Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert,
unter besonderer Berücksichtigung der völkerrechtlichen Straftatbestände und der Bemü-
hungen um eienen ständigen internationalen Strafgerichthof, Baden-Baden 1999; H. Ball:
Prosecuting war crimes and genocide: The twentieth-sentury experience, Kansas 1999;
Y. Dinstein and M. Tabory (eds.): War Crimes in International Law, the Hague 1996,
including M. Bothe: “War Crimes in Non-International Armed Conicts” at pp. 293 ff.
(see esp. pp. 299–301 on an international power and duty to punish violations of the
law relating to non-international armed conict); D. Joyce: “The historical functions of
international criminal trials: Re-thinking international criminal law” in Nordic Journal of
International Law, Vol. 73 2004, pp. 461–484.
95 Cf. Roger S. Clark: “Offences of International Concern: Multilateral State Practice in
the Forty Years Since Nuremberg” in Nordic Journal of International Law LVII (1988),
pp. 49–118, who points out that, so far, jurisdiction has been left to national authorities,
except for the war crime tribunals – and for the openings in Article VI of the convention
on the Crime of Genocide of 9 December 1948 (GA Res. 174 (III)) and Article IV (b)
of the International Convention on the Suppression and Punishment of the Crime of
Apartheid of 30 November 1973 (GA Res. 3068 (XXVIII)).
214 chapter six

(prison, nes). There is no legal impediment to IGOs establishing their own


“criminal” tribunals within their general eld of organic jurisdiction,96 but if
the organization has no territory of its own, it will need the co-operation of
States to arrest people and to enforce sentences on imprisonment or on nes
which cannot be deducted in salaries.
This is what may make it practical to reserve criminal (but not disciplin-
ary) jurisdiction for States, as has been done e.g. by the UN leaving criminal
jurisdiction over members of a UN military force to the States contributing
contingents.97
Still, after World War II we have had several examples of international
criminal tribunals to adjudicate in specic post-conict situations cases of
certain grave international crimes:98

(a) The Nuremberg Tribunal for the major German war criminals, established
by inter-allied treaty of 8 August 1945;
(b) The International Tribunal for the Far East in Tokyo, established by the
allied powers on 19 January 1946 to prosecute Japanese war criminals;
(c) The International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia (ICTY), established by Security
Council resolution no. 827 on 25 May 199399 under Chapter VII of the
UN Charter, which can be resorted to only when there is a “threat to the
peace, breach of the peace or act of aggression”;
(d) The similar tribunal established for crimes committed in Rwanda (ICTR)
by Security Council resolution no. 995 of 8 November 1994;
(e) The International Criminal Court (ICC) is a treaty based permanent
criminal court with jurisdiction “limited to the most serious crimes of
concern to the international community as a whole”100 and with a mem-

96 Impediment was, however, specically established by Art. 10 of the UN-US headquarters


agreement, where the US expressly reserved for itself the power to impose penalties other
than expulsion or exclusion from the headquarters district.
97 Se the full discussion of the UN’s powers in respect of its military forces in Seyersted:
United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 361 ff., esp. pp.
364–72. See also C.L. Blakesby: “Obstacles to the Creation of a Permanent War Crimes
Tribunal” in C. Ku & P.F. Diehl (eds.): International Law, Classic and Contemporary
Readings, London 1998, pp. 281 ff.
98 Cf. also above, chapter 1.4, including also comments on “mixed” or “hybrid” criminal
tribunals. The Institut de droit international in 1999 concluded a J. Brown Scott/Louis
Renault prize competition on the Criminal Tribunals established by the Security Council,
Annuaire de l’Institut de droit international, Vol. 69.
99 The relevant texts are published by the Tribunal in Basic Documents, the Hague 1995.
100 According to the Rome Statute of the ICC, Article 5, which gives the Court jurisdiction
with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes;
extended jurisdiction of some organizations 215

bership of 105 States parties and further 41 signatories, as of July 2007.


Following the adoption of the Rome Statutes of the court in 1998, the
treaty entered into force on 1 July 2002, which also signies that the court
can only prosecute crimes committed after that date. The ICC’s jurisdic-
tion is complementary to the primary jurisdiction of the national State,
either where the crime was committed or where the offender is a national.
Similarly, the court may only investigate situations where the alleged crime
has been committed in the territory of a State party or where the alleged
offender is a national of a State party, unless a situation is referred to the
court by decision of the UN Security Council.101

6.4 Decisions binding upon States

Organic jurisdiction over representatives of member States102

As described above in chapter 5, all IGOs (except those of the type dépendant,
whose secretariat functions are performed by the host State), exercise, under
rmly established common customary law, exclusive legislative administrative
and judicial jurisdiction over their organs and the members thereof as such.
No express or (ctitious) “implied” power is required. This inherent organic
jurisdiction comprises all members of the organs, including the representa-
tives of member States in that capacity. The jurisdiction is exercised by the

and (d) the crime of aggression. However, the Court will not exercise its jurisdiction over
the crime of aggression until such time as the States parties agree on a denition of the
crime and set out the conditions under which it may be prosecuted.
101 The case regarding the situation in Darfur (Sudan) since 1 July 2002 was referred to the
ICC by UNSCR 1593 of 31 March 2005.
102 Also some of the constitutional provisions listed above in connection with territorial
(or personal) jurisdiction are in reality merely decisions binding upon States. Thus the
measures adopted by the Contracting Parties to the Antarctic Treaty become binding
only upon these Parties. For a thorough discussion of this important, modern develop-
ment, see Schermers and Blokker, op. cit., esp. §§ 1173 ff. and 1318 ff. See also M. Diez
de Velasco: Instituciones de derecho internacional publico, 11th ed., Madrid 1997, pp.
178–90 and Las Organizaciones Internacionales, 14th ed., Madrid 2006, pp. 138–42, R.-J.
Dupuy: Manual sur les organisations internationals, Dordrecht 1988, pp. 320 ff., Oscar
Schachter: International Law in Theory and Practice, Dordrecht 1991, pp. 74–75, Martin
Martinez: National Sovereignty and International Organizations, the Hague 1996, and
D.W. Bowett: The Law of International Institutions, 4th ed., London 1982, pp. 344–5. For
an evaluation of the legal effects of UN General Assembly resolutions and declarations,
see Eek, Bring, Hjerner: Folkrätten, 4th ed., Stockholm 1987, pp. 269–74. See also
M. Diez de Velasco, Instituciones de derecho internacional publico, op. cit., pp. 191–3.
216 chapter six

president/chairman or as well by (a majority vote103 of ) the organ as a whole,


unless otherwise provided.
Thus, the rules of procedure enacted for the various deliberative organs
govern the rights and duties of the representatives of the member States
on these organs. Such rules of procedure regulate e.g. the right of member
States to request the convocation of meetings, their duty to provide their
representatives with credentials, and the right for these to speak and move
proposals. The chairmen of the organs concerned, or the organs themselves
by majority vote, make (administrative) decisions concerning these and other
procedural matters. This they do even if there is a dispute between the vari-
ous representatives on a legal question, although the organ may decide, by
majority vote, to request an advisory opinion from the International Court
of Justice or to submit the question to a committee of jurists or some other
legal (but not necessarily judicial) body.104
In many cases the constitution authorizes the organization or the organ
concerned to exercise these powers. Thus, a number of organs have been
expressly authorized to adopt their own rules of procedure, which may then
regulate the various matters mentioned above. However, IGOs exercise these
powers also in those many cases where they have not been expressly empow-
ered to do so. There is never any question of working out the rights and duties
of representatives as such by agreement between the organization and each
representative or his government. The organization does that unilaterally, and
its decision is binding upon the representative and his government, no matter
whether the organ concerned has or has not been expressly authorized to
adopt e.g. rules of procedure. The members can legally prevent the application
of such rules and decisions only by claiming that they violate the rules of a
higher order, as express provisions in the constitutional convention.
IGOs thus have an inherent jurisdiction over the member States and their
representatives in their capacity as members of the deliberative organs of the
organization. This is an aspect of the organic jurisdiction, which comprises all
members of the organs in that capacity. This power is inherent in all IGOs
which do not have express, limitative provisions.

103 The Organization for Economic Cooperation and Development (OECD) extended its
unanimity rule even to organizational and organic matters, such as election of judges for
its court for atomic energy security control established by a convention and additional
protocol of 20 December 1957.
104 Below, chapter 7.
extended jurisdiction of some organizations 217

Organizational membership jurisdiction

In addition to the organic jurisdiction over the representatives of member


States, IGOs also exercise a limited membership jurisdiction in organizational
matters over their member States in their capacity as members of the organiza-
tion as a whole. Parts of this organizational membership jurisdiction are more
frequently than the organic jurisdiction laid down in express constitutional
provisions.105 However, even if not, IGOs have an inherent power to e.g. admit
new members, suspend membership or exclude members by majority deci-
sions, if the constitution does not provide otherwise. Similarly, IGOs may by
majority elect members to sit on organs of restricted membership; however
this, too, is usually expressly provided for,106 and is moreover, closely linked
to the organic jurisdiction. One may or may not infer from constitutional
provisions establishing an executive council or other deliberative organ with
restricted and rotating memberships that member States are under a duty to
accept election to (non-plenary) organs of limited membership. But it is not
generally accepted that such duty exists with regard to organs not envisaged in
the constitution. Member States of the UN have on several occasions refused
to serve on such organs, although usually, or always, on the basis of a charge
that the organs, under their terms of reference, were to perform functions
which they, or the organ as a whole, were not legally entitled to perform.107
IGOs probably have no inherent power to require member States to pay
nancial contribution to the budget of the organization. Most IGO constitu-
tions therefore provide for contributions, like Article 17 (2) of the UN Charter.
However, even if that is not the case, it cannot require much to consider such
a duty to be (genuinely) implied if the constitution foresees expenses without
having provided for their coverage.
Unless otherwise provided, a majority may decide to dissolve the orga-
nization. IGOs probably have an inherent power to dissolve themselves by
mere decision of their plenary organ, if the decision is unanimous. If not,

105 See e.g. Arts. 4–6 of the UN Charter, Art. 7 of the Treaty establishing the EU and the
examples cited by M. Diez de Velasco, Las Organizaciones Internacionales, op. cit., pp.
93–96.
106 E.g. Arts. 23, 61 and 86 of the UN Charter.
107 The Soviet Union refused to serve on the Interim Commission of the UN General
Assembly, established by General Assembly resolution 111 (II), and that of the Ukrainian
SSR to serve on the UN Temporary Commission on Korea, established by General
Assembly resolution 112 (II). The question was also debated in connection with the Special
Committee on Information concerning Non-Self-Governing Territories, established by
General Assembly resolution 332 (IV). Bastid tends to support the view that members
are not obliged to serve.
218 chapter six

it is submitted that even a minority may claim the right to continue the
organization.108
Kelsen raised the question whether the members of the UN are under an
obligation to permit the organization to establish its headquarters in their
territory. He suggested that the silence of the Charter in this respect might
be interpreted either way. It is submitted that no such obligation is inherent
in membership of an IGO, not even a right to hold meetings in the territory
of a specic member State.
IGOs may certainly not amend their constitutions, not even by unanimous
vote, if no provisions has been made in the constitution itself for such deviation
from the normal procedure of treaty revision as done e.g. in Articles 108–109
of the UN Charter. A different matter is the factual treaty revision which is
effected by the practice of the organization. Thus, Article 27 (3) of the UN
Charter (the voting rule in the Security Council) has been modied by a
consistent practice, which has developed into customary law, to the effect that
an abstention does not constitute a veto. Interesting developments have also
taken place with regard to Article 2 (7) (the domestic jurisdiction clause).
On the whole, the inherent membership jurisdiction of IGOs, i.e. the juris-
diction they may exercise over their member States without special authority
beyond what follows from the organic jurisdiction, is limited.
Whether wide or limited, and whether inherent or laid down in the con-
stitution, there can be no doubt as to the exclusiveness of the membership
jurisdiction. Relations between the organization and its members – which
are sovereign States – are not subject to jurisdiction of the host State, any
particular member State or any other authority. The jurisdiction of the orga-
nization is exclusive as far as it goes. And where it stops, there remains only
the sovereign independence of the member States.
The law of the several member States is not applicable to the organiza-
tion and procedure of the organization or its particular organs, not even
insofar as the rights and duties of their own representatives on such organs
are concerned. Thus the rule which has developed in the constitutional prac-
tice of certain States, and which prevents government ofcials from serving
on committees together with members of Parliament, applies only to national
committees. International committees are not bound by such national rules,
even with regard to the representatives of the particular State concerned. A

108 See on this problem Fitzmaurice in BYIL XXIX (1952), p. 7. Judge Reed, in his separate
opinion in the case of the International Status of South-West Africa (ICJ Reports, 1950,
p. 167), recognized the right of the League of Nations to liquidate itself, but based this
partly upon the provision in Art. 3 (3) of the Covenant. He appeared, moreover, to
assume the necessity of a unanimous vote.
extended jurisdiction of some organizations 219

different matter is if the State concerned should interpret its domestic law as
applying also to its representatives to IGOs.
An example on the border-line between organizational and functional
membership jurisdiction is the usual constitutional provision for amendment
of the constitution, e.g. Article 108 of the UN Charter:
Amendments to the present Charter shall come into force for all Members of
the United Nations when they have been adopted by a vote of two thirds of
the members of the General Assembly and ratied in accordance with their
respective constitutional processes by two thirds of the Members of the United
Nations, including all the permanent members of the Security Council.109
Such amendments may also be made to constitutive provisions of a substan-
tive nature.

Functional jurisdiction. Introduction110

While it is doubtful to what extent IGOs have an inherent membership


jurisdiction in organizational matters, it is clear that they have no inherent
jurisdiction over their member States in functional (substantive) matters. This is
a clear matter of extended jurisdiction, which is not common law, but special
law for each organization concerned – it may be exercised only if and to the
extent that the States concerned have authorized the particular organization.
However, even this need not be done in the constitution of the organization
as most legal writers assume. And even non-member States may authorize
this. It is therefore convenient to reserve the term “membership jurisdiction”
for organizational matters and to refer to binding functional decisions as
“jurisdiction over States” or “decisions binding upon States”.
The traditional method for binding regulation of the action of States in
substantive matter is by way of treaties concluded between, or with, the
States, and which become binding only upon those States which voluntarily
conclude or accede to them.

109 Similar provisions are found in a number of IGO constitutions. Cf. M. Diez de Velasco,
op. cit., pp. 131–34 and the literature there listed. J. Gold: “The Amendment and
Variation of their Charters by International Organizations” in Revue Belge de droit
international, 1973, pp. 50–76 gave a survey of provisions which authorize amendment,
without acceptance by all member States, of constitutional provisions of an organizational
or substantive nature.
110 Cf. E. Pecourt: “La accion normativa de las Organisationes internacionales” in Anuario de
Derecho Internacional, 1974 I, pp. 165–222; Seyersted: “Die Internationale Atomenergie –
Organisation, ihre rechtlichen Aufgaben und Funktionen”, Beiträge zum Internationalen
Wirtschaftsrecht und Atomenergierecht, Göttingen 1966, esp. at pp. 20–29.
220 chapter six

However, notably after World War II, new methods have developed to
establish rules by simpler and quicker methods. These were not listed in 1945
in Article 38 of the Statute of the International Court of Justice as one of
the sources of international law to be applied by the Court. The methods
have differing denominations and entail differing procedures. We shall in the
following look at the various methods employed, which represent a progres-
sion from non-binding to binding rules and, as for the latter, from treaty-like
to legislation-like procedures.
The relevant provisions are special for each organization. However, we
shall list them in a systematic manner and quote the examples in order to
allow for a comparative evaluation of the different types of methods used,
which, it is hoped, may be useful lex ferenda when establishing new IGOs or
conferring new powers upon existing organizations.

Soft law111

The traditional – and the still prevailing – method for IGOs to regulate the
conduct of member (and other) States, is by way of non-binding resolu-
tions, which may be presented as recommendations, declarations, model
rules, standards, codes etc. These do not require – and are mostly without –
basis in the constitution or other treaty.112 Especially when adopted by unanim-
ity or consensus,113 such texts may be fairly consistently applied in practice and
thus develop into customary law – in the internal law of the organization –
or even in public international law.

Recommendations or representations which provoke sanctions if not complied with

In some cases non-compliance with “recommendations”, decisions or rules


established by IGOs may be met by sanctions.
Thus the constitution of the African Union provides in Article 23 (2) that
any member State that fails to comply with the decisions and policies of the
Union may be subjected to sanctions, such as denial of transport and com-

111 Cf. Dinah Shelton: The Role of Non-Binding Norms in the International Legal System,
Oxford 2000.
112 The International Labour Organization has an express provision in Art. 19 (6) (cf. 5) of
its constitution.
113 Cf. M. Diez de Velasco, Las Organizaciones Internacionales, op. cit., pp. 109–12 and
9th ed. (1995), pp. 129–30; A. Cassese: “Consensus and Some of its Pitfalls” in Rivista
de diritto internazionale, LVIII (1975) pp. 754–61; and Schermers and Blokker, op. cit.,
§ 775, pp. 525–6.
extended jurisdiction of some organizations 221

munication links with other member States, and other measures of a political
and economic nature to be decided by the Assembly. According to Article 7
the Assembly shall take its decisions by consensus or, failing this – which
would normally be hard to achieve when preparing to impose sanctions on
a member State being in arrears of commitments to the organization – by
a two-thirds majority.
Chapter VI of the Convention on International Civil Aviation of 7
December 1944, which is the constitution of ICAO, provides that the Council
of ICAO by majority decisions shall adopt and amend from time to time
“international standards and recommended practices and procedures” on
a number of matters concerned with the safety, regularity and efciency of
air navigation (Articles 37, 52 and 54 (1)). States which do not comply shall
notify all other States through ICAO, and their aircraft which do not satisfy
the international standards may not enter the territory of other States without
their consent (Articles 38–40).
A similar procedure applies in the International Monetary Fund. Under
Article IV 5 of its original constitution of 1945 it might object to changes
that member States proposed to make in the par value of their currencies.
Decisions were to be taken by majority vote according to a weighted voting
system, each member having 250 votes plus votes in proportion to its invest-
ment share in the Fund (Article XII 5). “If a member changes the par value
of its currency despite the objection of the Fund, in cases where the Fund is
entitled to object, the member shall be ineligible to use the resources of the
Fund unless the Fund otherwise determines” (Article IV 6). And “if, after
the expiration of a reasonable period, the difference between the member
and the Fund continues” the Board of Governors may require the member
to withdraw from membership in the Fund. It followed from an a contrario
interpretation of the term “obligation” in Article XV 2 (b) that members
were not considered to be under a legal obligation in the technical sense to
refrain from making the change that the Fund objected to, but the member
had to accept the sanctions if it did not make the change.

Unanimous decisions which become binding when implemented or approved or not


objected to by the member States (simplied treaty procedure)

The constitution of the Organization for Economic Co-operation and


Development 114 (OECD) of 14 December 1960 provides in Articles 5
and 6 that:

114 Cf. Puissochet: Jurisclasseur OECD, pp. 13–16.


222 chapter six

In order to achieve its aim, the Organisation may:


(a) take decisions which as otherwise provided, shall be binding on all the
Members;
.........
1. Unless the Organisation otherwise agrees unanimously for special cases, deci-
sions shall be taken and recommendations shall be made by mutual agreement
of all the Members.
2. Each Member shall have one vote. If a Member abstains from voting on a
decision or recommendation, such abstention shall not invalidate the decision
or recommendation, which shall be applicable to the other Members but not
to the abstaining Member.
3. No decision shall be binding on any Member until it has complied with the
requirements of its own constitutional procedures. The other Members may
agree that such a decision shall apply provisionally to them.
The Pact of the League of Arab States of 22 March 1945 provides in Article
VII (cf. Article VII):
Decisions of the Council taken by a unanimous vote shall be binding on all the
member States of the League; those that are reached by a majority vote shall
bind those that accept them.
In both cases the decisions of the Council shall be executed in each State in
accordance with the fundamental structure of that State.
The Antarctic Treaty of 1 December 1959 – which is concerned inter alia with
protection of the environment – provides in Article IX (1) and (4):
1. Representatives of the Contracting Parties named in the preamble to the
present Treaty shall meet at suitable intervals and places, for the purpose of
exchanging information, consulting together on matters of common interest
pertaining to Antarctica, and formulating and considering, and recommending
to their Governments, measures in furtherance of the principle and objectives
of the Treaty, including measures regarding:
(a) use of Antarctica for peaceful purposes only;
(b) facilitation of scientic research in Antarctica;
(c) facilitation of international scientic co-operation in Antarctica;
(d) facilitation of the exercise of the rights of inspection provided for in Article
VII of the Treaty;
(e) questions relating to the exercise of jurisdiction in Antarctica;
(f ) preservation and conservation of living resources in Antarctica.
...
4. The measures referred to in paragraph 1 of this Article shall become effec-
tive when approved by all the Contracting Parties whose representatives were
entitled to participate in the meetings.
extended jurisdiction of some organizations 223

The Convention of February 1972 for the Preventions of Marine Pollution


by Dumping from Ships and Aircraft provides in Article 18 (2):
Recommendations for modication of the Annexes to this Convention in accord-
ance with Article 17 (d) shall be adopted by a unanimous vote in the Commission,
and the modications contained therein shall enter into force after unanimous
approval by the Governments of the Contracting Parties.
The provisions of these organizations follow in substance the regular treaty-
making procedure (i.e. subject to ratication) – the difference being the formal
and simplifying one, that the binding text is approved orally at a meeting
(by resolution), rather than embodied in an instrument signed by all parties
(treaty).
Less specic provisions are found in Article 3 (2) of the Inter-American
Treaty of Reciprocal Assistance of 1947, which provides, inter alia, that the
Organ of Consultation shall “agree” upon “the measures of a collective
character that should be taken” – and in Article 6 of the constitution of the
Caribbean Commission of 30 October 1964, which provides that decisions
other than those relating to procedure shall not be taken without the concur-
rence of the representatives of all members. It is not stated whether these
decisions are subject to subsequent national approval or whether any national
constitutional requirements are presumed to have been complied with before
the decision is made in the Commission.
The Nordic Co-operation Agreement of 23 March 1962, as revised, notably
by an agreement of 13 February 1971 and by later amendments, provides
in Article 62 that the decisions of the Nordic Council of Ministers shall be
unanimous. Article 63 provides:
The decisions of the Council of Ministers are binding for the several countries.
Decisions which under a country’s constitution requires approval by the pub-
licly elected assembly, are not binding upon that country until the assembly has
approved the decision. If such approval is required, the Council of Ministers
shall be informed before making its decision. The other countries, too, are not
bound by the decision before the approval has been obtained.
These various provisions imply in fact a simplied treaty procedure.

Unanimous decisions binding upon adoption

In some cases binding decisions are made without basis in any provision of the
constitution or other treaty. The Council of the European Union sometimes
makes unanimous binding decisions – referred to in German as “uneigentliche
224 chapter six

Organbeschlüsse” – outside the eld where it has competence to make binding


decisions under the (Community) Treaties.115 This implies that they take off
their EU-hats and constitute themselves as an intergovernmental conference
and enter into an oral treaty. Also the Council of the North Atlantic Treaty
Organization makes unanimous decisions – without basis in any provision of
the North Atlantic Treaty of 4 April 1949. These, too, are said to become
binding upon those members who vote in favour; however, this may be in
a political rather than in a legal sense. Unanimous decisions by some other
organizations have similarly been considered binding. Such decisions may fall
outside the realm of the internal law of the organization.
In other cases there are express provisions to the effect that decisions become
binding upon all member States – or upon all States that vote in favour – from
the moment the vote has been taken:
The forerunner of the OECD, the Organization for European Economic
Cooperation (OEEC) – which was a strictly regional organization having
regular members only in Western Europe – had a stronger provision than
the subsequent and broader OECD (above) in Article 14 of its constitution
of 16 April 1948:
Unless the Organization otherwise agrees for special cases, decisions shall be
taken by mutual agreement of all the Members. The abstention of any Members
declaring themselves not to be interested in the subject under discussion shall
not invalidate decisions, which shall be binding for the other Members.
The constitution of the European Free Trade Organization (EFTA) of 4
January 1960, as amended by the Vaduz Treaty of 21 June 2001, provides
in Article 43 (4–5):
4. In exercising its responsibility under paragraph 1 of this Article, the Council
may take decisions which shall be binding on all Member States and make
recommendations to Member States.
5. Decisions and recommendations of the Council shall be made by unanimous
vote, except in so far as this Convention provides otherwise. Decisions or recom-
mendations shall be regarded as unanimous unless any Member State casts a
negative vote. Decisions and recommendations which are to be made by majority
vote require the afrmative vote of three Member States.
The Pact of the League of Arab States of 22 March 1945 provides in Article 7:
The decisions of the Council taken by a unanimous vote shall be binding on
all the member States of the League; those that are reached by a majority vote
shall bind only those that accept them.

115 See Heinz Wagner: Grundbegriffe des Beschlussrechts des Europäischen Gemeinschaften,
Cologne 1965, pp. 224–24.
extended jurisdiction of some organizations 225

In both cases the decisions of the Council shall be executed in each State in
accordance with the fundamental structure of that State.
The constitution of the European Community provides in Article 308:
If action by the Community should prove necessary to attain, in the course of
the operation of the common market, one of the objectives of the Community
and this Treaty has not provided the necessary powers, the Council shall, act-
ing unanimously on a proposal from the Commission and after consulting the
European Parliament, take the appropriate measures.
The Governing Board of the International Energy Program shall, under
Article 61 of the Agreement on an International Energy Program of 18
November 1974 make most of its substantive decisions by unanimity, “in
particular decisions which impose on Participating Countries new obligations
not already specied in this Agreement”. These “shall be binding on the
Participating Countries” (Article 52).

Majority decisions binding upon States that do no opt out

The Board of Governors of the International Monetary Fund could –


under Article IV 7 of its constitution of 1945, by majority decision under its
weighted voting system – “make uniform proportionate changes in the par
value of the currencies of all members provided each such change is approved
by every member that has ten percent or more of the total of the quotas”.
The change did not apply to members who objected within 72 hours. This
provision was later taken out of the constitution.
Article 21 of the constitution of the World Health Organization of 22
July 1946 provides:
The Health Assembly shall have authority to adopt regulations concerning:
(a) sanitary and quarantine requirements and other procedures designed to
prevent the international spread of disease;
(b) nomenclatures with respect to diseases, causes of death and public health
practices;
(c) standards with respect to diagnostic procedures for international use;
(d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce;
(e) advertising and labelling of biological, pharmaceutical and similar products
moving in international commerce.
Article 22 provides:
Regulations adopted pursuant to Article 21 shall come into force for all Members
after due notice has be given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservation
within the period stated in the notice.
226 chapter six

It is expressly stated e.g. in Article 105 (1) of WHO Regulations No. 2 (Inter-
national Sanitary Regulations) that the Regulations apply “as between the
States bound by these Regulations and as between these States and the
Organization”. In practice the regulations are adopted by consensus. If not,
they should be considered as “important questions”, which under Rule 72
of the rules of procedure require a two-thirds majority, even if they are not
expressly listed as important questions.
These patterns of qualied majority decisions which become binding
upon all members who do not object (reserve their position, opt out) within
specied time period, have also been adopted in several conventions for
the conservation of the living resources of the sea. Thus the International
Convention for the Regulations of Whaling of 2 December 1946 provided
in Article V (1), cf. Article III (1) that the International Whaling Commis-
sion may adopt regulations with respect to the conservation and utilization
of whale resources, xing:
(a) protected and unprotected species;
(b) open and closed seasons;
(c) open and closed waters, including the designation of sanctuary areas;
(d) size limits of each species;
(e) time, methods, and intensity of whaling (including the maximum catch of
whales to be taken in any one season);
(f ) types and specications of gear and apparatus and appliances which may
be used;
(g) methods of measurement;
(h) catch returns and other statistical and biological records.
Under Article V (3) these regulations shall become effective with respect to
all Contracting Governments which have not presented objection within 90
days.
The convention of 18 November 1980 on Future Multilateral Coopera-
tion in North East Atlantic Fisheries established a North-East Atlantic Fisheries
Commission to adopt, by qualied majority, “recommendations concerning
sheries conducted beyond the areas under sheries jurisdiction of Contract-
ing Parties” (Article 5). Under Article 12 a “recommendation” shall become
binding on Contracting Parties which have not objected within specied time
limits. “If three or more Contracting Parties have objected to a recommenda-
tion it shall not become binding on any Contracting Party”.
The North-West Atlantic Fisheries Convention of 8 February 1949 con-
tains similar provisions in Article VII with an additional provision giving the
members the right to denounce the decision after one year.
The Convention on the Conservation of Antarctic Marine Living Resources
of 20 May 1980 provides in Article IX that the Commission for the Conserva-
tion of Antarctic Marine Living Resources shall, inter alia, “formulate, adopt
extended jurisdiction of some organizations 227

and revise conservation measures on the basis of the best scientic evidence
available”. The conservation measures shall be decided by the Commission
by consensus (Article XII) and “shall become binding upon all Members of
the Commission” who do not reserve their position within 90 days (Article
IX 6).
The Agreement for the Establishing of the Indian Ocean Tuna Commis-
sion, approved by the FAO Council on 25 November 1993, provides that
conservation and management measures adopted by a two-thirds majority
shall become binding upon all members who do not object.
The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) of 3 March 1973, provides in Article XV that
amendments to Appendices I and II “shall be adopted by a two-thirds majority
of Parties present and voting” and that “Amendments adopted at a meeting
shall enter into force 90 days after that meeting for all Parties except those
which make a reservation in accordance with paragraph 3 of this Article”.
The last paragraph of the article provides that during a period of 90 days
any party may by notication in writing to the Depositary Government
make a reservation with respect to the amendment. Until such reservation is
withdrawn, the Party shall be treated as “a State not a party to the present
Convention with respect to trade in the species concerned”.
La Commission Centrale pour la Navigation du Rhin takes its decisions by majority
or unanimity. In the latter case, the decisions are binding unless governments
within one month refuse approval or make reservations.
Majority decisions binding upon members who do not object have also
been adopted under many maritime regulatory conventions, but partly by
more complicated provisions.
Thus, the International Convention of 1978 on Standards of Training,
Certication and Watchkeeping for Seafarers provides in Article XII (1)
(a) (vii)–(ix) that an amendment to the Annex to the Convention (not to an
article of the Convention itself ) shall be deemed to have been accepted two
years (or less) after it was communicated to the Parties for acceptance unless
“more than one third of Parties or Parties the combined merchant eets of
which constitute not less that 50 per cent of the gross tonnage of the world’s
merchant shipping of ships of 100 gross register tons or more notify the
Secretary-General that they object to the amendment”.
If objections are raised only by a smaller part of the Parties the “amend-
ment to the annex shall enter into force with respect to all Parties except
those which have objected”.
Similarly, the complicated convention on Prevention of Pollution from Ships
(MARPOL) of 2 November 1973 (cf. Additional Protocol of 17 February
1978) provides, inter alia, in Article 16 (2) (g) (iii) that:
228 chapter six

an amendment to an appendix to an Annex to the Convention shall be deemed to


have been accepted at the end of a period to be determined by the appropriate
body at the time of its adoption, which period shall be not less than ten months,
unless within that period an objection is communicated to the Organization by
not less than one third of the Parties or by the Parties the combined merchant
eets of which constitute not less than 50 per cent of the gross tonnage of the
world’s merchant eet whichever condition is fullled;116
Similar complicated provisions are contained in Article VIII (b) (vi) (2) of
the Safety of Life at Sea (SOLAS) convention of 1. November 1974, which
entered into force on 25 May 1980.
The much simpler provision in Article VI of the Convention on Inter-
national Regulations for Preventing Collisions at Sea of 1972 implies that
amendments to the Regulations “adopted by a two-thirds majority of those
present and voting in the Assembly” of the International Maritime Organiza-
tion shall – unless “more than one third of the Contracting Parties notify the
Organization of their objection to the amendment” – “for all Contracting
Parties which have not objected to the amendment, replace and supersede
any previous provision to which the amendment refers”.
The International Convention on Load Lines of 1966 provides, in Article
29 (2), that any amendment to the Convention:
shall enter into force twelve months after the date of its acceptance by all
Contracting Governments unless an earlier date is agreed upon. A Contracting
Government which does not communicate its acceptance or rejection of the
amendment to the Organization within three years of its rst communication
by the latter shall be deemed to have accepted the amendment.
Article 29 (3) provides an alternative procedure for “amendment after con-
sideration in the Organization”, viz. that an amendment “adopted by a two-
thirds majority of those present and voting in the Assembly” and subsequently
accepted by two-thirds of the members “shall come into force with respect to
all Contracting Governments except those which, before it comes into force,
make a declaration that they do not accept the amendment”.
Weaker provisions are contained in Article 17 (3) and (4) of the Basel
Convention on Movements of Hazardous Wastes of 22 March 1989 and in
the Chicago Convention on International Civil Aviation of 7 December 1944
Article 37. The former reads:
3. The Parties shall make every effort to reach agreement on any proposed
amendment to this Convention by consensus. If all efforts at consensus have been
exhausted, and no agreement reached, the amendment shall as a last resort be

116 Italics added.


extended jurisdiction of some organizations 229

adopted by a three-fourths majority vote of the Parties present and voting at the
meeting, and shall be submitted by the Depositary to all Parties for ratication,
approval, formal conrmation or acceptance.
4. The procedure mentioned in paragraph 3 above shall apply to amendments
to any protocol, except that a two-thirds majority of the Parties to that protocol
present and voting at the meeting shall sufce for their adoption.
The Chicago Convention provides in Article 37 that the International Civil
Aviation Organization “shall adopt and amend from time to time, as may be
necessary, international standards and recommended practices and procedures
dealing with” safety of air trafc and other matters. Article 38 provides:
Any State which nds it impracticable to comply in all respects with any such
international standard or procedure, or to bring its own regulations or practices
into full accord with any international standard or procedure after amendment
of the latter, or which deems it necessary to adopt regulations or practices
differing in any particular respect from those established by an international
standard, shall give immediate notication to the International Civil Aviation
Organization of the differences between its own practice and that established
by the international standard. In the case of amendments to international
standards, any State which does not make the appropriate amendments to its
own regulations or practices shall give notice to the Council within sixty days
of the adoption of the amendment to the international standard, or indicate
the action which it proposes to take. In any such case, the Council shall make
immediate notication to all other States of the difference which exists between
one or more features of an international standard and the corresponding national
practice of that State.
The methods listed so far are in substance parallel to treaty-making in so far
as no State is bound involuntarily. The decisions are in fact oral treaties or
other simplied treaty procedure.
It is a matter of interpretation of the constitution and of each decision –
and more specically of the custom of the organization concerned – whether
the decisions become binding upon adoption (i.e. any national constitutional
requirements having been complied with in advance of the decision) or
whether they are subject to subsequent approval according to each State’s
constitutional requirements.
The great advantage of the methods – as compared to formal treaty-mak-
ing or amendment – is that they are more expedient and make it simpler
to revise existing provisions. However, there are also examples of genuine
IGO legislation or other jurisdiction over member States in form of binding
majority decisions.
230 chapter six

Majority decisions binding upon all members117

We have several constitutional provisions to the effect that decisions adopted


by a qualied majority become binding upon all member States – without
other right to opt out than to denounce membership. This is the most effective
method of international legislation – short of supranational jurisdiction.
A broad example is the amendment of IGO constitutions by a qualied
majority vote, as exemplied by Article 108 of the UN Charter, which was
quoted above as such provision usually concern organizational, rather than
functional (substantive) matters.
A special, but important, substantive example is the UN Security Council.118
Under Article 25 and Chapter VII of the UN Charter members of the UN
(including the great majority who are not represented on the Council) are
bound by decisions of the Security Council119 made by qualied majority.
An example is the sanctions against Iraq.120 In its binding resolutions the
Security Council (already before membership of the UN became universal)
even call upon “all States” to comply, cf. Article 2 (6) of the Charter, which
provides:
The Organization shall ensure that States which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary for
the maintenance of international peace and security.121
Also organizations of the States, including the UN itself and its specialized
agencies, must comply although they are distinct legal persons. This course

117 Cf. D.W. Bowett, op. cit., pp. 140–7, 344 and 401–11 and Schermers and Blokker,
op. cit., §§ 789 and 867. On the whole problem of the unanimity rule and the excep-
tions to it after the establishment of the League of Nations, see Tammes: Hoofdstukken
van internationale organisatie, pp. 74–134.
118 Cf. K. Herndl: “The “forgotten” competences of the Security Council” in Verantwortung
in unserer Zeit, Festschrift für Rudolf Kirchschläger, 1990, pp. 83–91.
119 This was conrmed by the International Court of Justice in its advisory opinion on
Namibia (ICJ Reports, 1971, p. 53) – On the competence to lift sanctions, see an article
by the then Legal Counsel of the UN, Erik Suy: “Some Legal Questions Concerning
the Security Council” in I. von Münch (ed.): Festschrift für Hans-Jürgen Schlochauer,
Berlin 1981, pp. 677–89 and D. Sarooshi: The United Nations and the Development
of Collective Security. The Delegation by the UN Security Council of its Chapter VII
Powers, Oxford 1999.
120 Cf. resolution 687 (1991) – and resolution 715 (1991) on monitoring and verication.
121 Thus, in para. 8 of its resolution of 31 March 1998 (UNSCR 1160) the Council “Decides
that all States shall, for the purposes of fostering peace and stability in Kosovo, prevent
the sale or supply to the Federal Republic of Yugoslavia, including Kosovo, by their
nationals or from their territories or using their ag vessels and aircraft, of arms and
related matériel of all types, such as weapons and ammunition, military vehicles and
equipment and spare parts for the aforementioned, and shall prevent arming and train-
ing for terrorist activities there”.
extended jurisdiction of some organizations 231

was followed by the organizations in respect of the sanctions against Iraq,


although Security Council resolution 661 of 6 August 1990 merely “calls upon
all States (italics added), including States non-member of the United Nations,
to act strictly in accordance with the present resolution”, and although differ-
ent terms were used in the different specialized agencies on the legal aspects
for the extension of this to include the organizations.
The Arab League Treaty of Joint Defence and Economic Co-operation
of 18 June 1950 established a military alliance with provisions for automatic
collective self-defence similar to those of NATO. However, in contradistinction
to the North Atlantic Treaty, the Arab League Joint Defence Treaty provides,
in its Article 6, that the Joint Defence Council, composed of the Foreign and
Defence Ministers or their representatives, shall make its decisions concerning
the implementation of the treaty by a majority of 2/3 and (expressly) that
these decisions “shall be binding on all the Contracting States”.
An example in the eld of protection of the environment is the Conven-
tion on the Regulation of Antarctic Mineral Resource Activities of 2 June
1988, which by its Articles 21–22 and 41–42 authorize the Antarctic Mineral
Resources Commission to make decisions by three-quarters majority (or by
consensus in some cases) for a number of purposes, including:
Designation of “areas in which Antarctic mineral resource activities shall be
prohibited or restricted” (Arts. 21 (1) (b) and 13)
Adoption of “measure for the protection of the Antarctic environment” (Art.
21 (1) (c))
Identication of “an area for possible exploration and development” (Art.
21 (1) (d)) and
Determination of maximum drilling depths (Arts. 1 (8) and 21 (1) (e) (ii)).
Another environmental example is the Montreal Protocol of 16 September
1987 to the Vienna Convention for the Protection of the Ozone Layer of 22
March 1985. It provides inter alia that the Parties by unanimity or a two-thirds
majority may decide adjustments to the ozone depleting potentials specied
in the Annex to the Protocol. The relevant parts of Article 2 read:
9. (a) Based on the assessments made pursuant to Article 6, the Parties may
decide whether:
(i) adjustments to the ozone depleting potentials specied in Annex A should be
made and, if so, what the adjustments should be; and
(ii) further adjustments and reductions of production or consumption of the
controlled substances from 1986 levels should be undertaken, and if so, what the
scope, amount and timing of any such adjustments and reductions should be;
(b) Proposals for such adjustments shall be communicated to the Parties by the
secretariat at least six months before the meeting of the Parties at which they
are proposed for adoption.
232 chapter six

(c) In taking such decisions, the Parties shall make every effort to reach agreement
by consensus. If all efforts at consensus have been exhausted, and no agreement
reached, such decisions shall, as a last resort, be adopted by a two-thirds majority
vote of the Parties present and voting representing at least fty per cent of the
total consumption of the controlled substances of the Parties.
(d) The decisions, which shall be binding on all Parties, shall forthwith be com-
municated to the Parties by the Depositary. Unless otherwise provided in the
decisions, they shall enter into force on the expiry of six months from the date
of the circulation of the communication by the Depositary.
10. (a) Based on the assessments made pursuant to Article 6 of this Protocol
and in accordance with the procedure set out in Article 9 of the Convention,
the Parties may decide;
(i) whether any substances, and if so which, should be added to or removed
from any annex to this Protocol; and
(ii) the mechanism, scope and timing of the control measures that should apply
to those substances:
(b) Any such decision shall become effective, provided that it has been accepted
by a two-thirds majority vote of the Parties present and voting.

A rather special provision is Article 76 (8) of the UN Convention on the Law


of the Sea of 10 December 1982:
Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical
representation. The Commission shall make recommendations to coastal States
on matters related to the establishment of the outer limits of their continental
shelf. The limits of the shelf established by a coastal State on the basis of these
recommendations shall be nal and binding.
Thus, if the Commission’s recommendation to the coastal State is applied
by the latter, the parties to the Law of the Sea Convention are bound by the
limits thus approved. Under Article 6 (2) of Annex II to the convention, the
Commission shall decide by a majority of two thirds.
The International Civil Aviation Organization (ICAO), under Articles 12 and
90 of its constitution, adopts – by a two-thirds majority vote of its Council –
binding rules for air trafc over the high seas. These shall be applied and
enforced by the member States. However, these regulations are (so far) not
territorial provisions for air-space in general, but apply only to aircraft of or
registered with the member States, and are enforced by these severally.122

122 See J. Carroz: “Die internationale Gesetzgebung für die Luftfahrt über hoher See” in
Zeitschrift für Luftrecht, VIII (1959), pp. 3–24, English version in The Journal of Air
Law and Commerce, XXVI (1959), pp. 158–172.
extended jurisdiction of some organizations 233

This is thus not territorial jurisdiction, but merely rules which become
binding upon the contracting States, although this limitation means little in
practice in the case of an organization with global membership. The same
is true of the several regional conventions which regulate sheries on the
high seas and in coastal zones, e.g. the weak and complicated convention on
North-East Atlantic Fisheries of 18 November 1980.
A more limited example is Article IX 2 of the Agreement of 15 April 1994
Establishing the World Trade Organization, which provides: “The Ministe-
rial Conference and the General Council shall have the exclusive authority
to adopt interpretations of this Agreement and of the Multilateral Trade
Agreements” and these decisions “shall be taken by a three-fourths majority
of the Members”.
It may be added that binding rules applicable to two or a few States may
also be laid down by an arbitral commission or an international organization
entrusted with this task by the States concerned.
An example of the latter is the guarantees to inhabitants of the Åland
Islands which the Council of the League of Nations undertook to determine
in 1921, when it decided to accord the sovereignty over these islands of Swed-
ish-speaking population to Finland. In actual fact, the task was solved by the
two countries agreeing on the text of the guarantees in negotiations presided
over by a member of the Council, so that the Council could simply approve
them and annex them to its resolution.123 However, the behind-lying power
of the Council may have been a factor to make the parties agree.
An example of rules laid down by an arbitral commission was the Geneva
Convention on Fishing and Conservation of the Living Resources of the
High Sea of 29 April 1958 which never entered into force. It provided in
Article 4:
1. If the nationals of two or more States are engaged in shing the same stock
or stocks of sh or other living marine resources in any area or areas of the
high seas, these States shall, at the request of any of them, enter into negotia-
tions with a view to prescribing by agreement for their nationals the necessary
measures of the conservation of the living resources affected.
2. If the States concerned do not reach agreement within twelve months, any
of the parties may initiate the procedure contemplated by Art. 9.
Article 9 provided for an arbitration procedure by an ad hoc commission,
composed of individuals and deciding by majority. No such procedure is
foreseen in Articles 116–120 of the 1982 Law of the Sea Convention.

123 Tore Modeen: De folkrättsliga garantierna för bevarandet av Ålandsöarnas karaktär, Åbo
1973, pp. 33–36.
234 chapter six

The European Community also employs decision-making by (weighted)


qualied majority in the Council to quite some extent. This often also implies
comprehensive (supranational) jurisdiction, which will be dealt with below.

Decisions binding upon non-member States

We even have organizations which have been authorized to make decisions


which become binding upon the States concerned even if they are not mem-
bers of the organization. Unless otherwise provided, the organization will then
apply its own internal law in adopting and implementing such decisions.
One example is the peace treaties concluding World Wars I and II. These,
inter alia, referred the nal determination of certain territorial questions to
the Council of the League of Nations and the General Assembly of the UN
respectively.
Thus, Article 3 (2) of the Treaty of Lausanne after World War I referred
the question of the delimitation of the frontier between Turkey and Iraq to
the Council of the League of Nations, and Annex XI to the Treaty of Peace
with Italy after World War II, referred the question of the disposition of the
former Italian colonies to the UN General Assembly.
At the time of conclusion of these treaties, the defeated powers had not
yet been admitted to membership in the League or the UN, respectively. The
Permanent Court of International Justice held that if in such cases there was
no special provision to the contrary, the general rules of the organization and
procedure of the organ to which the matter had been referred (in casu the rule
of unanimity with the limitation that the votes cast by the interested parties
do not affect the required unanimity) would apply.
Another example is the great number of treaties which authorized the
Presidents of the Permanent Court of Justice and the International Court
of Justice and the UN Secretary-General, respectively, to appoint arbitrators
in disputes irrespective of whether the parties to the disputes were members
of the League or the UN or parties to the Statute of the Court.124 Other
examples are the original and the revised General Acts for the Pacic Settle-
ment of International Disputes of 26 September 1928 and 28 April 1948,125
which were open for accession also by States which were not members of the
League of Nations or of the UN. These conventions authorized the President

124 Already in 1948 the Systematic Survey of Treaties for the Pacic Settlement of Disputes,
published by the UN, could quote 37 such treaties at pp. 100–105.
125 League of Nations Treaty Series Vol. CVII, p. 564 and UNTS Vol. LXXI, p. 101,
respectively.
extended jurisdiction of some organizations 235

of the Organization’s Court of Justice in the Hague to appoint arbitrators if


it proved impossible to have these appointed in the prescribed way. Similarly,
the peace treaties concluded after World War II with the Axis satellites that
were at that time not members of the UN, provided for appointment by the
UN Secretary-General of the third member of the commission designated
to settle disputes.126

Are binding decisions of intergovernmental organizations “treaties” in relation to national


constitutions?

The question whether each new binding decision adopted by the organiza-
tion must be considered a new treaty requiring compliance with national
constitutional requirements for approval of treaties, including approval by
Parliament if required, is a matter of interpretation of the basic treaty (in
most cases the constitution of the organization concerned) and of the national
constitution concerned.
(a) If the basic treaty provides for decisions binding upon all members to
be taken by a (qualied or simple) majority, this implies a delegation of power
which obviates further national steps of approval of each decision (but not of
implementation in national law wherever required). This may be the correct
interpretation even if there is a right to opt out, because this is usually subject
to time limits which hardly were intended to sufce for normal ratication
and legislation procedures.
(b) If the basic treaty requires unanimity, the States are not committed
until they vote in favour. It may then be argued that each new decision is,
in substance, a new treaty. However, one of the reasons why a different form
was chosen will normally have been a desire to simplify and expedite the
procedure to avoid the complications and delays involved in compliance each
time with national constitutional requirements. It will then be more appropri-
ate to interpret even a treaty requiring unanimity as implying a delegation
of power to the organization.
(c) More doubtful is the position if there is provision for a right to opt
in. An example is the bilateral agreement between the International Energy
Agency (IEA) and Norway of 7 February 1975 which associated Norway with
the work of the IEA, with a right, but no obligation, to accept (and thereby

126 See e.g. Arts. 35 and 40 of the Treaty of Peace with Hungary (UNTS Vol. 41 pp.
206–210), cf. the advisory opinion of the International Court of Justice of 18 July 1950
(Recueil des arrêts, 1950, p. 221).
236 chapter six

become internationally bound by) each specic decision unanimously adopted


by the regular members of the IEA.127
(d) Indeed, one of the practical advantages of international regulations is
precisely that binding decisions authorized in the constitution or other treaty,
do not constitute new treaties for national constitutional purposes. Once the
treaty laying down the power of an IGO to make binding decisions has been
approved in the manner prescribed in the national constitution – including
Parliamentary approval as appropriate – it should not be necessary to submit
each so authorized decision to Parliament before adoption.

Effects of binding substantive decisions in national, international and internal law

(a) Decisions by IGOs which are binding upon the member States become
part of the (extended) internal law of the organization and must be applied
also by external parties when their conicts law refers to the law of the
organization.
(b) However, the decisions also establish particular public international law –
in relation between subjects of that law (the organization and its member
States). The decisions must be applied in that law – together with its other
customary and general principles. If binding IGO-regulations are not listed
in Article 38 of the Statute of the International Court of Justice as one of
the sources to be applied by the Court, this is probably due to the fact that
the system of binding regulations was relatively unknown in 1945. However,
such regulations may also be considered as covered by Article 38 a, since the
binding force of substantive regulations normally follows from constitutional
or other conventions. As for priority, IGO regulations cannot take precedence
over the treaties which authorize the organization to enact the regulations.

127 When Norway on 20 May 1976 informed the IEA that it accepted the decision on a
long-term co-operation program which the IEA had adopted in January of the same
year under its constitution of 15 November 1974, Norway did so with adequate political
backing from the majority political parties, but without formal parliamentary approval as
the constitution requires for entering into new treaty obligations. It is a matter of interpre-
tation of the basic agreement and its submission for parliament approval whether such
approval implied a delegation of power to the organization to make specic decisions
(this should, of course, have been made clear when the basic treaty was approved). It
appears, however, also in this case to have been a purpose of the procedure to establish
a more efcient rule – and decision-making procedure – than could be provided by the
traditional treaty-making procedure. This simplication at the international level would
obviously be rendered less effective if the State internally were to treat each decision as
a new “treaty”.
extended jurisdiction of some organizations 237

Otherwise the regulations are equal to treaties and the other sources: The
later takes precedence, whether it is a treaty, a binding decision or custom-
ary law.
(c) In national law the effects of binding decisions are in principle those of
treaties. However, in most countries provisions have been made to assure that,
once the IGO constitution or other authorizing treaty has been ratied in
accordance with the national constitution, it is not necessary to repeat these
constitutional procedures for each new regulation. It is this latter fact which
gives the great, simplifying and time-saving effect which is the main purpose
of the method of binding decisions, as compared to treaties. However, this
depends upon to what extent also implementing authority has (thereby) been
delegated to the executive branch of government.
(d) As for hierarchical order – i.e. priority in case of conict – there is a
basic difference between national and internal law, on the one hand, and
public international law on the other. Both national and internal law have a
clear hierarchical system: The constitution takes precedence over regulations
and decisions by organs, and regulations and decisions by higher (principal)
organs take precedence over those enacted by lower (subsidiary) organs. In
international law, however, the sources (treaty and custom) are equal: The later
takes precedence over the earlier. However, if binding substantive regulations
and decisions of IGOs are considered part of public international law in so
far as they establish rights and duties for States and IGOs, this cannot alter
the fact that these regulations enacted by IGOs are subject to a hierarchical
order of priority which places them below the conventions which authorize
their enactment. This is a good reason for keeping even substantive binding
decisions within the concept of internal, rather than international law.
(e) Similarly, the question arises whether even binding IGO decisions,
because of their effects, must be considered as treaties in relation to national
constitutional provisions on conclusion of treaties – notably whether each
new decision must be submitted to the relevant constitutional requirements,
e.g. approved by Parliament, if its contents so require because the decision
establishes new rules binding upon the State. The prime purpose of the
modern procedure of binding substantive decisions is to simplify and thereby
facilitate their adoption. However, it is equally important to facilitate their
implementation in each country. This new source of (IGO and international)
law was not sufciently developed in 1946 to be included in the list of sources
enumerated in Article 38 of the Statute of the International Court of Jus-
tice. The Institut de droit international in its 1993 resolution on “The activities
of national courts and the international relations of their State”, gave a (not
too clear) indication in Article 6, which reads
238 chapter six

National courts should determine with full independence the existence or con-
tent of any general principle of law in accordance with Article 38 (1) of the
Statute of the International Court of Justice, as well as of binding resolutions of
international organizations.128
It is submitted that it is an important purpose of binding IGO decisions also
that they shall be quickly implemented in each member State. It is therefore a
natural part of the ratication process of the IGO constitution that national
provisions are made for implementation of the binding decisions automati-
cally or by simple administrative measure.

Comprehensive (supranational) jurisdiction

The nal – and most far-reaching – type of extended jurisdiction is the so-
called supranational jurisdiction. This is comprehensive, in so far as within
dened substantive areas, the organization takes over direct jurisdiction in
its member States, both territorial and personal – in addition to the power
to make decisions binding upon the member States themselves. This is thus
not merely jurisdiction over member States as described above, but direct
comprehensive jurisdiction in member States.
The international river commissions may be seen as a modest example.
They do not exercise full territorial jurisdiction over the rivers, but jurisdiction
over everything and everybody concerned with navigation on the rivers.
The European Community represents the obvious and to date the most fully
developed example of supranational jurisdiction, rst and foremost character-
ized by community competence over broad policy areas related to upholding
the freedoms of the internal market, trade policy and to resource manage-
ment, primacy of community legislation also in national forums and direct effect
of community legal acts in national law of the member States regardless of
existing national implementing action. Decision-making is mostly by (weighted)
majority voting, see below chapter 6.5. This very special organization is well-
known and amply described in a rich literature and will not be described in
the present book on common law of IGOs except that we shall in Part Four
have a look at the position of Community law in conict of laws.129 A similar

128 Annuaire de l’Institut de droit international, Vol. 65 II (1994), p. 323, italics supplied.
129 On the external aspects reference is also made to Kapteyn and VerLoren van Thermaat:
Introduction to the Law of the European Communities, 3rd ed., London, the Hague,
Boston 1998, pp. 771–88, cf. also Rachel Frid: The Relations between the EC and
International Organizations, the Hague 1995.
extended jurisdiction of some organizations 239

system of direct effect in member States is foreseen in the treaty framework


establishing the Andean Community.130

6.5 Legal basis for extended jurisdiction

Does extended jurisdiction require constitutional authority?

It will be seen that in most cases where an IGO has assumed territorial juris-
diction, and in some cases of personal jurisdiction, there was no provision
authorizing this in the constitution of the organization concerned.
On the other hand, several cases of jurisdiction over member States were
laid down in express constitutional provisions. Examples are: International
courts which have compulsory jurisdiction under the treaty creating them
(mostly ad hoc courts), boundary commissions, the Arab League Article 7, the
International Whaling Commission Article III 2 cf. Article V, OEEC Article
14 cf. Article 13 (a), and the UN Security Council. In the last mentioned case
the constitution even contains cumulative provisions.131
However, in the greater number of cases even the jurisdiction over States
in substantive matters has not been conferred or authorized by constitutional
provisions, but separate inter-State treaty or by other acts. In this manner
organizations have been able to acquire functional jurisdiction also over
non-member States and/or functional jurisdiction not necessarily including
all member States.
It is thus clear that no constitutional provision is necessary to enable IGOs to
exercise jurisdiction over States, members or non-members. All that is required
is that the States concerned have given their consent in some form or other,
expressly or tacitly. We even have examples where IGOs in fact have made
decisions binding upon States which had not consented to being bound.132
Indeed, binding decisions authorized in the constitution or in other treaty are

130 Comunidad Andina de Naciones (CAN), cf. The Treaty creating the Court of Justice of
the Cartagena Agreement, as amended by the Protocol of Cochabamba 28 May 1996,
Article 3, which provides that: “Decisions of the Andean Council of Foreign Ministers
or of the Commission and Resolutions of the General Secretariat shall be directly appli-
cable in Member Countries as of the date they are published in the Ofcial Gazette
of the Agreement, unless they indicate a later date”. Article 4 of the Protocol imposes
on Member States the obligation to take the necessary measures to comply with such
decisions of the organization.
131 Article 25 and Chapter VII of the UN Charter.
132 Sloan BYIL (XXV) 1948, pp. 21–25.
240 chapter six

a simpler and more efcient method than going through the treaty-making
procedure every time rules have to be amended or added.133

Regulations contra treaties

Despite the great number of constitutional and other provisions for binding
IGO-decisions listed above, the traditional recommendations and conventions
still remain the basic tool of unifying national rules of international concern
in non-supranational organizations.
Even organizations as the World Health Organization, which have the
power under their constitutions to adopt binding regulations, continue to
use the traditional methods of conventions and, especially, of non-binding
recommendations.134 However, conventions take a long time to negotiate,
ratify and enter into force – without on the other hand offering any assur-
ance of ratication and implementation by all States. This complicates and
delays current amendments required to keep up with developments. Binding
decisions is a more expedient and effective method. This was why the Hague
Declaration on the environment of 11 March 1989 by 24 Heads of State
and Government called for “a new approach [. . .] including new and more
effective decision-making and enforcement mechanisms”.

Protection of the environment

It will be seen from the various provisions cited in chapter 6.3 above, that a
number of IGOs have the power to make binding decisions in specic elds
of environmental protection – including conservation of the living resources
of the sea, protection of the ozone layer in the atmosphere and environment
protection in Antarctica (generally – and for marine and mineral resources in
particular). Other organizations have powers which could be used for protec-
tion of the environment. However, none of these powers extends so far as
those of the UN Security Council, whose decisions are binding also for States
which do not take part in the decision-making.

133 Cf. the memorandum submitted by J. Hostie, legal expert-counsellor at the WHO at the
time of the introduction of the World Health Regulations (WHO document A/3–4/SR
4 of 16 March 1951).
134 Cf. a paper prepared by the Legal Counsel of the WHO in 1989 on “The World Health
Organization’s Contribution to International law”.
extended jurisdiction of some organizations 241

Weighted voting

The present system in the UN and most other international organizations is


“one member one vote”, which implies that a State of 100.000 inhabitants
has the same voting weight as a State of 1.000.000.000 inhabitants. This
may be acceptable for recommendations, which States can ignore and which
they frequently do ignore. But for binding decisions the big powers will not
readily accept to be outvoted by a two-thirds majority of small States, as has
happened several times. The veto power in the Security Council is a very
arbitrary means of avoiding this: Any one of the ve permanent members
of the Security Council which took part in the founding of the UN has an
absolute right of preventing a binding decision, whereas the other big States
have no stronger voting power than very small States.
A solution to such imperfections of governance may be found in a system
of weighted voting, where each State is accorded a voting power according
to its population, its contribution to the budget of the Organization and/or
to other relevant criteria. There need be neither “one State one vote”, nor
voting strength in proportionality to population or other criteria – but a com-
promise between the two: More voting strength for the big powers, but not
veto for any one. Such systems have been introduced in some organizations
which have the power to make important decisions:
Thus in two specialized agencies of the United Nations – the International
Bank and the International Monetary Fund – each member has 250 votes
plus an additional number of votes proportional to its paid-in quota of the
capital stock (with some further adjustments in the case of the Fund) – see
Article XII section 5 of the constitution of the Fund and article V section 3
of the constitution of the Bank. This gives, in the Bank, the United States
19.29 per cent, the Nordic countries 3.48 and Bhutan 0.03 per cent of rela-
tive voting rights.
In international organizations which provide satellites for international
telecommunication the members vote in substantive matters in proportion to
their capital investment shares in the Organization, which in turn are adjusted
regularly in proportion to their utilization of the system.
Other examples are the numerous international commodity agreements.
Thus the constitution of the Cocoa Producers Alliance of 24 March 1970
provided in Article 8 (1) that 200 out of the 1000 votes shall be equally dis-
tributed among the member States and that the remaining 800 votes shall
be distributed in proportion to “the highest annual production of cocoa by
each member” during the six preceding years.
In the Council of the European Union those decisions which require a quali-
ed majority are taken by weighted voting according to a scale corresponding
242 chapter six

to population. Thus, Article 205 of the EC Treaty allocates 29 votes to the


four largest member States and from 3 to 27 to the others.135
In several of these cases the decisions taken by weighted voting do not
involve exercise of powers over or within the member States, but merely
over important sums contributed by member States to the capital and the
budget of the Organization. In the Council of the European Union, however,
the provisions on weighted voting were a necessary tool to make the bigger
countries agree to confer upon the Community the power to make decisions
binding upon and within the several member States.136

The legal basis

The extended jurisdiction described above differs from the inherent powers
described in other parts of the present book, in so far as the extended powers
are not inherent in all IGOs, but are specically vested in certain organiza-
tions only, and that they require a specic legal basis for each organization
concerned.
The supranational powers of the European Community (and international
river commissions) are laid down in their constitutional conventions. And so
are in most cases powers to make decisions binding upon member States;
however, here there are important exceptions where the power is laid down
in another treaty or in practice (e.g. NATO, if its unanimous decisions are
considered legally binding).
On the other hand, it will be seen from the examples listed above that in
the vast majority of cases of extended territorial and personal jurisdiction
there is no provision on the subject in the constitution. Instead, the jurisdiction
is in many cases laid down in another treaty. In other cases the organization
has assumed “vacant” territorial or personal powers unilaterally.
The clear conclusion is that even in respect of extended jurisdiction there
is no basis in practice for the current theoretical point of departure that an

135 When decisions under the EU Treaty require a qualied majority in the Council, the
relevant articles refer to Article 205 of the EC treaty, see Articles 23 and 34 (3) of the
EU Treaty. The Treaty of Lisbon 13 December 2007 will change the majority require-
ment in the enlarged Union.
136 If a system of weighted voting were introduced in the Security Council, it should be
possible to mitigate or eliminate the present, arbitrary, veto power for certain members.
This, in turn, would enable the Council to make more use of its power to make binding
decisions. If introduced in the General Assembly or in other international organizations,
a system of weighted voting might enable the big powers to agree according to that organ
or those organizations a power of making decisions binding upon the member States.
extended jurisdiction of some organizations 243

IGO can only do what is provided or “implied” in its constitution.137 And the
ction of “implied powers” would here be even more articial and useless
than it is in respect of inherent organic and organizational jurisdiction.
Still, there is a basic and important difference between extended jurisdiction
and the inherent powers described in other parts of the present book, in that
extended jurisdiction requires some legal basis. This may be the constitution,
some other treaty, a unilateral act from those being subjected to the jurisdic-
tion, or – in the case of “vacant” powers – a unilateral act (“occupation”,
assumption) by the organization itself. An example of the latter is personal
jurisdiction over refugees and stateless persons. Another example could be
territorial jurisdiction in Antarctica (if the unclaimed sector or the entire
continent had been placed under territorial administration of an IGO, see
above).
It is submitted – but this may be more debatable – that a competent IGO –
being different from a State – may even assume certain powers which States
could not assume under existing international law, e.g. in respect of the “global
commons” (the high seas, outer space).
Extended powers may in special cases even be stretched somewhat beyond
the strict words of the constitution or other treaty or unilateral act which
institute them, if this must be presumed to have been the implied or logically
necessary intention of the authors. However, this would be implied powers
in a genuine and very restrictive sense – entirely different from the wide and
undened abuse of the concept to which writers resort in order to escape the
contradiction between practice and their false point of departure of delegated
jurisdiction over organs and their members and delegated international and
legal capacity.
Summing up: While in some cases the extended jurisdiction is laid down
or authorized in provisions of the constitution of the organization concerned,
in the majority of cases it is not, but based upon other treaty, or unilateral
act from those which had and ceded the power – or upon unilateral act by
the organization itself in the case of “vacant” powers. Indeed, IGOs have
an inherent capacity to accept or assume even extended jurisdiction in these
circumstances, as long as constitutional or other provisions do not preclude it.
It is thus even here unnecessary to resort to the ctitious and undeterminable
application of the concept of “implied powers”.
Even when international law prohibits national occupation, competent and
representative IGOs – and notably the UN which has universal membership –

137 See Schermers and Blokker, op. cit., § 1320, pp. 823–4.
244 chapter six

are not necessarily bound by this, but must – in certain cases be entitled to
assume “vacant” governing powers, e.g. in the “global commons”.
The question of limited extended powers for certain IGOs – beyond the
organic and limited organizational membership jurisdiction which is inher-
ent in all IGOs – arises only in respect of jurisdiction. As we shall see in the
following parts of the present book, the capacity to act externally as equal
partners and subjects of international and national law is inherent in all
IGOs and general, i.e., applies also (and especially) when the organizations
act externally on the basis of their extended (internal) jurisdiction.
The general approach of legal writers that the powers of an IGO must
be prescribed or “implied” in its constitutional convention is thus false, also
in respect of extended jurisdiction. IGOs in practice assume governmental
powers over territories, categories of persons, or States on bases other than
their written constitutions; e.g. by occupation or by transfer from States. It
serves no useful purpose to attempt to interpret such powers into constitutional
provisions that were never meant to cover them and lack of which does not
rule them out. Ample materials collected from practice demonstrate that the
power of IGOs to assume such extended jurisdiction and to perform external
acts under international law is not contingent upon relevant constitutional
provisions, as long as there is no provision precluding it. And such existing
provisions authorizing specic powers cannot automatically be interpreted
a contrario. But extended jurisdiction does require some legal basis – in the
form of an act by the organization or by the other parties concerned.
CHAPTER SEVEN

SETTLEMENT OF INTERNAL DISPUTES

7.1 Introduction

The exercise by an IGO of its legislative and administrative functions, in the


organizational as well as in the functional eld, frequently gives rise to internal
legal disputes. Such disputes may concern the interpretation of provisions
of the constitution, of regulations enacted by the organization, of treaties or
other acts conferring upon the organization the power to make legislative and
administrative acts binding upon States and/or private individuals (extended
jurisdiction), or they may concern questions for which no written rules have
been laid down. The disputes may arise within or between organs of the orga-
nization, between the organization and its members or its ofcials, or between
members or between ofcials inter se. In the case of those organizations which
have been given extended jurisdiction by provisions in their constitutions, in other
treaties or in unilateral acts – as for example international river commissions
or supranational organizations like the European Community – disputes of
an internal nature, largo sensu, may arise also between the organization and
individuals other than ofcials, in those elds where such individuals have
been placed under the legislative and/or administrative authority of the
organization,1 or between such individuals inter se.
We shall now discuss the various modes of settlement in relation to these
different types of disputes,2 in particular to establish to what extent judicial

1 In working out procedures for the administrative and judicial settlement of disputes between
the organization and its ofcials or other individuals under its jurisdiction, guidance may
be drawn from a comparative study of the practice of States in this respect, undertaken
by the Institut international des sciences administratives: Puget and Maleville: La révision
des décisions administratives sur recours des administrés, Bruxelles 1953.
2 Giorgio Malinverni: “The Settlement of Disputes within International Organizations” in
Mohammed Bedjaoui (ed.) International Law; Achievements and Prospects, Paris 1991,
pp. 545–587 describes notably the settlement methods for disputes between member States
provided for in specic organizations and gives an extensive list or relevant literature for
different groups of organizations, Schermers and Blokker, International Institutional Law,
246 chapter seven

powers may be exercised in these respects by the organization, even if its


constitution does not provide for judicial powers, and by external courts.
External disputes of national or international law will only be touched upon
in special contexts. Inherent capacity of IGOs to settle external disputes of
international law by international procedures in the same manner as disputes
between States – including arbitration or decision by other international courts –
follows from their general international capacity (personality), cf. chapter 2
and Part Three.

7.2 Constitutional provisions

The constitutions of some – but far from all – IGOs contain express provisions
which prescribe specic procedures for the settlement of disputes concerning
the interpretation or application of the constitution. The procedures provided
for are usually settlement by decision either of an administrative organ of the
organization3, or of an external or internal judicial body, usually an ad hoc
arbitral tribunal4 or the International Court of Justice,5 or both. Most of

4th ed., Leiden 2003, make a comprehensive survey of the judicial organs established by
the several organizations (pp. 427–489) and of the organs and methods of interpretation
(pp. 839–871). The most comprehensive survey is D. Bindschedler: “Le règlement des dif-
férends relelatifs au statut d’un organisme international” in Recueil des Cours de l’Académie
de droit international, 1968 II, pp. 459–547. See also D. Simon: L’interprétation judiciaire
des traités d’organisations internationals, Paris 1981.
3 ICAO (International Civil Aviation Organization) 7 December 1944, Art. 84; IMF
(International Monetary Fund) 27 December 1945, Art. XVIII, Sec. 4 (a)–(b), IBRD
(International Bank for Reconstruction and Development) 27 December 1945, Art. IX
(a)-(b); International Wheat Council Art. 8. Different types of provisions are International
Maritime Organization Art. 69 and the abortive International Trade Organization Arts.
94–95.
4 ICAO, Arts. 84–86; IMF, Art. XXIX (c); IBRD, Art. IX (c); ITU (International Telecom-
munication Union) 9 December 1932, Constitution Art. 56 and Convention Art. 41; UPU
(Universal Postal Union) 1 June 1878, Art. 32; WMO (World Meteorological Organiza-
tion) 11 October 1947; Danube Commission (European Commission of the Danube) 2
November 1865.
5 Although the International Court of Justice is the principal judicial organ of the UN,
the UN Charter contains no such specic references to the Court. The same applies to
many of the specialized agencies of the UN. Provisions referring disputes concerning the
interpretation of the constitution to the International Court of Justice may be found,
however, in the constitutions of many specialized agencies: ILO (International Labour
Organization) 28 June 1919, Arts. 29 (2) and 31–32; FAO (Food and Agriculture Orga-
nization of the United Nations) 16 October 1945, Art. XXVI (1); UNESCO (United
Nations Educational, Scientic and Cultural Organization) 16 November 1945, Art. XIV
(2); WHO (World Health Organization) 22 July 1946, Art. 75; ICAO, Arts. 84–86; IAEA
(International Atomic Energy Agency) 26 October 1956, Art. XVII A. Similar provi-
sions may be found in the constitutions of several organizations not related to the UN:
settlement of internal disputes 247

these provisions confer compulsory jurisdiction upon the organ or court, but
some require agreement between both parties to the dispute. Many provisions,
however, envisage only disputes arising out of the constitution itself. Moreover,
several of the provisions envisage disputes between member States only.6
In addition to these limited provisions for binding administrative and/or
judicial settlement, the constitutions of the UN and of some of the special-
ized agencies provide that the organization may request an advisory opinion
from the International Court of Justice on “any legal question”.7
The constitution of the African Union provides in its Article 18, cf. Article
5 (1) (d) for the establishment of a Court of Justice. The competence of the
Court of Justice is set out in the Protocol of Maputo of 11 July 2003, which
in its Article 19 on competence/jurisdiction confers broad powers to decide
in all disputes relating to the AU Constitution, as well as the interpretation,
application or validity of Union treaties and all subsidiary legal instruments
adopted within the framework of the Union.8 The Court of Justice of the
Andean Community is the judicial authority of the community. The func-
tions of the court is closely interlinked with the provisions dening the legal
system of the Andean Community, which confers on individuals and legal

IARA (Inter-Allied Reparation Agency) 14 January 1946 (Resolution No. 8 (adopted at


the constitutive conference); WEU (Western European Union) 17 March 1948, Art. 26
VII; Bern Union, Art. 33 (1); CERN (European Organization for Nuclear Research) 1
July 1953, Art. XI, and ICEM (Intergovernmental Committee for European Migration),
19 October 1953, Art. 31. The texts of these and other provisions are reproduced in ICJ
Yearbook, Chapter III.
6 See however, the constitutions of IMF, Art. XIXX and IBRD, Art. IX, which refer to
disputes between the organization and member States. Nor are the constitutions of
UNESCO Art. XIV, FAO Art. XVII and some others restricted to disputes between
member States.
7 UN Art. 96, FAO Art. XVII 2, WHO Art. 76, IMO Art. 70, IAEA Art. XVII B. The
question of who was to interpret the UN Charter was discussed at the San Francisco
Conference, see especially United Nations Conference on International Organization, San
Francisco 1945 (UNCIO) VII, pp. 709–710, referred to below, notes 135 and 141. On
the interpretation of the UN Charter see also ICJ Reports 1948 p. 61, 1950 pp. 6 and
137–140 and 1962 pp. 155–156; Kopelmanas: L’Organisation des Nations Unies I, Paris
1947, pp. 254–278, and Goodrich and Hambro: Charter of the United Nations, 3rd ed.,
New York 1969, pp. 547–551. On the question of the interpretation of the League of
Nations Covenant, see the documents listed in Walter Shiffer: Repertoire of Questions
of General International Law before the League of Nations 1920–1940, Geneva 1942,
p. 237.
8 Article 19, (c), (e), (f ) and (g) of the Maputo Protocol even extends competence to AU
Court of Justice to assume jurisdiction of “any question of international law”, “all matters
specically provided for in any other agreements that States Parties may conclude among
themselves or with the Union and which confer jurisdiction on the Court”, “the existence
of any fact which, if established, would constitute a breach of an obligation owed to a
State Party or to the Union”, and “the extent of the reparation to be made for the breach
of an obligation”.
248 chapter seven

persons the right to appeal to the court in the event of infringements of


community law.9 The constitution of the European Community provides for
the establishment of a common Court of Justice with wide powers for bind-
ing judicial settlement of internal disputes other than those relating to the
constitution and other than those arising between member States.10 And so
do the constitutions of some European river commissions.
Other IGOs have established similar systems of settlement of disputes short
of creating an internal court of justice. Thus, both the North American Free
Trade Agreement (NAFTA) and the Mercado Común de Sur (MERCOSUR)
count on national sections for the surveillance of correct national implemen-
tation of common standards, and these also function as a contact point for
individual complaints in this respect.11
However, most constitutions of intergovernmental organizations do not
prescribe modes of settlement for internal disputes. Nevertheless, the disputes
must be settled if the organization is to be able to carry out its functions. And
in practice they are settled, either by administrative or by judicial means.

7.3 Settlement by administrative decision of the organization

Decisions by administrative organs

Like most disputes within the governments of States, internal disputes of


IGOs are usually settled, not judicially, but by administrative decision of the
deliberative or executive organ where the question arises, or of a superior
organ.12 Thus, where the competence of a deliberative organ to discuss a
certain matter or to take specic steps, or the propriety of the procedure
adopted by the chairman of the organ, is challenged by a member of the
organ concerned, the matter is decided by a vote of the organ itself.13 And so

9 Cf. the Cartagena Agreement as amended by the Protocol of Trujillo 10 March 1996,
Articles 40 and 41, and the Treaty creating the Court of Justice of the Cartagena Agree-
ment, as amended by the Protocol of Cochabamba 28 May 1996.
10 EC Arts. 220–245 and EURATOM Arts. 136–160. The association agreement to provide
access for certain EFTA-States to the European internal market (the Agreement on the
European Economic Area of 2 May 1992), Arts. 107, 111 and Protocol 34, are more
restrictive and more complicated.
11 Cf. Article 2002 of the North American Free Trade Agreement (NAFTA) and Article
40 of the Protocolo de Olivos (MERCOSUR) 18 February 2001, which also establish a
system of arbitration, cf. Articles 9–23.
12 See also the examples from different organizations related in Schermers and Blokker,
op. cit., §§ 1355–62.
13 Cf. the rules of procedure of the General Assembly (New York 1985), Rules 79 and 121
on questions of competence and Rules 71 and 113 on points of order.
settlement of internal disputes 249

are disputes concerning the representatives of a member State on the organ –


e.g. their credentials or their right to speak and vote. Similarly, disputes with
regard to the nancial contributions of a member State to the budget of the
organization, including the effects of non-payment, are, in the rst instance,
decided by the plenary organ. Furthermore, if two organs, or two departments
of the Secretariat, disagree with regard to their respective competences in a
specic matter, the dispute is decided by the superior organ.14 If one of the
parties to a dispute is dissatised with the decision made by the competent
organ, the matter may in many cases be brought before a superior organ.15
In most of these cases there is no constitutional provision authorizing the
organ concerned to settle the dispute. Nevertheless, such administrative settle-
ment has been the prevailing procedure in all IGOs, even in those whose
constitutions prescribe judicial settlement. And there can be no doubt that,
in either case, the several organs of the organization – no less than those of
national States – are entitled to decide internal disputes themselves.16 This was
conrmed in a report of Committee IV/2 of the San Francisco Conference
which established the UN Charter (the report was approved unanimously by
the Conference) in the following terms:
In the course of the operations from day to day of the various organs of the
Organization, it is inevitable that each organ will interpret such parts of the

14 The report of Committee IV/2 of the San Francisco Conference (UNCIO Vol. 13, pp.
709–10) – discussing differences of opinion between two organs – did not envisage such
reference to the superior organ. The rapporteur appears, however, to have been thinking
primarily in terms of disputes between the General Assembly and the Security Council
which are, in functional and some organizational matters, on an equal hierarchical level,
and which have no common superior organ.
15 By a resolution of 17 December 1920 the Assembly of the League of Nations expressly
decided, before the establishment of its Administrative Tribunal, to give a right of appeal
to the Council, in case of dismissal, to all members of the Secretariat holding ve-year
appointments (McKinnon Wood in The Grotius Society, Transactions for the Year 1944
Vol. 30 p. 144). Similarly, chapter XIII 1 of the Staff Regulations of the Scandinavian
Training Hospital in Korea (the National Medical Center in Korea), adopted by the
Scandinavian Committee on 7 June 1957, expressly provided that ofcials might appeal
to the Committee in cases of disputes between them and the Director of the Hospital
concerning the interpretation of the Staff Regulations or concerning the relationship of
employment. – An express provision for bringing before a Joint Committee disputes between
members concerning the interpretation or application may be found in the Agreement
on the European Economic Area of 2 May 1992, Article 111. The UN Model status of
forces agreement for peace-keeping operations provides in para. 52: “Disputes concern-
ing the terms of employment and conditions of service of locally recruited personnel
shall be settled by the administrative procedures to be established by the Representative/
commander”.
16 This is expressly provided in the IMO constitution Art. 69 in ne. Art. 75 of the WHO
constitution envisages settlement by the Health Assembly. It would not be proper to interpret
either of these self-evident provisions a contrario as precluding other deliberative organs or
the secretariat from deciding legal disputes arising within the scope of their functions.
250 chapter seven

Charter as are applicable to its particular functions. This process is inherent in


the functioning of any body which operates under an instrument dening its
functions and powers. It will be manifested in the functioning of such a body
as the General Assembly, the Security Council, or the International Court of
Justice. Accordingly, it is not necessary to include in the Charter a provision
either authorizing or approving the normal operation of this principle.17
Reference may be made also to the following statement by the International
Court of Justice in its advisory opinion on Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal:
In the absence of the establishment of an Administrative Tribunal, the function
of resolving disputes between staff and Organization could be discharged by
the Secretary-General by virtue of the provisions of Articles 97 and 101. Accord-
ingly, in the three years or more preceding the establishment of the Administra-
tive Tribunal, the Secretary-General coped with this problem by means of joint
administrative machinery, leading to ultimate decision by himself.18
It is submitted that this power of the Secretary-General existed irrespective
of the express provisions cited by the Court. Indeed, the power has been
exercised by the administrative heads of all organizations also where the
constitutions do not contain any relevant provisions.
The inherent power to settle internal disputes by administrative decision
applies also to internal disputes arising out of extended jurisdiction conferred
upon the organization (internal disputes largo sensu). Reference may be made
to a statement by the Permanent Court of International Justice in its advisory
opinion on the Greco-Turkish Agreement of 1 December 1926. In this opinion
the Court settled a dispute “between the two States members” of the Mixed
Commission for the Exchange of Greek and Turkish Populations. This dispute
concerned the question of who was to invoke the procedure laid down in
Article IV of an annex to an agreement conferring extended jurisdiction upon
the Commission for the settlement of specic disputes. After having pointed
out that the disputed provision “expressly contemplates questions which may
arise within the Mixed Commission”, the Court said:
But, that being so, it is clear – having regard amongst other things to the principle
that, as a general rule, any body possessing jurisdictional powers has the right in
the rst place itself to determine the extent of its jurisdiction – that questions
affecting the extent of the jurisdiction of the Mixed Commission must be settled
by the Commission itself without action by any other body being necessary.19

17 UNCIO, Vol. 13, p. 709.


18 ICJ Reports, 1954, p. 61.
19 Permanent Court of International Justice, Ser. B, No. 16, p. 20, cf. p. 8.
settlement of internal disputes 251

Similarly a court in the Saar in the inter-war period – rejecting a claim for
compensation brought against the Governing Commission of the Saar by
a dismissed ofcial – expressed the view that not only sovereign States have
the capacity to determine the legal scope of their competence, but that the
Governing Commission also had that power. The court, however, based this
statement upon the fact that the Governing Commission, although not the
government of a sovereign State, exercised the State imperium (i.e. territorial
jurisdiction) – rather than upon the fact that the Commission was an organ
of the League of Nations.20
As indicated by the examples given, the power of settling internal disputes
by administrative decision is not conned to questions of interpretation of
the constitution of the organization concerned. It extends also to the inter-
pretation of regulations enacted by the organization (including the terms of
reference of the organ concerned) and of customary law developed by it, as
well as to the determination of other legal questions concerning the powers
and procedure of the organ. Such decisions are preliminary – and essential –
to the exercise of its legislative and administrative powers. The right to make
them is therefore inherent in these very powers, whether these have been laid
down in the constitution or in another treaty, or whether they devolve upon
the organization without specic provision as inherent organic or membership
jurisdiction.21 This right has been exercised consistently by intergovernmental
organizations in respect of both inherent and extended powers.

Advisory opinion from a legal body22

There is nothing to prevent the organ concerned from submitting the legal
question to an internal or external legal organ for advice before it makes its
decision. Such a procedure has in some cases been expressly provided for in
the constitution. Thus the General Assembly and the Security Council of
the UN are empowered, under Article 96 (1) of the Charter, to request an
advisory opinion from the International Court of Justice on any legal ques-
tion. Under Article 96 (2) the General Assembly is empowered to extend this
authorization to other organs of the UN and to the specialized agencies.23

20 Annual Digest of International Law Cases, 1925–26, Case No. 37.


21 Above, chapter 1.
22 See H.W.A. Thirlway: “Advisory Opinions of International Courts” in Encyclopedia of
Public International Law, Amsterdam 1981, pp. 4–9.
23 The International Law Association in 1956 very appropriately recommended an amend-
ment to Art. 96 “to empower the General Assembly to authorize other public international
252 chapter seven

This has been done by bilateral agreements between the UN and each
specialized agency approved by General Assembly resolutions.24 In this man-
ner the power to request advisory opinions has been granted not merely to
those specialized agencies whose constitutions envisage such procedure,25
but also to those agencies whose constitutions do not.26 Advisory opinions
have in fact been requested on a number of disputes of an internal nature,27
also by specialized agencies whose constitutions do not provide for resort to
such opinions.28 Furthermore, as pointed out by Schermers and Blokker, the
Committee of Ministers of the Council of Europe may request advisory
opinions from the European Court of Human Rights on the procedure, and
on the functioning of the different organs, under the European Convention
on Human Rights.29
There are also many examples of reference of internal legal questions to
ad hoc internal legal organs for advice, even when no constitutional provi-
sion prescribes or authorizes such procedure. Thus the League of Nations,
refusing to submit to proceedings in Swiss courts to determine whether it
was liable to pay pensions to ve ex-ofcials of the Saar Territory whom

Organizations, whether general or regional, to request advisory opinions of the Court”


(International Law Association, Report of the Forty-Seventh Conference held at Dubrovnik
1956, p. 104, cf. p. 129).
24 See for example Article 7 (2) of the agreement between the UN and the ITU, approved by
GA resolution 124 (II). The powers to request advisory opinions have also been granted
to most of the other Specialized Agencies upon their request and to the International
Atomic Energy Agency cf. the ICJ Yearbook.
25 E.g. IMO constitution, Art. 70.
26 E.g. ITU constitution, Art. 150.
27 See for example the two advisory opinions on the admission of a State to membership in
the UN (ICJ Reports, 1948, p. 57, and 1950, p. 4, respectively), the opinion on the Effect
of Awards of Compensation made by the UN Administrative Tribunal (ibid., 1954, p. 47),
and the opinion on Certain Expenses of the United Nations (ibid. 1962, p. 150). See also
the advisory opinion of the Permanent Court of International Justice on the Designation
of the Workers’ Delegates for the Netherlands at the Third Session of the International
Labour Conference (PCIJ, Ser. B, No. 1) and the three advisory opinions on the compe-
tence of the ILO in regard to (i) international regulations of the conditions of labour of
persons employed in agriculture (ibid. No. 2), (ii) organization and development of the
methods of agricultural production and other questions of a like character (ibid., No. 3),
and (iii) incidental regulation of the personal work of the employer (ibid., No. 13).
28 Thus the advisory opinion on Judgments of the Administrative Tribunal of the ILO
upon Complaints Made against the UNESCO (ICJ Reports, 1956, p. 77) was given at the
request of UNESCO, whose constitution merely provides for reference to the International
Court of Justice “for determination” of disputes “concerning the interpretation of this
Constitution”. See also, generally, the literature from the 1970s cited by Schermers and
Blokker, op. cit., § 1366, note 106.
29 Ibid. § 1371. An example is the request for an advisory opinion decided by the Commit-
tee of Ministers at its meeting 11–12 July 2007 concerning aspects of the election by the
Parliamentary Assembly of judges to the Court.
settlement of internal disputes 253

the Governing Commission had failed to bring within the settlement of the
pensions of ofcials which it negotiated with Germany, submitted the case
to a legal committee of the organization itself, which held that there was no
legal liability.30 Similarly, the Secretary-General of the UN had recourse to
an ad hoc committee of jurists in order to seek a solution to certain problems
of principle arising out of his personnel policy.31
Legal questions are also frequently referred to a permanent internal legal
organ for advice.32 Thus the legal division of the secretariat is frequently
asked to give a legal opinion – for the decision-making division or delibera-
tive organ to take into account.
Other examples of advisory legal organs are the appeal boards or commit-
tees established by the UN and the specialized agencies and other organizations
to consider and advise their administrative heads regarding appeals made by
members of the staff against decisions relating to their employment.33
However, the terminology is sometimes confused, because the “Appeals
Board” of e.g. the Council of Europe is a genuine administrative tribunal.34
Prior to appealing to that board, the staff member or the Secretary General

30 McKinnon Wood in The Grotius Society, Transactions for the Year 1944, Vol. 30, p. 144.
But for World War II, the case would subsequently have come before the Permanent Court
of International Justice for an advisory opinion. The latter procedure – in contradistinc-
tion to the reference to the legal committee – was expressly authorized by the terms of
Art. 14 of the Covenant of the League.
31 A/INF/51, 5 December 1952. The contents of the report of the committee (A/2364)
was severely (and rightly) criticized, both inside and outside the Organization, see for
example: Henri Rolin, Avis consultative sur les droits et obligations des fonctionnaires
internationaux, avis rédigé sur la demande de la Fédédation des associations de fonction-
aires internationaux et approuvé par Tomaso Perassi et Charles Rousseau (mimeographed,
1953). – Reference may also be made to Art. II (1)–(2) of the Staff Regulations for the
Registry of the International Court of Justice and its Annex VI.
32 GATT appoints a panel to investigate substantive violations by member States and to pro-
pose sanctions. These are then adopted by the plenary organ in accordance with express
provisions in Art. XXIII of the constitution. This procedure is also applied to disputes
between the European Community and non-EC, WTO member States.
33 Thus the “Provisional” Staff Regulations of the International Atomic Energy Agency,
adopted by its Board of Governors, provide, in Regulation 12.01: “The Director General
shall establish administrative machinery with staff participants to advise him/her in case
of any appeal by a staff member against an administrative decision in which the staff
member alleges the non-observance of the terms of his/her appointment, including all
pertinent Regulations and Rules, or of appeals against disciplinary actions.” The Staff
Rules, approved by the Director General, provide, in Rule 12.01.1 (A): “A joint Appeals
Committee shall be established to advise the Director General regarding appeals by staff
members under Provisional Staff Regulation 12.01”.
34 Also the former “Appeals Board” of the OECD was a judicial body making binding deci-
sions (and replaced on 19 December 1991 by an “Administrative Tribunal”). However, the
Organization also has a “Joint Advisory Board”, established pursuant to Staff Regulation
22 (a).
254 chapter seven

may refer the matter to an Advisory Committee on Disputes. These organs


have been established by Articles 59 and 60 (and Appendix XI) of the staff
regulations, without specic basis in the constitution, Article 36 (c) of which
merely provides that the staff “shall be appointed by the Secretary-General,
in accordance with the administrative regulations”.
Thus, with or without constitutional provision, those organs of the orga-
nization which in the performance of their regular functions have to decide
legal questions often refer such questions to other organs for advice before
making their decisions. Such reference is made to administrative and judicial
organs, to permanent as well as to ad hoc organs, and even to organs outside
the organization insofar as such organs under their own constitutions or terms
of reference are able to give legal advice to the organization requesting it.
The right to seek such legal advice, even if the constitution does not so pro-
vide, was conrmed in the report of Committee IV/2 of the San Francisco
Conference in the following terms:
It would always be open to the General Assembly or to the Security Council,
in appropriate circumstances, to ask the International Court of Justice for an
advisory opinion concerning the meaning of a provision of the Charter. Should
the General Assembly or the Security Council prefer another course, an ad hoc
committee of jurists might be set up to examine the question and report its
views. It would appear neither necessary nor desirable to list or to describe in
the Charter the various possible expedients.35

Is the administrative decision binding?

The modes of settlement discussed so far – which are those employed in the
prevailing number of cases – are, however, merely administrative decisions –
either express decisions made separately, or preliminary decisions implied in
other administrative or legislative decisions made by the organ concerned.
Even if advice is sought from another organ, and even if this is legal or close
to judicial, the decision is usually made by the organ where the question arose,
or by a superior organ, in the form of an administrative (or legislative) deci-
sion. This applies in principle also in those cases where an advisory opinion
is obtained from the International Court of Justice.36 Only in certain cases –

35 UNCIO, Vol. 13, p. 710.


36 On the binding effect of advisory opinions of the International Court of Justice, see
inter alia F.B. Sloan in California Law Review Vol. 38 (1950), pp. 830–59; Lissitzyn:
The International Court of Justice, New York 1951, pp. 84–85; Kopelmanas, op. cit. pp.
274–5; and Humber in: Die Friedens-Warte Vol. 51 (1951–53), pp. 143–50. Cf. also PCIJ,
Ser. B, No. 14, p. 21.
settlement of internal disputes 255

where this has been expressly provided in the constitution or in another mul-
tilateral, bilateral or unilateral act – is the organization (and the other parties)
bound to accept as binding the opinion of the Court or the other legal body
to which the dispute is referred.37
When express provision is made in the constitution for the reference of
certain disputes to a specic administrative organ of the organization,38 it
frequently follows from the provision that the decision of the administrative
organ shall be binding upon the parties ipso facto39 or unless appeal is made to
a specied superior administrative organ40 or judicial body,41 whose decisions
shall then be nal (even if still administrative). Thus the decision must be
presumed to be binding if the dispute is referred to the organ concerned “for
decision” and, usually,42 if provision is made for further appeal.43 Otherwise
it is not always clear that it has been the intention that the decision shall be
any more binding than are administrative decisions generally.44 And in the
great majority of cases, where no express provision has been made for deci-
sion by the administrative organ concerned, it is quite clear that the decision
made by this organ – in pursuance of its inherent organic jurisdiction or
of the powers implied in its extended jurisdiction – are not binding upon the
parties in the same sense as a judicial decision would have been.45 They may

37 See below, chapter 7.9, cf. 7.10.


38 Examples in Schermers and Blokker, op. cit., §§ 1356–62, pp. 853–7.
39 International Wheat Agreement 1986 Art. 8.
40 The constitutions of the Fund Art. XXIX (a)–(b) and of the Bank, Art. IX (a)–(b). However,
none of these provisions sets a time limit for the appeal. For a criticism of the granting of
such powers to one of the parties to the dispute, see Seidl-Hohenveldern in Österreichische
Zeitschrift für öffentliches Recht Vol. 8 (1957–58) pp. 82 et seq., cf. also Aufricht ibid.,
pp. 26 et seq.
41 ICAO constitution Art. 84, which sets a time limit of sixty days for the appeal, and the
constitution of the International Commission of the Danube Art. 38 (League of Nations
Treaty Series Vol. 26, p. 193).
42 Cf. the abortive constitution of the International Trade Organization, Arts. 94–95.
43 International Monetary Fund constitution, Art. XXIX (b).
44 This may not have been the intention in Art. 69, rst sentence, of the constitution of the
International Maritime Organization, which refers the dispute “for settlement”.
45 This was pointed out, with regard to differences of opinion concerning the interpreta-
tion of the UN Charter, by Committee IV/2 of the San Fransisco Conference, in the
following terms: “It is to be understood, of course, that if an interpretation made by
any organ of the Organization or by a committee of jurists is not generally acceptable
it will be without binding force” (UNCIO Vol. 13 p. 710). Kopelmanas: L’Organisation
des Nations Unies Vol. 1, Paris 1947, para. 137 made two important reservations to the
statement of the Committee on this point. He pointed out in particular that “le fait pour
un organe d’émettre un vote dans les conditions établies par les dispositions qui régissent
sa compétence et son fonctionnement, confère à l’interprétation qu’implique le contenu
de son acte une valeur identique à celle qui est reconnue à l’acte lui-même et si l’acte doit
s’imposer à l’observation de tous les Membres de l’Organisation, l’interprétation impliquée
produira automatiquement le même effet”. If no judicial recourse is open to the State
256 chapter seven

contest the legality of the decision if the organ making them has violated
the rules governing its competence or procedure, at least if they do so within
a reasonable time after the decision was made.46 It does not add any more
binding force to the decision if it is made in the form of a distinct resolution
of (abstract) “interpretation”, as is the custom of the General Assembly of
the International Institute for the Unication of Private Law, except that in
this case its applicability is not conned to any concrete dispute.47

contesting the validity of the decision, “il devra se soumettre à la décision de l’organe et
accepter l’interprétation qu’elle contient. S’il persiste à ne pas la reconnaître, le problème
changerait entièrement d’aspect, car il ne s’agirait plus d’un conit d’interprétation, mais
de l’inexécution par l’Etat d’une décision valablement prise aux termes de la Charte”. On
the other hand, Kopelmanas pointed out that any binding force resulting from the express
or tacit acceptance by all the member States would apply only to the concrete conict
which has given rise to the question of interpretation. That an administrative decision is
not binding as a precedent in another, analogous case was conrmed in the judgment of
the Hungarian-Czechoslovak Mixed Arbitral Tribunal of 31 January 1929 in Pallavicini
v. the Czechoslovak State (AJIL, Vol. 33, 1929 p. 857 and Annual Digest of International
Law Cases, 1929–30, p. 443).
In its advisory opinion on Certain Expenses of the United Nations, the International
Court of Justice stated: “Each organ must, in the rst place at least, determine its own
jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the
maintenance of international peace and security and if, in accordance with a mandate or
authorization in such resolution, the Secretary-General incurs nancial obligation, these
amounts must be presumed to constitute ‘expenses of the Organisation’ ”. (ICJ Reports,
1962, p. 168; see also ICJ Pleadings, Certain Expenses of the United Nations, pp. 220–2,
cf. p. 205).
The International Court of Justice, in its advisory opinion on Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal, stated: “Should
the General Assembly contemplate, for dealing with future disputes, the making of some
provision for the review of the awards of the Tribunal, the Court is of opinion that the
General Assembly itself, in view of its composition and functions, could hardly act as a
judicial organ – considering the arguments of the parties, appraising the evidence produced
by them, establishing the facts and declaring the law applicable to them – all the more
one party to the dispute is the United Nations Organization itself ” (ICJ Reports 1954,
p. 56, cf. also p. 89).
46 Art. 230 in ne of the constitution of the European Community sets out a two months’
deadline for appeal to the European Court of Justice.
The rst draft articles on “Recours judiciaire à instituer contre les décisions d’organes
internationaux”, submitted by Wengler to the Institut de droit international, read in part:
“A défaut d’un recours judiciaire spécial contre les décisions d’un organe international,
et à défaut de dispositions les rendant dénitives, la validité de ces décisions pourra être
contestée à tout moment et devant toute instance d’après les règles générales du droit
international, si l’organe a violé les règles determinant sa compétence, sa procédure, ou
le contenu de ses décisions” (Annuaire de de l’Institut de droit international, Vol. 45
(1954 I) p. 266, cf. pp. 283–4). The nal resolution of the Institut (ibid., Vol. 47 (1957 II),
p. 476) does not refer to this problem. See also Wengler’s report, ibid. Vol. 44 (1952 I),
pp. 268–70, cf. pp. 293 (par. 9), 315–6, 323, 347, 350 and 357. Cf. also Art. 38 of the
Convention Instituting the Denitive Statute of the Danube of 23 July 1921 (LNTS
Vol. 26, p. 178). On the possibility of challenging the validity of the decisions in national
courts, see below, chapter 7.8.3.
47 See the resolution adopted by General Assembly on 30 April 1953, which interpreted Art.
7 bis of the constitution. Another resolution, which was adopted by the General Assembly
settlement of internal disputes 257

Nevertheless, as long as there is no judicial authority having compulsory


jurisdiction in the matter, the organization cannot be prevented from acting
in accordance with its own decision. Since the execution in internal matters
rests, in most cases, with the organization, this means that the decision is in
fact binding, unless the organization voluntarily agrees to submit the dispute
to a judicial organ for nal determination.
Such administrative decision is sufcient for the purpose of most organiza-
tions, in most respects, especially with regard to organizational matters. This
is particularly true if the dispute is one within or between its own organs
and does not involve parties which also have a legal existence outside the
organization (ofcials and member States). The question of settlement of
disputes in substantive matters is a matter of extended jurisdiction, which has
been considered in chapter 6 above.

7.4 Internal courts for disputes involving officials

It will be demonstrated that intergovernmental organizations have the inher-


ent capacity to establish judicial organs for the settlement of internal disputes
if this proves desirable,48 although some writers have tended to deny their
competence to do so on the basis of the view that each organization can
only perform such acts as are authorized, expressly or by implication, in its
particular constitution.49 Moreover, it can be argued that the right to a remedy
against an IGO is a norm of customary international law.50 As observed by

on 29 April 1957, and which gave an “authentic interpretation” of Art. 46 (3) of the
(Staff ) Regulations of the Institute, was binding in the same manner as the Regulations
themselves, since the resolution was approved by the same organs and by the same majority
as prescribed for amendments of the Regulations, see Art. 17 of the constitution (Statute)
of the Institute.
48 As also underlined by the International Law Association in its nal report of the 2004
Berlin conference on accountability of international organizations, p. 35.
49 Thus, during the discussion in the Sixth Committee of the General Assembly, at its fth
session, of the power of the UN to enact headquarters regulations pursuant to § 8 of its
headquarters agreement with the United States, it was claimed that “the Secretary-General
would never be able to promulgate laws, impose penalties or set up juridical organs, as
under the Charter neither he nor the General Assembly had the power to do that” (OR
GA V, 6th Committee, 248th meeting, p. 265).
50 The ICJ stated in the case of Effects of awards of compensation made by the UN Admin-
istrative Tribunal that not affording judicial or arbitral remedy would “hardly be consistent
with the expressed aim of the Charter to promote freedom for individuals an with the
constant preoccupation of the UN to promote this”, Advisory Opinion 13 July 1954, ICJ
Reports 1954, p. 47 at p. 57. This does not necessarily mean that a right to judicial remedy
in cases concerning appointment of ofcials is also conferred on the member States of
which the ofcial is a national, see ECJ’s judgment 15 March 2005 (Grand Chamber) in
Case C-160/03, Spain v Eurojust (Rec. 2005, p. I-2077).
258 chapter seven

Arsanjani, it would be quite ironic to deny the rights of individuals on the


assumption that they would be incompatible with the functions of IGOs.51
The practical need for judicial decision has arisen mostly in those cases where
the dispute involves parties which, although forming part of the organization
and acting in that capacity, also have a legal existence outside the organiza-
tion, viz. ofcials and member States.

Actions by ofcials against the organization: administrative tribunals 52

A great number of organizations – including inter alia the League of


Nations, the International Institute of Agriculture, the International Labour
Organization (ILO), the United Nations,53 the Organization for Economic
Co-operation and Development (OECD) and the International Institute for
the Unication of Private Law – have established so-called administrative
tribunals or similar judicial organs, where ofcials54 may sue the organization
in matters concerning the relationship of employment.55 This they have done

51 M. Arsanjani, Claims against International Organizations: Quis Custodiet Ipsos Custodes?,


Yale Journal of World Public Order, 1980, p. 175.
52 Regulations and other provisions establishing the various existing administrative tribu-
nals (under whatever denomination) were collected in C.F. Amerasinghe: Documents
on International Administrative Tribunals, Oxford 1989. And the law applied by the
tribunals was described in his preceding books on The Law of the International Civil
Service, 2nd ed. Vol. I–II, Oxford 1994, and Case-Law of the World Bank Administrative
Tribunal, Oxford 1989. On the jurisdiction of administrative tribunals, see W. Able: Les
conditions de recevabilité de la requête devant les tribun aux administratifs de l’ONU et
de l’OIT, Paris 1991. See also two articles in Blokker and Muller (eds.): Towards More
effective Supervision by International organizations, Dordrecht 1994, by Pescatore and
Amerasinghe, pp. 214–254.
53 Its judgments are published by the UN in Judgments of the United Nations Administrative
Tribunal.
54 Also former ofcials and persons entitled to rights under their contracts or terms of
appointment are entitled to sue, see e.g. the statutes of the ILO Administrative Tribunal
Art. II 6; of the UN Administrative Tribunal Art. 2, and of the former OEEC-OECD
“Appeals Board” Art. 1.
55 The Statute of the League of Nations Administrative Tribunal was adopted by the
Assembly on 26 September 1927 (text in H Aufricht, Guide to League of Nations Docu-
ments and Publications, p. 485, and in Clunet, Vol. 77 (1950), p. 346). The documents
relating to the establishment of the Tribunal are listed in ICJ Pleadings, Judgments of
the ILO Administrative Tribunal (1956), pp. 22–23. Its Rules were adopted by the Tri-
bunal on 2 February 1928 (text in: Clunet, op. cit., p. 352). An ad hoc forerunner of the
Tribunal was the “collège” established by the Council’s resolution of 8 June 1925. By a
resolution adopted by the Assembly of the League on 18 April 1946 on the dissolution
of the League, the League of Nations Administrative Tribunal was transformed into the
International Labour Organization Administrative Tribunal. It had by 7 February 2007
rendered 2618 judgments. – The “Appeals Board” of the former OEEC and the subse-
quent OECD – which in contradistinction to the appeals boards of other organizations
settlement of internal disputes 259

although the constitution in most cases contains no provisions authorizing


the establishment of such tribunals.56 Some organizations, which have only
a limited number of ofcials and which therefore do not require permanent
administrative tribunals, have included in their staff regulations less elaborate
provisions for the settlement of disputes with their ofcials, by an ad hoc court
of arbitration57 or before a court established for other purposes.58 In most
of these cases, too, there was, and is, no relevant provision in the constitu-
tion.59 The former European Coal and Steel Community under its constitu-
tion had an internal Court of Justice established for other purposes, which
also exercised compulsory jurisdiction in disputes between the organization
and its ofcials. This was done by simple regulation,60 although the Court

is a real judicial body – was established originally on 8 January 1950 (text in: Clunet, op. cit.,
p. 368), pursuant to Art. 19 (later Art. 16) of the Staff Regulations of the OEEC. Its
judgments are published in Commission de Recours de l’OCDE: Recueil des decisions. –
The Administrative Tribunal of the International Institute for the Unication of Private
Law was established by an amendment, adopted on 18 January 1952, to Arts. 4 (5) and 7
bis of the constitution (quoted below). The administrative tribunals of most of the other
IGOs were established by mere decisions of their plenary organs. These are – or were – all
standing tribunals. The statute of the administrative tribunal of the former International
Institute of Agriculture, adopted by its General Assembly in 1932 merely provided for the
establishment of an ad hoc tribunal for each case. Cf. Chiesa in Revue internationale des
sciences administratives Vol. 20 (1954), pp. 77–80.
56 The Administrative Tribunal of the International Institute for Unication of Private Law
was established by an amendment to its constitution (Arts. 4 (5) and 7 bis). Before the
entry into force of the amendment, an Arbitral Commission exercised the functions and
the powers of an arbitral tribunal pursuant to a decision by the Governing Council of
the Institute and to a clause inserted in each contract of employment. Other constitutions
do not provide for administrative tribunals, but merely contain a general provision for
legislative power in staff matters. Thus the constitutions of the UN (Art. 101) and the ILO
(Art. 9) provide that the staff shall be appointed by the Secretary-General under regula-
tions established by the plenary organ. The constitution of the Council of Europe (Arts.
16 and 36 c) contains a similar reference to staff regulations. The UNRWA Special Panel
of Adjudicators was established by the UNRWA Commissioner-General on 3 December
1983 under UNRWA Area Staff Regulation 11 (2). The constitution of the International
Institute of Agriculture (forerunner of FAO) merely contained a general provision (Art.
5) that the General Assembly shall approve “les projets [. . .] relatifs à l’organisation et au
fonctionnement intérieur de l’Institut”. The Covenant of the League of Nations did not
even provide for legislative power.
57 Chapter XIII (2)–(3) of the staff regulations of the Scandinavian Training Hospital in
Korea (the National Medical Center in Korea), adopted by the (Scandinavian) Committee
on 7 June 1957. It may be questioned whether the court of arbitration established by this
provision was an internal court of the organization. However, it was still less a national
or an international court. The original arbitral tribunal of the Council of Europe also
apparently was set up ad hoc, like that of the International Institute of Agriculture.
58 Art. 11 of the staff regulations of the International Court of Justice and of the Permanent
Court of International Justice.
59 The Statute of the International Court of Justice contains no provision, nor did that of
the Permanent Court of International Justice.
60 Now Art. 91 (8) of the staff regulations, cf. Annex IX.
260 chapter seven

subsequently held (unnecessarily) that its competence could be deduced from


certain articles of the constitution. The constitutions of the European Com-
munity and EURATOM expressly provide that the Court shall decide disputes
between the Community and its employees.61 Similar provisions are found
in the constitutions of the African Union62 and the Andean Community.63
Other organizations, instead of relying upon tribunals of their own, make
use of the administrative tribunals established by other organizations,64 also
without express constitutional authorization.65
The judicial nature, and the binding character vis-à-vis the administrative
organs of the organization, of the judgments of such administrative tribunals,
was conrmed by the International Court of Justice in its Advisory Opinion
on Effect of Awards of Compensation Made by the UN Administrative Tribunal. In this
the Court held that an examination of the relevant provisions of the Statute
(enacted by the UN General Assembly) shows that the Tribunal is established,
not as an advisory organ or a mere subordinate committee of the General
Assembly, but as an independent and truly judicial body pronouncing nal
judgments without appeal66 within the limited eld of its functions.67
The Court thus rejected the contention that the Tribunal is a “subsidiary
organ” of the General Assembly which had been established pursuant to
Article 22 of the Charter and to which the Assembly had delegated its own
powers, indeed the power to adjudicate had not been given to the General
Assembly by the Charter.68 The Court concluded, by nine votes to three, that

61 EC constitution Art. 236, EURATOM constitution Art. 152. The judgments of the Court
are published in European Court Reports (ECR) and Common Market Law Reports
(CMLR). By Council Decision of 2 November 2004, a European Union Civil Service
Tribunal was established to hear disputes involving the European Union civil service, cf.
Ofcial Journal of the European Union L 333 9 November 2004, pp. 7 ff.
62 Article 18 (1) (c) of the Protocol of the Court of Justice of the African Union, signed in
Maputo 11 July 2003, stipulates that a member of staff of the Commission is eligible to
submit a case to the Court in a dispute “within the limits and under the conditions laid
down in the Staff Rules and Regulations of the Union”.
63 Article 40 of the Protocol of Cochabamba lays down that the Court of Justice of the
Cartagena Agreement “is competent to hear such labor disputes as may rise within the
bodies and institutions of the Andean Integration System”.
64 See below, chapter 7.11.
65 The constitution of FAO, however, contains an express provision in Art. XVII. The con-
stitutions of other organizations merely contain the usual provision that the staff shall be
appointed in accordance with regulations to be approved by the plenary organ or similar
general formulations.
66 A right of appeal, by seeking an advisory opinion from the International Court of Jus-
tice, was instituted subsequently by GA resolution 957 (X). Such right of appeal had
been established earlier in respect of the ILO Administrative Tribunal by Art. XII of its
Statute.
67 ICJ Reports, 1954, supra, note 50.
68 Ibid. at p. 61.
settlement of internal disputes 261

the General Assembly has not the right on any grounds to refuse to give effect
to an award of compensation made by the Administrative Tribunal of the
United Nations in favour of a staff member of the United Nations whose
contract of service has been terminated without his assent.69
The Court thus recognized that the Administrative Tribunal of the UN
has in this respect a position vis-à-vis the General Assembly similar to that of
the national courts of democratic States vis-à-vis Parliament. The statutes of
some of the other tribunals contain express provisions to this effect.70
The Court based this partly upon the principle it had adopted in its earlier
advisory opinion – that the organization must be deemed to have those powers
which are conferred upon it by necessary implication as being “essential to
the performance of its duties”71 – and partly upon specic provisions of the
UN Charter.72 In so doing the Court was, it is submitted, acting ex abundante
cautela. It was not necessary to rely upon either of these considerations in
order to establish the power of the UN to create an administrative tribunal.

69 Ibid. at p. 62. Cf. GA resolution 888 (IX), which accepted the advisory opinion, while
raising the question of judicial review of the judgments of the Administrative Tribunal
which led to GA resolution 957 (X). For a summary, and an unconvincing criticism, of the
written and oral statements submitted to the Court and of the opinion of the Court, see
L. Green in: The Grotius Society, Transactions for the Year 1954, Vol. 40, pp. 158–68.
70 Art. 14 of the Statute of the UN Administrative Tribunal provides expressly that agree-
ments concluded with specialized agencies, extending the competence of the Tribunal to
internal disputes of these organizations, “shall provide that the agency concerned shall
be bound by the judgments of the Tribunal and be responsible for the payment of any
compensation awarded by the Tribunal in respect of a staff member of that agency”.
The agreements extending the jurisdiction of the Tribunal to the specialized agencies
with respect to applications by their staff members alleging non-observance of the Regu-
lations of the UN Joint Staff Pension Fund merely provide, in Art. II, that the agency
“agrees, insofar as it is affected by any such judgment, to give full effect to its terms” (see,
for example, UNTS Vol. 394, p. 336 and Vol. 219, pp. 390 and 394), because liability for
payment vests in the UN Joint Staff Pension Fund rather than in the specialized agency
concerned. Art. 48 of the Regulations of the UN Joint Staff Pension Fund provides that
applications alleging non-observance of the Regulations arising out of the decisions of
the Board may be submitted to the UN Administrative Tribunal, whose decisions “shall
be nal and without appeal” – Art. IX (3) of the ILO Administrative Tribunal and its
annex merely provide that any compensation awarded by the Tribunal shall be chargeable
to the budget of the Organization. In its advisory opinion the Court also discussed the
preliminary question of whether the UN had “been given [. . .] by the Charter” the power
to establish “a judicial tribunal to adjudicate upon disputes arising out of the contracts of
service”. The Court found that the power to establish a tribunal, to do justice as between
the Organization and the staff members, was essential to ensure the efcient working of
the Secretariat, and to give effect to the paramount consideration of securing the highest
standards of efciency, competence and integrity. Capacity to do this arises by necessary
intendment out of the Charter, supra note 50 at p. 57.
71 Ibid., p. 56; cf. ibid., 1949, p. 182, and PCIJ, Ser. B, No. 13, p. 18.
72 In particular Art. 101 (3): “the paramount consideration [. . .] shall be the necessity of
securing the highest standards of efciency, competence and integrity”.
262 chapter seven

The constitutions of the League of Nations and the International Institute of


Agriculture contained no similar provisions. And yet both these organizations
established administrative tribunals (like several other organizations). The Ital-
ian Court of Cassation in Proli v. International Institute of Agriculture referred
to the fact that the League had established a tribunal and that the Institute
might do likewise, without questioning their competence to do so.73
There is no reason why other intergovernmental organizations should not
have the same power. Indeed, it is submitted that no such organization can be
denied the power to establish an administrative tribunal on the ground that
its constitution does not contain clauses which could (be stretched to) provide
some basis for this power, as long as the constitution does not contain any
provision which excludes the creation of administrative tribunals. Nor can
an organization be denied this power on the ground that an administrative
tribunal could not be considered “essential to ensure the effective working of
the Secretariat” or to the performance of the duties of the organization. This
is for the competent organs themselves to evaluate. Indeed, it would have been
quite possible for the UN, as well as for the other organizations concerned,
to carry out their functions without administrative tribunals – as in fact they
did for many years before they established such tribunals. The true theoretical
basis for the power to establish administrative tribunals which may render
binding judgments is, it is submitted, the inherent and exclusive jurisdiction
which all intergovernmental organizations, like States, possess over their organs
and their ofcials as such,74 rather than a “necessary intendment” on the part
of the drafters of the constitution of the particular organization concerned.
Indeed, the inherent jurisdiction over own organs, which has been described
above in chapters 5 and 6 with regard to legislative and administrative power,
extends also to judicial power.
In most cases administrative tribunals have been given jurisdiction only in
actions brought against the organization. They thus have compuls