Part II Personality and recognition, 7 International

organizations
James Crawford SC, FBA

From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford

Previous Edition (8 ed.)

Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445

Subject(s):
International organizations — e4404b5a-6bfe-1014-a35b-3d9d7c3ed365 — Privilege —
780e04c0-9a9e-4e06-9396-733004edf0ef — Immunity from jurisdiction, international organizations

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 (p. 156) 7  International organizations
1.  Introduction
As discussed in chapter 1, in the late eighteenth and nineteenth century states developed
multilateral forms of cooperation, supplementing reliance on bilateral treaties and
diplomacy. These included the first international organizations. Initially the mandates of
such organizations were constrained, for example the European Commission of the Danube
(1856) and the International Telegraph Union (1865). But after 1920 the League of Nations
and then the UN provided a more developed notion of universal peacekeeping
arrangements, and many specialized institutions concerned with technical, economic, and
social cooperation were established. The study of international organizations and the
multiplicity of institutions and agencies is a department of the political and social sciences:
the present chapter can only indicate the main legal problems arising from interstate
organizations.1

2.  Legal Personality

(A)  International organizations as subjects of international law
Given the large number of international organizations extant,2 it is difficult to find a catch-
all definition that is neither under- nor over-inclusive. One starting point is (p. 157) Article
2(a) of the ILC’s 2011 Articles on the Responsibility of International Organizations, which
provides:

‘[I]nternational organization’ means an organization established by treaty or other

instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to
States, other entities.3

Whilst useful, this definition was developed in the context of international responsibility,
which presupposes legal personality. It is possible for an international organization to have
no such personality but still—by virtue of its treaty-based, interstate character and activity
—be considered an international organization. Nonetheless, most international
organizations will possess separate personality.
Although international organizations have existed since the mid-nineteenth century,
attributing legal personality to them took some time.4 A shift began after 1919, though it
was characterized by equivocation. The Covenant of the League of Nations made no
reference to legal personality.5 By 1926, however, its modus vivendi with Switzerland
included recognition of its separate existence on the international plane.6
Then, in Reparation for Injuries7 the International Court went a step further. Following the
assassination of UN envoy Count Folke Bernadotte and his entourage by Zionist
nationalists,8 the Court was asked to advise on the capacity of the UN, as an organization,
to bring an international claim for injury to its personnel on the lines of diplomatic
protection, and in respect of injury to the UN caused by the harm to its agents. The Charter
did not contain any explicit provision on the international legal personality of the UN,9 but
the Court drew on the implications of the instrument as a whole, noting that, if the UN was
to fulfil its tasks, ‘the attribution of international personality is indispensable’.10
The Court then analysed the Charter itself and identified those textual elements that
implied that the UN was intended to possess such personality, noting, inter alia, the defined
position of Members in relation to the UN and the requirement that they assist it (Art 2(5)),
the obligation to comply with and enforce decisions of the Security Council (Art 25), the
capacity of the General Assembly to make recommendations to Members (Art 10), the grant

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 of legal capacity, privileges, and immunities to the UN in (p. 158) the territory of its
Members (Arts 104, 105), and the conclusion of treaties between the UN and its Members
(e.g. Art 43). These, the Court held, indicated that:

the Organization was intended to exercise and enjoy, and is in fact exercising and
enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to
operate upon an international plane. It is at present the supreme type of
international organization, and it could not carry out the intentions of its founders if
it was devoid of international personality. It must be acknowledged that its
Members, by entrusting certain functions to it, with the attendant duties and
responsibilities, have clothed it with the competence required to enable those
functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the Organization is an
international person. That is not the same thing as saying that it is a state, which it
certainly is not, or that its legal personality and rights and duties are the same as
those of a state. Still less is it the same thing as saying that it is ‘a super-state’,
whatever that expression may mean …. What it does mean is that it is a subject of
international law and capable of possessing international rights and duties, and that
it has capacity to maintain its rights by bringing international claims.11

(B)  Indicia of international legal personality

Two main theories have been offered to explain the decision.12 The first is that it is the will
of the founders that determines whether an international organization possesses
international legal personality.13 If international law is based on the freely expressed
consent of states, they may breathe personality into an organization.14 But some
organizations are not expressly endowed with international legal personality, forcing its
generation via inference. This problem was pronounced with organizations formed in the
early years of the UN,15 but has declined with respect to later institutions.16 More
substantial is the question how organizations created by some states interact with third
parties, whose refusal to acknowledge their separate personality could reflect on the
potential emptiness of the concept. One solution is to condition personality on recognition
by third parties, but in practice the institution of recognition has not been extended to
organizations.17
(p. 159) The alternative and better view is that international organizations are capable of
attaining ‘objective’ legal personality independent of recognition by performing certain
functions on the international plane.18 This was the position taken, at least in part, by the
Court in Reparation for Injuries.19 The criteria for the possession of legal personality by an
international organization may be summarized as follows:

(1)  a permanent association of states, or other organizations, with lawful objects,

equipped with organs;
(2)  distinction, in terms of legal powers and purposes, between the organization and
its member states; and
(3)  the existence of legal powers exercisable on the international plane and not solely
within the national systems of one or more states. 20

An organization may exist but lack the organs and objects necessary for legal personality.
The Commonwealth of Nations was such an association initially: it is now regarded as a
distinct legal entity, though lacking a formal constitution.21 Similarly, a multilateral
convention may be institutionalized to some extent with provision for regular conferences,
yet not involve any separate personality. In its IFAD Advisory Opinion, the Court denied that

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 the Global Mechanism to Combat Desertification had legal personality: not only was there
no express provision to that effect in the constituent instruments, but the Global
Mechanism had ‘not purported to exercise any power to enter into contracts, agreements or
“arrangements”, internationally or nationally’.22
On the other hand, joint agencies of states,23 for example an arbitral tribunal or a river
commission, may have restricted capacities and limited independence but be regarded as a
separate legal person.24 This applies also to agencies and subsidiary organs of
organizations, such as the United Nations Conference on Trade and Development
(UNCTAD) or the UN High Commissioner for Refugees.
Secondly, if an organization has considerable independence and power to intervene in the
affairs of member states, the arrangement may resemble a federal union. The EU (p. 160) is
sometimes characterized in this way, though this is debatable, as it is only competent to
exercise those powers attributed to it by its member states.25
Thirdly, while an organization with legal personality is normally established by treaty, the
source could be the resolution of a conference of states or a uniform practice.26 The initial
basis of the United Nations Industrial Development Organization (UNIDO) was to be found
in resolutions of the General Assembly,27 whilst the Organization of the Petroleum
Exporting Countries (OPEC) and the Organisation for Security and Cooperation in Europe
(OSCE) derive from government consensus reached at international conferences.
In short, at the international level there is no legal and administrative process comparable
to the municipal concept of incorporation. Where there is no constitutional system for
recognizing and registering associations as legal persons, the primary test is functional.
Indeed, it would be fatuous to work from an abstract model in the face of the existence of
some 250 organizations of states, varying from the universal to the bilateral.

(C)  Objective personality and third states

One attribute of the objective theory of legal personality for international organizations is
that it renders that personality opposable to third states, even though the organization in
question is normally the creation of a treaty. This is made clear in the ILC’s commentary to
Draft Article 2, where it is said that ‘it would not be necessary to enquire whether the legal
personality of an organization has been recognized by an injured State before considering
whether the organization may be held internationally responsible according to the present
articles’.28 In this, the ILC saw as conclusive the decision in Reparation for Injuries, with its
emphasis on ‘objective legal personality’.29 Although the Court conditioned its opinion on
the quantity and standing of the founding Members of the UN, there are good reasons for
applying this proposition to all international organizations, and in practice this has
occurred.

(p. 161) 3.  Privileges and Immunities

In order to function effectively, international organizations require minimum standards of
freedom and legal security for their assets, headquarters, and other establishments, and for
their personnel and accredited representatives of member states.30 By analogy with
diplomatic privileges and immunities, the necessary privileges and immunities of agents of
international organizations, as well as of the organizations themselves, in respect of the
territorial jurisdiction of host states (i.e. those states which have agreed to house the
headquarters or other activities of an organization) may be recognized. The analogy is not
perfect, however, and three difficulties are apparent.31 First, in contrast to diplomatic
immunity, it is normal for officials of an organization to have the nationality of (and often a
special relationship with) a member state, including the host state. A national of the
receiving state who is a member of a foreign mission will only be extended diplomatic
immunity on a narrow and highly conditioned basis.32 Secondly, a diplomat, although
immune from the jurisdiction of the receiving state, remains under the sending state’s

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 jurisdiction. Thirdly, whereas reciprocity provides an incentive for states to respect
international diplomatic law, an international organization does not have access to an
effective regime of sanctions.

(A)  Sources of privileges and immunities

(i)  Treaty law
The privileges and immunities of international organizations derive from multiple sources.33
In the first place, the constituent instrument of the organization will ordinarily contain at
least a general provision34 stating that the organization and its personnel are to be
accorded immunity. Article 105 of the Charter is emblematic:

1.  The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfilment of its purposes.
(p. 162)
2.  Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in connexion with
the Organization.

…35

A further source of privileges and immunities are separate multilateral agreements. The
Convention on the Privileges and Immunities of the United Nations36 is the example most
frequently identified as such, having inspired other similar instruments, notably the
Convention on the Privileges and Immunities of the Specialized Agencies.37 These may be
further cemented by headquarters agreements between the organization and host state, for
example the agreement between the UN and the US with respect to the UN headquarters in
New York.38
(ii)  National law
National law, especially host state law, is central in ensuring the privileges and immunities
of international organizations. It will generally be required to implement relevant
international agreements.39 It may add to these agreements, or act as substitute where the
state in question has yet to enter into them.
(iii)  Customary international law
Then there is the question of the role of customary international law in this context.40 Some
governments and municipal courts have adopted the view that immunity exists in custom.41
The Restatement Third specifies that international organizations are entitled in custom to
‘such privileges and immunities as are necessary for the fulfilment of the purposes of the
organization, including immunity from legal process and from financial controls, taxes and
duties’.42 Immunity has occasionally been recognized by (p. 163) the courts of non-member
states,43 and aspects of the immunity may have the status of general principles of law,
though it has been suggested that this may only extend to the UN system, due to its
universal character.44
As to organizations of more limited membership, the question remains open.45 Speaking of
the International Tin Council, Bingham J said:

[I]nternational organizations such as the ITC have never so far as I know been
recognized at common law as entitled to sovereign status. They are accordingly
entitled to no sovereign or diplomatic immunity in this country save where such

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 immunity is granted by legislative instrument, and then only to the extent of such
grant.46

According to Higgins,47 this misses the point: immunity is necessary to allow these
organizations to function, and there is no difference between organizations of limited and
unlimited membership in this respect. It would seem churlish for a state to agree to house
an organization but deprive it of those attributes that would allow it to function as intended.
This point was made by the International Court in Privileges and Immunities of the United
Nations.48
A further question is whether international organizations are entitled to immunity with
respect to non-member states. Practice suggests that there is no customary rule on point.49
A Malaysian court held that comity did not require it to acknowledge immunity granted to
an organization of limited membership by the UK.50 A Swiss court held that it lacked
jurisdiction over an employment dispute between an organization and one of its officials,51
though this may reflect a sui generis exception as distinct from a general rule.52
It may be argued, however, that if the personality of international organizations stems from
an objective assessment of their functions and non-parties are required to accept their
separate identity, then this personality must be populated with the attributes necessary for
the organization to carry out its mandate, including as necessary the immunity of the
institution and its personnel.53

(p. 164) (B)  Privileges and immunities attaching to the organization

As noted, the source of privileges and immunities of most organizations is a general treaty
provision; some international organizations (notably the UN) have concluded additional
treaties articulating these immunities.54 But if they do not, the general provision in the
original agreement will need to be given content. In that case, reference may be had to the
functional basis of privileges and immunities, with the extension of a particular protection
predicated on necessity. Organizations vary, and so may their immunities. As experience
with UN peacekeeping forces shows, relations with the host state in particular will depend
a great deal on the specific function involved and all the circumstances. Decisions of
national courts on the immunities of agents of international organizations do not produce a
coherent body of principles. Some decisions rely by analogy on diplomatic immunities;55
others take a more rigorously functional view.56 But four broad immunities and privileges
are generally identified as attaching to—and subject to waiver by57—the organization.58
The first is immunity from jurisdiction, that is, from all forms of legal process of the forum
state. It includes immunity from execution, principally in the sense of judgments or arbitral
awards.59 An expanded example may be seen in the General Agreement Article II, section
2,60 which provides that:

the United Nations, its property and assets, wherever located and by whomsoever
held, shall enjoy immunity from every form of legal process, except and in so far as
in any particular case it has expressly waived its immunity.

The key rationale for this immunity is that otherwise member state courts may purport to
rule on the legality of acts of the organization. Some jurisdictions have sought to limit the
scope of this immunity by reference to acts done jure gestionis as distinct from jure imperii,
by analogy with state immunity.61 But practice is limited to a few (p. 165) states. In a
developing trend, some national courts are prepared to deny immunity with respect to
claims for denial of justice before administrative tribunals internal to the organization,62
due to the circumstantial inconsistency of the immunity with other supervening principles
of international law. This is notable in the case of the European Court of Human Rights. In
Waite and Kennedy v Germany63 and Beer and Regan v Germany64 the Court held that
Germany’s maintenance of the immunity of the European Space Agency (ESA) was

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 consistent with its obligations under ECHR Article 6(1) regarding the right to a fair trial.65
The Court held, however, that maintenance of the immunity could not be reflexive, and that
access to the German courts with respect to actions against international organizations
could only be refused to the extent that the organization possessed an internal process of
review that could protect adequately the Article 6(1) rights of any claimants, a requirement
fulfilled by the ESA Appeals Board.66
The second common protection concerns the inviolability of the organization’s premises and
archives.67 In practice, this mirrors the protection granted to diplomatic missions; the
authorities may not enter the premises of the organization, even when effecting an arrest or
serving a writ, without the consent of the administrative head of the organization. On rare
occasions, this protection has been breached: for example, schools administered by the
United Nations Relief and Works Agency in the Gaza Strip were damaged through the
actions of the Israeli Defence Force during 2009 operations against Hamas.68
The third protection afforded to international organizations pertains to currency and other
fiscal matters.69 Many international organizations administer considerable (p. 166) funds,
often contributed by their membership, the mobility of which is crucial to their operation.
General Convention Article II, section 5 provides:

Without being restricted by financial controls, regulations or moratoria of any kind,

(a)  the United Nations may hold funds, gold or currency of any kind and
operate accounts in any currency;
(b)  the United Nations shall be free to transfer its funds, gold or currency
from one country to another or within any country and to convert any
currency held by it into any other currency. 70

This protects the UN from municipal exchange control regimes. It is supplemented by

Article II, section 7, which protects it from direct taxation and customs duties, except
municipal taxes which are merely a charge for the use of public utilities.71
The fourth functional protection extended to international organizations is freedom of
communication.72 This is modelled on the similar freedom of diplomatic missions, and
includes freedom from censorship, the right to use codes and couriers, the privilege of the
diplomatic bag and its attendant inviolability, and, in the territory of each state, treatment
of official communications in a manner as favourable as that accorded to diplomatic
missions. The exemplar is General Convention Article III, sections 9 and 10.73

(C)  Privileges and immunities attaching to personnel

The privileges and immunities of personnel are again functional: international organizations
require people to make decisions and carry them out.74
(i)  Immunity attaching to organization officials
There is no general agreement on the scope of immunity in the absence of a treaty. The
minimum principle appears to be that officials of international organizations are immune
from local jurisdiction and execution in respect of all official acts. Thus, General Convention
Article VII, section 18 provides:

Officials of the United Nations shall:

(a)  be immune from legal process in respect of words spoken or written and
all acts performed by them in their official capacity;

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 (b)  be exempt from taxation on the salaries and emoluments paid to them by
the United Nations;
(c)  be immune from national service obligations;
(d)  be immune, together with their spouses and relatives dependent on them,
from immigration restrictions and alien registration; (p. 167)
(e)  be accorded the same privileges in respect of exchange facilities as are
accorded to the officials of comparable ranks forming part of diplomatic
missions to the Government concerned;
(f)  be given, together with their spouses and relatives dependent on them, the
same repatriation facilities in time of international crisis as diplomatic envoys;
(g)  have the right to import free of duty their furniture and effects at the time
of first taking up their post in the country in question.

Whilst such provisions ordinarily extend such immunity to officials of the organization only,
some institutions cast the net wider. The International Criminal Court (ICC) Immunities
Agreement and the agreement between the UN and Sierra Leone regarding the Special
Court for Sierra Leone75 both grant immunity to counsel and persons otherwise assisting,76
witnesses77 and victims.78 The ICSID Convention provides for the immunity of parties,
agents, counsel, advocates, witnesses, and experts (Arts 21, 22).
Difficulties can arise in determining whether an individual has committed an act in an
official capacity.79 The International Court has held that any determination of an official act
made by the Secretary-General is binding,80 a position not adopted with alacrity by states.
Treaties may also require that certain officials be given the equivalent of full diplomatic
immunity. Both the General Convention (Art V, section 19) and the Council of Europe
Immunity Agreement (Art 16) require that such protection be extended to the Secretary-
General and Assistant Secretaries-General, their spouses, and minor children. The immunity
given to judges of the International Court81 and other holders of judicial or prosecutorial
offices82 is also equated to diplomatic privileges.
(ii)  Immunity attaching to state representatives
The agreements that provide immunity to the officials of international organizations usually
extend protection to state representatives to the organization.83 General Convention Article
IV, section 11 grants representatives to the UN an even broader set of immunities than
those ordinarily granted to officials of the Organization. Indeed, state representative
immunity has much more in common with full diplomatic immunity84 (p. 168) than the
protections afforded to officials of the Organization,85 though the two do not completely
align, notably in the frequent restriction that a state representative is only granted
immunity from legal process with respect to acts done in an official capacity.86
State representatives to international organizations are not ordinarily accredited to the host
state but to the organization itself. A notable exception to this practice is contained in UN
Headquarters Agreement, Article IX, section 25, which requires that apart from permanent
representatives and certain other high-ranking officials, the staff of the mission must be
agreed between the sending state, the US, and the Secretary-General.
The question of privileges and immunities of state representatives is addressed by the
Vienna Convention on the Representation of States in their Relations with International
Organizations of a Universal Character,87 adopted in 1975 in the face of opposition from the
major host states. It has not yet entered into force.88

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 4.  Performance of Acts in the Law
The analogue for the exercise of legal functions in international relations is the state, in
spite of the obvious analogical dangers. The most viable type of organization will have legal
powers similar to those normally associated with statehood. However, the individuality of
each organization must be emphasized: in the first place, the extent of legal capacity will be
found in the constituent treaty of the organization.

(A)  Treaty-making power

Although the capacity of international organizations to enter into treaties89 was originally
doubted,90 it is now uncontroversial.91 The Vienna Convention on the Law of Treaties
between States and International Organizations or between International (p. 169)
Organizations was adopted on 21 March 1986;92 it is modelled, perhaps too closely, on the
Vienna Convention on the Law of Treaties (VCLT).93 It is open for accession ‘by any
organization which has the capacity to conclude treaties’ (Art 84). It is not yet in force but
acts as a legal and practical guide.
The existence of legal personality does not necessarily imply power to make treaties,
though in practice organizations readily assume a treaty-making power. Additionally, the
constituent instrument may limit the treaty-making powers of the organization to certain
organs.94 The competences of the organization as a whole provide a further limitation.95
Where an agreement is entered into, however, the organization as a whole will be bound,96
even, potentially, where the contracting organ is acting ultra vires.97 On the other hand,
while the organization is committed by the acts of its organs, member states are not as such
bound, given their separate legal personality.98
Constituent instruments do not normally confer a general treaty-making power, but this
may be (somewhat problematically) established via the interpretation of the instrument as a
whole or the doctrine of implied powers.99 The UN Charter authorizes the conclusion of
trusteeship agreements (Chapter 12), relationship agreements with the specialized
agencies (Arts 57, 63), specialized agreements permitting national armed forces to be
placed at the disposal of the Security Council (Art 43), and conventions concerning
privileges and immunities (Art 105(3)). But it has concluded headquarters agreements and
agreements on cooperation with other organizations, without express authorization. Thus, a
specific constrained power to enter into treaties is used to infer legal personality, which is
in turn used to infer a general treating-making power.100

(B)  Capacity to espouse international claims

In Reparation for Injuries, the International Court held unanimously that the UN was a legal
person with capacity to bring claims against both member and non-member states for direct
injuries to the Organization.101 The power to bring such claims was apparently regarded as
concomitant with legal personality. However, the Court also expressed its conclusion in
terms of implied powers and effectiveness.102 Similar (p. 170) reasoning may apply to other
organizations. The capacity to espouse claims thus depends (1) on the existence of legal
personality, and (2) on the interpretation of the constituent instrument in the light of the
functions of the particular organization. In contrast, the existence of immunities is not
conditioned on the separate legal personality of the entity concerned.
As to functional protection of agents, the Court in Reparation for Injuries used similar
reasoning to justify its opinion that the UN could espouse claims for injury to its agents.103
On this point, the Court was not unanimous,104 but the principle is now largely
uncontroversial.105 The situation remains particularly delicate when a claim is made on

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 behalf of an agent who is a national of the respondent state.106 The Court addressed this
difficulty, noting that:

The action of the Organization is in fact based not upon the nationality of the victim
but his status as an agent of the Organization. Therefore it does not matter whether
or not the State to which the claim is addressed regards him as its own national,
because the question of nationality is not pertinent to the admissibility of the
claim.107

A problem which remains to be solved is the determination of priorities between the state’s
right of diplomatic protection and the organization’s right of functional protection.108 Again
by analogy with states, it may be that the right to espouse is concurrent but subject to a
rule against double recovery.

(C)  Standing before international tribunals

When an organization has legal personality it has in principle locus standi before
international courts and tribunals. But everything depends on the statute governing the
adjudicatory body or the compromis concerned, and in many cases international
organizations have no such access.109 Notably, while certain organizations have access to
the International Court through its advisory jurisdiction, the Statute still limits standing to
states (Art 34).110 But international organizations may have standing before (p. 171)
international tribunals where the jurisdiction of the tribunal may be activated through the
treaty-making or contracting capacity of the organization.111

(D)  Capacity to own property

Another element of legal personality is the capacity for an international organization to own
property under the municipal law of a state. This is a functional necessity. Conversely,
ownership of property may act as an indication of legal personality.112 Any property so
owned falls under the aegis of the organization’s privileges and immunities.

(E)  Responsibility
If an organization has a legal personality distinct from that of the member states, and
performs functions which in the hands of states may give rise to responsibility,113 then it is
in principle reasonable to impute responsibility to that organization.114 Such claims are
ordinarily predicated on the exhaustion of ‘local remedies’, that is, before any competent
organ of the organization.115 This follows generally from the Court’s reasoning in
Reparation for Injuries. The most notable development in the law of responsibility for
international organizations is its codification in the ILC’s Draft Articles of 2011,116 a project
which owes much to the Commission’s previous work on state responsibility. Under Article
3, every internationally wrongful act by an organization entails its international
responsibility (see also Art 4). Similar rules have also been adopted with respect to
attribution (Arts 6–9), breach of international obligations (Arts 10–13), circumstances
precluding wrongfulness (Arts 20–27), the content of international responsibility (Arts 28–
42) and its implementation (Arts 41–57).
(p. 172) Moreover, separate legal personality presumptively prevents liability from
attaching to an organization’s members, as demonstrated in the International Tin Council
cases. This litigation commenced as a consequence of the inability of the ITC to meet its
liabilities; the issues of international law (e.g. the question of the residual responsibility of
the member states) were not faced head-on by the English courts and the decisions turned
to an extent on the construction of the International Tin Council (Immunities and Privileges)

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 Order in relation to matters essentially of English law.117 In the Court of Appeal in the
‘direct actions’ by creditors against the member states, Kerr LJ concluded:

In sum, I cannot find any basis for concluding that it has been shown that there is
any rule of international law, binding upon the member states of the ITC, whereby
they can be held liable, let alone jointly and severally, in any national court to the
creditors of the ITC for the debts of the ITC resulting from contracts concluded by
the ITC in its own name.118

The House of Lords agreed with this view.119

In adopting the Draft Articles, the ILC confirmed that member states cannot generally be
regarded as responsible for the internationally wrongful acts of the organization. No doubt,
it would be contrary to good sense if one or a few states could avoid responsibility by
creating an international organization to do something they could not lawfully do
themselves.120 But regard must be had to each set of circumstances. In relation to the use
of forces under UN authority in peacekeeping operations, the general practice is that
financial responsibility is determined by agreements between contributing governments
and the UN,121 and between the latter and the host state. Article 7 here contributes,122
providing that:

The conduct of an organ of a State or an organ or agent of an international

organization that is placed at the disposal of another international organization
shall be considered under international law an act of the latter organization if the
organization exercises effective control over that conduct.

(p. 173) Additionally, provision is made at length in Part V for the joint responsibility of
states and organizations with respect to internationally wrongful acts.123 States may be
held responsible for aiding and abetting wrongful acts by organizations (Art 58), as well as
the exercise of direction or control (Art 59), coercion (Art 60), and the acceptance of
responsibility (Art 62). Of special note is Article 61, which provides that a state member
may incur international responsibility if it causes an organization to commit an act that
would have breached an international obligation if committed by the state, irrespective of
whether the organization by so doing commits a breach.
In practice, the UN has accepted responsibility for the acts of its agents.124 However, in the
case of more specialized organizations with a smaller membership, it may be necessary to
fall back on the collective responsibility of members. There is a strong presumption against
a delegation of responsibility by a state to an organization arising simply from membership.
But the organization may occasionally be conceived of as creating risks and incurring
liabilities in the course of its activities and as a vehicle for the distribution of costs and
risks. This can be seen from Article XXII(3) of the Convention on International Liability for
Damage Caused by Space Objects, which, subject to certain preliminary conditions,
provides that ‘[i]f an international intergovernmental organization is liable for damage by
virtue of the provisions of this Convention, that organization and those of its members
which are States Parties to this Convention shall be jointly and severally liable.’125

5.  Interpretation of the Constituent Instrument

Unlike states, international organizations do not possess general competence: they may
only exercise those powers expressly or impliedly bestowed upon them.126 The fundamental
rule of the law of international organizations is the principle of attributed powers or

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 speciality (compétences d’attribution). This was stated by the International Court in the
Nuclear Weapons opinion:

[I]nternational organizations … do not, unlike States, possess a general

competence. International organizations are governed by the ‘principle of
speciality’, that is to say, they are (p. 174) invested by the States which create them
with powers, the limits of which are a function of the common interests whose
promotion those States entrust to them.127

(A)  Identity of the interpreter

(i)  Self-interpretation within international organizations
Within international organizations, each organ must interpret its own jurisdiction,
irrespective of whether a power is expressly conferred.128 The International Court accepted
this reality in Certain Expenses, holding that, in the absence of further direction within the
Charter, each constituent organ of the UN was entitled to determine its jurisdiction in the
first instance. Moreover, such determinations, when accompanied by an assertion of
propriety, are presumptively intra vires.129 Full advantage of this has been taken by the
General Assembly, which has determined its own jurisdiction on multiple occasions. The
Security Council has also been willing to engage in such introspection, notably when
considering the meaning of ‘threat to the peace’ under Article 39 of the Charter.
(ii)  Judicial and other third party interpretation
In the event of dispute as to the interpretation of an organization’s constituent instrument,
the instrument itself may provide for resolution through a judicial organ. In the context of
the UN, this is the International Court which, through its advisory jurisdiction, is able to
opine on the capacity of the organs130 and specialized agencies of the Organization.131 But
advisory opinions are not—absent special agreement132—binding on the organization
concerned, although in practice implementation is normal.
(p. 175) In Certain Expenses, the Court faced an issue on which members of the UN were
divided, the constitutional basis for the use of armed forces in the United Nations
Emergency Force (UNEF) and the United Nations Mission in the Congo (ONUC). The Court
concluded that ‘when the Organization takes action which warrants the assertion that it
was appropriate for the fulfilment of one of the stated purposes of the United Nations, the
presumption is that such action is not ultra vires the Organization’.133 The majority opinion
held that the operations were in pursuance of the stated purposes and that the
corresponding expenses were ‘expenses of the Organization’ under Article 17(2). The
Opinion was criticized on the ground that it permitted non-obligatory recommendations to
result in binding financial obligations, giving the General Assembly a supranational
budgetary power denied to more integrated communities.134 More generally, this type of
judicial control does not reconcile major divisions between member states: indeed, the
opinion could have had a disastrous outcome had the issue of arrears attributable to
peacekeeping not been settled by negotiation.135
Aside from judicial options for the interpretation of a constituent instrument, other sui
generis options may also exist.136 A constitution may call for the convening of an arbitral
tribunal to hear disputes.137 Alternatively, an arbitral tribunal established under an
agreement between an organization and another party may have to interpret the
organization’s constituent instrument.138 Finally, an international tribunal may interpret an
organization’s constituent instrument incidentally to determining its own jurisdiction. For
example in Tadić, the International Criminal Tribunal for the Former Yugoslavia held that

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 the Security Council had the capacity to establish an international criminal tribunal under
Article 41 of the Charter.139

(B)  Principles of interpretation

Whilst acknowledging that ‘the constituent instruments of international organizations are
multilateral treaties, to which the well-established rules of treaty interpretation apply’, the
Court has sought to distinguish ‘certain special characteristics’:140

[T]he constituent instruments of international organizations are also treaties of a

particular type; their object is to create new subjects of law endowed with a certain
autonomy, (p. 176) to which the parties entrust the task of realizing common goals.
Such treaties can raise specific problems of interpretation owing, inter alia, to their
character which is conventional and at the same time institutional; the very nature
of the organization created, the objectives which have been assigned to it by its
founders, the imperatives associated with the effective performance of its functions,
as well as its own practice, are all elements which may deserve special attention
when the time comes to interpret these constituent treaties.141

Thus, when the issue of interpretation relates to an organization’s constitution, a flexible

and even teleological approach may be evident. However, this does not justify the
abandonment of the unitary process of interpretation outlined in VCLT Article 31(1), as
distinct from the reorganization of priorities within it.
In Reparation for Injuries, the Court observed that ‘the rights and duties of an entity such
as the Organization must depend upon its purpose and functions as specified or implied in
its constituent documents and developed in practice’.142 Interpretation is to be
accomplished with reference to what will enable the organization to achieve its goals
effectively. Thus, the Court has held that a capacity to establish a tribunal to do justice
between the Organization and staff members, absent an express provision, ‘arises by
necessary intendment out of the Charter’.143
(i)  Subsequent practice within the organization
As indicated in the Nuclear Weapons in Armed Conflict advisory opinion, ‘the imperatives
associated with the effective performance of its functions, as well as its own practice, are all
elements which may deserve special attention when the time comes to interpret …
constituent treaties’.144 The Court thus identified the canon of interpretation in VCLT
Article 31(3)(b) (‘any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation’) as particularly pertinent. Article
31(3)(b), is not, however, a perfect analogue, referring impliedly as it does to the practice of
states parties to the treaty rather than that of the organization itself.145
When interpreting the text of a constituent instrument, regard is to be had to the fact that
‘[t]he practice of the organization may have altered the application of the text without
affecting its actual wording.’146 In Namibia, the Court held, in the light of established
Security Council practice concerning the use of the term ‘concurring vote’ in Article 27(3)
of the Charter, that abstention on the part of a Permanent Member (p. 177) amounted to a
concurrence and did not involve the exercise of a veto.147 The words were barely capable of
sustaining that interpretation, but the supporting practice was of lengthy duration and
universal in its scope.
(ii)  Implied powers
This raises the difficult issue of implied powers of international organizations. As was stated
in Reparation for Injuries:

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 Under international law, an Organization must be deemed to have those powers
which, though not expressly provided in the Charter, are conferred upon it by
necessary implication as being essential to the performance of its duties.148

The underlying idea is that an international organization is expected to evolve and adapt to
changes on the international plane.
The organization’s power of appreciation is wide, but it is not unlimited. Thus, in Legality of
the Use by a State of Nuclear Weapons in Armed Conflict the Court denied the World
Health Organization the capacity to address the legality of the use of nuclear weapons:

In the opinion of the Court, to ascribe to the WHO the competence to address the
legality of the use of nuclear weapons—even in view of their health and
environmental effects—would be tantamount to disregarding the principle of
speciality; for such competence could not be deemed a necessary implication of the
Constitution of the Organization in the light of the purposes assigned to it by its
member States.149

The need for balance has led Blokker to identify four limitations on the existence and scope
of implied powers.150 First, the implied power in question must be essential or
indispensable to the organization. Secondly, it must not contradict the express provisions of
the constituent instrument. Thirdly, it must not violate fundamental rules and principles of
international law. Fourthly, it must not change the distribution of power between organs of
the organization. Testing the boundaries of interpretive power with respect to constituent
instruments may lead to significant disagreements between members.151

(p. 178) 6.  Relations of International Organizations

(A)  Relations with members
A central aspect of any international organization is the relationship between the institution
and its membership. International organizations are normally composed of states, but a
number of organizations have operated an effectively functional concept of membership
compatible with their special purposes. Thus the Universal Postal Union is a union of postal
administrations, the World Meteorological Organization a union of states and territories
having their own meteorological service, and the World Trade Organization a union of
separate customs territories. Under this type of membership regime, dependent territories
have functional equality with member states. In other organizations, dependent territories
are given ‘associate’ membership,152 although in practice they may have equality with other
members.
(i)  Decision-making
In the League of Nations, decisions153 could in general only be taken on a basis of
unanimity.154 Today the principle of majority decision is commonly adopted,155 although
voting rules vary between organizations and between organs of the same organization.156 In
the International Monetary Fund (IMF), weighted voting applies; in the UN Security
Council, the five Permanent Members have a veto on all non-procedural matters.157
International organizations are constrained by the fact that they are ordinarily poorly
situated to carry out substantive decisions directly.158 For example, the Security Council
may identify a threat to international peace and security under Article 39 of the Charter,
and seek to redress it under Articles 41 and 42, but it does not have an economy of its own
with which to levy sanctions, nor a military with which to forcibly address the situation

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 (absent troop-contribution agreements under Art 43). In effect, all it can do is make
decisions binding on UN Members under Articles 25, 39, and 103.159
(p. 179) (ii)  Domestic jurisdiction
The type of international cooperation undertaken through an organization and its
constituent treaty will normally leave the reserved domain of domestic jurisdiction
untouched. When the powers of the organization are extensive, as in the case of the UN, an
express reservation may be inserted (Art 2(7) of the Charter).160 However, the Charter does
not allow the reservation to affect the application of enforcement measures against states
under Chapter VII.
The classic declaration of precisely what constitutes domestic jurisdiction was made by the
Permanent Court in Nationality Decrees, where it was said that matters remaining solely
within the domestic jurisdiction of states are such ‘matters which are not, in principle,
regulated by international law’ and ‘with respect to which States, therefore, [remain] sole
judge’. The Court continued:

The question whether a certain matter is or is not solely within the domestic
jurisdiction of a State is essentially a relative question; it depends on the
development of international relations.161

Some elaboration has been provided by Nolte:

[T]he concept of ‘domestic jurisdiction’ does not denote specific areas which are
clearly defined, irreducible or in any way inherently removed from the international
sphere. It rather circumscribes areas which, taking into account the situation in
issue, are not even prima facie affected by rules of international law.162

But provisions such as Article 2(7) have not proved a generally effective restraint.163
(iii)  Agency
By agreement between the states and the organization concerned, the latter may become
an agent for member states, and others, in regard to matters outside its ordinary
competence.164 Conversely, a state may become an agent of an organization for a particular
purpose, for example as an administering authority of a trust territory under Article 81 of
the UN Charter.165
(p. 180) (iv)  Applicable law
An organization may enter into legal relations both on the international plane and with
persons of private law within particular systems of municipal law.166 In principle, the
relations of the organization with other persons of international law will be governed by
international law, with the norms of the constituent treaty predominating when relations
with member states of the organization are concerned. When an issue arises from relations
with persons of private law, the question may be regulated by a choice of law provision in a
treaty which refers to a system of municipal law or possibly to ‘general principles of law’.
Otherwise, everything will depend on the forum before which the issue is brought and on
the rules of conflict of laws applicable.167
Indeed, for expediency most international organizations will subject their contracts to one
or more systems of municipal law (usually that of the host state); thus, the majority of the
UPU and WHO contracts are governed by Swiss law, whereas those of the International
Civil Aviation Organization (ICAO) are governed by the law of Quebec.

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 As for personal injury and other forms of tort, the host state agreement may provide a
regime of liability for the institution.168 Where no indication exists, however, it is a
generally accepted principle that the organization can be held liable, with the applicable
law being that of the place of the injury.169

(B)  Relations with non-member states

The general rule is that only parties to a treaty are bound by the obligations contained in it,
and this rule applies in principle to the constituent instruments of international
organizations. An apparent exception appears in UN Charter Article 2(6), which provides:
‘The Organization shall ensure that States which are not Members of the United Nations act
in accordance with the Principles so far as may be necessary for the maintenance of
international peace and security.’ The exception, if it is one,170 rests on the special
character of the UN as a quasi-universal organization concerned primarily with the
maintenance of global peace and security.
With international legal personality comes the capacity to contract. Certainly, third states
enter into agreements with organizations which are valid on the international plane. Non-
member states may also enter into relations with an organization via special missions.
However, the existence of legal personality in an organization does not connote the
spectrum of legal capacities, and the constituent instrument remains the prime determinant
of specific powers in the matter of third state relations.

(p. 181) (C)  Relation to municipal law

An organization will necessarily enter into relations within particular systems of municipal
law, both in the state in which the headquarters are sited and in the course of its wider
activities.171 The extent to which the particular system recognizes its legal personality will
depend on the local law as modified by any relevant agreement. Thus, the Treaty on the
Functioning of the European Union172 provides in Article 335 that the Union shall be
accorded legal capacity in each member state to the greatest extent accorded to ‘legal
persons under their laws’. In the case of the ICAO, the Constitution makes no provision as
to the precise content of its legal personality, and as a consequence the status of the
organization varies according to the uncoordinated municipal laws of its members.
In the case of the English courts, a foreign entity will only be recognized as having legal
personality if it has been accorded it under the law of a foreign state recognized by the UK.
An international organization will be accorded legal personality (and the capacity to sue) if
it has been accorded the legal capacity of a corporation under the law of one or more of the
member states or of the law of the state where it has its seat, if that state is not a member
state.173

7.  Law-Making Through Organizations

The activities of international organizations do not feature in the sources of international
law enumerated in Article 38 of the Statute of the International Court.174 But they are well
placed to contribute to its development. This is due primarily to the capacity for
international organizations to express collectively the practice of member states. As Higgins
has noted:

The United Nations is a very appropriate body to look to for indications of

developments in international law, for international custom is to be deduced from
the practice of States, which includes their international dealings as manifested by
their diplomatic actions and public pronouncements. With the development of
international organizations, the votes and views of States have come to have legal
significance as evidence of customary law … Collective acts of States, repeated by
and acquiesced in by sufficient numbers (p. 182) with sufficient frequency,
eventually attain the status of law. The existence of the United Nations—and

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 especially its accelerated trend towards universality of membership since 1955—
now provides a very clear, very concentrated focal point for state practice.175

But the UN is a special case in this regard. The same may not be said for other international
organizations, the relative influence of which will depend on their competence and
membership.176 The varied roles played by organizations may be distinguished as follows:

(A)  Forums for state practice

Statements on legal questions by governments through their representatives in organs and
committees of organs can provide evidence of customary law; so also with the voting on
resolutions concerned with legal matters, for example the resolution of the General
Assembly affirming the principles of the Nuremberg Charter.177 In this sense, there is
nothing inherently special about an international organization; whilst it may provide a state
with the opportunity to make a statement on or consider an issue, any opinion so expressed
reflects state practice with respect to that state alone.

(B)  Prescriptive resolutions

A resolution, not in itself binding,178 may prescribe principles of international law and
purport to be merely declaratory. However, the mere formulation of principles may
articulate and develop the law.179 When a resolution of the General Assembly touches on
subjects dealt with in the UN Charter, it may be regarded as an authoritative interpretation:
examples are the Declaration on the Granting of Independence to Colonial Countries and
Peoples180 and the Friendly Relations Declaration.181 Resolutions on new legal problems
provide a means of corralling and defining the growing practice of states, while remaining
formally hortatory.182 As the International Court said in Legality of the Threat or Use of
Nuclear Weapons:

General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris. To establish
whether this is (p. 183) true of a given General Assembly resolution, it is necessary
to look at its content and the conditions of its adoption; it is also necessary to see
whether an opinio juris exists as to its normative character. Or a series of
resolutions may show the gradua1 evolution of the opinio juris required for the
establishment of a new rule.183

(C)  Channels for expert opinion

Organizations often establish bodies of legal experts, the most important being the ILC,184
the central project of which is the codification and progressive development of international
law as a whole.185 Key areas of ILC influence include diplomatic and consular relations, the
law of the sea, the law of treaties, and the law of responsibility. Paradoxically perhaps, it
has been less successful in influencing the law of international organizations, emphasizing
the diversity and particularity of that field and the unwillingness of states to be subject to
indirect constraints or potential liabilities in their action through international
organizations.

(D)  The practice of political organs

Political organs, and particularly the General Assembly and the Security Council of the UN,
make numerous recommendations and decisions relating to specific issues which involve
the application of general international law or the provisions of the Charter and other
instruments. Such continued practice may have legal significance. However, as with state
practice, the content of the particular decision and the extent to which legal matters were
considered must be examined before legal weight is ascribed. Furthermore, to give legal
significance to an omission of an organ is problematic. Some jurists seem to treat the

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 decisions of political organs in terms of the arithmetic of voting, the decisions being taken
to represent the views of n states in the majority and their cogency being on a scale n
majority divided by n minority states. However, states cannot by their control of numbers of
international organizations raise the value of their state practice by reference to the
‘practice of organizations’.186
On occasion, a consistent interpretation by members of an organ based on a persistent
practice, for example in matters of voting, adopted by that organ will be opposable to all
members provided that there is substantial evidence of general acceptance by (p. 184)
members of the organization. This was the basis for the decision in Namibia as to the
meaning of Article 27(3) of the Charter.187
The International Court has adopted a more liberal view as to the value of the practice of
international organizations. In Nuclear Weapons in Armed Conflict, the Court indicated that
the practice of the organization is one of the ‘elements which may deserve special attention’
in the interpretation of constituent instruments.188 The Court went on to consider the
practice of the WHO in deciding whether the legality of nuclear weapons fell within its
competence as a specialized agency. In the Kosovo advisory opinion, the Court suggested
that the ‘silence of the Special Representative of the Secretary-General in the face of the
declaration of independence of 17 February 2008’ corroborated the conclusion that the
declaration had been made outside the framework established by the Security Council.189
This is more problematic: the silence of the Special Representative was more likely a result
of the neutrality policy adopted by the Secretariat than of a legal conviction concerning the
authorship of the declaration.

(E)  External practice of organizations

Organizations may make agreements with member and non-member states and with other
organizations, and may present international claims and make official pronouncements on
issues affecting them. Subject to what has been said about the need for care in evaluating
acts of political organs, the practice of organizations provides evidence of the law. In
addition, the behaviour of international organizations ‘in the field’ may influence the
discourse of international law, and thereby indirectly influence the formation of custom.

(F)  Internal law-making

Organizations have considerable autonomy in internal matters such as procedure and the
relations between the organization and its staff.190 Resolutions of organs of the UN on
questions of procedure create internal law for members. The UN has developed a code of
staff regulations governing the service of its officials, and in 1949 the General Assembly
established the United Nations Administrative Tribunal (UNAT) to adjudicate on
applications alleging non-observance of employment contracts of staff members of the
Secretariat.191 The United Nations Internal Justice System has been reformed, and the
UNAT has been replaced by a two-tiered system comprising a United Nations Dispute
Tribunal and a United Nations Appeals Tribunal.192 Other (p. 185) international
organizations also have staff tribunals which have collectively built up substantial
administrative jurisprudence.193

8.  Control of Acts of Organizations

(A)  Responsibility under general international law
There is no compulsory system for review of the acts of international organizations by
external bodies. In this situation, limited control is provided by general international law. As
noted, the correlative of legal personality and a capacity to present international claims is

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 responsibility.194 Moreover, when creating institutions states cannot always hide behind the
organization when its activities cause damage to third party interests.

(B)  Internal political and judicial control

The question of practical control turns on the powers of the executive and deliberative
organs and the constitutional limitations placed upon them.195 The division of competence
between organs and the limits to the powers of the organization as a whole may be carefully
drawn, and, as in the UN Charter, the obligations set out in the relevant instrument may be
expressed to apply to the organization itself and its organs.196 Interpretation of the
constituent treaty by the organ entrusted with the power in question is the general rule.
Under the Charter, however, reference to the International Court depends on the readiness
of political organs to request an advisory opinion and to comply with it once given. Thus, in
Namibia it was remarked that ‘[u]ndoubtedly, the Court does not possess powers of judicial
review or appeal in respect of the decisions taken by the United Nations organs concerned’.
However, the Court did in fact consider the validity of acts of organs ‘in the exercise of its
judicial function and since objections have been advanced’.197
Notwithstanding the self-determining jurisdiction of many organizations, some steps have
been taken towards greater accountability, as illustrated by the establishment of an
Inspection Panel within the World Bank in 1993 and of an Independent Evaluation Office
within the International Monetary Fund in 2001.198 But these bodies remain exceptional.199
(p. 186) Judicial organs may produce an impressive and consistent case law on points of
interpretation. However, the political organs may support constitutional developments
which are distinctly controversial. An early example was the use of the Uniting for Peace
Resolution to create the United Nations Emergency Force following the Suez crisis in
1956.200 A similar situation arose when the Security Council gave a mandate to the
Secretary-General to organize forces for operations in the Congo.201 The practice of the
Security Council in passing overtly ‘legislative’ resolutions responding to a general
phenomenon as a threat to peace under Article 39, rather than a specific, geographically
defined, situation is a more recent example.202
The fact is that individual states have no right of recourse and minority opinion can be
overridden.203 States in a minority may withdraw from the organization, acquiesce in what
they regard as unlawful operations, resist military forces acting under putative authority of
the organization, or simply disobey what they perceive to be a resolution ultra vires. As
Judge Morelli said in Certain Expenses:

In the case of acts of international organizations … there is nothing comparable to

the remedies existing in domestic law in connection with administrative acts. The
consequence of this is that there is no possibility of applying the concept of
voidability to the acts of the United Nations. If an act of an organ of the United
Nations had to be considered as an invalid act, such invalidity could constitute only
the absolute nullity of the act.204

States may also withhold financial contributions.205 This course was adopted in Certain
Expenses, and eventually the General Assembly requested an advisory opinion.206 Even at
this juncture, political control was prominent. The request was formulated in a manner
calculated to narrow the issue artificially to the interpretation of ‘expenses of the
Organization within the meaning of Article 17, paragraph 2, of the Charter of the United
Nations’. Moreover, the Court’s opinion was sought retrospectively, long after the actions
were authorized and enormous expenditure incurred.207 As a general matter, the problems

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 arising from the ultra vires acts of international organizations are far from being resolved.
They are certainly not susceptible to resolution through simplified formulations.208

(p. 187) 9.  Conclusion: The Rule of Law and International

Organizations
So far, one organization seems to escape from this pervasive sense of non-accountability.
Direct judicial control of the acts of organizations by a specially created organ is rare, but it
appears in a developed form in the Court of Justice of the European Union.209 The Court
has powers of review in respect of acts of organs of the European Union on grounds of
incompetence, violation of the relevant treaty or rules for its application, procedural
irregularity, and détournement de pouvoir. The Treaty on the Functioning of the European
Union also provides for a reference to a judicial organ of the question of compatibility with
the basic treaty of an agreement at the stage of negotiation.210
Out of this arose the decisions of the Court in the Kadi cases,211 brought in response to
Security Council Resolutions 1333 and 1373 of 2001 and successor resolutions212
compelling Members to freeze the assets of certain suspected terrorists and their listed
confederates as part of a targeted sanctions regime. The identity of those whose assets
were to be frozen was determined by a Security Council committee.213 As originally
composed, listed individuals were given no facility to contest the decisions made against
them or to challenge the measure before a court.214 The European Court, applying the
doctrine of equivalent protection formulated in Bosphorus v Ireland,215 recognized that
implementation of the sanctions required the positive action of the EU, which it was bound
to do in accordance with fundamental rights as provided by the ECHR. Although the
Charter required that the EU comply with Security Council directives, it did not require
transposition of these resolutions in a strict and predetermined fashion.216 It was open to
the Court to order that the resolutions be (p. 188) implemented in such a fashion as to
respect human rights—and particularly ECHR Article 6(1).217 A similar approach has been
adopted by the European Court of Human Rights, finding permissible flexibility in the
domestic transposition of Security Council directives and requiring implementation of
Security Council directives in a human rights-compliant manner.218 This interpretive
approach represents a useful mechanism by which international organizations may be held
to account,219 an area of weakness in current international law. Difficulties would arise,
however, if the Security Council directed Members to permit no flexibility in application.220
In such a situation, Article 103 requires the resolution to be implemented by Members to
the letter, irrespective of how the EU and ECtHR view the subject, and irrespective of the
absence of equivalent protection on the level of the Security Council. So the ultimate
question of compliance with authority at the international level turns out to be a question of
the law of international organizations!

Footnotes:
1
  Generally: Sands & Klein, Bowett’s Law of International Institutions (6th edn, 2009);
Lagrange & Sorel, Droit des organisations internationales (2013); Klabbers, An Introduction
to International Organizations Law (3rd edn, 2015); Cogan, Hurd, & Johnstone (eds), The
Oxford Handbook of International Organizations (2016). Also: Morgenstern, Legal Problems
of International Organizations (1986); Sarooshi, International Organizations and Their
Exercise of Sovereign Powers (2005); Klabbers & Wallendahl (eds), Research Handbook on
the Law of International Organizations (2011); Ruffert & Walter, Institutionalised
International Law (2015); Ryngaert et al (eds), Judicial Decisions on the Law of

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 International Organizations (2016); Higgins et al, Oppenheim’s International Law. United
Nations (2 vols, 2017).
2
  There is no definitive list of international organizations. The Yearbook of International
Organizations 2017–2018 states that in 2017 there were 273 ‘conventional’
intergovernmental organizations: Fig 2.1.
3
  A/CN.4/L.778, 30 May 2011.
4
  Bederman (1996) 36 Va JIL 275; Sands & Klein (6th edn, 2009) 474–6; Portmann, Legal
Personality in International Law (2010) ch 5.
5
  The Covenant did, however, provide for immunity of officials and representatives of the
League (Art 7(4)) and inviolability of League premises (Art 7(5)).
6
  Communications du Conseil Fédéral Suisse concernant le Régime des Immunités
Diplomatiques du Personnel de la Société des Nations et du Bureau International du
Travail, 18 September 1926, 7 LNOJ (1926) annex 911a, 1422. Further: Hill, Immunities
and Privileges of International Officials (1947) 14–23; Gautier (2000) 4 MPUNYB 331, 341–
2.
7
  Reparation for Injuries suffered in the Service of the United Nations, ICJ Reports 1949 p
174.
8
  SC Res 57 (1948).
9
  Article 104 of the Charter relates solely to legal capacity of the Organization in the
municipal law of member states: Ziegler in Simma et al (eds), 2 The Charter of the United
Nations (3rd edn, 2012) 2138.
10
  ICJ Reports 1949 p 174, 178–9.
11
  Ibid, 179.
12
  Further: Gazzini in Klabbers & Wallendahl (2011) 33, 34–6; Klabbers (3rd edn, 2015)
46–50; Higgins-Oppenheim (2017) ch 11.
13
  E.g. Sands & Klein (6th edn, 2009) 479–80.
14
  Amerasinghe (2nd edn, 2005) 79.
15
  E.g. Constitution of the United Nations Educational, Scientific and Cultural
Organization, 15 November 1945, 4 UNTS 275, Art XII; Constitution of the World Health
Organization (WHO), 22 July 1946, 14 UNTS 185, Art 66.
16
  E.g. UNCLOS, 10 December 1982, 1833 UNTS 3, Art 176 (International Seabed
Authority); Agreement Establishing the World Trade Organization (WTO), 15 April 1994,
1867 UNTS 154, Art VIII.1; ICC Statute, 17 July 1998, 2187 UNTS 3, Art 4(1).
17
  The main counter-example was the initial non-recognition of the EEC by the USSR:
Schermers & Blokker, International Institutional Law (5th edn, 2011) 1141, 1181–3, 1189–
90. It was not a success and did not inspire imitation.
18
  The theory was first developed by Seyersted, Objective International Personality of
Intergovernmental Organizations (1963); Seyersted (1964) 4 Indian JIL 53.
19
  ICJ Reports 1949 p 174, 178–9.
20
  Further: Jenks (1945) 22 BY 267; Weissberg, The International Status of the United
Nations (1961); Higgins-Oppenheim (2017) 385–90.
21
  On the Commonwealth of Nations: Fawcett, British Commonwealth in International Law
(1963); Steinorth, ‘Commonwealth’ (2017) MPEPIL.

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 22
  ICJ Reports 2012 p 10, 36.
23
  E.g. the International Joint Commission (US–Canada): Boundary Waters Treaty, 11
January 1909, USTS 548; MacKay (1928) 22 AJIL 292; Spencer, The International Joint
Commission Seventy Years On (1981); Reardon in Susskind et al (eds), International
Environmental Treaty Making (1992) 125; International Joint Commission, Annual Report
for 2008: Boundary Waters Treaty Centennial Edition (2008).
24
  In Pulp Mills on the River Uruguay, the ICJ affirmed that a river commission established
by Argentina and Uruguay had ‘a permanent existence of its own’ and was an ‘international
organization with legal personality’: ICJ Reports 2010 p 14, 52–3.
25
  Treaty on European Union, 7 February 1992, OJ C 191/1, Arts 4, 5. The EU is thus a
classic example of the compétences d’attribution, referred to by the Permanent Court in
European Commission of the Danube (1927) PCIJ Ser B No 14, 64. Also: Exchange of Greek
and Turkish Populations (1925) PCIJ Ser B No 10.
26
  The World Tourism Organization is unusual in having three tiers of membership: (1) full
members (states); (2) associate members (dependencies of states); and (3) affiliate
members (companies and NGOs): Gilmour (1971) 18 NILR 275. See also the Global Fund to
Fight Aids, Tuberculosis and Malaria: incorporated as a Swiss non-profit organization, its
voting board members include ‘seven representatives from developing countries[,] eight
representatives from donors [and] five representatives from civil society and the private
sector’ (Triponel (2009) 35 NCJILCR 173, 202).
27
  GA Res 2152(XXI), 17 November 1966, only later formalized by treaty: Constitution of
the United Nations Industrial Development Organization, 8 April 1979, 1401 UNTS 3, Art
21(1).
28
  ILC Report 2011, A/66/10, 76.
29
  ICJ Reports 1949 p 174, 185.
30
  Secretariat Study, ILC Ybk 1967/II, 154–324; El-Erian, ILC Ybk 1967/II, 133–53; ILC Ybk
1968/II, 119–62; ILC Ybk 1969/II, 1–21; ILC Ybk 1970/II, 1–24; ILC Ybk 1971/II(1), 1–142;
Privileges and Immunities of International Organizations, Res (69)29 of the Committee of
Ministers, Council of Europe (1970). Also: Jenks, International Immunities (1961); Gaillard
& Pingel-Lenuzza (2002) 51 ICLQ 1; Sands & Klein (6th edn, 2009) 489–516; Möldner,
‘International Organization or Institutions, Privileges or Immunities’ (2011) MPEPIL;
Reinisch in Klabbers & Wallendahl (2011) 132; Orakhelashvili (2014) 11 Int Org LR 114,
150–70; Blokker & Schrijver, Immunity of International Organizations (2015); Orzan in
Virzo and Ingravallo (eds), Evolutions in the Law of International Organizations (2015) 364;
Higgins-Oppenheim (2017) ch 16. Further: Reinisch (ed), The Privileges and Immunities of
International Organizations in Domestic Courts (2013).
31
  Sands & Klein (6th edn, 2009) 490.
32
  VCDR, 18 April 1961, 500 UNTS 95, Arts 8(2), 38(1).
33
  Sands & Klein (6th edn, 2009) 490–3; Ryngaert (2010) 7 Int Org LR 121; Irmscher in
Sarooshi (ed), Remedies and Responsibility for the Actions of International Organizations
(2014) 443, 450–4.
34
  Other constituent instruments may establish privileges and immunities in detail: e.g.
Articles of Agreement of the International Bank for Reconstruction and Development, 22
July 1944, 2 UNTS 134, Art VII (IBRD Articles); Convention on the Settlement of Investment
Disputes between States and Nationals of Other States, 18 March 1965, 575 UNTS 159,
Arts 18–24 (ICSID Convention).

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 35
  Further: Statute of the International Atomic Energy Agency, 26 October 1956, 276
UNTS 4, Art XV; Constitution of the International Labour Organization, 1 April 1919, 15
UNTS 40, Art 40; Agreement Establishing the World Trade Organization, 15 April 1994,
1867 UNTS 154, Art VIII.
36
  13 February 1946, 1 UNTS 15 (General Convention).
37
  21 November 1947, 33 UNTS 261. Also: General Agreement on Privileges and
Immunities of the Council of Europe, 2 September 1949, 1337 UNTS 420; Agreement on
Privileges and Immunities of the Organization of American States, 15 May 1949, 1438
UNTS 83; Agreement on the Privileges and Immunities of the International Criminal Court,
9 September 2002, 2271 UNTS 3. See: Reinisch & Bachmayer (eds), The Conventions on
the Privileges and Immunities of the United Nations and Its Specialized Agencies (2016).
38
  26 June 1947, 11 UNTS 11 (UN Headquarters Agreement). Also: Interim Agreement on
Privileges and Immunities of the United Nations concluded between the Secretary-General
of the United Nations and the Swiss Federal Council, 11 June 1946, 1 UNTS 164 (UN
Immunities Agreement); Headquarters Agreement between the International Criminal
Court and the Host State, 7 June 2007, ICC-BD/04–01–08; Sands & Klein (6th edn, 2009)
491.
39
  E.g. International Organisations Act 1968 (UK); International Organizations Immunity
Act 1945, 59 Stat 669 (US); International Organisations (Privileges and Immunities) Act
1963 (Cth) (Australia).
40
  Sands & Klein (6th edn, 2009) 492–3; Ryngaert (2010) 7 Int Org LR 121, 123–32; Wood
in Blokker & Schrijver (2015) 29.
41
  Generally: Iran–US Claims Tribunal v AS (1985) 94 ILR 321; Eckhardt v Eurocontrol (No
2) (1984) 94 ILR 331.
42
  All examples given by the Reporter are of universal organizations: 1 Restatement Third
§467(i).
43
  ZM v Permanent Delegation of the League of Arab States to the United Nations (1993)
116 ILR 643.
44
  Sands & Klein (6th edn, 2009) 493.
45
  Higgins (1994) 91; Reinisch, International Organizations before National Courts (2000)
145–57.
46
  Standard Chartered Bank v International Tin Council [1987] 1 WLR 641, 648.
47
  Higgins (1994) 91.
48
  Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities
of the United Nations, ICJ Reports 1989 p 177, 192–6.
49
  E.g. Sands & Klein (6th edn, 2009) 493. Also: Amaratunga v Northwest Atlantic
Fisheries Organization [2013] 3 SCR 866, para 29.
50
  Bank Bumiputra Bhd v International Tin Council (1987) 80 ILR 24. Also: International
Tin Council v Amalgamet Inc, 524 NYS (2d) 971 (1988) (international organization party to
an arbitration clause held to have impliedly waived immunity).
51
  ZM v Permanent Delegation of the League of Arab States to the United Nations (1993)
116 ILR 643.
52
  Higgins (1994) 92. Also: Weidner v International Telecommunications Satellite
Organization, 382 A2d 508 (DC, 1978).

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 53
  Sands & Klein (6th edn, 2009) 493; cf Reinisch (2000) 146.
54
  Alternatively, they may be incorporated by reference: e.g. WTO Agreement, Art VIII.4.
55
  E.g. African Reinsurance Corp v Abate Fantaye (1991) 86 ILR 655, 691. This approach is
no longer generally accepted: Reinisch (2000) 363–4. Note that some states by legislation
extend absolute immunity to international organizations: e.g. International Organizations
Immunities Act, 22 USC §288a(b) (providing that designated organizations ‘enjoy the same
immunity from suit and every form of judicial process as is enjoyed by foreign
governments’).
56
  Klabbers (3rd edn, 2015) 130–6. Further: Ryngaert (2010) 7 Int Org LR 121; Reinisch
(2013) 8–9.
57
  E.g. Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER 116
(inviolability of official archives waived by communication of documents by member states
to third parties); cf (regarding the relevance of inviolability for admissibility in judicial
proceedings): R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No
3) (2014) 162 ILR 348, 440–3.
58
  Sands & Klein (6th edn, 2009) 493ff.
59
  Ibid, 499–500. On the distinction between immunity from jurisdiction and execution:
Ryngaert (2010) 7 Int Org LR 121, 144–6.
60
  Further: Council of Europe Immunities Agreement, Art 3; ICSID Convention, Art 20; ICC
Immunities Agreement, Art 6. A constituent instrument may also narrow the scope of the
immunity: e.g. IBRD Articles, Art VII(3). Also: Sands & Klein (6th edn, 2009) 495.
61
  E.g. the practice of the Italian courts: Branno v Ministry of War (1954) 22 ILR 756;
Indpai v Food and Agriculture Organization (1982) 87 ILR 5; Drago v International Plant
Genetic Resources Institute (2007) ILDC 827. For the US approach: Young (2012) 44 Geo
JIL 311. For rejection of this approach in the UK (obiter): Assuranceforeningen Gard
Gjensidig v International Oil Pollution Compensation Fund [2014] EWHC 3369 (Comm),
[127].
62
  Reinisch (2008) 7 Chin JIL 285; Sands & Klein (6th edn, 2009) 497–9. Generally: Pavoni
in de Wet & Vidmar (eds), Hierarchy in International Law (2012) 71, 71–4, 78–82, 98–111;
Council of Europe, Accountability of International Organisations for Human Rights
Violations (2013) 9–13, 22; Freedman (2014) 25 EJIL 239; Irmscher in Sarooshi (2014) 443,
457–91; Gallo in Virzo and Ingravallo (eds), Evolutions in the Law of International
Organizations (2015) 509.
63
  (1999) 118 ILR 121.
64
  [1999] ECtHR 28934/95.
65
  4 November 1950, 213 UNTS 222.
66
  (1999) 118 ILR 121, 136. See also Chapman v Belgium [2013] ECtHR 39619/06, [54]–
[56]; Klausecker v Germany [2015] ECtHR 415/07, [65]–[76]. Similarly: Vakbondsunie van
het Europees Octrooibureau & SUEPO v EPO, Court of Appeal in The Hague, Case No
200.141.812/01, 17 February 2015, paras 3.2–3.10. The judgment and the executive’s
instruction not to enforce the decision are discussed in: Ryngaert & Pennings (2015)
Nederlands Juristenblad 859. Cf Stichting Mothers of Srebrenica and others v Netherlands
(2013) 160 ILR 573, 615–21, 624 (European Court of Human Rights) (‘It does not follow,
however, that in the absence of an alternative remedy the recognition of immunity is ipso
facto … a violation of the right of access to a court’). See further Reinisch in Cogan, Hurd,
& Johnstone (eds), The Oxford Handbook of International Organizations (2016) ch 49. US
courts have not, however, applied Waite & Kennedy-style reasoning to the UN: Georges v

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 United Nations, 834 F3d 88 (2d Cir, 2016) (claim that UN peacekeepers caused a cholera
epidemic while serving in Haiti).
67
  Sands & Klein (6th edn, 2009) 500–2. Also: e.g. Council of Europe Immunities
Agreement, Arts 4–5; ICSID Convention, Art 23(1); ICC Immunities Agreement, Arts 4, 7.
68
  UN Office for the Coordination of Humanitarian Affairs, ‘Field Update on Gaza from the
Humanitarian Coordinator. 30 January–2 February 2009’.
69
  Sands & Klein (6th edn, 2009) 502–3.
70
  Further: Council of Europe Immunities Agreement, Arts 6, 7; ICSID Convention, Art 24;
ICC Immunities Agreement, Arts 6, 8–10.
71
  For the regime of trust funds held by organizations: Bantekas (2010) 81 BY 224.
72
  Sands & Klein (6th edn, 2009) 503.
73
  Also: e.g. Council of Europe Immunity Agreement, Art 8; ICC Immunity Agreement, Art
11.
74
  Sands & Klein (6th edn, 2009) 508–16.
75
  Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, 16 January 2002, appended to Report of
the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/
2000/915, 4 October 2000 (SCSL Agreement).
76
  ICC Immunities Agreement, Art 18; SCSL Agreement, Art 14.
77
  ICC Immunities Agreement, Art 19; SCSL Agreement, Art 15.
78
  ICC Immunities Agreement; Art 20; SCSL Agreement, Art 15 (to the extent that victims
can be considered witnesses).
79
  Sands & Klein (6th edn, 2009) 508.
80
  Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission of Human Rights, ICJ Reports 1999 p 62, 87.
81
  ICJ Statute, Art 19.
82
  E.g. ICC Immunities Agreement, Art 15. Further: Zoernsch v Waldock [1964] 2 All ER
256.
83
  Sands & Klein (6th edn, 2009) 504–7.
84
  Cf UN Headquarters Agreement, Art V, s15 granting full diplomatic immunity to state
representatives attending the UN in the US: US v Devyani Khobragade, US Digest (2014)
426, 427. Also: Estrada v Al-Juffali [2016] EWCA Civ 176, [51]–[55].
85
  Further: Council of Europe Immunities Agreement, Arts 9–10 (representatives to the
Committee of Ministers) 13–15 (representatives to the Consultative Assembly); ICC
Immunities Agreement, Arts 13–14 (representatives to the Assembly of States and ICC
subsidiary organs).
86
  E.g. ICC Immunities Agreement, Art 13(1)(b); General Convention, Art III, s11. Also: UN
Immunities Agreement, Art IV, s9(a).
87
  14 March 1975, A/CONF.67/16 (34 state parties, 35 needed for entry into force). For a
recent view that the Convention reflects customary international law: Estrada v Al-Juffali
[2016] EWCA Civ 176, [52], [55].
88
  Fennessy (1976) 70 AJIL 62.

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 89
  Chiu, The Capacity of International Organizations to Conclude Treaties (1966); Zemanek
(ed), Agreements of International Organizations and the Vienna Convention on the Law of
Treaties (1971). Also: Draft Articles on Treaties Concluded between States and
International Organizations or between International Organizations, ILC Ybk 1982/II(2), 17
(Reuter, Special Rapporteur). Further: Brölmann, The Institutional Veil in Public
International Law (2007); Brölmann in Klabbers & Wallendahl (2011) 285; Corten & Klein
(eds), The Vienna Conventions on the Law of Treaties (2011) 117–24; Elias in Hollis (ed),
The Oxford Guide to Treaties (2012) 73; Cremona, ibid, 93.
90
  E.g. South West Africa (Preliminary Objections), ICJ Reports 1962 p 319, 495–503
(Judges Fitzmaurice and Spender) (treaty-making capacity of League of Nations). Cf the
majority: ibid, 330–2.
91
  Reparation for Injuries, ICJ Reports 1949 p 174, 178–9. Also: Amerasinghe (2nd edn,
2005) 101–3; Sands & Klein (6th edn, 2009) 483.
92
  A/CONF.129/15. Further: Gaja (1987) 58 BY 253.
93
  22 May 1969, 1155 UNTS 331.
94
  E.g. Art 63 of the Charter, conferring power to conclude relationship agreements with
specialized agencies on the UN Economic and Social Council (ECOSOC).
95
  E.g. Opinion 2/94, Accession by the Community to the European Convention for the
Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759.
96
  Sands & Klein (6th edn, 2009) 486.
97
  Art 46(2) of the 1986 Convention.
98
  On mixed agreements of the EU: Hillion & Kautrakos (eds), Mixed Agreements Revisited
(2010); Koutrakos, EU International Relations Law (2015) ch 5; Craig & de Búrca, EU Law
(2015) 352–3, 372–4.
99
  Sands & Klein (6th edn, 2009) 483. Some early commentators thought that such powers
needed to be conferred expressly: e.g. Kelsen, Law of the United Nations (1950) 330;
Lukashuk (1960) Soviet YIL 144.
100
  Sands & Klein (6th edn, 2009) 484.
101
  ICJ Reports 1949 p 174, 184–5, 187.
102
  Ibid, 180. Cf Schermers & Blokker (5th edn, 2011) 1190–1.
103
  ICJ Reports 1949 p 174, 181–4. Further: El-Erian, ILC Ybk 1963/II, 159, 181–3; Hardy
(1961) 37 BY 516; Hardy, ILC Ybk 1967/II, 218–19; Carabot & Ubeda-Saillard in Crawford,
Pellet, & Olleson (eds), The Law of International Responsibility (2010) 1073.
104
  ICJ Reports 1949 p 174, 189 (Judge Winiarski, diss), 196 (Judge Hackworth, diss), 205
(Judge Badawi, diss), 217 (Judge Krylov, diss).
105
  Carabot & Ubeda-Saillard (2010) 1073, 1083.
106
  E.g. the Alicja Wesolowska case, where a Polish national in the employ of the UN was
arrested and imprisoned by Polish authorities in 1979. The UN’s claim and attempts to
obtain a right of visit failed: ibid, 1082–3.
107
  ICJ Reports 1949 p 174, 186.
108
  Ibid, 185–6; Carabot & Ubeda-Saillard (2010) 1073, 1081–2.
109
  Schermers & Blokker (5th edn, 2011) 1193.

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 110
  Though Art 34(3) of the Statute obliges the Court to update international organizations
on cases concerning their constituent instruments. Also: Jenks, The Prospects of
International Adjudication (1964) 185–224; Schermers & Blokker (5th edn, 2011) 1193.
111
  E.g. UNESCO–France, Question of the tax regime governing pensions paid to retired
UNESCO officials residing in France (2003) 25 RIAA 231.
112
  Reinisch (2000) 44–5.
113
  Eagleton (1950) 76 Hague Recueil 318; Hirsch, The Responsibility of International
Organizations toward Third Parties (1995); Sands & Klein (6th edn, 2009) 516–30; Klein in
Cogan, Hurd, & Johnstone (2016) ch 48. Cf further the Report of Higgins (1995) 66 Ann de
l’Inst 249; and the resolution adopted in 1995 (1995) 66 Ann de l’Inst 445; ILA, Report of
the 71st Conference (2004) 164–241; ILA, Study Group on the Responsibility of
International Organizations (2012); Ragazzi (ed), Responsibility of International
Organizations: Essays in Memory of Sir Ian Brownlie (2013); Sarooshi (2014). On the EU:
Evans & Koutrakos (eds), The International Responsibility of the European Union (2013);
Paasivirta (2015) 12 Int Org LR 448; Kuijper (2013) 46 RBDI 57; d’Aspremont in Kosta,
Skoutaris, & Tzevelekos (eds), The EU Accession to the ECHR (2014) 75. On the UN:
Verdirame, The UN and Human Rights (2011) ch 3; Gowlland-Debbas (2012) 353 Hague
Recueil 185, 357–84; Higgins-Oppenheim (2017) ch 13.
114
  Schermers & Blokker (5th edn, 2011) 1192–3.
115
  E.g. Convention on International Liability for Damage Caused by Space Objects, 29
March 1972, 961 UNTS 187, Art XXII(3).
116
  On which: Blokker in Klabbers & Wallendahl (2011) 313; Ahlborn (2011) 8 Int Org LR
397; A/CN.4/650/Add.1, 20 January 2012, 5–7; Wouters & Odermatt (2012) 9 Int Org LR 7;
d’Aspremont, ibid, 15; Amerasinghe, ibid, 29; Nedeski & Nollkaemper, ibid, 33; Ahlborn,
ibid, 53; Möldner (2012) 16 MPUNYB 281; Voulgaris (2014) 11 Int Org LR 5; Orakhelashvili,
ibid, 114, 118–50. On human rights specifically: Bogdandy & Platise (2012) 9 Int Org LR 67.
117
  International Tin Council Appeals [1988] 3 All ER 257.
118
  Ibid, 307. Ralph Gibson LJ, expressed a similar view: ibid, 341–56. But Nourse LJ
proposed a residual liability of the member states for debts not discharged by the ITC itself:
ibid, 326–34.
119
  [1989] 3 WLR 969, 983–4 (Lord Templeman); 1010–12 (Lord Oliver). For the concurring
view of the International Tribunal for the Law of the Sea (ITLOS): Request for an Advisory
Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS Case No 21 (Advisory
Opinion, 2 April 2015), paras 170–3.
120
  Waite and Kennedy v Germany (1999) 118 ILR 121, 135. Also: Draft Articles on the
Responsibility of International Organizations, Art 61. Further: Brownlie in Ragazzi (ed),
Essays in Memory of Oscar Schachter (2005) 355; Yee, ibid, 435.
121
  For the UN’s comments on the Draft Articles: A/CN.4/637/Add, 17 February 2011, 30.
122
  Sari (2012) 9 Int Org LR 77; Boutin (2012) 25 LJIL 521; Salerno in Ragazzi (2013) 405,
esp 419–27. Generally: Klein in Crawford, Pellet, & Olleson (2010) 297, 305–6; Gowlland-
Debbas (2012) 353 Hague Recueil 185, 373–4, 400–6; Crawford, State Responsibility (2013)
346–54; Messineo in Nollkaemper & Plakokefalos (eds), Principles of Shared Responsibility
in International Law (2014) 60, 88–97; Boon (2014) 15 Melb JIL 330, 353–63; Orakhelashvili
(2014) 11 Int Org LR 114, 120–3; Dannenbaum (2015) 12 Int Org LR 401.

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 123
  Gowlland-Debbas (2012) 353 Hague Recueil 185, 381–4; Crawford (2013) 395–434;
Orakhelashvili (2014) 11 Int Org LR 114, 135–50; Couzigou (2014) 61 NILR 335, 355–60.
Fry in Nollkaemper & Plakokefalos (2014) 98, 113–27. On the responsibility of member
states for conduct during the decision-making of an international organization: Murray
(2011) 8 Int Org LR 291; Council of Europe, Accountability of International Organisations
for Human Rights Violations (2013) 19–20, 22–3; Barros & Ryngaert (2014) 11 Int Org LR
53. On potentially relevant procedural issues: Nollkaemper (2013) 4 JIDS 277, 286–91;
Paparinskis, ibid, 295 (ICJ); Baetens, ibid, 319 (arbitral proceedings); Bartels, ibid, 343
(WTO); Heijer, ibid, 361 (ECHR); Plakokefalos, ibid, 385 (UNCLOS).
124
  UN Ybk 1965, 138; ILC Ybk 1967/II, 216–20.
125
  29 March 1972, 961 UNTS 187.
126
  Lauterpacht, Development (1958) 267–81; Schermers & Blokker (5th edn, 2011) 155–
89; Smith & Klein (6th edn, 2009) 448–61; Blokker, ‘International Organizations or
Institutions, Implied Powers’ (2009) MPEPIL.
127
  Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996
p 66, 78. Also: Competence of the ILO to Regulate Incidentally the Personal Work of the
Employer (1926) PCIJ Ser B No 13, 18; European Commission of the Danube (1927) PCIJ
Ser B No 14, 64; Reparation for Injuries, ICJ Reports 1949 p 174, 182–3; Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954 p 47,
57.
128
  For a useful summary of a wide range of organizations and their approach to
interpretation: Sands & Klein (6th edn, 2009) 451–4.
129
  Certain Expenses, ICJ Reports 1962 p 151, 168.
130
  UN Charter, Art 96(1) (General Assembly, Security Council), (2) (other authorized
organs and specialized agencies). On advisory jurisdiction: chapter 32.
131
  A specialized agency can only request advisory opinions if (1) it is so provided in its
constitution, or (2) it is the subject of separate agreement with the UN: e.g. WHO
Constitution, Art 76; Convention on the International Maritime Organization, 6 March 1948,
289 UNTS 3, Art 66. Further: (3) a specialized agency ‘is not empowered to seek an opinion
on the interpretation of its Constitution in relation to matters outside the scope of its
functions’: Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66, 82. Cf Akande
(1998) 9 EJIL 437, 452–7 (arguing that an agency is always entitled to seek an
interpretation of its constituent instrument). In fact, of 26 requests for an advisory opinion
since 1945, only five were made by specialized agencies: Judgments of the Administrative
Tribunal of the ILO upon Complaints made against UNESCO, ICJ Reports 1956 p 77
(UNESCO); Constitution of the IMCO Maritime Safety Committee, ICJ Reports 1960 p 150
(IMO); Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ
Reports 1980 p 73 (WHO); Nuclear Weapons in Armed Conflict, ICJ Reports 66 (WHO);
Judgment No 2867 of the ILO Administrative Tribunal, ICJ Reports 2012 p 10.
132
  E.g. General Convention, Art VIII, s30.
133
  ICJ Reports 1962 p 151, 168; 204, 208 (Judge Fitzmaurice); 223 (Judge Morelli); 298
(Judge Bustamante, diss).
134
  Gross (1963) 16 Int Org 1; Simmonds (1964) 13 ICLQ 854; Verzijl (1963) 10 NILR 1.
135
  The US invoked Art 19 of the Charter in consequence of the Opinion and for a whole
session no voting took place in the General Assembly: (1965) 4 ILM 1000.

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 136
  Notably the international financial organizations may refer such questions to the
Executive Board, Board of Directors, Board of Governors, etc: e.g. IBRD Articles, Art IX(a);
IMF Articles of Agreement, 22 July 1944, 2 UNTS 35, Art XXIX(a) (IMF Articles); Agreement
Establishing the Asian Development Bank, 4 December 1965, 571 UNTS 123, Art 59.
137
  E.g. Constitution of the Universal Postal Union, 10 July 1964, 611 UNTS 7, Art 32. The
Universal Postal Union (UPU) has not been authorized by the GA to seek an interpretation
of its constitution: Sands & Klein (6th edn, 2009) 453.
138
  E.g. Westland Helicopters v Arab Organization for Industrialization (1989) 80 ILR 595.
139
  Prosecutor v Tadić, Jurisdiction (1995) 105 ILR 419 (Appeals Chamber).
140
  Schermers & Blokker (5th edn, 2011) 841–8; Sands & Klein (6th edn, 2009) 454–6; ILC
Report 2015, A/70/10, 89–103.
141
  Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66, 74–5 (emphasis added).
Also: Certain Expenses, ICJ Reports 1962 p 151, 157.
142
  ICJ Reports 1949 p 174, 180.
143
  Effect of Awards, ICJ Reports 1954 p 47, 56–7. Also: E Lauterpacht (1976) 52 Hague
Recueil 377, 420.
144
  ICJ Reports 1996 p 66, 75.
145
  Schermers & Blokker (5th edn, 2011) 844; Brölmann in Hollis (2012) 507, 515–16;
Whaling in the Antarctic (Australia v Japan: New Zealand Intervening), ICJ Reports 2014 p
226, 248, 257; cf Gardiner, Treaty Interpretation (2015) 280–5. Further: Ahlborn (2011) 8
Int Org LR 397, 407–18, 425–33; Arato (2013) 38 Yale JIL 289, 316–32; Nolte in Nolte (ed),
Treaties and Subsequent Practice (2013) 169, 203–4.
146
  Schermers & Blokker (5th edn, 2011) 843.
147
  Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports
1971 p 16, 22.
148
  ICJ Reports 1949 p 174, 182. A substantial contribution has also been made by the
CJEU: Blokker, ‘International Organizations or Institutions, Implied Powers’ (2009) MPEPIL
, §C. E.g. Opinion 1/76, Draft Agreement Establishing a European Laying-up Fund for Inland
Waterway Vessels [1977] ECR 741; Opinion 2/91, Convention No 170 of the International
Labour Organization concerning Safety in the Use of Chemicals at Work [1993] ECR I-1061;
Opinion 1/94, Competence of the Community to Conclude International Agreements
concerning Services and the Protection of Intellectual Property—Article 228(6) of the EC
Treaty [1994] ECR I-5267. Further: Konstadinides (2014) 39 ELR 511.
149
  ICJ Reports 1996 p 66, 79. For comment: E Lauterpacht in Boisson de Chazournes &
Sands (eds), International Law, the International Court of Justice and Nuclear Weapons
(1999) 92; Bothe, ibid, 103; Leary, ibid, 112.
150
  Blokker, ‘International Organizations or Institutions, Implied Powers’ (2009) MPEPIL,
§D.
151
  E.g. GA Res 377(V), 3 November 1950. Further: Binder, ‘Uniting for Peace Resolution
(1950)’ (2017) MPEPIL.
152
  E.g. the International Telecommunication Union (ITU), WHO, Inter-Governmental
Maritime Consultative Organization (IMCO), UNESCO, and the UN Food and Agriculture
Organization (FAO).

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 153
  White in Klabbers & Wallendahl (2011) 225.
154
  Covenant, Art 4(6), 5(1), but cf Arts 5(2) (matters of procedure), 15(6), (7) (parties to a
dispute unable to prevent adoption of a Council report on the dispute). Also: Voting
Procedure, ICJ Reports 1955 p 67, 98–103 (Judge Lauterpacht).
155
  Under the Dispute Settlement Body of the WTO (Dispute Settlement Understanding
(DSU), Arts 6.1, 16.4, 17.14, and 22.6) a rule of ‘reverse consensus’ has been adopted; all
WTO Members must agree that a decision of a panel or the Appellate Body not be adopted
in order to prevent implementation: Matsushita, Schoenbaum, & Mavroidis, The World
Trade Organization (3rd edn, 2015) 86. Further: chapter 32.
156
  Sands & Klein (6th edn, 2009) 268–81.
157
  UN Charter, Art 27(2). Whether a matter is procedural is not considered a procedural
question, and the veto applies.
158
  Schermers & Blokker (5th edn, 2011) 1210–11; Klabbers (3rd edn, 2015) 218–21.
159
  Tzanakopoulos, Disobeying the Security Council (2010).
160
  Cf also its progenitor, Art 15(8) of the League Covenant. Further: Charter of the
Organization of American States (OAS), 30 April 1948, 119 UNTS 3, Art 1; cf Caminos &
Lavalle (1989) 83 AJIL 395.
161
  Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 24.
162
  Nolte in 1 Simma (3rd edn, 2012) 280, 292. Further: Conforti & Focarelli, Law and
Practice of the United Nations (4th edn, 2010) 157–8.
163
  Schermers & Blokker (5th edn, 2011) 163; Nolte in 1 Simma (3rd edn, 2012) 280, 294;
cf Alvarez (2005) 156–83, on the shrinking concept of domestic jurisdiction. Also: chapter
20.
164
  Generally: Hawkins et al (eds), Delegation and Agency in International Organizations
(2006); Couzigou (2014) 61 NILR 335, 340–51.
165
  On territorial administration by international organizations: Knoll, The Legal Status of
Territories Subject to Administration by International Organizations (2008); Wilde,
International Territorial Administration (2008); Stahn, The Law and Practice of
International Territorial Administration (2008) ch 9.
166
  On the law applicable to the relations between international organizations and private
persons: Seyersted (1967) 122 Hague Recueil 427; Valticos (1977) Ann de l’Inst 1.
167
  Sands & Klein (6th edn, 2009) 466; cf Klabbers (3rd edn, 2015) 252–5.
168
  E.g. Headquarters Agreement between the Organization of American States and the
United States, 14 March 1992, US Treaty Doc 102–40, Art VIII(1).
169
  Sands & Klein (6th edn, 2009) 470.
170
  For the view that the provision does not bind non-members: Bindschedler (1963) 108
Hague Recueil 307, 404–6; Talmon in 1 Simma (3rd edn, 2012) 252, 261–2. For the opposite
view: Kelsen (1950) 85–6, 106–10.
171
  O’Connell (1963) 67 RGDIP 6, 26–9, 34; Skubiszewski (1972) 2 Pol YIL 80; Schreuer
(1978) 27 ICLQ 1; Reinisch (2000).
172
  25 March 1957, OJ C 83/47.

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 173
  Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114, 161 (Lord Templeman);
Westland Helicopters Ltd v AOI [1995] 2 WLR 126, 140–1 (Colman J). Also: Marston (1991)
40 ICLQ 403.
174
  Skubiszewski (1965–6) 41 BY 198; Sloan (1987) 58 BY 39; Higgins, Development
(1963); Buergenthal, Law-Making in the International Civil Aviation Organization (1969);
Vignes in Macdonald & Johnston (eds), The Structure and Process of International Law
(1983) 809–53; Schwebel, The Legal Effect of Resolutions and Codes of Conduct of the
United Nations (1986); Alvarez (2005); Johnstone (2008) 40 G Wash ILR 87; Wouters & De
Man in Klabbers & Wallendahl (2011) 190; Arsanjani (2013) 362 Hague Recueil 9; Klabbers
(3rd edn, 2015) 163–8; Wessel in Brölmann & Radi (eds), Research Handbook on the Theory
and Practice of International Law-Making (2016) 179; Alvarez, The Impact of International
Organizations on International Law (2017).
175
  Higgins (1963) 2. Further: Higgins (1994) 23; Higgins-Oppenheim (2017) ch 12.
176
  See the Draft Conclusions on Identification of Customary International Law, Conclusion
12 & commentary: Report of the ILC, A/71/10 (2016) ch V, 106–9.
177
  GA Res 95(I), 11 December 1946.
178
  Thus GA resolutions are recommendations creating prima facie no legal obligation. Cf,
however, Voting Procedure, ICJ Reports 1955 p 57, 118–19, 122 (Judge Lauterpacht); and
Digest of US Practice (1975) 85. Generally: Amerasinghe (2nd edn, 2005) ch 6.
179
  Higgins (1994) 25–8.
180
  GA Res 1514(XV), 14 December 1960.
181
  GA Res 2625(XXV), 24 October 1970.
182
  Cf the declaration of principles governing activities in outer space: GA Res 1962(XVII),
13 December 1963.
183
  Nuclear Weapons, ICJ Reports 1996 p 226, 254–5. Also: South West Africa, ICJ Reports
1966 p 248, 291 (Judge Tanaka, diss); North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ Reports 1969 p 3, 177
(Judge Tanaka, diss).
184
  ILC Statute, 21 November 1947, GA Res 174(II), 21 November 1947. Generally: United
Nations, The Work of the International Law Commission (8th edn, 2012); Watts, Pronto, &
Wood, 1–4 The International Law Commission, 1949–1998 and 1999–2009 (1999, 2010).
185
  Further: UN Charter, Art 13(1)(a); Watts, ‘Codification and Progressive Development of
International Law’ (2006) MPEPIL; Fleischhauer & Simma in 1 Simma (3rd edn, 2012) 525;
Rao, ‘International Law Commission (ILC)’ (2017) MPEPIL. Other UN expert bodies include
the Commission on International Trade Law (UNCITRAL), and the International Institute for
the Unification of Private Law (UNIDROIT).
186
  For views on the reliability of subsequent practice of organs in interpretation of the
Charter: Certain Expenses, ICJ Reports 1962 p 151, 187 (Judge Spender), 210 (Judge
Fitzmaurice).
187
  ICJ Reports 1971 p 16, 22.
188
  Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66, 75.
189
  Accordance with International Law of the Unilateral Declaration of Independence in
respect of Kosovo, ICJ Reports 2010 p 403, 447–8.

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 190
  Schermers & Blokker (5th rev edn, 2011) ch 8; Sands & Klein (6th edn, 2009) ch 14;
Amerasinghe (2nd edn, 2005) ch 9.
191
  Generally: Amerasinghe, The Law of the International Civil Service (1988); Effect of
Awards, ICJ Reports 1954 p 47.
192
  GA Res 61/261, 4 April 2007. See Megzari, The Internal Justice of the United Nations
(2015) 431–2.
193
  Riddell, ‘Administrative Boards, Commissions and Tribunals in International
Organizations’ (2010) MPEPIL; Amerasinghe (2nd edn, 2005) ch 9.
194
  Generally: Klein, La Responsabilité des Organisations internationales (1998); Wellens,
Remedies against International Organisations (2002); Gowlland-Debbas (2012) 353 Hague
Recueil 185, 411–22; Sarooshi (2014).
195
  Generally: Bindschedler (1963) 108 Hague Recueil 307, 312–418; Gowlland-Debbas
(2012) 353 Hague Recueil 185, 355–7, 384–92; Crawford, Chance, Order, Change (2014) ch
13; Uriarte in Sarooshi (2014) 321, 331–45.
196
  UN Charter, Arts 2, 24(2), 55.
197
  ICJ Reports 1971 p 16, 45.
198
  On the prospects of current non-judicial accountability mechanisms: de Wet (2008) 9
GLJ 1987. On the World Bank Inspection Panel: Shihata, The World Bank Inspection Panel
(2nd edn, 2000); Gualtieri (2002) 72 BY 213; Orakhelashvili (2005) 2 Int Org LR 57.
199
  De Wet (2008) 9 GLJ 1987, 2010.
200
  GA Res 998(ES-1), 4 November 1956; GA Res 1000(ES-1), 5 November 1956.
201
  SC Res 143 (1960).
202
  SC Res 1373 (2001); SC Res 1540 (2004). Further: Talmon (2005) 99 AJIL 175; Bianchi
(2007) 17 EJIL 881; Hinojosa-Martinez (2009) 57 ICLQ 333; Crawford (2014), 424–8.
203
  Generally: Akande (1997) 46 ICLQ 309; Alvarez (1996) 90 AJIL 1; de Wet (2000) 47
NILR 181.
204
  ICJ Reports 1962 p 151, 222.
205
  See Verdirame (2011) 338–41.
206
  Ibid, 203–4 (Judge Fitzmaurice), 232 (Judge Winiarski, diss), 304–5 (Judge Bustamante,
diss).
207
  Ibid, 237 (Judge Basdevant).
208
  Generally: E Lauterpacht in Cambridge Essays in International Law (1965) 88;
Cannizzaro & Palchetti in Klabbers & Wallendahl (2011) 365, esp 375–92; Gowlland-Debbas
(2012) 353 Hague Recueil 185, 415–17; Crawford (2014) 435–8.
209
  E.g. Hilpold (2009) 13 MPUNYB 141; Reinisch (ed), Challenging Acts of International
Organizations before National Courts (2010); Rosas in Evans & Koutrakos (2013) 139;
Bobek in Arnull & Chalmers (eds), The Oxford Handbook of European Union Law (2015)
153; Arnull, ibid, 376.
210
  TFEU, Art 218(11).
211
  Joined Cases C-402/05 P and C-415/05 P Kadi & Al Barakaat International Foundation v
Council & Commission [2008] ECR I-6351. Further: the Opinion of Advocate-General
Poiares Maduro and at first instance Case T-315/01 Kadi v Council and Commission [2005]
ECR II-3649; Case T-306/01 Yusef & Al Barakaat International Foundation v Council and
Commission [2005] ECR II-3533. Also: Kokott & Sobotta (2012) 23 EJIL 1015; de Wet (2013)
12 Chin JIL 787; Wimmer (2014) 21 Maastricht J EU & Comp L 676; Shirlow (2014) 15 Melb

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 JIL 534; Smith in Geiger, Research Handbook on Human Rights and Intellectual Property
(2015) 60–1; Korenica, The EU Accession to the ECHR (2015) 78–82; Cameron in
Mitsilegas, Bergström, & Konstadinides, Research Handbook on EU Criminal Law (2016)
551–5.
212
  SC Res 1390 (2002); SC Res 1344 (1003); SC Res 1526 (2004); SC Res 1617 (2005); SC
Res 1735 (2006); SC Res 1822 (2008).
213
  The Al Qaeda/Taliban Sanctions Committee: SC Res 1267 (1999).
214
  Cf SC Res 1822 (2008). Further: Almqvist (2008) 57 ICLQ 303.
215
  [2005] ECtHR 45036/98. On the application of the doctrine in this context: Verdirame
(2011) 359–86; Tzanakopoulos in Avbelj, Fontanelli, & Martinico (eds), Kadi on Trial (2014)
121.
216
  [2008] ECR I-6351, [298]. More controversially, the Court also built a second line of
defence based on the principle that UN law cannot prevail over EC primary law, of which
fundamental rights form a part: [304]–[308]. Art 103 of the Charter is conspicuous by its
absence from the Court’s reasoning: Hilpold in Reinisch (2010) 18, 34–5. These findings
were nevertheless affirmed in subsequent proceedings: Joined Cases C-584/10 P, C-593/10
P, and C-595/10 P Commission and others v Kadi, ECLI:EU:C:2014:518, [664].
217
  [2008] ECR I-6351, [334], [348]ff. Later, the Court clarified the standard of review it
would apply in determining the compliance of EU measures transposing SC directives with
human rights, as well as what would amount to equivalent protection: Commission and
others v Kadi (2013), [118]–[119], [134].
218
  Nada v Switzerland [2012] ECtHR 10593/98, [172], [176], [180]; Al-Dulimi v
Switzerland [2016] ECtHR 5809/08, [145]–[146].
219
  See e.g. Gowlland-Debbas (2012) 353 Hague Recueil 185, 392–400; Kanetake (2012) 9
Int Org LR 267; Sarvarian in Avbelj, Fontanelli, & Martinico (2014) 95; Lavranos & Vatos,
ibid, 108; Uriarte in Sarooshi (2014) 321, 321–31, 345–66; de Wet in Charlesworth & Farrall
(eds), Strengthening the Rule of Law Through the UN Security Council (2016) 194–203.
Further: Tzanakopoulos in de Wet & Vidmar (eds), Hierarchy in International Law (2012)
42.
220
  Hilpold in Reinisch (2010) 18, 34.

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