International organizations

6.1 Introduction: beyond the State

As explained in Chapter 5, the primacy of the State as subject has remained a touch­
stone of the international legal order. Yet a number of other actors, most prominently
international organizations created by States, play an increasingly important role. This
chapter provides an introduction to international organizations, their differences to
States, and their position within the international legal order. The chapter will conclude
with an introduction to the structure of the United Nations, the worlds pre-eminent
international organization.

6.2 Institutionalized cooperation: the rise of international

organizations

International organizations are a comparatively recent phenomenon. The very first

international organizations were created either to deal with localized questions such as
the management of international waterways or neutral territory. The classic examples
of these are the Rhine Commission, established in 1815, and the Danube Commission,
established in 1856. They were concerned with narrow, technical matters through
which States would benefit from the existence of a permanent institution; for exam­
ple, to gather information or to establish technical standards. Some of these, which are
still in existence, include the International Telegraph Union (1865)1 and the Universal
Postal Union (1874). The Hague Conference of 1899 brought with it the creation of the
Permanent Court of Arbitration (PCA), a consensual mechanism of appointing panels
of arbitrators to resolve specific disputes between consenting States.

HISTORICAL BACKGROUND The Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA), founded in 1899, is one of the oldest and most
unusual international organizations. Headquartered in the Peace Palace in The Hague, it is
essentially a standing registry maintaining a list of arbitrators from which States may compose

1 Known since 1932 as the International Telecommunication Union (ITU).

148 SUBJECTS OF INTERNATIONAL LAW

a panel. Rather than having a permanent judiciary, each specific dispute is resolved by a spe­
cial panel appointed by parties to that dispute, and they may agree to establish specific rules of
procedure to suit their purposes. In part for these institutional features, the PCA and its very
name were mocked by ]B Scott:

the Permanent Court [of Arbitration] is not permanent because it is not composed of
permanent judges; it is not accessible because it has to be constituted for each case; it is
not a court because it is not composed of judges.
(JB Scott (ed), The Proceedings of the Hague Peace Conferences:
The Conference of1907: Vol II (OUP, 1920), 319)
Despite such criticisms, the PCA was not dissolved upon the creation of the PCIJ and later
the ICJ, despite these courts being endowed with permanent judicial appointments and fixed
rules of procedure.
Though for decades in the shadow of its more visible cousin, the PCA has operated quietly
for near a century. Its long experience and flexibility with respect to jurisdiction, procedure,
and the composition of arbitral panels have proved popular with States. In fact, the PCA
docket (list of cases) surpassed that of the ICJ in 2014 for the first time; and it has even opened
offices in Buenos Aires, Mauritius, and Singapore to expand its global reach.
Important recent decisions under the PCA’s auspices include the Iron Rhine (Belgium/the
Netherlands) (Case 2003-02), Abyei arbitration (Sudan/Sudan Peoples Liberation Movement)
(Case 2008-07), and South China Sea (Philippines/China) (Case 2013-19). The PCA is further
studied in Chapter 12.
The PCA’s continued existence attests to the enduring desire of States for diverse institu­
tional settings for conducting international affairs.

The functions of international organizations began to shift with the creation of the
League of Nations in 1919. It was the first international organization formed with
the aim of dealing with wider political questions that affected inter-State relations,
including the maintenance of international peace and security. The League was
plagued with institutional difficulties in the interwar era, in part due to the require­
ment of unanimity in the Council of the League. However, many institutional
features already present in the League system (such as the existence of an organ
empowered with the maintenance of international peace and security: the Security
Council) survived with relatively little modification in the UN Charter. As such, the
emergence of international organizations should be seen as an iterative process of
evolution and consolidation.
Today, international organizations exist in virtually all fields of transnational and
global collective concern. In the broadest sense, they facilitate international coop­
eration in all areas from the harmonization of tariffs to the management of delicate
ecosystems, and range in their scope from small bilateral commissions regulating
transboundary resources to regional security and economic organizations, all the way
to the universalist aspirations of the UN.
 INTERNATIONAL ORGANIZATIONS 149

6.3 What is an 'international organization'?

Despite significant diversity in the form and function of various international organi­
zations, in Article 2(a) of the 2011 Articles on the Responsibility of International
Organizations (ARIO), the ILC attempted to set out a broad definition as follows:
‘international organization’ means an organization established by a treaty or other instru­
ment governed by international law and possessing its own international legal personality.
International organizations may include as members, in addition to States, other entities.2*

If one is to accept the ILC s statement on this point as an accurate reflection of custom­
ary international law, three key conditions should be highlighted.

(i) Membership: First, an international organization befitting the name needs to be

established and composed predominantly of States, though non-State entities may also
be members. This is important, as it limits the term ‘international organizations’ to (pre­
dominantly) intergovernmental organizations such as the UN, the WTO, or the ITU,
clearly distinguishing them from transnational non-governmental organizations, such
as the Red Cross, Amnesty International, or Greenpeace. Despite their international
efforts, all of the latter entities are constituted under municipal law, and States are not
their members. International organizations may have a closed membership—for ex­
ample, for regional integration (ASEAN, the EU, and Mercosur)—but also with respect
to their purposes (the Francophonie, for example, requires a commitment to promoting
the French language, but not that French be an official language of the member).

CONTEMPORARY DEBATES The Unusual Status of the International

Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is often mistaken for an interna­
tional organization. Formed in 1863, and highly influential in the drafting of the Geneva
Conventions, the ICRC in fact describes itself as the ‘largest humanitarian network in the
world’, a movement which exists to ‘alleviate human suffering, protect life and health, and
promote human dignity especially during armed conflicts and other emergencies’ (see The
ICRC: Its Mission and Work (ICRC Publications, 2016)).
The ICRC’s status as a non-governmental organization is clear from its governance struc­
ture: its supreme Assembly is composed of fifteen to twenty-five Swiss nationals and not the
representatives of States. As such, it has no international legal personality as would, for exam­
ple, the United Nations or the European Union. It cannot claim the privileges and immunities
which apply to international organizations (IOs). However, the Geneva Conventions express­
ly confer special status on the ICRC as a monitoring or implementation body. What is more,

2 See ILC, ‘Articles on the Responsibility of International Organizations’ in Report on the Work of its 63rd
Session, UN Doc A/66/10 Chap V (9 December 2011) GAOR 66th Session Supp 10, Art 2(a).
150 SUBJECTS OF INTERNATIONAL LAW

States regularly consult the ICRC, often confidentially, in relation to the interpretation of the
Conventions, even though it has no formal authority. As such, despite its non-governmental
status, the ICRC plays an immense indirect role in the development of the law of armed con­
flict, as is covered in Chapter 15.
For further reflections on the ICRC’s status at international law, see E Debuf, ‘Tools to do
the job: The ICRC’s Legal Status, Privileges and Immunities’ (2016) 97 897/898 IRRC 319.

(ii) International legal personality: An international organization requires, at a

minimum, a set of organs through which it may assert a will that is sufficiently distinct
from its members that it may be regarded as autonomous. An international organiza­
tion cannot be merely the aggregate of its members taking a decision. Usually, it is
sufficient for at least one of its organs to be able to take decisions on certain matters on
the basis of a set procedure.3 Thus, the OECD, with a set of distinct organs and a per­
manent administrative apparatus, has legal personality. The G20, on the other hand,
which has no such permanent organs and is administered each year by the State host­
ing the annual G20 meeting, does not qualify. Legal personality will be discussed later,
in Section 6.4.
(iii) Governed under international law: An international organization must be
constituted under, and be governed by, international law. As was acknowledged in
Article 2(a) of the ARIO, this usually occurs by means of a treaty, though this is not
the exclusive means of creating an international organization. For example, the ICTY
and ICTR were established as subsidiary bodies by resolutions of the Security Coun­
cil, itself a UN organ.4 Both the OSCE and OPEC emerged slowly through a series of
multilateral conferences where so-called ‘final acts and resolutions were passed that
gradually gave rise to them as international legal persons.

HISTORICAL BACKGROUND The Creation of the Iran-US Claims Tribunal

through Joint Unilateral Acts

Iran’s Islamic Revolution in 1980 created great upheaval in Iran, eventually overthrowing
its monarchical government in favour of an Islamic republic. This, in turn, created signifi­
cant friction with the USA, not least due to the nationalization of US-owned oil concessions
and the storming of the US embassy in Tehran in 1979. Relations between the two States
became strained and in response the USA froze very substantial Iranian assets held in US
bank accounts.5

5 For example, in the Marrakech Agreement establishing the World Trade Organization (1994) 1867 UNTS
3 (WTO Agreement), Art IX(1) provides that in both the Ministerial Conference (its plenary organ) and the
General Council (its executive organ), decisions are to be taken by consensus’ or, failing that, by simple majority.
4 Statute of the International Criminal Tribunal for the former Yugoslavia, UNSC Res 808 (1993) (22 Feb­
ruary 1993), and UNSC Res 827 (25 May 1993), (1993) 32 ILM 1159; Statute of the International Criminal
Tribunal for Rwanda, UNSC Res 955 (8 November 1994), (1994) 33 ILM 1598.
 INTERNATIONAL ORGANIZATIONS 151

The two States were at an impasse as to their respective interests, and could barely come
to the same negotiating table, much less agree to a treaty between them. That friction led to
a significant innovation in how international organizations could be created: after months
of efforts, the Iran-United States Claims Tribunal (IUSCT) was established through a joint
unilateral act by the two parties. Through the good offices of Algeria, the ‘Claims Settlement
Declaration’ was made, which concerned the settlement of claims between Iran and the USA
(19 January 1981). This document took note of unilateral declarations of Iran and the United
States that they committed to the constitution ofa tribunal for the settlement ofclaims between
them and their nationals. The Tribunal would be constituted of three Iranian nationals, three
US nationals, and three nationals of third States, and would operate from The Hague.
The IUSCT enjoyed a flurry of activity in the 1980s, and contributed significantly to the
development of international law in relation to foreign investments, the treatment of foreign
nationals, and the resolution of situations of multiple nationality (see Chapter 19, Section
19.4). It continues in operation in The Hague today, and is a good example of an IO governed
by international law through other means than a traditional treaty.

Similarly, though States may together invest in an inter-State enterprise for the perfor­
mance of commercial functions, the enterprise is not governed by international law if it
is formally established under the corporate law of one of the States. This is the case for
Airbus, a French company with German, Spanish, and British government investors,
or SAS Scandinavian System AB, a Swedish company, where the Swedish, Danish, and
Norwegian governments hold the majority of shares. These are corporations governed
under domestic law, and are not international organizations.
The ILC s definition of an international organization raises a wider doctrinal con­
cern, namely, whether it is possible to arrive at an all-encompassing set of principles of
general application to international organizations. This is for two reasons: first, in light
of the fact that there may be radical differences in the forms an international organiza­
tion may take. Secondly, the law governing each organization derives from that organi­
zations specific constituent instrument, and there may be specific particularities for
each organization.5 Yet for all this, certain common principles, primarily deriving from
customary international law, govern basic questions such as the interpretation of the
constituent instrument of an international organization, the determination of whether
it possesses legal personality, and the principles through which its responsibility under
international law may be established. Clearly, an international organization may not
violate a peremptory norm of international law (jus cogens).5 6

5 The concept of‘rules of the organization’ is understood as the constituent instruments, decisions, resolu­
tions, and other acts of the international organization adopted in accordance with those instruments, as well
as the established practice of the organization: see Vienna Convention on the Law of Treaties (signed 23 May
1969, entered into force 27 January 1980), 1155 UNTS 331, Art 5; Vienna Convention on the Law of Treaties
between International Organizations and States and between International Organizations (signed 21 March
1986) (1986) 25 ILM 543, Art 2(j).
6 See Art 41 ARIO, which broadly mirrors the approach taken in the ARSIWA, Art 40.
152 SUBJECTS OF INTERNATIONAL LAW

6.4 Legal personality of international organizations

Legal personality, in essence, represents recognition by actors in a legal order (in inter­
national law, primarily States) that the legal person concerned is entitled to hold rights
and bear obligations derived from law. For this reason, establishing the personality of
international organizations is a significant question within international law, and must
be distinguished from the question of whether an international organization may also
hold legal personality under the domestic law of a State. The two will be addressed
separately.

6.4.1 Legal personality under international law

[Link] The conferral of international legal personality

on an international organization
For much of international law’s development, the classical position was that States,
and only States, could hold international legal personality. International organizations,
being set up by States to discharge certain functions, hold a derivative international
personality in that international personality must be bestowed by the members which
have created it.
The easiest means to do so is explicitly by treaty. Several constituent instruments,
such as those of the European Union/ the World Trade Organization,8 and ASEAN,
expressly bestow international legal personality on their respective organization.
However, even in the absence of a treaty provision (as is the case with the UN Charter),
international personality may be deduced through other means. In the seminal
Reparation for Injuries advisory opinion, Count Bernadotte of Sweden, acting as a
mediator in Jerusalem on behalf of the UN, had been murdered in Israel. The General
Assembly sought an opinion from the ICJ as to whether the UN had the capacity to
bring a claim for reparation against Israel. Despite no Charter provision on legal per­
sonality, the ICJ concluded decisively that the UN possessed sufficient legal personality
to be able to bring an international claim against a State for reparation for injures done
to the organization and its agents.
Though Article 104 of the Charter imposes an obligation on member States to recog­
nize the legal personality of the UN within their domestic legal systems, it is silent on the
question as to whether the organization possesses legal personality under international
law. And yet, the Court deduced international legal personality as being necessary for

Sec the Treaty of Lisbon (signed 13 December 2007, entered into force 1 December 2009) [2007] OJ
C306/1, Art 47.
* See iMarrakesh Agreement establishing the World Trade Organization, Art VIII.
’ See Charter of the Association of South-East Asian Nations (ASEAN), Art 3.
 INTERNATIONAL ORGANIZATIONS 153

die UN to discharge the functions that had been assigned to it by its members in the
Charter:
the Organization was intended to exercise and enjoy, and is in fact exercising and enjoy­
ing, 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 on the international
plane.10

What is more, the Court was even willing to recognize the international personality of
the UN as having an objective character, in that its legal personality required no recog­
nition from non-member entities and States which had not consented to the creation of
the organization in order to be opposable to them:
fifty States, representing the vast majority of the members of the international community,
had the power, in conformity with international law, to bring into being an entity pos­
sessing objective international personality, and not merely personality recognized by them
alone, together with capacity to bring international claims.11

The underlying logic deployed by the Court was that international organizations could
possess such rights, powers, privileges, and immunities distinct from their members, and
as are necessary for them to exercise their functions, even if not explicitly laid out in
their constituent instruments.12 Several theories explore this question. One, broadly a
‘functionalisf approach, involves ascribing implied powers to an organization which are
necessary to give effect to an explicit power.13 To illustrate, the fact that Article 57 of the
Charter bestows upon the UN the power to conclude agreements with other interna­
tional organizations would mean that it was also necessary for it to hold international
personality. Without that power, it could not take on any binding international obliga­
tions. A second approach known as will theory’ contends that international legal person­
ality exists only if the members of that organization explicitly intended for it to possess
such personality; intention is deduced from the capacities, powers, rights, and duties
bestowed on the organization by its members.14 Will theory’s emphasis on explicit evi­
dence of intent aligns broadly with a positivist vision of the intention of the creators of
the organization. Thirdly, a more empirical, objective’ approach could suggest that inter­
national law sets out certain objective criteria, such as possessing organs that have sepa­
rate decision-making powers from their members. If an international organization meets
these criteria, its legal personality follows automatically, as it is inherent in its nature of

10 Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949,
p 174, 179.
11 Ibid, 185. In practice, States do not routinely refuse to acknowledge the personality of an organization
merely because they are not a member: see A RIO (n 2) p 76, para 9; CF Amerasinghe, Principles of the Institu­
tional Law of International Organizations (2nd edn, CUP, 2005), 87.
12 See later, Section 6.5.2, on the interpretation of constituent instruments of an international organization.
15 J Klabbers, An Introduction to International Organizations Law (4th edn, CUP, 2015), 56 et seq. See also
V Engstrom, Constructing the Powers of International Institutions (Martinus Nijhoff, 2012).
H See Klabbers (n 13) 46-7; HG Schermers and N Blokker, International Institutional Law: Unity within
Diversity (6th edn, Martinus Nijhoff, 2018), para 1565; P Sands and P Klein (eds), Bowetts Law ofInternational
Institutions (6th edn, Sweet & Maxwell, 2012), para 15-006.
154 SUBJECTS OF INTERNATIONAL LAW

being an international organization.15 All three theories could justify the view that the
UN’s members had ascribed certain rights, obligations, and functions on the organiza­
tion for which it was necessary for it to possess international personality. Their key point
of difference in whether personality is functionally implied, can be deduced from the will
of the organizations members, or is a logical consequence of the bestowal of such powers.

[Link] The consequence of possessing international legal personality

for international organizations
Though it must be emphasized that the particular rights, obligations, and duties of an
international organization are highly specific to each organization and its constituent
instruments, there are some general consequences that all international organizations
share in common. An international organization, though a collective entity, must be
capable of possessing international rights and bearing international obligations and
duties as distinct from those of its members.16 Legal personality endows an organiza­
tion with the capacity to bring an international claim in order to maintain its legal
rights.17 It is important not to confuse this potential capacity with an absolute right to
have standing: as will be discussed in Chapter 12, any international dispute-settlement
body must also have the jurisdiction to be seized of (to hear) the claim.18
The power of jus tractatuum suggests that an international organization may enter
into a valid international agreement with another legal person, usually a State or anoth­
er international organization, which is then subject to the law of treaties.19 International
organizations are also responsible for the non-fulfilment of the obligations that they
bear under international law.20 The logical corollary to this rule is that if an internation­
al organization is the bearer of a certain obligation, its members are presumed not to be
liable with respect to that obligation.21 The responsibility of international organizations
will be discussed later, in Section 6.6.
Under international law, an international organization may also possess certain priv­
ileges and immunities which are necessary for the independent and efficient function­
ing of the organization. As will be discussed later, these are usually applicable within an
organizations host State, though may also extend to other member States.22 However,

15 ND White, ‘Separate but Connected: Inter-Governmental Organizations and International Law’ (2008)
5 International Organizations Law Review 175; see also F Seyersted, Objective International Personality of
International Organizations: Do Their Capacities Really Depend on the Conventions Establishing Them? (Krohns
Bogtnykker, 1963), 47.
16 Klabbers (n 13) 50; Amerasinghe (nil) 68-9. See also E Lauterpacht, ‘The Development of the Law of
International Organization by the Decisions of International Tribunals’ (1976) 152 Recueil des Cours 377,407.
17 Schermers and Blokker (n 14) para 1856.
|g For example, Art 34 of the ICJ Statute only confers upon it the competence to be seised of disputes be­
tween States.
Vienna Convention on the Law of Treaties between States and International Organizations (1986), Pre­
amble, para 11.
20 AR1O (n 2) Art 3.
21 However, the presumption is rebuttable: e.g., it does not apply if the members of the organization and
the organization have schemed to circumvent their respective international obligations: see ARIO (n 2) Com­
mentary to Art 62,163, paras 2 et scq.
22 See R Higgins, Problems and Process: International Law and How We Use It (OUP, 1994), 91: ‘members—
and a fortiori the headquarters State—may not one and the same time establish an organization and fail to
provide it with those immunities that ensure its role as distinct from that of the host State’.
 INTERNATIONAL ORGANIZATIONS 155

they may also extend to the right to send and receive legations, which is inextricably
tied to their ability to engage in dialogue with and be heard in international fora.

6.4.2 Legal personality in domestic law

[Link] General principles

International legal personality does not automatically entail domestic legal personality,
despite the fact that international organizations often require the capacity to perform
legal acts in domestic law. A practical example is that an international organization will
require, when establishing its headquarters in a host State, the capacity to enter into
employment contracts, purchase or rent out its premises, buy and sell equipment, and
institute legal proceedings. Accordingly, many international instruments follow the
example of Article 104 of the UN Charter and require that members provide the organi­
zation with the requisite domestic legal personality so as to function appropriately.23
Each legal system is in principle free to develop its own conditions for legal personal­
ity. As a general rule, it will recognize domestic legal personality in accordance with the
particular relationship between its national law and international law (see Chapter 4).
Several provisions in constituent instruments, such as Article 104 of the Charter or
Article 335 of the Treaty on the Functioning of the European Union, create an obliga­
tion for States parties to accord the organization with the capacity necessary for the
exercise of its functions under domestic law. For a State with a monist tradition, ratifica­
tion of such a treaty provision suffices for an international organizations legal personal­
ity to be given effect under domestic law.24 States from the dualist tradition, like the UK
and other common law States, will generally require appropriate legislation transposing
the treaty into domestic law in order for personality to exist under domestic law.25
In accordance with the pacta tertiis maxim embodied in Article 34 VCLT, non­
member States are not obliged to recognize domestic legal personality, as they are third
parties not bound by the constituent instrument. However, third States sometimes do
accord domestic legal personality to an international organization of which they are
not a member, in application of the principle of comity between nations (an exhorta­
tion to States to behave courteously with one another). For example, in Arab Monetary
Fund v Hashim,26 the English High Court recognized the legal personality of the Arab
Monetary Fund (AMF), of which the UK was not a member, because that organization

23 See, e.g., Lisbon Treaty on European Union (n 7), Art 282. For more information, see A Reinisch, Inter­
national Organizations in Domestic Courts (CUP, 2000), 44.
24 Prominent examples include the USA and Belgium with respect to the UN, UN v B (1952) 19 ILR 490,
Manderlier v Organisation des Nations Unies & Etat Beige (Ministre des Affaires Etrangtres) (1972) 45 ILR 446;
the Netherlands with respect to the UN Relief and Rehabilitation Administration, UNRRA v Daan (1949) 16
ILR 337; and Italy with respect to NATO, Branno v Ministry of War (1955) 22 ILR 756.
25 With respect to the International Tin Council, see JH Rayner (Mincing Lane) Ltd v Department of Trade
and Industry [ 1989] 3 WLR 969, 1012c.
26 Arab Monetary Fund v Hashim (1990] 1 All ER 685 (UK). In Westland Helicopters Ltd v Arab Organiza­
tion for Industrialization [1995] 2 All ER 387, [1994] 108 ILR 564 (UK), the English High Court nevertheless
pointed out that in such cases, the legal regime governing the status and capacities of the organization re­
mained questions of international law.
156 SUBJECTS OF INTERNATIONAL LAW

had been accorded legal personality under the law of the host State, the United Arab
Emirates. Under English law, taking into account the international law consideration of
comity’, the correctness of the incorporation procedure under UAE law would deter­
mine whether the AMF would have legal personality in the UK.27

[Link] Consequences of domestic legal personality: privileges and immunities

International organizations require certain privileges and immunities in order to per­
form their functions effectively, and without interference from a recognizing or host
State.28 Several States have enacted domestic legislation governing these.29 Such privi­
leges and immunities also commonly find recognition in treaties, whether they be the
constituent instrument of the organization,30 multilateral treaties,31 or bilateral agree­
ments between international organizations and member States.32 It is not fully clear
whether customary international law might accord certain privileges and immunities
to international organizations.33 Such privileges and immunities may include: immu­
nity from the judicial jurisdiction of a State; immunity from measures of execution,
such as seizure of property or other assets; the inviolability of premises, property, and
archives; currency and fiscal privileges; and freedom of communication. Though many
of these might be specific to the arrangement relating to the international organization,
they are also broadly mirrored in the international legal regime governing the immuni­
ties of States: see Chapter 9 for more details.

6.5 Powers of international organizations

6.5.1 Express and implied powers of international organizations

The classic position is that international organizations only possess such powers as were
expressly attributed to them from the constituent instrument whence they derive their
authority.34 Member States establishing an organization for the purpose of fulfilling

17 See also UNRAA v Daan (1949) 16 ILR 337. 28 See Klabbers (n 13) ch 7.
29 See, e.g., International Organizations Act 1968 (UK); Foreign Missions and International Organizations
Act 1991 (Canada); Federal Act on the Privileges, Immunities and Powers of International Organizations 2007
(Switzerland); Privileges and Immunities Act 1970 (Kenya).
30 See, e.g., the general statement in UN Charter, Art 105.
” See, e.g., the 1946 General Convention on the Privileges and Immunities of the United Nations (adopted
13 February 1946, entered into force 17 September 1946), 1 UNTS 15; 1947 Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations (adopted 21 November 1947, entered into force
2 December 1948), 33 UNTS 261; Agreement on Privileges and Immunities of the OAS (signed 15 May 1949),
OASTS 22.
” See, e.g., Headquarters Agreement between the United Nations and the United States (signed 26 June
1947, entry into force 21 October 1947), 11 UNTS 147; Headquarters Agreement between the International
Criminal Court and the Netherlands (adopted 7 June 2007, entered into force 1 March 2008), 2517 UNTS
173; Agreement between the World Trade Organization and the Swiss Confederation (signed 31 May 2005),
WT/GC/l/Add.l.
” See, e.g., Reinisch (n 23) 145; Amerasinghe (nil) 344-8. But c/Sands and Klein (n 14), para 15-039 (2009
edn); and M Wood, Do International Organizations Enjoy Immunity under Customary International Law?’
(2014) 10 International Organizations Law Review 287.
54 Jurisdiction of the European Commission of the Danube between Galatz and Braila, Judgment, 1926, PC1J,
Ser B, No 14, p 64.
 INTERNATIONAL ORGANIZATIONS 157

certain functions, such as promoting regional economic integration35 or to facilitate

international cooperation in relation to a specific objective,36 will generally endow that
organization with the appropriate powers to give effect to those functions. These may
include the creation of specified organs in order to achieve their tasks, or granting of
competence over certain subjects or categories of disputes; or whatever other aspect
that its member States desire.
As described in relation to international personality, however, international organi­
zations may also possess powers that are not explicitly conferred by their constituent
instrument, but that can be implied as they are considered necessary for the organiza­
tion to fulfil its functions. In Interpretation of the Greco-Turkish Agreement, the PCIJ
accepted that if a treaty was silent, it could examine the agreement as a whole and see
whether a power was to be implied in the existence of another explicit power.37 As dis­
cussed earlier, the ICJ held in its Reparation for Injuries opinion that the UN was enti­
tled to claim on behalf of its agent, even though that power was not to be found in the
Charter. In a classic statement, the Court observed that:
Under international law, an Organization must be deemed to have those powers which,
though not expressly provided ... are conferred upon it by necessary implication as being
essential to the performance of its duties.38

CASE SPOTLIGHT Certain Expenses of the United Nations (Article 17,

paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, p 151

The Certain Expenses advisory opinion given by the ICJ was a landmark decision in respect of
the implied powers of the organs of an international organization. It arose when certain United
Nations members withheld the payment of financial contributions assessed to them by the
General Assembly on the basis that they disagreed with a certain peacekeeping mission. The
question was posed to the ICJ as to whether the General Assembly was permitted to authorize
expenses with respect to peacekeeping forces in the Sinai peninsula and in the Congo.
The central issue was that, under Article 24 of the Charter, the Security Council had prima­
ry’ responsibility for the maintenance of international peace and security, and the Council’s
paralysis during the Cold War put the validity of certain peacekeeping missions into question.
However, the Court found that though the UN Charter did not set out the General Assembly’s
responsibility in relation to the maintenance of international peace and security, under its
budgetary powers set out in Article 17(2) of the Charter, the Assembly could incur expenses
that were appropriate in fulfilling the purposes of the United Nations as a whole (p 168).

35 See, e.g., Charter of the Association of Southeast Asian Nations (adopted 20 November 2007, entered
into force 15 December 2008), 2624 UNTS 223, Art 1; Treaty Establishing the Economic Community of West
African States (adopted 28 May 1975), 1010 UNTS 7, Art 3; Lisbon Treaty on European Union (n 7) Art 2.
36 See, e.g., Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemi­
cal Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997), 1974
UNTS 45, Art VIII (1 )(a)( 1); WTO Agreement (n 3) Art III.
37 Interpretation of the Greco-Turkish Agreement of 1st December 1926, Advisory Opinion, 1928, PCIJ, Ser B,
No 16, p 20, para 47.
M Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949,
p 174, p 182. In Lauterpacht (n 16) 430-2, it is argued that the essential character of a power does not mean
that it is ‘indispensably required’.
158 SUBJECTS OF INTERNATIONAL LAW

It could even establish peacekeeping operations without these being regarded as ultra vires
acts (p 177). UN member States had an obligation to contribute to the costs of such missions.
The Certain Expenses opinion is notable due to the endorsement of the doctrine of‘implied
powers’, which applies not only to organs of international organizations but to the organiza­
tion itself. But perhaps more significant is the fact that the advisory opinion turned on wheth­
er the expenses authorized were appropriate for the stated purposes of the organization as a
whole. The Court adopted a functional approach: ‘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’,
in other words not beyond one’s legal authority (p 168).

As the Certain Expenses opinion demonstrates, States creating an international organ­

ization cannot always envisage every possible outcome or situation, and in practice
have often created organizations with functions that require certain implied powers
necessary to discharge those functions, ‘by necessary intendment’ in the words of the
ICJ.39 For example, nothing in Chapter VII of the Charter expressly endows the Security
Council with competence over, for example, money laundering in relation to the extrac­
tion of natural resources, drug trafficking, or the financing of terrorism; nevertheless,
the Council has drawn a link to the threat to international peace and security caused
by terrorist acts.40 Moreover, in 2007 the Council for the first time held a debate on the
impact of climate change on international peace and security, another topic on which
the Charter is silent.41 While including new threats to peace is necessary, there is always
a risk of overreach when deducing powers from outside the four corners of a text, lest
its legitimacy be challenged. This will be further explored in Section [Link].

6.5.2 Interpretation of constituent instruments

As the ICJ has long stated, ‘[f]rom a formal standpoint, the constituent instruments of
international organizations are multilateral treaties, to which the well-established rules
of treaty interpretation apply’.42 Certain characteristics of the constituent instruments
of international organizations, however, shape their interpretation, as acknowledged
by the Court:

the constituent instruments are also treaties of a particular character; their object is to cre­
ate new subjects of law endowed with a certain autonomy, to which the parties entrust the

” See Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opin­
ion, ICJ Reports 1954, p 47, p 57, where the Court validated the United Nations’ power to create an administra­
tive tribunal.
* See, e.g., UNSC Res 2195 (2014) (19 December 2014). See also UNSC Res 1373 (2001) (28 September
2001), passed in the aftermath of the 9/11 attacks on New York City, which was the first to call upon all States
to take measures to prohibit the financing of terrorist activities.
See UNSC Verbatim Record (17 April 2007) UN Doc S/PV.5663. Recently, the Council rejected a resolu­
tion that would have integrated climate-related risk as a central component of UN strategies aiming to counter
the risk of conflict relapse. See UNSC Verbatim Record (13 December 2021) UN Doc S/PV. 14732.
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996,
p 66, para 19.
 INTERNATIONAL ORGANIZATIONS 159

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 institution­
al; 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.43

Though the creators of international organizations will have set out the purposes, func­
tions, and form of the organization, and those of its constituent organs, the practices of
the organization and its organs are also important in interpreting how the organization
will function. For example, the ICJ observed in Certain Expenses that each organ of the
Organization must, in the first place at least, determine its own jurisdiction’;44 such a
power (la competence de la competence) is essential in understanding the scope of pow­
ers set out for each organ within the constituent instrument of an organization.45 The
subsequent practice of the organization, and of its members, may also shape the inter­
pretation of a constituent instrument, with the best-known example of this being in the
Namibia advisory opinion, where the Court, referring to the consistent practice of the
Security Council and its members, observed that an abstention by a permanent mem­
ber of the Security Council was a concurring vote’ and not a veto, within the meaning
of Article 27(3) of the UN Charter.46
There might also be judicial interpretation of constituent instruments in some cases.
For example, the ECtHR has claimed the role of authoritative interpreter of the ECHR,
and ITLOS occupies a similar role in relation to UNCLOS. Though the power to inter­
pret the UN Charter authoritatively was not attributed to the ICJ in the Charter, from
the outset it has declared that a capability to interpret the Charter cannot be excluded
from the normal exercise of its judicial power.47 Moreover, the ICJ may receive requests
for advisory opinions from UN principal organs and UN specialized agencies on ques­
tions falling within the scope of their competence, which includes the interpretation of
their constituent instruments. These are in turn entitled to receive authoritative legal
guidance’ and enlightenment as to the course of action [they] should take’.48 Usually the

45 Ibid.
44 Certain Expenses of the United Nations, (Article 17, paragraph 2, of the Charter) Advisory Opinion, ICJ
Reports 1962, p 151, 168.
45 Developed first as a doctrine relating to judicial jurisdiction: see Chapter 12, Section [Link].5.
46 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, paras 20-2.
47 Conditionsfor Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory
Opinion, ICJ Reports 1947, p 57, 61. See also Reparation for Injuries (n 38) 185; International Status of South
West Africa, Advisory Opinion, ICJ Reports 1950, p 128,131 et seq; Certain Expenses (n 44) 168. See also J Sloan
and G Hernandez, ‘The Role of the International Court of Justice in Developing the Institutional Law of the
United Nations’ in CJ Tams and J Sloan (eds), The Development ofInternational Law by the International Court
ofJustice (OUP, 2012), 197.
48 See UNGA Res 1731 (XVI) (12 December 1961) (concerning the interpretation of Art 17(2) UN Char­
ter). See also D Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the
International Court of Justice’ (1998) 9 EJIL 437, esp 452-7.
160 SUBJECTS OF INTERNATIONAL LAW

constituent instrument of the international organization will provide for competence to

request such advisory opinions.49

6.5.3 Decision-making in international organizations

[Link] Binding decisions of international organizations

As discussed earlier, international personality relates to the idea of autonomy: it gives
the international organization the capacity to take decisions relating to the functions
entrusted to it. The most evident of these relate to how the international organization
takes decisions. These may take the form of prescribing harmonized standards for their
members to adopt, as do the International Telecommunications Union, the Food and
Agriculture Organization, and the International Labour Organization.
For an international organization to be able to act effectively, it is often necessary for its
member States to support and implement its functions. Accordingly, many international
organizations may take certain decisions that are addressed to and binding on member
States, such as the imposition of embargoes or sanctions by the UN Security Council,
ECOWAS, the Commonwealth, or the European Union. Occasionally, such action may
be taken against a non-member State as well: the EU has maintained arms embargos
and sanctions which are binding upon all EU member States—for example, against
Zimbabwe for its human rights violations and against Iran for its nuclear programme.
Many other decisions of international organizations are more mundane, and relate
to the internal workings of the organization itself, such as establishing rules of proce­
dure, staff regulations, or, occasionally, a decision to establish a subsidiary organ. These
internal workings may be crucial, however, in determining how the organization will
in fact discharge its functions in relation to its members, as do the rules of procedure of
the ICJ, the ICC, or the WTO.

[Link] Ultra vires decisions of international organizations

The potential exists for an organization which takes a decision that exceeds the scope of
its functions for that decision to later be characterized as ultra vires by a judicial institu­
tion, though the competence to do so remains a sensitive matter.50 For example, the ICJ
does not possess the power of judicial review over decisions of the Security Council,51
though it may come to interpret and apply the Councils resolutions.52*

49 See Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April
1948), 14 UNTS 185, Art 76; Convention on the International Maritime Organization (adopted 6 March 1948,
entered into force 17 March 1958), 289 UNTS 48, Art 70; Constitution of the United Nations Educational,
Scientific and Cultural Organization (adopted 16 November 1945, entered into force 4 November 1946), 4
UNTS 275, Rule 38.
K See Nuclear Weapons in Armed Conflict (n 42) para 20. 51 Namibia (n 46), p 44, para 89.
52 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Inci­
dent at Lockerbie (Libyan Arab Jamahiriya v United States), Provisional Measures, ICJ Reports 1992, p 115, paras
39-41; and Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo, Advisory Opinion, ICJ Reports 2010, p 403, para 85.
 INTERNATIONAL ORGANIZATIONS 161

In addition to review by an international court, the possibility exists for national and
regional courts to invalidate, or find unlawful, measures taken under domestic law in
the implementation of a decision of an international organization. This may be because
the measure does not comply with domestic law, but it may also be based on the failure
of a challenged measure to comply with international legal standards. Because such acts
reflect, or even mirror verbatim, decisions of the organization, in practice these consti­
tute a review of the decision of the international organization.
The most prominent of these have involved decisions of the Security Council, which
are binding on all UN members. For example, in the Kadi //judgment, the Court of
Justice of the European Union (CJEU) had to consider the imposition of targeted sanc­
tions against a person purported to have links with Al Qaeda, in implementation of the
Security Councils resolutions on combatting terrorism. It concluded that the impo­
sition of targeted sanctions was inconsistent with Mr Kadis fundamental rights due
to insufficient evidence that he was in fact involved with Al Qaeda.53 A similar ques­
tion was decided in favour of the applicant in the Nada v Switzerland judgment of the
ECtHR.54

CASE SPOTLIGHT Legal Consequences for States of the Continued Presence of

South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16

The Namibia advisory opinion of the ICJ concerned South Africa’s claim that, despite several
Security Council resolutions to the contrary, it was still entitled under the Mandate conferred
upon it by the League of Nations to govern Namibia (South West Africa) and impose the
apartheid system within it. The Security Council referred the matter to the ICJ with a ques­
tion that required the Court to provide an interpretation of Security Council Resolution 276
which had not been passed under Chapter VII, the section of the Charter under which it is
stated that resolutions are binding on all member States.
The Court, though vehemently denying that it possessed a power of judicial review over
Security Council resolutions, concluded that Resolution 276 was adopted in conformity with
the relevant provisions of the Charter, and that, given the presence of mandatory terms within
the text of the resolution itself, it created binding obligations requiring States to recognize
South Africa’s presence in Namibia as unlawful (para 114).
The question of whether the Court may review the resolutions of the Security Council
remains live. See further J Sloan and G Hernandez, ‘The Role of the International Court of
Justice in Developing the Institutional Law of the United Nations’ in CJ Tams and J Sloan
(eds), The Development ofInternational Law by the International Court ofJustice (OUP, 2012),
197,224-32; D Akande, ‘The International Court of Justice and the Security Council: Is there
Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997)
46ICLQ 309; JE Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 28.55

55 See Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council, and United Kingdom v
Yassin Abdullah Kadi (Kadi II) (July 2013) (ECJ).
54 Nada v Switzerland App No 10593/08 (ECtHR) [2012] ECHR 1691.
162 SUBJECTS OF INTERNATIONAL LAW

6.53.3 Non-binding recommendations, determinations, and declarations

In determining whether a given decision of an international organization may be bind­
ing on an addressee, one must first consider whether the constituent instrument of
the organization bestows on it the power to take such binding decisions without the
consent of that specific addressee. A few organs of international organizations possess
limited powers to do so, as consented to by their member States when constituting the
organization. Examples include:
• The UN Security Council, which may bind all UN members in relation to matters
falling within its primary responsibility to maintain international peace and secu­
rity.55
• The International Civil Aviation Organization, which has the power to establish
rules regulating aircraft flying over the high seas.55
56
• The World Health Assembly, which may adopt regulations which are binding on all
member States of the WHO, unless they opt out.57
• European Union institutions, which, usually when working together, may enact
legislation (regulations, directives) that binds all members.58

Secondly, one must examine the text of a decision itself to determine whether it dem­
onstrates an intention, on the part of the organ, for the decision to be binding. This
might be through express reference to the power to do so in its constituent instrument,
but may also be through the text of the decision itself and whether it evinces clearly the
intention to issue a binding decision.
Many organs of international organizations lack the power to issue binding deci­
sions on members, though may issue other types of instruments. The UN General
Assembly is a prominent example of a body only permitted to issue recommendations,
usually in the form of resolutions, to members on matters within the scope of the UN.59
Even the Security Council, which does possess the power to pass binding resolutions
under Chapter VII of the Charter, can pass resolutions which are not binding, under
Chapter VI.60 Resolutions may reflect existing international law, of course, but they are
not regarded as being law-creative in themselves.61 Even if the rather grandiose term
‘Declaration’ is used instead, such an appellation does not in itself change the non­
binding nature of a resolution.62 The same would go for a code of conduct, which

55 UN Charter, Art 25.

56 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947),
15UNTS295, Art 12. 57 See Constitution of the WHO (n 49) Arts 21-2.
58 See Art 16 of the Lisbon Treaty (n 7), and Art 238 of the Treaty on the Functioning of the European Union
(adopted 13 December 2007, entered into force 1 December 2009) [2008] OJ Cl 15/47.
w See Arts 10-14 Charter.
* The range of the Councils resolutions is covered in Chapter 14, Section 14.5.
61 South West Africa (Ethiopia v South Africa; Liberia v South Africa), Second Phase, ICJ Reports 1966, p 6,
para 98. See also K Skubiszewski, ‘Recommendations of the United Nations and Municipal Courts’ (1972-3)
46 BYBIL 353.
62 See UN Office of Legal Affairs, ‘Chapter VI: Selected Legal Opinions of the Secretariats of the United Na­
tions and Related Intergovernmental Organizations’ (1981) UNJY 149: ‘[i]n the practice of the United Nations
a Declaration is a formal and solemn instrument suitable for those occasions when principles considered to
be of special importance are being enunciated.... there is legally no distinction between a declaration and a
recommendation which is less formal.’
 INTERNATIONAL ORGANIZATIONS 163

provides guidance to actors as to preferred or best practice, without prescribing such

conduct as being binding;63 or determinations, which consist of findings of fact and
possible legal characterizations of these, without being regarded as legally binding.

CASE SPOTLIGHT East Timor (Portugal v Australia), Jurisdiction and

Admissibility, ICJ Reports 1995, p 90

The 1995 judgment of the ICJ in East Timor involved Portugal, the former colonial power
in East Timor, filing a claim against Australia in relation to the latter States conclusion of
treaties with Indonesia, which had been occupying East Timor since 1975. Though the case
is best known in relation to the standing of Portugal to claim on the basis of the breach of an
obligation erga omnes, the East Timor judgment was also invaluable in clarifying the nature of
determinations of international organizations. Portugal had requested that the Court declare
as binding various statements made in resolutions of the General Assembly and Security
Council that East Timor was a non-self-governing territory with Portugal as the administer­
ing power. This was met by a flat rejection by the Court:

it cannot be inferred from the sole fact that a number of resolutions refer to Portugal as
the administering Power of East Timor that they intended to establish an obligation on
third States to treat exclusively with Portugal. The Court is not persuaded, however, that
the relevant resolutions went so far (103-4).

Though the Court took pains to state that its decision was without prejudice as to whether
the resolutions under discussion could be binding, it considered that they could not be taken
as givens’ in establishing the scope of the dispute between Portugal and Australia. The judg­
ment demonstrates the challenge in ascribing binding force to resolutions of international
organizations, which must be considered on a case-by-case basis and not in a blanket manner.

Though recommendations, determinations, and declarations may not be binding as

such, they cannot be regarded as devoid of legal effect: some constituent instruments
oblige members to have regard, in good faith, to such non-binding decisions when
deciding upon their own course of action. This is particularly the case with specialized
institutions dealing with technical or scientific questions, such as the WTO Agreement
on Sanitary and Phytosanitary Measures, which in its Article 3 encourages members to
base their sanitary and phytosanitary (SPS) measures on standards adopted by other
international organizations. A presumption exists that measures in conformity with
such standards comply with the relevant WTO provisions.64 Such non-binding deci­
sions or resolutions may even constitute an authoritative interpretation of the constitu­
ent instrument of the organization, which cannot be ignored by its members.65 As such,
though not formally binding, the organization and its organs may provide a measure of

° The OECD, in particular, regularly issues codes of conduct and other guides which, without being bind­
ing, are not devoid of legal significance: for an overview, see H Ascensio and N Bonucci (eds), Le pouvoir
norniatifde I’OCDE (Pedone, 2013).
w A presumption that was tested in the WTO, BeefHormone case—Report of the Appellate Body (16 January
1998) WT/DS26/AB/R and WT/DS48/AB/R.
“ See GJH van Hoof, Rethinking the Sources of International Law (Kluwer, 1983).
164 SUBJECTS OF INTERNATIONAL LAW

normative guidance to its members as to what course of action to take in relation to the
functions of that organization.
In practice, the non-binding status of a decision of an international organization
is not determinative. A non-binding decision may refer to binding obligations with­
in existing international law, or it might be embraced by States such that, in time, it
is taken as reflecting customary international law.66 As the ICJ noted in the Nuclear
Weapons advisory opinion:
General Assembly resolutions, even if they are not binding, may sometimes have norma­
tive 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 true
of a given General Assembly resolution, it is necessary to look at its content and the condi­
tions of its adoption; it is also necessary to see whether an opinio juris exists as to its norma­
tive character. Or a series of resolutions may show the gradual evolution of the opinio juris
required for the establishment of a new rule.67

In this respect, international organizations, in particular in their capacity as a forum for

discussion and debate between States, may constitute an important part of the interna­
tional lawmaking process, even if certain of their decisions are not formally binding.

6.6 Responsibility of international organizations

6.6.1 Background

One of the more settled principles of international law is that actors who commit a
violation of international law are obliged to make reparations in one form or another
to the injured party.68 As is the focus of Chapter 10, this principle has long applied to
States; and given the consequences of a distinct legal personality described earlier, it
makes logical sense to extend the principle to international organizations. 69 However,
as this chapter has explained, the responsibility of an international organization largely
depends on the constituent instrument of that organization, which dictates the form
of the organization and its ability to take decisions independently of its members.
In addition to these, we must consider the questions of control which arise when an
organization acts in concert with its members, when members act at the behest of the
organization, or when members lend the organization assistance, whether in the form
of material resources or placing an organ of a State at the disposal of the organization.

66 The most obvious examples being the Universal Declaration of Human Rights, UNGA Res 217(111)A
(10 December 1948) (adopted by 48 votes to none; 8 abstentions), and the Declaration of Principles of Inter­
national Law concerning Friendly Relations Among States, GA Res 2625 (XXV) (24 October 1970) (adopted
unanimously).
67 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 254-5, para 70. See
also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, Judgment,
ICJ Reports 1986, p 14,99 et seq.
68 The Factory at Chorzdw (Claim for Indemnity) (Germany v Poland), Jurisdiction, 1927, PCIJ, Ser A, No 8,
p5,21.
** ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts’ in Report of the Interna­
tional Law Commission on the Work of its 53rd Session, UN Doc A/56/10 Chap IV (2001) GAOR 56th Session
Supp 10, Art 2.
 INTERNATIONAL ORGANIZATIONS 165

HISTORICAL BACKGROUND The International Tin Council (ITC)

For decades, international organizations rarely took action that could engage their interna­
tional responsibility. However, the spectacular collapse in 1985 of the ITC, an international
organization based in London, led to a spate of litigation in the English courts as to the nature
and scope of the responsibility of the ITC.
The ITC was an international organization established to regulate the price of tin on world
markets. It was empowered to borrow money in order to ‘buffer stock’ tin, buying the mate­
rial when prices were low and selling it when prices were high. However, the emergence of
aluminium as a viable substitute led to a permanent drop in the price of tin, and the ITC
incurred liabilities of £900 million, thus becoming insolvent. Creditors, in particular com­
mercial banks, faced enormous losses, and tin-producing firms around the world were faced
with collapse, closing dozens of mines.
All such parties turned to the member States of the ITC for redress, all of which disclaimed
any responsibility for the ITC’s debts or demise. Actions were filed in the English courts (and
elsewhere) seeking to establish the liability of the ITC for its debts. All these actions were
dismissed by the House of Lords in JH Rayner v Department of Trade and Industry [1988]
3 All ER 257 (HL) (at the appeal phase, [1988] 3 All ER 257 (CA)) on the grounds that the
ITC, headquartered in London and possessing domestic personality under English law, was
an organization autonomous from its members, and that this fact precluded their liability.
This finding shows that the relationship between an organization and its members can have
significant repercussions.
For further reading, see LA Mallory, ‘Conduct Unbecoming: The Collapse of the
International Tin Agreement’ (1990) 5 American University ILR835.

6.6.2 The Articles on the Responsibility of International

Organizations (ARIO)

The seminal ITC litigation was one of the reasons motivating the ILC to consider the
issue of the responsibility of international organizations, culminating in its adoption
in 2011 of the Articles on the Responsibility of International Organizations (ARIO)/0
These are modelled closely on the Commissions earlier work on the law of State respon­
71 However, the ARIO have come under substantial criticism on a number of
sibility.70
grounds.72 These include:
• for seeking unduly to apply all-encompassing rules and principles to international
organizations which differ substantially in the nature and scope of their mandate
and functions;

70 See ARIO (n 2), ch V. 71 See Chapter 10, Section 10.1.

72 See, e.g., J d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnify­
ing the Fissures in the Law on State Responsibility’ (2012) 9 International Organizations Law Review 15; M
Hlavkova, ‘Legal Responsibility of International Organizations in International Law: Summary of the Inter­
national Law Discussion Group meeting held at Chatham House’ (Chatham House, 10 February 2011). See
also the tepid, and at times hostile, comments received from international organizations themselves: ILC,
‘Responsibility of International Organizations: Comments and observations received from international orga­
nizations’, UN Doc A/CN.4/637 (14 February 2011).
166 SUBJECTS OF INTERNATIONAL LAW

• for relying too heavily on the law of State responsibility, despite the fundamental
differences between a State and an international organization; and
• for their lack of grounding in relevant practice, and thus representing less an exercise
in codification but in fact one based on progressive development, mostly by analogy.

The ILC has responded to many of these criticisms in its 2011 Commentary to the
ARIO.73
Though it is true that international organizations vary significantly in their form and
functions, their entitlement to legal personality suggests that a few very basic principles
ought to apply, such as the general principle of liability for ones internationally wrong­
ful acts elucidated in Chorzow Factory (found in Article 3 ARIO) or the notion that
internationally wrongful conduct must be attributed to an international actor (found
in Article 4 ARIO).74 In addition, the ILC took care to insert a lex specialis clause that
preserves, to an extent, the specific regimes created by each international organizations
constituent instrument. In this respect, the ILC s attempt in the ARIO to accommodate
the wide range of international organizations may not fully settle the regime which
applies to them, but provides an important focal point for consideration which may in
turn shape future practice.

CONTEMPORARY DEBATES How Can International Responsibility be Shared

between an International Organization and a State?

International legal personality assumes the capacity to have rights and obligations under
international law. The classical paradigm of responsibility, as adopted by the ILC in the
ARISWA and ARIO, is relatively straightforward: actors remain responsible for the acts that
they themselves have committed, or at least are attributable to them.
However, with respect to concerted operations committed by multiple actors, especially
when international organizations act in concert with their member States, the clarity of attri­
bution as explained prior becomes live and convoluted. In such cases, member States are
implementing the decisions of the organization, or perhaps even acting under its operational
control; or one member State is leading and coordinating the acts of other members.
One is the basic question as to whether responsibility can be separated at all. Can one break
down a complex operation into discrete acts and apportion responsibility accordingly? Or
should ah involved actors bear joint responsibility for the unlawful act? Who has the authority
to decide how responsibility should be borne?
A recent key example of shared responsibility arose in The Netherlands v Mustafic-Mujit et
al and Nuhanovic v Netherlands HR 6 September 2013, NJ 2013 (Hoge Raad, Dutch Supreme
Court). These are significant as the applicants were claiming against the Netherlands for
the acts of its peacekeeping forces (‘Dutchbat’), which were formally under UN operation­
al control. The Dutch Supreme Court, guided by the ARIO, concluded that the wrongful

n See ARIO (n 2) 69-71.

Jan Klabbers (n 13) 310 et seq has suggested that this approach presupposes not a separate personality as
such, but the agency of an international organization entails its autonomy as a rational or even moral agent,
capable of taking decisions on its own.
 INTERNATIONAL ORGANIZATIONS 167

acts of Dutchbat could be subject to ‘dual attribution’ to both the Netherlands and United
Nations, and that even if the UN had had effective control over Dutchbat, this did not auto­
matically mean that it had exclusive responsibility for its wrongful acts. In Urgenda v the
Netherlands (Dutch Supreme Court, Case No 19/00135, 20 December 2019), moreover, the
Dutch Supreme Court held that though the obligation to prevent climate change was shared,
the Netherlands’ share could be treated as divisible and thus calculated at a 25 per cent reduc­
tion from 1990 levels.
There remains a considerable grey area around the extent and application of shared respon­
sibility, though recently published research in the area may clarify the issues: see, for example,
A Nollkaemper, J d’Aspremont, C Ahlborn, B Boutin, N Nedeski, and I Plakokefalos (coll D
Jacobs), ‘Guiding Principles on Shared Responsibility in International Law’ (2020) 31 EJIL 15.

International organizations take decisions and operate in a distinct framework that

makes them dependent on States; their practice requires that particular attention be
given to the allocation of responsibility between international organizations and their
member States.75 The general rule is that the conduct of organs and agents of an organi­
zation, when acting in the performance of their functions, are regarded as those of the
organization (Article 6 ARIO). However, the question is considerably more complex
when faced with the fact that international organizations usually possess few enforce­
ment organs and must often operate through their members; this is particularly so when
members place their organs at the disposal of the international organization.76 In such
cases, though the organ is effectively Tent’ to the organization, it nonetheless remains
an organ of the lending State as the State retains a measure of strategic control over that
organ. The classic example is of UN peacekeeping organs, which are subsidiary organs
of the UN and act under the control of the Security Council and General Assembly,
but are invariably composed of troops contributed by States, which retain jurisdiction
and some degree of residual control over their armed forces. Article 7 ARIO seeks to
address this issue, concluding that the act of an organ placed at the disposal of an inter­
national organization is considered an act of that organization Tf the organization exer­
cises effective control over that conduct’. As such, the ILC considered the effectiveness
of factual control exercised by the organization as determinative.

75 An important project was conducted at the University of Amsterdam, called ‘Shared Responsibility in In­
ternational Law’. The project has led to a collection of articles and three edited volumes seeking to consider rel­
evant theory and practice in the field: see, in particular, A Nollkaemper and D Jacobs, ‘Shared Responsibility in
International Law: A Conceptual Framework’ (2013) 32 Michigan JIL 359; A Nollkaemper and I Plakokefalos
(eds), Principles of Shared Responsibility in International Law (CUP, 2014); A Nollkaemper and D Jacobs (eds),
Distribution of Responsibilities in International Law (CUP, 2015); A Nollkaemper and I Plakokefalos (eds), The
Practice ofShared Responsibility in International Law (CUP, 2017); and A Nollkaemper, J d’Aspremont, C Ahl­
born, B Boutin, N Nedeski, and I Plakokefalos (coll D Jacobs), ‘Guiding Principles on Shared Responsibility in
International Law’ (2020) 31 EJIL 15.
76 The ILC, in the Commentary to Art 7 ARIO (n 2), p 20, para 3, uses the example of the model contribu­
tion agreement relating to military contingents placed at the disposal of the United Nations by its member
States.
168 SUBJECTS OF INTERNATIONAL LAW

Returning to the peacekeeping example, it means that the organization must have
actual operational control over the specific act the legality of which is impugned. In this
respect, the ILC broke explicitly with the test of‘ultimate authority or control’ that was
applied by the ECtHR to declare inadmissible applications against troop-contributing
States in Behrami v France and Saramati v France, Germany and Norway.77 The ECtHRs
position was untenable, in that it would permit States to retain control over their troops
within their national chain of command, yet it would entirely exclude liability for any of
their actions.78*As such, it is to be welcomed that the ECtHR has since moved somewhat
away from this finding. In Al-Jedda v United Kingdom the Court expressly referenced
the ‘effective control’ standard used by the ILC in the ARIO, which suggests that it had
considered the ILCs arguments against Behrami and Saramati. However, it should be
noted that the Court made a point to distinguish, and not to overrule, its earlier deci­
sion in Behrami and Saramati.'9
Given the high likelihood of international organizations working in concert with
member States or other international organizations, the sections of the ARIO where
joint, collective, or supportive acts are envisaged become increasingly important. As
with most of the ARIO, the ILC has sought to extend much of the practice relating to
State responsibility into the realm of international organizations. Thus, international
organizations which provide material aid or assistance to another actor in the commis­
sion of an internationally wrongful act are themselves committing a breach (Article
14 ARIO). They are also responsible if they direct or control, and in particular if they
coerce, another actor into committing a breach (Articles 15-16 ARIO), though coer­
cion is very rare in international law. States are equally responsible for most of these
breaches if they aid or assist, direct or control, or coerce an international organization
(Articles 58-61 ARIO).
Finally, an international organization may not circumvent international law by pass­
ing a decision binding its members to act in a manner that would constitute a breach of
international law if the organization were to commit the act itself. According to Article
17(1) ARIO, the very decision binding its members to act would constitute a breach of
international law. Nor may an international organization authorize its members to act
in a manner that would constitute a breach of international law if the organization were
to commit the act itself. In this case, Article 17(2) ARIO requires both the authorization
of an organization to its member State, and for the member States to take action pursu­
ant to that authorization, for the organization to be found in breach of circumventing its
obligations. The reverse is also true: member States may not circumvent responsibility
for breaches of their own obligations simply by causing the organization to perform
an act which, if performed by the member States, would have been a breach of their

77 Behrami v France and Saramati v France, Germany and Norway App Nos 71412/01 and 78166/01 (ECtHR,
2 May 2007) (2007) 45 EHRR 85.
See M Milanovic and J Papid, As Bad as it Gets: The European Court of Human Rights’ Behrami and
Saramati Decision and General International Law’ (2009) 58 ICLQ 267.
n Al-Jedda v United Kingdom App No 27021/08 (ECtHR, 7 July 2011) (2011) 53 EHRR 23, para 84.
 INTERNATIONAL ORGANIZATIONS 169

obligations.80 As such, member States cannot transfer functions to an international

organization simply in order to shield themselves from international responsibility.81

6.7 The United Nations system

It is fitting to conclude this chapter with a review of the UN, the worlds pre-eminent
international organization.82 The UN makes a strong claim to universality: only the
Holy See and a few entities whose statehood is contested (such as Kosovo, Palestine, and
Taiwan, all discussed in Chapter 5) are not members of the UN.
The UN’s purposes are particularly broad, with Article 1 of the UN Charter listing:
• the maintenance of international peace and security and the taking of effective col­
lective measures to that end;
• the development of friendly relations between nations based on the equal rights
and self-determination of peoples;
• the promotion of international cooperation regarding problems of an economic,
social, cultural, or humanitarian character;
• the encouragement of respect for human rights, without distinction as to race, sex,
language, or religion.

The breadth of these purposes touches upon nearly all aspects of international life,
and is coupled with the UN’s explicit aim to be a centre for harmonizing the actions
of nations in the attainment of these common ends. What is more, Article 103 of the
Charter contains a so-called supremacy clause’: obligations for member States under
the Charter shall prevail’ over any competing legal obligations. This supremacy clause
elevates UN Charter obligations above other treaty obligations, and further buttresses
its claim to pre-eminence among international organizations.83

6.7.1 Institutional structure

In addition to listing its six principal organs, the UN Charter provides for the creation
of subsidiary organs and a number of semi-autonomous specialized agencies operating
under the aegis of the organization. These are briefly mapped out in turn.

80 ARIO (n 2), Art 61.

81 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland App No 45036/98 (ECtHR, 30 June
2005), 157-8: in such cases, ‘the State is considered to retain Convention liability in respect of treaty commit­
ments subsequent to the entry into force of the [ECHR]’.
82 Though this brief introduction is useful for the newcomer, thorough accounts of the United Nations
abound, with a recent contribution being the magisterial R Higgins, P Webb, D Akande, S Sivakumaran, and
J Sloan (eds), Oppenheim's International Law: United Nations (OUP, 2017). Somewhat more accessible is that
of S Chesterman, I Johnstone, and DM Malone, Law and Practice of the United Nations: Documents and Com­
mentary (2nd edn, OUP, 2016).
,J R Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583; H
Kelsen, ‘Conflicts between Obligations under the Charter of the United Nations and Obligations under other
International Agreements’ (1948-9) 1 U Pittsburgh LR 284; R Kolb, ‘Does Article 103 of the Charter of the
United Nations Apply only to Decisions or also to Authorizations adopted by the Security Council?’ (2004)
64 ZadRV 21.
170 SUBJECTS OF INTERNATIONAL LAW

[Link] Organsof the United Nations

There are two types of organs within the UN under Article 7 of the Charter. Foremost,
there are six principal organs under Article 7(1):

(i) the General Assembly;

(ii) the Security Council;
(iii) the Economic and Social Council (ECOSOC);
(iv) the Trusteeship Council;
(v) the International Court of Justice; and
(vi) the Secretariat.

In addition to these, under Article 7(2), subsidiary organs can be created by the prin­
cipal organs, many of which have been created to fulfil specific functions.84 Prominent
subsidiary organs created by the General Assembly include the Human Rights Council,
the ILC, the Office of the UN High Commissioner for Refugees (UNHCR), and UNICEF.
The Security Council created the ad hoc tribunals in respect of the former Yugoslavia
and Rwanda, as well as the UN Compensation Commission (UNCC) in respect of
Iraq. Under ECOSOC, one finds functional commissions such as the Commission on
the Status of Women and the Commission on Sustainable Development, as well as a
range of standing bodies and expert bodies such as the Commission on Transnational
Corporations, the UN Conference on Trade and Development (UNCTAD), and the
Committee on Natural Resources.

[Link].1 The General Assembly

The General Assembly is the plenary organ of the UN as, under Article 9, it is the only
principal organ in which all 193 UN members are represented and have an equal vote.
The Assembly meets annually, in regular sessions held in the autumn, to discuss the
broad range of matters falling within the scope of the Charter (Article 10; for a non-
exhaustive list, see Articles 11-17). The Assembly has also convened ten emergency
special sessions.85 In practice, much of its work is located within six main committees,
where the bulk of substantive discussion and decision-making takes place.86
The decisions of the General Assembly, called ‘resolutions’, are passed either by sim­
ple majority or, on ‘important questions’ such as the admission of a new member, by
two-thirds majority (Article 18). They are not binding, save those which are in inter­
nal administrative matters such as establishing the organization’s budget (Article 17).87

M See D Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYBIL 413.
15 In relation to Hungary in 1956; the DR Congo in 1960; the Middle East in 1956, 1958, 1967, 1980, 1982,
and 1997, the last of which is a ‘rolling’ session on Palestine which is still ongoing; Afghanistan in 1980; and
Namibia in 1981.
66 These are: Disarmament and International Security; Economic and Financial; Social, Humanitarian and
Cultural; Special Political and Decolonization; Administrative and Budgetary; and Legal Affairs. There are also
a number of procedural committees, the most well known being the Credentials Committee (which assesses
the credentials of member States’ representatives to the organization).
87 See Certain Expenses (n 44).
 INTERNATIONAL ORGANIZATIONS 171

As described earlier, some the Assembly’s resolutions are regarded as reflecting custom­
ary international law, or may yet be influential on future State practice which might lead
to the formation of a new customary legal rule.88

[Link].2 The Security Council

The UN Security Council, which sits continuously, is the closest equivalent to an exec­
utive organ. The Council is composed of five permanent members (China, France,
Russia, the UK, and the USA) and ten members elected by the General Assembly for
two-year terms (Article 23). The ten non-permanent members are elected bearing in
mind geographical representation: five seats are allocated to Africa and Asia, two to
Latin America, two to West European and other States, and one to Eastern Europe.
Though each of its members has one vote, under Article 27 the concurring’ vote of all
five permanent members is needed in non-procedural matters. In effect, this means
that the permanent members wield a veto with respect to all substantive decisions,
though it bears noting that in practice abstention is not deemed to constitute a veto.89
The Council has primary responsibility over issues relating to the maintenance of
international peace and security (Article 24); its practice in this respect is covered in
Chapter 14.90 The Council may also make recommendations to the General Assembly
with respect to the admission, suspension, and expulsion of members (Articles 4-6).
Judges of the ICJ are elected both by the Assembly and the Council, though with no
veto (Article 4, Statute of the ICJ). Perhaps most importantly, the Charter may only be
amended with the support of all the permanent members of the Council, in addition to
two-thirds of the General Assembly (Article 108 Charter).
Though the Security Council has no legislative powers, it enjoys a unique power in
that its decisions—but not its recommendations—are binding upon all member States
(Article 25).91 This power is not unlimited; the Council cannot adopt general measures
as would a legislature, such as ordering States to protect against climate change; it is
generally used in response to a specific situation, such as the ordering of military or
peacekeeping action in one State. However, in recent years, the Council has adopted
various binding resolutions, such as Resolutions 1373 (2001) and 1540 (2004) in rela­
tion to international terrorism, which have a quasi-legislative’ character,92 as they call

“ On this point, see J Castaneda, Legal Effects of United Nations Resolutions (Columbia UP, 1969);
K Skubiszewski, ‘Resolutions on the UN General Assembly and Evidence of Custom’ in International Law at
the Time of its Codification. Essays in Honour of Roberto Ago (Giuffre, 1987), 503; JA Barberis, ‘Les resolutions
des organisations internationales en tant que source du droit des gens’ in U Beyerlin, Recht zwischen Umbruch
und Bewahrung—Festschrift fiir Rudolf Bernhardt (Springer, 1995), 21. For examples see n 66.
89 See Namibia (n 46) paras 20-2. See also A Stavropoulos, ‘The Practice of Voluntary Abstentions by Per­
manent Members of the Security Council under Article 27(3) of the Charter’ (1967) 61 AJIL 737.
90 For some general reading, see G Arangio-Ruiz, ‘On the Security Council’s Law-Making’ (2000) 83 Rivista
di Diritto Internazionale 609; DL Bosco, Five to Rule them All: The UN Security Council and the Making of the
Modern World (OUP, 2009); and V Lowe, A Roberts, J Welsh, and D Zaum (eds), The United Nations Security
Council and War: The Evolution of Thought and Practice since 1945 (OUP, 2008).
91 See, on the limits of this power, A Tzanakopoulos, Disobeying the Security Council: Countermeasures
against Wrongful Sanctions (OUP, 2011); and K Doehring, ‘Unlawful Resolutions of the Security Council and
their Legal Consequences’ (1997) 1 Max Planck YBUNL 91.
92 See S Talmon, ‘The Security Council as World Legislature?’ (2005) 99 AJIL 175; see also JE Alvarez,
‘Hegemonic International Law Revisited’ (2003) 97 AJIL 873.
172 SUBJECTS OF INTERNATIONAL LAW

upon States to establish general measures and are accompanied by the establishment of
committees designed to monitor member State compliance.

CONTEMPORARY DEBATES The Exercise of the Veto and Security

Council Reform

The veto given to the permanent members of the Security Council was a reflection of pre­
vailing power relations in 1945. The Soviet Union, in particular, had insisted on the right to
veto as a condition for its participation in the UN system, and the Soviet Union (now Russia)
has exercised the veto most frequently, followed closely by the USA. Historically, the veto
aimed, in part, to avoid the fate of the League of Nations, which suffered fatally from the non­
participation of the USA and Soviet Union from the outset and the withdrawal of Germany,
Japan, and Italy. The other three permanent members, China, the UK, and France, have exer­
cised the veto relatively infrequently, though it should be noted that China has a preference
for abstention on resolutions not directly related to its national interests.
The Council’s permanent membership has attracted much criticism in recent years, lead­
ing to calls for reform. Important countries in the Global South such as Brazil and India
are excluded, as well as substantial financial contributors such as Germany and Japan, the
principal defeated powers after World War II. These have banded together as the ‘G4’, arguing
for their inclusion as veto-wielding permanent members alongside two African members.
A substantial group of States have opposed the G4 through the ‘Uniting for Consensus’ (UfC)
group, proposing instead an intermediate category of permanent/semi-permanent members,
without the power of the veto. No serious proposal has since been tabled which would abolish
the veto or remove any current permanent members, though there have been calls to restrict
the use of the veto in situations of humanitarian catastrophe (see Chapter 14, Section 14.4.2).
However, in part due to public outcries over the use of the veto in relation to armed conflicts
in Ukraine and Gaza, a provocative recent proposal has suggested that strategic interpreta­
tion of the Charter might spur some ‘non-amendment reform’ and enable the UN to limit the
scope of the veto: see OA Hathaway, M Mills, and H Zimmerman, ‘Crisis and Change at the
United Nations: Non-Amendment Reform and Institutional Evolution’ (2025) 46 Michigan
Journal of International Law 1.

[Link] Other principal organs

Economic and Social Council
ECOSOC is responsible, as its name might suggest, for economic and social matters
within the organization. ECOSOC is composed of fifty-four members elected from the
Assembly for three-year terms (Article 61 Charter). Encompassing a broad range of
activities, ECOSOC may make non-binding recommendations to the General Assembly,
relevant specialized agencies, or directly to member States (Article 62 Charter).
ECOSOC has particular responsibility for international human rights, and it was
active in preparing the major human rights covenants (the ICCPR and ICESCR) and
other treaties. In addition, ECOSOC also coordinates the activity of the UN, with a
wide number of specialized agencies with functions falling under its range of activities,
such as UNESCO.
 INTERNATIONAL ORGANIZATIONS 173

The Secretariat
The UN Secretariat supports the work of the UN organs (save for the ICJ, with its own
Registry). Secretariat staff are meant to be wholly independent of national governments
and may only seek or receive instructions from the UN itself (Article 100). They are, in
this regard, a sort of international civil service.93
The Secretariat is headed by the Secretary-General, who is appointed by the General
Assembly upon the unanimous recommendation of the Security Council (Article 97).
They (regrettably, no woman has yet held the post94) discharges various administra­
tive functions; and, importantly, the Secretary-General may bring to the attention of
the Security Council any matter which may threaten international peace and security
(Article 99), and may exercise good offices to resolve or to contain international crises.95
The influence of the Secretary-General has been somewhat dependent on the views and
outlook of the particular office-holder.96 Since 2017, the current office-holder has been
Antonio Guterres, of Portugal.

The Trusteeship Council

The Trusteeship Council was set up to supervise the ‘trust territories’ created under
Chapter XII of the Charter. Trust territories comprised territories either under a man­
date of the League of Nations or detached from enemy States after World War II.
Though the Charter envisaged the voluntary placement of a territory into the trus­
teeship system (Article 77), this mechanism was never used. Namibia (South West
Africa), discussed earlier in Section [Link], was never placed by South Africa into the
trusteeship system. The ICJ found in an advisory opinion that while there was no legal
obligation in the Charter to transfer a mandated territory into a trust territory, the
obligations under the mandate agreement signed between South Africa and the League
of Nations were still valid.97 Trust territories gradually gained their independence; the
last, Palau, gained UN membership in 1994, at which point the Trusteeship Council
suspended its operations.

The International Court of Justice

The principal judicial organ of the UN, the judgments of the ICJ have proven highly
influential on the development of international law, as the ample references to its judg­
ments in this book demonstrate. The Court, and its practice, are addressed in more
detail in Chapter 12, Section 12.3.2.

” See S Schwebel, ‘The International Character of the Secretariat of the United Nations’ in S Schwebel (ed).
Justice in International Law (CUP, 1994), 248.
* It should be noted that during the 2016 campaign for a new Secretary-General, considerable effort was
mounted to elect a female Secretary-General, but it was ultimately unsuccessful.
,s TM Franck and G Nolte, ‘The Good Offices Function of the UN Secretary-General’ in A Roberts and B
Kingsbury (eds), United Nations, Divided World (OUP, 1994), 143.
% A good collection of essays on the role of the Secretary-General is S Chesterman (ed), Secretary or Gen­
eral? The UN Secretary-General in World Politics (CUP, 2007).
97 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p 128.
174 SUBJECTS OF INTERNATIONAL LAW

[Link] Specialized agencies and the United Nations

Unlike the subsidiary organs, specialized agencies are independent international
organizations in their own right, established through a separate treaty and brought
into relationship with the UN by means of a specific agreement (see Articles 57 and
63 Charter). As befits their name, specialized agencies operate in defined fields but,
like the UN, their responsibilities and membership are global in scope. There are cur­
rently sixteen specialized agencies, some of which predate the UN, others of which were
launched more or less contemporaneously with it, and others which have emerged over
time in response to the interests of States:

1. the International Telecommunications Union (1865);

2. the Universal Postal Union (1874);
3. the International Labour Organization (1919);
4. the International Bank for Reconstruction and Development (the ‘World Bank
Group) (1944);98
5. the International Monetary Fund (1945);
6. the Food and Agriculture Organization (1945);
7. the United Nations Educational, Scientific and Cultural Organization (1945);
8. the International Civil Aviation Organization (1947);
9. the World Health Organization (1948);
10. the World Meteorological Organization (1950);
11. the International Atomic Energy Agency (1957);
12. the International Maritime Organisation (1959);
13. the United Nations Industrial Development Organization (1966);
14. the World Intellectual Property Organization (1967);
15. the International Fund for Agricultural Development (1974); and
16. the World Tourism Organization.

6.8 Conclusion

International organizations are now an indispensable feature of the international land­

scape. Though they vary significantly in their structure, functions, and powers, they
facilitate cooperation on an immense range of subjects, allowing for States to pool their
expertise and resources to resolve problems of global collective concern through a more
or less permanent forum. In this respect, the potential to resolve problems through
international institutions retains an enduring appeal to States, and seems to suggest
that they will continue, when they feel it is appropriate, to establish new multilateral
organizations through which to focus their collaboration.

n Several agencies are affiliated to the World Bank Group: the International Finance Corporation (1956);
the International Development Association (1960); and the Multilateral Investment Guarantee Agency (1988).
 INTERNATIONAL ORGANIZATIONS 175

Further reading

JE Alvarez, International Organizations as Law-Makers (OUP, 2005).

A detailed study of the influence of international organizations on the development of inter­
national law.
CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn,
CUP, 2005).
A classic reference work, this book seeks to capture the overarching principles which apply
across international institutions.
B Conforti and C Focarelli (eds), The Law and Practice of the United Nations (5th edn, Brill,
2016).
A practical overview of the law and practice of the UN, from its inception to the present, with
a specific focus on contemporary problems.
R Higgins, P Webb, D Akande, S Sivakumaran, and J Sloan (eds), Oppenheims International
Law: United Nations (OUP, 2017).
A multi-authored compendium of the UN's legal and institutional practice, with a focus on the
day-to-day realities of UN practice.
J Klabbers, An Introduction to International Organizations Law (3rd edn, CUP, 2015).
A concise overview of the law relating to international organizations.
E Lagrange and J-M Sorel (eds), Traite de droit des organisations internationales (LGDJ, 2013).
A modern classic, the leading French-language study on the law of international organizations.
P Sands and P Klein (eds), Bowetts Law ofInternational Institutions (6th edn, Sweet & Maxwell,
2012).
A comprehensive, detailed resource of great utility to both academic and practitioner audi­
ences.
HG Schermers and N Blokker, International Institutional Law: Unity within Diversity (6th
edn, Martinus Nijhoff, 2018).
This monumental compendium captures a range of practice and the immense breadth of
international organizations.
B Simma, D-E Khan, G Nolte, and A Paulus (eds), The Charter of the United Nations: A Com­
mentary (4th edn, OUP, 2024).
Freshly revised for 2024, systematic, article-by-article commentary on the Charter of the UN
remains an acclaimed study.
R V irzo and I Ingravellow (eds), Evolutions in the Law of International Organizations
(Martinus Nijhoff, 2015).
A recent study of the law of international organizations with a focus on issues of responsibility
and accountability.