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The Competence of InternationalOrganizations and the AdvisoryJurisdiction of the InternationalCourt of JusticeDapo Akande*

AbstractThe International Court of Justice's 1996 Nuclear Weapons Advisory opin ions raise anumbe r of questions relating to the competence of international organizations and the C ourt'sown advisor y jurisdiction. The author argu es that actions of an international organizationdirected at achieving the fulfilment of the purposes of the organization and which wouldpromote its effectiveness are within the implied power s of the organization. Thus, the decisionthat the WHO had no competence to deal with the leglity of nuclear weapons (or otherhazardous substances) departs from the established law, including the Court's previousjurisprudence. It is argued that a broad, rather than a narrow, competence for internationalorganizations is more consistent with principle and practice as well as with the Court'sjurisprudence. In relation to the Court's advisory jurisdiction, the author argues that(contrary to the implications in the WHO opinion,) it is always within the competence of UNspecialized agencies to seek opinions on the interpretation of their constitutions and thatrequests from the General Assembly do not have to relate to the work of that organ. Theconcluding section sets out the circumtances in which the Court ought to exercise itsdiscretion to refuse to render an opinion requested of it It is argued that the fact that a requestrelates to an abstract question, unrelated to any particular factual situation, ought not todebar the Cour t from exercising its jurisdiction. How ever, the Court ought to decline toprovide an opinion where It does not have before it sufficient factual material to enable it toform an opinion or where It is in danger of giving an incomplete answer that can bemisconstrued.

' Lecturer In Law. School of Law. University of Nottingham, University Part Nottingham. NG7 2RD.United Kin gdom : LLB Ho ns. (He); LLM, (Lond.): PhD Ca ndidate. M agda lene College Cam bridge. Ma nythanks to Professor James Crawford. University of Cambridge, for his helpful comments on earlier drafts.

European Journal of International Law 9 (1998) . 437-4 67


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1 IntroductionIt is perhaps trite to point out that the law of international organizations is mainlydeveloped through the practice of those organizations. Questions relating to thepowers and competence of these arise and are resolved in the day-to-day activities ofpersons involved in such organizations.1 The fact that international organizationscanno t h ave res ort to the co ntentious jurisdiction of the Intern ational Court of Justice2means that the principal vehicle for obtaining judicial input into questions relating totheir powers and competence is the advisory jurisdiction of the Interna tional Co urt 5 Itis thus by no m eans surprising tha t the key cases dealing with the law of internationa lorganizations are advisory opinions of the Court, and tha t these cases sim ultaneouslydevelop the law concerning the advisory jurisdiction of the Court. As advisoryopinions are not frequently requested by the United Nations and its specializedagencies, any opportunity given the Court to develop these aspects of the law isusually to be welcomed.

However, two recent opinions of the ICJ. dealing with the competence ofinternational organizations and th e extent of the Court's own advisory jurisdiction,have been greeted with more tha n usual controversy. In these opinions, the issue ofthe competence of international organizations arose only tangentially as thequestions put to the Court concerned a matter of substantive law which wasapparently not connected to any particular exercise of power by the organizationsinvolved: the legality of the threat or use of nuclear weapons. 4

In the first opinion, the C ourt was asked the following question by the World H ealthOrganization (WHO):

See, eg., the various matters (especially the selected legal opinions) recorded In the volumes of the UnitedNation* Juridical Yearbook.See Art. 34(1) of the Statute of the International Court of Justice: "Only States may be parties In casesbefore the Court.'It should ho wever be noted that questions relating to the competence of international o rganizations mayarise 'incidentally' in co ntentious cases between states. This arises where a decision of that organizationaffects th e rights and duties of the contending states and where one p arty requests that the Court refuse toapply that decisio n. The Issue is, of course, that of udicial review and it has been most pro minent recentlyIn the international sphere In relation to decisions of the Security Council of the United Nations. Thequestion wheth er the In ternational Court of Justice has this power In contentious cases has been raised(but not as yet answered) before the Court. See Questions of Interpretation and Application of the 1971Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.; IJbi/o v. U.K.). Provis iona lMeasures, ICJ Reports (199 2) 3, at 114 . Preliminary Objections, ICJ Reports (199 8): Application of theConvention on the Prevention and Punishment of the dime of Genocide (Bosnia & Herzegovina v. Yugoslavia(Serbia & Montenegro)), Requests for Pro visional Measures, ICJ Reports (1993). at 3 an d 325: PreliminaryObjections, ICJ Reports (1996). The literature on this subject Is vast See Akande, The InternationalCourt of Justice and t he Secu rity Coun cil: Is There Room for Judicial Control of Decisions of the PoliticalOrgans of the United Nations?'. 46 ICLQ (1997) 309 and the works died at note 2 of that article.Legality of the Threat or Use of Nuclear Weapons (Request by the General Assembly), ICJ Reports (1996). 226: 35 HM (19 96) 80 9 and 1345 [hereinafter General Assembly Opinion] and Legality of the Use byState of Nudear Weapons in Armed Conflict (Request by the World Health Organization), ICJ Reports(1996), at 66 [hereinafter WHO Opinion].


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In view of the health and environmental effects, would the use of nuclear weapons by a State inwar or other armed conflict be a breach of its obligations under International law Including theWHO Constitution?

In the second request, the General Assembly of the United Nations asked the Courtthe following question:

Is the threat or use of nuclear weapons in any circumstance permitted under Internationallaw?The Court decided by 11 votes to 3 not to render anadvisory opinion in respect of

the WHO request and decided by 14 votes to 1 to respond to the question put to it bythe General Assembly. In the General Assembly Opinion, the Court considered themerits of the question put to it and came to the conclusion, inter alia, that:

the threat or use of nuclear weapons would generally be contrary to the rules of internationallaw applicable in armed conflict and in particular the principles and rules of humanitarianlaw;

However, in view of the current state of international law, and of the elements of fact at itsdisposal, the Court cannot conclude definitively whether the threat or use of nuclear weaponswould be lawful or unlawful in an extreme circumstance of self-defence, in which the verysurvival of a State would be at stake;5

The decision on the merits raises many interesting questions of substantiveinternational law. These issues have been comm ented on elsewhere,6 and this articledoes not intend to address them. The focus of our concern here is an examination ofthe Issues, arising from the opinions, which relate to the competence of internationalorganizations and the advisory jurisdiction of the International Court. The first ofthese tw o areas of discussion is significant because th e ruling of the C ourt in the WHOOpinion constitutes the only decision to date in which the present ICJ has denied thatan international organization has a power which itclaims topossess. Itwill thus beinstructive to examine the reasoning on which this decision is based, particularly as itseems to depart from previous jurisprudence of the Court in relation to the c ompetenceof International organizations. Discussion of the second area the advisoryjurisdiction of the ICJ is impo rtant in the light of calls that have been made for a' Operative paragraph 2E, General Assembly Opinion, ICJ Reports (1996 ) . at 266. This paragraph was

adopted by the casting vote of the President, the vote having been deadlocked seven to seven. Those Infavour were President Bedjaoul and Judges Ranjeva, Herciegh. Shi, Flelschhauer, Vereshchetln andFerrari Bravo. Against were Vice President Schwebd and Judges Oda, Gulllaume, Shahabuddeen,Weeramantry. Koroma and Hlggins.

* See Lowe, 'Shock Verdict Nuclear War May or May Not be Unlawful', CLJ ( 1 9 9 6 ) 4 1 5 : d a r k . T h e L a w sof Armed Conflict and the Use orThreat of Us e of Nuclear Weapons'. 7 di m. LF ( 1 9 9 6 ) 2 6 5 : F a i t'Nudear Weapons, International Law and theWorld Court A Historic Encounter'. 91 AJIL ( 1 9 9 7 ) 64;Bekker, 'Legality of the Threat or Use of Nuclear Weapons'. 91 AJIL ( 1 9 9 7 ) 126; Matheson . Th eOpinions of the International Court of Justice on the Threat or Use of Nuclear W eapons'. 91 AJIL ( 1 9 9 7 )4 1 8 ; Grief, 'Legality of the Threat or Use of Nudear Weapons' . 46 ICLQ (1997) 681: Kohen . 'L 'avisconsultaufde la C3J sur la Uctllldt la menace ou de Vemploi dame nudeaira et la fonction |udlda lre'. 8 EJR,(1 99 7) 337 : Scobble, Th e Theorist as Judge: Hersch Lauterpacht's Concept of the International J udldalFunction'. 8 EJIL ( 1 9 9 7 ) 2 6 4 . at28 5- 29 8: W ei l T he Court Cannot Condude Def in i te ly . . . NOT UquetRevisited', 36 Cohan. J.Transnafl L ( 1 9 9 7 ) 109; and Akande, 'Nuclear Weapons. Undear Law?Deciphering the Nuclear Weapons Advisory Opinion'. 68 BVWL (1997) 165.


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greater use of advisory opinions by those bodies authorized to request opinions.7 Inaddition, there h ave also been proposals to extend the n um ber of bodies that ca n m akeuse of the advisory facilities of the Court. It has been suggested, for instance, th at theSecretary General of the United Nations should be able to request opinions of theCourt.8 Arguments have also been put forward for individual states and nationalcourts to be able to have recourse to the Court's advisory jurisdiction.9 If theseproposals are successful, it will be all the more im porta nt to have a n un ders tandin g ofthe ex tent of the advisory jurisdiction of the C ourt and of how th e Court exercises thiscompetence. This article does not intend to cover the entire breadth of issuesconcerning the advisory function of the Court, but will concentrate on the questionsraised by the Nuclear Weapons opinions about the C ourt's advisory jurisdiction. TheseInclude the issue of whether any and all matters are suitable for submission to theCourt in advisory proceed ings, the ex tent of the com petence of specialized agencies ofthe United Nations to reques t advisory opinions of the Court and the C ourt's discretionto decline a request to provide an opinion.

The WHO Opinion is particularly significant because it denotes thefirst ime that theICJ has refused to ren der an advisory opinion requested of it1 0 Similarly, the decisionof the Court in General Assembly Opinion is significant because It 4s the first advisoryopinion delivered by the Court to deal with a question not relating to institutionalmatters currently before the requesting organ or to a particular factual situationconstituting the subject of dispute in the relevant organ.

In the oral and written statements presented to the Court in respect of the tworequests, a number of states (Including four of the five declared nuclear weaponsstates) raised objections to the admissibility of the requests before the Court. Thesestates objected to th e admissibility of the requ est by the WHO on the grou nd t ha t the

In 1988. the General Assembly called on the Security Council to consider making use of Its power torequest advisory opinions in cases where such an exercise would be appropriate for dispute resolution.See GA Res. 4 3/ 51 . Annex, para. 15 (5 December 19 88). A similar appeal has also been made by the thenPresident of the Internation al Court. Sir Robert Jennings, in his statements to th e SLrth Comm ittee (Legal)of the General Assembly in 1991 and 1992. IC/ Yearbook (1991-1992) 205 a t 210- 211 ; and IQYearbook (19 92 -19 93 ) 2 49 . at 252 . See further, Koskennleml. 'Advisory Opinions of the Internation alCourt of Justice as an Instrument of Preventive Diplomacy', in N. Al-Naulml and R. Meese (eds).International Legal Issues Arising under the United Nations Decade of International l a w ( 1 9 9 5 ) 5 9 9 . a t600- 601 ; and Hlgglns. 'A Comment on the Current Health of Advisory Opinions', in V. Lowe and M.Fl tnnaur ice ( eds) . Fifty Years of the Intermtional Court of justice. Essays in Honour of Sir Robert Jennings.(1996) 567. at 570.See the proposals of the Secretary General in his 199 0 an d 199 1 Annual Reports. UN Do c A/45 /1 , partIIL-at 7 and UN Doc. A/46/1 , Part V. at 8 and also In his Ageniafor Peace. A/47/277: S /24111. para. 38.See also Koskennlemi, supra note 7. and Hlgglns, supra note 7.See SchwebeL 'Preliminary Rulings by the International Court of Justice at the Instance of NationalCourts', 28 Virginia ]. oflnt'l L (19 87- 88) 495 ; Cf. Rosenne. 'Preliminary Ridings by the Internation alCourt of Justice at the Instance ofNational Courts: A Reply'. 29 Virginia ) . oflnfl L (1988-89) 401 .In the Eastern Carelia case. 1923 PQJ Series B. No. 5. the Permanent Court of International Justicerefused to render an opinion on the ground that th e question pu t to it related to a dispute between twostates, one of which was neither a member of the League of Nations n or a party to the Statute of the Co urt.As tha t State h ad n ot given its consent to the settlement of the dispute by the Council of the League, theCourt could not give an opinion on a reference from that body.


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question of the legality of the use of nuclear weapons did not come within thecompetence of that Organization. This was therefore the first question addressed bythe Court in the WHO Opinion. Relying on Article 65(1 ) of its Statu te and Article 96(2)of the Charter, the Court held that

three conditions must be satisfied In order to found the jurisdiction of the Court when a requestfor an advisory opinion is submitted to it by a specialized agency: [1] the agency requesting theopinion must be duly authorized, under the Charter, to request opinions from the C our t [2] theopinion requested mu st be on a legal question; and [3] this question mu st be one arising withinthe scope of the activities of the requesting agen cy."

The WHO clearly satisfied t he first condition,12 but the second and third conditionsproved to be more controversial.

2 Did the Questions Put to the Court Have a LegalCharacter?The question whether the second condition (I.e. whether the questions put to theCourt were of a legal nature) could be satisfied arose in relation to both the GeneralAssembly and the WHO requests, In both proceedings a numb er of states argued thatthe question before the Court was political, not legal, and tha t the matter would bebetter d ealt with in diplomatic fora.13 It was argued that the question w as not only of apolitical nature, but that the request was politically motivated and that the Courtshould not be tempted to enter into political debates (in this case the overall issue ofnuclear disarmament).14 Other states took a different view, arguing that the question11 WHO Opinion, \Q Reports (1996), at 71-72, para. 10." The WHO Is a speclallied agency within the meaning of Articles 57 and 63 of the United Nations Charter

and Is authortied by Article X, para. 2 of Its agreement with the United Nations (which was approved byGA Res. 124 (II) and World Hea lth Assembly Resolution WHA 1.102), to request advisory opinions fromthe Court 'on legal questions arising within the scope of its competence'. See the WHO Opinion, ICJReports (1996). at 72, paras 11-12.

11 See, for example, the statement of Professor Pellet, Counsel for France, Oral Pleadings. Legality of theThreat or Use of Nuclear Weapons. CR95/23 (translation), at 53 et seq. See also the statement of MrHlllgenberg, Counsel for Germany: 'In the view of my Government the question before the Court Isbasically of a political nature'. Ibid, CR95/24, at 35 et seq, para . 12 . Earlier Mr Hlllgenberg had said: 'MrPresident we are aw are th at m any highly respected experts believe that progress to date In thefieldofnuclear arms control and disarmament Is still not sufficient, and tha t a Judicial ruling on t he legality orIllegality of the us e of nuclear w eapons m ay help expedite the process. This Court, how ever, according tothe Charter of the United Nations and Its own Statute, Is called upon to give advisory opinions on legalquestions. It should not enter the politicalfield ofpromoting disarmament through opinions on political matterspending In various international political fora.' (Emphasis added). CR9 5/24, at 35, para. 7.

14 See the Written Statement of the United Kingdom. Legality of the Use by a State of Nuclear Weapons inArmed Conflict (Request by the WHO), at 5 3- 58 . The UK argued, with respect to the WHO request, thatan advisory opinion ought not to be given where 'th e motivation behind the request is essentially politicaland extraneous to the proper aim of seeking guidance as to the legitimate functions of the organ ororganisation'. On the arguments p ut to the Court m this regard see Responses by the Republic of Nauru toSubmissions of Other States, Written C omments on the Written Statements of Other States. Legality of theUse by a Slate of Nuclear Weapons in Armed Conflict (Request by the WHO), at para. 2. 1. Here Nauru setsout the argum ents of various states to the effect that the question put to th e Court Is political. See further


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was a legal one,15 and that an advisory opinion from the Court would clarify the legalposition for states and could contribute to the ultimate goal of nuclear disa rm am ent 16

The Court had no problem in ruling that both of the questions submitted to it wereof a legal nature. It relied on its dictum in the Western Sahara Advisory Opinion, inwhich it had stated that questions 'framed in terms of law and raisflng] problems ofinternationa l law .. . a re by their very natu re susceptible of a reply based on law .. .[and] appear .. . to be questions of a legal characte r'.17 With respect to the questionsbefore It, the Court held that it would have to Identify existing rules and principles,interpret them and apply them to the threat or use of nuclear wea pons. It would haveto identify the obligations of states under rules of law and assess whether the use ofnuclear weapons would conform to those obligations. The reply given would thus bebased on law.18 The Court further held, consistently with its previous Jurisprud ence,19that th e fact tha t the question also had political overtones or tha t the request for theopinion was politically motivated did not deprive the Court of its jurisdiction.20

Clearly this par t of the C ourt's decision (dealing with the C ourt's jurisdiction21) wascorrect The Court's duty in deciding cases brought before it (including advisoryopinions) is to apply the sourc es of law laid dow n in Article 38(1) of the Statu te. In sofar as a question before the Court raises issues covered by those principles, thatquestion has a legal nature within the competence of the Court. Thus, it is only incases where the law provides no basis for decision that the Court's competence wouldbe excluded. Indeed, this point may be considered so basic now that it is has been

Akande. T he Role of the International Court of Justice In the Mainten ance of International Peace'. 8African]. lnt'l&Comp. L (1996) 592, at 599-6 01.See, e .g., the statemen t of Dr Al-Nauiml, Minister of Justice of Qatar, that 'while th e question may have apolitical background, or political implications, the nature of the question before the Court today is not apolitical one.' Oral Pleadings. Legality of the Threat or Use of Nuclear Weapons. CR95/29 . at 29 . para . 14 .See, e .g. , the statem ent of Professor Georges Abl-Saab. Counsel for Egypt 'it would be too presum ptuousto assume that an advisory o pinion would sett le once and for all the problems of nud ear w eapon s For th einternational com mun ity. But it can clarify all or part of the legalit ies of this problem.' Oral Pleadings,Legality of the Threat or Use of Nuclear Weapons. CR95/32, at 32. He went on to say that 'an advisoryopinion on the legalit ies of the threat or use of nuclear wea pons [would] be a building block In the legalregime of a future nuclear safe and reconciled world.' Ibid, at 34. Also. Senator Gareth Evans, theAustralian Foreign M inister argued that if the mem bers of the Court were 'minded to answer the questionbefore [them, their] advice can a nd will materially effect the ach ievem ent of that nuclear disarmament',Ibid. CR95/22 . at 73 , para . 73 .ICJ Reports (19 75 ), at 1 8, para. 15 .General Assembly Opinion, IQ R eports (19 9 6) at 2 3 3- 2 34 . para. 13: and the WHO Opinion, Ibid, at 7 3 - 7 4 ,para. 16.See Conditions ofAdmission ofa State to Membership In the United Nations (Article 4 of he Charter). AdvisoryOpinion, ICJ Reports (19 48 ) at 61- 6 2; Competence of the General Assembly for the Admission o f a State W theUnited Nations, Advisory O pinion, ICJ Reports (19 50 ). at 6- 7: Certain Expenses of the United Nations(Article 17. paragraph 2. of the Charter. Advisory Opinion, ICJ Reports (1 96 2). at 15 5.General Assembly Opinion, IQ Reports (19 96) . a t 2 33 -2 34 . para . 13: and the WHO Opin ion. Ibid, at7 3 - 7 4 . p a r a s 1 6 - 1 7 .See later for the argument that the Court had the power of discretion to refuse to give an answer to aquestion w hich It had Jurisdiction to deal with.


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described as one of the few problems con cern ing the C ourt's advisory jurisdiction th athas finally been resolved.22

3 The Competence of the WHO to Deal with the Legality ofthe Use of Nuclear WeaponsThe main question raised in the WHO proceedings was whether the WHO wascompetent to deal with the legality of the use of nuclear weapon s. Argumen ts put tothe Court by variou s states differed greatly on this issue. The Court, by 1 1 votes to 3 , "held that the WHO did not have the competence to request an advisory opinion on thequestion and thus refused to respond to it2 4 According to the Court, the question ofth e legality of the use of nuclear w eapons did not fall within th e m anda te of the WHO.It held that the Organization was only authorized to 'deal with the effects on health ofthe use of nuclear weapons, or of any hazardous activity, and to take preventivemeasu res aimed at protecting the health of populations in the event of such wea ponsbeing used or such activities engaged In.'25 The question put to the Court did not relateto the 'effects of the use of nuclear we apons on health, but to the legality of the use ofsu ch weap o n s i n view of their health and environm ental effects'.26According to the C ourt, the competence of the WHO to deal with he alth matters isnot depen dent on the legal or illegal nature of the acts tha t gave rise to the situation.The WHO has a mandate to deal with human health and it must carry out its taskswhatever the cause of a deterioration of health. The Court pointed out that thecompetence of international organizations is governed by 'the principle of speciality':"That is to say, they are Invested by the States which create them with powers, thelimits of which are a function of the comm on interests whose prom otion those Statesentrust to them.'27 Thus, unlike states, which have a general competence to act aninternationa l organization can only act whe re it has been entrusted by the states withthe power to act 2 8 The gra nt of the power to act may either be express or It may beimplied from the c onstituent Instrum ent of the organization, bu t such an implication

See Hlgglns, supra note 7, at 568. The approach of the ICJ Is similar to that adopted by the CanadianSupre me Court In the exercise of Its advisory function. See Reference re. Secession of Quebec, decision of 20August 1998, paras 24-28. For further comment on the question of a legal /political distinction, seeGowUand-Debbas, The Relationship between the International Court of Justice and the Security Councilin the Light of the Lockerbie Case' . 88 AJZL(1994) 64 3. at 6 48 -6 53 : Akande. supra n o te 1 4 . at 5 9 2 - 6 0 3 ;Suglhara, The Judicial Function of the International Court of Justice with Respect to Disputes InvolvingHighly Political Issues'. In Muller, Rait and Thu ranszky (eds). The International Court of Justice: Us FutureRole after Fifty Years (1997) . a t 117 .The three Hlsarittng judges were Judges Shahabuddeen, Weeramantry and Koroma.WH O Opinion. IQ Reports (1996). at 84, para. 32.Ibid, at 76. at para. 21.Ibid, emphasis in original.Ibid, at 78 -89 . para . 25 .Ibid.


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may only be made where such powers are necessary for the fulfilment of dutiesentrusted to the organization.29

In addition to th e 'principle of speciality', the Cou rt also relied on th e fact tha t th eWHO is a specialized agency within the United Nations 'system'. It held that indetermining the powers conferred on the WHO by its Constitution, 'due account[must be taken] of the logic of the overall system contemplated by the Charter'. 30According to the Court, the functions of the WHO, within th at system , are 'neces sarilyrestricted to the sphere of public "health" an d can not en croach on the responsibilitiesof other parts of the United Nations system'.31 The Court further stated that:

there Is no doubt that questions concern ing the u se of force, the regulation of armaments anddisarmament are within the competence of the United Nations and lie outside that of thespecialized agencies. Besides, any other conclusion would render virtually meaningless thenotion of a specialized agen cy; It is difficult to Imagine w hat other meanin g tha t notion couldhave if such an organization need only show that the use of certain weapons could affect itsobjectives in order to be empowered to concern itself with the legality of such use."

Thus, it was held that the WHO was not competent to deal with the legality of theuse of nuclear weapon s and could not request an opinion from the Court on the poi nt

A number of comments can be made about this position of the Court and thereasoning on which it is based. Firstly, the Court's n arro w c onstru ction of the impliedpowers of the WHO and of international organizations departs from the Court's ownprevious Jurisprudence. It should be noted tha t w hile the jurisprudence of the C ourthad established th at implied powers can only arise by necessary implication and m ustbe essential to the performance of the organization's duties,33 the requirement of wha tis essential has been widely interpreted in previous advisory op inions. Eli Lauterpachthas observed tha t the C ourt, in determining what is essential to the performanc e of thefunctions of the UN for the purpose of implying a power, has n ot regarded the criterionof essentiality as meaning 'absolutely essential' or 'indispensable'.34 What the Courthas usually looked for is evidence that the power to be implied would enable theOrganization to function to Its full capacity as expressed in its objects and purposes; inother w ords tha t the implied power would promote th e efficiency of the O rganization. See Reparations for Injuries Suffered In the Service of the United Nations, Advisory Opinion. ICJ Reports

(1949), at 182-183: 'Under International law, the Organisation mustbedeemed to have those powers,which though not expressly provided for in the Charter, are conferred upon It by necessary implication asbeing essential to the performance of its duties.'

10 WHO Opinion. ICJ Reports (1996), at 79-81. para. 26." ttiiat80." flrii at 80- 81 ." See supra note 29: see also Effect of Awards of Compensation Made by the United Nations Administr

Tribunal Advisory Opinion, ICJ Reports (19 54) . at 56.H EL Lauterpacht Th e Development of the Law of International O rganizations by the D ecision of

International Tribunals', 152 RdC (1976, IV) 387 at 430-432, drawing on the differences In theapproach of the majority and of Judge Hackworth In the Reparation for Injuries Advisory Opinion, Seehowever, P. H. F. Bekker. 77a Legal Position of lnterGovemmental Organizations: A Functional NecesAnalysts of Their Legal Status and Immunities (199 4) 82 -8 3, who argues that the words 'necessary' an

" 'essential' as used by the Court should be applied literally and strictly.


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Thus, in the Reparations for Injuries Opinion, the Court did not seek to decide whetherth e UN would be un able to perform its functions if it could n ot brin g a claim on behalfof its agents; rather the Court stated that 'to ensure efficient and independentperformance of these missions and to afford effective support to its agents, theOrganization m ust provide them with adeq uate protection'. iS In the Certain Expensesadvisory opinion, the Court stated, in relation to the UN, that 'when the Organizationtakes action which warrants the assertion that it was appropriate for the fulfilment ofone of the stated purposes of the United Nations, the pre sum ption is that suc h action isno t ultra vires the Organization'.36 In the Effect of Award of Compensation Made by theUnited Administrative Tribunal Opinion, the Court relied on the need to ensure theefficient work ing of the Se cretariat 37 as justifying the pow er of the G eneral Assemblyto set up an Adm inistrative Tribun al, albeit in the context of a provision in the Ch arterreferring to the paramount consideration of securing the highest standards ofefficiency, competence and integrity in the employment of staff.38

Thus the Court has been rather liberal in Implying powers for the UN.39 It has doneso where it can be show n tha t the power claimed relates to and is directed at achievingthe purposes and functions given to the Organization by its constituent instr um en tThe Court has not sought to imply powers only from expressly given powers or fromparticular stated provisions of the constituent instrum ent, but has Implied powers bytaking into acco unt the general purposes of the Organization and the conditions ofinternational life.40 Some have even argued tha t the consequence of this approach isto suggest that International organizations have inherent powers to perform any actswhich are directed at attaining the aims of the organization.41 According to this schoolof thoug ht, the only restrictions on the powers of an Internation al organization are,firstly, to act within their alm s and purposes; secondly, to not perform a cts which theyare expressly precluded from performing; thirdly, to act through the proper organs:and fourthly, the principle that these organizations do not have general inherentJurisdiction over the M ember States. Although this inherent powers school has been thesubject of some criticism,42 it can be observed tha t the effect of the theor y is in practice" ICJ Reports (1949). at 183.14 i q Reportji (196 2). at 168 ." i q Reports (195 4). at 57.u Art. 101(3) of the Charter." See N. D. White, The law of International Organisations (1 9 9 6 ) . at 1 2 8 - 1 3 1 : D . Bowett The Low of

International Institutions (1982, 4th ed.). at 3 3 8 .40 Contra, Tunkln, 'Legal Bases of International Organization Action'. In R. I. Dupuy (ed.), A Handbook of

International Organizations (1 9 8 8 ) . a t 2 6 5 - 2 6 9 . w h o argues that o n e cannot Imply powers from'institutional effectiveness' o r the objects a n d purposes of an organization b u t only from concreteprovisions of Its constit uent inst rume nt

41 Seyersted, 'International Personality of Intergovernmental Organizations: Do Their Capacities ReallyDepend Upon Their Constitutions?'. 4 Indian /. Inti law, (1964) 1 . a t 19-25: Seyersted. 'United NationsForces: Some Legal Problems'. (1961)37 BYbJL 351 at 453-460: F. Seyersted. United Nations Forces Inthe law of Peace and War (1 9 6 6 ) . at 1 5 5 .

" Crttidsm has been made on the basis that this theory falls to distinguish be tween those powers whi ch arenecessary consequences of International legal personality (and thus possessed by all Internationalorganizations) and those powers which must be Implied because they are necessary to Implement the


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the sam e as th e principle utilized by the C our t43 the purposes of the organ ization andthe effectiveness of its operations in carrying out its functions are the main limitingfactors. Action w hich ca n be show n to contribute to thefulfilment of those purpo ses orwhich would promote the effectiveness of the organization in carrying out its givenfunctions is within the competence of the organization as long as it is not expresslyexcluded.The liberality with which the Court has treated the powers of internationalorganizations has not been evident only in relation to implied powers but also in theconstruction of the express powers of those organizations. As the Pe rma nent Court ofInternationa l Justice held in the Jurisdiction of the European Commission of the DanubAdvisory Opinion (referred to in the Nuclear Weapons Opinion): '[an internationalorganiz ation] only ha s the functions bestowed up on it by the Definitive Statu te with aview to the fulfilment of [its given] purpose, but it has power to exercise thosefunctions totheir full extent, in so far as the Statute does no t impose restrictions on It'.4*

The wording of the WHO Opinion might lead to the conclusion that the Court wasapplying the same principles as those just referred to . The Court cited some of the cas esmentioned above, stated that the powers of international organizations are onlylimited by the com mon Interests whose promotion the M ember States entrus t to theorganization, and acknowledged that those organizations may exercise theirfunctions to the fullest extent as long as there is no restriction on that exercise.45 Intruth, however, the Court has not been faithful to the established principles. Whilstthe Court stated that none of the express functions of the WHO has 'a sufficientconnection with the question before it',4* it is clear that it took a restrictive view ofthose functions and th e level of connec tion required . By stating that the competence ofth e WHO is confined to 'effects on hea lth of the use of nuclear weapons, or of any otherhazardou s activity, and to take preventive measures aimed at protecting the h ealth ofpopulations in the event of such weapons being used or such activities engaged in',47 tCourt took a restrictive view of the competence of the organization and was notsatisfied tha t the exercise of the power und er c onsideration (to consider the legality ofthe use of nuclear weapons) would promote the objectives of the organization. TheCourt confined th e com petence of the organization to ma tters th at arise after an actwith debilitating effects on health has occurred. A truly preventive role of theorganization is thus Ignored by the. words emphasized in the q uotation above. Theorganization is apparently debarred from engaging in activity that might lead to thenon-occurrence of acts (including the use of nuclear weapons) certain to damagehealth and can only respond in the light of such events happening. The Court thus

functions provided for in a particular organisation's constitution. See Rama Montaldo, 'InternationalLegal Personality and Implied Powers of International Organisations'. 44 BY1L (1970) 111, esp. at118-124.See White, supra note 39. at 133.POI. Series B. No. 14. at 64. emphasis addedWHO Opinion. IQ Reports (1996). at 76-79. paras 21-25.Bid, at 77. para. 22.Mi. at 76. para. 21. em phasis added.


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ignores or denies the WHO the possibility of acting to control the use of nuclearweapons. The Court's conclusion would seem to undermine Article 1 of the WHOConstitution, which states that 'the objective of the World H ealth Organization .. .shall be the attainment by all peoples of the highest possible level of health', andArticle 2(v), which provides that the organization may 'generally ... take allnecessary action to attain the objective of the Organization'. A full exercise of thefunction of the WHO would surely allow it to take action to prevent the occurrence ofacts known to be damaging to health. Such action would clearly be taken infurtherance of the objectives of the organization.

Whilst there may be a certain intuitive feeling that the WHO should not be used toengage in political action and that the prevention of the use of nuclear weapons ispolitical, it mu st be remembered th at the ruling of the Court is not only confined to theuse of nuclear weapons but extends to 'all hazardous activity'. 48 Thus, the WHO isprevented from dealing with the legality of any activity that is dangerous to health.Would this have been the holding of the Court if the question ha d been w hether theWHO is competent to propose a convention bann ing or restricting the use of narcoticsubstances or tobacco49 or outlawing the use of asbestos building materials orprohibiting the use of infected blood in transplants? 50 These examples would suggestthat the WHO can engage in activity which 'deals with' the legality of hazardousactivity where the focus is the prevention of harm to hum an health. M ore specifically,it must be remembered that Article 2(k) of the WHO Constitution empowers it 'topropose conventions, agreements and regulations, and make recommendations withrespect to international health matters ...'" Can it be said that a convention dealingwith the use of a substance or thing that is known to cause significant damage tohu ma n h ealth does not deal with a health matter? Such a convention would certainlybe action taken for the purpose of attaining the highest possible level of health. 52 Th e

Ibid,In May 1996. the 49th World Health Assembly adopted a resolution calling on the Director-General ofthe World Health Organixatton to Initiate the development of an International framework convention fortobacco control . WHA 49.17, International Framework Convention fo r Tobacco Control, The 49th WorldHealth Assembly, 199 6. This resolution of the Health Assembly arose out of a recommendation of theExecutive Board of the World Health Organization contained In a feasibility study carried out by thatbody, EB97/TNF.DOC./4, The Feasibility of Developing an International Instrument For Tobacco ControlReport by the LHrector-Gencral, Executive Board, 97th Session, 30 November 1995. The feasibi l i ty studywas requested by the Health Assembly. WHA48.11. An International Strategy for Tobacco Control, Th e48th World Health Assembly. 199 5. The proposed conven tion would be th e first WHO convention. Seegenerally:http-y/www. wfao .org /programmes /psa / toh/ Alert / |u l96 /E/ l l .ht mlI am grateful to Professor Crawford for raising and discussing this point with me.Article 19 of the WHO Constitution describes the procedures by which WHO conventions are to beadopted. As at the Hnw of writing, no convention has been adopted under this article.Of course. It Is another question whethe r the organization. In proposing such a convention, has ptupnlybalanced the detrimental health effects of the substance outlawed with other considerations (such as anybeneficial effects, the feasibility of achieving prohibition, etc). These issues would not affect thecompetence of the organization but would Influence the success of the efforts of the organization m termsof whether the proposed convention Is adhered to by states.


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point, therefore, is tha t in the sense that the WHO has the capacity to propose treatiesdealing with such activity it has the competence to engage in action affecting thelegality of such activity. The Court would thus appear to be wrong in stating th at theorganization can only deal with effects on health and not with legality.

To say that the WHO has some competence to deal with matters touching on thelegality of the use of nuclear weapons is not, however, to say that it can deal with allmatters relating to the legality of the use of such weapons. The com petence argued forhere is a limited one: it relates only to the ability to promote treaties directed atcontrolling the use of nuclear weapons. The WHO would thu s not be competent toexamine w hether a particular state has acted in contravention of international law inusing nuclear weapons (unless any treaty specifically gave It that power) or shouldnot be particularly concerned with whether any threatened use or posture iscompatible with intern ational hum anitaria n law. In this respect, the C ourt is right tostate that the com petence of the WHO is to address the negative effects of the us e (orpotential use) of nuclear weapons and tha t in this task it need not co ncern itself w ithwhether such use would be lawful or not. However, as a general matter, theorganization would not be acting outside its remit in seeking to bring about legalcontrols on conduct which would have a significant, widespread and direct effect onhuman heal th .

The question that may then be asked is whether nuclear weapons are within thesame class as other activities detrimental to h ealth, such as those considered above(tobacco smoking, narcotic abuse, use of asbestos materials or infected blood). Woulda convention dealing with the legality of nuclear weapons really be a conventiondealing with a health matter? It may be asserted that the raison d'etre of nuclearweapons is defence and that the effect on health is secondary. Weapons are primarilya defence matter and no t a health concern. H owever, a similar assertion would be trueof any othe r hu m an activity affecting h ealt h. These activities serve other purpos es bu tare found to have harmful health effects. It is those harmful effects that make thoseactivities also a health concern.

It may also be argued that if it is agreed that the presence of harmful effects onhealth brings a matter w ithin the competence of the WHO, then an und uly large andinappropriate number of activities would be considered health matters and wouldthus be subject to WHO regulation.53 However, it is clear that the WHO hasresponsibilities in the are a of health (including tha t of proposing c onve ntions) a nd if amatter is known to have a significant bearing on human health, it is difficult to seehow the matter is legally excluded from its scope of consideration. Wh ether a m atter Is" See Matheson. supra note 6. at 419: 'If the WHO were held to have competence over the legality of

nuclear weapons because their use could adversely affect human health. It could also assert the samecompetence over a wide range of other activities that could affect human health, from he Initiation andconduct of conventional wars to the operation of industries that might cause air and water pollution.WHO might just as well have asserted competence to Inquire Into the legality of the Iraqi Invasion ofKuwait because Iraq's conduct of the war caused serious health haiards, or the legality of transfers ofnuclear materials of possible proliferation concern because their misuse could cause damage to hum anhealth.'


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a 'health matter' within the meaning of Article 2(k) should be dependent on w hetherit has a significant and direct effect on pub lic health. It is clear th at the use of man y (ifnot most) nuclear weapons would have a long-lasting effect on human health in ageneral (i.e. not isolated) mann er. N uclear weapons are different from o ther weaponsin that their use would create a situation (after the event) which directly andsignificantly threatens the health of those in the area. This threat arises directly fromthe use of those weapons, not from the resulting destruction. In this sense, it can besaid th at the use of nuclear w eapons is a health matter, even if it is also a m atter ofgreat political weight The WHO would therefore appear competent to proposeconventions (under A rticle 2(k)) concerning nuclear w eapons in the same way th at itmay propose a convention on, say, tobacco control.

Nevertheless, it may be argu ed that, given that th e WHO's focus on the issue is onlyfrom one perspective (i.e. health), the question of the use of nuclear weapons maymore appropriately be dealt with by other international bodies and should th us n ot beheld to be within the c ompetence of the WHO.54 This reasoning was supported by theCourt when it stated that th e competence of the WHO must also be interpreted in thelight of the system created b y the UN Charter ." Whilst it is evidently correct to proceedon the basis of the 'logic of the overall system contemplated by the Charter', 56 on emust be clear as to wha t this logic is. The Court proceeded on the assum ption tha teach specialized a gency of the UN has a discrete area of operation separate from that ofthe other agencies. For the Court, the essence of having specialized agencies is thatthey each have specialized functions w hich differ from those of the oth ers. The C ourtthus assumed that once a function falls within the competence of one specializedagenc y, it is therefore ex cluded from the functions of the o thers . This is evident fromthe Court's statement that the responsibilities of the WHO are necessarily restricted tothe sphere of public health 'and cann ot enc roach on the responsibilities of other pa rtsof the United Nations system'. The Court continued, '[a]nd there is no doubt thatquestions concerning the use of force, the regulation of arm am ents and disarm ame ntare w ithin the com petence of the United Nations and lie outside that of the specialisedagencies. Besides, any other conclusion would render virtually meaningless thenotion of specialised agency ...'"It cannot be correct to suggest that there can be no overlap of functions amongspecialized agencies or betw een the UN and th e specialized age ncies.58 Tha t legitimateoverlap does exist is evident from the c onstitutions of the specialized agencies as well

M See Matheson, supra note 6 . a t 41 9 : ' . . . the WHO request in the Nuclear Weapons case disregarded thatfact that the main political organ s of the United Nation s have a Tar stronger m anda te and far greaterexpertise to deal with the legality-of the use of nuclear weapons'.

" WHO Opinion, ICJ Reports (1 99 6) , at 7 9 - 81 . para. 26.* J M a t 8 O .** This point was appreciated by Judge Weer amantr y In Part V(2) of his dissentin g opinion In the WH O

Opinion. Ibid, at 149-151. For a discussion of this overlap of functions In the health field, see Lee.Collinson, Wolf and Gilson. 'Who Should be Doing What in International Health: A Confusion ofMandates In the United Nations? 1. 312 B ritish Medical Journal ( 1 9 9 6 ) 3 0 2 .


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as from their practice. The Preamble to the Constitution of the Internationa l LabourOrganisation (ILO) includes amon g its objectives 'th e protection of the worke r ag ainstsickness, disease and injury arising out of his employment'. This objective takes theILO into the are a of health and overlaps with the com petence of the WHO. For its part,the W HO's m an dat e also seems to fall within tha t of the ILO in tha t Article 2(i) of itsConstitution states that the functions of the organization include the promotion 'incoope ration with other specialised agencies where n ecessary, [of] the Imp rovement ofnutrition, housing, sanitation, recreation, economic or working conditions and otheraspects of environmental hygiene' (emphasis added). There is thus clear overlap in thefunctions and objectives of the two organizations. In practice, the ILO has proposedvarious conventions and recomm endations dealing with the hea lth of workers.59 Thiscannot mean that the WHO is incompetent to deal with health issues affectingworkers. Similar overlaps can be found in the work of the International MaritimeOrganization (IMO) and the United Nations Environment Programme (UNEP, asubsidiary organ of the UN General Assembly) or in the activities of theseorganizations and the International Atomic Energy Agency (IAEA) in respect of thetran spo rt of nuc lear fuel by sea. The IMO ha s formulated a Code for the Safe Carriageof Irradiated Nucle ar Fuel, Pluton ium and High-Level Radioactive Was te in Flasks onBoard Ships (INF Code) and the IAEA has also promulgated regulations for thetranspo rtation of radioactive material.60 While it is true th at work in this area is beingcarried o ut in cooperation by the three organizations, it cannot be said that any one ofthese org anizatio ns could be deprived of comp etence over this issue solely because it iswithin the competence of another organization. Care must therefore be taken inconstruing the powers of one organization based on the powers of another. To do thiswould be a reversal of the principle that an organization can exercise its function tothe full extent as long as its statute does not Impose restrictions on it6 1 It would alsonegate th e principle th at the limits of the powers of an international organization are afunction of the common interests entrusted to tha t organization.62

Indeed, to suggest that one specialized agency cannot encroach on the responsibil-ities of others might even discourage cooperation among agencies. This would be anunfortunate situation: cooperation amon g agencies can only enrich their work as itbrings different perspectives to the issues. However, the desirability of cooperationshould not be taken to affect the legal competence of these organizations. Whilecooperation should be encouraged in all areas, legal competence to address an issueshould not be denied an organization on the ground that it would benefit from

" See. for example. Convention No. 13 : White Lead (Painting). 19 21 ; Convention No. 115 : RadiationProtection, 1960, reproduced (with other examples) In International Labour Conventions andRecommenMions: 1918-1981 (1982).

* See FWeU. 'Maritime Tr anspo rtation of Pluton ium and Spent Nuclear Fu el', 31 International lawyer,(199 7) 757 . referring to General Conference Resolution on Code of Practice on the International TransbounMovement of Radioactive Waste, IAEA (21 September 199 0). 30 HA4 (199 1) 55 6.

*' Jurisdiction of the European Commission of the Danube, Advisory Opinion, PdJ Series B. No. 14. at 64.quoted In the WHO Opinion, i q Reports (1996), at 79, para. 26.u WHO Opinion, i q Reports (1996). at 78. para. 25 .


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consulting another agency or even that another agency would be better placed toaddress the question. This is a concern w hich needs to be taken into account at thepolitical, administrative and technical levels. An organization which does not engagein such necessary consultations might well find itself engaging in activities whichremain ineffective. Likewise, an organization which performs acts that are within itscompetence but which are more squarely within the competence of anotherorganization and would be better handled by that organization is likely to find itselfsubject to the criticism of Member States.63 However, this is not to say that theorganization is acting ultra vires.64

The underlying point is that it is wiser to adopt a broad, rather than narrow,construction of the com petence of each interna tional organization. Such an approachwould allow for a more complete attack on international problems. This broadcompetence is particularly apposite in a situation where the work of the o rganizationis subject to the approval of Member States (for instance, where the relevant work isthe formulation of conventions). In such a situation, the organization's work is stillsubject to review and t he organization c ann ot adversely affect the rights of a mem ber.

In the WHO Opinion, the Court signalled that it will narrowly construe thecompetence of specialized agencies of the UN, particularly in cases where otherorganizations are better placed to perform the task soug ht to be undertake n by theagency in question. The Court seems to have been enticed by the a rgum ent th at th eWHO, in considering the issue of the legality of the use of nuclear weapons, wasengaging in 'politica]' matters lying within the remit of the UN and therefore outsidethe competence of a specialized agency. That such a matter would have ramificationsfor the achie vem ent of the objectives of the WHO was not sufficient argument to justifythe organization hav ing competence over it. In sh or t the Court seemed to be sayingthat specialized agencies should confine their attention to technical and functionalma tters. As has been noted above, this is a departure from previous cases where thenotion of giving full effect to objects and purpo ses of the org anization was pa ra m ou ntHowever, thos e previous opinions of the Court dealt with th e UN itself and m ight thus ,in the opinion of some, be distinguishable from the principles that ought to apply tothe competence of specialized agencies. This distinction notwithstanding, this writerwould argue tha t the sam e test ought to be applied to the competence of internationalorganizations and tha t such test should be one which gives those organizations roomto achieve their goals.

To return to the question of whether the WHO was acting within its competence Inputting this question to the Co urt if one accepts that the WHO has some competenceto engage in acts dealing with the legality of nuclear weapons, the issue ought to bewhether the question asked was directed at those acts within its competence, for" See Wh ite, supra note 39, at 148- 151 . for a discussion of the withdrawal of the USfromHO and the US

and UKfromUNESCO on the ground th at those organiiations were engaging In 'political' activity beyondtheir man date. See Lee et al. supra note 58 for suggestions as to how UN agencies with similar 'formalman dates' (I.e. legal competence) may best sort out who does wh at In practice.

M See Ibid, at 150 for the argument that the ILO and UNESCO had not acted ultra vira\n considering Issuesconsidered by some states to be 'political'.


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instance promotion of a convention. Thus, if the opinion was requested because itwould have helped the WHO develop a strategy for the control of nuclea r w eapo ns, itwas admissible. On the other hand, if the request was directed at some other purposeunrelated to any actual WHO programme, the request could have been consideredinadmissible.

4 Do Organizations Authorized to Request AdvisoryOpinions Always Have the Competence to Seek Opinions onthe Interpretation of their Constituent Instruments?An equally difficult issue, and one not satisfactorily dealt with by the C ourt, conc ernsthe competence of the WHO to request an advisory opinion on whether the use ofnuclear w eapons w ould be a breach of the WHO Constitution. It is arguable that evenif the WHO was not co mp etent to deal with the legality of the use of nuc lear weap onsund er genera l intern ation al law, it was entitled to discuss, and th us to seek an opinionon, whether certain obligations arise for states in relation to such use under itsConstitution. Arguably, the interpretation of the constituent instrument of aninternational o rganization is always a matter within the functions of that organiza-tion; it is thus always entitled to request an advisory opinion from the Court on thepoint. Of cours e, this is not to sugges t tha t the C onstitution of the WHO does contai nobligations for state s in relation to the use of nuclea r w eapon s. It is simply to say tha tthe WHO, and indeed its members, were entitled to know whether there were suchobligations for Member States. One might go further to argue th at the W HO is entitledto seek an interpretation of its Constitution even if the interpretation given would notmaterially affect the c oncrete functions to be carried o ut by the organization. It is clearthat if obligations arise for states under th e constituent instrum ent of an internationalorganization, these are still treaty obligations, though their fulfilment might notmaterially affect the organization's functioning.

The Court, howeve r, took a different view. It held tha t 'th e WHO is not empo weredto seek an opinion on the interpretation of its Constitution in relation to mattersoutside the scope of its functions'.65 This ruling can prompt a number of possibleinterpretations. The first is that the Court was implying that interpretation of theconstituent instrum ent of an international organization does not always lie within thescope of the functions of the organization. Thus, an organization is not automaticallyentitled to request an advisory opinion on this matter unless such interpretationwould m aterially affect its work. This cons truction of the C ourt's position flows fromthe fact that Article 96(2) empowers an authorized specialized agency to requestopinions on legal questions 'arising w ithin the scope of their activities'. If one ta kes th eview that a n inter national organization is always entitled to interpret Its constituent" i q Reports (199 6), at 82 . para. 28. Contra, the statement of Judge Weeramantry In his dissenting

opinion: 'I find it difficult also to accept that an organ of the United Nations, empowered to seek anadvisory opinion on a question of law, has no competence to seek an Interpretation of its ownConstitution.' JttA at 128-129.


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instr um ent then this in itself is a matter which validly arises within the scope of itsactivities. It therefore follows that it may legitimately seek an opinion on the point.Thus, for the Court to deny an organization the power to request an advisory opinionon the matter is to say that interpretation of the constitution in respect of the questionasked does not validly or properly come within the activities of the organization.

Another construction that can be given to this ruling is that the Court did notdismiss the WHO's request in so far as it related to the WHO Constitution, but ratheranswered the question in the negative. This is th e view of at least two of the dissentingjudges. Judge Shahabud deen stated that, in holding that the WHO has no competenceto address the question of the legality of the use of nuclear weapons, the Court

Implies a finding that, und er the Constitution of the WHO. a Member State has n o ob ligationnot to use weapons, such as nuclear w eapons, which could result in health and enviro nm entaleffects, for. If a Member State had such an obligation, the WHO would have had somecompetence to address a question of the legality of a use of weapons which might haveoccurred In breach of the constitutional obligation."

This construction of the Co urt's opinion is based on the view that the interpretationof an international organization's constituent instrument is always a matter fallingwithin the activities or within the functions of that organization and that theorganization always has some competence to address in some way the breach of itsconstitution. In this view, to say tha t an organization does not have the com petence toaddress th e legality of a particular situation is to say that its constitution has nothingto say on the matter.

The third interpretation tha t can be given to the Court's opinion is that, whe ther ornot an international organization may be (or is) entitled to interpret its ownconstitution, this is not the sort of activity referred to in Article 96(2). The activitiesindicated there are material activities of the organization; activities that have abearing on the organization's work. Thus, if the legal question t hat has arisen in th eorganization does not have a bearing on its work, the organization is not entitled torequest an advisory opinion on the matter. According to this interpretation, the m erefact that a legal question may arise as to wh ether a course of cond uct followed by oneof its members is consistent with the organization's constituent Instrument is notsufficient if the legality of that conduct will not affect the character of action to beundertaken by or within the organization. This interpretation starts from apresum ption tha t the advisory function of the Court in relation to specialized agenc iesis intended as a means to assist them in the resolution of legal questions which affect

See the dissenting opinion of Judge Shahabud deen. ibid, at 99 and also Judge Weeram antry. T he findingthat the m atter is "outside th e scope of Its functions" Is itself an Inte rpretation ofWHO'S Constitution and.In reaching this conclusion, the Court Is In effect interpreting WHO's Constitution In response to WHO'srequest ' Ibid, at 1 28. Note that the UK. In addressing the question whether th e Court should respond tothe WHO request In so far as it dealt with the WHO Constitution, focused Its argum ents on the fact thatthe WHO Constitution did not contain any obligations for states with respect to the use of nuclearweapons. In reality, this was an argu ment on th e merits of the request and not on its admlssibUlty. SeeWritten Statement of the Government of the United Kingdom (WHO Request), a t 35-40 .


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their work. The implication is that the advisory function is there to provide thoseorganizations with a means of resolving legal questions on which concrete aspects oftheir work depend. The question should not be a fanciful one, and it should be onewhose a nsw er will materially affect decisions to be take n within the orga nization. TheCourt held that th e question put by the WHO did not m eet these requirements and itwas for this reason that the request for an advisory opinion was dismissed. Thusinterpreted, the Court's opinion says nothing on the general competence ofinternational organizations to interpret their constitutions. R ather, it only addressesthe Issue of when they can seek assistance from the Court in the task of suchinterpretation.

While this third interpretation is probably the one that the Court intended to give,the questions raised by the other two cannot be lightly dismissed. These questions m aynot have been in the minds of the judges in the majority, but they do nonethelessemerge from the logic of the opinion. Firstly, it is submitted that an internationalorganiz ation is always entitled to interpret its own cons titution and th at this is itself avalid activity of international organizations. When states create an internationalinstitution and accept certain obligations in its regard, it must be assumed that aforum will be established for discussing matters arising in the context of thatinstitution and that the functions of the institution will include discussion of theobligations they have undertaken. The proposition that interpretation of theconstituent instrument will first arise within the organization Itself was accepted bythe Intern ational Conference th at drew up the United Nations Ch arter67 and has beenaccepted by writers in relation to other intern ational organizations.68 In particular,Article 75 of the WHO Constitution makes it clear that the Health Assembly iscompetent to interpret that document. 69 Secondly, it is arguable that an organizationalways has some competence to deal with breaches of its constitution. Thiscompetence may be limited and the steps the organization may take in the event ofsuch breaches may have limited practical effect, but one can say that the breach of anorganization's constitution is always a matter within the scope of concern of thatorganization and always a matter on which the organization can take some action(whatever that action may be).70 The C ourt seems to have ignored this possibility. Byso doing, the Court's opinion may well have limited the prospect of internationalorganizations obtaining assistance from the Court on a matter (the breach of theirconstitution) they are entitled to discuss.

The drafting history of the Charter and Statute does not shed any light on the

S e e 1 3 U N C I O , 7 0 9 - 7 1 0 .See C. F. Amerastng he. P rinciples of the Institutional law of International O rganisations. ( 1 9 9 6 ) , a t 2 4 - 2 5 ;a G. Sena-m ere and N. M. Blokker. International Institutional Law , (1995. 3rd ed . ) , a t 845 . 1360.Art. 75 provides that 'Any question or dispute concerning the Interpretation or application of thisConstitution which is not sett led by negotiation or by the Health Assembly shall be referred to theInternational Court of Justice In conformity with the Statute of the Court, unless the parties concernedagree on another mode of sett lement 1 1 4 UNTS 1 8 5 . a t 2 0 2 .Th e organization may at the very least be competent to call on Its Member State to observe the treatyobligation It has und er the constitution of the organization.


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question wh ether inte rnational organizations are always entitled to request advisoryopinions on the interpretation of their constituent instrum ents. No specific referen ce Ismade to the cons tituent instrum ents of these organizations in Articles 96(2) of theCharter and 65(1) of the Statute. Indeed, wording which would have expresslyreferred to the constitutions of these organizations was removed at the San FranciscoConference which drew up th e United Nations Charter and th e Statute of the C ourt.It will be remembered that only the Council and the Assembly of the League ofNations were permitted, by Article 14 of the Covenant of the League, to requestadvisory opinions; nor did the Statute of the Pe rman ent Court of International Justicecontain a provision perm itting other international organizations to request advisoryopinions of the International Court71 At the San Francisco Conference (and evenbefore then72 ) various proposals were therefore made to include a provision in theCharter and Statute which would permit International organizations to requestadvisory opinions from the Court.73 The most vigorous advocate of such a provisionwas the United Kingdom, which proposed that 'suitable provision be made to enablesuch international organizations as the General Assembly may authorize for thepurpose to request advisory opinions on questions of a constitutional or juridicalcharacter arising w ithin the scope of their activities'.7* When this proposal was finallyaccepted in principle by Committee 2 of Commission II of the Conference, thelanguage was the same as in the UK proposal.75 However by the time the UK draft76was approved by the relevant Committee of the Commission on Judicial Organization(Commission IV/1) the language had been slightly modified and the words

Despite the lack of such a provision a number of International organizations (especially the InternationalLabour Organisation) placed requests lor advisory opinions of the Court before the Council of the League.which in turn debated th e requests and then transmitted them to the Court See Schwebel. 'Was th eCapacity to Request Advisory Opinions Wider In the Permanent Court of International Justice than It Is Inthe International Court of Justice?', in S. M. Schwebel. Justice in International Law ( 1994). at 27. esp.3 2 - 4 1 .See th e Report of the Informal Inter-AWed Committee on the Future of the Permanent Court ofInternational Justice, 1 0 Feb. 1944. 39 AJIL (1945) supp., at 2 0 et sea. See also the proposals made In theUnited Nations Committee of Jurists, 1 9 4 5 (also called th e Washington Committee of Jurists: thisCommittee met before th e San F randsco Conference): 14 UNQO. at 373, 4 4 7 (proposal of Venezuela):Ibid, at 182, 3 1 9 (proposal of the United Kingdom). See also Urid, at 18 3, 85 0. For a fuller treatment of thehistory of International organizations w inning theright o request advisory opinions see, Schwebel. supranote 71: S. Rosenne, The Law an d Practice of the International Court (1965). at 655 -65 8: D. Pratap, TheAdvisory Jurisdiction of the International Court (1972), at 3 7 -4 4 .See 13 UNQO, a t 2 3 5 , 4 9 6 (proposal of Venezuela): 9 UNQO. at 3 5 8 -3 5 9 : 12 UNDO, at 8 8 -9 0(proposal of the United Kingdom). For discussion of how these proposals were received at the Conferenceand the event ual adoption of Article 96(2 ) of the Charter, see Rosenne, supra note 72, and Pratap. supranote 7 2.9 UNQO 357 , at 359: also at 12 UNQO 80. at 90 (emphasis added).9 UNOO. at 2 4 6 - 2 4 7 .For the formal draft proposed by the UK delegation to carry ou t the decision reached by Committee EL/2see 13 UNC3O, 512. The draft read as follows: 'Such other organs of the Organization, and suchspecialized agencies brought Into relationship with It, as may at any time be authorized thereto by theGenera] Assembly, m ay also request advisory opinions of the Court on questions of a constitutional orJuridical character arising within the scope of their activities' (emphasis added).


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'constitutional or' had been dropped so that the provision provided that the GeneralAssembly m ay authorize orga ns of the UN and specialized agencies to reques t advisoryopinions on 'questions of a juridical character arising within the scope of theiractivities'.77 Why this was done is not indicated in the records of the San FranciscoConference.

Nevertheless, the removal of specific reference to the constituent instruments ofspecialized agencies does not appear to have materially affected the interpretation tobe given to Article 96(2). Firstly, there had always been the condition that thequestion s hould arise w ithin the scope of the activities of the ag ency con cerned and itis that requirement that would have been most important. Thus, there would stillhave been the issue of whether the matter arose within the scope of activities of theorganization and the question would still have arisen whether all questions ofinterpretation of an organization's constitution necessarily lay within the scope ofthat organization's activities.78 Secondly, the words 'legal questions' include consti-tutional questions and it might well be for this reason that the specific reference toconstitutional questions was removed.

The WHO Opinion thus seems to establish that in deciding on the admissibillty of areques t for an advisory opinion from a specialized agen cy the Court will not re gard a ssufficient th e fact tha t such req uest is for an interpretation of the agency's constituentinstrument The key question here is whether the Court's determination of thequestion will have a bearing on the work entrusted to that agency (i.e. if anyparticular function of tha t agency is dependent on such determ ination) and whethe rconsideration of the question has been entrusted to the agency. The answer to begiven mus t have some practical effect on wha t the o rganization is mandated to do.The Court appears to have excluded from its consideration the proposition that theinterpretation of an organization's constitution is part of the organ ization's m andate .Perhaps it would have been better to make express what Judge Shahabuddeenthought was implied. Perhaps the Court ought to have accepted tha t the WHO had thecompetence to request an opinion in so far as it relates to its Constitution, but thenhold that the WHO Constitution does not address the legality of the use of nuclearweapons and that the Member States thus have no obligations in that regard underthat particular ins trume nt. This would have avoided the unfortu nate inference tha t itis possible for an orga nization to have no competence to determine whethe r a certainact would constitute a breach of its constituent instrument.

Alternatively, the Court may have dealt with the request by admitting thecompetence of the WHO to request an advisory opinion on the interpretation of itsCons titution, but the n used its discretion to decline provision of the requested opinion,hi this case, the ground for rejection of the request w ould have been tha t it was not77 13 UNQO. 298. The words 'question of a Juridical character' were later changed to 'legal questions'

(which is what appears in Article 96(2) of the Charter): see (bid, at 395.71 It might be argued th at the words 'arising within the scope of their activities' appears to qualify bothconstitutional questions and other legal questions, thus giggi-aing that it was felt that someconstitutional questions m ight n ot be within the scope of activities of the organtxation. However, norecords can be found of any debates on the wording of this provision.


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bonafidc related to the organization's work, but was Instead 'directed to some ulteriorpurpose'.79 It Is perhaps too early to determine the implications that the Court'sholding on this point may have for subsequent requests for advisory opinions broughtbefore the Court or even for the law of international organizations in general.

5 Do Requests from the General Assembly Have to Relate tothe W ork of That Organ?In the proceedings before the Court a n umber of states argued th at the Court shouldnot respond to the General Assembly's request on the ground that, a lthough Article96(1) states that the General Assembly and the Security Council are entitled torequest advisory opinions on 'any legal question', these organs are not entitled torequest advisory opinions on matters unrelated to their work.80 The argument madewas that despite the difference of wording in Articles 96(1) and 96(2), the GeneralAssembly and the Security Council are bound by the requirement in Article 96(2) tha treque sts for advisory opinions ma y only be on ma tters w ithin th e scope of activities ofthe requesting orga n. This argum ent w as put forward by Kelsen many y ears ago:

The determ ination of any org an's jurisdiction Implies the norm not to act beyond th e scope ofIts activity as determined by th e legal instrum ent instituting the org an. It is not very likely th atit was intended to enlarge , by Article 96, pa ragrap h 1, the scope of the activity of the GeneralAssembly and the Security Council determined by other Articles of the Charter. Hence thewords 'arising within the scope of their activities ' in paragrap h 2 of Article 96 are re du nd an t"

Kelsen's view finds some support 82 but Judge Rosalyn Higgins83 has noted that arequest for an opinion on a matter outside the scope of activities of the GeneralAssembly or Security Council 'entails no substantive enlargement of the scope of theactivity of the requesting organ merely the seeking of advice'. Indeed, there is no

See G. Fltnnaurice, The Law and Procedure of the International Court of Justice (1986), at 122. Fitxmaurlcestates that The Court does not consider Itself to be directly concerned with the motives andconsiderations which have inspired any request, but clearly attaches importance to the request beingbona fide required by th e requesting orga n for the purposes of its work.' He suggests that 'if the requestrelated to something w hich had nothing to do with the work of the organ requ esting it. and appeared tobe directed to some ulterior motive', the Court m ay consider that 'it would not be acting conformablywith its essentially judicial role In answering It'. Ibid, at 122.General Assembly Opinion. ICJ Reports (1996 ). at 23 2-2 33 . para. 11 . Article 96 of the Charter reads thus :

1. The G eneral Assembly or the Security Council may request the International Court of Justice to givean advisory opinion on any legal question.2. Other organs of the United Nations and sped allied agencies, which may at any tim e be so authorixedby the G eneral Assembly, may also request advisory opinions of the Court on legal questions arisingwithin the scope of their activities.

H. Kelsen. The Law of the United Nations (1951). at 546.Pratap. supra note 72 , at 61 and Rosenne. supra note 7 2. at 6 60. Schweb d mentions this view of Kelsenwithout expressing disapproval in 'Autho rizing the Secretary-General of the United Nations to RequestAdvisory Opinions of the Intern ational Court of Justice'. In SchwebeL supra note 71 (1 994 ). at 7 9.Higgins, supra note 7, at 577.


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question of 'enlargement' of the competence of these organs if the Charter expresslygives them the right to seek opinions on 'any legal question'. The view againstperm itting the General Assembly and the Security Council to seek opinions on m attersoutside the scope of their activities seems to be based on the supposition that thoseorgan s would h ave to discuss the matter in respect of which t he advice is sought, a ndthey may not be competent to do so.84 However, it is possible to separate the reque st foran advisory opinion from the action to be taken as a result of that opinion. It is quitepossible that, as occurred during the period of the League85 and as has beensubsequently advocated, the General Assembly or the Security Council may seek anopinion from the Court at the request of other international organizations. While theGeneral Assembly or the Security Council may no t have the com petence to discuss thesubs tance of the request. Article 96(1) gives them th e right to seek advice whic h m aythen simply be passed on to the organ or organization with competence to act on it.

However, this issue proved to be unimportant in the present opinion. The Courtavoided this debate altogether by holding that 'the question put to the Court has arelevance to many aspects of the activities and concerns of the General Assemblyincluding those relating to the threat or use of force in international relations, thedisarmam ent process, and the progressive development of international law'.

86Th eCourt found that the General Assembly had been given responsibility for all these

matters by the C harter and the question was on e tha t arose within the scope of thelegitimate activities of the General Assembly. In addition, the Court noted that theGeneral Assembly 'has a long standing-interest in these matters '.87

6 In W hat C ircumstances Should the Court Exercise ItsDiscretion to Refuse to Render an Opinion Requested of It?It has long been recognized that even when the Court has Jurisdiction to render anadvisory opinion, it is not compelled to do so .88 It lies within the Court's discretionwhether or not it will give an opinion asked of it. 89 This discretion is provided for InM However, It may be argued that because Article 13 of the Charter gives the General Assembly the

competence to 'initiate studies and make recommendations for the purpose of ... the progressivedevelopmen t of Internatio nal law and its codification', there Is no International legal question that can beoutside the purview of the legitimate functions of the Assembly.

" See SchwebeL supra note 71 , at 27. esp. 3 2 - 4 1 .** General Assembly Opinion, ICJ Reports (1996). at 233, para. 12.17 ftfat** See Fltxmau rice. supra note 79. at 11 9-1 23, 565: Pratap, supra note 37. at 142 A seq; Rosenne, supra

note 72, at 708: K.J. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (197at 142 cl seq.

" It should be pointed out that o ther courts with power to give advisory (or similar) opinions have similarlyheld that they have a discretion to refuse to render an opinion in circumstances when It would beinconsistent with th e judicial character of the court to render the opinion or w here the question Is toovague to permit a response. For example, the European Court of Justice has held that it will not answerpreliminary references under Article 177 of the EC Treaty where the reference contains an inadequatestatement of facts (Joined Cases C-320 to C-322/90. Tclemankabnmo SpA v. Circostel [199 3] ECR1-393). or where there is no genuine dispute between the parties (Case 104/79, Foglia v. Novtllo (1)


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Article 65(1) of the Court's Statute, which provides that "The Court may give anadvisory o pin ion... " (emphasis added) and it has been confirmed in the jurisprudenceof the Court.90 Despite this discretion, the Court has also noted that a request for anadvisory opinion should not in principle, be refused.91 The reason given is that theCourt is itself an organ of the United Nations and its response 'represents itsparticipation in the activities of the Organization'.92 The constitutional relationshipbetween the Court and the United Nations thus ensures that there must be'compelling reasons' for it not to render an advisory opinion requested of i t

Though the Court had never exercised its discretion to refuse to render an advisoryopinion, scholars have suggested circumstances in which the Court should m ake sucha decision. In the opinion of Sir Gerald Fitzmaurice, the C ourt should refuse to renderan opinion:

L if the Court felt that It could not do substantial justice in the m atter, e.g. because essentialfacts were lacking which could no t be made available to the court by the m eans at its disposal,or because the question was framed In an ambiguous or tendentious way;11. if the qu estion, tho ug h in a sense legal, involved an essentially legislative and non-judicialtask, e.g. to make proposals for altering the law on some subject or for amending a treatyIns t rume nt111 if the request related to something which had nothing to do with the work of the organrequesting it and appeared to be directed to some ulterior purpose."No doubt some would hav e felt that the curre nt request m et all these conditions. It

was suggested that the circumstances in which nuc lear wea pons might be used wereunclear, that the Court was being asked to play the role of legislator and that it wasbeing asked to involve itself in the political process of disar ma me nt. T he Cou rt adoptedthe following summary of the objections presented to it:

[1980] ECR 745 and Case 24 4/8 0. Foglla v. NoveUo (2) [1981] ECR 3045), or where the interpretation ofCommunity law soug ht bears no relation to the facts of the main case (Case 1 26 -80 , Salonla v. PoidomaniandGiglio [1981] ECR 1563). See generally. Anderson, The Admlsslbllity of Preliminary References'. 14Yearbook of European Law (1994) 179. at 189 -194 and Barnard and Sharpston, T he Changing Face ofArticle 177 References', 34 CMLR (1997) 1113. at 1119-1157. For summaries of cases where theMissouri Supreme Court has refused to render advisory opinions requested of It see Hudson, 'AdvisoryOpinions of National and International Courts', in M. 0. Hudson, 77K Permanent Court of InternationalJustice (19 2 5) 13 6, at 14 5- 14 9. The Supreme Court of Canada has likewise exercised a similar discretionto efuse, n certain circumstances, to respond to referencesmade to It Reference re Goods and Services Tax.[ 1992 ] 2 SC R 44 5 ; Reference re Legislative Authority of Parliament to Alter or Replace the Senate, (19 79) 10 2D.L.R. (3d) 1 a t 16-17: McEvoy v. Attorney General of New Bruraw kh and Attorney General of Canada(1983) 1 48 D.R. (3d) 25, at 2 7-3 4.See, e g . . Interpretation of Peace Treaties with B ulgaria. Hungary and Roma nia. First Phase, AdvisoryOpinion, IQ Reports (1950). at 71-72, where the Court noted that 'Article 65 of the Statute ispermissive. It gives the Court the power to examine wh ether the circumstances of the case are of such acharacter as should lead it to decline to answer the Req uest'See The Peace Treaties Advisory Opinion. First Phase. ICJ Reports (195 0). at 71 : Pltxmaurtce, supra note 79,a 565.Peace Treaties Case. ICJ Reports (1950). at 71.Fltxmaurice, supra note 79. at 122.


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The question presented Is vague and abstract, addressing complex issues which are the subjectof consideration among Interested States and w ithin other bodies of the United N ations whichhave an express mandate to address these ma tters. An opinion by the Court in regard to thequestion presented would provide no practical assistance to the G eneral Assembly in carryingout its functions under the Charter. Such an opinion has the potential of undermining theprogress already made or being made on this sensitive subject and, therefore is contrary to theinterest of the United Nations O rganization.'4

A. The Contention That the Question Was Vague and AbstractIn previous cases, the C ourt had stated th at the contention tha t it should not respondto a request for an advisory opinion on the ground that the question posed wasabstract was 'a mere affirmation devoid of any justification'.95 The Court had notedthe abstract nature of the questions put to it in these cases and held itself entitled torender an opinion. Indeed, in some of those cases the Court seems to have preferred th efact tha t the questions were abstract and n ot related to particular facts.96 As Rosennenoted, the Court seems to have shown a marked tendency 'to treat questionssubmitted to it for advisory opinions as abstract questions'.97 W ith this Jurisprudence,it was therefore un likely that th e same contentio n would in itself be held to prevent theCourt from rendering an opinion in the case under consideration.

Nonetheless, there are discernible differences between the questions put before theCourt in the pres ent case and those the Court had previously dealt with. This was thefirst case in which the Court was asked to render an opinion on a legal question tha twas unconnected to any already existing situation under consideration by therequesting organ. The issue thus arises whether this is the sort of abstract questiontha t the Court had in mind in its prior jurisprudence.

As has been noted on a number of occasions, there are ambiguities in the term'abstract'.98 The term may be taken to mean that the question before the Court isunrelated to any present factual situation (i.e. the question is hypothetical).Alternatively, it may be take n to signify tha t the question is couched in general terms,although relating to an existing situation, and is not specifically directed to thatparticular ma tter. In its previous decisions referred to above, the Court seems to h aveused the term 'ab stract' in the latter sense.99 The questions dealt with by the Court inM General Assembly Opinion, ICJ Reports (1996). at 23 6. para. 15 . The Court was quoting from the W ritten

Statement of one of the states that presented arguments to the Court." Conditions of Admission of a State to Membership of the United Nations (Article 4 of the Charter), Advisory

Opinion. ICJ Reports (1947-1948). at 61 . This statement was approved In other advisory opinions of theC

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