Common Law of

International Organizations

By

Finn Seyersted

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

Library of Congress Cataloging-in-Publication Data

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

ISBN 978 90 04 16699 8

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 CONTENTS

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

PART ONE
INTRODUCTION

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

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

Chapter Two Intergovernmental organizations – internal and

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

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

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

PART TWO
INTERNAL LAW OF
INTERGOVERNMENTAL ORGANIZATIONS

Chapter Four Types of jurisdiction exercised by self-governing

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

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

Chapter Six Extended jurisdiction of some organizations in

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

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

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

PART THREE
PUBLIC INTERNATIONAL LAW

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

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

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

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

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

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

PART FOUR
CONFLICT OF LAWS:
RELATIONS WITH PRIVATE PARTIES

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

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

Chapter Twelve External relations with private parties,

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

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

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

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

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

Chapter Fourteen Practice when there is no conicts provision.

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

Chapter Fifteen Relationship between international law of IGOs and

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

Chapter Sixteen Choice between national laws: references to the law

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

Chapter Seventeen Relationship between competent courts and

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

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

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

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

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

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

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

 FOREWORD

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

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

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

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

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

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

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

II

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

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

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

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

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

“Common Law of International Organizations” contributes in several

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

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

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

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

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

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

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

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

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

of governmental functions. Even though each international organization

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

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

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

Another example of current developments of common law in international

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

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

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

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

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

Tornn Rislaa Arntsen*

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

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

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

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

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

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

– “International Personality of Intergovernmental Organizations: Do Their

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

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

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

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

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

INTRODUCTION
 CHAPTER ONE

SCOPE AND PURPOSE

1.1 What this book is about

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

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

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

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

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

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

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

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

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

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

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

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

1.2 International non-governmental organizations

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

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

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

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

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

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

1.3 Intergovernmental organizations: history, number, organs

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

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

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

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

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

1.4 Types of intergovernmental organizations

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

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

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

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

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

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

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

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

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

Global and regional organizations

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

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

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

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

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

General political and specialized technical organizations

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

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

Consultative, operational and regulatory organizations

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

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

Organizations of intergovernmental organizations24

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

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

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

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

Treaty organs

Certain treaties concluded either independently from or under the auspices of

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

International tribunals

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

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

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

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

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

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

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

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

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

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

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

State requesting assistance from the international community normally contain

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

International public corporations and mixed governmental and non-governmental

organizations

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

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

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

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

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

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

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

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

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

Temporary intergovernmental organizations

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

Organizations “type dependant”

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

these organizations have since established their own international secretariats

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

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

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

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

The common law applies to all types of intergovernmental organizations

All these different types of organizations are independent intergovernmental

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

1.5 The common internal and external law

The common law of intergovernmental organizations50 is not normally found

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

49 Cf. below, chapter 2.3.

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

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

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

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

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

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

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

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

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

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

international law

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

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

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

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

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

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

These relations differ in substance from those governed by international law

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

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

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

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

60 di Palma Castiglione v. ILO.

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

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

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

constitutions or customary law?

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

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

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

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

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

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

71 ICJ Reports, 1962, at p. 168.

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

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

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

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

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

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

1.7 Terminology

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTERGOVERNMENTAL ORGANIZATIONS – INTERNAL

AND INTERNATIONAL LAW

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

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

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

Ridruejo has listed six characteristic elements4 of an international organiza-

tion: Interstate character, voluntary basis, permanent organs, autonomous
will, its own competence, and co-operation between its members to meet com-
mon interests.5 “Voluntary basis” implies that the member States have joined
voluntarily. Except for (or if one precludes) temporary organizations, these
criteria are in fact met by IGOs. Brownlie denes the criteria in organization
as follows: (1) a permanent association of States, with lawful objects, equipped
with organs, (2) a distinction, in terms of legal powers and purposes, between
the organization and its member States, and (3) the existence of legal powers
exercisable on the international plane and not solely within the national sys-
tems of one or more States.6 The International Law Commission, in its study
on the responsibility of international organizations, has adopted the approach
that for the purpose of responsibility under public international law, an inter-
national organization must possess a separate international legal personality.
Consequently, an IGO does have a separate international legal personality in
respect of its capacity to possess – even a single – obligation imposed on it under
international law.7
A functional approach implies that the organization must exercise at least
one form of sovereign or governmental function in parallel to such legislative,
executive or judicial functions as are normally exercised by other sovereign
communities.8
There is no requirement, as generally assumed in denitions of IGOs, that
the organization is established by a convention. Thus, there can be little doubt that
the Pan American Union prior to the treaty of Bogotá was an international legal
person even though it was not established by an international treaty. Nor would
there have been anything to prevent the Colombo Plan Organization from e.g.
concluding and being, as an organization, party to an agreement with the host
State (Sri Lanka) concerning privileges and immunities, despite the fact that
the organization was not set up by a formal international convention. Pastor
Ridruejo correctly lists also IGOs which were established by resolutions adopted

4 “Elementos caracteristicos” or “rasgos differenciales”.

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

by international conferences (Organization of Petroleum-Exporting Countries

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

…………

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

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

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

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

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

Fisheries Commission after Denmark joined the European Communities and

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

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

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

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

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

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

2.2 What organizations are international persons? The required

criteria.18 Sovereignty

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

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

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

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

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

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

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

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

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

2.3 Is a convention necessary?

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

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

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

ernment who is the organ competent to conclude international agreements –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of not being an intergovernmental organization proper (the perceived freedom

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

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

2.4 Capacity for rights, duties and action under

international law

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

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

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

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

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

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

2.5 Is actual performance of international acts necessary?

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

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

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

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

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

2.6 Possible reasons for denying the general international

personality of intergovernmental organizations

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

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

Assimilation to associations of individuals under certain systems of national law

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

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

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

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

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

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

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

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

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

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

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

Lack of resources for fulllment of obligations

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

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

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

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

Dependence upon the member States

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

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

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

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

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

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

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

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

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

2.7 Conclusions

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

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

BASIC GENERAL DISTINCTIONS

3.1 Inherent versus delegated powers – as opposed to the fiction

of “implied powers”

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

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

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

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

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

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

7 International Personality of Intergovernmental Organizations, IV Indian Journal of

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

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

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

or as provisions designed to specify procedures or modalities concerning the

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

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

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

3.2 Organic jurisdiction and organic contra territorial and

personal connecting factors

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

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

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

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

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

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

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

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

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

3.3 Internal law: distinct legal systems parallel to national

public law, not to public international law

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

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

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

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

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

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

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

Distinct legal systems parallel to national, not international law

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

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

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

Subject-matter

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

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

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

These relations differ in substance from those governed by international law

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

Subjects

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

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

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

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

Sources

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

Hierarchical levels

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

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

not by any “treaty”).

External application

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

Conclusion

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

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

INTERNAL LAW OF
INTERGOVERNMENTAL ORGANIZATIONS
 CHAPTER FOUR

TYPES OF JURISDICTION EXERCISED BY

SELF-GOVERNING COMMUNITIES

4.1 Territorial, personal and organic jurisdiction of States

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

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

Territorial and personal jurisdiction

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

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

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

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

Organic jurisdiction

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

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

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

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

chapter on personal connecting factors of his work on private international

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

6 Rousseau, loc. cit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4.2 Organic and membership jurisdiction of the Holy See

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

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

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

Central organs

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

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

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

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

Diplomatic envoys

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

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

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

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

National churches: organs and members

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

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

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

4.3 Organic, membership and extended jurisdiction of

intergovernmental organizations

The examples given in the preceding chapters of concurrent territorial,

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

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

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

Organic and organizational membership jurisdiction

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

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

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

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

normally make binding majority decisions on organizational matters. A clear

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

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

exclusion from membership (but hardly with regard to nancial contributions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction over member (or other) States

Jurisdiction in substantive matters is denitely dependent upon special author-

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

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

INHERENT JURISDICTION OVER ORGANS AND OFFICIALS

5.1 Internal legislation of intergovernmental organizations

Organizational and functional regulations enacted by the organization

The basic provisions concerning the internal organization of an intergovern-

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

a. Rules of procedure for the various deliberate organs.

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

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

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

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

Irrespective of their different denominations these are in the present book

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

3 General Assembly resolution 174 (II) as amended.

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

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

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

Absence of constitutional provisions

Some constitutions expressly authorize the enactment by the organization of

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

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

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

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

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

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

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

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

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

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

Genuine legislation?

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

5.2 Internal administration of intergovernmental organizations

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

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

29 Chapter 5.4 ff.

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

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

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

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

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

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

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

5.3 Internal judicial power39

The inherent powers of intergovernmental organizations are not conned

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

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

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

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

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

5.4 Scope of the inherent jurisdiction. General

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

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

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

Internal relations stricto sensu

The inherent organic jurisdiction exercised by intergovernmental organizations

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

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

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

Bilateral external relations

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

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

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

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

48 UNTS, Vol. 65, p. 7.

126 chapter five

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

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

49 Cf. for example the United Nations Flag Code.

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

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

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

Unilateral external decisions

Like States and other entities, intergovernmental organizations cannot without

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

52 Schachter in BYIL, 1948, p. 100.

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

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

55 Cf. below, chapter 6.5.

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

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

The Regulations on Registration of Treaties

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

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

58 Journal Ofciel 1923, p. 200.

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

Part One of the Regulations61 contains rules concerning registration which,

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

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

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

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

Constitutional limitations

Although no constitutional authorization is required in order to enable an

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

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

Another matter is that all constitutions themselves contain a number of

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

Public order of the host country

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

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

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

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

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

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

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

Delegation

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

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

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

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

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

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

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

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

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

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

Distinct legal units as parts of the organization

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

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

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

5.5 Organic jurisdiction over officials. Relationship of

employment

Introduction

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

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

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

jurisdiction of different communities.80 The limit between the jurisdiction

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

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

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

Performance of ofcial duties. Functional protection

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

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

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

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

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

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

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

Appointment and dismissal of ofcials. Their independence. Political deviations

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

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

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

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

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

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

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

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

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

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

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

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

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

Indeed, in many respects particularly the two most important administrative

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

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

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

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

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

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

abuse of power.

The relationship of employment. General

Kelsen119 maintained that the relationship of employment has the character

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Internal, not national or international courts

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

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

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

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

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

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

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

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

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

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

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

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

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

French legislation. The Mexican Supreme Court stated in general terms

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

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

The judgments concluded by declaring the lack of jurisdiction of national

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

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

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

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

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

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

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

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

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

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

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

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

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

Social security

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

189 Below, chapters 7.4 ff.

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

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

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

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

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

5.6 Do headquarters agreements providing for application of

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

The United Nations, unlike other intergovernmental organizations, in some

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

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

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

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

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

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

5.7 Conclusions: organic jurisdiction of States, intergovernmental

organizations and other sovereign communities

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

200 Per denition, cf. above, chapter 1.3.

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

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

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

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

The organic jurisdiction is in certain respects more absolute than territorial

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

202 See notably the cases reported above.

 inherent jurisdiction over organs and officials 181

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

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

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

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

EXTENDED JURISDICTION OF SOME ORGANIZATIONS

IN SUBSTANTIVE MATTERS (DELEGATED POWERS)

6.1 Introduction

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

6.2 Territorial jurisdiction

Internationalized territories

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

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

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

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

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

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

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

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

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

1. Takes notes of the Agreement;

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

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

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

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

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

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

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

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

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

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

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

Condominia and coimperia

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

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

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

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

International rivers

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

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

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

Ships, aircraft and space vessels 32

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

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

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

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

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

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

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

For the purpose of this Resolution

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

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

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

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

Global commons47

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

The high seas

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

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

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

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

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

The international sea-bed53

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

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

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

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

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

3. If an international intergovernmental organization is liable for damage by

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

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

202 chapter six

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

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

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

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

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

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

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

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

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

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

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

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

Territorial jurisdiction erga omnes or only decisions binding upon the

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

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

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

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

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

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

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

6.3 Personal jurisdiction

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

Inhabitants of a territory administered by the organization

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

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

Private relations and taxation of international ofcials and other agents

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

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

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

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

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

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

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

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

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

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

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

Refugees and stateless persons85

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

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

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

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

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

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

88 UNTS, XCIII, p. 379.

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

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

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

International crimes94

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

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

91 Cf. “diplomatic asylum” in Latin America.

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

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

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

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

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

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

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

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

6.4 Decisions binding upon States

Organic jurisdiction over representatives of member States102

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

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

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

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

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

Organizational membership jurisdiction

In addition to the organic jurisdiction over the representatives of member

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

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

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

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

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

Functional jurisdiction. Introduction110

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

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

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

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

Soft law111

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

Recommendations or representations which provoke sanctions if not complied with

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

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

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

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

Unanimous decisions which become binding when implemented or approved or not

objected to by the member States (simplied treaty procedure)

The constitution of the Organization for Economic Co-operation and

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

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

222 chapter six

In order to achieve its aim, the Organisation may:

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

The Convention of February 1972 for the Preventions of Marine Pollution

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

Unanimous decisions binding upon adoption

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

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

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

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

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

Majority decisions binding upon States that do no opt out

The Board of Governors of the International Monetary Fund could –

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

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

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

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

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

116 Italics added.

 extended jurisdiction of some organizations 229

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

Majority decisions binding upon all members117

We have several constitutional provisions to the effect that decisions adopted

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

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

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

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

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

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

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

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

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

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

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

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

Decisions binding upon non-member States

We even have organizations which have been authorized to make decisions

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

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

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

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

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

constitutions?

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

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

become internationally bound by) each specic decision unanimously adopted

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

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

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

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

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

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

Comprehensive (supranational) jurisdiction

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

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

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

establishing the Andean Community.130

6.5 Legal basis for extended jurisdiction

Does extended jurisdiction require constitutional authority?

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

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

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

Regulations contra treaties

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

Protection of the environment

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

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

Weighted voting

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

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

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

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

The legal basis

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

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

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

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

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

SETTLEMENT OF INTERNAL DISPUTES

7.1 Introduction

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

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

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

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

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

7.2 Constitutional provisions

The constitutions of some – but far from all – IGOs contain express provisions
which prescribe specic procedures for the settlement of disputes concerning
the interpretation or application of the constitution. The procedures provided
for are usually settlement by decision either of an administrative organ of the
organization3, or of an external or internal judicial body, usually an ad hoc
arbitral tribunal4 or the International Court of Justice,5 or both. Most of

4th ed., Leiden 2003, make a comprehensive survey of the judicial organs established by
the several organizations (pp. 427–489) and of the organs and methods of interpretation
(pp. 839–871). The most comprehensive survey is D. Bindschedler: “Le règlement des dif-
férends relelatifs au statut d’un organisme international” in Recueil des Cours de l’Académie
de droit international, 1968 II, pp. 459–547. See also D. Simon: L’interprétation judiciaire
des traités d’organisations internationals, Paris 1981.
3 ICAO (International Civil Aviation Organization) 7 December 1944, Art. 84; IMF
(International Monetary Fund) 27 December 1945, Art. XVIII, Sec. 4 (a)–(b), IBRD
(International Bank for Reconstruction and Development) 27 December 1945, Art. IX
(a)-(b); International Wheat Council Art. 8. Different types of provisions are International
Maritime Organization Art. 69 and the abortive International Trade Organization Arts.
94–95.
4 ICAO, Arts. 84–86; IMF, Art. XXIX (c); IBRD, Art. IX (c); ITU (International Telecom-
munication Union) 9 December 1932, Constitution Art. 56 and Convention Art. 41; UPU
(Universal Postal Union) 1 June 1878, Art. 32; WMO (World Meteorological Organiza-
tion) 11 October 1947; Danube Commission (European Commission of the Danube) 2
November 1865.
5 Although the International Court of Justice is the principal judicial organ of the UN,
the UN Charter contains no such specic references to the Court. The same applies to
many of the specialized agencies of the UN. Provisions referring disputes concerning the
interpretation of the constitution to the International Court of Justice may be found,
however, in the constitutions of many specialized agencies: ILO (International Labour
Organization) 28 June 1919, Arts. 29 (2) and 31–32; FAO (Food and Agriculture Orga-
nization of the United Nations) 16 October 1945, Art. XXVI (1); UNESCO (United
Nations Educational, Scientic and Cultural Organization) 16 November 1945, Art. XIV
(2); WHO (World Health Organization) 22 July 1946, Art. 75; ICAO, Arts. 84–86; IAEA
(International Atomic Energy Agency) 26 October 1956, Art. XVII A. Similar provi-
sions may be found in the constitutions of several organizations not related to the UN:
 settlement of internal disputes 247

these provisions confer compulsory jurisdiction upon the organ or court, but
some require agreement between both parties to the dispute. Many provisions,
however, envisage only disputes arising out of the constitution itself. Moreover,
several of the provisions envisage disputes between member States only.6
In addition to these limited provisions for binding administrative and/or
judicial settlement, the constitutions of the UN and of some of the special-
ized agencies provide that the organization may request an advisory opinion
from the International Court of Justice on “any legal question”.7
The constitution of the African Union provides in its Article 18, cf. Article
5 (1) (d) for the establishment of a Court of Justice. The competence of the
Court of Justice is set out in the Protocol of Maputo of 11 July 2003, which
in its Article 19 on competence/jurisdiction confers broad powers to decide
in all disputes relating to the AU Constitution, as well as the interpretation,
application or validity of Union treaties and all subsidiary legal instruments
adopted within the framework of the Union.8 The Court of Justice of the
Andean Community is the judicial authority of the community. The func-
tions of the court is closely interlinked with the provisions dening the legal
system of the Andean Community, which confers on individuals and legal

IARA (Inter-Allied Reparation Agency) 14 January 1946 (Resolution No. 8 (adopted at

the constitutive conference); WEU (Western European Union) 17 March 1948, Art. 26
VII; Bern Union, Art. 33 (1); CERN (European Organization for Nuclear Research) 1
July 1953, Art. XI, and ICEM (Intergovernmental Committee for European Migration),
19 October 1953, Art. 31. The texts of these and other provisions are reproduced in ICJ
Yearbook, Chapter III.
6 See however, the constitutions of IMF, Art. XIXX and IBRD, Art. IX, which refer to
disputes between the organization and member States. Nor are the constitutions of
UNESCO Art. XIV, FAO Art. XVII and some others restricted to disputes between
member States.
7 UN Art. 96, FAO Art. XVII 2, WHO Art. 76, IMO Art. 70, IAEA Art. XVII B. The
question of who was to interpret the UN Charter was discussed at the San Francisco
Conference, see especially United Nations Conference on International Organization, San
Francisco 1945 (UNCIO) VII, pp. 709–710, referred to below, notes 135 and 141. On
the interpretation of the UN Charter see also ICJ Reports 1948 p. 61, 1950 pp. 6 and
137–140 and 1962 pp. 155–156; Kopelmanas: L’Organisation des Nations Unies I, Paris
1947, pp. 254–278, and Goodrich and Hambro: Charter of the United Nations, 3rd ed.,
New York 1969, pp. 547–551. On the question of the interpretation of the League of
Nations Covenant, see the documents listed in Walter Shiffer: Repertoire of Questions
of General International Law before the League of Nations 1920–1940, Geneva 1942,
p. 237.
8 Article 19, (c), (e), (f ) and (g) of the Maputo Protocol even extends competence to AU
Court of Justice to assume jurisdiction of “any question of international law”, “all matters
specically provided for in any other agreements that States Parties may conclude among
themselves or with the Union and which confer jurisdiction on the Court”, “the existence
of any fact which, if established, would constitute a breach of an obligation owed to a
State Party or to the Union”, and “the extent of the reparation to be made for the breach
of an obligation”.
248 chapter seven

persons the right to appeal to the court in the event of infringements of

community law.9 The constitution of the European Community provides for
the establishment of a common Court of Justice with wide powers for bind-
ing judicial settlement of internal disputes other than those relating to the
constitution and other than those arising between member States.10 And so
do the constitutions of some European river commissions.
Other IGOs have established similar systems of settlement of disputes short
of creating an internal court of justice. Thus, both the North American Free
Trade Agreement (NAFTA) and the Mercado Común de Sur (MERCOSUR)
count on national sections for the surveillance of correct national implemen-
tation of common standards, and these also function as a contact point for
individual complaints in this respect.11
However, most constitutions of intergovernmental organizations do not
prescribe modes of settlement for internal disputes. Nevertheless, the disputes
must be settled if the organization is to be able to carry out its functions. And
in practice they are settled, either by administrative or by judicial means.

7.3 Settlement by administrative decision of the organization

Decisions by administrative organs

Like most disputes within the governments of States, internal disputes of

IGOs are usually settled, not judicially, but by administrative decision of the
deliberative or executive organ where the question arises, or of a superior
organ.12 Thus, where the competence of a deliberative organ to discuss a
certain matter or to take specic steps, or the propriety of the procedure
adopted by the chairman of the organ, is challenged by a member of the
organ concerned, the matter is decided by a vote of the organ itself.13 And so

9 Cf. the Cartagena Agreement as amended by the Protocol of Trujillo 10 March 1996,
Articles 40 and 41, and the Treaty creating the Court of Justice of the Cartagena Agree-
ment, as amended by the Protocol of Cochabamba 28 May 1996.
10 EC Arts. 220–245 and EURATOM Arts. 136–160. The association agreement to provide
access for certain EFTA-States to the European internal market (the Agreement on the
European Economic Area of 2 May 1992), Arts. 107, 111 and Protocol 34, are more
restrictive and more complicated.
11 Cf. Article 2002 of the North American Free Trade Agreement (NAFTA) and Article
40 of the Protocolo de Olivos (MERCOSUR) 18 February 2001, which also establish a
system of arbitration, cf. Articles 9–23.
12 See also the examples from different organizations related in Schermers and Blokker,
op. cit., §§ 1355–62.
13 Cf. the rules of procedure of the General Assembly (New York 1985), Rules 79 and 121
on questions of competence and Rules 71 and 113 on points of order.
 settlement of internal disputes 249

are disputes concerning the representatives of a member State on the organ –

e.g. their credentials or their right to speak and vote. Similarly, disputes with
regard to the nancial contributions of a member State to the budget of the
organization, including the effects of non-payment, are, in the rst instance,
decided by the plenary organ. Furthermore, if two organs, or two departments
of the Secretariat, disagree with regard to their respective competences in a
specic matter, the dispute is decided by the superior organ.14 If one of the
parties to a dispute is dissatised with the decision made by the competent
organ, the matter may in many cases be brought before a superior organ.15
In most of these cases there is no constitutional provision authorizing the
organ concerned to settle the dispute. Nevertheless, such administrative settle-
ment has been the prevailing procedure in all IGOs, even in those whose
constitutions prescribe judicial settlement. And there can be no doubt that,
in either case, the several organs of the organization – no less than those of
national States – are entitled to decide internal disputes themselves.16 This was
conrmed in a report of Committee IV/2 of the San Francisco Conference
which established the UN Charter (the report was approved unanimously by
the Conference) in the following terms:
In the course of the operations from day to day of the various organs of the
Organization, it is inevitable that each organ will interpret such parts of the

14 The report of Committee IV/2 of the San Francisco Conference (UNCIO Vol. 13, pp.
709–10) – discussing differences of opinion between two organs – did not envisage such
reference to the superior organ. The rapporteur appears, however, to have been thinking
primarily in terms of disputes between the General Assembly and the Security Council
which are, in functional and some organizational matters, on an equal hierarchical level,
and which have no common superior organ.
15 By a resolution of 17 December 1920 the Assembly of the League of Nations expressly
decided, before the establishment of its Administrative Tribunal, to give a right of appeal
to the Council, in case of dismissal, to all members of the Secretariat holding ve-year
appointments (McKinnon Wood in The Grotius Society, Transactions for the Year 1944
Vol. 30 p. 144). Similarly, chapter XIII 1 of the Staff Regulations of the Scandinavian
Training Hospital in Korea (the National Medical Center in Korea), adopted by the
Scandinavian Committee on 7 June 1957, expressly provided that ofcials might appeal
to the Committee in cases of disputes between them and the Director of the Hospital
concerning the interpretation of the Staff Regulations or concerning the relationship of
employment. – An express provision for bringing before a Joint Committee disputes between
members concerning the interpretation or application may be found in the Agreement
on the European Economic Area of 2 May 1992, Article 111. The UN Model status of
forces agreement for peace-keeping operations provides in para. 52: “Disputes concern-
ing the terms of employment and conditions of service of locally recruited personnel
shall be settled by the administrative procedures to be established by the Representative/
commander”.
16 This is expressly provided in the IMO constitution Art. 69 in ne. Art. 75 of the WHO
constitution envisages settlement by the Health Assembly. It would not be proper to interpret
either of these self-evident provisions a contrario as precluding other deliberative organs or
the secretariat from deciding legal disputes arising within the scope of their functions.
250 chapter seven

Charter as are applicable to its particular functions. This process is inherent in

the functioning of any body which operates under an instrument dening its
functions and powers. It will be manifested in the functioning of such a body
as the General Assembly, the Security Council, or the International Court of
Justice. Accordingly, it is not necessary to include in the Charter a provision
either authorizing or approving the normal operation of this principle.17
Reference may be made also to the following statement by the International
Court of Justice in its advisory opinion on Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal:
In the absence of the establishment of an Administrative Tribunal, the function
of resolving disputes between staff and Organization could be discharged by
the Secretary-General by virtue of the provisions of Articles 97 and 101. Accord-
ingly, in the three years or more preceding the establishment of the Administra-
tive Tribunal, the Secretary-General coped with this problem by means of joint
administrative machinery, leading to ultimate decision by himself.18
It is submitted that this power of the Secretary-General existed irrespective
of the express provisions cited by the Court. Indeed, the power has been
exercised by the administrative heads of all organizations also where the
constitutions do not contain any relevant provisions.
The inherent power to settle internal disputes by administrative decision
applies also to internal disputes arising out of extended jurisdiction conferred
upon the organization (internal disputes largo sensu). Reference may be made
to a statement by the Permanent Court of International Justice in its advisory
opinion on the Greco-Turkish Agreement of 1 December 1926. In this opinion
the Court settled a dispute “between the two States members” of the Mixed
Commission for the Exchange of Greek and Turkish Populations. This dispute
concerned the question of who was to invoke the procedure laid down in
Article IV of an annex to an agreement conferring extended jurisdiction upon
the Commission for the settlement of specic disputes. After having pointed
out that the disputed provision “expressly contemplates questions which may
arise within the Mixed Commission”, the Court said:
But, that being so, it is clear – having regard amongst other things to the principle
that, as a general rule, any body possessing jurisdictional powers has the right in
the rst place itself to determine the extent of its jurisdiction – that questions
affecting the extent of the jurisdiction of the Mixed Commission must be settled
by the Commission itself without action by any other body being necessary.19

17 UNCIO, Vol. 13, p. 709.

18 ICJ Reports, 1954, p. 61.
19 Permanent Court of International Justice, Ser. B, No. 16, p. 20, cf. p. 8.
 settlement of internal disputes 251

Similarly a court in the Saar in the inter-war period – rejecting a claim for
compensation brought against the Governing Commission of the Saar by
a dismissed ofcial – expressed the view that not only sovereign States have
the capacity to determine the legal scope of their competence, but that the
Governing Commission also had that power. The court, however, based this
statement upon the fact that the Governing Commission, although not the
government of a sovereign State, exercised the State imperium (i.e. territorial
jurisdiction) – rather than upon the fact that the Commission was an organ
of the League of Nations.20
As indicated by the examples given, the power of settling internal disputes
by administrative decision is not conned to questions of interpretation of
the constitution of the organization concerned. It extends also to the inter-
pretation of regulations enacted by the organization (including the terms of
reference of the organ concerned) and of customary law developed by it, as
well as to the determination of other legal questions concerning the powers
and procedure of the organ. Such decisions are preliminary – and essential –
to the exercise of its legislative and administrative powers. The right to make
them is therefore inherent in these very powers, whether these have been laid
down in the constitution or in another treaty, or whether they devolve upon
the organization without specic provision as inherent organic or membership
jurisdiction.21 This right has been exercised consistently by intergovernmental
organizations in respect of both inherent and extended powers.

Advisory opinion from a legal body22

There is nothing to prevent the organ concerned from submitting the legal
question to an internal or external legal organ for advice before it makes its
decision. Such a procedure has in some cases been expressly provided for in
the constitution. Thus the General Assembly and the Security Council of
the UN are empowered, under Article 96 (1) of the Charter, to request an
advisory opinion from the International Court of Justice on any legal ques-
tion. Under Article 96 (2) the General Assembly is empowered to extend this
authorization to other organs of the UN and to the specialized agencies.23

20 Annual Digest of International Law Cases, 1925–26, Case No. 37.

21 Above, chapter 1.
22 See H.W.A. Thirlway: “Advisory Opinions of International Courts” in Encyclopedia of
Public International Law, Amsterdam 1981, pp. 4–9.
23 The International Law Association in 1956 very appropriately recommended an amend-
ment to Art. 96 “to empower the General Assembly to authorize other public international
252 chapter seven

This has been done by bilateral agreements between the UN and each
specialized agency approved by General Assembly resolutions.24 In this man-
ner the power to request advisory opinions has been granted not merely to
those specialized agencies whose constitutions envisage such procedure,25
but also to those agencies whose constitutions do not.26 Advisory opinions
have in fact been requested on a number of disputes of an internal nature,27
also by specialized agencies whose constitutions do not provide for resort to
such opinions.28 Furthermore, as pointed out by Schermers and Blokker, the
Committee of Ministers of the Council of Europe may request advisory
opinions from the European Court of Human Rights on the procedure, and
on the functioning of the different organs, under the European Convention
on Human Rights.29
There are also many examples of reference of internal legal questions to
ad hoc internal legal organs for advice, even when no constitutional provi-
sion prescribes or authorizes such procedure. Thus the League of Nations,
refusing to submit to proceedings in Swiss courts to determine whether it
was liable to pay pensions to ve ex-ofcials of the Saar Territory whom

Organizations, whether general or regional, to request advisory opinions of the Court”

(International Law Association, Report of the Forty-Seventh Conference held at Dubrovnik
1956, p. 104, cf. p. 129).
24 See for example Article 7 (2) of the agreement between the UN and the ITU, approved by
GA resolution 124 (II). The powers to request advisory opinions have also been granted
to most of the other Specialized Agencies upon their request and to the International
Atomic Energy Agency cf. the ICJ Yearbook.
25 E.g. IMO constitution, Art. 70.
26 E.g. ITU constitution, Art. 150.
27 See for example the two advisory opinions on the admission of a State to membership in
the UN (ICJ Reports, 1948, p. 57, and 1950, p. 4, respectively), the opinion on the Effect
of Awards of Compensation made by the UN Administrative Tribunal (ibid., 1954, p. 47),
and the opinion on Certain Expenses of the United Nations (ibid. 1962, p. 150). See also
the advisory opinion of the Permanent Court of International Justice on the Designation
of the Workers’ Delegates for the Netherlands at the Third Session of the International
Labour Conference (PCIJ, Ser. B, No. 1) and the three advisory opinions on the compe-
tence of the ILO in regard to (i) international regulations of the conditions of labour of
persons employed in agriculture (ibid. No. 2), (ii) organization and development of the
methods of agricultural production and other questions of a like character (ibid., No. 3),
and (iii) incidental regulation of the personal work of the employer (ibid., No. 13).
28 Thus the advisory opinion on Judgments of the Administrative Tribunal of the ILO
upon Complaints Made against the UNESCO (ICJ Reports, 1956, p. 77) was given at the
request of UNESCO, whose constitution merely provides for reference to the International
Court of Justice “for determination” of disputes “concerning the interpretation of this
Constitution”. See also, generally, the literature from the 1970s cited by Schermers and
Blokker, op. cit., § 1366, note 106.
29 Ibid. § 1371. An example is the request for an advisory opinion decided by the Commit-
tee of Ministers at its meeting 11–12 July 2007 concerning aspects of the election by the
Parliamentary Assembly of judges to the Court.
 settlement of internal disputes 253

the Governing Commission had failed to bring within the settlement of the
pensions of ofcials which it negotiated with Germany, submitted the case
to a legal committee of the organization itself, which held that there was no
legal liability.30 Similarly, the Secretary-General of the UN had recourse to
an ad hoc committee of jurists in order to seek a solution to certain problems
of principle arising out of his personnel policy.31
Legal questions are also frequently referred to a permanent internal legal
organ for advice.32 Thus the legal division of the secretariat is frequently
asked to give a legal opinion – for the decision-making division or delibera-
tive organ to take into account.
Other examples of advisory legal organs are the appeal boards or commit-
tees established by the UN and the specialized agencies and other organizations
to consider and advise their administrative heads regarding appeals made by
members of the staff against decisions relating to their employment.33
However, the terminology is sometimes confused, because the “Appeals
Board” of e.g. the Council of Europe is a genuine administrative tribunal.34
Prior to appealing to that board, the staff member or the Secretary General

30 McKinnon Wood in The Grotius Society, Transactions for the Year 1944, Vol. 30, p. 144.
But for World War II, the case would subsequently have come before the Permanent Court
of International Justice for an advisory opinion. The latter procedure – in contradistinc-
tion to the reference to the legal committee – was expressly authorized by the terms of
Art. 14 of the Covenant of the League.
31 A/INF/51, 5 December 1952. The contents of the report of the committee (A/2364)
was severely (and rightly) criticized, both inside and outside the Organization, see for
example: Henri Rolin, Avis consultative sur les droits et obligations des fonctionnaires
internationaux, avis rédigé sur la demande de la Fédédation des associations de fonction-
aires internationaux et approuvé par Tomaso Perassi et Charles Rousseau (mimeographed,
1953). – Reference may also be made to Art. II (1)–(2) of the Staff Regulations for the
Registry of the International Court of Justice and its Annex VI.
32 GATT appoints a panel to investigate substantive violations by member States and to pro-
pose sanctions. These are then adopted by the plenary organ in accordance with express
provisions in Art. XXIII of the constitution. This procedure is also applied to disputes
between the European Community and non-EC, WTO member States.
33 Thus the “Provisional” Staff Regulations of the International Atomic Energy Agency,
adopted by its Board of Governors, provide, in Regulation 12.01: “The Director General
shall establish administrative machinery with staff participants to advise him/her in case
of any appeal by a staff member against an administrative decision in which the staff
member alleges the non-observance of the terms of his/her appointment, including all
pertinent Regulations and Rules, or of appeals against disciplinary actions.” The Staff
Rules, approved by the Director General, provide, in Rule 12.01.1 (A): “A joint Appeals
Committee shall be established to advise the Director General regarding appeals by staff
members under Provisional Staff Regulation 12.01”.
34 Also the former “Appeals Board” of the OECD was a judicial body making binding deci-
sions (and replaced on 19 December 1991 by an “Administrative Tribunal”). However, the
Organization also has a “Joint Advisory Board”, established pursuant to Staff Regulation
22 (a).
254 chapter seven

may refer the matter to an Advisory Committee on Disputes. These organs

have been established by Articles 59 and 60 (and Appendix XI) of the staff
regulations, without specic basis in the constitution, Article 36 (c) of which
merely provides that the staff “shall be appointed by the Secretary-General,
in accordance with the administrative regulations”.
Thus, with or without constitutional provision, those organs of the orga-
nization which in the performance of their regular functions have to decide
legal questions often refer such questions to other organs for advice before
making their decisions. Such reference is made to administrative and judicial
organs, to permanent as well as to ad hoc organs, and even to organs outside
the organization insofar as such organs under their own constitutions or terms
of reference are able to give legal advice to the organization requesting it.
The right to seek such legal advice, even if the constitution does not so pro-
vide, was conrmed in the report of Committee IV/2 of the San Francisco
Conference in the following terms:
It would always be open to the General Assembly or to the Security Council,
in appropriate circumstances, to ask the International Court of Justice for an
advisory opinion concerning the meaning of a provision of the Charter. Should
the General Assembly or the Security Council prefer another course, an ad hoc
committee of jurists might be set up to examine the question and report its
views. It would appear neither necessary nor desirable to list or to describe in
the Charter the various possible expedients.35

Is the administrative decision binding?

The modes of settlement discussed so far – which are those employed in the
prevailing number of cases – are, however, merely administrative decisions –
either express decisions made separately, or preliminary decisions implied in
other administrative or legislative decisions made by the organ concerned.
Even if advice is sought from another organ, and even if this is legal or close
to judicial, the decision is usually made by the organ where the question arose,
or by a superior organ, in the form of an administrative (or legislative) deci-
sion. This applies in principle also in those cases where an advisory opinion
is obtained from the International Court of Justice.36 Only in certain cases –

35 UNCIO, Vol. 13, p. 710.

36 On the binding effect of advisory opinions of the International Court of Justice, see
inter alia F.B. Sloan in California Law Review Vol. 38 (1950), pp. 830–59; Lissitzyn:
The International Court of Justice, New York 1951, pp. 84–85; Kopelmanas, op. cit. pp.
274–5; and Humber in: Die Friedens-Warte Vol. 51 (1951–53), pp. 143–50. Cf. also PCIJ,
Ser. B, No. 14, p. 21.
 settlement of internal disputes 255

where this has been expressly provided in the constitution or in another mul-
tilateral, bilateral or unilateral act – is the organization (and the other parties)
bound to accept as binding the opinion of the Court or the other legal body
to which the dispute is referred.37
When express provision is made in the constitution for the reference of
certain disputes to a specic administrative organ of the organization,38 it
frequently follows from the provision that the decision of the administrative
organ shall be binding upon the parties ipso facto39 or unless appeal is made to
a specied superior administrative organ40 or judicial body,41 whose decisions
shall then be nal (even if still administrative). Thus the decision must be
presumed to be binding if the dispute is referred to the organ concerned “for
decision” and, usually,42 if provision is made for further appeal.43 Otherwise
it is not always clear that it has been the intention that the decision shall be
any more binding than are administrative decisions generally.44 And in the
great majority of cases, where no express provision has been made for deci-
sion by the administrative organ concerned, it is quite clear that the decision
made by this organ – in pursuance of its inherent organic jurisdiction or
of the powers implied in its extended jurisdiction – are not binding upon the
parties in the same sense as a judicial decision would have been.45 They may

37 See below, chapter 7.9, cf. 7.10.

38 Examples in Schermers and Blokker, op. cit., §§ 1356–62, pp. 853–7.
39 International Wheat Agreement 1986 Art. 8.
40 The constitutions of the Fund Art. XXIX (a)–(b) and of the Bank, Art. IX (a)–(b). However,
none of these provisions sets a time limit for the appeal. For a criticism of the granting of
such powers to one of the parties to the dispute, see Seidl-Hohenveldern in Österreichische
Zeitschrift für öffentliches Recht Vol. 8 (1957–58) pp. 82 et seq., cf. also Aufricht ibid.,
pp. 26 et seq.
41 ICAO constitution Art. 84, which sets a time limit of sixty days for the appeal, and the
constitution of the International Commission of the Danube Art. 38 (League of Nations
Treaty Series Vol. 26, p. 193).
42 Cf. the abortive constitution of the International Trade Organization, Arts. 94–95.
43 International Monetary Fund constitution, Art. XXIX (b).
44 This may not have been the intention in Art. 69, rst sentence, of the constitution of the
International Maritime Organization, which refers the dispute “for settlement”.
45 This was pointed out, with regard to differences of opinion concerning the interpreta-
tion of the UN Charter, by Committee IV/2 of the San Fransisco Conference, in the
following terms: “It is to be understood, of course, that if an interpretation made by
any organ of the Organization or by a committee of jurists is not generally acceptable
it will be without binding force” (UNCIO Vol. 13 p. 710). Kopelmanas: L’Organisation
des Nations Unies Vol. 1, Paris 1947, para. 137 made two important reservations to the
statement of the Committee on this point. He pointed out in particular that “le fait pour
un organe d’émettre un vote dans les conditions établies par les dispositions qui régissent
sa compétence et son fonctionnement, confère à l’interprétation qu’implique le contenu
de son acte une valeur identique à celle qui est reconnue à l’acte lui-même et si l’acte doit
s’imposer à l’observation de tous les Membres de l’Organisation, l’interprétation impliquée
produira automatiquement le même effet”. If no judicial recourse is open to the State
256 chapter seven

contest the legality of the decision if the organ making them has violated
the rules governing its competence or procedure, at least if they do so within
a reasonable time after the decision was made.46 It does not add any more
binding force to the decision if it is made in the form of a distinct resolution
of (abstract) “interpretation”, as is the custom of the General Assembly of
the International Institute for the Unication of Private Law, except that in
this case its applicability is not conned to any concrete dispute.47

contesting the validity of the decision, “il devra se soumettre à la décision de l’organe et
accepter l’interprétation qu’elle contient. S’il persiste à ne pas la reconnaître, le problème
changerait entièrement d’aspect, car il ne s’agirait plus d’un conit d’interprétation, mais
de l’inexécution par l’Etat d’une décision valablement prise aux termes de la Charte”. On
the other hand, Kopelmanas pointed out that any binding force resulting from the express
or tacit acceptance by all the member States would apply only to the concrete conict
which has given rise to the question of interpretation. That an administrative decision is
not binding as a precedent in another, analogous case was conrmed in the judgment of
the Hungarian-Czechoslovak Mixed Arbitral Tribunal of 31 January 1929 in Pallavicini
v. the Czechoslovak State (AJIL, Vol. 33, 1929 p. 857 and Annual Digest of International
Law Cases, 1929–30, p. 443).
In its advisory opinion on Certain Expenses of the United Nations, the International
Court of Justice stated: “Each organ must, in the rst place at least, determine its own
jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the
maintenance of international peace and security and if, in accordance with a mandate or
authorization in such resolution, the Secretary-General incurs nancial obligation, these
amounts must be presumed to constitute ‘expenses of the Organisation’ ”. (ICJ Reports,
1962, p. 168; see also ICJ Pleadings, Certain Expenses of the United Nations, pp. 220–2,
cf. p. 205).
The International Court of Justice, in its advisory opinion on Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal, stated: “Should
the General Assembly contemplate, for dealing with future disputes, the making of some
provision for the review of the awards of the Tribunal, the Court is of opinion that the
General Assembly itself, in view of its composition and functions, could hardly act as a
judicial organ – considering the arguments of the parties, appraising the evidence produced
by them, establishing the facts and declaring the law applicable to them – all the more
one party to the dispute is the United Nations Organization itself ” (ICJ Reports 1954,
p. 56, cf. also p. 89).
46 Art. 230 in ne of the constitution of the European Community sets out a two months’
deadline for appeal to the European Court of Justice.
The rst draft articles on “Recours judiciaire à instituer contre les décisions d’organes
internationaux”, submitted by Wengler to the Institut de droit international, read in part:
“A défaut d’un recours judiciaire spécial contre les décisions d’un organe international,
et à défaut de dispositions les rendant dénitives, la validité de ces décisions pourra être
contestée à tout moment et devant toute instance d’après les règles générales du droit
international, si l’organe a violé les règles determinant sa compétence, sa procédure, ou
le contenu de ses décisions” (Annuaire de de l’Institut de droit international, Vol. 45
(1954 I) p. 266, cf. pp. 283–4). The nal resolution of the Institut (ibid., Vol. 47 (1957 II),
p. 476) does not refer to this problem. See also Wengler’s report, ibid. Vol. 44 (1952 I),
pp. 268–70, cf. pp. 293 (par. 9), 315–6, 323, 347, 350 and 357. Cf. also Art. 38 of the
Convention Instituting the Denitive Statute of the Danube of 23 July 1921 (LNTS
Vol. 26, p. 178). On the possibility of challenging the validity of the decisions in national
courts, see below, chapter 7.8.3.
47 See the resolution adopted by General Assembly on 30 April 1953, which interpreted Art.
7 bis of the constitution. Another resolution, which was adopted by the General Assembly
 settlement of internal disputes 257

Nevertheless, as long as there is no judicial authority having compulsory

jurisdiction in the matter, the organization cannot be prevented from acting
in accordance with its own decision. Since the execution in internal matters
rests, in most cases, with the organization, this means that the decision is in
fact binding, unless the organization voluntarily agrees to submit the dispute
to a judicial organ for nal determination.
Such administrative decision is sufcient for the purpose of most organiza-
tions, in most respects, especially with regard to organizational matters. This
is particularly true if the dispute is one within or between its own organs
and does not involve parties which also have a legal existence outside the
organization (ofcials and member States). The question of settlement of
disputes in substantive matters is a matter of extended jurisdiction, which has
been considered in chapter 6 above.

7.4 Internal courts for disputes involving officials

It will be demonstrated that intergovernmental organizations have the inher-

ent capacity to establish judicial organs for the settlement of internal disputes
if this proves desirable,48 although some writers have tended to deny their
competence to do so on the basis of the view that each organization can
only perform such acts as are authorized, expressly or by implication, in its
particular constitution.49 Moreover, it can be argued that the right to a remedy
against an IGO is a norm of customary international law.50 As observed by

on 29 April 1957, and which gave an “authentic interpretation” of Art. 46 (3) of the
(Staff ) Regulations of the Institute, was binding in the same manner as the Regulations
themselves, since the resolution was approved by the same organs and by the same majority
as prescribed for amendments of the Regulations, see Art. 17 of the constitution (Statute)
of the Institute.
48 As also underlined by the International Law Association in its nal report of the 2004
Berlin conference on accountability of international organizations, p. 35.
49 Thus, during the discussion in the Sixth Committee of the General Assembly, at its fth
session, of the power of the UN to enact headquarters regulations pursuant to § 8 of its
headquarters agreement with the United States, it was claimed that “the Secretary-General
would never be able to promulgate laws, impose penalties or set up juridical organs, as
under the Charter neither he nor the General Assembly had the power to do that” (OR
GA V, 6th Committee, 248th meeting, p. 265).
50 The ICJ stated in the case of Effects of awards of compensation made by the UN Admin-
istrative Tribunal that not affording judicial or arbitral remedy would “hardly be consistent
with the expressed aim of the Charter to promote freedom for individuals an with the
constant preoccupation of the UN to promote this”, Advisory Opinion 13 July 1954, ICJ
Reports 1954, p. 47 at p. 57. This does not necessarily mean that a right to judicial remedy
in cases concerning appointment of ofcials is also conferred on the member States of
which the ofcial is a national, see ECJ’s judgment 15 March 2005 (Grand Chamber) in
Case C-160/03, Spain v Eurojust (Rec. 2005, p. I-2077).
258 chapter seven

Arsanjani, it would be quite ironic to deny the rights of individuals on the

assumption that they would be incompatible with the functions of IGOs.51
The practical need for judicial decision has arisen mostly in those cases where
the dispute involves parties which, although forming part of the organization
and acting in that capacity, also have a legal existence outside the organiza-
tion, viz. ofcials and member States.

Actions by ofcials against the organization: administrative tribunals 52

A great number of organizations – including inter alia the League of

Nations, the International Institute of Agriculture, the International Labour
Organization (ILO), the United Nations,53 the Organization for Economic
Co-operation and Development (OECD) and the International Institute for
the Unication of Private Law – have established so-called administrative
tribunals or similar judicial organs, where ofcials54 may sue the organization
in matters concerning the relationship of employment.55 This they have done

51 M. Arsanjani, Claims against International Organizations: Quis Custodiet Ipsos Custodes?,

Yale Journal of World Public Order, 1980, p. 175.
52 Regulations and other provisions establishing the various existing administrative tribu-
nals (under whatever denomination) were collected in C.F. Amerasinghe: Documents
on International Administrative Tribunals, Oxford 1989. And the law applied by the
tribunals was described in his preceding books on The Law of the International Civil
Service, 2nd ed. Vol. I–II, Oxford 1994, and Case-Law of the World Bank Administrative
Tribunal, Oxford 1989. On the jurisdiction of administrative tribunals, see W. Able: Les
conditions de recevabilité de la requête devant les tribun aux administratifs de l’ONU et
de l’OIT, Paris 1991. See also two articles in Blokker and Muller (eds.): Towards More
effective Supervision by International organizations, Dordrecht 1994, by Pescatore and
Amerasinghe, pp. 214–254.
53 Its judgments are published by the UN in Judgments of the United Nations Administrative
Tribunal.
54 Also former ofcials and persons entitled to rights under their contracts or terms of
appointment are entitled to sue, see e.g. the statutes of the ILO Administrative Tribunal
Art. II 6; of the UN Administrative Tribunal Art. 2, and of the former OEEC-OECD
“Appeals Board” Art. 1.
55 The Statute of the League of Nations Administrative Tribunal was adopted by the
Assembly on 26 September 1927 (text in H Aufricht, Guide to League of Nations Docu-
ments and Publications, p. 485, and in Clunet, Vol. 77 (1950), p. 346). The documents
relating to the establishment of the Tribunal are listed in ICJ Pleadings, Judgments of
the ILO Administrative Tribunal (1956), pp. 22–23. Its Rules were adopted by the Tri-
bunal on 2 February 1928 (text in: Clunet, op. cit., p. 352). An ad hoc forerunner of the
Tribunal was the “collège” established by the Council’s resolution of 8 June 1925. By a
resolution adopted by the Assembly of the League on 18 April 1946 on the dissolution
of the League, the League of Nations Administrative Tribunal was transformed into the
International Labour Organization Administrative Tribunal. It had by 7 February 2007
rendered 2618 judgments. – The “Appeals Board” of the former OEEC and the subse-
quent OECD – which in contradistinction to the appeals boards of other organizations
 settlement of internal disputes 259

although the constitution in most cases contains no provisions authorizing

the establishment of such tribunals.56 Some organizations, which have only
a limited number of ofcials and which therefore do not require permanent
administrative tribunals, have included in their staff regulations less elaborate
provisions for the settlement of disputes with their ofcials, by an ad hoc court
of arbitration57 or before a court established for other purposes.58 In most
of these cases, too, there was, and is, no relevant provision in the constitu-
tion.59 The former European Coal and Steel Community under its constitu-
tion had an internal Court of Justice established for other purposes, which
also exercised compulsory jurisdiction in disputes between the organization
and its ofcials. This was done by simple regulation,60 although the Court

is a real judicial body – was established originally on 8 January 1950 (text in: Clunet, op. cit.,
p. 368), pursuant to Art. 19 (later Art. 16) of the Staff Regulations of the OEEC. Its
judgments are published in Commission de Recours de l’OCDE: Recueil des decisions. –
The Administrative Tribunal of the International Institute for the Unication of Private
Law was established by an amendment, adopted on 18 January 1952, to Arts. 4 (5) and 7
bis of the constitution (quoted below). The administrative tribunals of most of the other
IGOs were established by mere decisions of their plenary organs. These are – or were – all
standing tribunals. The statute of the administrative tribunal of the former International
Institute of Agriculture, adopted by its General Assembly in 1932 merely provided for the
establishment of an ad hoc tribunal for each case. Cf. Chiesa in Revue internationale des
sciences administratives Vol. 20 (1954), pp. 77–80.
56 The Administrative Tribunal of the International Institute for Unication of Private Law
was established by an amendment to its constitution (Arts. 4 (5) and 7 bis). Before the
entry into force of the amendment, an Arbitral Commission exercised the functions and
the powers of an arbitral tribunal pursuant to a decision by the Governing Council of
the Institute and to a clause inserted in each contract of employment. Other constitutions
do not provide for administrative tribunals, but merely contain a general provision for
legislative power in staff matters. Thus the constitutions of the UN (Art. 101) and the ILO
(Art. 9) provide that the staff shall be appointed by the Secretary-General under regula-
tions established by the plenary organ. The constitution of the Council of Europe (Arts.
16 and 36 c) contains a similar reference to staff regulations. The UNRWA Special Panel
of Adjudicators was established by the UNRWA Commissioner-General on 3 December
1983 under UNRWA Area Staff Regulation 11 (2). The constitution of the International
Institute of Agriculture (forerunner of FAO) merely contained a general provision (Art.
5) that the General Assembly shall approve “les projets [. . .] relatifs à l’organisation et au
fonctionnement intérieur de l’Institut”. The Covenant of the League of Nations did not
even provide for legislative power.
57 Chapter XIII (2)–(3) of the staff regulations of the Scandinavian Training Hospital in
Korea (the National Medical Center in Korea), adopted by the (Scandinavian) Committee
on 7 June 1957. It may be questioned whether the court of arbitration established by this
provision was an internal court of the organization. However, it was still less a national
or an international court. The original arbitral tribunal of the Council of Europe also
apparently was set up ad hoc, like that of the International Institute of Agriculture.
58 Art. 11 of the staff regulations of the International Court of Justice and of the Permanent
Court of International Justice.
59 The Statute of the International Court of Justice contains no provision, nor did that of
the Permanent Court of International Justice.
60 Now Art. 91 (8) of the staff regulations, cf. Annex IX.
260 chapter seven

subsequently held (unnecessarily) that its competence could be deduced from

certain articles of the constitution. The constitutions of the European Com-
munity and EURATOM expressly provide that the Court shall decide disputes
between the Community and its employees.61 Similar provisions are found
in the constitutions of the African Union62 and the Andean Community.63
Other organizations, instead of relying upon tribunals of their own, make
use of the administrative tribunals established by other organizations,64 also
without express constitutional authorization.65
The judicial nature, and the binding character vis-à-vis the administrative
organs of the organization, of the judgments of such administrative tribunals,
was conrmed by the International Court of Justice in its Advisory Opinion
on Effect of Awards of Compensation Made by the UN Administrative Tribunal. In this
the Court held that an examination of the relevant provisions of the Statute
(enacted by the UN General Assembly) shows that the Tribunal is established,
not as an advisory organ or a mere subordinate committee of the General
Assembly, but as an independent and truly judicial body pronouncing nal
judgments without appeal66 within the limited eld of its functions.67
The Court thus rejected the contention that the Tribunal is a “subsidiary
organ” of the General Assembly which had been established pursuant to
Article 22 of the Charter and to which the Assembly had delegated its own
powers, indeed the power to adjudicate had not been given to the General
Assembly by the Charter.68 The Court concluded, by nine votes to three, that

61 EC constitution Art. 236, EURATOM constitution Art. 152. The judgments of the Court
are published in European Court Reports (ECR) and Common Market Law Reports
(CMLR). By Council Decision of 2 November 2004, a European Union Civil Service
Tribunal was established to hear disputes involving the European Union civil service, cf.
Ofcial Journal of the European Union L 333 9 November 2004, pp. 7 ff.
62 Article 18 (1) (c) of the Protocol of the Court of Justice of the African Union, signed in
Maputo 11 July 2003, stipulates that a member of staff of the Commission is eligible to
submit a case to the Court in a dispute “within the limits and under the conditions laid
down in the Staff Rules and Regulations of the Union”.
63 Article 40 of the Protocol of Cochabamba lays down that the Court of Justice of the
Cartagena Agreement “is competent to hear such labor disputes as may rise within the
bodies and institutions of the Andean Integration System”.
64 See below, chapter 7.11.
65 The constitution of FAO, however, contains an express provision in Art. XVII. The con-
stitutions of other organizations merely contain the usual provision that the staff shall be
appointed in accordance with regulations to be approved by the plenary organ or similar
general formulations.
66 A right of appeal, by seeking an advisory opinion from the International Court of Jus-
tice, was instituted subsequently by GA resolution 957 (X). Such right of appeal had
been established earlier in respect of the ILO Administrative Tribunal by Art. XII of its
Statute.
67 ICJ Reports, 1954, supra, note 50.
68 Ibid. at p. 61.
 settlement of internal disputes 261

the General Assembly has not the right on any grounds to refuse to give effect
to an award of compensation made by the Administrative Tribunal of the
United Nations in favour of a staff member of the United Nations whose
contract of service has been terminated without his assent.69
The Court thus recognized that the Administrative Tribunal of the UN
has in this respect a position vis-à-vis the General Assembly similar to that of
the national courts of democratic States vis-à-vis Parliament. The statutes of
some of the other tribunals contain express provisions to this effect.70
The Court based this partly upon the principle it had adopted in its earlier
advisory opinion – that the organization must be deemed to have those powers
which are conferred upon it by necessary implication as being “essential to
the performance of its duties”71 – and partly upon specic provisions of the
UN Charter.72 In so doing the Court was, it is submitted, acting ex abundante
cautela. It was not necessary to rely upon either of these considerations in
order to establish the power of the UN to create an administrative tribunal.

69 Ibid. at p. 62. Cf. GA resolution 888 (IX), which accepted the advisory opinion, while
raising the question of judicial review of the judgments of the Administrative Tribunal
which led to GA resolution 957 (X). For a summary, and an unconvincing criticism, of the
written and oral statements submitted to the Court and of the opinion of the Court, see
L. Green in: The Grotius Society, Transactions for the Year 1954, Vol. 40, pp. 158–68.
70 Art. 14 of the Statute of the UN Administrative Tribunal provides expressly that agree-
ments concluded with specialized agencies, extending the competence of the Tribunal to
internal disputes of these organizations, “shall provide that the agency concerned shall
be bound by the judgments of the Tribunal and be responsible for the payment of any
compensation awarded by the Tribunal in respect of a staff member of that agency”.
The agreements extending the jurisdiction of the Tribunal to the specialized agencies
with respect to applications by their staff members alleging non-observance of the Regu-
lations of the UN Joint Staff Pension Fund merely provide, in Art. II, that the agency
“agrees, insofar as it is affected by any such judgment, to give full effect to its terms” (see,
for example, UNTS Vol. 394, p. 336 and Vol. 219, pp. 390 and 394), because liability for
payment vests in the UN Joint Staff Pension Fund rather than in the specialized agency
concerned. Art. 48 of the Regulations of the UN Joint Staff Pension Fund provides that
applications alleging non-observance of the Regulations arising out of the decisions of
the Board may be submitted to the UN Administrative Tribunal, whose decisions “shall
be nal and without appeal” – Art. IX (3) of the ILO Administrative Tribunal and its
annex merely provide that any compensation awarded by the Tribunal shall be chargeable
to the budget of the Organization. In its advisory opinion the Court also discussed the
preliminary question of whether the UN had “been given [. . .] by the Charter” the power
to establish “a judicial tribunal to adjudicate upon disputes arising out of the contracts of
service”. The Court found that the power to establish a tribunal, to do justice as between
the Organization and the staff members, was essential to ensure the efcient working of
the Secretariat, and to give effect to the paramount consideration of securing the highest
standards of efciency, competence and integrity. Capacity to do this arises by necessary
intendment out of the Charter, supra note 50 at p. 57.
71 Ibid., p. 56; cf. ibid., 1949, p. 182, and PCIJ, Ser. B, No. 13, p. 18.
72 In particular Art. 101 (3): “the paramount consideration [. . .] shall be the necessity of
securing the highest standards of efciency, competence and integrity”.
262 chapter seven

The constitutions of the League of Nations and the International Institute of

Agriculture contained no similar provisions. And yet both these organizations
established administrative tribunals (like several other organizations). The Ital-
ian Court of Cassation in Proli v. International Institute of Agriculture referred
to the fact that the League had established a tribunal and that the Institute
might do likewise, without questioning their competence to do so.73
There is no reason why other intergovernmental organizations should not
have the same power. Indeed, it is submitted that no such organization can be
denied the power to establish an administrative tribunal on the ground that
its constitution does not contain clauses which could (be stretched to) provide
some basis for this power, as long as the constitution does not contain any
provision which excludes the creation of administrative tribunals. Nor can
an organization be denied this power on the ground that an administrative
tribunal could not be considered “essential to ensure the effective working of
the Secretariat” or to the performance of the duties of the organization. This
is for the competent organs themselves to evaluate. Indeed, it would have been
quite possible for the UN, as well as for the other organizations concerned,
to carry out their functions without administrative tribunals – as in fact they
did for many years before they established such tribunals. The true theoretical
basis for the power to establish administrative tribunals which may render
binding judgments is, it is submitted, the inherent and exclusive jurisdiction
which all intergovernmental organizations, like States, possess over their organs
and their ofcials as such,74 rather than a “necessary intendment” on the part
of the drafters of the constitution of the particular organization concerned.
Indeed, the inherent jurisdiction over own organs, which has been described
above in chapters 5 and 6 with regard to legislative and administrative power,
extends also to judicial power.
In most cases administrative tribunals have been given jurisdiction only in
actions brought against the organization. They thus have compulsory jurisdic-
tion over the organization, but not over the ofcials, who are free to decide
for themselves whether they want to sue the organization. However, if they
do not sue, they have to accept its administrative decision, which it usually
has the power to carry out, as most IGOs cannot be sued elsewhere because
of their immunity from suit and because foreign courts are incompetent

73 Rivista di diritto internazionale Vol. 23 (1931), p. 386. The judgment was rendered in
1931, four years after the establishment of the Administrative Tribunal of the League of
Nations and two years before the establishment of that of the International Institute of
Agriculture.
74 A contractual basis may also be found in many cases.
 settlement of internal disputes 263

ratione materiae in matters falling under the organic jurisdiction of an IGO (or
another State) and the ofcials therefore have no alternative but to accept the
jurisdiction of the administrative tribunal if they want a judicial settlement of
their claims. The jurisdiction is thus compulsory as far as the organizations
are concerned and exclusive as far as the ofcials are concerned.

Actions by the organization against its ofcials

There is usually no need for the organization to sue its ofcials. Most dis-
putes concern matters to be performed by the organization, and this can
then make an administrative decision, and leave it for the ofcial to bring an
action before the administrative tribunal if he wants to challenge the deci-
sion. Indeed, the statutes of administrative tribunals frequently open only
for actions against the organization, although in some cases the tribunal has
had to establish specic obligations of the ofcial who originally brought an
action against the organization.75 The ILO Administrative Tribunal has held
that it cannot, under Article II of its Statute, accept a suit by an organization
against a staff member.76
Nevertheless, the competence of internal courts of intergovernmental
organizations is not always conned to actions brought by the ofcials. Thus
it was provided in Article 17 of the original staff regulations of the Interna-
tional Court of Justice:
Any dispute arising between the Registrar and a member of the staff of the
Registry regarding the application of these Regulations or the conditions laid
down in the letter of appointment may be submitted, either by the Registrar or by
the person concerned, to the Court, for settlement according to the procedure
which the Court may prescribe.77
Reference may also be made to Article 7 bis of the constitution of the Inter-
national Institute for the Unication of Private Law – and to Article 236
of the constitution of the European Community (and Article 152 of the
constitution of EURATOM) which read:

75 Examples cited by Suzanne Bastid in Recueil des Cours, Vol. 92 (1957 II), p. 445.
76 Judgment No. 173, International Labour Ofce, Ofcial Bulletin Vol. LV, 1972.
77 ICJ Yearbook 1964–47, p. 68. Italics added. Cf. Rosenne: The International Court of
Justice, Leiden 1957, p. 201, Langrod in Revue du droit public et de la science politique
Vol. 57 (1951), pp. 81–82, note and OR GA, IV, 5th Committee, Annex I, p. 159. The ICJ
Staff regulations in force at the time of writing do not contain any provision corresponding
to the one quoted in the text, but instead refers to the Staff Regulations of the UN.
264 chapter seven

The Court of Justice shall have jurisdiction in any dispute between the Com-
munity and its servants within the limits and under the condition laid down in
the Staff Regulations or the Conditions of Employment.
The subsequent common Staff Regulations of the European Communities,
Article 91 (1) reads:
The Court of Justice of the European Communities shall have jurisdiction in
any dispute between the Communities and any person to whom these Staff
Regulations apply regarding the legality of an act adversely affecting such person
within the meaning of Article 90 (2). In disputes of a nancial character the
Court of Justice shall have unlimited jurisdiction.
The effect of these provisions, too, would seem to be able to allow actions
brought by the organization against its ofcials, although the drafters of some
of the provisions may have had in mind only actions brought by the ofcials
against the organization.
However, the European Community also has a provision which clearly
aims at action by the Community against its ofcials, in Article 22 of the
Staff Regulations:
An ofcial may be required to make good, in whole or in part, any damage
suffered by the Communities as a result of serious misconduct on his part in the
course of or in connection with the performance of his duties.
A reasoned decision shall be given by the appointing authority in accordance
with the procedure laid down in regard to disciplinary matters.
The Court of Justice of the European Communities shall have unlimited
jurisdiction in disputes arising under this provision.
Although the latter provision, too, authorizes the organization to sue its ofcials,
it is more likely that the organization will make an administrative decision
pursuant to the second paragraph and that it will then be for the ofcial to
sue the organization pursuant to the third paragraph if he wants the Court’s
decision. In the case of the EC and EURATOM, this provision of their Staff
Regulations may nd a basis in Articles 236 and 152, respectively, of their
constitutions as quoted above.
A more explicit, but limited, provision is contained in Article 213 (2) of
the EC constitution, which relevant part reads:
In the event of any breach of these obligations, the Court of Justice may, on
application by the Council or the Commission, rule that the Member concerned
be, according to the circumstances, either compulsorily retired in accordance with
Article 216 or deprived of his right to a pension or other benets in its stead.
Most of the provisions cited above are laid down in the constitution of the
organization concerned or might be considered to be based upon constitu-
tional articles. However, some provisions, including the most explicit of the
 settlement of internal disputes 265

general provisions relating to the International Court of Justice, have been

established by regulation, without constitutional authorization.78
It is submitted that these examples reect a general principle – applicable
to all IGOs whose constitutions do not provide otherwise – to the effect
that such organizations have the power to confer upon their internal courts
compulsory jurisdiction in disputes between the organization and its ofcials
arising out of the relationship of employment or of their ofcial acts, even
if the action is brought by the organization. It has been clearly established
in practice that the organization has exclusive legislative and administrative
jurisdiction over its ofcials with respect to the relationship of employment.
This jurisdiction extends to all relations between the organization and its
ofcials acting as such. Thus the UN and the specialized agencies have, like
the European Community, in their staff rules reserved the right to require
reimbursement for any nancial loss suffered by the organization as result
of the negligence of an ofcial or of his having violated any regulation or
instruction.79 Such reparation is made effective by administrative decision.
But from an internal legal point of view80 there is no substantive reason why
the organization could not do this instead by bringing an action before its
administrative tribunal – or before other internal courts.
The legal basis for the compulsory judicial power of IGOs over their ofcials
in internal matters may be sought in their inherent (unilateral) legislative
power over their organs and ofcials as such. But it may also be sought in
the (bilateral) contract concluded between the ofcial and the organization. In

78 The constitution of the Council of Europe merely provides (in Art. 36 (c), cf. Art. 16) that
the staff shall be appointed by the Secretary-General in accordance with the administra-
tive regulations adopted by the Committee of Ministers. The Statute of the International
Court of Justice does not provide even that. It merely stipulates that the Court “may
provide for the appointment of such [. . .] ofcers as may be necessary” (Art. 21 (2)) and,
generally that “the Court shall frame rules for carrying out its functions” (Art. 30 (1)).
The President of the Court has relied upon these articles in arguing (successfully) that it
is not for the General Assembly of the UN, but for the Court itself, to establish judicial
procedures for the settlement of disputes with ofcials of the Registry (OR GA IV, 5th
Committee, Annex 1, p. 158) – as it has done, cf. above. Whatever it may be possible
to deduce from these articles, it should be noted that they do not say more than what
applies to any intergovernmental organization – whether or not its constitution says so
(cf. Seyersted: United Nations Forces, Leyden 1966, pp. 144 ff.).
79 See, for example, rule 13.034 of the Staff Rules of the International Atomic Energy Agency.
This rule is not necessarily based upon a genuine legislative power. In substance it says
no more than what follows from general principles of law. – Art. 64 of the Regulations
of the International Institute for the Unication of Private Law (UNIDROIT) contains a
provision of a different kind. It provides that the Secretary-General may, as a disciplinary
sanction, reduce the salary for a given period of “any ofcial or employee found guilty
of serious fault or voluntary negligence in the performance of his duties”, if the ofcial is
“coupable de faute grave, de manquement ou de negligence volontaire dans le service”.
80 The external effects of internal judgments are discussed below.
266 chapter seven

the former case, the regulations which establish the administrative tribunals
are regarded as binding legislative acts. In the second case they are regarded
as binding parts of the contract of employment, into which they have been
incorporated by express reference or tacit understanding. The substantive
difference between the two legal bases, and the test case of their validity,
appears if the regulations are amended with retroactive effect although the
contract or the original regulations did not specify that they might be so
amended. The UN Administrative Tribunal has held that matters which affect
the personal status of each staff member (e.g. nature of his contract, salary,
grade) are contractual and thus subject to protection as acquired rights,81 but
that matters which in general affect the organization of the international civil
service (general rules that have no personal reference) are statutory and may
be amended with effect for current contracts of employment. Administrative
tribunals and other judicial matters fall within the latter category.82

Actions by third parties against ofcials of the organization or members of

a UN force

Certain organizations exercise extended jurisdiction over individuals and other

“external” subjects of law in certain limited respects. This is per denition
the case of the so-called supranational organizations. In such cases it depends
upon the constitution or the other act conferring the extended jurisdiction
upon the organization whether it also has the power to exercise compulsory
judicial powers over them.
In the usual case, where the organization has no extended jurisdiction,
disputes with external parties are not internal, but external disputes, and
are governed, not by the internal law of the organization, but by national
law. In such cases the organization cannot exercise compulsory jurisdiction
over these external parties without authorization from the State under whose
jurisdiction they belong. Thus the organization clearly could not unilaterally

81 The staff regulations of the International Court of Justice provided, rst, that appoint-
ments “shall be made on the basis of these Regulations” (Art. 2), that the regulations
“may be amended” and that “the amended provisions shall replace the old provisions in
respect of all members of the staff ” (Art. 19), and later that “the present Regulation may
be supplemented or amended by the Court, without prejudice to the acquired rights of
staff members” (Art. 14 of the 1979/87 version).
82 However, Art. 65 of the Regulations of the International Institute for the Unication
of Private Law provided for express provisions: “Dans tous les contracts conclus par
l’Institut avec les membres du personnel il sera inséré une clause prévoyant la compétence
du Tribunal administratif, conformément aux dispositions de l’article 7 bis du Statut
Organique”.
 settlement of internal disputes 267

confer upon its courts jurisdiction in actions brought by ofcials against third
parties without their consent.
Actions brought by third parties against ofcials in respect of their ofcial
acts are in a different position. Jurisdiction in these cases implies compulsory
jurisdiction only over the ofcials, and only in respect of acts with regard to
which they are subject to the organic jurisdiction of the organization. This,
it has been demonstrated, comprises not only legislative and administrative,
but also judicial powers. The latter, as was submitted above on the basis of
the practice of several organizations, comprises the power to confer upon the
internal courts of the organization compulsory jurisdiction over its ofcials
in internal disputes with the organization, whether this is considered a uni-
lateral or a contractual power. Are disputes with third parties in any different
position?
There is no doubt that organizations exercise their legislative and adminis-
trative jurisdiction over their ofcials in respect of any ofcial acts performed
by them, whether these form part of relations with organs or members of
the organization or with third parties. In one case as in the other the ofcial –
but not the third party – is bound by the regulations and the administrative
decisions of the organizations. Is the judicial power any more limited? Or
can the organization confer upon its courts jurisdiction even in respect of
external acts, making such jurisdiction compulsory for its ofcials, but not
for third parties?
The judicial power against ofcials of the European Community is conned
to actions by the Community, as set out in Article 288 of the EC Treaty.
Other organizations are not known to have similar provisions in their
constitutions. Yet, they all have, even without constitutional provision, legisla-
tive and administrative jurisdiction over the ofcial acts of their ofcials and
judicial power in internal disputes. It is submitted that they have the same
judicial power in external disputes as well. As long as their constitutions
do not provide to the contrary, the organizations may by simple regulation
confer upon their internal courts jurisdiction – whether such regulations be
considered as genuine legislation or as parts of the contracts of employment.
If no organizations are known to have done so in a general way, this is not
because they lack the power, but because there has not been sufcient prac-
tical need for it, notably because the organizations have considered it more
appropriate to assume responsibility themselves for acts performed on their
behalf. These are, indeed, the acts of the organization itself, and in many
countries it is customary to sue the institution rather than its head or any
other person thereof. It is then for the organization to sue its ofcial at fault
for redress before (national or) its internal courts, as e.g. authorized in Article
236 of the Treaty establishing the European Community.
268 chapter seven

Nevertheless, there may be a need and justication for IGOs to establish

internal courts where their ofcials can be sued when these enjoy immunity
from suit in national courts, since there is then no alternative jurisdiction
which could reasonably contest the jurisdiction of the organization. Indeed,
all detailed treaties which have been concluded on privileges and immunities
of intergovernmental organizations expressly provide that the ofcials shall
enjoy immunity in respect of their ofcial acts. However, it is submitted that
international ofcials are entitled to such immunity to the same extent as State
ofcials even if there is no relevant treaty provision. A number of the treaties
which provide for immunity for ofcials in respect of their ofcial acts provide
at the same time that the organization shall make provision for appropriate
modes of settlement of disputes involving any ofcial who by reason of his
ofcial position enjoys immunity, if immunity has not been waived by the
Secretary-General.83 In such cases the organization may support its judicial
power upon this provision, vis-à-vis States which are contracting parties to
the treaty concerned. It is submitted, however, that the organization will have
the power to confer jurisdiction upon its own courts even if there is no such
additional provisions – i.e., that even this power is inherent in all IGOs.
The immunity of international ofcials extends in certain cases even to their
private acts. It is possible that the organization may, in these special cases, derive
a power to extend its compulsory jurisdiction to disputes arising out of such
acts from the provisions granting the extended immunity or from companion
clauses requiring the organization to provide alternative modes of settlement
(in order to avoid a denial of justice).84 With this reservation, the jurisdiction
which the organization may assume unilaterally over its ofcials extends only
to disputes arising out of their ofcial acts. The jurisdiction is compulsory as
far as the ofcials are concerned. The third parties involved are free to decide

83 See e.g. the general Convention on the Privileges and Immunities of the Specialized
Agencies § 31 (b) and the Agreement on the Status of the Western European Union Art.
26 (b).
84 Or in order to avoid that the national courts of their home country assume jurisdiction
as if they were diplomats of that country, as a French court did in respect of the Secre-
tary-General of the League of Nations, Avenol v. Avenol, Annual Digest of International
Law Cases, 1935–37, Case No. 185. This case was reported in a New York judgment
as follows: “It is interesting to note that research discloses a similar attempt to escape
punishment by one [sic] Avenol in the Courts of the Republic of France in 1934, when
he was being held to account for alleged failure to support his family, he then being the
Secretary-General of the ill-fated [sic] predecessor to the present international organiza-
tion – namely, the League of Nations. The judgment in that instance refused to accord
the claimed immunity, with the comment: “No one may claim to be immune from suit
in fty States. That is practically in all the world. Such a privilege would be abhorrent to
the fundamental idea of justice”. (Ranallo case, City Court of New Rochelle, N.Y., OR
GA, I, Second Part, Sixth Committee, Summary Records, p. 223).
 settlement of internal disputes 269

whether they want to submit to the jurisdiction of the court. However, if the
ofcials enjoy immunity, the third parties will have no choice if they want
to seek a judicial settlement of their claims. Thus, even in relation to third
parties the jurisdiction is in fact exclusive.
It has been proposed to amend the Statute of the International Court
of Justice “so as to bring employees of international organizations enjoy-
ing immunity in the several member countries under the jurisdiction of the
Court”.85 However, it would rather alter the nature of the International Court
of Justice, which is primarily an international court, concerned with interna-
tional law disputes between subjects of international law,86 to bring within its
competence such disputes of internal law stricto sensu.87 In any case this would
require a revision of the Statute, which is not so easily done. It appears more
natural, and easier, to establish internal courts of the organization for the
purpose, since this may be done without constitutional amendment or other
treaty provision. This may also be done jointly by several organizations by
agreement between them.
What has been said above probably applies also to actions by third parties
against members of a United Nations Force.88 This is obvious in the case of
those members of the Force who have been individually enlisted, since these
normally will be ofcials of the organization, even if they are not considered
regular ofcials for internal purposes. But members of national contingents,
too, have temporarily been placed under the jurisdiction of the organization
to the extent that their national States have not retained powers over them.
Their position vis-à-vis the UN is that of international personnel under the
authority of the United Nations and subject to the instructions of the Com-
mander, through the chain of command. However, the troop contributing
State is responsible for all disciplinary matters (including criminal jurisdiction)
concerning the conduct of its own personnel.89 Moreover, the members of

85 International Law Association, Second Report on the Review of the United Nations,
London 1956, p. 43 (Austrian Branch Committee proposal).
86 See below, chapter 7.9.
87 See below, chapter 7.7, on the dangers involved in this.
88 According to the UN Department of Peace-keeping Operations there are currently more
than 100,000 personnel serving on 18 UN-led peace support operations on four continents –
and in addition a number of other eld missions for observation, verication and other
purposes – (www.un.org/Depts/dpko/factsheet.pdf – visited September 2007).
89 Cf. Article 7 ter (1) of the revised draft model memorandum of understanding between the
UN and troop contributing States (UN doc. A/61/494 3 October 2006): “The Govern-
ment acknowledges that responsibility for disciplinary action in respect of all members
of its national contingent while they are assigned to the military component of [United
Nations peacekeeping mission] rests with the commander of that contingent. The Govern-
ment accordingly undertakes to ensure that the commander of its national contingent is
vested with the necessary authority for the purpose of maintaining discipline and good
270 chapter seven

national contingents have been granted immunity from suit in the courts of
the host State “in any matter relating to their ofcial duties” and, partly, even
in respect of their private acts.90
In matters of a private law character the UN has assumed the power to
establish commissions for binding settlement of claims against members of
the Force.91 Such procedures, providing for courts of arbitration and claims
commissions with compulsory jurisdiction to be established by the UN and the
Congolese Government, were already agreed upon in paragraphs 10–11 of
the host agreement with the Congo. Similar provisions had earlier been made
in paragraph 38 of the host agreement with Egypt and in UNEF Regulation
34. In the case of UNEF, these documents were incorporated as annexes to
the agreements concluded by the UN with the States providing contingents.92
However, this was in most cases done only subsequently. Thus, at least from a
formal point of view, the UN assumed the power unilaterally, merely on the
basis of the general placing of the contingents under its authority.
In the case of the UN Forces in the Middle East and in the Congo the
UN chose to establish external courts of arbitration or commissions rather
than internal courts of the organization. However, from the point of view
of the powers of the organization vis-à-vis the members of the Force it can
hardly make any difference what kind of courts it establishes. The crucial fact
is that the courts are established and given compulsory jurisdiction vis-à-vis
the ofcials without their prior consent.

Internal enforcement of judgments

The real problem is, however, not whether the organization is entitled, vis-à-
vis its ofcials, to establish internal courts with compulsory jurisdiction over

order among all members of the national contingent and, in particular, ensuring that they
comply with the United Nations standards of conduct, Mission standards of conduct and
local laws and regulations. The Government further undertakes that the commander of
its national contingent shall for that purpose take all appropriate steps to exercise that
authority”.
90 Under the model Status of Forces Agreement concluded between the UN and host State,
see UN doc. A/45/594, 9 October 1990, annex.
91 This is also set out in the model Status of Forces Agreement, which in its Article 51 refers
“any dispute or claim of a private law character to which the UN peace-keeping operation
or any member thereof is a party and over which the courts of [host country/territory]
do not have jurisdiction because of any provision of this Agreement” to a standing claims
commission to be established for that purpose. In practice, such private law claims are
settled without resort to the establishment of standing claims commissions, but are instead
handled by local claims review boards, cf. M. Zwanenburg, Accountability of Peace Sup-
port Operations, Leiden 2005, p. 90.
92 UNTS Vol. 271.
 settlement of internal disputes 271

them – but how the judgments rendered by such courts can be enforced. We
may rst examine whether they can be enforced by internal action within
the organization.
Those organizations which have established administrative tribunals are
not known to have made provisions for internal execution of the judgments
rendered by these tribunals. Thus the Statute of the UN Administrative Tri-
bunal merely provides, in Article 9 (3), that the compensation awarded by
the Tribunal shall be “paid by the United Nations”. And the Statute of, and
Annex to, the Administrative Tribunal of the International Labour Organiza-
tion, which is also competent in respect of most of the specialized agencies in
Europe and a large number of other IGOs, provide that “any compensation
awarded by the Tribunal shall be chargeable to the budget of the international
organization against which the complaint is led”, Article IX 3.
In the absence of any provision for execution – and since IGOs, unless
otherwise provided, enjoy immunity from national measures of enforcement
without their consent93 – there are no means whereby ofcials and third parties
may have judgments enforced against the organization without its consent. As
was pointed out in the United Kingdom oral statement during the hearings
preceding the advisory opinion on Effects of Awards of Compensation Made by the
UN Administrative Tribunal, the General Assembly has no legal right to refuse
to meet a liability arising from a judgment of the Administrative Tribunal,
“though it has the power to omit to make provision for it in its Budget”.94
However, the organization will usually comply with judgments rendered
against it by its own tribunals.95

93 According to Art. 1 of the Protocol on the Privileges and Immunities of the European
Communities, measures of enforcement may be undertaken against their assets with the
consent of their own Court of Justice (cf. Art. 256 of the EC constitution). In the case
of other intergovernmental organizations, national enforcement of judgments rendered
by internal IGO-courts will be precluded already by the fact that States do not enforce
foreign judgments unless they have specically agreed to do so.
94 ICJ Pleadings, UN Administrative Tribunal (1954), p. 362, cf. p. 361, italics added. In
Norwegian constitutional law it is assumed that the Administration must comply with a
judgment rendered by a Norwegian court, even if Parliament refuses to appropriate the
money.
95 The only known exception in practice is the refusal of the Assembly of the League of
Nations on 13 April 1946 to pay compensations awarded in thirteen judgments rendered
by the League of Nations Administrative Tribunal. The basis of this decision, however,
was a holding by a sub-committee of the Second (Finance) Committee of the Assembly,
that the awards made by the Tribunal were invalid because they sought to set aside a
legislative act of the Assembly, viz. its resolution of 14 December 1939 amending the staff
regulations (Société des Nations, Journal ofciel, 1939, p. 424). The decision, which was
an administrative one, was made during the winding up of the League, by 16 votes to
8 (mostly Benelux and Scandinavian members constituting the minority), with 5 absten-
tions (ibid., Supplement special No. 194, pp. 130–33; text of the report of the Secretary-
General at pp. 245–9 and of the sub-committee and the Second Committee at pp. 261–4;
272 chapter seven

Enforcement against the ofcials may be done by the organization itself by

measures within the framework of its organic jurisdiction – or, more speci-
cally, within the framework of the relationship of employment. In particular
the organization may apply disciplinary measures, including dismissal, and
salary deductions.96 But the territorial sovereignty of States prevents the use
of regular measures of execution against individuals, property or rights within
their territory by the organization itself. These are measures which only the
territorial sovereign may perform and which he usually will not delegate.
Thus, if measures within the framework of the relationship of employment
do not sufce, the organization will have to look to States for assistance. This
raises the question of the external effects of judgments.

External effects of judgments

States are under no obligation to execute judgments rendered by courts of

another jurisdiction, unless this has been specically provided for.97 This is
true of judgments of internal courts of IGOs no less than of judgments of
foreign national courts. In the case of the European Community and EURA-
TOM, there is a specic provision in the constitutions that the judgments
of the Court of Justice shall be enforceable in the member States.98 Other
organizations are not known to have any similar arrangements. In their case,
therefore, neither the host State, nor other member or non-member States,
is under any obligation to execute the judgments of the internal courts of
the organization.

for a summary and an evaluation of the case, see Pleadings, UN Administrative Tribunal
(1954), pp. 129 and 171–81).
96 If the ofcial is no longer employed with the organization, these measures cannot be
applied. He is then no longer subject to the organic jurisdiction of the organization, and
must be sued in the national courts which have territorial jurisdiction over him and his
assets. The UN has done this on at least two occasions in respect of claims for reim-
bursement of overpayment of salary (Annual Report of the Secretary-General, 1952–53,
p. 149; the text of one of the judgments is printed in the Pasicrisie Belge, 1953, No. 10,
p. 65). The available texts of the relevant judgments do not indicate what law was applied.
It is submitted, however, that the national court in such cases must apply the internal
law of the organization in order to determine the basis of the claim. But it will apply
national law in order to determine whether the claim is still recoverable (condictio indebiti,
prescription, compensation), since the claim is no longer internal, between parties both
of whom form part of the organization.
97 The Lugano Convention of 16 September 1988 and Council Regulation (EC) No. 44/2001
of 22 December 2000 (Ofcial Journal of the European Communities Vol. L 12 16 January
2001, p. 1) on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters relate only to judgments by European national courts.
98 EC Art. 244; EURATOM Art. 159. Cf. Art. 1 of the Protocol on the Privileges and
Immunities of the Communities.
 settlement of internal disputes 273

On the other hand, national courts do not always ignore foreign judgments.
The national courts of several countries will recognize them as binding (res
judicata) and enforce them under their own law99 under certain conditions,
if they have been given by a court which had “international competence”
according to the procedural international law of the State where execution
is sought, i.e. according to the rules governing the international competence
of its own courts.100 In these cases, even if it is necessary to obtain a new
judgment in the State where execution is sought, such judgment is granted
without enquiring into the merits of the case (“action on the judgment”, action
judicati).101 In other cases an examination of the substance is admitted, but the
foreign judgment is considered as proof of the validity of the claim, subject
to the right of the losing party to submit counterproof.102
It has been held in certain English judgments, and by certain writers of
other countries, that States are under an obligation of international law to
accord such binding effect to foreign judgments. However, this assumption
is not supported by any uniform practice. But, whether the problem arises
as a question of international law or as one of the national law of the State
concerned, it is submitted that the same principles should be applied to judg-
ments of internal courts of intergovernmental organizations as are applied
to those of foreign national courts. Thus, if judgments of foreign courts of
competent jurisdiction are recognized as binding under certain conditions,
then judgments of internal courts of intergovernmental organizations, too,
should be so recognized if they fulll these conditions,103 including in particular

99 This is also the rule under Art. 256 of the Treaty establishing the European Community.
100 Riad: La valeur internationale des jugements en droit comparé, Paris 1955, pp. 184–6.
See also Riezler: Internationales Zivilprozessrecht, Berlin 1949, § 52, cf. p. 453, the
German Zivilprozessordnung §§ 328–223 a. The Danish law on civil procedure of 10
November 1992, as amended 1994 and 1995, authorizes the Minister of Justice to enact
regulations making foreign judgments binding in Denmark, even if no treaty has been
concluded to this effect, but on condition of reciprocity.
101 See Riezler, op. cit. § 58 in initio and the German Zivilprozessordnung § 328, cf. Hambro
in International and Comparative Law Quarterly, Vol. 6 (1957), pp. 606–7, and also the
English case Goddard v. Gray (1870 L.R.Q.B. 138) and the French case Charr c. Hasim
Ullasahim (Clunet, Vol. 83 (1965), p. 165). See also the draft principles discussed by the
International Law Association, Report of the Forty-Eighth Conference, New York 1958,
p. 118 (“shall be given conclusive effect”).
102 Cf. Riezler, op. cit. § 50 No. 10, and Rammos: “Die Beweiskraft ausländischer Urteile
vor den griechischen Zivilgerichten” in: Grundprobleme des internationalen Rechts,
Bonn 1957, pp. 363–8.
103 The condition of reciprocity would probably be met, in theory, by intergovernmental
organizations and their courts. Since in practice these will only rarely be faced with ques-
tions of national law, the condition of reciprocity may be more simply satised, formally,
by a provision in the statute or the rules of the IGO court concerned that it shall be
bound by judgments of foreign (State or IGO) courts of competent jurisdiction. It may
be noted, however, that the International Law Association in 1958 adopted a resolution
approving “the principle that recognition and enforcement of foreign judgments ought
274 chapter seven

the condition that the courts are “internationally competent”.104 On this

point, it is submitted that internal courts of intergovernmental organizations
are internationally competent in respect of actions (against the organization
and) against ofcials arising out of their ofcial acts, in respect of which they
are subject to the organic jurisdiction of the organization.
It might be objected that the procedural international law of the State where
execution is sought, which denes the international competence of courts of
that State, is based upon territorial and personal criteria, and that these are
of no relevance to courts of intergovernmental organizations except to the
extent that these may have been granted extended territorial and/or personal
jurisdiction. Indeed the jurisdiction of internal courts of IGOs which do not
exercise relevant extended jurisdiction is based upon the inherent jurisdiction
of the organization over its organs (organic jurisdiction). This comprises not
only exclusive legislative and administrative power, as described above in
chapters 5 and 6, but also exclusive judicial power. However, the procedural
international law of States, too, is in fact based also upon organic criteria,
even if this is not identied by legal writers. In practice national courts always
assume jurisdiction in disputes on matters falling within the organic jurisdic-
tion of their State, such as disputes between the government and its ofcials
arising out of the relationship of employment, even if they involve ofcials of
foreign nationality and arise in foreign territory. On the other hand, national
courts decline jurisdiction in matters falling under the organic jurisdiction of
a foreign State, even if the matter would otherwise fall under the territorial
(and personal) jurisdiction of the court. A striking example is actions brought
against a government by its employees who are employed in a foreign country
and who themselves are nationals of that country, in respect of the relation-
ship of employment.105 Thus, an organic link with one legal system overrides
territorial (and personal) links with another system. Similarly, national courts
declare themselves incompetent in disputes concerning matters falling under
the organic jurisdiction of an intergovernmental organization, even if the
matter would otherwise fall under the territorial (and personal) jurisdiction
of the State concerned, as in the case of the relationship of employment of
their nationals working for the organization in their own national territory.
It is thus clear that national courts, in determining questions of their inter-

not to depend on reciprocity” (Report of the Forty-Eight Conference, New York 1958,
p. x).
104 The question whether courts of member States should recognize as binding the judgments
of internal courts of the organization even where they do not so recognize judgments
of courts of foreign States, is left aside.
105 See, for example, the cases reported in Hackworth: Digest of International Law (Washing-
ton 1940–43, Vol. 4, pp. 732–4), which were based upon incompetence ratione materiae,
rather than immunity ratione personae.
 settlement of internal disputes 275

national competence, pay due attention to the organic jurisdiction of States

as well as of IGOs – they allow it to override otherwise applicable territorial
and personal jurisdiction.
It is submitted, accordingly, that internal courts of intergovernmental
organizations are “internationally competent” in disputes falling under the
organic jurisdiction of the organization concerned.106 Indeed, they are the
only courts which are internationally competent in disputes between parties
under the jurisdiction of the organization arising out of matters falling under
its organic jurisdiction. Thus, if an ofcial whose contract of service has been
terminated by the organization sues the organization before its administrative
tribunal for terminal indemnities, and if the tribunal rejects his claim, and if,
subsequently, the organization sues him in a national court for reparation for
injury caused by him during his service or for reimbursement of overpayment
of salary, the national court cannot grant a counterclaim for such terminal
indemnities as were refused by the administrative tribunal, if the national
court concerned recognizes as binding judgments delivered by foreign national
courts in similar circumstances. Indeed, judgments rendered by foreign (State
or IGO) courts on the basis of exclusive organic jurisdiction probably must
be recognized as binding (res judicata, but not as enforceable) even in countries
which do not normally recognize foreign judgments as binding.
If only one of the parties to the dispute is subject to the jurisdiction of the
organization, the dispute is no longer internal, and its courts are not the only
competent courts. But even in such external disputes they are still courts of
competent jurisdiction if the dispute concerns ofcial acts (including private
law acts, e.g. contracts, performed on behalf of the organization) or private
law acts in respect of which the ofcial enjoys immunity because of his ofcial
status – and the other party himself institutes proceedings before the court
of the organization or otherwise voluntarily submits to its jurisdiction. This is
in accordance with the principle of consent, recognized in the procedural inter-
national law of most or all States.107 This covers the case, dealt with above, of

106 Although the drafts submitted to the International Law Association’s Conference in 1958
were concerned with commercial judgments and thus obviously did not have in mind
claims involving State and IGO ofcials, they did not preclude organic criteria. Thus the
Model Act on enforcement of foreign money judgments provided in par. 3 that “The
foreign court which rendered the judgment shall be deemed to have had international
jurisdiction if; (b) The whole cause of actions arose within the foreign jurisdiction;” (see
Report of the Forty-Eighth Conference, New York 1958, p. 120, cf. also p. 119, under
(4), and 129, under 1). The nal text, as adopted at the 1960 Conference, was conned
to judgments of courts of “a foreign State”, and did not contain the provision in par.
3 (b) of the draft, but merely a provision that the bases for recognition listed are not
exclusive (Report of the Forty-Ninth Conference, Hamburg 1960, p. ix).
107 Cf. also the Model Act adopted by the International Law Association (Report of the
Forty-Ninth Conference, Hamburg 1960, pp. vii–viii). It may also be argued that a
276 chapter seven

third parties suing ofcials in respect of their ofcial acts. It also covers the case
of third parties suing the organization itself in disputes of national law.
The question of the external effects of judgments of internal courts of
intergovernmental organizations is a new one.108 However, the general ques-
tion of the recognition of judgments rendered by foreign judicial authorities
other than courts of States is not new. It has arisen e.g. in respect of judgments
rendered by religious courts, although these are not comparable to courts
of intergovernmental organizations unless they are organs of a subject of
international law (the Holy See); if not they will presumably be considered
binding abroad only if they are binding under the law of the country where
they were rendered, and for that reason.109 It may also be mentioned in this
connection that the UN Joint Staff Pension Board has taken the position that

judgment given with the consent of the third party concerned cannot be given less effect
than a foreign arbitral award.
108 But see Seidl-Hohenveldern: “The Foreign Litigant before the Court of Justice of the
European Communities” in Journal of Business Law (1964), pp. 183–4 on the possible
effect in third States of decisions by the Court of Justice of the European Communities
rendered by virtue of arbitration clauses.
109 According to Riad, op. cit. pp. 99–100, the majority of German writers considered
that no distinction could be made between judgments of courts of foreign States and
judgments of other foreign authorities, such as religious courts. At least the case cited by
Riad (Warneyer: Die Rechtsprechung des Reichsgerichts, Vol. 17 [1925] No. 133 [178]),
which was merely an obiter dictum concerning a divorce by ecclesiastical administrative
act, was concerned with an act which apparently was recognized as binding by the State
in which it was rendered, and which could, on that basis, be assimilated to judgments
rendered by the regular courts of that State. Cf. also Riezler, op. cit. p. 117. Riad adds
that the Reichsgericht later took a contrary view. However, the case he cites (Ehem.
M. v. Ehefr. M., Entscheidungen des Reichsgerichts in Zivilsachen, Vol. 136, p. 142) is
not in point. It concerns not a judgment of a foreign religious court, but a simple admi-
nistrative act of an administrative authority of a foreign State. Indeed, the refusal of the
Reichsgericht to recognize that act as binding in Germany was based on the fact that the
act was administrative and not judicial. The relevant provision in German law (Zivilpro-
zessordnung § 328) speaks of “the recognition of the judgment of a foreign court”.
Reference may be made also to the provisions governing the effects in Italy of judgments
pronounced (in that country) by ecclesiastical authorities. The Law of Guarantees of
13 May 1871 (Legge sulle prerogative del Sommo Pontice e della Santa Sede, e sulle
relazioni dello Stato con la Chiesa, Legi e Decreti del Regno d’Italia, Vol. 31 (1871).
p. 1014 No. 214 [Serie 2 a]; French translation in Martens: Nouveau Recueil Général,
2e série Vol. 18, p. 41) merely provided, in Art. 17, that acts of the ecclesiastical autho-
rities were not to be enforced in Italy, and that it was for the civil courts to determine
their legal effects. The Lateran Treaty of 11 February 1929 gave such acts made in
pursuance of organic or (extended) personal jurisdiction executory force by its Art. 23,
which provides that: “sentences and decisions pronounced by ecclesiastical authorities,
which have to do with ecclesiastical or religious persons in spiritual or disciplinary mat-
ters, and which are ofcially communicated to the civil authorities, will have full juridical
efcacy immediately in Italy even so far as the civil effects are concerned” (Italian text
in: Martens, op. cit., 3e série, p. 18. English translation in AJIL, Vol. 23 (1929), Suppl.
p. 194). This provision does not apply to judgments pronounced by the courts of the
State of the Vatican. Art. 23 provides that for the execution of these “the principles of
international law will be applied”.
 settlement of internal disputes 277

the UN Administrative Tribunal, in passing judgments upon applications

alleging non-observance of the Regulations of the UN Joint Staff Pension
Fund, shall give “full faith, credit and respect” to the “proceedings, decisions
and jurisprudence” of the administrative tribunals of the several specialized
agencies concerned, relating to their own staff regulations.
By bringing a new action in the courts of a State which recognizes the
binding force of foreign judgments – in general or when based upon organic
jurisdiction – the winning party can have the judgments of the internal court
of the organization enforced by execution of the authorities of the State under
which the court belongs. It is, however, a condition for this procedure that
the organization waives the immunity of the ofcial if he is the defendant
before the national court. It is, furthermore, a condition that the national court
concerned does not consider itself incompetent ratione materiae.110 This it must
do if the dispute is one between the organization and its ofcial and is under
the exclusive organic jurisdiction of the organization,111 but this monopoly of
the organization does not extend to enforcement of a judgment rendered by
its own competent courts. National courts cannot as such consider themselves
incompetent if the dispute involves a third party, since external disputes are
not subject to the exclusive organic jurisdiction of the organization.112 In this
case only the question of immunity (ratione personae) arises.

Conclusions

It is submitted, in conclusion, that IGOs in the absence of any contrary

provision in their constitutions, have an inherent capacity to establish courts
to adjudicate upon disputes between the organization and its ofcials.

110 On the distinction between immunity ratione personae and incompetence ratione materiae, see
BYIL 1961, p. 454, note 2. See also Lord Millett’s statement in Reg. v Bow Street Magis-
trate Ex parte Pinochet (No. 3) [2000] 1 AC 147, pp. 268–9, on immunity ratione materiae as
a subject-matter immunity that “operates to prevent the ofcial and governmental acts of
one state from being called into question in proceedings before the courts of another, and
only incidentally confers immunity on the individual. It is therefore a narrower immunity
but it is more widely available. It is available to former heads of state and heads of diplo-
matic missions, and any one whose conduct in the exercise of the authority of the state is
afterwards called into question, whether he acted as head of government, government
minister, military commander or chief of police, or subordinate public ofcial. The
immunity is the same whatever the rank of the ofce-holder. This too is common ground.
It is an immunity from the civil and criminal jurisdiction of foreign national courts, but only
in respect of governmental or ofcial acts.” It is submitted that ofcials of intergovern-
mental organizations are protected also by immunity ratione materiae to the same extent
as ofcials of foreign States as far as their exercise of governmental functions is concerned.
111 Ibid. pp. 448–9, and above, chapter 1.
112 Indeed national courts have assumed jurisdiction in disputes between the organization
and its former ofcials.
278 chapter seven

There can be no doubt that the organizations can establish such courts to
decide actions brought against them by their ofcials, and this is conrmed
in practice by the fact that a great number of organizations have established
administrative tribunals for this purpose, despite the absence in their constitu-
tions of any provision authorizing them to do so.
However, IGOs must also be entitled to establish tribunals to adjudicate
upon actions which they bring against the ofcials in that capacity, i.e. if the
action relates to their service or their relationship of employment. The statutes
of some internal courts of intergovernmental organizations allow such actions,
and some of these statutes have been enacted by the organization concerned
without basis in a relevant constitutional provision. If most organizations
have in fact refrained from establishing courts for this purpose or from actu-
ally bringing actions against their ofcials in their internal courts, this is not
because the organizations lack the power to do so, but because they do not
need to do so or because the judgments of such courts would not be directly
enforceable by the authorities of the host State or the ofcial’s home State.
It is much simpler, and equally fair to the ofcials, for the organization to
make an administrative decision, which the ofcial may challenge before the
administrative tribunal if he wants to seek a judicial settlement.
It is also submitted that intergovernmental organizations, in the absence of
any contrary provision in their constitution or in other treaty, have inherent
competence to confer upon their internal courts power to adjudicate upon
disputes between their ofcials acting as such and third parties, although such
jurisdiction can be made compulsory only in respect of actions brought against
the ofcials. Only one organization is known to have done this, by virtue of
an express constitutional provision. However, if other organizations have not
done the same, it is submitted to be not because of any inherent incapacity,
but because claims advanced against ofcials by third parties will usually be
settled by the organization itself if they arise from ofcial acts, since such acts
are properly the acts of the organization. If not, the organization may waive
the immunity of its ofcial from suit in national courts.
Within the limits indicated above, it is submitted that the internal courts
of the organization must be considered as courts of competent jurisdiction
and that their judgments must be given effect by national authorities on the
same conditions and to the same extent as these give effect to judgments of
other foreign courts, unless there is a basis in an applicable treaty or in the
law of the State concerned for treating them differently.113
In respect of private acts of the ofcials, the organization can only confer
compulsory jurisdiction upon its own courts if the States concerned have

113 The constitution of the European Community provides for full executory force, see above.
 settlement of internal disputes 279

conferred upon it the power to do so, for example by a provision in the con-
stitution or in a convention on privileges and immunities that the ofcial shall
enjoy immunity also in respect of such acts (“diplomatic” immunity) and a
companion provision that the organization shall establish alternative modes
of settlement of disputes involving such ofcials. The judgments rendered by
the courts of the organization in such cases must probably be given the same
effect as other judgments of foreign courts of competent jurisdiction are given
by the authorities of those States which have, expressly or by implication,
conferred the power upon the organization.

7.5 Internal courts for other disputes

Disputes with private individuals

It has been pointed out above in chapter 7.3.3 that the organization may con-
fer upon its internal courts competence to adjudicate upon disputes between
third parties and ofcials of the organization, but that such jurisdiction may
be made compulsory only upon the ofcials. The question now to be discussed
is whether the organization may confer jurisdiction upon its internal courts in
disputes between itself and physical or legal persons other than ofcials.

Individuals under the extended jurisdiction of the organization

The practical need for judicial settlement of disputes involving other parties
arises primarily in organizations having extended jurisdiction over individu-
als and member States, such as the European Community. As for the UN,
the Security Council is increasingly exercising an extended jurisdiction over
private individuals and entities, notably in the form of imposing targeted
sanctions.114

114 As may be illustrated by the sanctions list adopted by the Sanctions Committee under
UNSCR 1267 (1999) and later resolutions concerning individuals, groups and entities
deemed to belong to or act in support of the Taleban or al-Qaeda (see www.un.org/sc/
committees/1267/consolist.shtml, visited September 2007), which entails an obligation
on member States to freeze without delay funds and economic resources belonging to
or controlled by listed persons and entities. Some modest but important steps have been
taken to address the lack of judicial guarantees for such listed persons, inter alia by adop-
ting UNSCR 1730 and 1735 (2006). UNSCR 1730 establishes a de-listing procedure
by which adversely affected individuals and entities may challenge a decision to impose
sanctions through a designated UN contact point.
280 chapter seven

Internal disputes involving physical or legal persons other than ofcials

may arise in those cases where the organization has been granted extended
jurisdiction over individuals (and companies) other than ofcials. As described
in chapter 6 above, such jurisdiction may have been granted in the form of
territorial jurisdiction, such as that of certain international river commis-
sions; or of personal jurisdiction, such as that of the Mixed Commission for
the Exchange of Greek and Turkish Populations or that of the European
Nuclear Energy Agency under the Convention on the Establishment of a
Security Control in the Field of Nuclear Energy of 20 December 1957;115 or
of decisions binding upon States; or of comprehensive jurisdiction as that of
supranational organizations. In such cases there may be a practical need for
judicial settlement of disputes arising out of the exercise by the organization
of its legislative and/or administrative powers over these parties.
The constitution of the European Community provides that the Court
of Justice shall be competent in actions brought against the Community by
natural or legal persons under its extended jurisdiction.116 But there can be
no doubt that other organizations, too, are entitled to establish courts for the
adjudication of such disputes, which are internal largo sensu. The individuals
and companies concerned may be given the right to sue the organization
before such internal courts.117 And if they consent, they may themselves be
sued by the organization or by third parties.
The question whether the organization may confer upon its internal courts
compulsory jurisdiction over the individuals and companies concerned, i.e.
jurisdiction in actions brought against them without their consent, cannot
be answered in general terms. It depends upon an interpretation of the act
conferring the extended jurisdiction upon the organization. In the case of
organizations exercising complete territorial jurisdiction, such as indirect
coimperia, it goes without saying that the compulsory judicial power of the
organization extends as far as its legislative and administrative powers. Ref-

115 Text in the International Atomic Energy Agency’s Legal Series No. 1, entitled “Multi-
lateral Agreements”, Vienna 1959, p. 187.
116 See Art. 232 of the Treaty Establishing the European Community, cf. also the compe-
tence of the EFTA Court to hear disputes raised by private individuals laid down in the
ESA/Court Agreement Arts. 36 (2) and 37 (3).
117 The semi-judicial Eligibility Review Board of the International Refugee Organization
was to hear and determine appeals from individual refugees against administrative
decisions by the Organization denying them status as refugees eligible for assistance.
See resolutions nos. 53 and 70 of the Preparatory Commission for the International
Refugee Organization (Prep./154/Rev. 1/pp. 10 and 25, and Prep./195/Rev. 1/pp.
18–19 and 36). This Board, however, was never established. Moreover, it was not to be
concerned with disputes arising out of genuine jurisdiction over private individuals, since
the Organization did not have the power to impose duties upon the refugees other than
as a condition for receiving aid from the Organization.
 settlement of internal disputes 281

erence may also be made to the Western European Union, which had been
empowered by the German-French agreement on the Status of the Saar of
23 October 1954 to supervise the implementation of its provisions. Judicial
powers were not specically mentioned, but in 1955–56 an internationally
composed tribunal was established to adjudicate upon any complaints by
Saarlanders of political persecution in connection with the referendum provided
for in the agreement.118 The compulsory judicial power of international river
commissions, on the other hand, usually extends only to cases expressly pro-
vided for. The power conferred upon the UN in respect of its headquarters
district in New York by § 8 of its headquarters agreement with the United
States is expressly conned to a legislative power, the judicial power remain-
ing with the US.119
The European Court of Justice has not been given compulsory jurisdiction
with direct effect over enterprises subject to the community’s legislative and
administrative authority or over other private parties, except insofar as this
might in principle be provided by the State under whose general jurisdiction
they belong. The latter was expressly provided in Article 43 of the constitution
of the former Coal and Steel Community, but it goes without saying that the
other Communities, too, like any other intergovernmental organization, have
the power to confer such compulsory jurisdiction upon their courts if the
competent States so provide.120 Otherwise the Court may exercise compulsory
jurisdiction over private individuals only indirectly. Thus, in the rst place,
if the individual is sued in a national court in a matter which raises, as a
preliminary issue, the question of the validity of a decision of the organiza-
tion, the Court of the Community has exclusive jurisdiction in respect of this
question.121 In the second place, Article 104 of the constitution of EURA-
TOM provides that, on a petition by the Commission of the Community,

118 See Deruel: Le Tribunal international de la Sarre in Annuaire français de droit interna-
tional, Vol. 2 (1956), pp. 509–16.
119 Cf. § 7 (c) and (d) of the headquarters agreement. It was in the context of a discussion
of these provisions that the restrictive statement quoted above, in note 49, was given. It
was unfounded even in that context, since the UN does exercise legislative powers over
private individuals within the headquarters district and could have exercised judicial
powers as well if the headquarters agreement had so provided, despite the absence of
any provision in the Charter to that effect.
120 Private parties may, furthermore, be sued before the Court if they have consented
thereto by a clause in a contract, cf. the constitutions of the EC Art. 238 and EURA-
TOM, Art. 153.
121 EC Art. 234 and EURATOM Art. 150. National courts cannot themselves nd a Com-
munity measure to be invalid, see ECJ judgment in case C-314/85 of 22 October 1987,
Foto-Frost/Hauptzollamt Lübeck-Ost, in which it was stated that if a national court
(against whose decision there is a judicial remedy) has doubts about the validity of a
Community measure, it must stay the proceedings and ask the Court of Justice to give
a preliminary ruling on the matter (Rec. 1987, p. 4199). Cf. also ESA/Court Agreement
Article 34 concerning the EFTA Court.
282 chapter seven

the Court of Justice shall rule as to the compatibility with the constitution of
any agreement or convention concluded by any person or enterprise with a
third country, an international organization or a national of a third country,
where such agreement or convention has been concluded after the date of
the entry into force of this Treaty.
Thirdly, if a dispute is brought before a national court, that court may, or
shall, ask the EC Court for a preliminary ruling on the interpretation of rel-
evant aspects of EC law as specied in Article 234 of the Treaty Establishing
the European Community and Article 150 of the EURATOM constitution.
Otherwise the individuals themselves are forced to sue the organization before
its Court of Justice if they want to contest the validity of a decision of the
organization. The constitutions contain a number of provisions authorizing
them to do so.122 The incentive to bring such action is particularly manifest
in respect of decisions of the Commission imposing monetary obligations
upon individuals, since these decisions have been given direct executory force
in the member States.123
The European Convention on the Establishment of a Security Control in
the Field of Nuclear Energy of 20 December 1957 provides in Article 13
that “any Government party to the present Convention or any undertaking
concerned may bring before the Tribunal set up under Article 12 appeals
against certain decisions made by the European Nuclear Energy Agency”
(an autonomous organ of the Organization for Economic Co-operation and
Development) in connection with the security control. The tribunal may
declare that the decision appealed against is contrary to the convention or to
the security regulations enacted or agreements concluded pursuant thereto,
and it may oblige the Agency to pay reparation for any damage suffered by
the undertaking. The Convention then goes on to provide, in Article 14:
The Tribunal shall be competent to decide on any other question relating to
the joint action of the Member countries of the Organization in the eld of
nuclear energy submitted to it by agreement between the parties to the present
Convention concerned.
Such competence has indeed been granted to the Tribunal by several conven-
tions. Article 16 of the Convention of 20 December 1957 on the Constitution
of the European Company for the Chemical Processing of Irradiated Fuels
(Eurochemic)124 provides that “any dispute arising between Governments

122 See for example EC constitution Arts. 232–235 and EURATOM constitution Arts.
146–51.
123 EC constitution, Arts. 244 and 256; EURATOM constitution, Arts. 159 and 164.
124 International Atomic Energy Agency, Legal Series No. 1 (Vienna 1959), p. 218.
 settlement of internal disputes 283

party to the present Convention concerning the interpretation or applica-

tion thereof ” may be submitted to the Tribunal “by agreement between the
Governments concerned”. On the other hand, Article 17 of the [European]
Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear
Energy and Article 17 of the Supplementary Convention thereto of 31 Janu-
ary 1963 provide that “any dispute arising between two or more Contracting
Parties concerning the interpretation or application of this Convention [. . .]
shall, upon the request of a Contracting Party concerned” be submitted to
the European Nuclear Energy Tribunal.
It is submitted that, even in the absence of Articles 13 and 14 of the
European Convention on the Establishment of a Security Control in the
Field of Nuclear Energy, the organization could have established a tribunal
with the competence stated in these provisions, although its competence could
then not be made exclusive since the provisions do not impose compulsory
jurisdiction upon the contracting parties or the undertakings, but only upon
the organization. Furthermore, if there had been no such provisions, any
member of the organization could accept the jurisdiction of the Tribunal as
compulsory upon them or upon individuals under their jurisdiction, as mem-
bers have done in two of the conventions quoted above. The legal signicance
of Article 14 is not that it authorizes the organization and the Tribunal to
accept extension of its competence, but that it gives the contracting States
a legal right to require the Tribunal to adjudicate in circumstances covered
by the provision, and, possibly, that it prevents the Tribunal from accepting
jurisdiction in circumstances not covered by the provision.
At any rate, it is quite clear that Article 14 does not authorize the organiza-
tion to confer upon the Tribunal compulsory jurisdiction over enterprises or
other private persons without the agreement of their governments.
The means of enforcing judgments rendered by the internal court of an
IGO against a private individual similarly depend upon an interpretation of
the act conferring the extended jurisdiction upon the organization. In the case
of complete territorial jurisdiction, the organization may enforce its judgments
by the same means as a State. The European Community has, pursuant to
Articles 81 ff. of its constitution, instituted nes to the Community upon
undertakings which violate EC competition rules.125 These nes may also hit

125 See the Regulations on unlimited jurisdiction in the matter of nes in Court of Justice
of the European Communities, Selected Instruments relating to the Organization,
Jurisdiction and Procedure of the Court (Luxemburg 1993), pp. 229–32 and Josephine
Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law, 9th ed., Oxford 2006,
pp. 635 and 637–8. See also Lasok and Bridge: Law and Institutions of the European
Union, London 1994, pp. 251–76.
284 chapter seven

enterprises outside the EC-area, if their acts take place or produce effects in
the EC internal market. In other cases the organization may enforce its judg-
ments only by withholding payment of sums due to the losing party or by
withholding other benets or rights accruing to it within the organization.126
In such cases it may be necessary that the States concerned undertake to
enforce the judgments, as they have done in the case of the European Com-
munity. Even in the absence of such provisions, national courts should, it is
submitted, attribute the same force to judgments of an IGO of competent
jurisdiction as they do to judgments of a foreign national court of competent
jurisdiction.

Individuals not under the jurisdiction of the organization

Intergovernmental organizations may also establish courts for the adjudication

of disputes between the organization and individuals who are not subject to
its organic or extended jurisdiction, or between the organization and individu-
als concerning matters which fall outside the legislative and administrative
jurisdiction of the organization. This may be important to ll the gap left
open by the organization’s immunity from suit in national courts. Such dis-
putes are not internal. Still, the method of settlement has been established in
certain cases by constitutional provision.127 But it may also be done without
such provision, as has been done by the International Labour Organization
and the Council of Europe. Article II (4) of the Statute of the Administrative
Tribunal of the International Labour Organization provides:
The Tribunal shall be competent to hear disputes arising out of contracts to
which the International Labour Organization is a party and which provide for
the competence of the Tribunal in any case of dispute with regard to their
execution.
Article 21 of the General Agreement on Privileges and Immunities of the
Council of Europe provides for a more external procedure:
Any dispute between the Council and private persons regarding supplies fur-
nished, services rendered or immovable property purchased on behalf of the

126 The constitution of the former European Coal and Steel Community provided that even
decisions of administrative organs of the Community might be enforced by these and
other means, see Arts. 63 (2), 66 (5)–(6) and 91.
127 See notably the constitutions of the following organizations: EC Arts. 235 and 238;
EURATOM Arts. 151 and 153; UNIDROIT Art. 7 bis, cf. the interpretative resolution
adopted by the General Assembly at its second session (1953) in order to bring the
provision into conformity with Italian legislation.
 settlement of internal disputes 285

Council shall be submitted to arbitration, as provided in an administrative

order issued by the Secretary-General with the approval of the Committee of
Ministers.
This agreement is not part of the constitution of the organization, but it
has been ratied by the host country, where a number of the contracts in
connection with the construction of the building of the Organization were
made. The provision has been followed up by Rule No. 481 enacted by the
Secretary-General of the Council of Europe on 27 February 1976, whose
Article I provides:
Any dispute relating to the execution or application of a contract covered by
Article 21 of the General Agreement on Privileges and Immunities of the
Council of Europe shall be submitted, failing a friendly settlement between the
parties, for decision to an Arbitration Board composed of two arbitrators each
selected by one of the parties, and of a presiding arbitrator, appointed by the
other two arbitrators . . .
Finally, this provision is followed up by a clause in each contract on the fol-
lowing model:
Any dispute between the Council of Europe and . . . regarding the execution or
application of this contract shall, failing a friendly settlement between the parties,
be submitted to arbitrate in accordance with the appended Rule no. 481 issued
by the Secretary General with the approval of the Committee of Ministers as
provided in Art. 21 of the General Agreement on Privileges and Immunities
of the Council of Europe.
It should be noted, however, that such disputes are not internal, but external,
and are governed, not by the internal law of the organization, but by national
law, although the internal law of the organization must be applied where the
applicable rules of conict of laws refer to its “personal” law.
The organization cannot assume compulsory jurisdiction over the individu-
als concerned without the authorization of the State under whose jurisdiction
they belong. But if they sue, or consent to being sued, before the courts of
the organization, the judgment given must, it is submitted, be considered by
national courts as a judgment given by a court of competent jurisdiction or,
at least, by an arbitration court.128

128 Indeed, most of the cases dealt with under (3) might be covered by the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (UNTS
Vol. 330, p. 38, cf. Art. II thereof ), except that the convention is only open for accession
by “States”.
286 chapter seven

Internal courts for disputes with or between member States or other States under the
jurisdiction of the organization

Internal disputes stricto sensu

Certain constitutions expressly authorize the organization to establish tribunals
for the settlement of disputes concerning the interpretation and application
of the constitution itself.129 Or the reference of such disputes to administrative
organs of the organization for binding decision is subject, in some organi-
zations, to a right of appeal to an ad hoc or standing (external) tribunal.130
Some of these provisions refer only to disputes between member States, but

129 FAO’s constitution, Art. XVI, prescribes settlement by the International Court of Justice
or “such other body as the Conference may determine”. At its rst session the Conference
adopted a resolution according to which such disputes, pending the entry into force of the
Statute of the International Court of Justice, “shall be referred to such arbitral tribunal
as the Conference shall appoint” (FAO, Report of the First Session of the Conference,
pp. 55–56).
UNESCO’s constitution, Art. XIV (2), similarly provides for “determination” by the
International Court of Justice or “an arbitral tribunal, as the General Conference may
determine under its rules of procedure”. Rule 33 (4) of the latter provides that disputes
to which the organization is a party may “be submitted for nal decision to an Arbitral
Tribunal, arrangements for which shall be made (institué) by the Executive Board”. An
arbitral tribunal was set up in 1949 (under Rule 33 [2] as then worded) to adjudicate upon
a dispute which had arisen within the General Conference (between member States). It
was composed of a President designated by the President of the International Court of
Justice and two other judges (assesseurs) designated by the Executive Board itself, and the
tribunal was serviced by the Legal Division of the Secretariat of UNESCO. Member
States were allowed to “le with the secretariat of the tribunal such observations as they
may think t to proffer on the matter” (UNESCO doc. 4 C/PRO/4; the judgment is
also reported in Annual Digest of International Law Cases 1949 Case No. 113). This
must be considered as an internal, not an international court.
Arts. 220 et seq. of the Treaty establishing the European Community establishes an
internal Court of Justice which “shall ensure that in the interpretation and application
of the Treaty the law is observed”. If a member State fails to fulll an obligation under
the Treaty, the Commission may bring the matter before the Court of Justice (Art. 226).
According to Art. 227 such an action can also be brought by another member State;
for political reasons, however, that has only been done very seldom so far (e.g. Cases
C-141/78: France v. United Kingdom (1979) ECR 2923 (1980), C-388/95: Belgium
v. Spain (Rec. 2000, p. I-3123). In these matters the Court’s jurisdiction is compulsory
and exclusive. A member State can also bring an action concerning the legality of acts
adopted by any of the European Community institutions before the Court (Art. 230),
and the same applies if any of the institutions fail to act (Art. 232).
The disputes dealt with in Art. 37 (2) of ILO’s constitution (disputes relating to conven-
tions elaborated by the ILO) may be viewed as falling outside the scope of the internal
law of the organization.
130 See especially the constitutions of the Bank, Art. IX (a)–(b); the Fund, Art. XXIX (a)–(b);
and ICAO, Arts. 84–86. In some other cases it is not clear whether the settlement by the
administrative organ is intended to be binding and nal. See for example the constitution
of FAO, Art. XVII (1) in ne.
 settlement of internal disputes 287

in most cases they are general and thus comprise also disputes between the
organization and member States.131
It is not known whether organizations which have no such constitutional
provision have established tribunals for the adjudication of disputes concern-
ing internal matters stricto sensu (organizational matters) which arise between
member States or between the organization and a member State.132 However,
they cannot be denied the power to do so, as long as the constitution does
not preclude it, for example by providing for another exclusive mode of
settlement.133 The organization may confer upon such tribunals compulsory
jurisdiction vis-à-vis the organization itself, e.g. in actions brought against it by
a member State. The member State is then free to decide for itself whether
it wants to institute judicial proceedings or whether it prefers to accept the
administrative decision of the organization. On the other hand, an intergov-
ernmental organization can hardly – without authorization in its constitution
or other treaty with, or act by, its member States – confer upon its tribunals
compulsory jurisdiction vis-à-vis member States, i.e. in actions brought against
these by the organization or by another member State.134 The members are
sovereign States and are as such subject to the jurisdiction of other authori-
ties only when they have expressly or tacitly accepted such jurisdiction. Even
if they, by becoming members of the organization, have tacitly accepted its
legislative and administrative jurisdiction in many organizational matters, it
does not necessarily follow that they have also accepted its judicial power in
the same matters.135 At any rate, there is no practice to support any inherent

131 Thus Art. XVIII of the constitution of INTELSAT (International Telecommunications

Satellite Organization) of 12 February 1973 prescribed arbitration as the last resort
settlement of disputes between Member States or between Member States and the
Organization relating to rights and duties under the constitution.
132 § 29 of the General Convention on the Privileges and Immunities of the United Nations
and the corresponding provisions of other general conventions on privileges and immu-
nities relate to what is more properly considered as external disputes. Rule 38 (1)–(2)
of the rules of procedure of the General Conference of UNESCO provides that “the
Legal Committee may be consulted on any question concerning the interpretation of
the Constitution and the rules and regulations” and that the Committee’s decision “shall
be taken by a two-thirds majority” (in the original wording unanimity was required).
However, such “decisions” are probably not binding, cf. paras. 3–4 and the constitution,
Art. XIV (2).
133 An example of the latter is Art. 37 of the ILO constitution, cf. Jenks in BYIL, Vol. 22
(1945) p. 64, note, and International Labour Conference, 27th Session, Paris 1945,
Report IV (1), Matters Arising out of the Work of the Constitutional Committee, Part
I, p. 107.
134 The treaty establishing the European Community authorizes both types of action.
135 As far as disputes relating to the interpretation of the constitution are concerned, see
Kopelmanas, L’Organisation des Nations Unies, Vol. 1, Paris 1947, p. 263, who stated
that the absence in the Covenant of the League of Nations of any provision concerning
288 chapter seven

power for intergovernmental organizations to assume compulsory judicial

authority over their member States. Accordingly, it is submitted that inter-
governmental organizations cannot assume compulsory judicial powers over
member States even in disputes arising out of internal matters stricto sensu – i.e.,
of (organizational) matters falling under the inherent organic or membership
jurisdiction of the organization – without authorization in the constitution or
other treaty or undertaking by the States.

Internal disputes largo sensu

Intergovernmental organizations may also establish internal courts to adju-
dicate upon disputes arising out of internal matters largo sensu – i.e. matters
falling under an extended jurisdiction of the organization. Unless otherwise
provided in the constitution of the organization or in the treaty conferring
upon it the extended jurisdiction, it may confer upon such internal courts com-
pulsory jurisdiction in actions brought against the organization or its ofcials
as such. But the question of its power to confer upon such courts compulsory
jurisdiction over the States concerned depends upon an interpretation of the
act conferring the extended jurisdiction upon the organization. This need not
be a provision of the constitution of the organization, but may be another
treaty136 or a unilateral act. And this act need not specify the judicial power.
Several examples of this may be cited.
Thus the General Assembly of the UN twice established tribunals for the
compulsory adjudication of disputes arising out of the extended jurisdic-
tion conferred upon it by Annex XI to the Treaty of Peace with Italy.137
This authorized the General Assembly to make a binding recommendation
concerning the “disposal” of the former Italian colonies. This the General
Assembly did by its resolution 289 (IV), which “recommended” that Libya
should be constituted a sovereign State, and by resolution 390 A (V), which

its interpretation “témoigne nettement l’intention de ses auteurs de revenir à la solution

du droit commun qui laisse aux Etats membres la competence pour interpreter, en
dernier resort, chacun en ce qui le concerne, les termes du document fondamental de
l’institution créé.”
The report of Committee IV/2 of the San Francisco Conference – after rejecting
the idea of including in the Charter an express provision referring disputes between two
organs to an international tribunal – merely States that if two member States “are at
variance concerning the correct interpretation of the Charter, they are of course free
to submit the dispute to the International Court of Justice as in the case of any other
treaty” (UNCIO Vol. 13, p. 709).
136 An example would be the (European) Convention on the Establishment of a Security
Control in the Field of Nuclear Energy referred to above, except that the jurisdiction
established by that Convention is compulsory only in respect of the organization.
137 UNTS, Vol. 49, p. 215.
 settlement of internal disputes 289

“recommended” that Eritrea be constituted an autonomous unit federated

with Ethiopia. The General Assembly, furthermore, by resolutions 388 (V)
and 530 (VI), “approved” detailed economic and nancial provisions relating
to the two territories. But the General Assembly did not conne itself to these
legislative and administrative steps. Although the Peace Treaty made no men-
tion of judicial powers, the General Assembly by the two latter resolutions also
established UN Tribunals for Libya and Eritrea, respectively, to decide, on the
basis of “law”, all disputes arising between Italy, the Administering Powers
and the government of the territory concerned relating to the interpretation
and application of the said economic and nancial provisions. The resolutions
provided expressly that the Tribunal should be seized of any such disputes
upon the unilateral request of one of the parties. Thus, in these cases the
legislative and administrative powers clearly conferred upon the organization
were held to be accompanied by judicial powers, although it probably did not
occur to the parties when concluding the Peace Treaty that in so doing they
also accepted the compulsory judicial power of the UN in disputes arising
out of the legislation enacted by the UN pursuant to the Treaty.
It should be noted that internal courts do not provide the only possible
fora for judicial settlement of internal disputes (stricto or largo sensu) involving
member States. Indeed, it is more common to envisage settlement of such
disputes by external, international courts,138 either pre-existing international
courts or ad hoc arbitral tribunals, the composition, competence and proce-
dure of which is determined, not by the organization, but by the parties to
the dispute or by an external treaty or authority.139 This mode of settlement
will be discussed below.

Internal courts for disputes between organs

Disputes between an organ of an intergovernmental organization on one side,

and ofcials, private individuals or member States on the other, constitute
disputes between the organization as a whole and the ofcial, individual or
State concerned. The settlement of such disputes has been discussed in the
preceding chapters. They all involve parties which also have a legal existence
outside the organization.

138 Below, chapter 7.9.

139 FAO’s constitution, Art. XVII (1), and UNESCO’s constitution, Art. XIV (2), appear to
leave a choice between internal or external courts. In fact these organizations appear to
have preferred internal courts.
290 chapter seven

The position is different in respect of disputes between two organs of the

same organization. There is usually no practical need for judicial settlement
of such disputes. They can be settled satisfactorily by administrative decision
of the superior organ, or by the plenary organ of the organization, in the
same manner as disputes between two organs of a State.
The need for judicial settlement may arise, however, if an organ has been
granted in the constitution an independent position, in certain respects, vis-
à-vis the plenary organ, in the sense that the latter is not entitled to interfere
in all aspects of the exercise by the “subordinate” organ of the powers con-
ferred upon it.
This is the position in the European Community. The constitution of the
EC confers upon the Court of Justice the power to adjudicate upon certain
actions brought by one organ against another relating to the legality of its acts
or its failure to act.140 The problem may arise also in the United Nations, as
far as the relationship between the General Assembly and the Security Council
is concerned. However, both the General Assembly and the Security Council
have the power to request advisory opinions from the International Court
of Justice, and there is then probably no need for settlement by contentious
proceedings before an internal court141 (or before the International Court
of Justice, acting as an internal court of the Organization, which it in most

140 See notably EC constitution, Arts. 230 and 232, and EURATOM constitution, Arts. 146
and 148, and several cases where the Commission or the Council had failed to consult the
European Parliament, e.g. Case 302/87, Parliament v. Council (Comitology Case), ECR
5613, Case 70/88, Parliament v. Council (Chernobyl), 1990 ECR 1–2041 and judgment
13 September 2005 in Case C-176/03, Commission v Council (competence to lay down
provisions to harmonize national criminal provisions to protect the environment).
141 Committee IV/2 of the San Francisco Conference, in its report to the Conference,
conned itself to stating that “the nature of the Organization and of its operation
would not seem to be such as to invite the inclusion in the Charter of any provisions”
for judicial settlement of “a difference of opinion among the organs of the Organization
concerning the correct interpretation of a provision among the organs of the Organi-
zation concerning the correct interpretation of a provision of the Charter” (UNCIO,
Vol. 13, pp. 709–10). The position of the UN was well described by Lissitzyn in the
following terms: “It is to be doubted whether much would be gained in the formative
stage of world organization by placing the action of an already weak Security Council
under the control of an even weaker Court. A clash between the Council and the Court
might be fatal to both. Yet an organization whose various organs and members all have
the power to interpret the basic constitutional instrument without denite legal effect
on the other organs and members can hardly be viable. At present, the weakness of
the organization largely protects its members from abuse of power. If the organization
is to gain strength, the authority to give binding interpretation of the Charter, at least
in matters directly affecting the rights and duties of States, must be lodged somewhere,
preferably in a judicial organ. The long-range purpose and policies laid down in the
Charter must be given some protection against the possible short-range aberrations of
the political organs. Power without law is despotism.” The International Court of Justice,
New York 1951, pp. 96–97.
 settlement of internal disputes 291

cases cannot do under Article 34 (1) of its present Statute). Internal disputes
between two organs of the same international person could not appropriately
be settled by contentious proceedings before an international court.142 Ques-
tions of delimitation of the powers of the General Assembly as against those
of the Security Council have in fact been the subject of advisory opinions
of the Court.143 Questions of the delimitation of the powers of deliberative
organs vis-à-vis those of administrative tribunals, and vice versa, have also been
the subject of advisory opinions.144 Similarly, the International Atomic Energy
Agency has been authorized to request advisory opinions of the International
Court of Justice, and may thus solve in this manner any dispute arising from
the fact that, in this organization, an organ of restricted membership, the
Board of Governors, has major powers in the exercise of which the plenary
organ cannot interfere otherwise than by recommendations.145
Those organizations which do not have the power to request advisory
opinions from the International Court of Justice may instead submit the legal
questions involved in a dispute to an ad hoc legal committee for advice. Such
advisory procedure, followed by an administrative decision, will in most cases
appear more adequate than contentious proceedings between two organs of
the same organization before an internal court, not to mention the Interna-
tional Court of Justice or another international court.
Should the need arise, nevertheless, for genuine judicial settlement of dis-
putes between two organs of the same organization, there can be no doubt
that the organization has the power, even in the absence of constitutional
provision, to establish internal courts for the compulsory adjudication of such
disputes, unless the constitution precludes this by providing for other exclusive

142 The American Branch sub-committee of the International Law Association Committee
on the Charter of the UN nevertheless proposed (in 1955) the inclusion in the Charter
of provisions for the settlement of disputes between two organs of the same organization
by contentious proceedings before the International Court of Justice, but later conned
its proposal to provisions for advisory opinion (par. 26 of the Report, nal version in:
International Law Association, Second Report on the Review of the Charter of the
United Nations, London 1956, p. 112. The resolution subsequently adopted by the Inter-
national Law Association, recommending admission of intergovernmental organizations
to the International Court of Justice in contentious cases, appropriately spoke only of
organizations, not of organs (International Law Association, Report of the Forty-Seventh
Conference Held at Dubrovnik 1956, pp. 104–5). Cf. below, chapter 7.11.
143 Competence of the General Assembly for the Admission of a State to the UN, ICJ
Reports 1950, p. 4, and, partly, Certain Expenses of the United Nations, ibid. 1962 at
pp. 170–2 and 175–7.
144 Effect of Award of Compensation Made by the UN Administrative Tribunal (ICJ Reports
1954, p. 47). See also Judgments of the ILO Administrative Tribunal upon Complaints
Made against UNESCO (ibid. 1956, p. 77).
145 Compare Art. V D-F to Art. VI F of the Statute of the Agency.
292 chapter seven

modes of settlement. Organs have no legal existence outside the organization

and are in all respects subject to the jurisdiction of the organization within
the limits of any express constitutional limitations. The organization may
also confer compulsory jurisdiction in such disputes upon an already existing
internal court, unless this court has been established by the constitution and
its jurisdiction has been dened exhaustively therein.
It is a matter of interpretation of the constitution whether the decision to
confer jurisdiction upon a new or a pre-existing court may be made by the
plenary organ acting alone, or whether it is necessary to obtain the consent
of the other organ concerned. In the case of the UN, the General Assembly
would probably be entitled unilaterally to establish courts for the adjudication
of disputes with or between organs,146 other than the Security Council and
the International Court of Justice, which have been given an independent
position under the Charter.

7.6 Internal courts – conclusions

Power to establish internal courts not envisaged in the constitution

Establishment of courts
There can be no doubt that intergovernmental organizations have inherent
power to settle legal disputes concerning internal matters, not merely by deci-
sion of their administrative organs, but also by binding judgments of internal
courts. It is not necessary that the constitution contains any provision authoriz-
ing the organization to establish such courts, as long as it does not provide to
the contrary, e.g. by providing exclusively for other modes of settlement. The
organization can establish internal tribunals by simple regulation; a convention
between the member States is not necessary for this purpose.147 The inherent
power to establish internal courts is clearly conrmed in practice with regard

146 Cf. GA resolution 957 (X), whereby the General Assembly unilaterally established a
procedure for review of the judgments of the UN Administrative Tribunal by way of
(non-binding) advisory opinions from the International Court of Justice.
147 In a resolution entitled “Recours judiciaire à instituer contre les décisions d’organes
internationaux” the Institut de droit international State (par. I) that “la réglementation
de ce contrôle, des voies de recours qu’il implique, et des effets qu’il comporte, ne parait,
dans l’état actuel des choses, realizable que par la voie de dispositions conventionelles ou
autres instruments, particuliers à chaque organe ou organization” (Annuaire de l’Institut
de droit international, Vol. 47 [1957 II], p. 477). Conventions are not necessary to esta-
blish internal courts with compulsory jurisdiction over the organization and its organs
 settlement of internal disputes 293

to the case which arises most frequently, viz. disputes between the organiza-
tion and its ofcials as such. But the power must extend also to other internal
disputes, including disputes between organs and between member States
acting as such, as well as to disputes between the organization and member
States as such and disputes involving private individuals who have been placed
under the legislative and/or administrative jurisdiction of the organization.
Organizations may confer jurisdiction upon their internal tribunals even in
external disputes, with regard to actions brought against the organization, or
against its ofcials in respect of their ofcial acts (or in respect of private acts
with regard to which they have been granted immunity).148

Compulsory jurisdiction
More doubt may arise as to whether an organization may confer upon its
internal courts compulsory jurisdiction in internal disputes. It is quite clear
that it may do so with respect to actions brought against the organization
itself. This is amply conrmed in practice. The same must apply with regard
to actions brought against particular organs which have no legal existence
outside the organization. Doubt arises only with regard to actions brought
against parties which in other legal systems have a legal personality distinct
from that of the organization, viz. ofcials, member States and private indi-
viduals subject to its extended jurisdiction. It has been submitted above that
the organization may confer compulsory jurisdiction upon its internal courts
in actions brought against its ofcials as such – several organizations have done
so without constitutional authorization. But there is no practice to indicate
that an intergovernmental organization may compel its members, which are
sovereign States, to accept the jurisdiction of its internal courts, if this does
not follow, directly or by implication, from provisions in the constitution or in
another treaty to which the member States are parties. Otherwise it must be
assumed that the organization does not have this power, not even in disputes
arising out of matters in respect of which the member States are subject to
the (organizational or functional) legislative and/or administrative jurisdiction
of the organization. With respect to private individuals, who are subject to
the jurisdiction of the organization only when this is specically provided,
it is quite clear that the organization cannot assume compulsory jurisdiction
unless it has been granted the power to do so by the State or States having
territorial, personal, or organic jurisdiction over the individuals concerned.
This power has been granted, by implication, in respect of members of the

in disputes with internal or external parties, but conventions may be necessary if one
wants the judgments pronounced by such courts to be binding upon courts of another
jurisdiction, cf. above, chapter 7.4.5, and par. IV (h) of the resolution of the Institut.
148 Above, chapter 7.5.1. There is no known practice to conrm the latter.
294 chapter seven

UN Forces by the States placing contingents under the authority of the United
Nations with the effect that the members of such contingents are in important
respects assimilated to international ofcials.

External effects of judgments

There is little practice to demonstrate the external effects of the judgments
rendered by internal courts of intergovernmental organizations. It is submit-
ted, however, that national and international courts, as well as internal courts
of other organizations, must consider such judgments as binding to the same
extent and on the same conditions as they consider judgments of foreign
national courts of competent jurisdiction to be binding, unless there is a
basis in an applicable treaty or in the law of the State concerned for treating
them differently. It is submitted, furthermore, in accordance with principles
of procedural international law applied by national courts, that IGO courts
are courts of competent jurisdiction in the cases described above.

Power to extend the competence of a court whose competence has been dened in the
constitution – a contrario interpretation?

The European Court of Justice

The constitution of the European Community expressly provides for an
(internal) Court of Justice which shall have compulsory jurisdiction in certain
disputes between particular organs of the Community149 or with or between
member States,150 and in certain actions brought against the Community or
its organs by its member States, by enterprises subject to its jurisdiction or by
certain other private parties.151 There is an inherent danger in such constitu-
tional provisions that they may be interpreted a contrario, to the effect that the
organization may not confer upon its internal court jurisdiction in disputes
other than those which have been specied in the constitution. The result
would be that in some respects the internal courts of these organizations have
a more limited jurisdiction than the internal courts of organizations which

149 EC constitution, Arts. 230 and 232.

150 EC constitution, Arts. 227 and 239. The constitution contains no provision for competence
in disputes between private enterprises subject to the jurisdiction of the Community,
except for certain preliminary issues in such disputes, see Art. 234.
151 EC constitution, Arts. 229, 230 and 232. The constitution contains no provisions for
competence in actions brought by the Community, since the Commission exercises its
competence vis-à-vis market operators with direct effect.
 settlement of internal disputes 295

have no constitutional provisions establishing or authorizing the establishment

of such courts.152
A different matter is that the constitution (or other applicable treaties) may
contain provisions which confer exclusive competence upon the internal court
or other courts in regard to certain types of disputes and thereby preclude the
organization from extending the jurisdiction of its own courts to such types
of disputes. Article 292 of the constitution of the EC reads:
Member States undertake not to submit a dispute concerning the interpreta-
tion or application of this Treaty to any method of settlement other than those
provided for therein.
The constitutions of the EC and EURATOM also read:
Save where jurisdiction is conferred on the Court of Justice by this Treaty, dis-
putes to which the Community is a party shall not on that ground be excluded
from the jurisdiction of the courts or tribunals of the Member States.153
These provisions do not preclude all disputes arising out of the internal law
of the organization from being brought before national courts. On the other
hand, the terms of the provisions do not indicate that the jurisdiction of
the national courts shall be exclusive, and the provisions thus do not appear
in themselves to preclude a concurrent jurisdiction of national and internal
courts in such disputes of internal law as are not covered by special provi-
sions in the constitutions. Indeed, the article may be read merely as a waiver
of the immunity which intergovernmental organizations, like States, enjoy
under general international law.154 Nevertheless it was maintained by a leading
authority that insofar as the constitution does not confer jurisdiction upon the
Court of Justice of the European Community, it cannot be given jurisdiction,
except in the cases listed in Articles 238 and 239 of the constitution.155
In the absence of, or outside the scope of, provisions which confer exclusive
competence upon other courts or which otherwise preclude the organization
from conferring jurisdiction upon its internal courts, it is submitted that,

152 On the other hand, national courts and executive organs of the member States are
empowered (and obligated) to apply and enforce community law.
153 EC constitution, Art. 240; EURATOM constitution, Art. 155.
154 Such waiver follows also by interpretation a contrario from Art. 1 of the Protocols on the
Privileges and Immunities of the Communities.
155 Wohlfart and others; Die Europäische Wirtschaftsgemeinschaft, Berlin 1960, p. 504. The
observation is made in a commentary to what is now Art. 240, but it is not stated whether
it is based upon an interpretation of that article (the German text of Art. 240, which
the writer quotes, is somewhat different from the Dutch, French and Italian texts, all of
which are equally authentic) or upon the general view expressed by the avocat général, to
which exception has been taken in the text above.
296 chapter seven

when the constitution of an intergovernmental organization contains express

provisions conferring upon its internal court jurisdiction in certain respects,
the organization cannot, merely because of these provisions, be considered
debarred from extending the jurisdiction of the court to include at least such
other disputes as fall within inherent internal jurisdiction of all intergovern-
mental organizations. The effect of constitutional provisions is not to confer
upon the organization a judicial power which other organizations have an
inherent power to confer upon their courts by simple regulation, but to con-
fer upon the parties concerned a right, of which they cannot be deprived
by simple regulation, to appeal to the court. Normally, the provisions can be
interpreted a contrario only in the latter respect.
On the other hand, the Community could not unilaterally impose com-
pulsory jurisdiction upon private enterprises. This would require legislation
by the States having territorial (or personal) jurisdiction over them. But an
intergovernmental organization could confer compulsory jurisdiction upon
its internal courts if authorized to do so by national legislation, except that
a constitutional provision on the executory force of judgments would not,
ipso facto, apply to judgments rendered in disputes not envisaged in the
constitution.

The European Nuclear Energy Tribunal

Similar problems may arise in respect of courts which have been established
within the framework of an intergovernmental organization by conventions
other than the constitution of the organization concerned, such as the Tri-
bunal established by the (European) Convention on the Establishment of a
Security Control in the Field of Nuclear Energy, Articles 13 and 14 of which
have been quoted above, chapter 7.5.1. It is possible that Article 14 must be
interpreted a contrario in the sense that both the organization and the contract-
ing parties are precluded from conferring jurisdiction upon the tribunal in
circumstances other than those specied in that article. Under its terms the
contracting States, or some of them, may agree to confer upon the Tribunal
competence in respect of actions relating to a nuclear ship operated under
the ag of the organization in circumstances where jurisdiction would lie
with the courts of the ag State.156 But the organization may not be entitled
(without the consent of all the contracting parties) to utilize the Tribunal as
an administrative tribunal or to confer upon it competence in suits brought

156 Cf. Art. 7 of the Convention on the High Seas of 29 April 1958, document CN-6/SC/1
(9 May 1963) of the (Brussels) Diplomatic Conference on Maritime Law, Standing Com-
mittee, and Art. 93 of the Convention on the Law of the Sea 10 December 1982.
 settlement of internal disputes 297

against the organization or its ofcials in respect of private law acts not covered
by (Article 13 of the Convention or by) agreements concluded pursuant to,
and within the scope of, Article 14. The case for such a contrario interpretation
is stronger in respect of a Tribunal established by a special convention than
it would have been in respect of a tribunal established by the constitution
of the organization concerned, which is a genuine internal court (organ) of
the organization. And, of course, no such a contrario interpretation could be
applied if the Tribunal had been established by regulations enacted by the
organization without basis in any constitutional or other treaty provision, as
the organization would have had the power to do.

7.7 Are internal courts governed by the law of international

courts?

General

Administrative tribunals and other internal courts of intergovernmental orga-

nizations are frequently referred to as international tribunals.157 This terminol-
ogy has been accepted even by the International Court of Justice.158 However,
administrative tribunals and other internal courts of intergovernmental orga-
nizations are very different from international courts. They are established, not
by special agreement between States and/or independent intergovernmental
organizations, but by one intergovernmental organization or by its constitution
as an organ of that organization. Furthermore, they do not administer general
international law, but the internal law of the organization concerned which,
for purpose of conict of laws and for certain other purposes, is comparable
to national law rather than to international law. Finally, parties before internal
courts may include not only member States and the organization as a whole,

157 See for example, Langrod: “Le tribunal administratif des Nations Unies” in Revue du
droit public et de la science politique, Vol. 67 (1951), p. 75, quoted and supported by
the Director-General of UNESCO in ICJ Pleadings, Judgments of the Administrative
Tribunal of the ILO (1956), p. 79. See also Chiesa in Revue internationale des sciences
administratives, Vol. 20 (1954), p. 74, and Internationaler Richterkongress, Roma 1958,
Vol. 2: “Die internationalen und übernationalen Gerichte, ihre Charakteristiken und
grundlegenden Ziele”, Milano 1958, §§ 2–3 and 5. See, on the other hand, Art. 5 of
Wengler’s draft articles on Recours judiciaire à instituer contre les décisions d’organes
internationaux in Annuaire de l’Institut de droit international, Vol. 45 (1954 I), p. 268,
which, however, was not adopted by the Institut de droit international, ibid., Vol. 47
(1957 II), p. 478, par. III.
158 ICJ Reports, 1956, p. 97.
298 chapter seven

but also ofcials and particular organs of the organization, as well as private
individuals (and enterprises) subject to its extended jurisdiction. Of these, only
the former two may normally159 be parties before regular international courts,
and then in their capacity as subjects of international law. Indeed, member
States and intergovernmental organizations are subjects both of international
law and of the internal law of the organization concerned (and of national
law). The fact that States and intergovernmental organizations are among
those who may be parties before internal courts in disputes arising out of
internal law does not necessarily render these courts international, any more
than national courts are considered as international courts because they may
adjudicate upon national law disputes involving States and intergovernmental
organizations, or any more than international courts are considered as national
courts because individuals are occasionally admitted to plead before them in
cases arising out of international law.160
Indeed, international courts of intergovernmental organizations are in most
cases comparable to national courts, rather than to international courts. Only
when internal courts adjudicate upon disputes between the organization and
a member State as such or between two member States as such, can they be
compared to international courts, inasmuch as part of the law they apply in
these cases is international, as well as internal law. But even in this case there
are certain differences between the legal position of the two types of courts,161
if they have been set up by the constitution of the organization or by the
organization through regulations as organs of the organization, rather than
by a separate convention as independent intergovernmental organizations. It
may therefore be convenient to consider them as internal courts (largo sensu)
even in such cases.

159 Except for international criminal tribunals. Individuals have also been granted access to
certain international courts which have been set up for the adjudication of disputes of
national law, such as the Mixed Commission established under Art. 31 and Annex IV,
Art. 16 of the Agreement on German External Debts of 27 February 1953 (UNTS Vol.
333, pp. 50 and 214).
160 The three examples usually cited, all now a matter of the past, are the Central American
Court of Justice established under a Convention of 20 December 1907 (Martens: Nouveau
Recueil Général, 3e série, Vol. 3, p. 105, and Hudson: International Legislation, Vol. 2,
p. 908; see especially Art. II), the Mixed Arbitral Tribunals established under the Peace
Treaties concluding World War I (e.g. Treaty of Versailles, Art. 304–5, cf. for example
Art. 297 (e)) and the Upper Silesian Court of Arbitration, established under the Geneva
Convention of 15 May 1922 between Germany and Poland for Establishing a Conventio-
nal Regime in Upper Silesia (British and Foreign State Papers, Vol. 118, p. 365, cf. Arts.
55 seq. and 147 seq.; cf. Annual Digest, 1927–28, Cases Nos. 188 and 287). However, it
is not clear that all these courts applied international rather than national law.
161 Some of the differences follow from the fact that the courts are set up as organs of the
organization, rather than from the nature of the law they apply.
 settlement of internal disputes 299

There is, however, no clear distinction between the two types of courts.162
The distinction may be drawn in many different ways, depending upon which
criterion is regarded as crucial. Thus the Tribunal of the European Con-
vention on the Establishment of a Security Control in the Field of Nuclear
Energy and the European Court of Human Rights were both established by
separate conventions concluded between the majority of the members of the
European Nuclear Energy Agency and the Council of Europe, respectively,
to decide disputes arising out of these and of conventions outside the con-
stitution, but they are elected and maintained by these organizations. The
International Court of Justice, too, unites elements of both international and
internal courts.163 It is submitted that all these courts are autonomous organs
of the respective organizations, rather than distinct subjects of international
law.164 However, the European Court of Human Rights and, partly, the
International Court of Justice adjudicate upon disputes which arise under
general or particular international law, rather than under the internal law
of the organization, although the distinction between internal and interna-
tional law, and internal and external disputes, may also be drawn in many
different ways. When the present part is primarily conned to internal dis-
putes, it precludes disputes with other subjects of international or national
law acting as such, i.e. not acting as members or organs of the organization
or otherwise as entities subject to its legislative or administrative authority.
The reservation of international courts for external disputes, on the basis
of either the criterion of internal or external parties or that of application of
internal or external law, is brought out in the constitutions and other acts of
the International Monetary Fund, the International Bank for Reconstruction
and Development and the International Finance Corporation. On the one
hand, the constitutions of these organizations distinguish as to whether or
not the other party to the dispute forms part of the organization, by provid-
ing for binding settlement by an internal (administrative) organ of disputes
involving member States, but for submission to an external arbitral tribunal of

162 Moreover, some of the provisions cited above, chapter 6.5, may give rise to the setting up
of international as well as internal courts to adjudicate upon the same type of disputes.
163 Cf. below, under 7.7.4.
164 As for the European Court of Human Rights, see also Robertson in the International
and Comparative Law Quarterly, Vol. 8 (1959), p. 399, who States: “It was therefore
decided to set up the Court of Human Rights as an organ of the Council of Europe as
a whole, with the participation of all Member States, whether or not they are Parties to
the Convention”. The OECD Tribunal consists of “seven independent judges appointed
for ve years by decision of the Council or, in default, by lot from a list comprising one
judge proposed by each Government party to the present Conventions” (Art. 12 of the
Security Control Convention). Under the latter alternative, the Tribunal could hardly
be considered an organ of the OECD-ENEA.
300 chapter seven

disputes involving States which are no longer members.165 On the other hand,
the annex adopted by these organizations to the Convention on the Privileges
and Immunities of the Specialized Agencies provides that the reference of
dispute to the International Court of Justice provided for in § 32 of that
convention shall apply only to differences arising out of the interpretation or
application of privileges and immunities which are derived by the organiza-
tion solely from that convention and which are not included in those which
it can claim under its constitution or otherwise.166 A separate convention to
which not all members of the organization are parties, and which, on the
other hand, has been incorporated in bilateral host agreements or agreements
on technical assistance concluded with non-member States, and which does
not confer upon the organization legislative or administrative powers over
the contracting parties, is not part of the internal law of the organization167
as this term is used in the present book.
The terminology in itself is of little importance, as long as it does not
lead to false analogies. However, analogies are sometimes drawn, both by
writers, governments and intergovernmental organizations who do not con-
tent themselves with referring to internal courts as “international” tribunals,
but who also in fact apply to such courts the legal principles which govern
international courts. A similar danger is involved in the proposals which have
been made for international courts’ jurisdiction in strictly internal disputes
involving ofcials or particular organs of the organization.

Internal courts stricto sensu

In the case of Effect of Awards of Compensation Made by the United Nations Admin-
istrative Tribunal, it was pleaded that awards made by this tribunal, “being an
institution of international law, would necessarily be subject to the established
rule and practice that an award of a tribunal which was ultra vires is null and

165 Fund constitution, Art. XXIX; Bank constitution, Art. IX; International Finance Cor-
poration constitution, Art. VIII.
166 UNTS Vol. 33, pp. 298 (Fund) and 300 (Bank), UN doc. E/L 796, 29 May 1958 (Inter-
national Finance Corporation).
167 As for the term “or otherwise” appearing in the annex, it is submitted that disputes arising
out of privileges and immunities granted by bilateral treaties or other distinct acts outside
the scope of the constitution are not ipso facto subject to binding administrative decision
of the organization under the terms of the constitution. These, too, must be settled by
external (international) courts, and could therefore not be bracketed with disputes arising
out of the constitution.
 settlement of internal disputes 301

void”.168 However, the International Court of Justice, in its advisory opinion,

rejected any such analogy. It stated:
This problem would not, as has been suggested, raise the question of the nullity
of arbitral awards in the ordinary course of arbitration between States. The
present Advisory Opinion deals with a different legal situation. It concerns judg-
ments pronounced by a permanent judicial tribunal established by the General
Assembly, functioning under a special statute and within the organized legal
system of the United Nations, and dealing exclusively with internal disputes
between the members of the staff and the United Nations represented by the
Secretary-General. In order that the judgments pronounced by such a judicial
tribunal could be subjected to review by any body other than the tribunal itself, it
would be necessary, in the opinion of the Court, that the statute of that tribunal
or some other legal instrument governing it should contain an express provision
to that effect. The General Assembly has the power to amend the Statute of the
Administrative Tribunal by virtue of Article II of that Statute and to provide
for means of redress by another organ. But as no such provisions are inserted in
the present Statute, there is no legal ground upon which the General Assembly
could proceed to review judgments already pronounced by that Tribunal.169
In another context the Court drew an analogy from national courts instead.
It stated:
. . . the contention that the General Assembly is inherently incapable of creating
a tribunal competent to make decisions binding on itself cannot be accepted.
It cannot be justied by analogy to national laws, for it is common practice in
national legislature to create courts with the capacity to render decisions legally
binding on the legislature which brought them into being.170
Even the other (winning) side attempted to rely upon an analogy from inter-
national courts, in support of its (correct) proposition that decisions of the
Administrative Tribunal create a legal liability for the organization as a whole
(and not merely for the Secretary-General). Reference was made to the arbitral
tribunals established under § 21 of the headquarters agreement between the
UN and the United States and under certain other treaties concluded by the
UN for the settlement of disputes between the contracting parties concern-
ing the interpretation of the agreement concerned.171 However, these arbitral

168 US written and oral statement, ICJ Pleadings, UN Administrative Tribunal 1954, pp. 174
and 329–30. Also the Legal Ofce of the UN Secretariat in its oral statement referred to
the rules governing international arbitration (ibid., pp. 304–5). Cf. the excellent counter-
arguments in the French and Netherlands oral statements (ibid., pp. 343–4 and 374–6).
169 ICJ Reports, 1954, pp. 55–56.
170 Ibid., p. 61.
171 Swedish written statement (ICJ Pleadings, UN Administrative Tribunal, 1954, p. 92) and
Netherlands oral statement (ibid., pp. 362–5). Indeed, it referred to the position of the
302 chapter seven

tribunals were clearly international tribunals, set up to adjudicate upon certain

disputes of international law arising between two subjects of international law
as such. It follows from general rules of international law that the decisions
of these tribunals must be binding, and binding upon the organization as a
whole, which alone is a subject of international law and party to international
disputes. But this does not prove that decisions of internal courts, which may
adjudicate upon disputes involving particular organs of the organization,
must be binding upon the organization as a whole. It is in itself conceivable
that an internal judgment is binding only upon the parties to the dispute,
and not upon a common superior organ.172 The Court therefore, rightly, did
not rely upon the false analogy to § 21 of the headquarters agreement and
similar provisions in order to establish the legal liability of the organization
as a whole, but arrived at this correct conclusion on other grounds. Judge
Hackworth, in his dissenting opinion, expressly repudiated the validity of the
analogy,173 although he had to do so in an unnecessarily complicated manner,
because he did not make a terminological distinction between internal and
international courts.
The refusal of the Court to accept any such false analogies suggested by the
current terminology did not prevent the Director-General of UNESCO from
advancing similar views in the case of Judgments of the Administrative Tribunal of
the ILO upon Complaints Made against the UNESCO. As a point of departure for
his arguments in support of a restrictive interpretation of the terms of refer-
ence of the ILO Administrative Tribunal he submitted that such restrictive
interpretation would conform with the rules of international law applicable
to international courts. He went on to state:
. . . both by reason of the circumstances in which it was created and of the type
of law which it has to apply, there would seem to be no doubt that this Tribunal,
whose duty it is to decide disputes involving international organizations, is an
international judicial body and is therefore subject to the general rules governing
the exercise of the judicial function in international law.174
However, none of the reasons submitted by the Director-General leads to
the conclusion he derived from them. On the contrary, the Tribunal was

UN in national courts as well, i.e. it drew the analogy from external courts in general.
But even so there is no basis for an analogy in this sense.
172 An organ of an intergovernmental organization can plead before international courts
too, but then as a representative of the organization as a whole, which is the real party
to international disputes. Only if the organ pleads before an internal court of the orga-
nization (in an internal dispute), may it be acting in its own name. This is the position
in the European Community (Arts. 230 ff.).
173 ICJ Reports, 1954, pp. 87–89.
174 ICJ Pleadings, Judgments of the Administrative Tribunal of the ILO (1956), pp. 76 and
78–80, ofcial translation.
 settlement of internal disputes 303

established as an organ of the organization, it applied purely internal law

of the organization, and it adjudicates upon disputes between individual
ofcials and the organization. In none of these respects is it comparable
to an international court, but rather to a national court. The International
Court of Justice, therefore, although (wrongly) accepting the terminology
“international tribunal”, again refused to draw any legal consequences from
this terminology. It stated:
The Court has not lost sight of the fact that both before the Administrative
Tribunal and in the statements submitted to the Court it has been contended,
on the one hand, that the Administrative Tribunal was an international tribunal
and, on the other hand, that it was a Tribunal of limited jurisdiction (“juridiction
d’attribution” ) and not of general jurisdiction (“juridiction de droit commun” ). That
contention has been put forward with a view to achieving a restrictive interpreta-
tion of the provisions governing the jurisdiction of the Tribunal. The Court does
not deny that the Administrative Tribunal is an international tribunal. However,
the question submitted to the Tribunal was not a dispute between States. It
was a controversy between UNESCO and one of its ofcials. The arguments,
deduced from the sovereignty of States, which might have been invoked in
favour of a restrictive interpretation of provisions governing the jurisdiction of
a tribunal adjudicating between States are not relevant to a situation in which
a tribunal is called upon to adjudicate upon a complaint of an ofcial against
an international organization.175
In accordance with these pronouncements by the International Court of
Justice it is submitted, as a conclusion, that in most respects internal courts
stricto sensu are not governed by such legal rules and principles as are special
to international courts and do not apply similarly to national courts. The
current terminology – which refers to internal courts of intergovernmental
organizations as “international courts” – therefore does not reect the true
legal position. Indeed, there are three distinct types of courts: International
courts, national courts, and internal courts of intergovernmental organiza-
tions.176 If analogies are drawn, internal courts stricto sensu can more frequently
be compared to national than to international courts.

Internal courts largo sensu

Only when internal courts adjudicate upon internal disputes between entities
which are at the same time subjects of international law (member States and the

175 ICJ Reports, 1965, p. 97.

176 This classication is elaborated below, chapter 7.8.
304 chapter seven

organization as a whole)177 may it be appropriate in many or most respects to

apply by analogy rules of international law governing international courts.
However, even in these cases the courts are not in every respect in the same
legal position as independent international courts. A court which is established
by or within the framework of an intergovernmental organization remains
an organ of the organization concerned even if it adjudicates upon disputes
between entities which are at the same time subjects of international law
and even if the organization itself is one of the parties. This implies, in the
rst place, that the organization, rather than the parties to the dispute, may
exercise such rights in respect of the composition, competence and procedure
of the tribunal as are not left to the court itself.178 In the second place – if
there is a conict between the constitution of the organization, which is the
supreme internal law of the organization, and other treaties or general rules
of international law – the internal tribunal, as an organ of the organization,
must give precedence to the provisions of the constitution. In both these
respects, the proper analogy is to national rather than to international courts
as most national courts give precedence to the constitution of their State over
international law.179 The Court of Justice of the European Communities gives
precedence to the constitution of the Community over the constitutions of
the member States.
The supremacy of the constitution is clear in the case of an internal court
adjudicating upon internal disputes. In this case, not merely is the court an
organ of the organization, but it applies the internal law of the organization,
of which the constitution is the supreme source. Moreover, the parties to
internal disputes are either member States, which are parties to the constitu-
tion, or organs (or the organization itself ) established under it, and are thus
in either case bound by the constitution.

The International Court of Justice

The position of the constitution in relation to general international law may

appear more doubtful if a court which is an organ of an intergovernmental

177 See e.g. the European Community Treaty, Arts. 226–227 and the other provisions cited
above, chapter 7.6.
178 In the case of courts which have been set up by separate convention, these powers of
the organization may be strictly conned to those conferred upon it by that convention,
cf. below, chapter 7.8.2.
179 Exceptions are e.g. the Netherlands, whose constitution contains an express provision on
the subject (Art. 63), however, the exception applies only if the treaty has been expressly
approved by a 2/3 majority by the Staten-Generaal. As for European Community law, see
Josephine Steiner: EEC Law, London 1992, pp. 42–53.
 settlement of internal disputes 305

organization, adjudicates upon disputes arising under general international law

or under treaties other than the constitution of the organization concerned,
and/or involving parties which are not bound by the constitution. The most
important examples of this are the Permanent Court of International Justice
and the International Court of Justice. These are international courts from
a functional point of view, especially in so far as their contentious proceed-
ings are concerned, but internal courts from an organizational point of
view (although their position vis-à-vis the League of Nations and the United
Nations, respectively, is more autonomous than that of other organs).
The question will arise if the International Court of Justice is called upon
to determine the validity of action taken vis-à-vis non-member States under
Article 2 (6) (cf. Chapter VII) of the UN Charter, which provides: “The
Organization shall ensure that States which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary
for the maintenance of international peace and security”. Or the Court may
have to pronounce upon the effects of a treaty which has been concluded
between a member and a non-member State and which conicts with the
obligations of the former under the UN Charter, cf. Article 103 which pro-
vides that in such cases the Charter shall prevail. The question would also
arise if the Permanent Court of International Justice were called upon to
decide the validity of a treaty which had been concluded between a mem-
ber of the League of Nations and a non-member, but which had not been
registered with the Secretariat of the League in accordance with Article 18
of the Covenant, which provided:
Every treaty or international engagement entered into hereafter by any Member
of the League shall be forthwith registered with the Secretariat and shall as soon
as possible be published by it. No such treaty or international engagement shall
be binding until so registered.
Under traditional international law none of these constitutional provisions is
binding upon non-member States. And a court which is independent of the
organization whose constitution is involved, might feel compelled to hold this
to be so.180 But a court of the organization concerned would be in a different
position. A court is bound, not merely by its own constitution, or statute, but
also by the constitution of the State or organization of which it is an organ.
Indeed, it is usually this constitution which constitutes the supreme law of
an internal or a national court.
A comparison between the position in this respect of the Permanent Court
of International Justice and an independent arbitral tribunal or commission

180 In this sense Kelsen: The Law of the United Nations, p. 723.
306 chapter seven

was made in a thorough obiter dictum by the French-Mexican Claims Com-

mission in Pablo Najera (France) v. Mexico (1928).181 The Commission held that,
although Article 18 of the League of Nations Covenant applied even to a
treaty concluded between a member and a non-member State, it created rights
and duties only as between the member State and the League. A non-member
State was entitled to invoke the non-registered treaty despite its non-registra-
tion, and, on the other hand, was not entitled to invoke its invalidity because
of non-registration. This would have to be held by any arbitral tribunal or
mixed commission which, like the French-Mexican Claims Commission, was
independent of the League.182 But if the dispute arose before an organ of the
League, this organ must ex proprio motu (ex ofcio) consider the treaty invalid.183
The Commission stated that
il va de soi qu’un tribunal international indépendant n’a pas, comme les organes
de la Société des Nations, la mission de coopérer ex ofcio à l’accomplissement,
par les membres de ladite Société, de leurs obligation vis-à-vis de celle-ci, et d’en
frapper l’inobservation par des sanctions, qui ne découlent pas également des
principes généraux du droit.
The Commission specied that this would not apply to the Assembly, the
Council, or any commission or organization of the League, and added that
one could perhaps say the same of the Permanent Court of International
Justice
bien que celle-ci ne soit pas, dans le même sens que le Conseil, un organe de
la Société des Nations, et qu’elle soit investie du pouvoir souverain d’apprécier
la situation juridique en parfaite indépendance.
This is probably the correct view.184 But this applies to a tribunal established
by a separate convention185 only if it has been established as an organ of the
organization and probably only if the contracting parties to that convention

181 UN, Reports of International Arbitral Awards, Vol. 5, pp. 468–73.

182 In a dispute between two member States or between a member State and the League,
even an independent court would of course have to consider a non-registered treaty
invalid, since both parties to the dispute are bound by the Covenant.
183 This is believed to be the correct interpretation of the statement of the Commission,
although one of them (p. 471 in ne) might be interpreted in a sense different from the
other statements.
184 In this sense also Oppenheim: International Law, Vol. 1 § 522a, who States that “It
cannot be admitted that the International Court of Justice or any other organ of the
United Nations established under the Charter would be at liberty to hold that action
taken in pursuance of Article 2 [Art. 2 (6) of the UN Charter] is contrary to International
Law.” See also Kelsen: The Law of the United Nations, p. 723. Kunz in AJIL Vol. 41
(1947), p. 126 takes a contrary view, basing his opinion upon Art. 38 of the Statute of
the Court.
185 The Statute of the International Court of Justice forms an integral part of the UN
Charter, see Art. 92 of the Charter.
 settlement of internal disputes 307

are all members of the organization, as they are in the case of the European
Court of Human Rights and the Tribunal established under the European
Nuclear Energy Agency by the Convention on the Establishment of a Security
Control in the Field of Nuclear Energy.186

7.8 External courts

General

Although all intergovernmental organizations have the power to establish

internal courts for the judicial settlement of internal disputes, only some
organizations have done so. And most of these have conned the jurisdiction
of their courts to disputes between the organization and its ofcials arising
out of the relationship of employment.187 This is in most cases due to the fact
that the practical need for judicial settlement does not arise so frequently as
to justify the establishment of standing judicial institutions within the orga-
nization for other types of disputes.
When the need nevertheless arises, the organization may nd it simpler to
resort to an external court than to establish a court of its own. Or one of the
parties to the dispute may attempt to bring an action in an external court,
without the consent of the organization. Indeed the latter has been attempted
even in cases where the organization had an internal court with competence
in the matter.188 In either case the question arises as to whether the external
courts concerned are competent to adjudicate upon internal disputes of an
intergovernmental organization.
There are three types of external courts which must be considered in this
connection:

(1) Internal courts of other intergovernmental organizations. These include

courts established as organs of another organization to adjudicate upon
internal disputes of that organization189 and/or upon external disputes
of national law involving the organization or its ofcials.

186 Cf. above, chapter 7.5.

187 The most important exception – insofar as standing courts are concerned – is the Court
of Justice of the European Communities.
188 Diaz Diaz v. UN Economic Commission for Latin America, and Schuster v. UN Infor-
mation Centre.
189 Courts maintained by an intergovernmental organization for regular jurisdiction in a ter-
ritory under its (extended) jurisdiction resemble national courts. The law they administer
is formally internal law (largo sensu) of the organization, but in substance it is usually
308 chapter seven

(2) National courts.190 These include courts established as organs of a State

to adjudicate upon disputes of national law.
(3) International courts. These may be standing tribunals or ad hoc arbitral
commissions. Typical international courts are established by treaty between
two or more States and/or intergovernmental organizations or other
subjects of international law to adjudicate upon genuinely international
disputes, i.e., disputes of international law between subjects of interna-
tional law. Such international courts are independent intergovernmental
organizations – in contradistinction to internal courts, which are merely
organs of a wider intergovernmental organization.
Under the heading of international courts may also be considered
certain mixed types, which belong to one category from an organizational
point of view and to another category from a functional point of view.
Thus courts for the adjudication of genuinely international disputes may
be established as organs of an intergovernmental organization set up for
other purposes. This is the position of the International Court of Justice,191
which is an (autonomous) organ of the UN. In its contentious proceedings
it adjudicates upon genuinely international disputes (and upon internal
disputes between member States).192
(4) A fourth means of external settlement of internal disputes, in addition
to contentious proceedings before any of the aforementioned courts, is to
seek a binding advisory opinion from the International Court of Justice

national law, at least in the case of indirect condominia and coimperia. – Another type
of border-line case between an IGO court and a national court was the internationally
composed Tribunal of the Saar, which was established in 1955–56 by the Council of the
Western European Union, with the co-operation of the Government of the Saar, for the
adjudication of complaints by Saarlanders of political persecution in connection with
the referendum which led to the re-incorporation of the Saar into Germany, cf. Deruel:
“Le Tribunal international de la Sarre” in Annuaire français de droit international,
Vol. 2 (1956), pp. 509–16.
190 Cf. Christoph Schreuer: Die Behandlung internationaler Organakte durch staatliche
Gerichte, Berlin 1977, and the subsequent revised and updated version in English: Deci-
sions of International Institutions Before Domestic Court, London/New York 1980.
191 Above, chapter 6.1. The European Court of Human Rights may also in certain respects
be considered as an autonomous organ of the Council of Europe, cf. the European
Convention on Human Rights of 4 November 1950, Arts. 39 and 42. A third example of
a tribunal established by an intergovernmental organization to adjudicate upon disputes
of international law may be the tribunal envisaged in Art. 37 (2) of the ILO constitution
for the adjudication of disputes relating to the interpretation of International Labour
Conventions.
192 Conversely, courts may also be established by inter-State agreement as separate inter-
governmental organizations, to adjudicate upon disputes either of national law (see the
proposals referred to in Hudson: International Tribunals, Washington 1944, p. 214) or
of internal law. Only the latter type is relevant to the present part. Such courts may be
established ad hoc.
 settlement of internal disputes 309

(or from some other legal body). In its advisory proceedings the Court
may be seized of “any legal question” – which includes the internal law
of the UN and other intergovernmental organizations, as well as national
law and genuine international law.

Internal courts of other organizations

The competence of the internal courts of intergovernmental organizations

is set forth in their statutes. These usually provide for competence only in
certain internal (and sometimes even external) disputes of the particular
organization concerned.193
However, there is nothing to prevent an intergovernmental organization
from extending the jurisdiction of its courts to comprise internal disputes
of other organizations, if these other organizations so desire. This has been
done by some organizations – without authorization in their constitutions.194
Thus, the competence of the League of Nations Administrative Tribunal was
extended to include disputes involving ofcials of three autonomous interna-
tional institutions,195 in addition to those of the League of Nations and the
ILO. The statute of the successor tribunal, the ILO Administrative Tribunal,
provides in Article II (5):

193 Such extended jurisdiction of internal courts to settle disputes may also overlap, e.g.
related to human rights or international trade. The European Court of Human Rights
has developed case-law setting out the limits for the court’s competence to review the
acts of States Parties arising out of their obligations as members of (another) interna-
tional organization (the European Community). In Bosphorus Hava Yollari v. Ireland
(Application no. 45036/98) the court stated that “State action taken in compliance with
such legal obligations [compliance with EC obligations] is justied as long as the relevant
organisation is considered to protect fundamental rights, as regards both the substantive
guarantees offered and the mechanisms controlling their observance, in a manner which
can be considered at least equivalent to that for which the Convention provides” (para.
155). Trade disputes between member States of Mercosur may, according to Art. 1 (2)
of the Protocol of Olivos signed 18 February 2001, be subjected to internal courts, or
be referred to WTO dispute settlement or other applicable settlement by choice.
194 An example of a constitutional provision was Art. 38 of the constitution of the Interna-
tional Danube Commission, which provided that States might appeal against the decisions
of the Commission “to the special jurisdiction set up for that purpose by the League of
Nations” (LNTS Vol. 26, p. 193).
195 Institute of Intellectual Co-operation, International Educational Cinematographic Institute
and Nansen International Ofce for Refugees. On the nature of this jurisdiction, see
Siraud: Le tribunal administratif de la Société des Nations, Paris 1942, pp. 56–63, cited
by Langrod in Revue du droit public et de la science politique, Vol. 57 (1951), pp. 82–83.
See also Wolf in Revue générale de droit international public, Vol. 58 (1954), p. 287.
310 chapter seven

The Tribunal shall also be competent to hear complaints alleging non-observance,

in substance or in form, of the terms of appointment of ofcials and of provi-
sions of the Staff Regulations of any other international organization meeting
the standards set out in the Annex196 hereto which has addressed to the Direc-
tor-General a declaration recognizing, in accordance with its Constitution or
internal administrative rules, the jurisdiction of the Tribunal for this purpose, as
well as its Rules of Procedure, and which is approved by the Governing Body.
Such declarations recognizing the jurisdiction of the ILO Administrative
Tribunal (and the inherent appellate jurisdiction of the International Court
of Justice)197 have been made by most of the specialized agencies whose
headquarters are located in Europe and by a great number of other global
and regional intergovernmental organizations.198 They have done so without
regard to whether their constitutions authorize the establishment of admin-
istrative tribunals199 and/or the conclusion of agreements with other interna-
tional bodies for the maintenance of common services and arrangements for
personnel.200 The International Labour Conference, too, has clearly assumed
that organizations may be entitled to do this without constitutional provision,
inasmuch as it provided, in Article II (5) of the Statute of the ILO Admin-
istrative Tribunal, that the organization should recognize the jurisdiction of
the Tribunal “in accordance with its Constitution or internal administrative
rules”. The ILO Administrative Tribunal has in fact in several instances
adjudicated upon internal disputes of the other organizations, including both
organizations whose constitutions do not provide for adjudication of such
disputes (e.g. UNESCO) and organizations whose constitutions do not even
provide for common services with other organizations (e.g. the International
Atomic Energy Agency).

196 The Annex to the statute of the Administrative Tribunal States that to be entitled to
recognize the jurisdiction of the Administrative Tribunal of the International Labour
Organization in accordance with paragraph 5 of article II of its Statute, an international
organization must either be intergovernmental in character, or fulll the following condi-
tions: a) it shall be clearly international in character, having regard to its membership,
structure and scope of activity; b) it shall not be required to apply any national law in
its relations with its ofcials, and shall enjoy immunity from legal process as evidenced by
a headquarters agreement concluded with the host country; and; c) it shall be endowed
with functions of a permanent nature at the international level and offer, in the opinion
of the Governing Body, sufcient guarantees as to its institutional capacity to carry out
such functions as well as guarantees of compliance with the Tribunal’s judgments.
197 Statute of the ILO Administrative Tribunal, Art. XII (1) with annex.
198 For a list of 23 organizations by 1989, and further information, see C.F. Amerasinghe:
Documents on International Administrative Tribunals, Oxford 1989, p. 30.
199 Only the FAO constitution authorizes this, in its Art. XV (3).
200 This is authorized in the constitutions of FAO (Art. XIII 2) and UNESCO (Art. VI 6
only “within the UN Organization”). The constitutions of WHO, ITU, WMO and CERN
merely provide generally that the organization shall, or may, co-operate with other orga-
nizations. The constitutions of the Paris and Bern Union do not even provide that.
 settlement of internal disputes 311

The Statute of the UN Administrative Tribunal contains a corresponding

provision in Article 14 (3):
The competence of the Tribunal may be extended to any specialized agency
brought into relationship with the United Nations in accordance with the pro-
visions of Articles 57 and 63 of the Charter upon the terms established by a
special agreement to be made with each such agency by the Secretary-General
of the United Nations. Each such special agreement shall provide that the agency
concerned shall be bound by the judgment of the Tribunal and be responsible
for the payment of any compensation awarded by the Tribunal in respect of a
staff member of that agency and shall include, inter alia, provisions concerning
the agency’s participation in the administrative arrangements for the functioning
of the Tribunal and concerning its sharing the expenses of the Tribunal.201
It had been envisaged that the specialized agencies would conclude such
agreements conferring jurisdiction upon the UN Administrative Tribunal in
disputes between the organization and its ofcials. However, only two agen-
cies, ICAO and IMO, have done so, in addition to a number of autonomous
UN organs.202
On the other hand, most specialized agencies which are members of the
UN Joint Staff Pension Fund (even those located in Europe), have conferred
jurisdiction upon the UN Administrative Tribunal in disputes between their
ofcials and the Fund in matters involving applications alleging non-obser-
vance of the Regulations of the Fund. This was done by formal agreements
concluded between the UN and each specialized agency,203 pursuant to a
recommendation of the General Assembly of the UN.204 These agreements,
however, comprise only disputes concerning the Regulations of the UN Joint
Staff Pension Fund,205 which must be regarded as an autonomous organ of
the UN. There is no question of conferring upon the UN Administrative
Tribunal jurisdiction in internal disputes of the several agencies participat-
ing in the UN Joint Staff Pension Fund.206 On the contrary, the preamble of

201 General Assembly resolution 351 A (IV) as last amended by resolution 55/159 of 12
December 2000, cf. UN doc. AT/11/Rev 6 (2001).
202 Ibid. supra note 198, p. 5.
203 See for example UNTS Volumes 214, p. 388 (ILO), 219, pp. 388 (FAO), 392 (UNESCO),
396 (ICAO) and 394, p. 333 (WHO). Agreements were also signed with WMO on 17
October/22 November 1956 (WMO doc. 12. 744/56/S/UN/JSPE and resolution 2
[EC-VIII] of the Executive Committee of the WMO) and with IAEA on 18 October
1963. See in general UN doc. A/2970, with appended model agreement. The agreements
are supplemental to the agreements by which the agencies joined the Fund (text of these
agreements in UNTS, Vol. 139, pp. 395 et seq.).
204 GA resolution 678 (VII). See also Art. XLI of the Regulations of the Fund, added by
GA resolution 955 (X).
205 Adopted by GA resolution 248 (III) and amended by numerous subsequent resolutions.
206 The question of pensions for the staff falls, in principle, within the scope of the
organic jurisdiction of each agency. However, these have delegated their legislative and
312 chapter seven

the agreements conferring jurisdiction upon the UN Administrative Tribunal

refers to an understanding, recorded at the fourth session of the UN Joint
Staff Pension Board, that “full faith, credit and respect should be given to the
proceedings, decisions and jurisprudence of the Administrative Tribunal, if
any, of the agency concerned relating to the staff regulations of that agency,
as well as to the established procedures for the interpretation of such staff
regulations”.207 The latter part of the “understanding” may mean that even
if the question of the interpretation of the staff regulations of a particular
specialized agency arises as a preliminary question (question préjudicielle) in a
dispute which otherwise concerns the Regulations of the Fund, this preliminary
question must be referred to the administrative tribunal of the specialized
agency concerned if the parties disagree on the correct interpretation of its
staff regulations.
In the case cited above, both organizations concerned had expressly pro-
vided that the internal court of one organization was to be competent in
certain internal disputes of the other. In such cases the court will have com-
pulsory jurisdiction, even if the organization sued or the other party to the
dispute contests its jurisdiction, as did the Director-General of UNESCO in
1955 without success.208
In accordance with the practice reported above, it is submitted that an
intergovernmental organization can delegate its inherent judicial powers to
another organization, by conferring upon the courts of the latter jurisdiction
in respect of its internal disputes stricto sensu, even if there is no relevant pro-
vision in its constitution. Its power to delegate its judicial powers in respect
of extended jurisdiction depends upon an interpretation of the act confer-
ring such jurisdiction upon the organization.209 The other organization can
accept such jurisdiction for its courts even if there is no relevant provision
in its constitution, as long as no provision precludes such extension of the
competence of its courts.

administrative power in this respect to the UN General Assembly and the UN Joint Staff
Pension Board. The law enacted by these bodies must then be regarded as internal law
of the UN or the Joint Staff Pension Fund.
207 UN, OR GA, IX, Suppl. No. 8, p. 2 and UNTS Vol. 394, p. 334.
208 He contested, for certain given (and other political) reasons, the competence of the ILO
Administrative Tribunal to adjudicate upon certain disputes between UNESCO and four
of its ofcials. His objections were rejected by the Tribunal (International Law Reports,
1955, p. 777) and, on appeal, by the International Court of Justice in its advisory opi-
nion on Judgments of the Administrative Tribunal of the ILO upon Complaints Made
against the UNESCO (ICJ Reports, 1956, p. 77).
209 The Court of Justice of the European Communities, in its opinions Nos. 1–2 of 1992,
held that the proposed Court of the European Economic Area could not interfere in
the former’s exclusive jurisdiction in respect of the EC-members, but this was extended
(substantive), not organic jurisdiction.
 settlement of internal disputes 313

No example is known of internal courts of one organization having assumed

jurisdiction in internal disputes of another organization if one of the orga-
nizations had failed to make a provision to this effect. Indeed, it is submitted
that no internal court of an organization could consider itself competent in
organic disputes of another organization unless the court’s statutes empowered
it to adjudicate such disputes and the other organization concerned – or its
constitution – had accepted its competence, in general or for any particular
dispute. In the absence of such delegation of judicial power, by mutual consent
or by constitutional provisions, the organic jurisdiction of an intergovernmental
organization must be exclusive vis-à-vis other organizations, in its judicial as
well as in its legislative and administrative aspect. In this respect the same
principles must apply between intergovernmental organizations as between
States210 and as between a State and an intergovernmental organization.

National courts

National courts are theoretically in the same position with regard to internal
disputes of intergovernmental organizations as are internal courts of other
intergovernmental organizations, but in practice their position is different.

Disputes arising under organic jurisdiction

No examples are known of an intergovernmental organization having con-
ferred competence upon national courts in respect of its internal, organic
disputes, nor are States known to have conferred upon their national courts
competence in such disputes. Agreements delegating certain internal legislative
and/or administrative powers of the organization to the appropriate organs
of the host State – notably in respect of social insurance – may imply that
the national courts of the host State will be competent in disputes relating to
the delegated powers, in the same manner as the UN Administrative Tribu-
nal has been given competence in disputes relating to certain legislative and
administrative powers delegated to the UN and the UN Joint Staff Pension
Fund by the specialized agencies. But these disputes will usually be of an
external, rather than of an internal nature. Thus, if the organization submits
to the social security system of the host State in respect of its ofcials, as some
organizations have done, it will usually be implied that the national courts of
the host State shall be competent in disputes arising between the ofcials and
the social security agencies of the host State. These disputes are not internal

210 Cf. Hackworth: Digest of International Law, Vol. 4, pp. 732–4.

314 chapter seven

disputes arising out of the internal law of the organization, but external dis-
putes arising out of the national law of the host State and involving parties,
one of which is not subject to the organic jurisdiction of the organization.
The question of the competence of national courts when the organization
has not conferred jurisdiction upon them, has been dealt with in several deci-
sions by such courts in disputes concerning the relationship of employment.
In most of these cases ofcials sued the organization before a national court
for indemnities for termination of their employment with the organization.
Except for certain cases involving the UN,211 the courts declined jurisdiction,
even though the organization had its headquarters, and the ofcial had been
hired and performed his duties, in the territory of the State to which the
court belonged, and despite the fact that the ofcial concerned was a national
of that State.212 The reasoning in some of the decisions referred to seems to
indicate that the courts concerned would ex proprio motu (ex ofcio) have con-
sidered themselves incompetent ratione materiae even if the organization had
accepted their jurisdiction.213 But in one case the national court assumed
jurisdiction on the basis that the organization was considered by the court to
have accepted its jurisdiction by not raising any objection on that ground.214
This judgment may not conform to the general principles of the procedural
international law of other States, but as a matter of public international law
the Court was of course entitled to assume jurisdiction, if the UN had really
consented (out of unawareness of the legal situation and the contrary practice
of other organizations).

211 National courts at an early stage assumed jurisdiction in three such cases involving the
UN. In at least one of these (Schuster v. UN Information Centre) the UN had failed
to invoke its exclusive jurisdiction in internal matters. Although such failure does not
in itself necessarily confer jurisdiction upon national courts, it cannot be expected that
these shall be aware of rights of the organization if its representatives have not drawn
them to their attention, or, to put it bluntly, as the UN Secretariat itself apparently was
unaware of the legal position and the consistent practice of other organizations. In the
two other cases (Annual Report of the Secretary-General, 1953–54, pp. 106–7), the courts
appear to have ignored completely obtaining rules of international law, inasmuch as they
disregarded also treaty provisions on the immunity ratione personae of the UN. In all known
similar disputes of other organizations national courts have declined jurisdiction.
212 See reference to cases cited above in chapter 7.4.1.
213 Chemidlin v. International Bureau of Weights and Measures. But see Proli v. Interna-
tional Institute of Agriculture.
214 Schuster v. UN Information Centre, cf. Zeitschrift für auländisches öffentliches Recht
und Völkerrecht, Vol. 24 (1964), note 254. – Belgian and American courts have accepted
jurisdiction in actions brought by the UN against former ofcials for reimbursement of
overpayment of salary. These disputes, however, must properly be considered as external,
involving questions of the internal law of the organization only as a preliminary issue –
on disputes with former member States of the Bank and the Fund.
 settlement of internal disputes 315

If national courts decline jurisdiction in cases involving ofcials, then there

is all the more reason why they should decline jurisdiction in the even more
typically internal disputes between and within organs which have no distinct
legal existence outside the organization. In disputes involving members of the
organization – i.e. sovereign States acting as such – national courts obviously
have no jurisdiction.
The decisions referred to above conform to the many cases in which
national courts have declined jurisdiction in disputes between foreign govern-
ments and their ofcials serving in the country of the court and possessing
the nationality of that country.215 Neither the judgments relating to ofcials
of foreign States, nor those relating to ofcials of intergovernmental organi-
zations, State whether the incompetence is merely a matter of the national
(procedural international) law of the State concerned, or whether it derives
also from public international law, in the sense that national courts are barred
under public international law from adjudicating upon organic disputes of
another State or of an intergovernmental organization. It is submitted that
the latter is the case. It would be entirely improper for an organ of one State
in this manner to intervene in the internal functioning of the administration
of another sovereign State or of an organization of sovereign States. It is thus
submitted as a general rule, applicable to intergovernmental organization as
well as to States, that the organic jurisdiction is exclusive even in its judicial
aspect. National courts may not, under international law, assume jurisdiction
in internal disputes relating to matters falling under the organic jurisdiction
of an intergovernmental organization or of another State, unless the organi-
zation or the other State concerned has recognized their competence. Such
recognition can not be inferred from Article 240 of the constitution of the
European Community and Article 155 of the constitution of EURATOM,
which provide:
Save where jurisdiction is conferred on the Court of Justice by this Treaty, dis-
putes to which the Community is a party shall not on that ground 216 be excluded
from the jurisdiction of the courts or tribunals of the Member States.
Nor can it be inferred from any constitutional or other provision which
waives the procedural immunity of the organization concerned, such as that
contained in Article 1 of the Protocol on the Privileges and Immunities of
the European Communities and in Article VII (3) of the constitution of the

215 See above, chapter 5.1.

216 Emphasis added. French text: “de ce chef ”. The German text is not so clear, but must
mean the same.
316 chapter seven

International Bank for Reconstruction and Development. And even if the

organization should have admitted the competence of national courts in
certain organic elds, the national court may be debarred, as a matter of
its own national law, from assuming jurisdiction in internal disputes of other
sovereign entities, unless the State under which the court belongs has expressly
extended its jurisdiction.

Disputes arising under extended jurisdiction

The position is different with regard to disputes arising under the extended
internal law of the organization (i.e. law enacted by virtue of territorial or per-
sonal jurisdiction conferred upon it, in its constitution or elsewhere), even if the
dispute is one between parties both of which are subject to its jurisdiction.
If a dispute between two nationals or residents of a State arises under its
territorial or personal law, the dispute will usually be submitted to the courts
of that State. But if they bring the dispute before the courts of another State,
then these are not debarred from assuming jurisdiction by the mere fact
that the dispute arises out of matters which are subject to the non-organic
jurisdiction of the rst State. If competent under its own law of venue, and
if this law is not excessively liberal, the court can assume jurisdiction and
can apply, in accordance with its own conicts law, the substantive law of
the rst State.
As for disputes arising out of the non-organic law of an intergovernmental
organization, it is similarly submitted that the internal courts of the organiza-
tion, or its administrative organs, do not have exclusive competence unless
this follows from the treaty or other act which confers extended jurisdiction
upon the organization and unless such treaty or other act is binding upon
the State under whose national court the dispute is brought.217

Conclusion
The conclusion follows that – while the competence of internal courts of IGOs
(as well as that of national courts of States) is exclusive, vis-à-vis a (foreign)
national court, with regard to internal disputes arising out of matters falling
under the organic jurisdiction of the organization or the State concerned –
the competence of these courts is not exclusive under public international

217 E.g. provisions in the constitutions of the European Communities which reserve certain
decisions for the Court of Justice (EURATOM Art. 193, EC Art. 292 cf. Arts. 220, 227
and 239), The Andean Community (The Protocol of Cochabamba 28 May 1996, Arts.
17 (nullity action) and 24 (action in cases of non-compliance)) and The African Union
(The Lomé Convention of 11 July 2000, Art. 26) and thus limit the competence of
national courts in member States.
 settlement of internal disputes 317

law with respect to “internal” disputes arising out of matters falling under
the (extended) territorial or personal jurisdiction of the organization or State
concerned, unless this follows from specic provisions. With the latter reserva-
tion, national courts are therefore, in principle, not barred under international
law from assuming jurisdiction, even without delegation, in respect of the
second type of internal disputes of an intergovernmental organization, and
may even review the validity of the acts of the organization.218
In respect of internal disputes arising out of matters falling under the
organic jurisdiction of the organization, however, national courts are not
entitled under international law to assume jurisdiction unless the organization
has delegated its powers. However, such delegation to national courts would in
most cases be inappropriate, since it would prejudice the independence of the
organization and the equality of its member States. But this does not neces-
sarily mean that an intergovernmental organization would be legally barred
from conferring jurisdiction upon national courts in certain special types of
internal disputes, and to render such jurisdiction compulsory in cases where
it is entitled to confer compulsory jurisdiction upon its own internal courts.

7.9 International courts219

Constitutional provisions

A great number of IGO constitutions provide that disputes concerning the

interpretation or application of their provisions shall be submitted to the
International Court of Justice220 or to an arbitral tribunal.221

218 The latter was also pointed out by Wengler in Annuaire de l’Institut de droit internationa,
Vol. 45 (1954), p. 282, in general terms, without making an exception for acts made in
the exercise of organic jurisdiction.
219 On the distinction between internal courts of intergovernmental organizations and inter-
national courts, see above, chapter 7.7. – See the many proposals to extend the jurisdiction
of the International Court of Justice to disputes concerning IGOs listed by H. Golsong
in Zeitschrift für ausländisches öffentlichen Rechts und Völkerrecht, XXXI (1971) at pp.
679, 681–3, 686, 689 and 694. See also “A role for the International Court of Justice,
International Law Association, Berlin Conference (2004), Final report, appendix.
220 E.g. the constitutions of WHO, Art. 75; FAO, Art. XVI (1); ILO, Art. 37 (1); UNESCO,
Art. XIV, 2; ICAO, Arts. 84–86; the Bern Union, the United Nations Industrial Deve-
lopment Organization, Art. 22.
221 E.g. the constitutions of the Inter-Allied Reparation Agency, Part II, Art. 7; UPU, Art.
32, cf. General Regulations Art. 127 (1); and ITU, Art. 50. However, the arbitrators
provided for in the two former constitutions are not external to the organization. They
are either its secretariat, or member governments, or their delegates to the organizations. –
318 chapter seven

Other constitutions exceptionally provide for a right for member States

or individuals under the extended jurisdiction of the organization to appeal
to an external court against the decisions made by the organization.222 Sev-
eral proposals have been made for similar provisions in respect of other
organizations.223
The provisions referred to above usually confer compulsory jurisdiction
upon the tribunal concerned.224 But it is not always clear whether they
envisage the establishment of an international or of an internal tribunal.
Nor is it always clear whether the provisions relate only to disputes between
member States or also to disputes between these and the organization (or,

See also the constitutions of the Fund, Art. XXIX Section 2 (c), and the Bank, Art. IX
(c), although it may be questioned whether the disputes with which these provisions are
concerned are internal or external. Nor is it clear whether these provisions are conned
to disputes concerning the interpretation of the constitution. – Both alternatives are
provided for in the constitutions of UNESCO Art. XIV 2, ICAO Arts. 84–86 and FAO
Art. XVII (1).
222 Art. 38 of the constitution of the International Danube Commission (LNTS Vol. 26,
p. 193) provided for appeal against the decisions of the Commission to a “special juris-
diction set up for that purpose by the League of Nations”. This “jurisdiction” might have
been the Permanent Court of International Justice, as subsequently envisaged in Art. 37
of the Statute of that Court, except that this Court was not competent in contentious
disputes involving intergovernmental organizations as parties. Similar appeals in other
international river commissions may be made to the International Court of Justice, if the
dispute is one between States, according to Art. 10 (5), cf. Art. 22, of the Statute on the
Regime of Navigable Waterways of International Concern, annexed to the Barcelona
Convention of 20 April 1921 (LNTS Vol. 7, p. 57).
Under Arts. 29–32 of the ILO constitution, members of the ILO may appeal to the
International Court of Justice (under the contentious procedure) against the recommenda-
tions of the Commission of Inquiry appointed under Arts. 26–28 to consider complaints
of non-observance of International Labour Conventions (cf. also the recourse provided
for in Art. 37 (2). However, these conventions should rather not be considered part of
the internal law proper of the ILO.
Most of the examples cited in this note, and in certain others, are cited by André Gros:
“Le problème du recours juridictionnel contre les décisions d’organismes internationaux”
in La technique et les principes de droit public, Etudes en l’honneur de Georges Scelle,
Vol. 1, Paris 1950, pp. 268–9.
223 See, inter alia, Wengler’s report on Recours judiciaire à instituer contre les décisions
d’organes internationaux to the Institut de droit international (Annuaire de l’Institut de
droit international, Vol. 44 (1952 I), pp. 224–360 and Vol. 45 (1954 I), pp. 265–309)
and the concluding, rather different, resolution of the Institut (ibid., Vol. 47 (1957 II),
p. 478; English translation in AJIL Vol. 52 (1958), p. 105). See also the reports of the
national branch committees of the International Law Association Committee on the
UN Charter, reproduced in Second Report on the Review of the Charter of the UN
(London 1956).
224 The compulsory jurisdiction of the International Court of Justice does not become effective
vis-à-vis non-member States which are not parties to the Statute of the Court, unless
these make the declarations prescribed by the resolution of the Security Council of 18
October 1946. None of the constitutions cited above expressly requires them to do so,
as did the abortive proposal in Union internationale pour la protection de la propriété
industrielle, Conférence de Lisbonne, Documents preliminaries, Bern 1956, p. 91.
 settlement of internal disputes 319

exceptionally, even to disputes involving other parties). Similar doubts may

arise as to whether the reference to the International Court of Justice is to
the advisory or to the contentious procedure.225 In the latter case the provisions
can apply only to disputes between member States, because of the outdated
restrictive provision in Article 34 (1) of the Statute of the Court.

Competence in the absence of constitutional provisions

None of the provisions referred to above covers all internal disputes of the
organization. Moreover, a great number of intergovernmental organizations
have no provisions at all for judicial settlement of internal disputes.
In one case as in the other, the question arises as to whether internal disputes
of the organization, despite the absence of relevant constitutional provisions,
may be referred to standing international courts or to ad hoc arbitral tribunals,
either by the parties to the dispute or by the organization.
The main question in this connection is whether international courts are
competent under their own constitution (statute) to assume jurisdiction in
internal disputes of an intergovernmental organization. Difculties may arise
here because the competence of standing international courts is limited with
regard to parties (ratione personae, see under 7.9.3 (a) below) and with regard
to subject matter (ratione materiae, see under (b) below). Ad hoc arbitral tribunals
are in a different position, see (c).
Secondly it must be ascertained in what circumstances internal disputes
may, under the law of intergovernmental organizations, be brought before
an international tribunal – by the parties to the dispute (7.9.4 (a) or by the
organization itself (b)).

Limitations deriving from the constitution of the court

(a) Standing courts: competence ratione personae 226

International tribunals are in principle concerned with disputes between sub-
jects of international law. However, it is for the constitution (statute) of each
court to determine who may be parties before that particular court.

225 The constitution of IMO, Art. 70, expressly refers to advisory opinions only. The consti-
tution of ILO, Arts. 37 (1) and 29 (2), cf. Art. 31, refers to the contentious procedure
(“decision”, in this sense also M. Sörensen: Grundtræk af international organisation,
Copenhagen 1952, pp. 128–9).
226 Cf. S. Rosenne: The Law and Practice of the International Court of Justice, Dordrecht
1985, pp. 284–90.
320 chapter seven

The constitutions of most standing international courts limit the competence

of the court still further – to disputes between States.227 If these provisions
are interpreted literally as precluding other subjects of international law, this
means that the court is able to deal only with such internal disputes of inter-
governmental organizations as arise between member States and/or (other)
States subject to the extended jurisdiction of the organization. The court
cannot accept jurisdiction in disputes between the organization itself and one
or more such States. Still less can it accept jurisdiction in disputes involving
particular organs of the organization, its ofcials or individuals subject to its
extended jurisdiction.
This was the position of the Permanent Court of International Justice and
it is still the position of the International Court of Justice, Article 34 (1) of the
Statute of which provides that “only States may be parties in cases before the
Court”.228 This has forced member States to sue instead of the organization,
but this presents problems of their competence.229
It has been suggested by some writers230 and by the President of the former
Permanent Court of International Justice, that this provision does not preclude
intergovernmental organizations possessing international personality from
being parties to cases before the Court. And it is true that the provision was
only intended to preclude private parties. However, the records show that the
question of intergovernmental organizations being parties to cases before the
Court was not absent from the minds of the drafters of the Statute, neither of
the former Court, nor of the present, but that they refrained from taking any
action on the matter.231 In these circumstances, the term “State” can hardly be
read as comprising subjects of international law generally. A different matter
is that this and many other provisions should (and, after the end of the cold

227 Examples of individuals having been admitted as parties before independent international
courts are listed above, chapter 7.5. These courts, however, are now a matter of the past,
except for those dealing with disputes of national law.
228 The Statute of the Permanent Court of International Justice, Art. 34, provided that
“only States and Members of the League of Nations can be parties in cases before the
Court”.
229 In Ethiopia and Liberia v. South Africa, (ICJ Reports, 1966, p. 3).
230 See for example Eagleton in: Recueil des Cours, Vol. 76 (1950 I), p. 418, and Weissberg:
The International Status of the United Nations, London 1961, p. 200, and the writers
cited by him in note 136. See also ICJ Reports, 1952, p. 133, and ICJ Pleadings, Repa-
ration for Injuries Suffered in the Service of the UN, p. 99.
231 Hudson: The Permanent Court of International Justice 1920–1942, New York 1943,
p. 187, cf. p. 186. As for the capacity of the League of Nations to “plead before the
Court” (in disputes between States), see League of Nations, Ofcial Journal No. 8, Procès-
Verbal of the Tenth Session of the Council, 20–28 October 1920, II, p. 16; cf. also, for
the advisory procedure, Art. 73 of the Rules of Procedure of the Permanent Court of
International Justice and Art. 66 (2) and (4) of the Statute of the International Court
of Justice.
 settlement of internal disputes 321

war, can) be amended to include intergovernmental organizations and, possibly,

other self-governing communities.232 It ought not to be necessary in all such
cases to have to establish special courts.
Provisions in IGO constitutions which refer disputes to the existing courts
must be interpreted restrictively, as meaning either settlement of disputes
between member States (by contentious proceedings), or settlement (of any
type of dispute) by advisory opinion, or both.233
However, it is not possible to interpret the constitution of the International
Labour Organization in this sense. It provides for reference to the Interna-
tional Court of Justice under the contentious procedure even of disputes
between a member State and the organization.234 It has been contended
that this conict between treaties must be settled according to which treaty
is of the higher hierarchical order,235 or simply that the International Court
of Justice may have to deviate from its Statute in order to avoid a conict,
which the drafters of the Statute did not intend to create, with the earlier
Treaty of Versailles.236 However, it is submitted that the constitution of one
intergovernmental organization (the ILO) cannot supersede the constitution
of another intergovernmental organization (the UN with the International
Court of Justice) as the internal law of the latter. For the International
Court of Justice, as for any other international body, its own constitution

232 In this sense, E. Lauterpacht: Aspects of the Administration of International Justice,

Cambridge 1991, pp. 60–66, who points, in particular, to the future need in respect of
protection of the environment and of human rights and of other duties which exist erga
omnes. S. Rosenne: The World Court, Dordrecht 1995, p. 84 and The Law and Practice
of the International Court of Justice, Dordrecht 1985, at pp. 284–90 is less enthusias-
tic, pointing out a number of problems, which, however, do not appear to be serious
obstacles to the present writer, e.g. that “the nature of the organizations concerned and
the relationships created by them are too different, and too unforeseeable”. The UN
General Assembly’s resolution No. 3232 of 12 November 1974, encouraging UN organs
and Specialized Agencies to seek legal problems for submission to the ICJ reects the
view that the Court has the capacity to undertake further tasks.
233 The latter is probably the correct interpretation of the WHO constitution, Art. 75, and
possibly even of the constitution of the former International Refugee Organization, Art.
17 (2) (despite the reference to Art. 96 of the UN Charter).
234 Art. 29 (2), cf. Arts. 26 (4) and 31 (these disputes might more appropriately be conside-
red external, but that does not affect the question of principle involved in the present
context). Art. 37 (1) also speaks of “decision” and thus clearly refers to the contentious
procedure – but it does not necessarily embrace disputes between the organization and
a member State, although many writers conceive it in this way (Georges Fischer: Les
rapports entre l’Organisation internationale du travail et la Cour permanente de justice
internationale, Paris 1946, pp. 30–40, and Sörensen, op. cit. above note 311, p. 129).
235 Fischer, op. cit., pp. 40–46, who on this basis arrives at the conclusion that Art. 37 (1)
of the constitution of the ILO, as part of the Peace Treaties concluding World War I,
must prevail over the Statute of the pre-war Permanent Court of International Justice,
but not over the Statute of the post-war International Court of Justice.
236 Sörensen, op. cit., p. 129, in respect of both Art. 29 (2) and Art. 37 (1).
322 chapter seven

is the supreme law unless the constitution itself provides otherwise.237 If

this constitution contains an unequivocal provision – as the Statute does –
the Court cannot set this provision aside by applying a contrary provision of
the constitution of another intergovernmental organization of which it is not
itself an organ. This leads to the conclusion that the contentious jurisdiction
of the International Court of Justice – like that of most other standing inter-
national courts – does not extend to disputes between an intergovernmental
organization and its member States, whatever the constitution of the organiza-
tion may say – until the Statute of the Court has been properly amended.
As has been pointed out by Diez de Velasco,238 the statutory limitation
to States as parties has been circumvented by one or more member States
acting before the Court, making their own the cause of the organization.
This may cover some cases, but it is not a satisfactory solution and it cannot
cover all cases.
Various proposals have been made to extend the jurisdiction of the Inter-
national Court of Justice to embrace disputes involving parties other than
States. These proposals have been made to a great extent with a view to
bringing before the Court what the present writer describes as internal dis-
putes of intergovernmental organizations.239 The proposals merit full support
insofar as they strive to give effect to the international procedural capacity
of intergovernmental organizations and other subjects of international law
that are not States. Indeed, this capacity should not be denied to any inter-
governmental organization by the constitution of any standing international
court, neither for the purpose of external disputes, nor for the purpose of
internal disputes – i.e. neither for disputes of genuine international law, nor

237 This supremacy has been conrmed in practice vis-à-vis general international law; see
above, chapter 7.7, where the parallel problem in respect of State constitutions is also
discussed.
238 Instituciones de derecho internacional publico, 11th ed., Madrid 1997, p. 784. He also
points to Art. 9 of the constitution of the International Bank for Reconstruction and
Development, which refers disputes, both between member States and between member
States and the organization, to settlement by organs of the same organization.
239 See the different proposals made by the International Law Association Committee on
the UN Charter International Law Association, Report of the Forty-seventh Conference,
Dubrovnik 1956, pp. 128–132. The proposal, attributed to the present writer on p. 129,
that disputes between organs be decided by advisory opinion, was merely an attempt
to improve the original U.S. Branch sub-committee proposal, to resort in such cases to
contentious judgments of the International Court of Justice; usually disputes between
organs can be settled by internal, non-judicial procedures. The Austrian, Yugoslav and
United States Branch sub-committees even proposed a modied compulsory jurisdiction
for the International Court of Justice in internal disputes between the organization and
a member State (Second Report on the Review of the Charter of the United Nations,
London 1956, pp. 43, 77 and 112).
 settlement of internal disputes 323

for disputes arising under the internal law of the organization.240 However,
certain of the proposals which have been made tend to extend the jurisdiction
of the Court in contentious proceedings even to internal disputes stricto sensu,
involving ofcials241 or particular organs of the organization.242 This would
involve an extension of the tasks of the Court to a eld which is different
from that for which it was created (internal law as opposed to international
law). On the other hand, as has been pointed out above in chapter 7.4, any
intergovernmental organization is free to establish internal tribunals for this
purpose or to confer jurisdiction upon the internal tribunals of other organi-
zations. This may be done by simple regulation (and/or by agreement with
the other organization concerned) without resorting to any constitutional
amendment or other treaty revision. There may, of course, be a need for
a court of appeal. This too may be satised by internal courts. At present,
the International Court of Justice is acting as a court of appeal through the
articial procedure of (binding) advisory opinions, a procedure which does
not require Charter or Statute revision.243
The constitution of the Permanent Court of Arbitration was also clearly
drafted with a view to disputes between States only. However, it did not
expressly provide that only States might be parties before the Court.244
On the other hand, it contained a provision, in Article 47 second paragraph,
to the effect that its jurisdiction might be extended to disputes between

240 This is the implication of the resolution which the International Law Association adopted
already at its Dubrovnik Conference, in conclusion of its discussion of the report cited
above, pp. 104–05.
241 See e.g. Gonsiorowski: Société des Nations et problème de la paix, Paris 1927, Vol. 1,
p. 288, on an ILO proposal that jurisdiction be conferred upon the Permanent Court of
International Justice in disputes between the League of Nations and its ofcials.
According to the second report of the International Law Association Committee on the
UN Charter, two national branch committees similarly proposed that Art. 101 of the UN
Charter and Art. 34 (1) of the Statute of the International Court of Justice be amended to
enable ofcials to sue their organization before the Court (International Law Association,
Report of the Forty-seventh Conference held at Dubrovnik 1956, pp. 130 and 132).
Certain proposals to institute a right of appeal to the International Court of Justice
against decisions by administrative tribunals, appear to envisage the contentious proce-
dure, rather than the procedure of advisory opinions which is resorted to in the existing
regulations of e.g. the ILO and the UN concerning such appeals.
242 See above, on the original proposal of an American Branch subcommittee of the
International Law Association to extend the jurisdiction of the International Court of
Justice to disputes between two organs of an IGO concerning their respective spheres
of jurisdiction.
243 Resolution 957 (X) of the General Assembly of the United Nations.
244 Art. 37 of the Hague Convention for the Pacic Settlement of International Disputes
provides: “L’arbitrage international a pour objet le règlement de litiges entre les Etats”.
However, this article does not appear in the chapter dealing with the Permanent Court
of Arbitration, but in the immediately preceding chapter on “la justice arbitrale”.
324 chapter seven

non-contracting puissances (powers) or between contracting and non-contract-

ing puissances.245 By the term puissances the contracting States presumably had
only States in mind, not intergovernmental organizations, since these had not
by 1899 and 1907 attained a sufciently prominent position in international
law to be taken into account. Nevertheless, the term puissance does not in
itself preclude subjects of international law other than States. And it would
hardly be reasonable today to interpret the term restrictively merely because
intergovernmental organizations had not at the time of the establishment of
the Court attained such importance that it was natural for the drafters to take
them into account. Accordingly, it is submitted that it is possible to constitute
an arbitral tribunal under the Hague Convention on Pacic Settlement of
Disputes to adjudicate upon a dispute between an intergovernmental organiza-
tion and a State, provided that the regulations adopted by the Administrative
Council so permit.246
So far, it has been found necessary for intergovernmental organizations
to make provision for arbitration or other ad hoc ways of settlement of dis-
putes in treaties that they conclude with States or with other organizations.
Article 66 of the UN Convention on the Law of Treaties between States and
International Organizations or between international organizations contains
complex provisions on this subject.

(b) Standing courts: competence ratione materiae

International courts are established to adjudicate disputes of international
law. And what in the present book is referred to as internal law of inter-

245 “La juridiction de la Cour permanente peut être étendue, dans les conditions prescrites
par les règlements, aux litiges existant entre des Puissances non contractantes ou entre
des Puissances contractantes et des Puissances non contractantes, si les Parties sont
convenues de recours à cette juridiction”.
246 Such regulations were to be adopted by the Council on the basis or Art. 49 cf. Art. 47
second paragraph, of the Hague Convention on the Pacic Settlement of International
Disputes of 18 October 1907. The Council has adopted no such regulations so far. In
February 1962 the Bureau of the Court elaborated a “Règlement d’arbitrage et de
conciliation pour les conits internationaux entre deux parties dont l’une seulement est
un Etat”, the text of which was published inter alia in Nederlands Tijdschrift voor Inter-
nationaal Recht, Vol. 9 (1962), pp. 339–50. However, these rules were based upon the
rst paragraph of Art. 47, which reads: “Le bureau est autorisé à mettre ses locaux et
son organisation à la disposition des Puissances contractantes pour le fonctionnement de
toute juridiction spéciale d’arbitrage”. Already before that time, the Court had in fact
placed its premises and its organization at the disposal of commissions appointed to arbi-
trate in disputes between States and private commercial companies. See on this François
in Recueil des Cours, Vol. 87 (1955 I), pp. 541–6. However, the courts of arbitration
envisaged in the rst paragraph of Art. 47 are not courts of the Permanent Court of
Arbitration, but independent ad hoc tribunals, whose jurisdiction, as explained below,
under (c), is not limited by the provisions contained in the constitution of the Court.
 settlement of internal disputes 325

governmental organizations, is widely mixed up with – or even assumed to

constitute – international law.
However, the internal law of each organization constitutes a legal system of
its own. These legal systems differ from international law in sources, subjects,
contents, hierarchical order and legal effects in national law. Important parts of
the internal law of intergovernmental organizations differ from international
law in all these respects, and are, on the whole, comparable to national law.
Other parts differ from international law only in certain respects, and are
otherwise comparable to, or even part of, international law.
It is therefore necessary to ascertain whether the competence of standing
international courts is really conned ratione materiae to disputes of international
law. This question has so far been posed notably vis-à-vis national law, and
the answer must therefore be based, in the rst place, upon an examination
of practice in that respect.
Although international courts are established, in principle, to adjudicate
upon disputes of international law, they need not decline jurisdiction in dis-
putes arising under another legal system if their constitutions do not expressly
conne their jurisdiction to disputes of international law – especially if the
parties agree to the submission of the particular dispute to the court.
This may be the position of the Permanent Court of Arbitration. The
term différends internationaux used in Article 41 of its constitution may have
in view the parties to the dispute rather than its subject-matter, and, at any
rate, is not so specic that it must be interpreted as barring two contracting
powers from submitting to a court of arbitration under the convention a
dispute between them arising out of national law or the internal law of an
intergovernmental organization.
The Statute of the Permanent Court of International Justice provided
on the one hand, in Article 36, rst paragraph, that “the jurisdiction of the
Court comprises all cases which the parties refer to it”. This was interpreted
by the Court as meaning that “there is no dispute which States entitled to
appear before the Court cannot refer to it”.247 On the other hand, Article
38, which enumerated the sources of law to be applied by the Court, did not
mention such sources of national law and of internal law of intergovernmental
organizations as do not at the same time constitute sources of international
law. Nevertheless, the Court accepted jurisdiction in the cases of the Serbian
and Brazilian Loans in France, although it considered the dispute to be one of
national law.248 In so doing, the Court relied upon the provision in Article 36,
rst paragraph, of its Statute and upon the fact that the parties had agreed

247 Rights of Minorities in Upper Silesia (Minority Schools), PCIJ, Ser. A, No. 15, p. 22.
248 PCIJ, Ser. A, Nos. 20/21, pp. 16–20 and 101.
326 chapter seven

to submit the dispute to its jurisdiction. As for Article 38, the Court merely
stated that
Article 38 of the Statute cannot be regarded as excluding the possibility of the
Court’s dealing with disputes which do not require the application of international
law, seeing that the Statute itself expressly provides for this possibility.
By the latter the Court was referring to Article 36 (2) (c) of the Statute, which
provided that States may accept the compulsory jurisdiction of the Court, inter
alia in legal disputes concerning “the existence of any fact which, if established,
would constitute a breach of an international obligation”. Such a fact, the
Court pointed out, might be a question of national law.249 And it might not
be necessary for the Court to pass upon the international law aspect of the
dispute, since the parties “may agree that the fact to be established would
constitute a breach of an international obligation”.250
The International Court of Justice is essentially in the same position as the
Permanent Court of International Justice, since its Statute251 restates word for
word the relevant provisions of the Statute of its predecessor. However, one
addition has been made. Article 38 previously enumerated the sources of law
which the Court is to apply, but now States that the function of the Court is
“to decide in accordance with international law such disputes as are submitted
to it”.252 The report of Committee IV/1 of the San Francisco Conference
comments upon this addition as follows:
The First Committee has adopted an addition to be inserted in the introductory
phrase of this article referring to the function of the Court to decide disputes
submitted to it in accordance with international law. The lacuna in the old
Statute with reference to this point did not prevent the Permanent Court of
International Justice from regarding itself as an organ of international law; but
the addition will accentuate that character of the new Court.253
This does not appear to indicate any intention on the part of the drafters of
the new Statute to alter the practice instituted by the Permanent Court of
International Justice in the cases of the Serbian and Brazilian Loans. The
legal limitation implied in the addition may thus merely be an afrmation
of the principle that the Court must give precedence to international law in

249 Cf., however, the Case Concerning Certain German Interests in Polish Upper Silesia
(PCIJ, Ser. A, No. 7, p. 19). Here the Court stated that it was “certainly not called upon
to interpret the Polish law as such” (emphasis added).
250 PCIJ, Ser. A, Nos. 20/21, pp. 19–20. The example does not appear altogether conclusive.
251 Arts. 36 (1), 38 (1), and 36 (2), respectively.
252 Emphasis added.
253 United Nations Conference on International Organization, San Francisco 1945, Vol. 13,
p. 392.
 settlement of internal disputes 327

the sense that it cannot apply any rule of national law which conicts with
international law. Nevertheless, the possibility of the present Court inter-
preting the new addition more rigidly cannot be excluded – especially since
the judgments in the Serbian and Brazilian Loans Cases have not met with
unanimous approval. And the view has been advanced that, whatever view
one takes of the soundness of these judgments, the Court could not make a
similar decision after the addition of the words “in accordance with interna-
tional law” in Article 38 of the Statute.254
However this may be, neither the Permanent Court of International Justice,
nor the International Court of Justice could assume compulsory jurisdiction
under Article 36 (2) of the Statute in a dispute of national law between States.
The compulsory jurisdiction is based, not upon the unlimited provision in
Article 36 (1), but upon the specic provision in Article 36 (2). This provision
enumerates four specic cases in which States may accept the compulsory
jurisdiction of the Court, and all of these fall within the province of (public)
international law.255
The question of the compulsory jurisdiction of the Court in a dispute
of national law arose in the Case of Certain Norwegian Loans. The Norwegian
Government maintained that the dispute, which was rather similar in nature
to the Serbian and Brazilian Loans cases, was one of national law, and that
the Court was therefore incompetent. This applied whatever view one took
of the soundness of the judgments in the Serbian and Brazilian Loans Cases,
because in the Norwegian Loans Case the dispute had been brought before
the Court, not by agreement between the parties under Article 36 (1), but by
unilateral application by France under Article 36 (2).256 The majority of the
Court did not pass upon the question of whether or not it was competent
under its Statute in disputes of national law, since they held that the Court
was in any case barred from assuming jurisdiction in the case before it because
of a reservation in the same sense which had been attached to the French
acceptance of the optional clause and which Norway was entitled to invoke as
a matter of reciprocity,257 although it had done so merely as a subsidiary basis

254 ICJ Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp. 122–3, and Vol. 2, p. 111.
255 The seemingly contradictory statement, referred to above, of the Permanent Court of
International Justice in the Serbian Loans case, in respect of Art. 36 (2) (c), referred to
the situation where “two States have agreed to have recourse to the Court” or where
“the States concerned may agree that the fact to be established would constitute a breach
of an international obligation”.
256 International Court of Justice, Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp.
121–7 and 462–6, and Vol. 2, pp. 110–6.
257 ICJ Reports, 1957, pp. 22–27.
328 chapter seven

for its objection.258 However, two of the judges who voted with the majority
against the competence of the Court, stated that they did so because they
considered that the dispute came within the domain of national law.259
If the competence of an international court is not conned to disputes of
international law, so that in certain circumstances it is able to accept jurisdiction
in disputes of national law, it must clearly also be able to accept jurisdiction
in disputes arising out of the internal law of an intergovernmental organiza-
tion, provided that the other conditions for the exercise of jurisdiction are
satised. Thus, if the interpretations indicated above in respect of national
law disputes are accepted, the Permanent Court of Arbitration will not be
incompetent ratione materiae in respect of disputes arising out of the internal
law of an intergovernmental organization. The same may be said of the
Permanent Court of International Justice and, possibly, of the International
Court of Justice, if the parties agree to submit the dispute to the Court.
On the other hand, if the constitution of the court restricts its jurisdic-
tion so that it is barred from adjudication upon disputes of national law, the
question arises whether it is similarly barred from adjudicating upon disputes
arising under the internal law of an intergovernmental organization. This
question arises particularly in respect of the compulsory jurisdiction of the
International Court of Justice.
It was probably not the intention of those who drafted the constitutions of
most standing international courts to exclude such disputes, since the internal
law of intergovernmental organizations was (and still to a great extent is –
erroneously) considered as part of public international law. Moreover, in most
non-organic cases there are no other courts which would be competent to
adjudicate upon disputes arising out of the internal law of intergovernmental
organizations and with whose jurisdiction the international court could inter-
fere by assuming jurisdiction. Finally, as for the International Court of Justice,
it should be noted that this Court is itself an organ of an intergovernmental
organization. For these and other reasons, there is no complete analogy to
national law in this respect, and it would not seem necessary to preclude
internal disputes of intergovernmental organizations from the competence
of an international court merely because it has no competence in respect of
disputes of national law, even if this fact may be an important factor in the
interpretation of the constitution of the international court concerned.
At any rate, there can be no doubt that the competence of international
courts comprises disputes arising out of law which – although it constitutes

258 ICJ Pleadings, Case of Certain Norwegian Loans, Vol. 1, pp. 129–31. Cf. Carsten Smith:
“The Relation between Proceedings and Premises”, Nordic Journal of International Law,
Vol. 32 (1962), pp. 60 and 78.
259 Judges Moreno Quintana and Badawi, ICJ Reports, loc. cit., pp. 28 and 29–33.
 settlement of internal disputes 329

part of the internal law of an intergovernmental organization – at the same

time forms part of international law. Thus international courts must assume
even compulsory jurisdiction in disputes arising out of the constitution and
of related customary law or principles of law. This applies also to the Inter-
national Court of Justice in respect of the four categories of disputes enu-
merated in the optional clause (Article 36 (2)) – since these are all covered by
the sources enumerated in Article 38 of its Statute. The competence of this
Court to interpret the UN Charter has been contested on several occasions
even in connection with advisory opinions, but without success.260
International courts may probably also assume jurisdiction in other internal
disputes between States (or between States and the organization if the court’s
constitution permits) – i.e. in disputes which arise out of binding regulations
enacted by the organization in pursuance of its inherent organic or mem-
bership jurisdiction261 or out of its extended jurisdiction over member and
non-member States or out of internal customary law – if these create rights
and obligations as between member States inter se or between these and the
organization. These parts of the internal law of the organization differ from
international law with regard to sources, hierarchical order and in certain other
respects. But they also differ, in certain respects relating to their effects, from
the internal law stricto sensu – i.e. from the law which governs relations with
and between subjects of internal law which are not concurrently subjects of
international law (organs, ofcials, individuals subject to the extended jurisdic-
tion262 of the organization). In particular, it should be noted that States act as
such even under the internal law of an intergovernmental organization, while
under national law they act like any private party. It is true that the enumera-
tion of sources in Article 38 (1) of the Statute of the International Court of
Justice does not include all sources of the internal law of intergovernmental
organizations, and particularly not regulations enacted by the organization.
But the International Court of Justice, in its judgments in the Serbian and
Brazilian Loans cases, did not attach decisive importance to this article.
Internal law stricto sensu is in nearly all respects comparable to national,
rather than to international law. Disputes arising under such internal law
could not be brought before the International Court of Justice, or any regular
international court, because of its incompetence ratione personae in disputes
involving parties which are not subjects of international law. Questions of

260 It should be noted, however, that, as for advisory opinions, these may be given on “any
legal question” (Art. 65).
261 See below, Part Three.
262 In the present context it is convenient to include in the term internal law stricto sensu even
the law governing relations of and with individuals under the extended jurisdiction of the
organization, although disputes arising out of that law are more conveniently considered
internal law largo sensu, cf. above, chapter 7.1 and chapter 6.
330 chapter seven

internal law stricto sensu could only arise as questions préjudicielles (preliminary
questions). It has already been submitted that an international court must deal
with questions préjudicielles even if they belong to another legal system, whether
this be national or internal law.
As far as the International Court of Justice is concerned, it is submitted,
in conclusion, that it may assume voluntary as well as compulsory jurisdic-
tion (under Article 36 of its Statute) in disputes between States as such, not
only when they act as independent subjects of international law, but also
when they act as members of an intergovernmental organization, even if the
Court would have been barred under its own constitution or practice from
assuming jurisdiction in disputes of national law between the same States.
This applies, however, only if there is no other (internal) court or other body
having exclusive jurisdiction, and of course only if the other conditions for
the jurisdiction of the Court are satised.

(c) Ad hoc tribunals

Ad hoc tribunals are established by the parties for the purpose of settling a
particular dispute which has arisen between them. Accordingly, such courts
can and must adjudicate upon the dispute submitted to them, whatever its
nature and whoever the parties. The arbitrators cannot decline jurisdiction
because one or both parties are not States, or because the subject matter of
the dispute is not one of international law – merely on the basis that the
arbitrators consider themselves as constituting an “international” tribunal.
The question of what types of disputes are comprised in a treaty of com-
pulsory arbitration depends upon an interpretation of the particular treaty
concerned. It may well be that this is conned to disputes arising between
States under international law.263 However, international law must usually be
understood in the same wide sense as indicated above, under (b).

Limitations deriving from the law of the organization

(a) Power of the parties to refer internal disputes to an international court

States are entitled to refer disputes between them to a standing or ad hoc
international tribunal, if they agree upon such reference or are bound to

263 The compulsory judicial settlement procedure laid down in the Revised General Act
of 28 April 1949 (UNTS Vol. 71, p. 101) does not appear to be strictly conned to
disputes of international law, despite the fact that reference is made to Art. 38 of the
Statute of the International Court of Justice (see Arts. 17–18, cf. Arts. 21 and 28 of
the General Act).
 settlement of internal disputes 331

accept it under the terms of an earlier general or special, bilateral or multi-

lateral, treaty.264 This right extends to any type of dispute which the tribunal
is competent to adjudicate upon. It has been exercised in respect of disputes
of national law265 and of interpretation of the constitution of an intergovern-
mental organization.266 It is submitted that it applies also to disputes concerning
other parts of the internal law of an intergovernmental organization, unless
its constitution provides otherwise, e.g. by providing for other exclusive modes
of settlement.267 It has already been pointed out that States do not, by the
mere fact of joining an intergovernmental organization as members, submit to
the compulsory jurisdiction of its internal courts in regard to disputes arising
out of its internal law. Conversely, it must be assumed that they retain their
freedom to submit even disputes of this type to international courts of their
own choosing, unless exclusive competence has been specially conferred upon
the organization or upon any other body.
The same must apply to disputes between a member State and the orga-
nization as such.

264 E.g. the Revised General Act of 28 April 1949 (UNTS Vol. 71, p. 101) or constitutional
provisions such as Art. 37 of the ILO constitution.
265 The cases of the Serbian and Brazilian Loans in France, PCIJ, Ser. A, Nos. 20/21.
266 The Permanent Court of International Justice in 1929 rendered a judgment on the
Territorial Jurisdiction of the International Commission of the River Oder (PCIJ, Ser. A,
No. 23). The Commission had been unable to reach agreement upon the interpretation
of certain provisions of the Treaty of Versailles which dened the term of reference of
the Commission and which thus formed its constitution, besides forming part of a general
international convention. The seven members then agreed, by a special agreement, to
submit the dispute to the Permanent Court of International Justice as a dispute between
Poland on the one hand and the six other members on the other.
267 Very explicit examples on constitutional provisions to this effect are the constitutions of
the abortive International Trade Organization, Art. 92; the European Community Art.
292, and EURATOM Art. 193, the latter provisions exemplied by the ECJ’s Grand
Chamber judgment 30 May 2005 in Case C-459/03 Commission v Ireland, where the
court declared that by instituting dispute-settlement proceedings against the United
Kingdom under the United Nations Convention on the Law of the Sea concerning the
Mox plant located at Sellaeld in the United Kingdom, Ireland had failed to full its
obligations under Articles 10 EC and 292 EC and under Articles 192 EA and 193 EA
(Rec. 2006, p. I-4635).
Wengler, in his report on Recours judiciaire à instituer contre les décisions d’organes
internationaux, points out two particular limitations upon the right of international
courts to declare invalid decisions made by an intergovernmental organization (Annuaire
d l’Institut de droit international, Vol. 44 1952, pp. 267–270). One of these derives from
the constitutions of the particular organizations concerned, and the other from a general
principle of law (estoppel).
In its judgment on rights of Minorities in Upper Silesia (Minority Schools) the Per-
manent Court of International Justice stated that the principle laid down in Art. 36 (1)
of its Statute (that “the jurisdiction of the Court comprises all cases which the Parties
refer to it”) “only becomes inoperative in those exceptional cases in which the dispute
which States might decide to refer to the Court would fall within the exclusive jurisdic-
tion reserved to some other authority” (PCIJ, Ser. A, No. 15, p. 23).
332 chapter seven

It has been pointed out above that parties who are not normally subjects
of international law are not usually entitled to be parties before an interna-
tional court. Moreover, ofcials and particular organs acting in that capac-
ity are under the compulsory jurisdiction of the organization in respect of
organic disputes. It has been demonstrated – on the basis of practice – that
this organic jurisdiction is exclusive vis-à-vis national courts.
It is submitted that it is also exclusive vis-à-vis other external courts, in the
sense that the organization has the right to oppose the submission of such
disputes to any external court, even if the parties agree to such submission and
even if the organization has not itself established courts to adjudicate upon
such disputes. The same is true of other disputes, if exclusive competence has
been specially conferred upon the organization or any other body. However,
this does not apply to disputes which involve also other (external) parties,
i.e., parties which are not bound by the act conferring exclusive competence
upon the organization.
Irrespective of whether the dispute involves States or other parties, an
intergovernmental organization is not legally bound by a judgment rendered
by an international (or any other external) court if the organization has not
itself been a party to the dispute.268 An organ of an intergovernmental orga-
nization, appearing as a party before an international court, must, however,
usually be presumed to represent the organization as a whole.

(b) Can the organization confer compulsory jurisdiction upon an external

court?
It has already been pointed out that an intergovernmental organization does
not have compulsory jurisdiction over member States for the settlement of
internal disputes, unless this follows from particular provisions. It is even
clearer that the organization does not have the power to confer compulsory
jurisdiction upon an international (or any other external) court insofar as
member States are concerned, if the constitution does not so provide. But
the organization may of course – by simple regulation, without constitutional
provision – confer jurisdiction upon an international court in disputes between
itself and a member State which sues it or which consents to being sued,
if the constitution of that court permits the hearing of disputes involving
intergovernmental organizations.
With regard to organic disputes involving parties which are under the
compulsory judicial power of the organization, such as ofcials and particular
organs, the organization must have the right to delegate its judicial powers to

268 This was expressly provided in the abortive Charter of the International Trade Orga-
nization, Art. 93 (2).
 settlement of internal disputes 333

external tribunals.269 However, a standing international court would normally

not be an appropriate forum for such disputes, and would in most cases also
be incompetent under its own constitution. It is therefore more expedient
to delegate such powers to the internal courts of another intergovernmental
organization, as indeed many organizations have done, or to establish an ad hoc
court, which would then usually be considered an internal court of the organ-
ization itself, rather than an international court. However, delegation has taken
place to the International Court of Justice as a court of appeal in respect of
the judgments of the administrative tribunals of the International Labour
Organization and the United Nations, and in certain other cases, although this
has had to be done in the form of advisory opinions, because the organiza-
tions and their ofcials still cannot appear as parties before the Court.270
In respect of disputes which involve also external parties, or which arise
out of matters not under the organic jurisdiction of the organization, the lat-
ter does not have the power to confer compulsory jurisdiction upon external
tribunals, unless such power follows from a special act, e.g. an act conferring
extended jurisdiction upon the organization.

Conclusions

In principle, standing international courts are, under their constitution, com-

petent only in regard to disputes between subjects of international law. In
many cases, notably the International Court of Justice, their competence is
even conned to disputes between States. On the other hand, if a dispute arises
between such parties, the court is usually not incompetent merely because
the dispute arises out of the internal law of the organization rather than out
of general international law.
Ad hoc tribunals can and must adjudicate upon the dispute which gave rise
to their establishment, whatever its nature and whoever the parties.
Internal disputes between States or between the organization and a State
may be submitted to a standing or ad hoc international court by agreement
between the parties, or by unilateral application if this follows from a treaty on
compulsory jurisdiction. The approval of the organization is not necessary if
the dispute is one between States, but it is a condition that the constitution of
the organization does not provide for other exclusive modes of settlement.

269 Due to the inherent incompetence in such disputes of standing international courts under
their own constitutions, no cases can be cited to support this submission.
270 See Art. 11 of the Statute of the UN Administrative Tribunal, as amended by GA
Resolution 957 (X), cf. also OR GA, X, Annexes A.i. 49.
334 chapter seven

Internal disputes arising out of matters falling under the organization’s

organic jurisdiction and involving only parties subject to that jurisdiction
may be submitted to ad hoc (or other) courts by the organization, or by the
parties if the organization does not object. Other disputes may be submitted
to ad hoc (or other) courts by the parties without the consent of the organiza-
tion, unless an exclusive power of settlement has been conferred upon the
organization or upon any other body. But such ad hoc courts may well be
more appropriately considered as internal courts of the organization than as
international courts.

7.10 Binding “advisory” opinions of the International Court

of Justice271

The provision in Article 34 (1) of the Statute of the International Court of

Justice that “only States may be parties in cases before the Court” prevents
it from accepting jurisdiction in disputes between the organization and its
member States(s), as internal disputes very frequently are. A circumventing
method has been resorted to in order to be able to have recourse to the
International Court of Justice for the purpose of settling internal disputes of
IGOs and external disputes to which IGOs are parties. Under this method,
the organization requests an advisory opinion from the Court, and the orga-
nization, or both parties to the dispute declare in advance that it, or they,
shall be bound by the opinion.
Seidl-Hohenveldern272 suggests that the Court may use the “implied” pow-
ers doctrine to stop objections that the constitution of the organization does
not authorize it to bring a case before the ICJ, but, rightly, that “objections
may have better chances of success when there may be doubts whether the
subject-matter of the dispute falls within the scope of the activities of the
organizations”. In the view of the present writer, the rst question does not
arise, because the power to sue and be sued in international and national
courts is inherent in all IGOs as in all States and there is thus no need to ction
“implied” power in each case. The second question is a matter of external
effect of constitutional limitations, which also must be answered the same
way for IGOs as for States.273

271 Cf. S. Rosenne: The Law and Practice of the International Court of Justice, 2nd ed.,
Dordrecht 1985, pp. 284–90. See also below, chapter 9.3 on advisory opinions on ques-
tions concerning interpretation of public international law.
272 “Access of International Organisations to the International Court of Justice” in A.S.
Muller et al. (eds.): The International Court of Justice, Dordrecht 1997, at p. 194.
273 Cf. above, chapter 6.4.
 settlement of internal disputes 335

Truly advisory opinions

The advisory opinions of the International Court of Justice have been dis-
cussed above, in chapter 7.3.3. As was pointed out, the International Court
of Justice (like the Permanent Court of International Justice) has the power
to give such opinions, but only upon the request of an intergovernmental
organization, indeed, the power to request such opinions is conned to
the United Nations and its specialized agencies by Article 96 of the UN
Charter. Nevertheless, the opinion may relate to a dispute involving other
parties. Thus the International Court of Justice and the Permanent Court
of International Justice have rendered several advisory opinions relating to
internal and external disputes involving the organization as a whole, as well
as member (and non-member) States274 and particular organs275 and ofcials276
of the organization.

274 The advisory opinion on the International Status of South-West Africa (ICJ Reports,
1950, p. 128) related to a dispute between the United Nations and the Union of South
Africa concerning the interpretation of inter alia Arts. 75 et seq. of the UN Charter. The
advisory opinion of the Permanent Court of International Justice of 12 August 1922 on
the Competence of the International Labour Organization in regard to International
Regulation of the Conditions of Labour of Persons Employed in Agriculture (PCIJ, Ser.
B, No. 2) concerned a case where the French Government challenged the constitutionality
of a decision made by the Organization. The advisory opinion of the Permanent Court
of International Justice of 23 July 1926 on the Competence of the International Labour
Organization to regulate, incidentally, the personal work of the employer (PCIJ, Ser. B No.
13) concerned a challenge by a minority of the representatives on a deliberative organ
of the Organization of the constitutionality of a majority decision. The (rst) advisory
opinion of the International Court of Justice on the Conditions of Membership in the
United Nations of 12 December 1947 (ICJ Reports, 1947–48, p. 9) concerned a dispute
between the members of a deliberative organ of the UN. The advisory opinion of the
International Court of Justice of 20 July 1962 on Certain Expenses of the United Nations
(ICJ Reports, 1962, p. 149) concerned a dispute between the UN and some of its mem-
ber States. The advisory opinion of the Permanent Court of International Justice of 31
July 1922 on the Designation of the Workers’ Delegate for the Netherlands at the Third
Session of the International Labour Conference (PCIJ, Ser. B, No. 1) even concerned a
dispute within a member State, relating to its participation in the organization and the
composition of the latter’s organs.
275 The (second) advisory opinion on Competence of the General Assembly for the Admission
of a State to the United Nations of 3 March 1950 (ICJ Reports, 1950, p. 4) concerned
the delimitation of the powers of the General Assembly and the Security Council vis-
à-vis one another (under Art. 4 (2) of the UN Charter). And so did, in two respects,
the advisory opinion on Certain Expenses of the United Nations of 20 July 1962 (ICJ
Reports, 1962, at pp. 162 seq. and 170 seq.).
276 The advisory opinion on Effect of Awards for Compensation Made by the UN Admi-
nistrative Tribunal (ICJ Reports, 1954, p. 47) was in the rst place concerned with
the delimitation of the competence of two particular organs of the UN (the General
Assembly and the Administrative Tribunal) vis-à-vis one another. At the same time it
was the nal legal act in the settlement of a dispute between the United Nations and
one of its member States on the one hand and certain UN ofcials, nationals of that
336 chapter seven

There is no requirement in the Charter (Article 96) or the Statute of the

Court (Article 65) or in relevant constitutional provisions of e.g. the Inter-
national Maritime Organization (Article 70) that the parties to the dispute
must agree to the request for an advisory opinion, and opinions have in fact
been rendered even if one of the parties did not agree to the submission of
the question to the Court.277 Indeed, it is submitted that in internal disputes
of an intergovernmental organization the organization must have the right
to obtain the advice of the Court even if the parties object, even if this is
not always true in respect of disputes of purely international law.278 The UN
General Assembly in its resolution 3232 of 12 November 1974 recommended
that “United Nations organs and the specialized agencies should, from time
to time, review legal questions within the competence of the International
Court of Justice that have arisen or will arise during their activities and should
study the advisability of referring them to the Court for an advisory opinion,
provided that they are duly authorized to do so.
However, regular advisory opinions are not legally binding. The nal deci-
sion in matters falling within the jurisdiction of intergovernmental organiza-
tions is made by administrative decision of the organization itself. Recourse to
truly advisory opinions therefore does not constitute genuine judicial settlement
of the dispute which has given rise to the request for advisory opinion.
In certain external disputes between intergovernmental organizations and
States it has been provided that the advisory opinion shall form a basis of a

member State, on the other. The advisory opinion on Judgments of the Administrative
Tribunal of the International Labour Organization upon Complaints Made against the
UNESCO (ICJ Reports, 1956, p. 77) involved the nal decision of a dispute between
UNESCO and four of its ofcials concerning the relationship of employment.
277 Thus the Soviet Union opposed the submission to the Court of the two membership
cases (OR GA II, Plenary Meetings, pp. 1047–53, and OR GA IV, Plenary Meetings,
pp. 325–6, cf. ICJ Pleadings, Conditions of Admission of a State to Membership in the
United Nations, 1948, p. 28, and ICJ Pleadings, Competence of the General Assembly
for the Admission of a State to the United Nations, 1950, pp 100–1).
278 In its advisory opinion on the Status of Eastern Karelia, the Permanent Court of Interna-
tional Justice declined to give an advisory opinion on the question put to it by the League
of Nations because it found that the question was directly related to the main point of
a dispute actually pending between two States, one of which objected to the request for
an advisory opinion (PCIJ, Ser. B, No. 5, pp. 27–29). On the other hand, the Permanent
Court of International Justice and the International Court of Justice have consented to
give advisory opinions, despite the objection of the States concerned, when the questions
put to the Court relate to the procedure for the settlement of a dispute and not to its
merits, and when the organization requesting the opinion needed the advice of the Court
for its own guidance (Turkish-Iraqi Frontier (Mosul), PCIJ, Ser. B, No. 12, pp. 8–9 and
17–18; Interpretation of the Greco-Turkish Agreement of 1 December 1926, ibid., No.
16; Interpretation of the Peace Treaties, ICJ Reports, 1950, pp. 71–72). In these cases it
was not considered necessary to apply the procedure prescribed for contentious cases.
 settlement of internal disputes 337

binding decision by an ad hoc arbitral tribunal.279 Such procedure is not known

to have been prescribed for internal disputes, properly speaking.

Binding “advisory” opinions. Examples

In certain cases it has been provided that the advisory opinion shall be directly
binding upon the organization, or upon both parties. The following examples
may be cited:

(a) The Statute of the ILO Administrative Tribunal, adopted by the General
Conference, provides in Article XII:
In any case in which the Governing Body of the International Labour Ofce
or the Administrative Board of the Pensions Fund challenges a decision of the
Tribunal conrming its jurisdiction, or considers that a decision of the Tribunal
is vitiated by a fundamental fault in the procedure followed, the question of the
validity of the decision given by the Tribunal shall be submitted by the Governing
Body, for an advisory opinion, to the International Court of Justice.280
Here the right of appeal to the ICJ is vested only in the organization, not in
the ofcial. The ICJ has rendered several opinions pursuant to these provi-
sions.281 The opinion given by the Court shall be binding.
The FAO Conference adopted at its rst session the following recom-
mendation by its General Committee on the Terms of Appointment of the
Director-General:
3. If any question of interpretation or dispute arises on the terms of his contract
an advisory opinion of the International Court of Justice shall be obtained by
the usual procedure and adopted, or, alternatively, the matter shall be submitted
for determination to such arbitral tribunal as the Conference shall appoint.282
(b) Article 96 of the Charter of the International Trade Organization, which
never came into being, provided:
1. The Organization may, in accordance with arrangements made pursuant to
paragraph 2 of Article 96 of the Charter of the United Nations, request from

279 See e.g. the headquarters agreement between the United Nations and the United States,
§ 21, and the ILO constitution, Art. 37 (2).
280 In the Annex to the Statute a similar provision is made for other organizations which
recognize the jurisdiction of the Tribunal.
281 ICJ Reports 1954, p. 47; 1956, p. 77; 1973, p. 166; 1982, p. 325; 1987, p. 18.
282 FAO, Report of the First Session of the Conference, 1945, p. 67. Emphasis supplied.
See also the abortive resolution ibid., p. 55.
338 chapter seven

the International Court of Justice advisory opinions on legal questions arising

within the scope of the activities of the Organization.
2. Any decision of the Conference under this Charter shall, at the instance of
any Member whose interests are prejudiced by the decision, be subject to review
by the International Court of Justice by means of a request, in appropriate form,
for an advisory opinion pursuant to the Statute of the Court.
5. The Organization shall consider itself bound by the opinion of the Court on
any question referred by it to the Court. In so far as it does not accord with the
opinion of the Court, the decision in question shall be modied.
According to a resolution adopted at the Havana Conference (1947–48)
the drafters of the Charter of the International Trade Organization wanted
such opinions “to have the nature of a judgment with respect to the orga-
nization”.283
(c) Reference may also be made to the provisions for settlement in the gen-
eral conventions on the privileges and immunities of the United Nations
and the specialized agencies (paragraphs 30 and 32, respectively) and in
certain other agreements on privileges and immunities.284
(d) Binding advisory opinions have also been requested of other legal bodies.
Thus the Council of the League of Nations, by a resolution adopted on
8 June 1925, prior to the establishment of its Administrative Tribunal,
referred to a collège of three legal members a dispute between the League
and a former ofcial who claimed compensation for unjustied dismissal.
The Council declared in advance that it would accept the conclusions
of the collège as its own decision in the matter. After an oral procedure
“without judicial formalities” – in the course of which the parties, their
Swiss lawyers and one witness were heard – the collège submitted its report
to the Council with the conclusion that the ex-ofcial was to be paid a
compensation in the amount of £750.285

In some of these cases the advisory opinion is to be binding upon both parties
to the dispute. It is then in fact a judicial decision and requires, in principle,

283 United Nations Conference on Trade and Employment, Final Act and related documents,
UN Sales No. 1948 II. D. 4, p. 73.
284 E.g. the agreement of 26 May 1954 between the United Nations and Thailand relating
to the headquarters of the Economic Commission for Asia and the Far East (ECAFE)
in Thailand (UNTS Vol. 260, p. 35 and ICJ Yearbook 1956–57, p. 241) and the Agree-
ment on the Privileges and Immunities of the International Atomic Energy Agency
para. 34 (UNTS, Vol. 374, p. 166). A clearly external example not especially concerned
with privileges and immunities, is Art. XVI of the Agreement for the Establishment in
Cairo of a Middle Eastern Regional Radioisotope Centre for the Arab Countries of 18
October 1962.
285 Journal Ofciel 1925, pp. 858 and 1441–7 (Monod case).
 settlement of internal disputes 339

that the procedure prescribed for such decision be followed. In particular,

both parties must be given an opportunity of presenting their views to the
Court or the other legal body concerned.
In other cases only the organization has undertaken to be bound by the
opinion. The organization will then make an administrative decision in
accordance with the opinion. This will be binding upon the other party only
as an administrative decision, by virtue of the organic or extended jurisdic-
tion of the organization, as the case may be. In other words, from a formal
point of view it is no more binding upon the other party than it would have
been if no opinion had been obtained. However, in fact it will be much more
difcult for the other party to challenge the validity of the decision of the
organization. In these cases, too, it will therefore be reasonable to follow as far
as possible the procedure required for judicial proceedings. But it is doubtful
whether the parties may claim this as a matter of right. In fact, the provision
in Article 34 of the Statute of the International Court of Justice that “only
States may be parties in cases before the Court” has led the Court to obliging
the complaining ofcial to present his arguments in writing to be transmitted
to the Court by his counterpart (the Organization) and to excluding also the
latter from appearing orally before the Court.286

Competence of the court under its statute to render binding “advisory” opinions

Although the Statute of the Court does not authorize binding advisory opin-
ions, it does not preclude them either. Indeed, the Court has, although not
unanimously, accepted jurisdiction in one case of this type which has been
submitted to it, viz. the advisory opinion on Judgments of the Administrative
Tribunal of the International Labour Organization upon Complaints Made against the
UNESCO, rendered on 23 October 1956.287
Four judges considered that the Court could not render a binding advi-
sory opinion in the circumstances because both parties to the dispute could
not appear before the Court and did not enjoy an equal status before it (the
pleadings of the ofcials were submitted in writing via the organization). How-
ever, no doubt was voiced as to the competence of the Court ratione materiae.
Indeed, Article 96 authorizes the organizations to request advisory opinions
“on any legal question”, adding, in the case of the specialized agencies,

286 See E. Jiménez de Aréchaga: “The Participation of International Organizations in Advi-

sory Proceedings before the International Court of Justice” in Il processo internazionale,
Studi in onore di Gaetano Morelli, Milano 1975.
287 ICJ Reports, 1956, p. 77.
340 chapter seven

the qualication “arising within the scope of their activities”. This clearly
includes any aspect of the internal law of the organization, whether or not
it at the same time forms part of international law, and whether or not there
is a dispute between States. It might be submitted that, in principle, this does
not apply if the “advisory” opinion is to be binding, since the Court then is
faced in substance with the task of rendering a judgment in a contentious
case, in which case the competence must be determined by analogy with the
rules applicable to contentious proceedings. However, none of the judges
questioned the competence of the Court on this basis. Indeed, even if it had
been a genuine contentious case, the Court might not have had to consider
itself incompetent ratione materiae when the dispute had been submitted to it
by the organization itself, cf. above, chapter 7.9.3 and 4.
The parties to the dispute other than the organization have no right to
request advisory opinions, since this right, under Article 96 of the UN Char-
ter, may be conferred only upon the organization, or, more particularly, only
upon the United Nations and its specialized agencies.

Power of the organization under its own law to request binding “advisory” opinions

In those cases listed in chapter 7.10.2 above, which concern internal disputes
stricto sensu, i.e. cases arising out of matters falling under the organic jurisdic-
tion of the organization, the decision to seek a binding advisory opinion was
made by unilateral regulations and/or decision of the organizations without
requiring specic consent,288 or consent at all, of the other party to the dispute.
In none of these cases did the constitution of the organization authorize the
organization to request such binding opinions. The constitutions did not even
authorize the organization to request a truly advisory opinion on the type of
disputes concerned.289
It has already been demonstrated that the organization has exclusive
jurisdiction in such matters, and that this comprises not only legislative and
administrative powers, but also the judicial power. Thus the organization may
not only refer such disputes for binding decision to internal courts of the
organization, but it may also delegate its compulsory jurisdiction to external
tribunals. Whether it does so by asking for regular judgments in contentious

288 In the case of ILO the ofcials may be said to have accepted this unilateral power of the
organization by accepting the terms of appointment. In the case of FAO, the Director-
General accepted the reciprocal right as a direct part of his terms of appointment.
289 The relevant provision of the FAO constitution (Art. XVII) was more restrictively worded
at that time than it is in its present form.
 settlement of internal disputes 341

proceedings or for binding advisory opinions is immaterial, if the procedure

adopted by the court in both cases is a judicial one, affording the regular
judicial guarantees to both parties to the dispute. This was precisely the
point of discussion in the advisory opinion on Judgments of the Administrative
Tribunal of the International Labour Organization upon Complaints Made against the
UNESCO. The majority held that the procedure which the Court was able
to adopt did afford the required judicial guarantees to both parties. And this
must then sufce also from the point of view of the constitutional powers of
the organization.
The organizations listed above therefore had the right to adopt unilateral
regulations referring the disputes in question to the International Court of
Justice for decision by binding advisory opinion, without providing for the
consent, generally or in each case, of the other party to the dispute. Indeed,
it is submitted that in all those cases where the organization has organic or
extended jurisdiction which includes compulsory judicial power, it may ask
the International Court of Justice to render a binding advisory opinion, if
this is able to do so under a procedure which offers the necessary judicial
safeguards, and if the constitution of the organization or the treaty conferring
extended jurisdiction upon it does not provide otherwise.290
However, in disputes which do not fall under the jurisdiction of the orga-
nization, it can ask for a binding advisory opinion only if the other party to
the dispute agrees or if the opinion becomes binding only upon the organi-
zation itself.

7.11 Preliminary questions of another legal system

Disputes which are properly brought before the courts of one jurisdiction, in
accordance with the applicable rules of international competence (procedural
international law), may be governed in some of their aspects by the law of
another jurisdiction, in accordance with the relevant rules of conict of laws.
Whenever the conict rules refer to another legal system, the court before
which the dispute is brought will have to decide, as a preliminary ruling
(question préjudicielle) what is the law of that system on the question concerned.
If this is in dispute between the parties, the questions arise (a) whether the
court is entitled itself to interpret the foreign law concerned and (b) whether

290 And in such cases the court will also be in a position to review the constitutionality
of the organization’s decisions if applicable, cf. “Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization”, Advisory
Opinion of 8 June 1960, (ICJ Reports, 1960, p. 150).
342 chapter seven

it is bound by a relevant judgment of a court of the foreign jurisdiction

concerned (pronounced in a dispute between the same parties on the same
question – res judicata).
These questions must be considered separately with regard to preliminary
questions of the:

1. internal law of an intergovernmental organization arising before a national

court
2. internal law of one organization arising before a court of another organ-
ization
3. national law arising before an IGO court
4. international law arising before an IGO court, and
5. internal law of an intergovernmental organization arising before an inter-
national court.

Questions of the internal law of an organization arising before national courts

Questions of IGO law may easily arise as preliminary issues before national
courts. Thus, the question of who is entitled to act on behalf of the organ-
ization vis-à-vis third parties, e.g. for the purpose of concluding contracts,
must be determined according to the internal administrative law of the
organization, not according to the company law or the administrative law
of the State whose law governs the other aspects of the dispute. Similarly, if
the organization brings a claim in a national court against a former ofcial
for reimbursement of overpayment of salary, the national court may have
to determine, as a preliminary issue, what amount of salary the ofcial was
entitled to, in order to decide whether overpayment has in fact taken place.
This question too must be determined on the basis of the internal law of
the organization.291

(a) Can the national court interpret the organization’s law?

National courts may themselves interpret the internal law of the organiza-
tion, unless prevented by a treaty provision292 or by application by analogy of

291 The UN and UNRWA have brought some actions of this kind, but the available reports
of the judgments (Annual Report of the Secretary-General, 1952–53, p. 149; Annual
Digest of International Law Cases, 1949, Case No. 114) do not specify what law was
applied.
292 Cf. par. IV (h) of the resolution on “Recours judiciaire à instituer contre les décisions
d’organes internationaux”, adopted by the Institut de droit international (Annuarie, Vol. 47
[1957 II] p. 479) and Wengler’s draft articles, Art. 1 (ibid. Vol. 45 [1954 I] p. 269).
 settlement of internal disputes 343

the Act of (foreign) State doctrine if this doctrine is applied in their national
law.293 However, as already pointed out, the Act of State doctrine is not rec-
ognized as a limitation under public international law,294 although it probably
constitutes such a limitation in respect of acts performed in the exercise of
organic jurisdiction.
The constitution of the organization concerned may preclude the national
courts of member States from reviewing the validity of acts of the organiza-
tion, by providing for another exclusive mode of settlement of disputes in this
respect.295 The constitution of the European Community contains a relevant
provision in Article 234,296 which provides:
The Court of Justice shall have jurisdiction to give preliminary rulings con-
cerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community
and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the
Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the question
is necessary to enable it to give judgment, request the Court of Justice to give
a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal
of a Member State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall bring the matter before the Court of
Justice.

293 Cf. Oppenheim’s International Law, London 1992, § 115. See also Hewitt v. Speyer
et al. (250 Fed. 367, 371 [C.C.A. 2 d, 1918], where a United States federal court took the
principle to be incontrovertible in both countries concerned (United States and Ecuador)
that the national courts “will not adjudicate upon the validity of the acts of a foreign
nation performed in its sovereign capacity” (Hackworth: Digest of International Law,
Washington 1940–44, Vol. 2, p. 18). On the limitation of this doctrine, in accordance
with the public policy doctrine, insofar as extraterritorial effects are concerned, see e.g.
Bánská a Hutni Spolecnost, národni podnik v. Hahn et al., decided by a Danish court in
1952 (text in Ross and Foighel: Studiebog i Folkeret, Copenhagen 1954, pp. 270–1).
294 Above, chapter 7.8.
295 Wengler, in a report to the Institut de droit international on “Recours judiciaire à instituer
contre les décisions d’organes internationaux”, may not intend to go any further when
he States that, unless a special procedure for judicial review of decisions by international
organs has been established the validity of such decisions may be contested at any time
and before any institution (instance) in accordance with the general rules of international
law (Annuaire de l’Institut de droit international, Vol. 45, 1954 I, p. 266). He appears,
however, to have been thinking only of disputes involving States and thus of the right
of interference of international rather than national courts (ibid. pp. 266 and 283).
296 See also EURATOM Art. 150.
344 chapter seven

The scope of this provision has been claried by the Court in a great number
of decisions.297 In particular, the Court has held that if it has already rendered
a preliminary ruling on a substantially identical question in an analogous
case, national courts are under no obligation to submit the question anew if
it arises in another case, but they may do so if they nd it desirable.298

(b) Is a national court bound by a judgment rendered by an IGO court?

This question has already been considered above. As explained, the answer
depends on the procedural international law of the State to which the court
belongs. This law, which has been framed with a view to judgments by foreign
national courts, should as far as possible be applied by analogy to judgments
pronounced by the internal courts of intergovernmental organizations.299 Judg-
ments rendered by the European Court of Justice and other supranational
courts, however, must be given the effect provided for in the Treaties.

Questions of the internal law of one organization arising before courts of another
organization

(a) Express provisions: UN Joint Staff Pension Fund

The problem of a question of the internal law of one organization arising as
a preliminary issue before a court of another organization, has been raised
with regard to judgments rendered by the UN Administrative Tribunal upon
applications alleging non-observance of the regulations of the UN Joint Staff
Pension Fund, since that tribunal is competent in disputes relating to the
Pension Fund even in respect of those many specialized agencies which have
another administrative tribunal for other purposes. The UN Joint Staff Pension

297 See, inter alia, Société kledingverkoopbedrijf de Geus en Uitdenbogerd contre (1) Société
de droit allemand Robert Bosch GmbH, et (2) Société Anonyme Maatschappij tot voort-
zetting van de zaken der rma Willem van Rijn (Cour de justice des Communautés
européennes, Recueil de la jurisprudence de la Cour, Vol. 8, p. 89); N.V. Algemeene
Transport- en expeditie onderneming van Gend & Loos contre Administration scale
Néerlandaise (ibid., Vol. 9, p. 1); Da Costa en Schaake N.V. Jacob Meijer N.V. Hoechst-
Holland N.V. contre Administration scale Néerlandaise (ibid., p. 59).
298 See the Da Costa case cited in the preceding note.
299 Wengler, in his draft articles on Recours judiciaire à instituer contre les décicions d’organes
internationaux, proposed, in Art. 3, that “le jugement du tribunal international aura force
de chose jugée envers tous les membres de l’organisation ayant qualité pour prendre part
à la procédure, envers l’organisation elle-même et l’organe qui a rendu la décision atta-
quée” (Annuaire de l’Institut de droit international, Vol. 45, 1954 I, p. 269). It is not clear
whether this proposal, which was not included in the resolution adopted by the Institut,
also related to decisions of internal courts of the organization, and whether the decisions
were to be binding upon national courts and not merely upon international courts.
 settlement of internal disputes 345

Board, at its fourth session in April 1953, recorded its understanding that full
faith, credit and respect should be given to the proceedings, decisions and
jurisprudence of the Administrative Tribunal, if any, of the agency concerned
relating to the staff regulations of that agency as well as to the established
procedures for the interpretation of such staff regulations.300
The UN Administrative Tribunal has thus to recognize as binding (res judi-
cata) any relevant judgment of the administrative tribunal of the specialized
agency concerned. The latter part of the “understanding” appears to imply,
furthermore, that the UN Administrative Tribunal shall not itself decide pre-
liminary questions of the internal law of employment of a specialized agency
if the agency has established an administrative tribunal or other procedures
for the binding settlement of such questions. If this is the correct interpreta-
tion, the “understanding” apparently implies that the preliminary question
shall be referred to the appropriate organs of the agency concerned for bind-
ing decision, before the UN Administrative Tribunal decides the main issue.
This would then apply for example if there is disagreement as to whether
the contract of the ofcial with his organization is of such duration as would
make him eligible, under Article II or II bis of the Regulations of the Pension
Fund, for full or associate participation in the Fund. The “understanding” has
been quoted in the preamble of the agreements which have been concluded
between the UN and each specialized agency concerned and which confer
jurisdiction upon the UN Administrative Tribunal in disputes arising out of
the regulations of the Pension Fund.301 This reference probably implies that
the “understanding” shall be binding upon the Tribunal in the exercise of
this jurisdiction, if this does not follow already from the recording of the
understanding by the UN Joint Staff Pension Board.

(b) When no provision has been made

The question arose in 1957 before the ILO Administrative Tribunal adjudicat-
ing in a dispute relating to a dismissed ofcial of the International Telecom-
munication Union. The plaintiff based her case, inter alia, upon an allegation
that the attitude taken by the organization’s Medical Adviser towards her
was one of hostility, traceable to an earlier dispute having arisen out of a
diagnosis established by him in connection with a sickness contacted by her
when she was employed by the United Nations in Libya, and that he had
formulated reservations at the time of her engagement by the International
Telecommunication Union, on the basis of medical records established when

300 UN, OR GA, IX, Suppl. No. 8, p. 2; text also in UNTS Vol. 394, pp. 335–6.
301 See for example UNTS, Vol. 394, pp. 335–6.
346 chapter seven

she was employed by the United Nations. The organization replied that
the earlier dispute, submitted to the Administrative Tribunal of the United
Nations, was res judicata and might not therefore be brought before the ILO
Tribunal. The Tribunal stated:
Considering that the facts previous to the engagement of the complainant by
the defendant organization have already been the subject of a decision by the
United Nations Administrative Tribunal and may therefore not be considered,
in keeping with the principle of res judicata pro veritate habetur ;302 [. . .]
Prejudicial issues of the law of one organization may arise before the courts
of another organization also in cases where a special relationship has been
established between the two organizations, by agreement between them, by
one organization becoming a member of the other,303 or by one organization
acceding to conventions concluded under the auspices of the other.304 If in
such cases the relevant documents contain no other indication, it is submit-
ted that IGO courts, like national courts, are under no general obligation of
international law to refrain from considering, as preliminary issues, questions
of the internal law of another intergovernmental organization.
IGO courts, like national courts, are under no general obligation of
international law to recognize as binding judgments of internal courts of
other organizations,305 unless this has been specically provided or unless the
dispute concerns matters which are under the exclusive organic jurisdiction
of the other organization. Nevertheless, even in other cases the court should
not inquire onto the merits of a case which has already been decided by a
competent court of another organization. It ought, as a matter of its own
internal law, to recognize the judgment of the other court as binding.

302 ILO Administrative Tribunal, Judgment No. 27, In re Mauch, 13 July 1957, cf. Suzanne
Bastid in Recueil des Cours, Vol. 92 (1957 II), p. 598.
303 Nordisk Tidsskrift, 1964, pp. 25–26, cf. pp. 64–66; see for example the agreement of 29
January 1963 for the Establishment in Cairo of a Middle Eastern Regional Radioisotope
Centre for the Arab Countries, under which ofcials of the International Atomic Energy
Agency would work at the Centre, which is a separate intergovernmental organization.
304 See for example the agreement op. cit., p. 65.
305 Suzanne Bastid, loc. cit. above note 302, States broadly: “Les décisions des tribunaux
administratifs internationaux ont l’autorité de la chose jugée en ce sens que les points
tranchés ne peuvent être remis en question devant une autre instance”. It is submitted
that if this statement is intended to express a rule of international law, it applies only to
internal, organic disputes (between the organization and its ofcials, not to judgments
rendered pursuant to those provisions, which confer upon them jurisdiction in external
disputes.
 settlement of internal disputes 347

Questions of national law arising before courts of the organization

The problem of a question of national law arising as a preliminary issue

before an IGO court is not likely to arise. Nevertheless, the question has
been raised by certain German writers with regard to the former European
Coal and Steel Community. The majority of those writers appeared to have
taken the view that the Court was free to decide any preliminary questions
of national law, and that it was not bound by any relevant judgment of a
national court.306 Jerusalem took the contrary view, that the Court of the Euro-
pean Coal and Steel Community could not decide any legal questions within
the competence of a member State, even if this arises as a preliminary issue
in a dispute within the competence of the Court.307
It is submitted that there is no general rule of international law which
would compel the European Court of Justice or other IGO courts to take
the latter position. Nevertheless, as a matter of its own internal law, it would
be reasonable for an IGO court to recognize the binding force of relevant
judgments of national courts. This would, incidentally, be necessary in order
to secure recognition of its judgments by courts of such non-member States as
recognize foreign judgments as binding only on condition of reciprocity.308 The
court might even do well to refer certain or all preliminary issues of national
law in dispute between the parties to the national courts concerned.
However, these are questions which must be solved in the light of the spe-
cial nature, purposes and powers of the organization concerned. Any policy
adopted by or in respect of the European Court of Justice therefore is not
necessarily suitable for other organizations. Indeed, the majority view of the
writers cited appears to be based upon a concept of the European Community
as an entity on the lines of a federal State, in which federal courts are con-
sidered superior to the courts of the several States, while Jerusalem’s dissenting
view is based upon the view that the Community is a common organization
of the member States and on the same hierarchical level as these. As a matter
of fact, the European Community is a combination of both, since in certain
respects the organization exercises supranational powers within the member
States, while in other respects it is merely an intergovernmental organizations
of the consultative or operational type, acting within its own legal sphere which

306 Ophüls in Neue Juristische Wochenschrift, Vol. 4 (1951), p. 696 in ne; Schlochauer in
Archiv des Völkerrechts, Vol. 3 (1951/52) p. 396, citing also Ule in Deutsche Verwal-
tungsblatt, Vol. 67 (1952), p. 71.
307 Jerusalem: Das Recht der Montanunion, Berlin 1954, p. 61, cf. p. 60 in ne.
308 In member States the judgments of the Court of Justice of the European Communities
are binding by virtue of Art. 244 of the EC constitution and Art. 159 of the EURATOM
constitution.
348 chapter seven

is distinct from that of the member States. However, questions of the national
law of the member States are more likely to arise before the European Court
of Justice in the former elds.

Questions of international law arising before internal courts

Internal courts of intergovernmental organizations must – like national

courts – decide any preliminary questions of international law which may
arise out of an internal dispute duly submitted to them. They will, however,
obviously consider themselves bound by a relevant judgment rendered by an
international court in a dispute between the same parties, unless this conicts
with the constitution of the organization to which the internal court belongs.
Article 37 (2) of the ILO constitution expressly provides that an (internal)
tribunal for the determination of disputes relating to the interpretation of an
International Labour Convention shall be bound by “any applicable judg-
ment or advisory opinion of the International Court of Justice”. However,
the International Labour Conventions do not fall within the internal law
proper of the organization.

Questions of internal law arising before international courts

For the sake of completeness, it may also be mentioned that international

courts (whose competence in internal disputes of intergovernmental organiza-
tions was discussed above, in chapter 7.9) must decide any preliminary ques-
tions arising out of a dispute duly submitted to them, even if these fall under
national309 or internal law.310 But, unless the terms of reference of the Court

309 Cf. above, chapter 7.9.4, on the seemingly divergent statements of the Permanent Court
of International Justice in the cases concerning the Serbian and Brazilian Loans in France
and Certain German Interests in Upper Silesia. Even in the former case, where the parties
had agreed to submit to the Court a dispute of national law, the Court emphasized that
it must apply the national law as it is applied in the State concerned. Thus, it stated, in
the Serbian case: “Il ne serait pas conforme à la tâche pour laquelle elle [the Court] a
été établie, et il ne correspondrait pas non plus aux principes gouvernant sa composition,
qu’elle dût se livrer elle-même à une interprétation personnelle d’un droit national, sans
tenir compte de la jurisprudence, en courant ainsi le risque de se mettre en contradiction
avec l’interprétation que la plus haute jurisdiction nationale aurait sanctionnée et qui,
dans ses résultats, lui paraîtrait raisonnable” (PCIJ, Ser. A, Nos. 20/21, p. 46). And in the
Brazilian case it stated: “La Cour étant arrivée à la conclusion qu’il y a lieu d’appliquer
le droit interne d’un pays dèterminé, il ne semble guère douteux qu’elle doit s’efforcer
de l’appliquer comme on l’appliquerait dans ledit pays. Ce ne serait pas appliquer un
droit interne que de l’appliquer d’une manière différente de celle dont il serait appliqué
dans le pays où il est en vigueur” (ibid., p. 124).
310 Wengler, discussing the special problem of the validity of decisions by intergovernmental
 settlement of internal disputes 349

provide otherwise, it must accept as binding a relevant decision rendered in a

dispute between the same parties by a competent national or internal court,
if this does not conict with international law.311 Indeed, it cannot apply any
rule of national or internal law which conicts with international law unless
its terms of reference so permit.312

Binding force of judgments rendered in organic disputes

As already suggested above, even courts of States which do not normally

recognize the binding force of foreign judgments, probably must recognize
the binding force of judgments rendered in disputes arising out of such
matters as fall under the exclusive organic jurisdiction of the foreign State
concerned, including disputes between the State and its ofcials arising out
of the relationship of employment. Whatever attitude courts adopt in this
respect vis-à-vis organic disputes of foreign States, it is submitted that they
must adopt the same attitude towards judgments of courts of intergovern-
mental organizations in disputes arising out of such matter as fall under the
exclusive organic jurisdiction of the organization, unless provision has been
made to the contrary. On the assumption made above, this means that the
judgments pronounced by the numerically most important IGO courts, the
administrative tribunals, must be recognized as binding by the courts of all
States and of all other intergovernmental organizations, in so far as these
judgments concern disputes between the organization and its ofcials arising
out of the relationship of employment.
Inversely, IGO courts must, on similar conditions, recognize as binding (res
judicata) judgments pronounced by national courts in disputes falling under the
exclusive organic jurisdiction of the State concerned, or by courts of another
organization in disputes falling under its organic jurisdiction. An example of
the latter is the judgment of the ILO Administrative Tribunal reported above
(7.11.2), although this judgment could also be seen merely as a conrmation
of the general submission made above that internal courts should, as a matter
of their own internal law, recognize as binding judgments rendered by courts of
other organizations (and States).

organizations, points out two limitations upon the right of judicial recourse against such
decisions (Annuaire de l’Institut de droit international, Vol. 44 1952 I, pp. 267–70).
311 Cf. Art. 38 of the Statute of the International Court of Justice, which provides: “The
Court, whose function is to decide in accordance with international law such disputes
as are submitted to it . . .”.
312 On the position of the International Court of Justice and other courts which are organs
of an intergovernmental organization, vis-à-vis the constitution of that organization, see
above.
350 chapter seven

Similarly it is submitted that the courts of one jurisdiction, whether this

be national, internal or international, cannot, even as a preliminary issue,
try the validity of an act of a foreign State or intergovernmental organiza-
tion, if the act is performed in the exercise of organic jurisdiction. To this
extent the Act of State Doctrine is submitted to be a valid principle of public
international law

7.12 Settlement of disputes, conclusions

The need for judicial settlement of internal disputes of intergovernmental

organizations has so far arisen primarily in three respects: In the rst place in
disputes between the organization and its ofcials arising out of the relationship
of employment. Many hundreds, or thousands, judgments have been rendered
in such disputes by administrative tribunals and equivalent judicial bodies set
up for this purpose by a number of organizations. In the second place the
practical need has arisen within the supranational European Communities in
connection with the direct legislative and administrative powers conferred upon
these organizations vis-à-vis private undertakings in the member States. The
Court of Justice of the European Communities has rendered a great number
of judgments in cases relating to these activities, in addition to those relating
to ofcials. In the third place, the practical need has arisen within the United
Nations and the International Labour Organization in connection with various
types of internal disputes, most of which have arisen between the organization
and certain of its member States, or between member States inter se. These
disputes, most of which do not relate to genuine legislative or administrative
powers conferred upon the organization, have, however, not been solved by
genuine judicial decisions, but by advisory opinions of the Permanent Court
of International Justice or the International Court of Justice. Although not
legally binding, the organization has complied with these opinions, but in
several cases the other parties to the dispute have not.313
On the basis of the concrete examination in the preceding chapters of
the judicial powers of the organization, it is submitted that intergovernmen-
tal organizations have a general inherent power to establish courts of their
own to adjudicate upon internal disputes and even upon external disputes
involving the organization or its ofcials or organs. Constitutional provisions

313 See, for example, the advisory opinions on the International Status of South-West Africa
(ICJ Reports 1950, p. 128) and Certain Expenses of the United Nations (ICJ Reports,
1962, p. 149).
 settlement of internal disputes 351

are not required, nor the ction of “implied powers” invoked by nearly all
theoretical writers. The organization can confer upon such courts compul-
sory jurisdiction vis-à-vis itself and its organs, as well as vis-à-vis its ofcials
in those respects where these act in that capacity – or in a personal capacity
if they, because of their status with the organization, enjoy immunity even
in respect of private acts. However, the organization cannot confer upon its
courts compulsory jurisdiction over member States or external parties unless
it has been given this power by the States concerned. Otherwise the courts
can assume jurisdiction over such external parties only if the latter bring an
action before the court or accept an action brought against them. Even this
jurisdiction is in fact exclusive, in so far as the organization and its ofcials
enjoy immunity from suit in national courts.
Intergovernmental organizations which have no territorial jurisdiction do
not have the means of genuine enforcement of the judgments rendered by
their courts, except that in most cases which have so far arisen in practice,
such enforcement was not necessary because the judgment called for action
only by the organization itself or because the judgments were enforceable
by the authorities of the member States pursuant to express constitutional
provisions to that effect. In the absence of such provisions, States have no
obligation under international law to enforce judgments rendered by the courts
of the organization, any more than they have such obligation in respect of
judgements rendered by courts of foreign States. However, it is submitted that
judgments rendered by courts of intergovernmental organizations in internal
disputes, and probably also judgments rendered in external disputes involving
the organization or its ofcials as such (or relating to acts in respect of which
they enjoy immunity) must be considered by national courts as judgments
of courts of competent jurisdiction. Accordingly, in the absence of special
provisions on the international or national level, national courts must give
the same effect to judgments of courts of intergovernmental organizations
as they give to judgments rendered by courts of foreign States in respect of
which no special provisions have been made by treaty or statute. This means
that the courts of many States will recognize judgments rendered by courts
of intergovernmental organizations as binding, even if they do not consider
them enforceable without a new judgment of a court in the State where
enforcement is sought, or that they will refrain from enquiring into the merits
of a case decided by the court of an intergovernmental organization.
Intergovernmental organizations, like States, have exclusive jurisdiction
over their organs and ofcials as such, both with regard to legislative and
administrative, as well as judicial powers. This means that no external court
can, without the consent of the organization, assume jurisdiction in disputes
between the organs, the ofcials and the organization acting as such.
352 chapter seven

In disputes falling outside this organic jurisdiction, because they involve

other parties (or the organization and its ofcials acting as subjects of national
law), external courts are not prevented under international law from assuming
jurisdiction even in respect of internal matters of the organization, if they are
competent under their own law and this law is not excessively liberal. This is
true of national courts, of courts of other intergovernmental organizations
and of international courts. Thus, if no contrary provision has been made,
national courts can assume jurisdiction in disputes arising out of the extended
jurisdiction conferred upon certain organizations, such as disputes arising out
of the extended jurisdiction conferred upon some organizations with regard
to the navigation on rivers under the partial territorial jurisdiction of inter-
national river commissions, or relating to private enterprises under the partial
jurisdiction of the European Communities, even if the dispute arises out of
law enacted by the organization (its internal law largo sensu).
A distinction must also be made between international courts and internal
courts of the organization. These are in several respects governed by differ-
ent rules.
For the settlement of disputes between the organization and its ofcials,
internal courts of the organization or of other organizations offer the best
means. Only in respect of appeals from the decisions of these courts would it
seem necessary to resort to existing international courts, if the organization,
alone or together with other organizations, does not wish to establish its own
appeals court or procedures. Appeals to international courts must, however, be
made in the form of requests for binding or non-binding advisory opinions,
as long as contentious proceedings before such courts are open only to States,
and even after they may have been opened also to intergovernmental orga-
nizations. Indeed, regular international courts, dealing with disputes between
subjects of international law, are not very appropriate for the settlement of
disputes involving ofcials. And a general reference by the organization of
such disputes to national courts would also be inappropriate.
Disputes between organs of an organization can usually be settled by
administrative decision of the plenary organ of the organization or of another
superior organ. Only in cases where, as in the United Nations and the Inter-
national Atomic Energy Agency, there is no organ having supreme powers in
all respects, may the need arise for a decision by an external body. In such
cases the proper procedure will be an advisory opinion by the International
Court of Justice. Two organs of the same organization, i.e. of the same subject
of international law, cannot be opposing parties to contentious proceedings
before a regular international court. If a legally binding decision is required,
it must be obtained by means of a binding advisory opinion. However, for
practical purposes a regular advisory opinion will usually sufce.
 settlement of internal disputes 353

Disputes between the organization and its member States, or between

member States inter se, can be settled either by courts established by the
organization or by international courts. However, as long as the Statute of
the International Court of Justice precludes intergovernmental organizations
from being parties to contentious cases before the Court, disputes between
the organization and its member States can only be submitted to that Court
by way of a request from the organization for an advisory opinion. If the
need is felt for a binding judicial decision, this can only be obtained by the
parties agreeing in advance to regard the “advisory” opinion as binding or
by them agreeing to use another court.
Disputes between the organization and private parties subject to its extended
(territorial, personal or comprehensive) jurisdiction can be settled either by
internal courts of the organization or by national courts.
The need for judicial settlement of internal disputes other than disputes
involving ofcials is pressing only in respect of those organizations which
have signicant legal or political powers. Only in such cases will the mem-
ber States and/or the private parties subject to the extended jurisdiction of
the organization feel the need for judicial protection against abuse of the
organization’s powers.
By virtue of their inherent powers, intergovernmental organizations can
establish courts to afford judicial protection to member States, ofcials and
private parties against abuse by the organization or its ofcials of their powers,
even if there is no provision in the constitution of the organization autho-
rizing it, expressly or bys implication, to establish such courts or to provide
modes of settlement of such disputes, and even if no other treaty so provides.
Need to include such provisions in constitutions or other treaties arises only
if the States concerned wish to have a right to judicial recourse of which
they cannot be deprived.
 PART THREE

PUBLIC INTERNATIONAL LAW

 CHAPTER EIGHT

PUBLIC INTERNATIONAL LAW; INTRODUCTION

In Part Two we have seen that all intergovernmental organizations exercise

legislative, administrative and judicial jurisdiction over their organs and the
members thereof as such, and that this jurisdiction is inherent in all IGOs
which do not have contrary provisions (e.g. organizations of the type dépendant),
although some writers still presume that the jurisdiction depends upon the con-
stitution of each organization concerned and then, seeing that these normally
do not contain relevant provisions, ction it into the constitutions as powers
“implied” in each specic constitution; however, they fail for good reasons to
give examples of organizations which would lack this “implied” power and
in what respects1 – indeed, such examples would be hard to nd.
This conict between doctrine and practice exists also with regard to the
capacity to act externally as a subject of law on an equal basis. We shall here
concentrate upon the question of international personality, i.e. the capacity to
act as a subject of public international law – in relations with States, other
IGOs and other self-governing communities.

8.1 Constitutional provisions only for legal personality

of national law

Many and most of the larger IGOs have express provisions in their consti-
tutions and/or conventions on privileges and immunities and headquarters
agreements for “legal personality”, “legal capacity” or “juridical capacity”.
By this is meant legal personality in national law. This is probably true also

1 See above chapter 5 with regard to internal powers. Van der Molen: Subjecten van Volken-
recht, the Hague 1949, spoke of legal personality in international law with regard to the
UN (“De rechtpersoonlijkheid van de organisatie der V.N. lijdt naar internationaal recht
dan ook geen twijfel”), but of limited (“beperkte”) or certain (“zekere”) legal capacities
(“rechtbegoegdheden”) with regard to the specialized agencies and the international river
commissions.
358 chapter eight

of Article VII (2) of the constitution of the International Bank for Recon-
struction and Development of 27 December 1945 which provides for “full
juridical personality”.
Moreover, the provisions are usually conned to “such legal capacity as
may be necessary for the exercise of its functions and the fulllment of its
purposes” e.g. Article 104 of the UN Charter. It is submitted that any such
limitations mean nothing in practice, unless corresponding limitations are
laid down in the applicable national law. It is further submitted that legal
personality is inherent (and general) also in IGOs which have no provisions
on the matter.
IGOs do not usually have an express provision in their constitutions or
otherwise for international personality or capacity.2 An example is the provi-
sion in Article 176 of the United Nations Convention on the Law of the Sea
of 10 December 1982 that the (International Sea-Bed) Authority “shall have
international legal personality and such legal capacity as may be necessary
for the fulllment of its purposes”. Since express provisions for international
personality are found only in very few of the many existing IGOs, this lacuna
has been lled in by practice on the one hand and legal writers and the
professors of the International Law Commission on the other, the one not
necessarily synchronized with the other.
Indeed, the vast majority of legal writers appear to start out from the
same premise in external as in internal relations: An organization can only
do what is authorized in its particular constitution (“delegated powers”).
However, with a few really strict exceptions (Kelsen, Hackworth), they fully
realize that this is not so in practice, especially not in external relations where
organizations merely act on a voluntary basis as equal partners. But instead
of turning around their point of departure, as did the International Court
of Justice already in 1962, the majority of writers still appear to assume that
the “powers” are “implied” in the constitution of the organization concerned
and varies from one organization to the other.3 In order to avoid a conict

2 There are, however, a few examples of modern constitutions of regional organizations with
specic provisions to this effect; see e.g. Mercosur; Art. 34 of the Treaty of Asunción as
amended by the Protocol of Ouro Preto of 17 December 1994, Comunidad Andina de
Naciones; Art. 48 of the Cartagena Agreement as amended by the Trujillo Protocol of
10 March 1996 – see also Art. 5 (1) of the special-technical Agreement on the Establish-
ment of the ITER International Energy Organization for the Joint Implementation of
the ITER Project, which reads: “The ITER Organization shall have international legal
personality, including the capacity to conclude agreements with States and/or interna-
tional organizations” (as reproduced in the Ofcial Journal of the European Union L 358,
16 December 2006, pp. 62–86 at p. 64).
3 See e.g. M.K. Yasseen in R.J. Dupuy (ed.): Manual sur les organisations internationals,
the Hague 1998, pp. 43–55, citing a number of writers, mostly from Roman law and the
former communist countries, but citing also the contrary view of the present writer.
 public international law; introduction 359

with practice, they then have to apply this concept of “implied powers” in
such a wide and undened manner that the question of a borderline is left
up in the air, as the entire discussion has to concentrate upon escaping the
false point of departure.

8.2 Legal theory contra practice: delegated and “implied”

contra inherent powers

The actors in national law are individuals and organizations of individuals

(associations and companies). Similarly, the actors in public international law
are States and organizations of States. There is usually no general provision in
the constitutions of IGOs for their capacity to act as subjects of international
law (only for legal personality under national law) although many constitu-
tions contain some more accidental and limited provisions which authorize
or presume that the organization performs certain specic international acts
(e.g. Article 43 of the UN Charter).
Legal writings4 have been cursed by the surprisingly general assumption
that an IGO can only do what is provided in the constitution, by the powers
expressed or “implied” therein. The doctrine of “implied powers”, as described
above in chapter 2, offers little guidance.5 It has been stated that international
organizations, in contradistinction to States, “do not come into existence on
the basis of general international law when certain facts are present, but
through an international convention which contains their constitution” and
they “do not possess the full international personality of the State, but only
such rights and duties as follow from their constitution”.6 The latter proposition

4 Notably in Roman law and the former communist countries, but even among Anglo-Saxon
writers who, like Scandinavians, are well familiar with legal persons of common law under
their national legal systems.
5 As noted by Schermers and Blokker, the most fascinating aspect of the doctrine of implied
powers is its exibility; International Institutional Law, 4th ed., Leiden 2003, at p. 183.
6 Bindschedler: “Die Anerkennung im Völkerrecht”, Archiv des Völkerrechts, IX (1961–62),
pp. 387–8. In the same sense, for example, Schwarzenberger: International Law, I, 3rd ed.,
London 1957, pp. 137–8; Seidl-Hohenveldern in Österreichische Zeitschrift für öffentliches
Recht, XI (1961), pp. 497–500, and the numerous authors cited by him, note 8.
McMahon, writing in BYIL XXXVII (1961), p. 340, considered the International Court
of Justice’s doctrine of 1949 and 1954 on ‘necessary intendment’ – described by the pres-
ent writer, ibid., pp. 455–7, as too restrictive – as “judicial legislation”; he seems to prefer
Hackworth’s (minority) doctrine of delegated powers (ibid., pp. 447–8). However, this strict
view may derive from a failure to distinguish between acts which do and acts which do
not impose obligations upon member States or third parties, cf. ibid., pp. 341–2. This may
also be true of certain other writers on the law of the European Communites. Thus some
of the restrictive views advanced by Pescatore in his study on “Les relations extérieures
des Communautés Européennes” in Recueil des Cours, 1961 II, pp. 1–241, at pp. 96 et
360 chapter eight

was expressly endorsed by the International Law Commission and could even
nd some support in a restrictive interpretation of certain statements of the
International Court of Justice in the reasoning of its early advisory opinion
on Reparation for Injuries.7

seq., relate to acts which are presumed to commit the member States. But he takes a strict
view also in respect of acts which clearly do not commit them or impose obligations upon
them, for example when he maintains, p. 197, that the only way in which the European
Communities can establish permanent (‘diplomatic’) missions abroad without amending
their constitutions is by utilizing the general power and the special procedure envisaged
in the general provisions in then Art. 235 (now Art. 308) of the European [Economic]
Community constitution and Art. 203 of the EURATOM constitution. The most restrictive
view is taken by Kelsen: The Law of the United Nations, p. 330, who maintained that
a community whose constitution does not expressly provide for international personality
“has only those special capacities as conferred upon it by particular provisions”, and that
“the United Nations has only the legal power to enter into those international agreements
which it is authorized by special provisions of the Charter to conclude” (cf. the contrary
practice referred to below in chapter 8.3.
Most other writers now admit that express provisions are not necessary, but they still
attempt to base the exercise of international powers upon the constitution, by way of
extensive interpretations. Hahn, in Harward Law Review LXXI (1958), pp. 1045–6,
correctly points out that constitutional provisions on international personality are not
necessary and substitutes the criterion that the substantive provisions of the constitution
call for a display of international functions. The views most detached from the consti-
tution appear to be taken by Reuter: La Communauté européenne du charbon et de
l’acier, Paris 1953, pp. 116–8 (but see pp. 119–22) and International Institutions (1955)
pp. 228–32 (but see Reuter: Institutions internationales, Paris 1956, pp. 309–10) and by
Guggenheim: Lehrbuch des Völkerrrechts, I, Basel 1948, p. 221. Guggenheim correctly
stated that “der Unterschied zwischen Staat unter völkerrechtlicher Staatenverbindung
ist daher kein grundsätzlicher, sondern nur ein gradueller”. He therefore recognizes the
international personality of “Staatenverbindungen” (a wider term than intergovernmental
organizations), but States, on the other hand, that “ihre Zuständigkeit gilt ausschließlich
für das ihr ausdrücklich im Vertrag überlassene Gebiet”.
7 The Court stated, inter alia, that its conclusion that the UN is an international person
is not the same thing as saying “that its legal personality and rights and duties are the
same as those of a State” (ICJ Reports, 1949, p. 179). It went on to say that “whereas a
State possesses the totality of international rights and duties recognized by international
law, the rights and duties of an entity such as the Organizations must depend upon its
purposes and functions as specied or implied in its constituent documents and developed
in practice” (p. 180). However, except in so far as the purposes are concerned, the Court
did not by these or other statements tie itself down to the constitution, inasmuch as it
attached major importance to what was ‘essential’ for the carrying out of the purposes.
Indeed, the Court may have had in mind the factual limitations upon the possibilities
to act which follow from the fact that the Organization is not a State with territory and
nationals (see BYIL, 1961, pp. 452–3 and 457). Moreover, the statements quoted do not
constitute conclusions of the Court, as does its holding that the UN may present interna-
tional claims to non-member States, nor do they form a basis of the Court’s conclusions.
They thus constitute mere dicta. Finally, it is natural for a Court, especially when stating
an apparently revolutionary principle in a new eld of law, to act ex abundante cautela, by
not going beyond what is necessary to arrive at the conclusion called for in the question
to the Court. Indeed, the Court was less cautious in a previous relevant advisory opinion,
cf. the advisory opinion on the Jurisdiction of the European Commission of the Danube,
PCIJ, Ser. B No. 14, 1927.
 public international law; introduction 361

With few exceptions, none of the writers concerned is known to have dem-
onstrated how they would be able to deduce from the constitutions or from
the intentions of their drafters concrete suggestions as to which organizations
would lack legal capacity to perform which acts. And those who exceptionally
have done so have arrived at restrictive results which are manifestly contra-
dicted by practice.
Thus one authority,8 while admitting the international personality of the
League of Nations and the UN, denied that of the Organization of American
States, the League of Arab States and the Council of Europe apparently basing
himself partly upon a distinction as to whether the organization has the
power to make decisions binding upon its member States and partly upon a
distinction as to whether its constitution contains provisions on international
personality or on international acts, rights and duties of the organization as
such. However, e.g. the Organization of American States and the Council
of Europe have, for example, concluded agreements with their host States,9
with10 or without authorization in the respective constitutions.
Another outstanding authority11 maintains that the International Institute
of Agriculture was merely a subject of private law, not of international
law. This disregards inter alia the judgment in Proli v. International Institute of
Agriculture, the Italian law on privileges and immunities of the Institute of 20
June 1930, and the agreement concluded by the Institute with the League of
Nations on 25 October 1925.12
A concrete study13 indicates that it would be an impossible task to deduce
from the differences in the various constitutions and travaux préparatoires coherent
suggestions as to which organizations would lack the legal capacity to perform
which acts14 and that any suggestions which might be arrived at on this basis
without resorting to ctions, would not conform with past or present practice
and would imply unacceptable barriers to future practice.

8 Balladore Pallieri: Diritto internazionale publico, 7th ed., Milano 1956, paras. 52–56 (pp.
169–88).
9 On 22 July 1952 and 2 September 1949, respectively.
10 Art. 40 (b) of the Statute of the Council of Europe.
11 Verdross: Völkerrecht, 4th ed., Vienna 1959, p. 141, citing Fusinato, Riv. 8 (1914). This
reected, in fact, the view of the Italian host government prior to 1930.
12 The two latter documents, and other relevant practice, may be found in The Legal and
Moral Position and the Diplomatic Prerogatives of the International Institute of Agricul-
ture, published in French and English by the Institute in Rome in 1943.
13 See BYIL, 1961, pp. 448–53. See also the examples listed by Zemanek: Das Vertragsrecht
der internationalen Organisationen, Vienna 1957, p. 26, and by Seidl-Hohenveldern in
Archiv des Völkerrechts, IV (1953–54), pp. 35–37.
14 The rst International Law Commission Rapporteur on the Law of Treaties, Brierly,
admitted that it was (necessary and) difcult to determine which international organization
could be regarded as having the capacity to make treaties (Yearbook of the International
Law Commission, 1950, I, p. 80).
362 chapter eight

The general point of departure in legal theory appears to have been that
only certain IGOs have international personality in certain respects. The
general opinion not merely denied that all IGOs have international personal-
ity, but also that those organizations which have such personality possess all
international capacities. However, legal writers rarely, if ever, make concrete
suggestions as to which capacities are lacking. In comments to the advisory
opinion in Reparation for injuries it was particularly stressed that not all interna-
tional organizations could exercise functional protection of their ofcials.15 It
would be a most peculiar situation if the States of which ofcials happen to
be nationals were left to protect them in their capacity as ofcials of an IGO
with distinct international personality. In practice, all IGOs invoke or waive
(as the case may be) privileges and immunities on behalf of their ofcials, and
they, or the host State, could hardly accept a transfer of these functions to
the State of which the ofcials are nationals. This is especially evident if the
privileges and immunities are based upon a headquarters or host agreement
to which only the organization, not its several member States, are parties. But
it in fact applies also if the privileges and immunities are claimed on the basis
of a constitutional provision or even of a general convention on privileges
and immunities concluded between the member States. A different matter is
that, even in the case of the UN, the lines may get crossed if a practical case
calls for both personal (diplomatic) and functional protection; this problem
was discussed in the advisory opinion on Reparation for injuries16 and has arisen
in practice for the UN.17
The examples referred to above are not isolated cases. It is a general
fact that IGOs in practice perform not only sovereign acts ( jurisdiction as
described in Part Two), but also international acts, even when these have not
been authorized in their constitutions. Indeed, this is the rule and not the
exception. Examples will be given in the following.

8.3 Do the international capacities depend upon the constitution

and the intentions of its framers? Scope of the international
personality

The International Court of Justice, in its advisory opinion on Certain Expenses

of the United Nations, assumed that IGOs as well as States may be bound by

15 See e.g. in OR GA, IV, Sixth Committee, Summary Records, pp. 273–74.
16 ICJ Reports, 1949, pp. 185–6.
17 See the general discussion and the practical cases reported in BYIL, 1961, pp. 424–6.
 public international law; introduction 363

ultra vires acts, although it did so in a context which gave the impression that
the Court might be disposed to deny the external effect only of procedural
provisions in the constitution, not of those dening the purposes of the orga-
nization.18 However, the Court was not called upon to pronounce itself upon
the latter question, since the expenses obviously had been incurred within the
scope of the purposes specied in the Charter.
Indeed, the principle that third parties cannot derive rights and duties from
a treaty to which they are not parties places IGO constitutions, in respect of
non-member States, in principle on the same level as constitutions of States
insofar as the question of external validity is concerned. There is thus no prima
facie reason to attribute greater external validity to constitutional restrictions
in the case of IGOs than in the case of States. At least some of the major
reasons which have prompted many writers to consider treaties binding upon
States even if they have been concluded in violation of their constitutional
provisions apply with equal or even greater force to treaties concluded with
non-member States by IGOs in violation of their constitutional provisions.
It may be even more difcult to deduce from the constitution of an IGO
unequivocal rules dening the organs competent to approve treaties and sub-
stantive limitations upon their powers,19 since most such constitutions contain
only incidental provisions on the conclusion of treaties, or none at all. And
this increases the opportunities to abuse any right to rely upon the constitution
of the organization to effect a unilateral denunciation of the treaty.20
There is one important difference between IGOs and States inasmuch as
the constitutions of the former dene and thereby limit the purposes of the
Organization.21 As already pointed out, this gives member States a right, if

18 ICJ Reports, 1962, p. 168. The Court declared in its opinion that the expenditures
authorized in certain General Assembly resolutions enumerated in the request for opinion,
relating to the United Nations operations in the Congo and in the Middle East undertaken
in pursuance of Security Council and General Assembly resolutions were “expenses of
the Organization” within the meaning of Article 17 (2) of the Charter of the United
Nations.
19 As for the United Nations, this is pointed out by Kasme, La capacité de l’Organisation
des Nations Unies de conclure des traits, Paris 1960, pp. 67 and 99.
20 Cf. Blix, Treaty-Making Power, London and Uppsala 1960, p. 36. The equal legal position
of States and IGOs has been conrmed by the fact that Art. 46 of the 1986 Vienna Con-
vention on the Law of Treaties between States and International Organizations, provides
in substance the same rule for IGOs as does Art. 46 of the 1969 Vienna convention for
States.
21 This is probably what has incited a suggestion that the fact that a treaty by which the
United Nations would undertake to promote an illegal purpose would be void, could be
cited as an example of external effect of constitutional restrictions (or as special restrictions
upon the capacity of intergovernmental organizations). However, the external invalidity
of such a treaty would follow, not from the elaborate provisions in the Charter on the
purposes of the United Nations, but from a general principle of law that agreements
364 chapter eight

they wish to use it, to insist that the organization does not assume functions
connected with other purposes, although they rarely do so. However, it would
not seem reasonable to give non-member States any similar right. Nor would
it appear reasonable to give the organization a right to consider itself not
bound in relation to non-members by its own act on the grounds that it pursued
a purpose which had not been stated in its constitution. Any attempts at a
radical departure from the purposes of the organization would of course be
prevented by the member States themselves if they were opposed. But if they
wanted the change, it would not seem to be of crucial importance in rela-
tion to non-member States whether the members chose to effect the change
with or without formal constitutional amendment, and whether or not they
complied with any provisions prescribing specic procedures for amendments
in the constitution of the organization or for the conclusion and amend-
ment of treaties in their national constitutions, or whether the organization
made its decision unanimously or by a majority vote. Thus it is submitted
that for example the non-member State receiving technical assistance from
the organization in the example cited above could not consider itself as not
bound by an agreement which it might have concluded with the organiza-
tion in that connection, even if it should desire to do so. Nor would it seem
reasonable to give the organization a right to consider itself as not bound by
an international obligation undertaken by it vis-à-vis non-member States in
connection with such technical assistance, whether the transgression of the
constitutional purposes of the organization had occurred inadvertently or
knowingly. This, of course, on the assumption that one does not otherwise
attribute external effect to substantive limitations contained in the constitution
of States or IGOs, e.g. under Article 46 of the Vienna Convention.
As for practice, reference may be made to a number of IGOs that have
engaged in technical assistance to developing countries, although this was not
thought of at the time when their constitutions were drawn up, and although
therefore in some cases it is difcult to nd any passage in the stated purposes
of the organization which could serve as a legal basis for these activities. Nei-
ther the organization, nor the other contracting party (not even if a member
State) is known to have challenged the validity of a treaty, or to have declared
themselves not bound by it, because it did not fall within the scope of the stated
purposes of the organization. And the proper interpretation of such practice

concluded for illegal purposes are not binding. This principle is equally applicable to
States and intergovernmental organizations, and applies irrespective of whether their
constitutions happen to contain provisions prohibiting such acts. Cf. Article 53 of the
Vienna Convention on the Law of Treaties (between States) of 1969.
 public international law; introduction 365

may well be that substantive limitations contained in constitutions of IGOs,

like those contained in State constitutions, do not have external effect, or do
not have external effect to any greater extent than corresponding limitations
contained in the constitutions of juridical persons of common law, in other
words that the proper analogy is to either of these rather than to incorpo-
rated companies whose constitutional limitations have been entered into a
public register which has been given legal effect by statute. This would mean
that the validity of decisions to engage in activities beyond the scope of the
stated constitutional purposes can be challenged internally by a minority of
member States (if there is one), but that the acts performed pursuant to such
decisions are not void in relation to third parties. In other words, neither the
organization nor the other contracting party would be entitled unilaterally to
declare themselves not bound by the treaty, but those member States which
have not agreed to it would have no obligation vis-à-vis the organization to
contribute to enabling it to full its external obligations in that respect.
If this is the proper view, then even the constitutional limitations of the
purposes of the organization do not constitute limitations upon its interna-
tional capacity and personality, but merely restrictions of an internal nature.
However, this is a separate question, which goes beyond the main question –
whether the international capacities of an organization must be positively
deduced from the provisions of the constitution or from the implied intentions
of the drafters or from the practice of the organization concerned, i.e., of
whether they are delegated from the member States or implied in the consti-
tution or acquired in practice – or whether they are simply inherent in any
intergovernmental organization as such. It is only in respect of this question
that practice is clear and comprehensive and, indeed, constitutes customary
international law (for inherent international capacity).
It is clear that a stronger case can be made for the external irrelevance of
the fact that the act goes beyond the constitutional purposes of the organiza-
tion if the act was decided by its competent deliberative organs, and especially
by a unanimous decision of its plenary organ, than if it was decided merely
by the Secretariat, and especially if the latter alone was not competent under
the constitution, i.e. if the act violates both substantive and procedural con-
stitutional restrictions. However, even in the latter case it does not go without
saying that the adequate reaction under international law is to consider the
act void and the organization as lacking capacity to perform the act, if the
representative of the organization had apparent authority to perform it. It
may sufce to deny any internal obligation of the member States towards the
organization to enable it to full its external obligation. It was this internal
obligation which was the real subject of the Court’s advisory opinion on
Certain Expenses of the United Nations.
366 chapter eight

The above is, however, true only of acts which commit the organization
as such. As already pointed out, an IGO cannot commit its member States
without special authorization from these, in the constitution of the organization
or elsewhere. And this limitation upon the power of the organization has, like
the corresponding limitation of the power of States, “external effect”, because
it is a limitation which derives, not from the constitution, but from general
international law. No State can claim directly against another State on the basis
of an act of a third State or an IGO if the second State has not authorized
the third State or the organization of act on its behalf.22 This fact explains
why writers on the European Community23 State that the capacity of these
organizations to conclude treaties is conned to those elds where they have
jurisdiction over (and within) the member States,24 or only to those elds where
they have been authorized in the constitution to conclude treaties.25 It is some-
times overlooked that the European Community – in addition to its express
extended jurisdiction over and in member States – also, like other IGOs,
has an inherent jurisdiction over its organs and ofcials, and that it, moreover,
has substantive functions which imply no binding powers over the member
States, but in relation to which it can nevertheless undertake commitments
towards third parties, for example to consult, to supply information and to
perform other functions within its powers. Indeed, the Community has a legal
sphere of its own which goes far beyond that where it can exercise binding
jurisdiction over its member States and the organs, territory and nationals of
these. It may well serve the purposes of the European Community, like those
of other IGOs, to conclude treaties relating also to such functions; indeed
they have done so on a number of occasions. However, any attempt in such

22 Wengler, Actes ofciels du Congrès international d’études sur la CECA, III, pp. 330–31, and
Pescatore, Recueil des Cours, 1961 II, pp. 95–98, discuss whether transfer of jurisdiction
over a subject matter to the organization in itself is sufcient to authorize the latter to enter
into an external commitment relating to the same subject matter. The answer is submitted
to be yes, but that the organization cannot establish a direct obligation of the member
States vis-à-vis the third State without special authority therefore from the member State.
23 See in particular Article 300 of the constitution of the European Community and Article
101 of the constitution of Euratom, cf. Pescatore, Les relations exterieures des Communau-
tés Européennes, in Recueils des Cours 1961, pp. 1–241, at p. 136, on the interpretation
of the latter.
24 Wengler, loc. cit., and Pescatore loc. cit. (with citations of other writers) in respect of the
European Coal and Steel Community and Euratom, respectively.
25 Pescatore, loc. cit., in respect of the European [Economic] Community. In the view of
the present writer, such authorization is not necessary for the Community to bind itself,
and, on the other hand, may not sufce for it to bind its member States externally. As for
the latter, Article 300 (7) of the Treaty establishing the European Community provides
expressly that “agreements concluded under the conditions set out in this Article shall be
binding on the institutions of the community and on Member States”, the latter meaning
in relation to the organization only, cf. below, chapters 8.4 and 10.3.
 public international law; introduction 367

treaties to commit the organization to action which does not fall within its
jurisdiction, but within that of its member States, would of course be futile,
as it would be for two States to conclude a treaty on matters which fall under
the jurisdiction of a third State. For this reason neither the organization, nor
the other contracting party, would wish to conclude such an agreement unless
it either is clear that the organization has the power to bind its member States
at least internally in all respects covered by the treaty, or unless the member
States, too, become parties to the agreement. The latter course has been taken
in several cases described as “mixed agreements”.
One may of course, if one prefers, express this legally as a lack of capacity
on the part of the organization to conclude such treaties and consequently
consider any such treaty as not binding upon the organization, rather than as
a lack of right, which does not invalidate the treaty. But there is hardly any
reason to do so unless one does the same thing if a State concludes a treaty
relating to a territory or other subject-matter which is not under its jurisdiction,
but under that of another State.26 In this respect, too, IGOs do not appear
to be in a position which differs in principle from that of States. Moreover,
even if one does consider the organization (or State) as lacking capacity, this
is not an incapacity which follows from the constitution; the organization (or
State) would have the capacity to conclude the treaty if the territory or other
subject-matter were brought under their jurisdiction no matter how, even if
this is not even reected in the constitution. An example of the latter was the
proposed Free Territory of Trieste discussed above, chapter 6.2.
Whatever view one takes of the external effect of constitutional limitations
of IGOs, the constitutional limitations of the purposes of the organization
are – as already pointed out – not usually relevant to the question of the
competence of the organization to perform any types of international acts, but
concern only the question of for what purposes these may be performed.27
This is true also of most other substantive constitutional limitations upon the
rights of the organization (and of States) and, obviously, of constitutional
provisions dening competent organs and applicable procedures. Even if these
provisions are given external effect, this will not imply a denial of the general
inherent capacity of the organization to conclude treaties or to perform any
other type of international acts.

26 Wengler, loc. cit., too, took equality with States in this respect as a point of departure for
his study of the former European Coal and Steel Community.
27 See P. Bekker: The Legal Position of Intergovernmental Organizations, A Functional
Necessity Analysis of Their Legal Status and Immunities, Dordrecht 1994, at p. 83, who
opposes this statement. It is not clear whether he means that the limitation of purposes
may imply a general preclusion of capacity to perform certain types of acts, such as to
conclude treaties or be a party to arbitration.
368 chapter eight

Practice

Seidl-Hohenveldern cites only one case in support of his denial of objective

international personality, namely the Italian and German representations
to Switzerland in 1939 which led to the closing down of the broadcasting
station of the League of Nations in that country.28 However, it can hardly
be admitted that Italy and Germany, which had both been members of the
League, suddenly became entitled to deny its international personality after
they ceased to be members.29 The action of these States therefore cannot be
viewed as an exercise of any valid right of non-recognition of the international
personality of the League. It can only be viewed as an exercise of the right
which any State might have to require its neighbours to prevent their territory
from being used for hostile action by another, whether State or IGO, or the
right of any party to an armed conict to require neutral States to prevent
the non-neutral use of their territory by anybody. The fact that the Italian
and German claims were in excess of these rights is a different matter.30
None of the other writers who deny the objective international personality
of IGOs cites any cases where a non-member State has refused to accept the
international personality of an organization or has considered the member
States or the host State as the parties responsible for its acts. Indeed, there
appears to be no indication that this has happened in the course of those
relations which have in fact taken place between IGOs and non-member
States, such as the relief actions of organs of the League of Nations in the
Soviet Union after World War I and the relief, technical assistance, peace and
security operations of organs of the United Nations and other organizations
in a number of non-member States after World War II, which in some cases
were carried out without the conclusion of any agreement between the orga-
nization and the assisted State.31 It is, however, difcult to nd any clear cases,

28 Österreichische Zeitschrift für öffentliches Recht, XI (1961) p. 505, cf. the text of the
relevant agreement between the League and Switzerland of 21 May 1930 in Hudson:
International Legislation, V, p. 494.
29 Gidel maintained in 1911 that ‘articial’ international persons lose their character of
international persons in relation to a State which ceases to recognize them. “La recon-
naissance, appliquée aux personnes articielles, n’est, en effet, qu’une concession gracieuse
et essentiellement revocable” (Revue générale de droit international public, XVIII (1911),
pp. 6171–6200, cf. pp. 595–8). In the view of the present writer, this cannot be admitted
in respect of IGOs or other sovereign communities, but it may apply to non-governmental
organizations and individuals.
30 Seidl-Hohenveldern, too, reserves himself against any admission that the Italian and Ger-
man complaints were justied. Zemanek in Verdross: Völkerrecht, 5th ed., 1964, p. 392,
points out that the Swiss Government for political reasons persuaded the League to close
down the stations.
31 The tendency among non-members of the League of Nations appears to have been
to grant diplomatic privileges and immunities (but not necessarily tax exemption) to
 public international law; introduction 369

because the question of international personality as such does not appear

to have arisen clearly except when the non-member State has concluded
treaties with the organization or accredited permanent representatives to it
or performed other acts which generally are considered to constitute acts of
recognition.32
The question is perhaps most likely to arise, and thus to acquire practical
importance, in connection with the presentation of claims by or to the orga-
nization and the exercise by it of functional protection of its ofcials. In this
connection one might cite the fact that the United Nations gave effect to the
advisory opinion on Reparation for Injuries, the validity and scope of which
forms the subject of the present discussion, by presenting international claims
also to non-member States. By its resolution 365 (IV) the General Assembly
authorized the Secretary-General
to bring an international claim against the Government of a State, Member
or non-member of the United Nations, alleged to be responsible, with a view
to obtaining the reparation due in respect of the damage caused to the United
Nations and in respect of the damage caused to the victim or to persons enti-
tled through him and, if necessary, to submit to arbitration, under appropriate
procedures, such claims as cannot be settled by negotiation.

League ofcials residing in their territories, but to grant only lesser privileges to ofcials
on temporary mission and especially to ofcials in transit. Thus, while the Soviet Union
declared itself willing to grant a League of Nations Commission of Investigation “the
same liberty for studying the situation as is enjoyed by the representatives of other Pow-
ers within the boundaries of a Sovereign State”, the United States granted to ofcials
in transit through the United States customs courtesies, free entry privileges and measures
for their protection, cf. Martin Hill, Immunities and Privileges of International Ofcials,
Washington 1947, pp. 70–75. See also Hackworth: Digest of International Law (Wash-
ington 1940–44) IV, pp. 419–23, and Chapman v. Commissioner of Internal Revenue, 9
TC No. 87 (October 1947) denying an ofcial of the League of Nations tax exemption
in the United States.
32 See for example the agreements concluded by the United Nations with Switzerland and
with other States which only subsequently became members of the UN: Indonesia, Jordan,
Korea and Japan, listed in early editions of UN Legislative Series, Legislative Text and
Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International
Organizations (St/LEG/SER.B/10) under Nos. 4, 10, 12 and 16–18, and the agreements
on relief, technical assistance, postage stamps, premises and other matters with Finland, San
Marino, Switzerland, Albania, Austria, Bulgaria. Hungary, Indonesia, Israel, Italy, Korea
and Romania listed in early editions of United Nations Treaty Series, Cumulative Index,
Vol. I, under United Nations, United Nations Appeal for Children and United Nations Inter-
national Children’s Emergency Fund. The Interim Agreement with Switzerland of 11 June/1
July 1946 provided expressly in Article 1 that “the Swiss Federal Council recognizes the
international personality and legal capacity of the United Nations” (UNTS, Vol. 1, p. 165).
Similar provisions were contained in the headquarters agreements concluded with Switzer-
land by the League of Nations in 1926 (League of Nations, Ofcial Journal, 1927, p. 1422;
Hudson: International Legislative, I, p. 224) and by the former International Refugee
organization on 15 September 1948 (IRO/LEG/GOV/4, 29 January 1949), Article 2, and
in the latter organization’s agreement with Denmark (IRO/LEG/GOV/1) Article II.
370 chapter eight

Pursuant to this resolution, the Secretary General presented to Israel claims

for reparation for the monetary damage borne by the organization as a
consequence of the deaths of Count Bernadotte and Colonel Serot, as well
as for the monetary damage caused to Colonel Serot’s father. These claims
were paid by Israel.33 However, although the assassinations took place while
Israel was a non-member, the claims were presented and paid only after it
had become a member on 1 May 1949. A claim was presented also against
Jordan in respect of the death of Mr. Bakke, but this claim was rejected
(before Jordan became a member on 14 December 1955). However, this rejec-
tion was based upon a denial that the shot which killed Mr. Bakke had been
red by a member of the Arab Legion, and not with reference to Jordan’s
non-membership or any denial of the objective international personality of
the United Nations.34
Article 24 of the Staff Regulations of the European Communities provides
that “The Communities shall assist any ofcial, in particular in proceedings
against any person perpetrating threats, insulting or defamatory acts or utter-
ances, or any attack to person or property to which he or a member of his
family is subjected by reason of his position or duties.” This, obviously, is not
conned to relations with member States.
It goes without saying that IGOs normally maintain fewer relations with
non-member States than with members. However, the question of relations is
different from that of international personality, and even States do not always
maintain intensive relations with all other States. Even if examples could be
found of non-member States not merely refraining from entering into relations
with an IGO, but even refusing to recognize its international personality,35 it

33 Report of the Secretary General of 5 September 1950, OR GA, V, Annexes II, A. i.

50; Annual Report of the Secretary General, 1952–53, p. 145, cf. ibid. 1950–51, p. 189,
1951–52, p. 161. and A/2180, 12 September 1952.
34 Annual Report of the Secretary General, 1950–51, p. 189, and 19151–52, p. 160, cf.
ibid., 1952–53, pp. 144–5, 1953–54, p. 109¸OR GA, V, Annexes, II, A. i. 50, ORGA,
VII, Sixth Committee, 357th meeting, pp. 293–9, and A/2180, 12 September 1952.
35 The refusal of certain western States to ‘recognize’ the (new) Danube Commission
established by the Belgrade convention of 18 August 1948 (UNTS, Vol. 33, p. 181) was
probably a refusal to recognize the legality of the abrogation of the former regime and
the substitution of a new one without the consent and participation of all parties to the
former regime, rather than a refusal to recognize that the new Commission was an IGO
and an international person in the sense described above. The question of legal personal-
ity was raised in Arab Monetary Fund v. Hashim in English courts where the House of
Lords ruled in favour of the international organization’s right to appear as a plaintiff in
English courts in a case against its former ofcial. This ruling was apparently based on the
organization’s incorporation in a foreign national legal system and was not rendered as a
consequence of AMF’s legal personality under public international law, see A. Reinisch,
International Organizations Before National Courts, Cambridge 2000, pp. 65–68 and 252–
53 and I. Brownlie, Principles of Public International Law, 6th ed., Oxford 2003, p. 662.
 public international law; introduction 371

would not be difcult to nd parallels in relations between States, since these,
too, refuse to recognize each other in certain cases. And yet the majority of
writers, rightly, take the (declarative) view that all communities which satisfy
the objective criteria of a State are international persons, even in relation to
States which have not recognized them. There is no reason to draw more
stringent conclusions from any refusal to recognize certain IGOs than from
the fact that States refuse to recognize certain States, unless the reasons given
are different. With the latter reservation it is submitted that there is no more
support in practice for denying the objective international personality of IGOs
than for denying that of States.

8.4 Are the member States subjects of the international rights

and duties?

The provisions of the constitution, and the intention of its drafters as reected
in these or as otherwise externally evident, may also have negative external
effect in another respect. It may follow from the “constitution” that what
was created was a joint organ designed to act legally on behalf of the several
participating States. In such case its acts would create rights and duties for
the participating States, and the result might be that it would not constitute
an intergovernmental organization in the sense this term is employed in the
present book.36 However, this rarely occurs.37
In the rst place, it is very rare that any authorization to commit the
participating States extends to all acts of the “joint organ”. Even “suprana-
tional” organizations, like the European Community, perform a number of
acts which create rights and duties only for the organization and not for its

36 The term agency relationship has also been applied; see D. Sarooshi, International Orga-
nizations and their exercise of Sovereign Powers, Oxford 2005, pp. 33–53. It could also
be said to constitute a partial confederation in the sense dened by Alf Ross, A textbook of
International Law, London 1947, note 92, § 15 A.
37 The United Nations Command in Korea did not legally commit the United Nations, nor
did it constitute a distinct intergovernmental organization. It committed the United States
and, to some extent, the other States which took part in the military action in Korea,
see Seyersted: UN Forces, Leyden 1966, pp. 117–125. As for coalition forces operating
under an international mandate, their actions commit the contributing State having overall
command and control, see the admissibility decision of the European Court of Human
Rights, application no. 23276/04, Saddam Hussein against Albania et al. of 14 March
2006, by which the court rejected a claim that the respondent States exercised jurisdiction
on the sole basis that they were alleged to form part of a coalition with the US, when the
impugned actions were carried out by the US, security in the zone in which those actions
took place was assigned to the US and the overall command of the coalition was vested
in the US.
372 chapter eight

several member States,38 and insofar remain intergovernmental organizations

with distinct international personality. Moreover, even in those respects where
the acts of the organization do create rights and duties for the several member
States, they may create rights and duties also for the organization.39 Finally,
even if the agreement establishing the “joint organ” should authorize it in all
respects to commit the participating States only, it is nevertheless possible that
this organ performs acts in circumstances where the intention of the parties
to the particular acts concerned clearly is not to commit the several member
States, but only the organ.
In the second place, it should be noted that delegation of authority to com-
mit the several participating States cannot lightly be assumed, especially if the
organ is global or is to make its decisions by a majority vote. Indeed, if the
instrument or act creating the organ does not indicate that it is authorized to
act on behalf of the member States, the presumption must normally be that
its acts commit only the organization.40 This presumption must probably take
precedence over the (from a legal point of view) somewhat misconceived provi-
sion in Article 24 (1) of the Charter of the United Nations, that the members
agree that in carrying out its duties under its primary responsibility for the
maintenance of international peace and security “the Security Council acts on
their behalf ”,41 a provision which caused some confusion during the Council’s
discussion of the proposed Free Territory of Trieste. It is submitted that it
would take a clearer provision to effect a delegation to an international organ
of the power to assume international obligations on behalf of the States which
established it.42 If the organization has not thus been authorized to commit

38 Confusion on this point may in some cases explain why legal writers stick to the doctrine
of delegated powers, cf. Seyersted, op. cit. p. 159.
39 See, for example, EURATOM constitution Article 102, and GATT protocol of 16 July
1962 (UNTS, Vol. 440, pp. 2–23).
40 Cf. Seyersted, op. cit. pp. 90–91. A different matter is that the member States may have an
internal obligation, i.e. an obligation vis-à-vis each other and vis-à-vis the organization, to
contribute their share to enabling the organization to full its obligations, cf. the advisory
opinion of the International Court of Justice on Certain Expenses of the United Nations
(ICJ Reports, 1962, pp. 151 et seq. and, on the limits, pp. 167–8, cf. p 170) and Verdross:
Völkerrecht, 5th ed., Vienna 1964, p. 396.
That the presumption stated in the text also applies in respect of rights (powers) con-
ferred upon the organization by inter-State treaty was stated by the Permanent Court
of International Justice in its advisory opinion on the Greco-Turkish Agreement (Series
B, No. 16, p. 25) and in certain other opinions and cases reported by Schwarzenberger:
International Law, London 1949, pp. 386–7.
41 This misleading phrase was used also by Hudson when he dened “international orga-
nization” as “a body established by a number of States having permanent organs with
capacity to act within the eld of its competence on behalf of those States” (Yearbook
of the International Law Commission, 1950 I, p. 84).
42 In this sense also Kelsen: The law of the United Nations, London 1950, who stated that
the wording of Article 24 (1) is not correct.
 public international law; introduction 373

its member States, its acts must commit the organization as such; there is no
third alternative, if one does not wish to declare the acts of the organization
non-existent or invalid. This means that the organization constitutes a distinct
subject of international law. Or, to put it differently: It is authority to act on
behalf of the members that requires a specic legal basis, not capacity to act
on its own behalf as an IGO.
Even if the member States have authorized the organization to make
decisions which shall be binding upon them, as done in Chapter VII of the
United Nations Charter, it does not necessarily follow that they have autho-
rized the organization to commit them externally, by granting non-member
States and other organizations direct rights against them. As another example
of this may be quoted Article 5 of the constitution of the Organization for
Economic Co-operation and Development, which reads:
In order to achieve its aims, the Organisation may:
(a) take decisions which, except as otherwise provided, shall be binding on all
the Members;
(b) make recommendations to Members; and
(c) enter into agreements with Members, non-member States and international
organisations.
Rule 19 (a) of the Rules of Procedure spells this out as follows:
The Decisions of the Organisation, taken in accordance with Articles 5, 6 and
7 of the Convention may be:
(i ) Decisions binding on the Members which the latter shall implement after
they have complied with the requirements of their appropriate constitutional
procedures; or
(ii ) Decisions approving Agreements with its Members, non-member States, and
international organisations; or . . .
In adopting the Rules of Procedure the Council “agreed”, inter alia, the fol-
lowing interpretation of Rule 19 (a) (now 18 (a)):
In connection with sub-paragraph (ii ) of this paragraph, it should be noted that if
the execution of an Agreement concluded by the Organization requires measures
of implementation on the part of Members, the approval of the Agreement
implies the undertaking of Members to carry out such measures.
It is submitted that the decisions made and the agreements concluded under
Article 5 do not ipso facto give third parties any direct rights against member
States. Any external commitments which may follow from agreements or
unilateral acts made on the basis of decisions in accordance with paragraph
(a) commit directly only the organization as such. But the members have an
obligation vis-à-vis the organization to implement its decisions and agreements.
In the case of decisions, this follows from Article 5 (a) of the constitution,
cf. also Rule 19 (a) (i ) of the Rules of Procedure. In the case of agreements,
374 chapter eight

this obligation follows from the agreed interpretation of Rule 19 (a) (ii ), and
also from the constitution itself if the unanimous approval of the agreement
by the Council is considered as a decision pursuant to Article 5 (a). A dif-
ferent matter is that it may follow from the terms of a particular agreement
or unilateral act that the organization (also or exclusively) acts on behalf of
the several member States and directly commits these vis-à-vis third parties.
This, of course, the members can agree to in the form of a binding decision
under Article 5 (a) which approves the agreement or which forms the basis
of a subsequent unilateral act by the organization. However, these will be
exceptional cases. Normally, the member States have not conferred upon the
organization the power to commit them directly vis-à-vis third parties, and
the decisions and agreements of the organization will then commit only the
organization – directly vis-à-vis third parties.
This is true e.g. in respect of loans. The member States may have under-
taken an internal obligation to put the organization into funds to meet its
obligations. However, this cannot be invoked by external creditors without
basis in an act addressed to them.
A special responsibility for the member States was introduced – for peculiar
political reasons during the cold war – for damage caused by space objects,
by UN General Assembly resolution and Article XXII (3) of the Conven-
tion of 29 March 1972 on International Liability for Damage Caused by
Space Objects: “If an intergovernmental organization is liable for damage
by virtue of the provisions of this Convention, that organization and those
of its members which are States Parties to this Convention shall be jointly
and severally liable; provided, however, that: (a) Any claim for such damage
shall be rst presented to the organization; . . .”.
At that time there existed only two small Western European organizations
(ELDO and ESRO) launching satellites. The Soviet Union at that time was
concerned not to recognize the European Communities as subjects of inter-
national law and then took a similar position vis-à-vis these other Western
European organizations. It therefore insisted that the member States should
be responsible. The Western European States refused this; however, when
subsequently the Soviet Union and the U.S. agreed that both the organization
and its members should be responsible, they had to accept this. The provi-
sion, of course, can only be invoked against States which have acceded to the
convention. Subsequently, however, (indeed already in 1971) also the Eastern
European States formed their own space organization, INTERSPUTNIK.
And Article 10 of its constitution provided to the contrary that the organi-
zation was liable within the limits of its assets and that the member States
had no liability for the obligations of the organization. On the basis of a
similar Soviet proposal, a modied version of that principle of liability was
 public international law; introduction 375

subsequently included in Article 22 of the constitution of 3 September 1976

of the International Maritime Satellite Organization (INMARSAT), now
Article 11 of the International Mobile Satellite Organization:
Parties are not, in their capacity as such, liable for the acts and obligations of
the Organization or the Company, except in relation to non-Parties or natural
or juridical persons they might represent in so far as such liability may follow
from treaties in force between the Party and the non-Party concerned. How-
ever, the foregoing does not preclude a Party which has been required to pay
compensation under such a treaty to a non-Party or to a natural or juridical
person it might represent from invoking any rights it may have under that treaty
against any other Party.
It is, of course, this principle which applies when nothing else has been
provided.43
In so far as the member States really have authorized the organization, in
the constitution or otherwise, to commit them, they may also become bear-
ers of the related rights created by the acts of the organization. Its acts may
also create rights for the member States outside those elds where these have
authorized the organization to commit them, in those rare cases where it is
apparent from the act that this was intended ( pacta in favorem tertii ). But normally
only the organization itself can invoke the rights arising from its acts.44
The more special question of the responsibility of member States for the
organization’s nancial obligations is discussed separately below, in chapter 10.

8.5 Are only States original or necessary subjects of

international law? The position of other sovereign
communities

As pointed out above in chapter 2, an international organ must full certain

criteria to be qualied as an intergovernmental organization for the purpose
of being in a legal position to assume rights and responsibilities under public
international law. Most modern writers have abandoned the doctrine of del-
egated powers (that IGOs can only perform such acts as have been authorized in
their constitutions) in the strict form in which it was maintained after World
War II, by Kelsen, Hackworth and others.45 Instead they advocate various
doctrines of implied powers. However, the point of departure is basically the

43 See below chapter 10 on the work of the ILC on responsibility of international organiza-
tions.
44 See the examples discussed in Seyersted, op. cit., pp. 100–102.
45 See Seyersted op. cit., p. 143.
376 chapter eight

same, viz. that an IGO, in contradistinction to a State, can only perform

such acts as have been authorized in its constitution, explicitly or by implica-
tion. In order to avoid denying the capacity of IGOs to perform acts which
everybody sees that they in fact perform or need to perform, the writers
then resort to various devices of extensive interpretation. Thus constitutional
provisions are interpreted as covering aspects which are not covered by their
words and with which they never were intended to deal,46 or it is argued that
the constitution has been supplemented by the subsequent practice of the
organization concerned or by agreements concluded by (some or all of ) its
members before such practice or agreement has developed into customary
law in respect of the organization concerned. The broader formula of the
Court in its advisory opinion on Reparation for Injuries on “implied” powers is
sometimes applied only as a last resort,47 or only to the United Nations.48 Even
the International Law Commission did not appear to base its draft article on
treaty-making capacity upon the formula of the Court, but merely quoted it
at the end of its commentary.
It appears that the restrictions contained in the doctrines which have been
proposed – other than that contained in the advisory opinion on Certain Expenses
of the United Nations – are either (if applied literally) too restrictive, in the
sense that they conict with uncontested practice – or they imply (as applied
in practice) no legal restrictions beyond those indicated, and thus constitute
ctions. It is striking that, despite the liberal statements of the Court, most
writers impose restrictions in general terms, but very few explain what orga-
nizations would thereby be legally debarred from performing what acts. And
those writers, who have exceptionally done so, have brought themselves into
contradiction with practice. In these circumstances it may be asked whether
there are reasons, other than those discussed above in chapters 2 and 8.3,
for limiting the international personality in respect of organizations and of
types of capacities for each organization.
The general reluctance of legal writers to admit that the capacity for
sovereign and international acts, rights and duties is inherent in IGOs and
that they basically have general and objective international personality, may
be seen as a reminiscence of the ancient doctrine that only sovereign States

46 See for example the interpretation criticized by Pescatore, Recueil des Cours, 1961 II,
pp. 195–6, and which in fact constitutes an attempt at a conclusion from the less to the
more.
47 Also the pleadings before the International Court of Justice on Certain Expenses of the United
Nations attempted to a great extent to rely upon specic provisions of the Charter.
48 This appears to be the effect of Cahier’s view.
 public international law; introduction 377

are subjects of international law. While it is now generally admitted that

at least certain IGOs and certain other types of communities which in fact
perform international acts may also be subjects of international law in cer-
tain respects, these are still viewed as somewhat anomalous. It is probably
against this background that it appears to be taken for granted that the
international personality of IGOs must be restricted, despite the fact that
it is difcult to point to any cases in practice where an IGO has refrained
for legal reasons from performing an international act which it was in a
practical position to perform. And this may well be the basic reason why
most writers in principle require a basis in the constitution or in practice
for each international capacity in respect of each organization, while in
the case of States they adopt the more logical view that the customary law
developed by and in respect of States generally applies to all States, with-
out proof that each one of them has in its constitution or in its practice
followed up the general practice in respect of each international capacity.
Indeed, most writers distinguish sharply between States, as original and
general subjects of international law, and other entities which may have been
recognized by States as subjects of international law within certain limits and
which have such powers as have been “conferred” upon them.49 IGOs are
then placed in the second category.50 It is, however, interesting to note the
denition given by Mosler, who is one of those who make a distinction in
this sense, namely between “necessary” and “derived” subjects of interna-
tional law. Mosler, like others, groups only States as “necessary” subjects of
international law, while he groups IGOs together with non-sovereign States
and confederations, as “derived” subjects of international law.51
As has been demonstrated above, the great difference which exists between

49 Cf. Judge Badawi in his dissenting opinion in “Reparation for Injuries” Suffered in the
Service of the UN: “There is in fact no common law for international persons” (ICJ
Reports 1949, p. 205). The majority was more prudent: “The subjects of law in any legal
system are not necessarily identical in their nature or in the extent of their rights” (ibid.
p. 178).
50 The extension of this distinction to the question of objective international personality is
clearly set forth by Hahn in Harvard Law Review LXXI (1958), pp. 149–50.
51 His denition of “necessary” subjects of international law would seem to include IGOs
and other “sovereign” communities and represents a synthesis of those of the criteria
listed in chapter 2 above, and which are common to States and IGOs. The denition
reads: “Gewalten . . . die die oberste Herrschaft in ihrer Sphäre, d.h. auf ihrem Gebiet und gegenüber ihren
Gewaltunterworfenen, in Anspruch nehmen, nach außen als Einheit auftreten und die Zugehörigkeit zu
einen höheren Organisation von ihrem Willen abhängig machen.” This denition also covers IGOs,
if “Gebiet ” is understood as “area” in a non-territorial sense and if “Gewaltunterworfenen”
is understood as comprising (also) organs and ofcials, as the normal meaning of these
terms would warrant, cf. “Die völkerrechtliche Wirkung bundesstaatlicher Verfassungen”
in Festschrift Richard Thoma, Tübingen 1950, p. 135.
378 chapter eight

States and IGOs is one of fact rather than of law. The different extent to which
they perform international acts and exercise international rights and duties
depends upon their factual opportunities and not upon any basic difference
in their legal capacities. A closer examination of the practice of other “sover-
eign”, or self-governing, communities indicates that this basic legal similarity
(and the factual difference) extends also to these, whether they are territorial
units, like insurgents, or non-territorial units, like the Holy See.52 As for the
latter, it is frequently maintained that it only has the capacity to conclude
treaties and to send and receive diplomatic envoys.53 However, practice has
already shown that it performs also such other international acts as it is in a
practical position to perform, and that it is subject to corresponding interna-
tional rights and duties. Thus it exercises exclusive (“sovereign”) jurisdiction
over its organs, enjoys privileges and immunities (in addition to those of its
diplomatic representatives), recognizes new States and governments,54 takes
part in intergovernmental conferences as a full participant, and is a member
of intergovernmental organizations, as the Holy See rather than as the Vatican
City. It must also be entitled, for example, to present and receive international
claims and to have these settled by international arbitration.55
Practice in respect of sovereign communities other than States and IGOs thus
supports a general proposition that all sovereign – or, better, self-governing –
communities are general subjects of international law in the sense that they
have a general inherent capacity,56 and that partly sovereign communities
are such subjects as far as their self-government goes. A proposition in this
direction has been made long ago by Alf Ross, who rightly replaced the
traditional denition of international law as “the law valid for States in their

52 On the Holy See, see above chapter 4.2 and Oppenheim: International law, 9th ed.
1992, p. 325. For a wider survey of different independent and belligerent entities, see J.A.
Barberis: Los sujetos del derecho internacional actual, Madrid 1984, pp. 97–159.
The International Committee of the Red Cross is a non-governmental organization,
but a very special one, which acts as a subject of international law in several respects, cf.
above, chapter 2. Individuals are not subjects of international law, but have been granted
direct rights and duties under international conventions, mostly, however, as part of the
internal law of an IGO (an exception is the obligations upon all parties, including individu-
als taking part in an armed conict, according to international humanitarian law, which
entails individual criminal responsibility for grave breaches (war crimes), and similarly for
the international crime of genocide and crimes against humanity, cf. the Rome Statute
of the International Criminal Court).
53 See for example Verdross: Völkerrecht, 5th ed., Vienna 1964, p. 3.
54 Kunz in American Journal of International Law, XXXXVI (1952), p. 312.
55 A different matter is that the freedom of action of the Holy See is limited by Article 24
of the Lateran Treaty in a manner similar to that of neutralized States (cf. Alf Ross:
Lærebog i folkeret, 6th ed., Copenhagen 1984, § 18 A) and that this inter alia deprives it
of the right to wage war, which in any event, it is not in a practical position to do.
56 Reference is also made to Lissitzyn: “Territorial Entities other than Independent States
in the Law of Treaties” in Recueil de Cours, 1968 III, pp. 1–92.
 public international law; introduction 379

relations with each other” by “the law valid for (binding upon) self-governing
communities”, without, however, stating explicitly that all these are general and
objective subjects of international law (as far as their self-government goes).57
The main legal distinction is then, not between States and other sovereign
(or self-governing) communities, but between self-governing and non-self-
governing legal persons. It is only the latter, which include non-governmental
organizations and individuals, which are “derived” subjects of international
law if and insofar as the “necessary” subjects of international law (i.e. the
sovereign communities) exceptionally confer international powers upon them,
and whose international powers are not valid vis-à-vis States which have not
conferred upon them or recognized these powers. Self-governing communities,
on the other hand, are subjects of international law ipso facto (or ipso jure).
It will be noted that Ross in his denition of international law substitutes
the term “self-governing” for the term “sovereign”, which he criticizes as
circular and as too composite. He rightly points out that the crucial criterion
of international personality is capacity for duties, rather than capacity for
rights or capacity for action,58 and that the crucial criterion for sovereignty
is self-government, rather than capacity for action or freedom of action,59
although complete disregard of the two latter aspects leads to partial inclu-
sion in the concept of subjects of international law of certain communities
which are not usually so regarded (member States of a federal State, which
have partial self-government).60 However, these complications hardly arise
in respect of IGOs, because these usually unite all the criteria, except that
organizations of the type dépendant may lack capacity for action, and except
that the constitutional limitation of the purposes of IGOs may be viewed
as an internal limitation upon their freedom of action.61 IGOs therefore fall
under the extended denition of international law irrespective of whether this
is based upon the concept of “sovereign” or that of “self-governing”, except
that in the latter case the particular denition of self-governing given by Ross
(“a legal community is called self-governing when and in so far as it is the
highest legal power in relation to its individual members”)62 is not adequate in
relation to IGOs, the normal “subjects” of which are not private individuals,

57 A. Ross, op. cit., § 1, IV, cf. §§ 1–3 and 15–1. English translation of the second edition
entitled “A Textbook of International Law”, London 1947, German translation entitled
“Lehrbuch des Völkerrechts”, Stuttgart 1951.
58 Ross op. cit., §§ 15–17 A and 18 C; see also Verdross, op. cit.
59 Ross, op. cit., § 3 V–VI A.
60 Ibid. §§ l IV and 14 I A. The International Law Commission, in commentary (3) to Article
3 of its 1962 draft articles on the Law of Treaties, excludes treaties between the member
States of a federal State from the scope of the articles.
61 Or it may be viewed as a limitation upon their capacity (for rights and duties) if the
limitations have external effect.
62 Ross, op. cit., § l III. The word “individual” should be deleted to open up also for IGOs.
380 chapter eight

but organs, ofcials and partially, States. Ross recognized two types of self-
governing territorial communities, States and insurgents. In order to include
also the non-territorial self-governing communities (IGOs and the Holy See)
Ross’ denition of “self-governing” must be amended to read: “. . . in rela-
tion to its organs and ofcials” – because the organic jurisdiction is the only
criterion which is necessary for and common to all types of self-governing
communities and general subjects of international law.

8.6 Validity vis-à-vis non-members

The Court’s opinion in the Reparations case and the criticism thereof

Insofar as the United Nations is concerned, the question of its objective

international personality was clearly answered by the International Court
of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service
of the United Nations. In its conclusion, the Court held unanimously that the
organization has the capacity to bring an international claim even against a
non-member State. In this connection the Court stated in its reasoning that
“the organization is an international person” and that
fty 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 possessing objective international personality, and not merely
personality recognized by them alone, together with capacity to bring interna-
tional claims.63
This statement of the Court has been criticized, notably by Schwarzenberger
and Bindschedler,64 who have maintained that recognition (or acquiescence)

63 ICJ Reports, 1949, pp. 185 and 187, cf. pp. 218–19. Also the two statements quoted from
the reasoning appear to be unanimous, except possibly for Judge Hackworth, see ibid.,
p. 196. Cf. the comments by C.F. Amerasinghe: “International Legal Personality Revisited”
in Austrian Journal of Public International Law, XXXXVII (1995), pp. 123–45.
64 Schwarzenberger: International Law, I, 3rd ed., London 1957, pp. 128–30, cf. pp. 137–8,
and Bindschedler: “Die Anerkennung im Volkerrecht” in Archiv des Volkerrechts, IX
(1961–62), pp. 387–8. Both writers refer only to the Court’s statement quoted in the text,
without indicating whether they also contest the resulting conclusion that the organization
can bring claims against non-members. However, this would appear to be an inescapable
consequence of their view. Indeed, Seidl-Hohenveldern: “Die Völkerrechtliche Haftung
für Handlungen internationaler Organisationen im Verhältnis zu Nichtmitgliedstaaten”
in Österreichische Zeitschrift für öffentliches Recht, XI (1961), pp. 497–506 and “Der
Rückgrift auf die Mitgliedstaaten in Internationalen Organisationen” in R. Bernhardt
et al. (ed): Völkerrecht als Rechtsordnung, Berlin 1983, pp. 881–90 – who does not dis-
cuss the validity of the Court’s statement and conclusion insofar as the United Nations
 public international law; introduction 381

is necessary on the part of non-member States, since these are not parties
to the constitution of the organization. Many other writers from Roman law
countries have taken a similar view in respect of other IGOs.65 This view
is based upon the assumption (1) that an IGO has international personality
only if and to the extent that this follows from its constitution and the inten-
tion of its drafters, and (2) that the constitution of an IGO, like any other
treaty, is not binding upon States which have not acceded to it.66 These two
assumptions, and the conclusion drawn from them, have been most concisely
formulated by Bindschedler in his exposé of recognition in international law.
After having correctly pointed out that recognition of States and govern-
ments is declaratory in nature, and that the constitutive view, that a State has
international personality only in relation to States that have recognized it,
is incompatible with practice and with the ‘sense’ of a general international
law. He states that:
The position of international organizations is different. These do not come into
being on the basis of general international law when certain facts are united, but
through a convention between States which contains their constitution. Nor are
they possessed of the full international personality of the State, but only of such
rights and duties as follow from their constitution. While the legal personality is
valid ipso facto in relation to the member States as contracting parties, this is not
true in relation to third States, because the constitution confers neither rights, nor

is concerned, since he considers this organization as a special case, but who otherwise
shares Schwarzenberger and Bindschedler’s view as described in the text below that the
international personality of IGOs follows from their constitutions and that these are not
binding upon non-members – draws the logical consequence that non-members can present
any claims to the several member States rather than to the organization. – Other writers
who appear to have denied the objective international personality of the United Nations
include Kasme: La capacité de l’ Organisation des Nations Unies de conclure des traités,
Paris 1960, p. 34 and P. Reuter: Les organisations internationales, Paris 1955, p. 180 and
International Institutions, Paris 1961.
65 See Seidl-Hohenveldern, loc. cit. (he was less restrictive in his earlier study on “Rechts-
beziehungen zwischen Internationalen Organisationen und den einzelnen Staaten” in
Archiv des Völkerrechts, IV (1953–54), p. 33); Hahn: “Euratom: The Conception of an
International Personality” in Harvard Law Review LXXI (1958) pp. 1048–51; Pescatore,
ibid., pp. 425–6 in Recueil des Cours, 1961, II, at p. 40, who, however, assumes, ibid.,
pp. 41–43, that there is an obligation to recognize the European Communities. Most
of these writers also take the view that the member States are responsible vis-à-vis non-
members States for the acts of the organization. Mosler; “Réexions sur la personnalité
juridique en droit international public” (chapters VIII–IX) in Mélanges offerts à Henri
Rolin, Paris 1964, also requires recognition, but admits that the recognition does not cre-
ate a new juridical personality. He does not State who is responsible for the acts of the
organization when no recognition has been given, but he does suggest that acts which go
beyond the competence of the organization are invalid (chapter VII in ne).
66 Scharzenberger, op. cit., pp. 499–500; Hahn, loc. cit., pp. 1045–9; Wengler, loc. cit., p. 318.
However, the three latter writers also invoke other arguments, most of which are specic-
ally related to supranational organizations. Kasme, loc. cit., bases his conclusion upon what
appears to be a constitutive view of recognition even in respect of States.
382 chapter eight

duties upon these. Here, therefore, recognition by the third State is necessary in
order that the organization may act as a bearer of rights and duties in relation
to that State. Contrary to the view of the International Court of Justice in its
advisory opinion of 11 April 1949 on Reparation for Injuries Suffered in the
Service of the UN, recognition of international organizations by non-member
States has constitutive effect.67

Is the United Nations Charter binding upon non-members? 68

The second assumption, that the constitution cannot impose duties upon
non-members, is certainly correct insofar as most organizations are con-
cerned. However, it is controversial whether it applies to the Charter of the
United Nations. This contains two provisions which concern non-member
States and which have been interpreted as imposing obligations upon
such States, namely articles 2 (6)69 and 103.70 This has led many writers
to consider the Charter as something more than a regular convention,
namely as an international constitution or “a basic law of the international
community”.

67 Anders verhält es sich bei Internationalen Organisationen. Diese entstehen nicht auf Grund des allgemeinen
Völkerrechts, sofern gewisse Tatbestandselemente vorliegen, sondern durch einen Staatsvertrag, der ihre
Verfassung enthält. Es kommt ihnen auch nicht die volle Völkerrechtssubjektivität des Staates zu, sondern
nur diejenigen Rechte und Pichten, die sich aus dem Statut ergeben. Während so die Rechtspersönlichkeit
ohne weiteres gegenüber den Mitgliedstaaten als Vertragsparteien gilt, trifft dies gegenüber Drittstaaten
nicht zu, da das Statut sie weder berechtigt noch verpichtet. Deshalb ist hier die Anerkennung seitens
des Drittstaates notwendig, damit die Organisation ihm gegenüber als Träger von Rechten und Pichten
auftreten kann. Im Gegensatz zu der Auffassung des Internationalen Gerichtshofes in seinem Rechtsgutachten
vom 11. April 1949 über den Ersatz von im Dienste der Vereinten Nationen erlittenen Schäden hat die
Anerkennung Internationaler Organisationen durch Nicht-Mitgliedstaaten konstitutive Bedeutung.
68 As the United Nations today enjoys universal membership, this question has limited practi-
cal signicance.
69 In this sense Kelsen. The Law of the United Nations, pp. 106–10, cf. pp. 116 and
724–37, especially p. 735; Soder; Die Vereinten Nationen und die Nichtmitgleider, Bonn
1956, pp. 254.79; cf. also Verdross, op. cit. p. 533, and Oppenheim: International Law, I,
§ 522 a. Contra, Jessup: A Modern Law of Nations, New York 1949, p. 135; Suontausta:
La soveraineté des Etats, Helsinki 1955, pp. 98–99; and Schwarzenberger: A Manual
of International Law 6th ed., Milton 1970, pp. 130–131. See also the writers cited by
Soder, op. cit, pp. 231–341 and by Seidl-Hohenveldern in Österreichische Zeitschrift für
öffentliches Recht, XI (1961), p. 501.
70 Article 103 provides: “In the event of a conict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail”. Although
it does not specically say so, the article was intended to apply also to treaties concluded
with non-member States (United Nations Conference on International Organization,
San Francisco 1945, XIII, p. 708). Cf. Goodrich and Hambro: Charter of the United
Nations 3rd ed., New York 1969, pp. 614–17 and Soder, Schwarzenberger and Kelsen,
all loc. cit.
 public international law; introduction 383

The most important of the articles concerned, and the only one which is
expressly and exclusively concerned with obligations of non-member States,71
is Article 2 (6), which provides that “the Organization shall ensure that States
which are not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of international
peace and security”. However, it is not necessary to interpret this as imposing
any new obligation upon non-members in order to enable the organization to
take action against an aggressor non-member State. As has been pointed out
in another context,72 the organization partakes of the inherent right under
general international law of collective self-defense and could exercise this
right against non-members even if there had been no Article 2 (6).73 Indeed,
whether or not the legal effects of the Charter are considered to exceed those
of a regular treaty, Article 2 (6) must be viewed as a conrmation of this
inherent right of the organization. It is only if the United Nations will oblige
non-members to take part in sanctions (or in the unlikely case that Article 2
(6) would be used as a basis for enforcement measures against a non-aggressor
non-member State) that a United Nations action would overstep the normal
rights under general international law.
As for practice, it should be noted that the Security Council has made “deci-
sions” and issued “orders” to non-member States without making a distinction
between the aggressor and victim non-member States;74 however, these deci-
sions and orders were not enforced. As for court practice, the French-Mexican
Claims Commission in a dictum denied the validity vis-à-vis non-members of
Article 18 of the Covenant of the League of Nations which provided that
no treaty entered into by a member State (with a member or non-member
State) was binding until it had been registered with the Secretariat of the
League.75 The question of the binding effects of provisions of the constitution
of a world-wide political organization upon non-member States thus does not
appear to have been conclusively settled in practice.

71 Other provisions of the Charter addressing rights of non-member States are found in
Arts. 4, 11 (2), 32, 35 (2), 50 and 93 (2).
72 Seyersted, op. cit., pp. 173–4.
73 Schwarzenberger, loc. cit., considers it more than doubtful whether the United Nations
can rightly aspire to ensure against the will of non-member States that these should act in
accordance with the principles of the Charter so far as may be necessary for the mainte-
nance of international peace and security. He may thus reject not only the binding nature
of Article 2 (6), but also the organization’s inherent right of collective self-defense.
74 Resolutions of 15 July, 20 August and 19 October 1948, adopted after the outbreak of the
war in Palestine and addressed inter alia to Israel and Jordan, which were at that time not
yet members of the United Nations, as pointed out by Bowett: The Law of International
Institutions, 4th ed., London 1982, p. 26.
75 Pablo Nàjera (France) v. Mexico, Reports of International Arbitral Awards, V, pp. 4711–3.
384 chapter eight

Leaving aside this special question of the United Nations, we shall now
examine the problem in relation to IGOs generally.

Relevance of provisions of the constitution

It is not necessary to go further into the second assumption of the writers

referred to – which, although it has been controversial in respect of the United
Nations, is in any case correct in respect of other IGOs – since this assump-
tion is irrelevant to the question of the objective international personality of
the organization if the rst assumption is not valid. And on this basic issue
practice is ample and uniform.
It has been demonstrated above that under customary international law the
international capacities of an IGO are not contingent upon the existence of
any relevant provisions in its constitution or upon any relevant intention of
its drafters. The provisions of the constitution have only negative effect, in the
sense that they may limit the international capacities of the organization.76
However, this is true of States too. And such limitations in the constitutions
of IGOs should not have external effect, vis-à-vis non-member States, in cases
where corresponding limitations in the constitutions of States do not have
external effect. In this respect there is only scattered practice, which does not
as yet constitute customary law. However, this will no doubt develop, supported
by the fact that Articles 46 of the Vienna Conventions of 1969 and 1986 on
the Law of Treaties contain identical provisions on this subject for States and
for IGOs. The two repetitive provisions in the 1986 convention could indeed
have been amalgamated into one, if it had not been for the introduction of
the curious term “rules of the organization” for IGOs in lieu of the normal
term “internal law”, which the conventions use only for that of States.
The only really doubtful question in this connection arises from the fact
that the constitutions of most IGOs, in contradistinction to those of States,
dene, and thereby limit, the purposes of the organization. No practice is known
which could support the general assumption that IGOs even in relation to
third parties lack the legal capacity to perform acts which fall outside the
scope of the purposes specied in their constitutions. No case is known where
the validity of such acts, and of the rights and duties arising out of them in
relation to third parties, has been challenged by these third parties or by the

76 Indeed, organizations which have no constitution, or whose constitution contains no deni-

tion of the purposes, have the legal capacity, even in relation to their member States, to
perform acts for any purposes that their competent organs may wish to pursue.
 public international law; introduction 385

organization. However this may be, it should be noted that the constitutional
limitations of the purposes of the organization (and other constitutional limi-
tations of a substantive or procedural nature) are not usually relevant to the
question of the competence of the organization to perform any specic types
of international acts, but concern only the question of for what purposes (or
pursuant to what internal procedures) it may perform such acts.
Another difference between IGOs and States arises from the fact that the
constitution of an IGO may confer upon the several member States rights
and duties arising out of the acts of the organization (as e.g. in supranational
organizations). However, insofar as the organization, too, acquires such rights
and duties – and this is the general rule even in the European Community –
its own international personality is not thereby limited. And if all rights and
duties devolve exclusively upon the ‘member States’, then one is not faced
with an IGO, but with a joint organ acting on behalf of these States.
With these two possible reservations, it has been submitted that even the
negative limitations contained in the constitutions of IGOs are basically simi-
lar to those of States in respect of their external effects. And it is established
by clear and consistent practice – of big and small, political and technical,
“important” and “unimportant” IGOs – which now constitutes customary
international law, that, even internally, positive constitutional provisions are
not necessary to establish the international capacities of the organization. In
these circumstances the fact that the constitution is not binding upon non-
member States would appear to be irrelevant to the question of the objective
international personality of the organization. It is not known to have been
claimed that States lack objective international personality because their con-
stitutions are not binding upon other States. Even that minority of writers
who take a constitutive view of recognition of States do not appear to invoke
that argument. And there seems to be no more basis for maintaining that
IGOs lack objective international personality because their constitutions are
not binding upon non-member States. Thus the main theoretical argument
which has been advanced against the objective international personality of
IGOs must be rejected as lacking foundation in practice.

Relevance of the existence of a convention

It might still be argued against the validity of the international personality

of the organization vis-à-vis States which are not contracting parties to the
convention establishing it, that even if the international personality does not
depend upon this convention, the existence of the organization does, and
that if there is no organization there can be no international person, cf.
386 chapter eight

Bindschedler’s statement that IGOs, in contradistinction to States, “do not

come into being on the basis of general international law, when certain criteria
exist, but through a convention which contains their constitution”.
It is true that States may come into existence in two ways, either through
an understanding between the inhabitants of a territory, or through imposition
by a group which assumes power over such inhabitants, and that an agree-
ment between all the “members” is not necessary. However, neither of these
acts is in themselves any more binding upon other States than a convention
is upon non-contracting States. Still, the majority of writers consider States to
be subjects of international law ipso facto, without recognition. This because it
is not the acts by which a State is created, but the objective facts which result
from them which constitute the relevant criteria for the existence of a State
and which, under the declarative view, have validity vis-à-vis other subjects
of international law.
Similarly, as has been submitted above – although most IGOs happen to
have been established by one method, viz. an international convention, or to
have been subsequently conrmed by such a convention – the crucial fact –
in the case of IGOs as in that of States, the Holy See and other subjects of
international law – is not how they have been established, but that they exist.
Once an organization or a State has been established, no matter how, it is ipso
facto a general subject of international law. All that is required is that it pos-
sesses the objective characteristics of a State or organization which have been
listed above. Recognition is no more required for IGOs than for States.

Declarative and constitutive view of recognition and their consequences in respect of

intergovernmental organizations

Although the special reasons which have been advanced against the objective
international personality of IGOs cannot be admitted as valid or decisive,
and although strong reasons speak in favour of such personality, a nal con-
clusion cannot be formulated without taking account of the general law of
recognition.
If one – like the present writer and in accordance with practice at least
in respect of the two most important other types of sovereign communities;
States77 and insurgents78 – considers that recognition in respect of sovereign

77 See Bindschedler, loc. cit., p. 386, and Ross, op. cit. § 19 III.
78 See Chen: The International Law of Recognition, London 1951, pp. 337 et seq.
 public international law; introduction 387

communities other than IGOs is only declarative79 (i.e. that it is not required
in order to establish the international personality, but that it merely creates
an estoppel), then there is no basis for denying the objective international
personality of IGOs.80
On the other hand, if one, as the majority of writers81 appears to do, takes
a declarative view of recognition in respect of States, but, despite contrary
practice, takes a constitutive view in respect of other self-governing com-
munities (which has been cited in respect of insurgents and the Holy See),
it would, in the light of the preceding conclusion that the legal nature and
basis of the international personality of IGOs are essentially similar to that of
States, seem natural to bracket IGOs with States. This would, however, depend
upon the reasoning with regard to the other self-governing communities. If,
for example, one admits the objective international personality of States and
other permanent territorial units,82 as well as of the Holy See,83 but requires

79 This appears to be the basic tendency of Ross, op. cit., although he expressly says so only
in respect of States (§ 19 I) and merely indicates it in respect of insurgents (§ 19 V).
80 Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957, pp. 26–7,
also considers that the recognition of an IGO by a non-member State has only declara-
tive effect in about (“etwa”) the same manner as the recognition of a State. Thus, despite
the fact that he, like Schwarzenberger, Bindschedler and other writers from Roman law
countries expressed the view that the international personality and its extent is determined
by the convention embodying the constitution of the organization and that conventions
have no effect vis-à-vis non-member States, he considers the international personality thus
created as an objective one. He considers it “more than doubtful” whether establishment
by “the vast majority of the members of the international community”, as stated by the
International Court of Justice, is required; indeed he (rightly) considers this criterion legally
irrelevant.
Most other writers, including Bindschedler, Schwarzenbergen, Seidl-Hohenveldern and,
apparently, also Pescatore and Wengler, accord constitutive effect to recognition of IGOs,
see above, notes 64–65. Of these, Bindschedler takes a declarative view of recognition of
States (loc. cit., p. 386), but a constitutive view of recognition of insurgents (loc. cit., p. 388).
Schwarzenberger appears to take a constitutive view even in respect of States (op. cit.,
pp. 128 and 134). Kasme, speaking of the United States only, takes the same, apparently
constitutive, view of that of organizations as of States.
81 And the American Republics, both in a convention of 1933 and in the Declaration of
the Rights and Duties of American States 17 July 1946, see Jessup: A Modern Law of
Nations, New York 1949, p. 43.
82 Condominia, coimperia, internationalized territories, mandates, trusteeship territories
etc. usually form distinct subjects of international law, but international responsibility for
them vests either in one or more States (mandates and trusteeship territories) or in an
IGO (internationalized territories) for all purposes or as far as their powers go. A condo-
minium or coimperium may be governed directly by the States concerned under their own
international responsibility or through distinct organs which constitute an internationally
responsible IGO.
83 The Holy See (from 1870 to 1929) is the only known non-territorial general subject of
international law, other than IGOs. On the extent of its international personality, see
above, chapter 4.2. There has been disagreement as to whether the international position
of the Holy See, whatever it may be, follows from customary law or is dependent upon
388 chapter eight

recognition in respect of insurgents and new governments in exile because of

their temporary and precarious nature, then it would be most consistent to
admit the objective international personality of permanent IGOs.84 The same
applies if one requires recognition of new governments in exile because of
the difculty of establishing satisfactory objective criteria in view of the strong
links to the host State or to an allied government under whose command the
new government’s forces have been placed,85 or if one requires recognition
of insurgents on the grounds that internal struggles normally are within the
exclusive competence of the State concerned and of no concern to interna-
tional law and that international status for insurgents is only an exception to
this rule.86 IGOs, as dened above and acting as such, are not subject to the

recognition. Those early writers who denied the full international personality of the Holy
See prior to 1929, because of the fact that Italy was in a position to revoke unilaterally
the Law of Guarantees of 13 May 1891 (French translation in Martens: Nouveau Recueil
Général, XVIII, p. 41) were obviously regarding that law as constitutive, assuming that the
Holy See, after it lost its territorial State in 1870, had international personality only when
this was expressly conferred upon it. But other earlier writers who acknowledged only a
quasi-international status for the Holy See, held such status to follow from custom, and
to be merely conrmed, not created, by the Law of Guarantees (von Liszt: Das Völker-
recht, Berlin 1925, § 7 VI; Oppenheim: International Law; I, § 105). This appears to be
the majority view among writers (thus Kunz in American Journal of International Law,
XXXXVI (1925) pp. 310 and 311, but not Sibert: Traité de droit international public, I,
267, cf. 266). It is, moreover, now expressly recognized by Italy in Article 2 of the Lateran
Treaty (the Political Treaty) of 11 February 1929 that “the sovereignty of the Holy See
in the international eld is inherent in its nature, in conformity with its tradition and the
requirements of its world mission” (Italian text in Martens, op. cit., 3e série, XXI, p. 18,
italics added. Correct English translation in British and Foreign State Papers, CXXX (1929
I) p. 791 and in American Journal of International Law, XXIII (1929) Suppl., p. 187).
The Holy See is now treated as an international person, not merely by those Catholic
States in Europe among which international law originally grew up and among which
the Holy See was, from the outset, treated as even more an equal, but also by most other
States. Soviet teaching and practice apparently did not consider the Holy See a subject of
international law (Baginyan and Lazarev in Sovetskoye Gosurdarstvo i Pravo (Soviet State
and Law 1951), although D.B. Levin already in 1947 defended its international personality
(ibid., 1947, No. 5). However this may be, the Soviet Union took part, without protest,
in international conferences and organizations in which the Holy See participated on an
equal footing with States.
84 The statement by the International Law Commission that “the phrase ‘other subjects of
international law’ is primarily intended to cover international organizations, to remove any
doubt about the Holy See and to leave room for more special cases such as an insurgent
community to which a measure of recognition has been accorded”, as contained in Com-
mentary (2) to Article 3 (1) of the 1962 draft articles on the Law of Treaties, might be
interpreted in this sense, cf. Report of the ILC of its 14th session, OR GA XVII, Suppl.
No. 9, p. 7.
85 For this reason it is difcult to determine whether the government in exile is ‘sovereign’,
and it is, neither practically, nor logically, impossible to consider the host State or the State
under whose command its forces are ghting as responsible.
86 Cf. Chen, op. cit., pp. 303–6, who himself does not appear to agree with this view. – It
should also be pointed out that the United Nations – like States – is a pre-existing sover-
 public international law; introduction 389

jurisdiction of any other subject of international law,87 and their relations

with such subjects must be on the plane of international law.
On the other hand, if one considers that recognition has constitutive effect
even in respect of States, then it is hardly possible to take a different view
in respect of IGOs, unless one feels that the international personality of the
United Nations has a stronger objective character than that of States, for the
reason given by the Court or for other reasons pertaining especially to that
organization.88
If one for this or other reasons refuses to recognize the objective inter-
national personality of IGOs, i.e. their international responsibility vis-à-vis
non-members for their own acts, there is probably no alternative but to draw
the conclusion drawn by Seidl-Hohenveldern, that the international respon-
sibility for the acts of the organization, in relation to those non-members
which have not recognized its international personality (and vis-à-vis these
only), vests in the several member States. It is, however, difcult – at least for
a jurist from a non-Roman law country – to see how this could work – or
how a delegation of authority to the organs of the organization to commit
individual member States in relation to non-recognizing non-member States
could be tacitly implied in the constitution of IGOs of the usual type, i.e.
those which are not supranational. Especially if the organization has a large
membership, it would be hard to construe any such implied delegation. If
this had been the intention, the constitutions would no doubt have read dif-
ferently, and the ratication discussions with the governments and parliaments
of the several member States would also have been very different. Nor is it
easy for non-Roman lawyers to see how a non-member State, which has had
relations with the organization without thereby recognizing it, could expect to
be able to claim reparation from any or each of its member States, or from
the host State, for any violation of general or particular international law
which the organization might commit in cases where it has violated only its
own obligations and not those of the States concerned. Even a non-member
must, it would be thought, be aware of the fact that it is dealing with an
intergovernmental organization acting in its own name, and not with a joint
organ authorized to commit its several member States. The non-member, on

eign community, which becomes involved in military operations merely as one aspect of
its activities. Insurgents, on the other hand, arise out of a civil war and exist merely for
the purpose of carrying out the civil war.
87 Except for delegation of limited powers, e.g. organizations of the type dépendant.
88 Cf. Seidl-Hohenveldern, loc. cit. above, at p. 501, and van Goethem and Suy, Beknopt
handboek van het volkenrecht, Antwerpen/Amsterdam 1964, p. 36. However, other writ-
ers, rightly, reject the reason given by the Court.
390 chapter eight

its side, would therefore also probably be rather surprised if it were faced
with claims from the several members of the organization.
Those who deny the objective international personality of IGOs frequently
try to avoid these and other impracticable or undesirable consequences by
stretching the concept of implied recognition beyond what has hitherto been
assumed in respect of States. In some cases this may be natural, viz. when it is
proposed to consider membership of the organization, or merely application
for membership,89 as implied recognition.90 However, an extension to these few
cases does not sufce to escape the inconveniences which follow from the denial
of objective international personality. Many writers therefore nd themselves
forced to go further, by substituting for ‘recognition’, in relation to IGOs, new
and wider concepts, such as ‘acquiescence’,91 ‘acknowledgement’ or ‘implied
consent’.92 However, even these terms will be too restrictive, or imply ctions,
or both.93 If such ctions are liberally applied, one might nd that there is
little practical difference between those who deny and those who admit the
objective international personality of IGOs.94 However, it is doubtful whether
anybody would be prepared to press the ction as far as to pretend that an
aggressor non-member had by implication recognized (or ‘acquiesced’ with,
‘acknowledged’, or ‘consented’ to) the international personality, or the bellig-
erent rights, of the United Nations merely because it continues its aggression
despite United Nations military intervention. Such ctions are not known to
have been resorted to in order to get around the constitutive view of recogni-
tion in respect of States. And it is submitted that, in the case of IGOs, too, it
would be better to call the thing by its right name, viz. objective international
personality, as the Court did in its advisory opinion on Reparation for Injuries,
although it is felt that the reasons which have been outlined above for this
conclusion are better founded in the law of IGOs and in general international
law than the reason given by the Court at that early stage.

89 Thus Kasme: La capacité de l’Organisation des Nations Unies de conclure des Traités,
Paris 1960, p. 35, points out that even if an application for membership of the United
Nations does not bind the applicant, it suppose “chez eux l’intention de reconnaitre à
l’ONU la qualité internationale”.
90 Even this can be true only if the organization really has international personality and
follows necessarily only if the personality follows from the constitution. Membership does
not necessarily presuppose such personality, in the manner that the conclusion of a treaty
does, because it is also possible to become a member of an ‘organization’ which does not
satisfy the criteria listed above.
91 Schwarzenberger: International Law, I, 3rd ed., London 1957, p. 128.
92 Hahn; “Euratom; The Conception of an International Personality” in Harward Law
Review, LXXI (1958), p. 1049.
93 See ibid., for an example of the latter.
94 Hahn, loc. cit., does not go that far.
 public international law; introduction 391

8.7 Conclusions

It follows from the preceding discussion that no constitutional provisions are

necessary to establish the capacity of an IGO to perform such “sovereign”
and international acts as States have an inherent capacity to perform. This
is established customary law. Constitutional provisions have only negative
signicance, inasmuch as they may preclude the exercise of such capacities
in certain respects. However, this is true of States too (although it in fact
occurs less frequently). And there does not appear to be any basis in practice
for assuming that even such specic constitutional limitations of IGOs have
effect in respect of third parties if similar constitutional limitations of States
have only internal effect. Although this question may not yet be settled by
customary law, it will probably be, with the entry into force of the parallel
provisions in Articles 46 and 47 of the two Vienna Conventions on the law
of treaties.95 In any event, the constitutional limitations rarely imply a denial
of the capacity of the organization to perform any type of international acts
and to acquire the resulting international rights and obligations, whether
these be identical to or different from those of States. On the other hand,
international organs may be authorized, in their constitutions or elsewhere,
to act on behalf of the participating States, rather than as distinct entities;
but then, if they do not also act on their own behalf, they are not intergov-
ernmental organizations.96
With these reservations, the latter of which must be taken into account in
any denition of intergovernmental organizations, it is submitted that there is
in principle no more basis for maintaining that all those powers which IGOs
in fact exercise, or which they have the capacity to exercise if and when the
practical case arises, follow from the provisions of the constitution or from the
intention of the contracting parties, than there is to maintain than the power

95 The Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155,
p. 331, done at Vienna on 23 May 1969, entered into force on 27 January 1980. The
Vienna Convention on the Law of Treaties between States and International Organiza-
tions or between International Organizations, Done at Vienna on 21 March 1986, (not
yet in force).
United Nations Treaty Series, vol. 1155, p. 331.
96 A special case may arise if an organization would be authorized in certain respects to act
as a joint organ on behalf of its member States in such a manner that only these derive
rights and duties from its acts. In such case the eld of competence of the IGO acting as
such would be limited in essentially, but not wholly, the same manner as discussed above
in respect of other constitutional limitations. Even if these limitations are considered
valid externally – in the sense that, beyond them, the several member States and not
the organization would become bound and acquire rights – this would not constitute a
sufcient reason for denying the validity vis-à-vis non-member States of the international
personality of the organization as far as it goes.
392 chapter eight

of States to exercise territorial, personal and organic jurisdiction, to conclude

treaties, to make recognitions, renunciations or other unilateral acts, to send
and receive diplomatic representatives, to present and receive international
claims, to settle disputes by international procedures and to perform any other
international acts that follows from their constitutions, which never provide
for all of these powers, or from the intention of the framers of those constitu-
tions. This would be a ction, since, in one case as in the other, these powers
are exercised once an independent or sovereign organization or State has
been established as an objective fact, however silent the constitution may be
or whatever may have been present in the minds of the drafters when they
drew up the constitution.97 Thus it is not the provisions of the constitution or
the intention of its framers which establish the international personality of a
State or an IGO, but the objective fact of its existence. This is why the pres-
ent writer must reject, not only the doctrine of delegated powers in its rigid
form, but also that of powers implied in the constitution of the organization
concerned, in favour of a doctrine of powers which are inherent in all IGOs
as they are in all States.

Description of intergovernmental organizations

On the basis of the discussion above and in chapter 2, IGOs are organs
which are:

(a) established by two or more self-governing communities,98

(b) not all subject to the authority of any other organized community, except
that of the participating communities acting jointly through their repre-
sentatives on the organs; and
(c) not authorized by all their acts to assume obligations (merely) on behalf
of the several participating communities (if so, they are joint organs).

Inherent general international personality

The international capacities and personality of such organizations are not, as

usually maintained in legal theory, conned to what is laid down, or implied,

97 A different matter is that the constitution usually offers the most convenient (but not a
necessary) means for determining whether one is faced with an intergovernmental orga-
nization.
98 Normally States, but see above on IGOs and the Holy See as members of other IGOs.
 public international law; introduction 393

in their respective constitutions (the doctrines of delegated and implied pow-

ers). On the contrary, even if their constitutions contain no relevant provisions
and even if there is no evidence of any relevant intention of their drafters
or of any previous practice by or in respect of the organization concerned,
the organizations which satisfy the criteria listed above have an inherent legal
capacity to perform any type of sovereign or international acts which they
in a practical position to perform and which they are not precluded from
performing by special rules.99

Limitations

Special rules which limit the inherent general powers of IGOs may be laid
down either in general international law or in the constitution of the orga-
nization concerned.
As for general international law, the most important limitation follows from
the principle of the sovereignty of States.100 This prevents IGOs, as well as
States or IGOs, from imposing obligations upon (other) States, or upon par-
ties who are under the jurisdiction of such States and not under that of the
organization (as are its organs and the members of these in that capacity),
unless the States concerned have authorized the organization (or the other
State) to do so. However, even such authorization requires no provision in the
constitution of the organization – it can be given through a provision in the
constitution or by other means (treaty or unilateral act).
As for the constitution, this may, through a restriction of the purposes or
through other substantive or procedural limitations, preclude the performance
of acts for certain purposes or in certain manners, but it rarely precludes the
performance of any particular type of sovereign or international act as such.
Moreover, it does not go without saying that such constitutional limitations
affect the capacity of the organization vis-à-vis third parties in those respects
where the external capacity of States is not affected by corresponding restric-
tions contained in their constitutions. The International Court of Justice has
already recognized this possibility in respect of procedural limitations.

99 This principle was recognized and applied by the International Court of Justice in its
advisory opinion of 20 July 1962 on Certain Expenses of the United Nations, when it, for the
rst time (and after the judges had received an article written for the case by the present
writer), dropped the ction of “implied powers” by turning the point of departure around:
“the presumption is that the Organization has the power” (italics added), although this
was in the context of internal jurisdiction – i.e. sovereign rather than international acts.
100 Cf. Annual Digest of International Law Cases, 1949, p. 336.
394 chapter eight

The acts referred to above create rights and duties for the organization
if and to the extent that the member States have not, in the constitution or
otherwise, authorized it to commit them instead. If they have not authorized
the organization to commit them, the acts of the organization do not create
obligations (and related rights) for the member States, except that in rare
cases it may be apparent that it was intended to confer a right also upon
these ( pacta in favorem tertii ).
IGOs are thus, from a legal point of view, general subjects of interna-
tional law, ipso facto on the basis of general and customary international law,
in basically the same manner as States. The main difference is one of fact,
namely that most organizations are not in a practical position to exercise their
inherent international capacities to the same extent as States, because they
have no territory and no population, but not because they lack the capacity
to exercise jurisdiction over, and represent, territory and persons.
It is thus not the convention containing the constitution of the organiza-
tion (if such a convention exists at all) or the intention of the contracting
parties thereto which establishes the international personality of IGOs and
determines its extent, but general international law, once the necessary criteria
are established as facts. The constitution of each particular organization has
at most negative effect, insofar as its provisions may limit the international
personality which the organization otherwise has under general international
law, by authorizing it to commit its “member” States alone, by limiting its
purposes or by other provisions, insofar as these have external effect. If inter-
national personality is dened (as it should be if the denition is to serve a
practical purpose) as legal capacity to perform international acts and to be
the subject of international rights and duties, it is not necessary (in respect of
IGOs, as well as in respect of States) to look for a basis in the constitution or
in practice for each capacity in respect of each organization (or State). The
basis is general international law, as developed by and applicable to IGOs
generally, on the basis of the basically similar international law developed by
and applicable to States (and other self-governing communities).
The validity of the submission that IGOs are legally and ipso facto general
subjects of international law cannot be denied on the basis of an analogy
from the rules of national law in respect of the juridical personality of non-
governmental organizations, because there is no more reason to refer in this
respect to those (Roman law) systems of national law which recognize the
juridical personality of non-governmental organizations only if and to the
extent that such personality follows from positive provisions of national law
and/or incorporation, than to refer to those systems of (Anglo-Saxon and
Scandinavian) national law which have adopted the opposite system that
non-governmental organizations are juridical persons in so far as this is not
 public international law; introduction 395

precluded by statutory or factual limitations. Indeed, since international law

lacks a legislative power, the proper analogy must be the latter systems.
Relations between IGOs which full the criteria listed above and other
self-governing communities (i.e. communities which are not subject to the
jurisdiction of any one other organized community) acting as such are (by
denition) not subject to the internal (national) law of any one of them. Such
relations, to the extent that they exist in fact, must necessarily be governed by
international law. Any attempt to impose theoretical restrictions, i.e. restric-
tions which do not follow from the partial submission of the communities
concerned to the jurisdiction of another organized community, upon the
international personality of such communities, are in contradiction of this
basic fact. This is why the consistent attempts which have been made in this
sense in legal theory have failed to produce effects in practice (i.e. in concrete
cases), and why most of the writers concerned have been forced to resort to
extended interpretations and other constructions and ctions to eliminate in
concrete cases the effects of the restrictive doctrines from which they depart
in theory. This false point of departure may derive, in part, from a confusion
(i ) of factual with legal limitations, (ii ) of acts which impose obligations upon
States with acts which do not, or (iii ) of the scope of external legal capacities
with that of the internal, constitutional obligation of member States to con-
tribute to nancing the activities of the organization; it may also (iv) represent
a remnant of the now abandoned doctrine that only States are subject of
international law and/or (v) a false parallel to the position of legal persons
in the national law of, notably, Roman law countries.
It is submitted that the distinction commonly made between States, as the
“natural” or “necessary” subjects of international law, and other communities,
as “derived” subjects of international law which have international personality
only if and to the extent there is a special legal basis therefore, is unfounded,
not only as far as IGOs are concerned. What has been said above probably
applies to all sovereign, or self-governing, communities, i.e. also to insurgents
and to the Holy See. Indeed, the proposition is made that these are all subjects
of international law in all respects where they are in a practical position to act
as such, in other words that there is no basic legal difference between States
and other self-governing communities. International law is thus not merely
the law governing the relations between sovereign States, but the law govern-
ing relations between self-governing communities acting as such, and should
be so dened. It is only non-sovereign entities – including non-governmental
organizations and individuals – which are “derived” subjects of international
law, in the sense that they can be subject of international law if and to the
extent that the sovereign communities, as the automatic subjects of interna-
tional law, exceptionally confer upon them limited international functions,
396 chapter eight

and only in relation to those sovereign communities which have recognized

these functions expressly or by implication.
The rights and duties of different types of sovereign communities under
international law may vary because of their different nature. However, when
the difference in nature do not require different legal rules, the rules which
have been developed in relations between States may usually be applied by
analogy to other sovereign communities, to the extent that their activities call
for the application of such rules.
The general conclusions set forth above entail certain practical consequences
in respect of the interpretation and drafting of constitutions of IGOs.

Interpretation of constitutions

In order to establish the competence of an IGO to perform “sovereign” or

international acts or to be subject of international rights and duties, it is not
necessary to include – or to attempt to nd – a provision in the constitution
of the organization which expressly authorizes this or which by some method
of extensive interpretation could be considered to imply such authorization.
Nor is it necessary to attempt to deduce such authorization from the inten-
tion of the framers of the constitution, or to point to any practice by which
the particular organization has already assumed or established the power to
perform the act concerned. This because such authorization is unnecessary,
in the case of IGOs as in the case of States, as long as the acts concerned
do not contradict (violate) any constitutional provision or do not impose obli-
gations upon member States or external parties; indeed, even in respect of
acts which impose such obligations the authority does not have to be found
in the constitution.
The methods of interpretation referred to above, which are generally applied
as a point of departure in legal theory, are not applied in practice, and can-
not be justied on the basis of analogy from other sovereign communities.
If applied seriously, these methods of interpretation would lead to a denial
of capacities which IGOs in fact exercise, and to a resulting illegality of acts,
the validity of which not even theoretical writers appear to be prepared to
deny in concrete cases. If not applied seriously, the methods of interpreta-
tion referred to merely imply a ctitious and unnecessary complicated way
of arriving at conclusions which one is determined to reach in any case and
which are correct.
In fact, it is only necessary to verify that the constitution does not preclude
performance of the act concerned. This implies ascertaining, from an internal
point of view, that the act is designed to promote an authorized purpose of
 public international law; introduction 397

the organization (if the constitution denes, and thereby limits, the purposes),
that the act is not otherwise precluded by any provision of the constitution,
that it has been performed by an organ which is competent under the constitu-
tion and that any procedure laid down in the constitution has been complied
with. From an external point of view, i.e. in relation to non-member States,
even these conditions may not, in principle, constitute necessary conditions
for the validity of the act, if corresponding restrictions in the constitutions
of States are not considered to have external effect.
Only if the organization wishes to impose new obligations upon States
or individuals, otherwise than in their capacity as members of its organs, is
positive authorization required, as it is if a State wishes to impose obligations
upon other States or their nationals. Such authority must be obtained from
the States concerned. It can, in the case of member States or their nationals,
be found in the constitution, but it must be sought there only if it cannot be
found elsewhere.
For similar reasons, unjustied a contrario interpretations must be avoided
of provisions which authorize the organization to perform sovereign or inter-
national acts within certain elds. Such a contrario interpretation will only be
warranted if and in so far as the provision can be interpreted as imposing
obligations upon the member States.101 It may also be warranted if the pro-
vision exceptionally lays down specic limitations (other than an incidental
mention, or context, of a special part of the organization’s activities) or condi-
tions for the performance of the acts concerned. But in most cases neither one
nor the other of these alternatives applies. And then a contrario interpretation
would lead to unreasonable or even impossible results, and are not applied
in practice.102 In some cases the provision is concerned with the distribution
of functions within the organization and can then be interpreted a contrario
in respect of the organ concerned, but not with regard to the competence
of the organization as a whole. In some other cases the provision is merely
concerned with prescribing specic procedures or conditions. In other cases
the provisions are merely superuous afrmations of inherent capacities which,
if they were interpreted a contrario, would impose upon the organization con-
cerned restrictions which (1) do not apply to other organizations, (2) were not
intended by the drafters and (3) are not observed in practice.

101 See, for example, on Article 42 of the Charter of the United Nations: Seyersted, op. cit.
pp. 161–2.
102 On the internal plane the fact that the Statute of the International Atomic Energy
Agency expressly authorizes its Board of Governors to establish committees (Article VI I)
has, of course, not prevented the General Conference from doing likewise, despite the
absence of any constitutional provision to that effect.
398 chapter eight

Drafting of constitutions

It follows from what has been said that it is useless to attempt to include
in constitutions of intergovernmental organizations express provisions for
the purpose of authorizing the organization to perform specic “sovereign”
or international acts.103 An enumeration of such capacities would turn the
constitution into a “monster”, and, still, the enumeration would never be
exhaustive.104 IGOs have an inherent legal capacity to perform all “sovereign”
and international acts designed to promote their purposes and which have
not been precluded by other provisions of the constitution. It is only neces-
sary to deal in the constitution with specic acts, or types of acts, if these
should fall outside the scope of the stated purposes of the organization, if
they would impose upon the member States obligations which have not been
laid down elsewhere in the constitution or in other legal instruments, if it
is desired to provide that the acts shall be performed by a specic organ or
under a specic procedure,105 or if one wants to limit the power. In other cases
the inclusion of provisions designed to empower the organization to perform
specic types of “sovereign” or international acts is not only useless, but may
also be misleading, inasmuch as it may invite false a contrario conclusions that
the organization does not have the capacity to perform other acts, or that it
cannot perform the acts which have been specied in cases (contexts) other
than those provided for. This applies not merely to international capacities, like
the conclusion of treaties, the convocation of international conferences, the
jus legationis and the presentation of international claims, but also to internal
organizational powers, like the power of the organization to enact nancial
regulations and personnel regulations, the power of each organ to enact its
own rules of procedure and to establish subsidiary organs, etc. These are all
powers which follow from the exclusive jurisdiction which each IGO, like
each State (and to some extent even non-governmental organizations), ipso
facto has over its organs and ofcials as such, and which therefore go without
saying in the case of intergovernmental organizations no less than in the

103 Contra: Kelsen: The Law of the United Nations, London 1950, pp. 832–3, and Kasme:
La Capacité de l’Organisation des Nations Unies de conclure des Traités, Paris 1960,
p. 160, who both feel that the treaty-making capacity of the United Nations should
have been specied in the Charter.
104 Cf. the United States Act quoted above, chapter 2, note 61. See also the partly overlap-
ping, and yet far from complete, enumeration in Article 2 (2) of the constitution of the
International Refugee Organization of 15 December 1946.
105 See for example Article XIII of the constitution of the former European Organisation
for Space Research (ESRO) of 14 June 1962, text in Archiv des Völkerrechts, XI (1963),
p. 20, which by a subsequent constitution of 30 May 1975 was amalgamated with
the European Launcher Development Organization (ELDO) into the European Space
Agency (ESA).
 public international law; introduction 399

case of States, as long as no contrary or limiting provision has been made.

Thus, it is useless when the United Nations Charter expressly provides for
the power of the General Assembly and the Security Council to establish
subsidiary organs (Articles 22 and 29). For the Economic and Social Council
there is only a provision for establishment of “commissions” (Article 68) and
for other organs there is no provision. This can only give rise to unfruitful
discussions as to whether the Trusteeship Council and auxiliary organs have
the same power,106 and as to whether the Economic and Social Council can
establish organs other than “commissions”, and even to a denial of such pow-
ers.107 Both have, of course, established subsidiary organs without hesitation.
On the other hand, the Committee of Ministers of the Council of Europe
was right when it decided that “certain proposals made by the Consultative
Assembly for the revision of the Statute of the Council of Europe” could
be put into effect immediately because they were “not inconsistent with the
present Statute”.108 This was a sufcient basis in respect of those parts of the
resolution which imposed obligations only upon the organs of the organiza-
tion. However, para. 2 (ii ) of the resolution, under which each member State
“undertakes”, within a certain period of submission to it of a convention
adopted by the Committee of Ministers, to bring the question of ratication
before the competent national authority, could not nd a legal basis in any
inherent power of the organization. But a legal basis may be found in the
fact that all member States voted for the resolution and thereby entered into
a commitment to this effect.109
Better than to enumerate international capacities would it be to provide
in the constitution that the organization has international personality, as has
been done more or less generally in a few cases.110 However, even this is

106 See for example Trusteeship Council resolutions 293 (VII) and 425 (X).
107 See, for example, Kelsen’s discussion of these problems in: The Law of the United Nations,
London 1950, pp. 143–4. It is true, however, that a consistent application of the false
doctrine that an IGO (in contradistinction to a State) can do only what is authorized in
its constitution (explicitly or by implication), might force such a discussion in any case,
if not in respect of this power which even pertains to non-governmental organizations,
then in respect of many other internal and external powers which the various organs
of all types of IGOs in practice exercise without hesitation, and rightly so.
108 Resolution (51) 30 F of 3 May 1951. Text in A.H. Robertson: The Council of Europe,
London 1956, p. 233.
109 In a similar resolution of August 1951, quoted ibid., p. 236, the Committee kept within
limits which did not require a new commitment by the member States at that time.
110 Cf. supra note 2. See also the Convention on the International Mobile Satellite Organi-
zation (IMSO), Art. 12: “The Organization shall have legal personality. For the purpose
of its proper functioning, it shall, in particular, have the capacity to contract, to acquire,
lease, hold and dispose of movable and immovable property, to be a party to legal pro-
ceedings and to conclude agreements with States or international organizations”.
400 chapter eight

unnecessary,111 and might provide a basis for unjustied a contrario conclusions

in respect of other organizations. Indeed, it would be wrong to maintain that
those extremely few IGOs which happen to have constitutional provisions on
international personality are international persons any more or to any greater
extent that others. On the contrary, their international personality might
be perceived as more limited, if the relevant constitutional provisions are lim-
ited, just as specic capacities may be more limited if they have been expressly
stated in a limited manner than if they have not been stated at all.
It may be concluded that, although IGOs in fact are very different from
States and have much less extensive jurisdiction and resources than these, they
are from en external legal point of view not as different from States as has
been generally assumed. In order to determine their external legal capacities,
rights and duties, one must look more to general international law – as devel-
oped by States, IGOs (generally) and other sovereign communities – and less
to the constitution and practice of the particular organization concerned, than
is usually done. This is true both of the existence and the scope of their inter-
national personality, as well as of its validity in relation to non-members.

111 Contra: Kelsen, op. cit., pp. 329–30.

 CHAPTER NINE

INTERNATIONAL ACTS

9.1 Conclusion of treaties1

Legal writers generally assume that IGOs – in contradiction to States – can

only enter into treaties to the extent that this is authorized in their respective
constitutions. However, normally these merely provide for legal personality
(under national law). Only a few IGOs are known to have a general constitu-
tional provision that it may conclude treaties – e.g. the now dissolved Interna-
tional Refugee Organization in Article 2 (2) (e) of its constitution.2 We also have
provisions in some constitutions of States which expressly authorize these to
conclude treaties also with IGOs.3
On the other hand, many IGO constitutions contain provisions on specic
types of treaties to be concluded by the organization with States or with other
IGOs.4 Thus the UN Charter provides in Article 43 for agreements between
the Security Council and Members or groups of Members on provision of
military forces – these agreements “shall be subject to ratication by the

1 Cf. Karl Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna

1957; Schermers and Blokker, International Institutional Law, 4th ed., Leiden 2003,
§§ 1742–1800; and the restrictive views of I.I. Lukashuk: “Parties to Treaties – the Right
of Participation” in Recueil des cours de l’Académie de droit international de la Haye,
1972, I, at pp. 267–77; de la Guardia: El derecho de los tratados y las convenciones de
Viena, pp. 163–77, and a number of articles collected in K. Zemanek (ed.): Agreements
of International Organizations and the Vienna Convention on the Law of Treaties,
Vienna 1971. Particularly on the European Communities, see H. Krück: “Völkerrechtliche
Verträge” in Recht der Europäischen Gemeinschafen: Abschlusskompetenzen, Bindungs-
wirkung, Kollisionen, Berlin 1977.
2 Cf. also IMSO Art. 12, loc. cit. supra chapter 8, note 110, cf. note 2.
3 Argentine in 1994 included a provision in para. 22 of Art. 75 of its revised national con-
stitution that the Congress shall approve or decline treaties, including with international
organizations, which shall take precedence over national legislation: “Aprobar o desechar
tratados concluidos con las demàs naciones y con las organizaciones internacionales y los
concordatos con la Santa Sede. Los tratados y concordatos tienen jerarquia superior a las
leyes”.
4 Cf. Parry in BYIL, XXVI (1949) for a closer examination of these provisions.
402 chapter nine

signatory States in accordance with their respective constitutional processes”.

However, no such agreements have been concluded, but agreements have
been concluded between the Secretary-General and member States provid-
ing contingents to UN peace-keeping forces, which are not provided for in
the Charter. Agreements have been concluded pursuant to Article 63 with
the specialized agencies bringing them into relationship with the UN – and
pursuant to the less clear provision in Article 105 (3) that the General Assem-
bly may propose conventions to the Members of the UN for the purpose of
determining the details of the application of the provisions on privileges and
immunities (paragraphs 1–2 of the Article). Articles 77–83 on trusteeship
agreements do not provide for the UN to be a party to them – but it must
nevertheless be considered to be a party.
However, it would be an impossible task to deduce from the differences
in the various constitutions and travaux préparatoires coherent suggestions as to
which organizations would lack legal capacity to perform which acts.5 Any
suggestions which might be arrived at on this basis without resorting to ctions
would not conform to past or present practice and would imply unacceptable
barriers to future practice.
IGOs have concluded treaties with one or more States or other IGOs for
about 200 years. This has been done, not merely by large political organiza-
tions like the League of Nations and the UN, but also by the smallest and
oldest IGOs. The rst were concluded by the international river commissions.
The oldest treaty still in force is probably the headquarters agreement of
the International Bureau of Weights and Measures (BIPM) with France of
1875. Today the number of treaties concluded by IGOs has reached several
thousands.6
The vast majority of the treaties concluded by IGOs were not authorized
in the constitutional conventions or other relevant basic documents. Thus only
a minimal fraction of the treaties concluded by the UN fell under relevant
provisions in the Charter (Articles 43, 63, 83 and 105).
However, these limited provisions have not stopped the UN from conclud-
ing a far greater number of treaties, on other matters, both with States and
with other IGOs. While no agreements on military contingents have been
concluded by the Security Council in the manner provided in Article 43, a
number of similar agreements have been concluded by the Secretary-General

5 The rst International Law Commission Rapporteur on the law of Treaties, Brierly, admit-
ted that it was (necessary and) difcult to determine which international organizations
could be regarded as having the capacity to make treaties, cf. supra chapter 8, note 14.
6 Already in 1971 Zemanek estimated 2,000 treaties with IGOs as parties.
 international acts 403

in respect of the UN peace-keeping forces.7 In addition to the relationship and

other agreements8 concluded with specialized agencies, the UN has concluded
agreements with other IGOs.9 Agreements have been concluded also with non-
member States.10 The International Court of Justice has considered the UN
as a party to the Convention on the Privileges and Immunities of the United
Nations (ICJ Reports 1949, p. 179) despite the fact that it had not acceded
in the same manner as its member States; however this was also recognized
in Section 35 of that convention. However, the overwhelming number of
agreements concluded by the UN relate to entirely different elds, notably to
technical and other assistance rendered by the organization or its autonomous
organs to member and non-member States.11 Indeed, only a minimal fraction
of the treaties concluded by the UN fall within the categories mentioned in
the Charter. The same is true of most IGOs. Thus, the majority of the trea-
ties concluded by the International Atomic Energy Agency (listed in its Legal
Service No. 3) do not fall within the categories specied in its statute (project
agreements in Article XI-F, agreements on privileges and immunities in Article
XV and agreements with the UN in Article XVI). In addition, organizations
whose constitutions do not authorize the conclusion of any kind of treaties,
have, none the less, concluded treaties.12
In addition, organizations whose constitutions do not authorize the conclu-
sion of any kind of treaties have, none the less, concluded treaties with States
e.g. headquarters agreements, and with other IGOs, e.g. on cooperation. This

7 Seyersted: United Nations Forces in the Law of Peace and War, Leyden 1966, pp. 99–102,
cf. pp. 46–77 and 337–43.
8 For example agreements extending the competence of the United Nations Administrative
Tribunal (see e.g. above, chapter 7, and UNTS, Vol. 219, p. 388) and the agreement with
WHO regarding a medical programme for Palestine refugees (ibid., Vol. 103, p. 129).
9 See, for example, the many transfer and other agreements with the League of Nations
and UNRRA listed in UNTS, Cumulative Index, No. 1, pp. 476 and 478.
10 Interim arrangements with Switzerland on privileges and immunities of 11 June/1 July
1946, UNTS Vol. 1, p. 163, amendments in Vol. 509, p. 309, and Vol. 1446.
11 The United Nations Children’s Fund (UNICEF), an autonomous organ of the UN set up
by General Assembly Resolution 57 (I), alone concluded more that 100 agreements and
additional protocols in this category already during its rst ten years of operations. For
other examples of bilateral and multilateral treaties in this and other categories, see the
UNTS Cumulative Index, e.g. under the headings: United Nations, United Nations Appeal
for Children, United Nations [International] Children’s [Emergency] Fund, United Nations
Relief and Works Agency for Palestine Refugees (UNRWA), United Nations Emergency
Force, and under the name of other IGOs.
12 Thus ICAO, whose constitution merely provides for agreements with other organizations
(Arts. 64–65), concluded – already during the rst ten years of its existence – about
fteen bilateral treaties with States on technical assistance, air navigation and privileges
and immunities, as well as about fty multilateral (standard) agreements to which several
organizations were parties on one side and individual States on the other. See UN Treaty
Series Cumulative Index, under the heading International Civil Aviation Organization.
404 chapter nine

has been done, not merely by large political organizations like the League of
Nations, but also by the smallest and oldest technical organization.13
It cannot be seriously argued that most of these treaties are merely con-
tracts of national law, or that the parties to them are the several member
States rather than the organizations as such. Yet it is not known to have been
claimed in a concrete case that any of these treaties are invalid because the
organizations did not have the power under any provision of its constitution
to conclude them,14 provided that no constitutional provision precluded it
from so doing. This despite the fact that the invalidity of such treaties might
have been pressed under the widely defended view that a treaty concluded in
violation of constitutional restrictions is not binding.15 Whereas this view has
not been accepted in respect of States, it has been maintained that it must
in any case apply to treaties concluded by IGOs.16
Writers generally assume that IGOs – in contradistinction to States – can
only enter into treaties to the extent that this is authorized in their respective
constitutions. However, the vast majority of treaties concluded by IGOs are
not so authorized. In many cases it would also be stretching the ction too far
to maintain that the capacity was implied in the provisions of the constitution

13 Thus the Hague Conference on Private International Law has concluded a headquarters
agreement with the Netherlands, despite the absence of any mention of treaty-making
capacity or of privileges and immunities in its Statute of October 1951. Similarly, the
International Bureau of Weights and Measures, whose constitution of 20 May 1875
is equally silent in this respect, has in 1949 concluded a co-operation agreement with
UNESCO, as well as a ‘convention’ with France, dated 4 October 1875, concerning the
placing of the Pavillon de Breteuil at the disposal of the Bureau. If the latter convention
is recognized as a treaty in international law, as is the agreement between the UN and
Switzerland concerning the Ariana site (UNTS, Vol. I, p. 153), it may well be the oldest
existing treaty concluded by an IGO, earlier treaties concluded by international river com-
missions being no longer in force. For other examples see under the various organizations
in the alphabetical part of the UNTS Cumulative Index.
14 Closest to such denial is probably Kelsen: The law of the United Nations, pp. 330–5 and
832–3. He States that “the Charter does not contain a provision authorizing the United
Nations to enter into other international agreements than those expressly mentioned in the
Charter”, and that “among the many technical insufciencies of the Charter one of the
worst is the lack of a general authorization of the Organization to enter into international
agreements”. (In the view of the present writer, no such general provision is necessary.)
And he adds that “the United Nations has legally only the power to enter into those
international agreements which it is authorized by special provisions of the Charter to
conclude”. – Nor did the former communist countries during the cold war appear to have
pressed their resistance to the wide powers of IGOs to the point of denying the validity
of treaties in any concrete case.
15 Oppenheim: International Law, I, §§ 497 and 516.
16 Jessup: A Modern Law of Nations, New York 1949, p. 130 and Parry, in BYIL, XXVI
(1949), pp. 114–17. The present writer does not believe in this difference between States
and IGOs.
 international acts 405

by “necessary intendment”,17 especially when the treaties were concluded in

connection with functions which were not specied in the constitution and
which its drafters never thought of, as for example the agreement of 28 March
1951 between the UN and the United States establishing the United Nations
Postal Service (UNTS, Vol. 149, p. 414).
Indeed, no case is known where an IGO has refrained from concluding a
treaty because it or the other party considered that it lacked legal capacity
to do so, or where any court or other authority (or even a theoretical writer)
in a concrete case has denied the validity of the treaty.
The practice described above establishes clear customary law to the effect
that all intergovernmental organizations have inherent general treaty-making
capacity to enter into treaties with States and other IGOs. Treaties concluded
by IGOs with external parties may create rights for member States in the
same manner as a treaty between States may create rights for third parties.
On the other hand, treaties concluded by IGOs cannot create obligations for
the member States unless these have authorized the organization to do so.
The latter is practical in the case of organizations exercising extended juris-
diction to the extent member States have conferred treaty-making capacity
with direct effect on the organization, e.g. Article 300 of the constitution of
the European Community.
IGOs also become parties to multilateral conventions between States,
normally without basis in constitutional provisions.18 In some cases where the
organization exercises jurisdiction or activities parallel to those of States, the
organization may accede and/or become party in the same manner and with
the same status as the participating States if the nal clauses of the treaty so
permit, e.g. when the organization exercises jurisdiction over territories or over
refugees, stateless or other specic categories of persons, cf. above chapter
6.2 and 6.3. However, in many cases the conventions limit access to States.
But the conventions may open for accession by IGOs by different procedures.
This is normally the case in those situations where the organization also has
a substantive role different from that of the States.

17 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949,
p. 184, cf. ibid., 1954, pp. 56–57.
18 See G. Gaja, A new Vienna Convention on Treaties between States and International
Organizations or between International Organizations: A critical commentary, BYIL 1987
at pp. 253–69. See also Seyersted, op. cit., pp. 337 ff.
406 chapter nine

9.2 Other acts

The other types of international acts performed by IGOs are in a position

parallel to that described above for treaties. All IGOs in practice perform those
acts which they consider useful – without enquiring into a legal basis in their
respective constitutions. Legal writers pretend that the organizations act on the
basis of powers provided for or “implied” in the constitution of each organiza-
tion concerned – however, without offering examples of acts that would lack
such basis or endeavouring to declare such acts invalid. We shall briey survey
practice and customary law in respect of some of these various types of acts.

Jurisdiction

It has been demonstrated in Part Two that (a) all IGOs, also in the absence of
relevant constitutional provisions, exercise inherent legislative, administrative
and judicial jurisdiction over their organs – and over the members thereof (rep-
resentatives and ofcials) as such – without basis in treaties with, or unilateral
acts from, the member States and (b) some organizations exercise extended
jurisdiction over territory, persons, States and even in States (directly over ter-
ritory and persons – supranational jurisdiction) on the legal basis laid down in
a treaty or unilateral act but not necessarily in the constitutional convention of
the organization. These are internal acts, but they are recognized and treated
also by external parties (including States and other self-governing communi-
ties) as valid and operative acts, for which the organization bears also external
responsibility, as will be shown in chapter 10 below.

Passive and active jus legationis19

States frequently accredit permanent delegations or missions to IGOs of which

they are members, and even to organizations of which they are not members.
In many cases they merely accredit members of their diplomatic missions to the
host State to act concurrently as permanent representatives to the organization.
However in several cases they establish separate missions to the organization.

19 See L. Dembinski: The Modern Law of Diplomacy, External Missions of States and
International Organizations, Dordrecht 1988; Schermers and Blokker, op. cit., §§ 1801–42,
give a complete description of the different types of representation to and by IGOs.
 international acts 407

The latter is true in particular of the UN,20 of the many IGOs and autonomous
organs with headquarters in Geneva, and of several regional organizations.
The General Assembly of the UN already in its resolution 257 (III) acknowl-
edged that “since the creation of the United Nations, the practice has developed
of establishing, at the seat of the Organization, permanent missions of member
States” and recommended procedures for such missions similar to those of
diplomatic missions to States. The delegates who adopted the resolution made
no attempts to hook the establishment of missions on to the UN Charter as an
“implied” power.
In some cases IGOs maintain delegations to States, notably to States with
which they maintain close relations, e.g. assist with development assistance.
Such delegations are frequently granted diplomatic privileges and immunities,
but can in any case claim immunity under customary law for their ofcial acts.
Detailed rules are laid down in the Vienna Conventions on the Representation
of States in their Relations with International Organizations of a Universal
Character of 14 March 1975, cf. below.
Thus the UN Specialized Agencies maintain missions in New York to the
UN and these are accorded privileges and immunities by the host State – they
are even entitled to claim this under customary law.
Delegations to and from IGOs are not normally authorized in the consti-
tutional conventions of the organization (or in State constitutions), but the
capacity to establish them is rm customary law.

Convocation of and participation in international conferences

IGOs convene international conferences of plenipotentiary representatives

of States even if their constitutions do not contain any relevant authorizing
provision. Regardless of the fact that the UN Charter, in Article 62 (4) only
authorizes the Economic and Social Council to convene international confer-
ences, the General Assembly has on numerous occasions done the same. IGOs
thus act in a different way than NGOs, which do not convene conferences of
States. The diplomatic conferences for the revision of the Geneva Conventions
are convened by the Swiss Government rather than the International Com-
mittee of the Red Cross (ICRC), despite the fact that the ICRC prepares the
conferences and acts as Secretariat to them. On the other hand, the Standing

20 In the year 2007 the UN had 192 members maintaining permanent missions. The Holy
See is currently the only non-member State with a permanent mission to the UN head-
quarters in New York.
408 chapter nine

Commission, which is the main organ of the Movement, convenes Interna-

tional Conferences of the Red Cross and Red Crescent, comprising State
parties, national Red Cross and Red crescent societies, the Federation (of the
national societies) and the ICRC.
IGOs are also frequently invited to participate in international conferences
of States, normally as observers without the right to vote, to move proposals
and to be elected members of committees and ofcers of the conference, i.e.
on a footing similar to that of non-governmental organizations. It is submitted
that if IGOs have not yet been invited to participate in international confer-
ences on the same footing as States, it is because the practical need has not
arisen, and not because their constitutions do not confer this capacity on them
or because they otherwise lack the inherent legal capacity to participate with
full rights in international conferences of States.21

Privileges and immunities

There is usually no provision in the written constitutional convention of the

IGOs – or in the constitutions of States – to empower organizations to establish
delegations to each other. Their capacity to do so is inherent – as a matter of
customary law. And so are the basic privileges and immunities which they enjoy,
although in some cases these are spelled out in conventions.
A complicating factor is the fact that the delegations to IGOs have to
be accorded privileges and immunities, not by the organization, but by the
host State.22 This normally accords diplomatic privileges and immunities to
delegations.23
This subject was taken up by the International Law Commission in 1963
and resulted in the adoption by a UN international conference of a long (92
Articles) “Convention on the Representation of States in Their Relations with
International Organizations of a Universal Character” of 14 March 1975.24
As the cold war was then still on, regional organizations were not included

21 For a practical example of EC participation in an international conference on commodity

agreements, see Schermers and Blokker, op. cit., § 1841.
22 See Bowett, The Law of International Institutions, 5th ed. London 2001, pp. 498–512.
23 For texts referring to permanent representatives and dening their privileges and immuni-
ties, see Art. V of the headquarters agreement between the UN and the United States of
26 June 1947 (UNTS, Vol. 11, p. 11), the similar agreements between the Organization
of American States and the United States of 22 July 1952 (UNTS, Vol. 181, p. 147), and
similar or more far-reaching provisions in other headquarters agreements.
24 Text in AJIL, Vol. 69 (1975) pp. 730–59. See notably Art. 5 of the Convention that mem-
ber States may establish missions “if the rules of the Organization so permit”. However,
under customary international law they can do so if the rules do not prohibit it.
 international acts 409

at the time. But the convention applies to “any international organization of

a universal character”. However, even global organizations do not appear to
be allowed to become regular parties to the convention. As for the substance,
the typical host States were not always able to accept the wish of the majority
for the same wide diplomatic privileges and immunities as apply to embassies
of States, and they are unlikely to accede to the convention.25 Even if and
when the convention enters into force, it cannot be taken for granted that
the more generous provisions will develop into customary law. However the
basic immunities – notably the immunity of the organization from suit in
national courts and the immunity of ofcials in respect of their ofcial acts –
are customary international law valid for all IGOs and their delegations,
whether the organizations are global or regional and whether or not the
organizations are parties to the convention – and they apply in relation to all
States whether or not they are members of the organization.

Membership of other organizations

While it is practical e.g. for regional organizations, exercising extended compe-

tence over member States in particular subject-matters, to become members
of global organizations with coordinating functions over such policy areas,
membership of an IGO in other IGOs alongside its original member States
often raises questions of functional delimitation of powers of the organiza-
tion and its member States, and of voting rights.26 This is illustrated by the
UN Convention the Law of the Sea of 10 December 1982. Articles 305–7
and Annex IX lay down complicated provisions which envisage participation
by intergovernmental organizations. The complications are partly due to the
position held during the cold war whereby it was sought to avoid applying the
same procedures and terms for IGOs as for States, but no less are they due to
genuine problems involved in admitting two representatives for the same ter-
ritories without giving these jointly a stronger position than representatives of
traditional (unitary) member States. The Annex qualies the organization27

25 Cf. J.G. Fennessy in AJIL, Vol. 70, (1976) pp. 62–72 and Schermers and Blokker, op. cit.,
§ 1811, pp. 1155–6.
26 See for example EC membership in WTO referred to above, chapter 1, and of the FAO
in 1991 upon an amendment to its constitution allowing other than States to become
members, see also on EU internal competences, ECJ judgment in case C-25/94 19 March
1996, Commission v. Council (Rec. 1996, p. I–1469) and comments in AJIL Vol. 91, No.
2 (April 1997), pp. 349–355.
27 “For the purposes of article 305 and of this Annex, ‘international organization’ means
an intergovernmental organization constituted by States to which its member States have
410 chapter nine

and States clearly that the organization “shall be a Party to this Convention”
(Article 4) and be responsible for violations (Article 6 (1)) to the extent that is has
competence over the matter. However, the organization may only accede to the
convention if a majority of its member States have already acceded (Article 3).
On the other hand, it may not denounce the convention as long as only one of
its member States remains a party (Article 8 (c) (i)).
These provisions cover only an organization to which its member States have
“transferred” competence over matters governed by the convention (Article 1
of the Annex). They are not designed to cover IGOs which themselves assume
direct jurisdiction over the high seas (e.g. sheries), in outer space or over the
sea-bed, such as the International Sea-Bed Authority under Part XI of the
Law of the Sea Convention. Here there are not the same complicating real
factors as in the case of supranational organizations which have taken over
part of the jurisdiction of their member States.

9.3 Advisory opinions of the International Court of Justice

According to Article 96 of the UN Charter the General Assembly and the Secu-
rity Council may request the International Court of Justice to give an advisory
opinion on “any legal question”, which must be understood as comprising not
only questions on the internal law of the organization, but also of public inter-
national law. Other UN organs and the specialized agencies may also request
such advisory opinions on any legal question insofar as they arise “within the
scope of their activities”.28
Three conditions must be satised in order to establish the jurisdiction
of the Court when a request for an advisory opinion is submitted to it by a
specialized agency: the agency requesting the opinion must be duly authorized
under the Charter to request opinions from the Court, the opinion requested
must be on a legal question, and this question must be one arising within the
scope of the activities of the requesting agency.29

transferred competence over matters governed by this Convention, including the compe-
tence to enter into treaties in respect of those matters” – Article 1.
28 Cf. also Art. 66 of the Vienna Convention on the Law of Treaties between States and
International Organizations or between States and International Organizations or between
International Organizations, which establishes ICJ advisory opinions as a mode of settle-
ment of disputes in conicts relating to the interpretation of treaties falling under the
Convention. According to Art. 66 (e) of the Convention, an advisory opinion rendered
shall be accepted as decisive by all the parties to the dispute concerned.
29 Cf. Application for Review of Judgement No. 273 of the United Nations Administrative
Tribunal, Advisory Opinion, ICJ Reports 1982, pp. 333–334.
 international acts 411

As stated above, the right to ask for an advisory opinion is not unlimited in
questions of public international law.30 Such limitation of scope may be illus-
trated by the request to the ICJ, on a decision by the WHO, to give an advisory
opinion on the following question: “In view of the health and environmental
effects, would the use of nuclear weapons by a State in war or other armed
conict be a breach of its obligations under international law including the
WHO Constitution?” After having examined the WHO rules and decisions
relevant to the question submitted, the court found that: “In the view of the
Court, none of these functions has a sufcient connection with the question
before it for that question to be capable of being considered as arising ‘within
the scope of [the] activities’ of the WHO.” On this basis the court declined
to render an opinion on the matter.31 However, upon a request by the UN
General Assembly the ICJ soon afterwards, by majority decision, rendered an
opinion on the legality of the threat or use of nuclear weapons.32
Even in cases submitted by the General Assembly the Court must consider
whether it has jurisdiction to give an opinion and that there is a sufcient
relationship between the question on which the advisory opinion is requested
and the activities of the General Assembly.
In the case concerning Legal Consequences of the Construction of a Wall 33 the
Court found, after examining the situation, that the General Assembly’s
request did not exceed its competence in Article 12 of the Charter, which
provides that, while the Security Council is exercising its functions in respect
of any dispute or situation, the Assembly must not make any recommendation
meanwhile, but that according to resolution 377A (V), if the Security Council
fails to exercise its primary responsibility for the maintenance of international
peace and security, the General Assembly may consider the matter immedi-
ately and make recommendations to member States. The Court found that
such a situation prevailed at the time of the request, and declared that it was
competent to render an advisory opinion on the substance of the matter.
It has been pointed out above34 that already in the advisory opinion on
Reparation for Injuries and in certain subsequent opinions, the majority of the
Court – while retaining the point of departure of the doctrines of delegated

30 Cf. above, chapter 7.10.1 and the reference to the Karelia case before the PCIJ on a
question directly related to an actual dispute between States.
31 Cf. “Legality of the Use by a State of Nuclear Weapons in Armed Conict”, Advisory
Opinion, ICJ Reports 1996, p. 66.
32 Cf. “Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion”, ICJ Reports
1996, p. 226.
33 Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter-
ritory, Advisory Opinion, ICJ Reports 2004, p. 136.
34 Cf. chapter 8.2.
412 chapter nine

and implied powers: that the capacities of an IGO must be positively deduced
from the constitution of the particular organization concerned – allowed for
a radical broadening of the interpretation of the constitution by deeming it
to imply conferment by “necessary implication” of those powers which are
“essential” to the performance of the duties of the organization or which arise
“by necessary intendment out of the Charter”. As has been demonstrated,
even this formula, which has been criticized as “judicial legislation”,35 would
be too restrictive, if the terms “essential” and “necessary intendment” had
been interpreted literally. However, the Court never applied any such literal
interpretation. Moreover, it did not repeat the restrictive terms “essential”
and “necessary intendment”36 when, in its subsequent advisory opinion on
Certain Expenses of the United Nations of 20 July 1962, it faced the question of
the constitutionality of the United Nations Forces in the Middle East and the
Congo, which were not established on the basis of any of those provisions in
the Charter which authorize the creation of United Nations Forces. Instead,
the Court – after one of the judges had distributed to the other judges an
article, written for the case by the present writer,37 criticizing the doctrine of
“implied” powers and submitting instead the doctrine of “inherent” powers –
turned the point of departure around, stating that when the organization takes
action which warrants the assertion that it was appropriate for the fullment
of one of the stated purposes of the United Nations, the presumption is that
such action is not ultra vires the Organization.38
This statement was not a mere “dictum” (if this term is at all applicable to
advisory opinions), but a basis for the Court’s opinion that the organization
had the power to establish the forces, since the Court did not cite articles,
except in connection with the limitation of the purposes of the organization,
the division of powers between the General Assembly, the Security Council
and the Secretary General or expressed or implied intentions of the drafters,
or subsequent practice (and except in relation to the interpretation of the
budgetary aspects of Article 17).
This brief statement by the Court turned the matter completely around as
compared to its earlier opinions: It is not the powers that require an express or
“implied” basis in the constitution of the organization concerned (delegated or

35 McMahon in BYIL, XXXVII (1961), p. 340.

36 But it did on one occasion (p. 168) use the term “powers conferred”.
37 “Can the United Nations Establish Military Forces and Perform Other Acts without Specic
Basis in the Charter?” Österreichische Zeitschrift für öffentliches Recht und Völkerrecht,
XII (1962), pp. 188–229. Off-prints were distributed to the judges by one of them. The
conclusion of the article and the four limitations were also cited in the oral pleadings,
(ICJ Pleadings, Certain Expenses of the United Nations).
38 ICJ Reports 1962, p. 168, cf. p. 170.
 international acts 413

implied powers), but any limitations upon the power, which thus is inherent. It
is not a condition for the legal capacity of the organization to perform organic
or international acts, or any particular act or type thereof, that such capacity
can be deduced from the constitution or the (presumed) intention of its draft-
ers, or that the acts are “necessary” or “essential” for the performance of the
functions of the organization. The Court did not indicate what reservations it
implied in the term “presumption”. It is submitted that this term must refer
to those cases where performance of the act might be precluded by some
provision of the constitution, other than those delimiting the purposes, or by
a rule of general international law, i.e. to the three other limitations listed
above: Substantive constitutional provisions which preclude performance of
certain acts, procedural constitutional provisions which prescribe competent
organs or specic procedures, and the principle of general international law
that it is incompatible with the sovereignty of States to impose obligations
upon them unless they have authorized such impositions.39 In addition, the
question discussed above arises whether the two former limitations and that
deriving from the stated purposes, which follow from the constitution, have
external effect in cases where corresponding restrictions in constitutions of
States have no external effect, or whether even acts transgressing these limita-
tions have validity in relation to third parties.
Indeed, as already submitted, the adequate point of departure is the contrary
of what is assumed under the doctrines of delegated and implied powers:
The legal capacity of IGOs to perform “sovereign” and international acts
is, like that of States, not conned to what can be positively deduced from
their constitutions, but comprises all acts which are not precluded by their
constitutions and which do not impose new obligations upon parties who
are not subject to their jurisdiction. If the constitution does not dene the
matters with which the organization can deal, as is the case of the Nordic
Council, then it can deal with any matter. And if the constitution does not
preclude certain types of acts or exhaustively enumerate the acts which the
organization may perform, as very few constitutions do, then it can perform
any type of acts. And so it can if there is no constitution. This principle of
inherent capacities reects more adequately the position as it is in practice.
And this appears to be the logical point of departure in the case of all sov-
ereign communities; indeed, any relations they may have with States or other
subjects of international law as such must be governed by international law,
and nobody can prevent them from entering into such relations.

39 The four limitations listed above were repeated by the present writer in the oral proceeding
before the Court; see ICJ Pleadings, Certain Expenses of the United Nations, p. 424.
414 chapter nine

Moreover, as already stated, even the restrictions contained in the constitu-

tion may not be operative externally in cases where corresponding constitu-
tional limitations of States have no external effect. As was pointed out, the
Court has, in its advisory opinion on Certain Expenses, admitted this possibility
in respect of procedural limitations, but not in respect of limitations upon
the purposes of the organization, which have no direct parallel in constitu-
tions of States, although they are comparable to the occasional provisions
containing specic substantive limitations. In its earlier advisory opinion on
Reparation for Injuries the Court similarly spoke in a dictum of the rights and
duties of an organization being dependent upon its purposes and functions
without conning this to relations with member States.40

40 ICJ Reports, 1949, p. 180.

 CHAPTER TEN

RESPONSIBILITY OF INTERGOVERNMENTAL ORGANIZATIONS

10.1 Introduction

The ability of intergovernmental organizations (IGOs) to possess international

rights and obligations is a necessary corollary to the international personality of
IGOs discussed in chapters 2.2 and 8 above. The legal position of IGOs as sub-
jects of public international law inevitably raises questions of their international
responsibility, i.e. to what extent IGOs are answerable for their internationally
wrongful acts under public international law.
Some earlier writers on the subject of international organizations focused
on problems related to the legal position of IGOs vis-à-vis non-member States
and reached the general conclusion that international responsibility of the
organization in relation to non-members, in lieu of its member States, would
require some form of recognition or consent by the third party right holder or
“creditor”. Today it is widely accepted that all legal subjects of international
law are in possession of international rights and obligations and that there
is a clear link between their legal personality and international responsibility
for illegal or wrongful acts.1

10.2 The International Law Commission’s work

In its work on State responsibility the International Law Commission (ILC)

expressly limited the scope of its draft articles with respect to responsibility
of international organizations and responsibility of States for the conduct of

1 “The fact that international organisations may be held accountable for the consequences
of their illegal or wrongful acts is widely accepted. Liability is thus generally presented as
the logical corollary of the powers and rights conferred upon international organisations”,
Sands and Klein, Bowett’s Law of International Institutions, Oxford 2001, p. 513. Diez
de Velasco speaks of the right to participate in relations of international responsibility,
Las organizaciones internacionales, 14th ed., Madrid 2006, pp. 79–83.
416 chapter ten

an international organization.2 In 2002, on the recommendation of the UN

General Assembly in its resolution 56/82 and after the conclusion of a com-
plete set of draft articles on State responsibility, the ILC included the topic of
the responsibility of international organizations in its program of work. Giorgio
Gaja was appointed Special Rapporteur and a working group was established with
a view to studying the basic concepts of scope and purpose of such responsibil-
ity and to recommend a set of draft articles to the ILC.

What constitutes an international organization for the purpose of international

responsibility?

In his rst report, on the scope of work on responsibility of international orga-

nizations, the Special Rapporteur took a functional approach to the denition of
intergovernmental organizations for the purpose of the ILC’s work on interna-
tional responsibility. The report notes that only legal subjects of international
law can become bound by obligations incumbent on them under rules of
public international law. Conversely, an entity has to be regarded as a subject
of international law even if only a single obligation is imposed on it under inter-
national law. Thus, should an obligation exist for an international organization
under international law, the question of that organization’s responsibility may
arise.”3 This line of reasoning will tend to become circular in nature; however,
the report further notes that the acquisition of legal personality depends on the
“actual establishment” of an organization having “sufcient independence”
from its members. “The characterization of an IGO as a subject of interna-
tional law thus appears as a question of fact.”4
During its 55th session in 2003, the ILC decided to continue the work on
this functional approach and thereafter adopted the following wording in
draft Article 2:
For the purposes of the present draft articles, the term “international organiza-
tion” refers to an organization established by a treaty or other instrument gov-
erned by international law and possessing its own international legal personality.
International organizations may include as members, in addition to States, other
entities.5

2 Doc. A/RES/56/83 annex, Article 57.

3 The report States that norms of international law cannot impose on an entity “primary”
obligations or “secondary” obligations under international law – as e.g. international respon-
sibility – in case of a breach of one of the “primary” obligations, unless that entity has
legal personality under international law, cf. doc A/CN.4/532, 26 March 2003, para. 15.
4 Ibid. para. 19. This comes very close to what is described in chapter 2 above as objective
international legal personality of sovereign communities.
5 Cf. doc A/58/10.
 responsibility of intergovernmental organizations 417

The ILC’s comments on the draft article focus primarily on how IGOs are
established and how they acquire a separate legal personality for the purpose
of international responsibility.
On the rst issue, the ILC notes that the reference to a treaty mainly
reects prevailing practice, but that in order for the work to cover organiza-
tions established by States on the international plane without a treaty, article 2
refers to any “other instrument governed by international law”. This wording
is intended to include instruments, such as resolutions adopted by the General
Assembly of the United Nations or by a conference of States. The ILC men-
tions as examples of international organizations that have been so established
the Pan American Institute of Geography and History (PAIGH), the Organi-
zation of the Petroleum Exporting Countries (OPEC), and OSCE.6
On the second issue, the ILC is faced with the differing views of legal
writers on the one hand and practice on the other. The ILC simply notes
that according to one view, the sheer existence for an organization of an
obligation under international law implies that the organization possesses
legal personality. According to another view, further elements are required.
The ILC does not elaborate on what further elements would be required, but
notes that the ICJ in its opinion on the Interpretation of the Agreement of 25 March
1951 between the WHO and Egypt,7 does not appear to set stringent requirements
for this purpose, and that the jurisprudence of the ICJ generally appears to
take a liberal view of the acquisition by international organizations of legal
personality under international law.8
If we apply here the ILC’s compromise approach to the description of legal
personality of IGOs set out in chapter 2.2 above, it must be assumed that,
in principle, international responsibility is attributed to any IGO meeting the
objective criteria to the extent that it is in breach of any of its obligations
under public international law.

6 Id., pp. 39–40, para. 4. Schermers and Blokker nevertheless maintain that the OSCE is
excluded from the scope of the draft articles on responsibility of international organiza-
tions because of the separate requirement of legal personality, cf. International Institutional
Law, 4th ed., Leiden 2003, § 29, on p. 22.
7 The ICJ stated in its dicta on legal personality that: “International organizations are subjects
of international law and, as such, are bound by any obligations incumbent upon them
under general rules of international law, under their constitutions or under international
agreements to which they are parties”, cf. ICJ Reports 1980, para. 37, pp. 89–90.
8 Ibid. note 5 above, para. 8, pp. 41–2.
418 chapter ten

Scope of the international responsibility of IGOs9

The wider terms of accountability and governance of international organiza-

tions, e.g. as applied by the International Law Association,10 regulate ve differ-
ent types of legal relationships which may entail some form of responsibility
for IGOs. These are relationships with (1) its member States, (2) its staff, (3)
with non-member States and other intergovernmental organizations, (4) with
non-State private entities and NGOs under contract and (5) other third parties
such as private individuals, interests groups and representatives of civil society,
including NGOs.
Similar to the draft articles on State responsibility, the Special Rapporteur’s
rst report seeks to distinguish between international responsibility, which is
covered by the scope of the draft articles, and civil liability, which is thought
to fall outside the scope of the ILC’s work.11 The effect of this distinction is
that for the purpose of ILC’s deliberations on the topic, both contractual and
non-contractual liability and disputes relating to staff employment conditions
are not to be considered as part of the international responsibility of IGOs
but rather as within the purview of the internal law of the organization.
The report cites as an example of civil liability the litigation concerning the
International Tin Council (ITC). Until its dissolution ITC was headquartered
in the UK and possessed an international legal personality separate from its
member States. The ITC’s decision to suspend market operations due to the
exhaustion of its nancial resources gave rise to numerous court cases against
the ITC, its member States and against the European Community as a signa-
tory to the then Sixth Agreement of the ITC.12 The outcome of these court

9 It is not the ambition to discuss here in any detail neither the ILC’s still ongoing work, nor
the content of the numerous draft articles on the subject, but merely to identify the sig-
nicance of these deliberations for the topic of international legal personality of IGOs.
10 The ILA established a Committee on Accountability of International Organizations in 1996
and the topic was dealt with in subsequent reports; Taipei 1998, London 2000, New Delhi
2002 and Berlin 2004 (nal report). In its rst report the ILA noted that “accountability
is multi-faceted, with various degrees of consequences ranging from oversight, monitor-
ing, and evaluation processes to censorship or other forms of sanctions to he attribution
of legal liability for injuries, resulting in binding remedial action” (p. 5). In this sense
accountability is part of the internal law of the organization (Part Two of this book) and
comprises relations also with external parties (Part Four).
11 Ibid. supra note 3 para. 29.
12 An overview of these proceedings is outlined in the annex to the opinion given by the
Advocate General to the European Court of Justice, cf. Reports (1990), p. I-1824. While
the cases against the ITC concerned the organization’s contractual liability, the procedures
against the member States rested on the supposed existence of a legal basis in interna-
tional law permitting member States of IGOs to be held liable for the conduct of the
organization. In the case against the EC it was alleged that the EC’s participation in the
ITC Sixth Agreement was in breach of internal EC Law, including the (at the time) EEC
 responsibility of intergovernmental organizations 419

proceedings seems to conrm that so far, no rule of international law has

emerged that would hold member States liable for the contractual obligations
of an IGO, unless member States have otherwise assumed such liability.
It should also be noted that relations with member States as such are a
matter of the organization’s internal law, except for the separate question of
potential State responsibility for the conduct of an IGO arising out of that
State’s conduct as member of the organization, as well as the question of the
IGO’s responsibility for the acts of a member State. The ILC draft article
1 (2) States that: “The present draft articles also apply to the international
responsibility of a State for the international wrongful act of an international
organization”.
On this basis, the Special Rapporteur, in his fourth report on the subject, deals
with the question of responsibility of members of an international organi-
zation when that organization is responsible.13 In this connection the report
draws from the arguments provided in the cases concerning the ITC.14 It
may be observed, however, that the legal force of the arguments put forward
concerning member State responsibility for the organization’s non-compliance
with its contractual liability are more convincing than similar situations where
the organization is held responsible for an internationally wrongful act. Even
if it is admitted that these legal arguments may shed light on the existence
in international law of a norm on member State responsibility, the IGO’s
exercise of governmental functions is different from an IGO’s dispositions of
a contractual nature.15 However, the ILC did note in the report of its 56th
session that the practice concerning civil liability is relevant for the purpose
of attribution of conduct under international law when it states or applies a
criterion that is not intended as relevant only to the specic question under
consideration.16

Treaty. However, none of the proceedings against ITC signatories was successful. The
case before the European Court of Justice was discontinued.
13 See doc. A/CN.4/564/Add.2, 20 April 2006.
14 Ibid. para. 79–81.
15 The latter question is one of possible implied member State guarantee vis-à-vis the
organization’s creditors and of protecting reasonable expectations of those creditors, see
e.g. Herdegen, “The insolvency of international organizations and the legal position of
creditors: some observations in the light of the International Tin Council crisis”, Nether-
lands International Law Review, vol. 35 (1988), pp. 135 ff., Amerasinghe, “Liability to third
parties of member States of international organizations: practice, principle and judicial
precedent”, International and Comparative Law Quarterly, vol. 40 (1991), pp. 259 ff.
and Klein, “La responsabilité des organisations internationales dans les ordres juridiques
internes et en droit des gens”, Brussels 1998, pp. 509–510.
16 Cf. doc. A/59/10, p. 103, para. 7.
420 chapter ten

10.3 Are States relieved of their responsibility if they delegate

their relevant powers to the organization?

The question of member State responsibility has been formulated as a question

if States can evade – or circumvent – their own obligations to third parties by
constituting an intergovernmental organization to act in their common interest.
The ILC’s draft articles 25–30 deal with the question of the responsibility of a
member State for the conduct of an international organization, but other draft
articles on the attribution of conduct are also relevant, e.g. draft Article 13 on a
State’s exercise of direction and control over the conduct of an IGO.
Draft Article 28 deals precisely with the situation where an IGO commits
an act that would have been internationally wrongful if committed by a
member State of that organization. The draft Article reads:
1. A State member of an international organization incurs international respon-
sibility if its circumvents one of its international obligations by providing the
organization with competence in relation to that obligation, and the organization
commits an act that, if committed by that State, would have constituted a breach
of that obligation.
2. Paragraph 1 applies whether or not the act in question is internally wrongful
for the international organization.17
In its commentaries to the draft Article the ILC underlines that no intention
of circumvention or abuse of rights is required for the member State to incur
responsibility, but the unwitting result of providing an IGO with competence
is not covered by the provision. The examples provided concern jurisprudence
where the peremptory character of human rights norms played an important

17 Cf. docs. A/CN.4/L.695/Add.1, 3 August 2006, p. 8 and A/61/10 pp. 283–87. Member
State responsibility is also addressed in draft Article 43 as a requirement to compensate,
through the intergovernmental organization, for the wrongful acts committed by the
organization. This presumed norm of common law of IGOs is here indicated also as an
emerging norm of public international law, but not to the extent that it makes a member
State obligation towards the organization relevant in relation to third parties as a subsid-
iary responsibility if the organization is not in a position to provide compensation. The
ILC comments State that: The majority of the Commission was in favour of including
the present article, which had not been proposed in the Special Rapporteur’s report.
This article is essentially of an expository character. It intends to remind members of a
responsible international organization that they are required to take, in accordance with
the rules of the organization, all appropriate measures in order to provide the organiza-
tion with the means for effectively fullling its obligation to make reparation. The major-
ity of the Commission maintained that no duty arose for members of an international
organization under general international law to take all appropriate measures in order to
provide the responsible organization with the means for fullling its obligation to make
reparation. However, some members were of the contrary opinion, while some other
members expressed the view that such an obligation should be stated as a rule of progres-
sive development, cf. doc. A/62/10, pp. 216–7.
 responsibility of intergovernmental organizations 421

role in the court’s reasoning. A principle of member State responsibility in

cases where an IGO exercises extended competence over functions that States
may not have, could also in theory raise problems, e.g. if a global organization
assumed jurisdiction over a global common referred to in chapter 6.2 above,
and such occupation would be considered wrongful if exercised by a member
State.
To some writers the question of member State responsibility has been
closely interlinked with a perceived limited legal personality of IGOs. Some
authors hold member States to be responsible because they do not accept
that the organization has its own legal personality or they consider that the
legal personality of the organization can have legal effects only with regard to
non-member States that recognize it.18 Several writers, including Seidl-Hohen-
veldern,19 have taken the view that IGOs have no international personality
in relation to non-member States which have not recognized them, and submit,
as a logical consequence, that the international responsibility vis-à-vis these
States (but not vis-à-vis member States) vests in the several member States
or in those member States which the non-member State concerned holds
responsible for the act.20 However, in contradistinction to many other writers,
Seidl-Hohenveldern reserved the position of the United Nations, for which
objective international personality has been claimed on special grounds, such
as its duty to maintain international peace, its global aims and membership
etc.21
Seidl-Hohenveldern shared the two assumptions upon which other writers
(from continental European Roman law countries) base their denial of the
objective international personality of IGOs,22 and he argued his denial also
on the basis of the general principle of law that a creditor is not obliged to
accept a new debtor in lieu of the old one. Similar considerations also led
other writers to consider the member States responsible for the acts of the

18 Supra note 5, para. 88 and the references cited therein at p. 10, note 160.
19 “Die völkerrechtliche Haftung für Handlungen internationaler Organisationen im Verhält-
nis zu Nichtmitgliedstaaten”, Österreichische Zeitschrift für öffentliches Recht, XI (1961)
pp. 497–506, and “Rückgriff auf Mitgliedstaaten in internationalen Organisationen” in
R. Bernhardt et al. (ed.): Völkerrecht als Rechtsordnung, Berlin 1983, pp. 881–90; see
also the various views of other Roman law writers cited ibid. p. 889.
20 “Ich glaube daher, dass ein Nichtmitgliedstaat die gesonderte Völkerrechtspersönlichkeit und Verantwortlich-
keit einer Internationalen Organisation nicht anerkennen muss. Er kann sich daher mit seien Ansprüchen
an den oder die Mitgliedstaaten halten, die er für die von der Organisation vorgenommene Handlung
für verantwortlich hält. Er könnte hierbei sowohl kollektiv gegen sämtliche Mitgliedstaaten vorgehen als
auch denjenigen Staat herausgreifen, auf dessen Boden oder durch dessen mit der Vollziehung der Akte
der Organisation beauftragte Organe (z.B. Art. 89 EWG-Vertrag) die von ihm als völkerrechtswidrig
bezeichnete Handlung gesetzt wurde”. (Özör, IX, pp. 502–3.)
21 Ibid., p. 501.
22 Id., p. 500.
422 chapter ten

organization.23 The basic validity of this principle that no new debtor may be
imposed must, unlike the alleged principle that the international personality
of IGOs depends on their constitution, be admitted. However, its relevance
to the question of objective international personality is limited, because
international relations are not primarily a matter of payments, deliveries or
services made by a “debtor” to a “creditor”.
This principle, to the extent applicable, may be relevant in relation to IGOs
exercising extended powers as described above in chapter 6 and which on this
basis represent its member States in external, international, relations, e.g. for
purposes of resource management, trade agreements, control on emissions to
the environment etc., and may conceivably be put to the test by third parties
in relation to new IGOs, new competences being vested in existing IGOs and
enlargement of the organization’s membership.24 However, it will be demon-
strated in the following that even if the principle is applied in international
law, it does not require responsibility of the member States for all acts of the
organization and that it still less requires denial of the international personal-
ity of the latter vis-à-vis non-member States which have not recognized the
organization.
Member States of an IGO are generally authorized, within certain limits,
to derogate from or modify provisions of a multilateral agreement in their
relations inter se.25 A bilateral agreement to this effect can obviously not affect
the rights of the other parties to that multilateral treaty.
Further, to the extent that the extended powers of an IGO are not exer-
cised in conformity with member States’ prior treaty obligations, the internal
law of the organization cannot generally be assumed to affect the rights of
third parties. Article 307 of the Treaty establishing the European Community
conrms the exception that prior rights and obligations shall not be affected

23 Paul de Visscher, Wengler and, somewhat differently, Pescatore in Actes ofcials du Congrès
international d’études sur la Communauté européenne du charbon et de l’acier, Milano
1958, II p. 44, and III pp. 25–28, 62–64 and 351; Pescatore in Recuil des Cours, 1961
II, p. 40 – he adds, however, that there is a duty to recognize. – Wengler, loc. cit., III, p.
28, draws the logical consequence that the member States inversely are entitled to protect
the organization against violations of international law on the part of third States.
24 As Sarooshi points out, “when States transfer powers to an organization they must try and
ensure that the organization’s exercise of powers cannot lead to the imposition of obliga-
tions on the State that are inconsistent with a prior treaty obligation owed to another State
(or indeed to another organization) that is not a party to the treaty that transfers powers”,
D. Sarooshi, International Organizations and their exercise of sovereign powers, Oxford
2005, p. 103.
25 Cf. Art. 41 of the Vienna Convention on the Law of Treaties. See also the Treaty establish-
ing the European Union, Arts. 40 and 43–45, on the competence to establish an enhanced
cooperation even between member States.
 responsibility of intergovernmental organizations 423

by EC law, but also commits member States to take all appropriate steps to
eliminate the incompatibilities established.26
Even if the original conferral of extended powers to the IGO is by itself
coherent with the member State’s prior obligations, a member State will
normally not be in a position to control the exercise of such powers by the
IGO. An example of such extended powers to conclude treaties is provided
by the EC Treaty, which contains provisions on treaty-making powers and
other external action in Article 133 and on association agreements in Article
310.27 Article 300 (7) of the EC Treaty provides that:
Agreements concluded under the conditions set out in this Article shall be binding
on the institutions of the Community and on Member States.
This rule, being part of the internal law of the organization, does not imply that
member States become bound vis-à-vis third parties, unless the member States
have accepted an additional obligation towards those third parties.28
In contrast, the Treaty establishing the European Union contains provisions
on treaty-making competence in Articles 24 and 38, on an intergovernmental
basis. Thus, in parallel with agreements of mixed community and member
State competence, treaties concluded under the EU Treaty are subject to
national approval by the member States according to their constitutional
requirements.29 Where the subject-matter covered by an international agree-
ment is not fully within the exclusive competence of the Community, the prob-
lem may be solved in practice by making both the Community and the several
member States parties to such treaties (so-called mixed agreements).30

26 In cases concerning the EC Equal Treatment Directive, the ECJ accepted that member
States being parties to ILO Convention No. 89, restricting women’s access to industrial
night-work in breach of the directive, could continue to apply deviating national stand-
ards. However, the member States in question were subsequently required to denounce
the Convention, see Craig and De Búrca, EU Law, 3rd ed., Oxford 2003, p. 894 and the
court cases cited.
27 However, the European Court of Justice has developed a theory of implied external pow-
ers which is more or less parallel with the EC’s internal competence; see Craig and De
Búrca, op. cit., p. 128.
28 Cf. France v. Commission, judgment 9 August 1994 in Case C-327/91, European Court
of Justice Reports 1994, p. I-3674, para. 25.
29 Cf. e.g. the Agreement 28 June 2006 between the European Union and Iceland and
Norway on the surrender procedure between the Member States of the European Union
and Iceland and Norway (as reproduced in the Ofcial Journal of the European Union
L 292, 21 October 2006, pp. 2 ff.), which may be seen as an instrument of 56 bilateral
agreements between the EU in its capacity of IGO, the 27 EU member States and Ice-
land and Norway respectively, since the material obligations set out in the agreement are
different for the various parties as a reection of their national priorities.
30 The European Court of Justice, requested to pronounce its opinion on the conclusion of
the World Trade Organization, held that the Community and its member States were
424 chapter ten

In the rst place, it is doubtful whether the said principle of “no new
debtor” in national law necessarily applies also in international law, when the
object of an obligation is transferred from the “debtor” to another subject
of international law.31 Succession in international law is somewhat different.
Thus it cannot be insisted that a State remains responsible for the fulll-
ment of obligations, under general international law or under any treaty, in
respect of a territory which it transfers to another State or to an IGO. It is
also doubtful whether a State will remain responsible for the fulllment of
its previous obligations, for example a customs treaty, if it joins one or more
other States in a loose federal State, a relationship of suzerainty or some
other form of union or supranational organization which assumes complete
and exclusive internal and external powers relating to the subject matter of
the obligations, and which also assumes responsibility for the fulllment of
these obligations.32
When the International Committee of the Red Cross, in its circular letter
of 10 November 1961 to the contracting parties to the 1949 Geneva Con-
ventions, held each contracting State providing a contingent to the United
Nations responsible for the application of these Conventions, it was for the
express reason that the United Nations was not (and still is not) a party to
these Conventions and their subsequent additional protocols. The UN Secre-
tary-General has promulgated a Bulletin on Observance by United Nations
Forces of International Humanitarian Law (IHL) in 1999.33 As a binding
legal instrument in the internal law of the organization, the effect of these

jointly competent to conclude GATS and TRIPS, Cf. European Court of Justice Reports
1994, p. I-5267. However, the Court found that the Community had sole competence,
pursuant to Article 133 of the EC Treaty, to conclude the Multilateral Agreements on
Trade in Goods. Steinberger nevertheless maintains that the EC and its member States
are bound by the whole agreement despite the fact that their internal competences are
functionally divided, and that they bear joint and several responsibility for any breaches,
“The WTO Treaty as a Mixed Agreement: Problems with the EC’s and the EC Member
States’ Membership of the WTO”, European Journal of International Law, Vol. 17 no.
4 2006, pp. 837 ff.
31 Cf. the interesting examples listed, but only partly answered, by Wengler, loc. cit., III,
p. 26.
32 These problems were addressed in connection with the German reunication process
in 1990, where the Federal Republic of Germany assumed responsibility for obligations
incumbent on the eastern part of the State. The process could not be considered as a
merger of two sovereign German States but rather as an accession of the GDR (being a
part of Germany) to the FRG as the political organisation of Germany as a whole. As a
rule, nancial obligations of the predecessor State arising in conformity with international
law towards another State, international organisation or any other subject of international
law pass to the successor State, cf. K. Hailbronner, Legal Aspects of the Unication of
the Two German States, 2 EJIL (1991) pp. 18–44.
33 United Nations, Secretary-General’s Bulletin, ST/SGB/1999/13, 6 August 1999.
 responsibility of intergovernmental organizations 425

core principles is on the operation as such as an organ of the UN and on its

ofcials. Troop contributing States and national contingents are in principle
unaffected as they remain bound by IHL in their capacity of States parties
to the Geneva Conventions and the additional protocols.34
The position is more doubtful when a State has transferred to an IGO
only part of its powers relating to the subject matter of the obligation.35 One
example is member States’ voluntary troop contributions to international peace
support operations under UN mandate and authorization. Acting under inter-
national unied control and command, the troop contributing State retains
both disciplinary and criminal jurisdiction over its troops.36
The European Court of Human Rights (ECHR) rendered an important
decision on 2 May 2007 concerning the admissibility of claims against troop
contributing States for alleged human rights violations committed in Kosovo by
the international Kosovo Force (KFOR) under NATO command and control.37
While it is obvious that conduct of military forces of States or IGOs is not
attributable to the United Nations in situations where the Security Council
authorizes States or IGOs to take necessary measures outside a chain of
command linking those forces to the United Nations, the question concern-
ing the security presence in Kosovo turned out to be one of degree of UN
control over the international presence. In its decision, the court relied on the
principles of “attribution” and “effective control” as set out in the ILC draft
articles on responsibility of international organizations. The court held that
the alleged acts and omissions of KFOR personnel fell under the mandate
of KFOR and UNMIK respectively, as authorized by the Security Council in
Resolution 1244 (1999), and that KFOR troops under effective NATO com-
mand and control therefore operated under UN delegated command. Thus,
the Security Council retained “ultimate authority and control” so that direct
operational command is not a requirement of Chapter VII collective security

34 Zacklin, United Management of Legal Issues, in Howard and Oswald (eds), The Rule of
Law of Peace Operations, Conference paper Melbourne 2002, pp. 122–4 (www.apcml.
org/RuleofLawbooknal.pdf visited September 2007.)
35 Even in the case of the United Nations Forces in the Middle East (UNEF) and the Congo,
the States providing contingents retained certain powers, in particular with regard to
discipline and criminal matters, see Seyersted; UN Forces, p. 56, something which is now
reected in the model Status of Forces Agreement (UN doc. A/45/594), a fact which has
complicated the question of responsibility.
36 This raises fundamental questions of responsibility in international peace support operations
where troop contributing States confer certain powers of unied command and control
over the operation to an IGO (e.g. UN, NATO, and AU); see further M. Zwanenburg,
Accountability of Peace Support Operations, Leiden 2005.
37 Decision of the Grand Chamber of the European Court of Human Rights, applications
nos. 71412/01 Behrami and Behrami v. France and 78166/01 Saramati v. France, Ger-
many and Norway.
426 chapter ten

missions. It was admitted that troop contributing States retained some authority
over own troops during the operation for reasons inter alia of safety, discipline
and accountability, but even if NATO’s operational control was not intended
to be exclusive, it was nevertheless “effective”. The Court thus observed that
“KFOR was exercising lawfully delegated Chapter VII powers of the UNSC
so that the impugned action was, in principle, “attributable” to the UN” within
the meaning of the ILC draft articles (italics added),38 and found that it was
not competent ratione personae to review the merits of the complaint.
The court did not entertain questions of the international legal status of
NATO or KFOR. However, the ILC’s comments on draft Article 13 on
responsibility of IGOs refer to KFOR as one of two international organiza-
tions allegedly exercising direction and control in the commission of a wrongful
act, citing the French Government’s preliminary objections in Legality of Use
of Force (Yugoslavia v. France) before the International Court of Justice, when
the French Government held that: “NATO is responsible for the ‘direction’
of KFOR and the United Nations for ‘control’ of it.”39 On the question of
attribution of conduct to KFOR the court only concluded that the delegation
model demonstrates that direct operational command from the UN Security
Council is not a requirement of Chapter VII collective security missions
(para. 136).
In conclusion the court stated that “the impugned acts and omissions of
KFOR and UNMIK cannot be attributed to the [troop contributing] respon-
dent States”. As a general principle, delegation of powers to an IGO in rela-
tion to a peace support operation authorized by the United Nations cannot
be considered as circumvention of legal commitments under international
law by the troop contributing States.
At the time of the UN assuming extended powers of the province of
Kosovo and delegating powers to the security presence under NATO unied
command and control, The Federal Republic of Yugoslavia, the territorial
sovereign, was not a member of the United Nations40 and also not a member
of NATO. Potential questions of non-recognition of the UN, NATO or KFOR
were not relevant to the above proceedings before the ECHR.
Another example of partly transferred powers to an IGO is the headquarters
district of an IGO, where the host State has ceded only certain parts of its

38 Decision para. 141.

39 Cf. doc. A/60/10, pp. 97–8. See also Serbia & Montenegro v France, ICJ Reports (2004),
p. 575.
40 See ICJ decisions in cases of Legality of Use of Force where the Court concluded that
FRY (and with effect from 4 February 2003, “Serbia and Montenegro”) was not a mem-
ber of the United Nations, and not in that capacity a State party to the Statute of the
International Court of Justice, at the time of ling its Application to institute proceedings
before the Court on 29 April 1999.
 responsibility of intergovernmental organizations 427

territorial jurisdiction to the organization.41 Similarly, the European Com-

munities have in some areas assumed only limited powers in respect of the
subject-matter of their competence, leaving the residuary powers and concur-
rent jurisdiction over foreign relations,42 in the hands of national authorities.
In fact, the members of the Community have in most cases retained their
obligations under their previous agreements as their own obligations, even in
cases where they in fact are fullled by the organization. Only to a limited
extent have the obligations been transferred to the organization and then in
principle only with the consent of the other contracting party.43
As a consequence of new member States joining an IGO constituting a
customs union or free trade area under WTO rules, the question of com-
pensation may arise in the event that the new trading regime, in light of the
most favoured nation principle, is less advantageous to a third party than the
former one.44 The obligation to compensate for loss in trade is upon the IGO
(representing the customs union) and not on the ( joining) member States in
their capacity of being the original debtor. In this respect the member States
of the WTO have agreed in advance to accept customs unions and free
trade areas as “new debtors”. In the eld of environmental protection, both
the European Community and its member States are parties to the Kyoto

41 Under the headquarters agreements between the United Nations and the United States
of 26 June 1947, Article III (UNTS, Vol. II, p. 11) and between the International Atomic
Energy Agency (IAEA) and Austria of 11 December 1957, §§ 7–8 (UNTS, Vol. 339,
p. 152, United Nations Legislative Series, ST/LEG/SER.B/11, Vol. II, p. 330) only very
limited powers over the headquarters district were transferred to the organization. On the
resulting problems of the responsibility of the organization and that of the host State, see
Eagleton in Recueil des Cours, 1950, I, pp. 396–8. See § 46 of the IAEA headquarters
agreement and Zemanek in Verdross: Völkerrecht, Vienna 1964, p. 392, note.
42 This has been pointed out, in respect of EURATOM, by Hahn, Harvard Law Review,
LXXI (1958), p. 1054.
43 Thus the members of the Community remain separate members of the organization
for Economic Co-operation and Development (OECD), of the contracting parties to the
General Agreement on Tariffs and Trade (GATT) and of GATT 1994 (which is identical
to, but “legally distinct” from GATT 1947) which is now an Annex to the constitution of
the new World Trade Organization, and whose members are both the members of the
European Community and the Community itself. They retain their obligations under these
organizations to the extent that the latter have not relieved them, although the Community
as such has also assumed certain obligations under the organizations.
44 In such circumstances GATT Article XXIV and para. 5 of the Understanding on the
Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994
provide that “negotiations will be entered into in good faith with a view to achieving mutu-
ally satisfactory compensatory adjustment. In such negotiations, as required by paragraph
6 of Article XXIV, due account shall be taken of reductions of duties on the same tariff
line made by other constituents of the customs union upon its formation. Should such
reductions not be sufcient to provide the necessary compensatory adjustment, the customs
union would offer compensation, which may take the form of reductions of duties on
other tariff lines.”
428 chapter ten

Protocol, which sets out that the parties individually or jointly shall ensure
that their aggregate emissions of the greenhouse gases listed do not exceed
their assigned amounts.45 In the eld of human rights, the jurisprudence
of the European Court of Human Rights holds member States responsible
under the European Convention for the Protection of Human Rights and
Fundamental Freedoms for their own acts even if such acts have a legal basis
in community law.46 The Community thus does not appear to give rise to any
imposition of a new debtor to existing agreements. The legal and practical
difculty which Seidl-Hohenveldern has invoked against the validity of the
international personality of IGOs vis-à-vis non-member States is thus not
very likely to arise in respect of agreements concluded by members of these
organizations. However, it may arise in respect of obligations arising under
general international law.
It is submitted that the principle that no new debtor may be substituted
without the consent of the creditor is not generally applicable to violations
of general international law committed by a State or IGO in or from the
territory of another State where it has been allowed to operate. Whatever
may be the relevance of that principle in this context, it should be noted
that the latter State is not generally internationally responsible for all acts
performed in its territory, but only for such acts as its organs instruct, direct
or control.47 In particular, it is not possible to support the suggestion that a

45 Articles 3 and 4 of the Kyoto Protocol to the United Nations Framework Convention on
Climate Change, signed 11 December 1997.
46 See e.g. the case before the European Commission of Human Rights, M & Co. v. Germany,
application no. 13258/77 and subsequent decisions of the European Court of Human
Rights. Although the EU is not a party to the European Convention of Human Rights,
member States have sought to ensure that the organization’s powers are exercised in
conformity with the Convention by adopting article 6 (2) of the EU Treaty, which reads:
“The Union shall respect fundamental rights, as guaranteed by the European Conven-
tion for the Protection of Human Rights and Fundamental Freedoms signed in Rome on
4 November 1950 and as they result from the constitutional traditions common to the
Member States, as general principles of Community law.” The Treaty of Lisbon of 13
December 2007 provides the EU with the competence to seek to become a party to the
European Convention on Human Rights.
47 See ILC draft articles on responsibility of States for internationally wrongful acts, annex of
doc. A/RES/56/83 of 28 January 2002, article 8. Cf. also Verdross: Völkerrecht, Vienna
1964, pp. 391–3.
On the other hand, the headquarters agreement between the International Atomic
Energy Agency and Austria of 11 December 1957 provides in § 46: “The Republic of
Austria shall not incur by reasons of the location of the headquarters seat of the IAEA
within its territory any international responsibility for acts or omissions of the IAEA or of
its ofcials acting or abstaining from acting within the scope of their functions, other than
the international responsibility which the Republic of Austria would incur as a Member
of the IAEA”. As pointed out by Seidl-Hohenveldern: “Die völkerrechtliche Haftung für
Handlungen internationaler Organisationen im Verhälltnis zu Nichtmitgliedstaaten” in
Österreichische Zeitschrift für öffentliches Recht, XI (1961) p. 504, this provision has no
 responsibility of intergovernmental organizations 429

non-member State which has not recognized the organization may hold the
host State responsible, on the basis of the principle that no new debtor may
be imposed, if the organization does not pay a pension which it may owe
to one of its ofcials who is a national of that non-member State.48 At least
if the host State has not delegated any of its own powers – but has merely
granted the customary privileges and immunities, or has merely, as in the
example given, respected the inherent and exclusive organic jurisdiction of
a foreign State over its diplomatic missions or of the organization over its
organs in the territory of the host State – there would not normally be any
basis for considering the foreign State or the IGO as having been substituted
as a “debtor” in the obligations of the host State in respect of its territory,
in a manner which other States could refuse to accept. A different situation
occurs where a State expressly has conferred on an IGO powers to act on its
behalf as an agent, a relationship which would require a mutual consent.49

10.4 Is the organization relieved of its responsibility if the States

which delegate powers to it remain responsible?

In the second place, even if the State concerned remains responsible for the
fulllment of its previous obligations – because none or only part of the pow-
ers relating to the subject matter of these obligations has been transferred, or
because the other State or the organization to which it has delegated its powers
has not also assumed the relevant obligations, or because even such assumption
does not liberate the former State from its responsibility – this does not mean
that the other State or the organization is not responsible for all its acts50 if
these violate general international law or any special obligations undertaken
by it. One could not deduce from the principle that a creditor is not obliged to
accept a substitute debtor that this responsibility of the organization for its own
acts should not apply in relation to all States, including a non-member State
in relation to which a member State might have assumed special obligations.
Thus the principle that a debtor may not substitute another debtor without the

effect vis-à-vis third parties. See also the agreement between the former European Space
Research Organization (now the European Space Agency) and Sweden quoted below. On
the other hand, the International Fusion Energy Organization (ITER) Art. 15 (5) provides
that “Membership in the ITER Organization shall not result in liability for Members for
acts, omissions or obligations of the ITER Organization”.
48 Seidl-Hohenveldern, loc. cit., p. 504.
49 Cf. Sarooshi supra note 24, pp. 33 ff. See also the example loc. cit., p. 26 of the Paris
Peace Accord concerning Cambodia.
50 Wengler, loc. cit., p. 28, in contradistinction to Seidl-Hohenveldern, keeps open the
possibility.
430 chapter ten

consent of the creditor (to the extent it is applicable in international law) does
not deprive the new “debtor”, in casu the organization, of its international
personality and responsibility, even vis-à-vis the “creditor”. It merely adds – to
the organization’s responsibility under general international law and under any
special obligations assumed by it – the responsibility of the member State for
the fulllment of its general and special obligations under international law,
or for having, through its delegation of powers to the organization, made such
fulllment impossible. Similarly, any responsibility which might be assumed to
devolve upon a host State as such for having granted special facilities could not
rule out the responsibility of the organization for any of its acts. Any conict
between the obligations of a member or host State towards a third party and
its obligations towards the organization must be resolved in accordance with
the substantive rules of general international law concerning conicting obliga-
tions,51 and the member or host State must pay reparation to the party which is
thus deprived of satisfaction in natura.

10.5 The responsibility of the organization in fields where no

powers have been delegated to it

In the third place it should be noted that delegation of supranational powers

from the member States to the organization as discussed above is an exceptional
case. As for organizations of the usual type, like the United Nations, member
States will only delegate part of their own (internal) authority to the organiza-
tion in special cases, such as when a member State agrees to place a disputed
territory, a headquarters district or a troop contingent under the partial or full
jurisdiction of the organization. And the delegation of such special powers to
an organization could not suddenly deprive the latter of the international per-
sonality which it had before the delegation.
A general delegation from all member States by constitutional provision
occurs only in the case of supranational organizations,52 notably in the case

51 Or, in the case of the United Nations, Article 103 of the Charter.
52 This term is used in the present book precisely in this sense, of an intergovernmental
organization to which all member States by virtue of the convention constituting the
organization have ceded part of their own territorial, personal and organic jurisdiction
in such a manner that the organization may exercise this jurisdiction directly over their
territory, nationals and organs, cf. Seyersted, UN Forces, pp. 96 –7. An organization is
not considered “supranational” merely because it has the power to make decisions which
are binding upon the member Governments and which are complemented only by these
vis-à-vis their organs, inhabitants and nationals; see, for example, Article 5 (a) of the
constitution of the Organization for Economic Co-operation and Development and Rule
18 (a) (i) of its Rules of Procedure.
 responsibility of intergovernmental organizations 431

of the European Community. Indeed, those writers whom Seidl-Hohenvel-

dern cites as taking the view that the member States are responsible vis-à-vis
non-member States for the acts of the organization are concerned precisely
with the European Community.53 Whatever conclusions a study of this orga-
nization would lead to, it would be entirely inappropriate to extend these
also to organizations where no such delegation (or a complete delegation
of exclusive powers) has taken place. And even in the case of supranational
organizations, any such conclusions in respect of those powers which these
organizations have taken over from the member States could not be extended
to the many other aspects of their activities where they exercise new powers
of their own in the same sense as organizations of the usual type. This applies
notably to the organizational activities,54 such as privileges and immunities,
headquarters agreements, cooperation agreements with other organizations,
permanent representatives etc., as well as to the organizations’ jurisdiction
over its organs and ofcials as such, including the relationship of employ-
ment. It is not possible, on the basis of the principle that a creditor is not
obliged to accept a new debtor in lieu of the old one, to hold the member
State responsible for acts of the organization which involve no delegation of
powers from these States.
As a general rule, responsibility of member States under the rules of the
organization does not imply that those States incur responsibility towards a
third State unless their responsibility is made relevant with regard to that State
under international law.55 Thus, Article 300 (7) of the EC Treaty that agree-
ments concluded shall be binding on the institutions of the Community and
on Member States does not intend to create obligations for member States
towards non-member States.56

53 Paul de Visscher, Wengler, Pescatore, loc. cit. although none of these writers has stated
that their views are conned to the Communities. Seidl-Hohenveldern, on the other hand,
emphasizes that he is concerned with both supranational and other organizations (loc. cit.,
pp. 497–8). This is also the approach of Hahn in Harvard Law Review, LXXI (1958),
pp.1049–51, cf. pp. 1054–5.
54 Even the organizational activities may occasionally involve delegated powers, if member
States or the host State have delegated to the organization positive powers of jurisdiction
beyond the scope of its inherent organic jurisdiction. Thus positive jurisdiction over a
headquarters district may be granted as part of a headquarters agreement, whether or
not the organization is supranational.
55 As also recognized in the special rapporteur’s fourth report on responsibility of interna-
tional organizations, doc. A/CN.4/564/Add.2, 20 April 2006, para. 86.
56 Supra note 28. However, based on the internal law of the organization, national organs,
including the courts of EC member States, are responsible on the national level for
implementing community law, including in the form of certain external agreements which
introduce a certain asymmetry of obligations or create special relations of integration with
the Community, and which may therefore have internal direct effect as a superior source
432 chapter ten

Nor can the host State be held responsible on the basis of this principle,
except that in special cases it might be held responsible for having omitted
to take the necessary and possible precautions against abuse of its territory.57
Thus the member States of an IGO which operates ships under its ag, or
aircraft or space vehicles not registered in any State, are not as such respon-
sible for compliance with the principles set forth in the resolution in respect
of such ships, aircraft or vehicles, unless they have specically assumed such
responsibility. As for the examples of member States’ subsidiary liability
discussed above, in chapter 6.2, the provision in paragraph 5 of the United
Nations General Assembly’s resolution 1962 (XVIII) that responsibility for
space vehicles shall be borne by the launching organization and its member
States can therefore only be implemented if these States in each case accept
such responsibility by treaty or otherwise.58

10.6 Are the States which have delegated their powers to the
organization relieved of their responsibility vis-à-vis States
which recognize its international personality?

In the fourth place, it should be noted that if any or all member States remain
responsible for the fulllment of their obligations under general international
law and/or their own treaties even if they have transferred the relevant powers
to the organization, then this responsibility must subsist vis-à-vis any other State,
or any organization, which has not agreed to such transfer in a manner which
involves acceptance of the liberation of the member State concerned from
responsibility for the fulllment of the said obligations. It must thus subsist also
vis-à-vis non-member States which have recognized the international personal-
ity of the organization, and even vis-à-vis member States if the transfer of the

of law directly applicable in the member States. This was e.g. illustrated by the Ospelt
case (C-452/01) where the ECJ found that Austrian authorities were obliged to apply the
relevant provisions of the association agreement on the European Economic Area, thus
conferring community rights directly on certain third country nationals, cf. European
Court of Justice Reports, 2003, p. I-9743.
57 Contra: Seidl-Hohenveldern, loc. cit., p. 504.
58 Even the States from whose territory space vehicles are launched may decline responsibility
if these are launched by the organization. Thus the agreement of 29 July 1964 between
Sweden and the (former) European Space Research Organization provided:
Sweden shall not incur by reason of the activities of the Organization on its territory
any international legal responsibility for acts or omissions of the Organization or of its
agents acting or abstaining from acting within the limits of their functions. If Sweden,
however, should incur such responsibility, Sweden shall have the right of recourse to the
Organization. (Article 6, see also Articles 12–14.)
 responsibility of intergovernmental organizations 433

power has been effected, not through the constitution of the organization, but
through a separate, unilateral or bilateral, act to which they are not parties and
have not agreed. Even in these cases, and even if the organizations is considered
to have objective international personality, valid ipso facto vis-à-vis any member
or non-member State, the “creditor” must be entitled to withhold his consent.
Similarly, any responsibility which is assumed to devolve upon the host State
for having allowed the organization to operate in or from its territory, would
apply even in relation to States which have recognized the organization, and
even if the latter has objective international personality. It is thus not justied
to hold the member (or host) States responsible, on the basis of the principle
that no new debtor may be imposed upon the creditor, only in relation to such
non-member States as have not recognized the international personality of the
organization.59 Objective international personality, recognition and member-
ship are not relevant in this context. The principle that no new debtor may be
imposed upon the creditor is therefore not relevant to the question of objective
international personality. A different matter is that membership or other act of
recognition may also imply consent to the transfer of the powers concerned
and to the liberation of the member States from its responsibility. However,
this depends upon the circumstances in each case, except that membership will
always imply consent to such transfer of powers as follows from the constitution.

10.7 The situation when the States which delegate their

relevant powers to the organization are thereby relieved
of their obligations

It remains to consider the situation which arises in those cases where the prin-
ciple that no new debtor may be imposed upon the creditor, does not apply in
international law, and where the member or host States concerned neither on
this nor on any other basis are responsible for any violations of general interna-
tional law, and where there is no other basis on which the member or host States
concerned may be made responsible for any violations of general international
law, or of their special international obligations, which may result from the act
of the organization. It might be argued that, while it may be reasonable in these
special cases that the debtor is relieved of his obligation if the relevant pow-
ers have been assumed by another State, such liberation might not be equally
justied if the powers have been assumed by an IGO, since such organizations

59 In this case also, as far as non-member States are concerned, de Visscher, loc. cit., p. 44.
Contra; Seidl-Hohenveldern, loc. cit., p. 505 (with the qualication “im allgemeinen”).
434 chapter ten

usually do not have the same means, including territory and population, to
enable them to fulll their obligations and to enable the “creditors” to take
reprisals against them in case of non-fulllment.60 It may also be argued that
the State which has granted the powers to the organization, if it is a member of
the organization, can exercise some inuence upon its acts.
However, one would overshoot the mark if one, in order to cover such spe-
cial cases, were to deprive the organization of its international personality in
relation to non-member States, and thereby force all relations between IGOs
and non-member States into the articial pattern of relations with the several
member States, with all the inconveniences this would involve. Moreover, it
would force non-member States to refuse recognition in abstracto, even if they
merely wanted to prevent the liberation of the “debtor” from specic obliga-
tions. Protection of the “creditor” could be obtained much more simply and
effectively by applying the principle that no new “debtor” may be imposed
upon the “creditor” to transfer of powers and obligations to IGOs even in
cases where one would not apply it to transfers to other States. The argu-
ment for such a position would be that, in the absence of practice relating
to IGOs, international law as applicable to States is applicable by analogy to
IGOs only insofar as the relevant conditions are similar. However, even this
may not prove justied, considering that international law imposes substitution
of the “debtor” responsible for acts over which he has no control, and that
these reasons may be compelling even if the new “debtor” is an IGO.

10.8 Summary

The preceding discussion of the somewhat complicated problems raised by

the principle which Seidl-Hohenveldern invokes in support of his and other
writers’ denial of the objective international personality of IGOs, may best be
summarized on the basis of a distinction between the following cases:
(a) The majority of IGOs have no jurisdiction over their member States
in functional matters, and they certainly have no jurisdiction over the organs,
territory or nationals of the member States. The organizations only have
jurisdiction within their own legal sphere, i.e., the power to make decisions
binding upon their organs and ofcials as such, and upon their member States
in certain organizational matters. In these circumstances the functions and
obligations of the organization on the one side and those of its members or
host State on the other side are clearly distinct, and the acts of the organiza-

60 This was pointed out by Wengler, loc. cit., III, p. 27.

 responsibility of intergovernmental organizations 435

tion will not be of a nature so as to constitute violations of the obligations of

the member or host State, but only of those of the organization itself under
general international law or under any special commitment into which it
might have entered. In these cases there is no question of imposing a new
“debtor” upon a “creditor” of the member or host States or of depriving him
of any rights or claims, and there is no need to deny the objective interna-
tional personality and thus the exhaustive international responsibility of the
organization on this basis.
(b) In some cases, however, notably in the case of supranational organiza-
tions, the organization may, due to a delegation of powers from its member
States or for other reasons, be in a position to violate, by its acts, (also) obli-
gations of one or more member or host States under general international
law or under special commitments which these might have entered into, and
in such cases there are two possibilities:

(i) The principle invoked by Seidl-Hohenveldern may apply, and the member
or host States concerned are not relieved of their obligations. They may then
be responsible also for such violations of these obligations as result from the acts
of the organization, if they, by delegating their powers to the organization or
by allowing it to operate in or from their territory, have enabled it to cause the
violation or have cut themselves off from preventing it or from taking other nec-
essary measures to secure fulllment of their obligations. If the “creditor” thus
retains his rights or claims against the original “debtor”, responsibility applies
only vis-à-vis those States against which the “creditor” would have had a right
if no organization had existed. It cannot, as has been suggested in respect of
supranational organizations,61 be expanded to apply in respect of all member
States of the organization. Thus responsibility does not amount to granting the
“creditor” a right of refusing to recognize the organization as an international
person, i.e., to a denial of its objective international personality.62 This is an
entirely different matter. Objective international personality or recognition does
not in itself constitute consent to the liberation of the “debtor”. The “creditor”
has the right to hold the original “debtor” responsible even if he has recognized
the organization or if the latter has objective international personality, just as

61 Paul de Visscher, loc. cit., II, p. 44 States “Dès l’instant ou la cause du dommage invoqué par
l’Etat tiers réside dans l’exercise, par un organe de la Communauté, d’une compétence propre à celle-ci,
la responsabilité collective de tous les Etats membres de la Communauté pourra être mise en cause”. In
the same sense Seidl-Hohenveldern, loc. cit., p. 503; Pescatore, ibid., p. 351; and, less
denitely, Wengler, loc. cit., III, p. 28.
62 Accordingly it is submitted that Seidl-Hohenveldern, loc. cit., p. 502, overshoots the
mark when drawing this consequence from the principle that no substitute debtor may
be imposed.
436 chapter ten

much as the “creditor” may hold a “debtor” State responsible if the latter has
transferred similar powers to another State recognized by him. And there is no
need to give the “creditor” the right of refusing to recognize the international
personality of the organization in addition to his right to hold the “debtor”
responsible, under the principle that the latter cannot unilaterally substitute a
new “debtor” or under any other applicable principle of international law. If
objective international personality is considered justied on other grounds, it
must and will produce its full effects in respect of any obligations of the orga-
nization under general international law, or under any special commitment
assumed by it, vis-à-vis any other party as well as vis-à-vis the “creditors” of
member States. Any rights of such “creditors” vis-à-vis a member State, under
general international law or under special commitments entered into by that
State are another and additional matter.

(ii) The problem really arises only in those cases where the principle of national
law that no new “debtor” may be imposed upon a “creditor” does not apply in
international law, i.e., when the member or host States under general interna-
tional law are relieved of their obligations or can otherwise refuse responsibility
for violations of their obligations under international law resulting from the acts
of the organization. In such cases it might be possible to force the responsibil-
ity back upon them by refusing to admit the international personality of the
organization. However, in these cases there are strong substantive reasons for
not holding the original “debtor” responsible. Nevertheless, if it is felt that these
reasons are not strong enough if powers have been transferred to an IGO rather
than to a State, the obvious answer is to apply the rule that no new “debtor”
may be imposed upon the “creditor”, i.e. the solution referred to under (i) in
these cases too. This, as has been demonstrated, is not the same thing as to
deny the objective international personality of the organization. The desire to
protect the “creditor” against a liberation of his “debtor” in these limited cases
is no reason for denying the organization the capacity to assume international
rights and duties in other respects, vis-à-vis other non-member States and even
vis-à-vis the same “creditor”, or even to assume rights and obligations in the
same respect, in addition to those of the member or host States.
It thus appears, in conclusion, that the principle that no new “debtor”
may be imposed upon the “creditor” in lieu of the old one does not require
a denial of the objective international personality of IGOs if such personal-
ity is held to exist on other grounds. In none of the cases discussed is such
denial necessary to protect the interest of the “creditor”.
 responsibility of intergovernmental organizations 437

10.9 Remedies

Finally, it should be noted that the discussion above is to a large extent a ques-
tion of available remedies to hold the IGO responsible for its wrongful acts. The
principle of access to a remedy, as applicable to IGOs, is therefore a corollary
of the principle of responsibility.63 Where an IGO provides for no effective
remedy, there is a pressure to overcome such deciency by holding members
States responsible.64 As pointed out in chapter 7.5 above, IGOs have the inher-
ent capacity to designate mechanisms for the settlement of disputes, including
by arbitration clauses, and to establish their own internal courts or other judicial
bodies which would have jurisdiction to deal with such cases. The right to a
remedy has been identied by the International Law Association as an emerg-
ing norm of customary international law.65

63 Cf. Suzuki and Nanwani, Responsibility of International Organizations: the accountability

mechanisms of Multilateral Development Banks, Michigan Journal of International Law,
vol. 27:177 (2005), p. 224.
64 This was precisely the question in the ITC-case referred to in chapter 10.2 above and
also in the “Westland-case” concerning the Arab Organization for Industrialization, see
International Chamber of Commerce, Court of Arbitration, 5 March 1984, Westland
Helicopters Ltd. and Arab Industrialization Organization, United Arab Emirates, Kingdom
of Saudi-Arabia, State of Quatar, Arab republic of Egypt and Arab British Helicopters
Company, 80 ILR 610 (1989).
65 Accountability of International Organisations, Final Report, Berlin 2004, p. 33.
 PART FOUR

CONFLICT OF LAWS:
RELATIONS WITH PRIVATE PARTIES
 CHAPTER ELEVEN

INTERNAL RELATIONS

11.1 Exclusive application of the internal law of the

organization: the organic connecting factor

As explained in Part Two, chapter 5.5,1 the relationship between the organiza-
tion and its ofcials as such is governed, neither by the national law of the host
State, as maintained by some early writers, nor by international law, as main-
tained by the majority of writers, but by the internal law of the organization (briey
referred to as internal law or IGO law). Except for a little temporary faltering
in the early days of the United Nations,2 it has been a consistent practice of
both earlier and modern IGOs, of host States, of national courts and of the
administrative tribunals of IGOs not to apply the law of the host State, unless the
organization has specically submitted to it in a limited eld (for example social
security or local workers not considered by the organization as its ofcials). With
this reservation, no mandatory law of the host State supersedes the internal law
of the organization; nor is its non-mandatory law applied to ll lacunae in the
law of the organization.
This is now customary law. It corresponds to practice with regard to the
law applicable to the relationship of employment of ofcials of States serving
abroad. States and IGOs differ, in this as in other respects, from international
non-governmental organizations (INGOs and other NGOs), whose conditions
of employment, and internal affairs as a whole, are subject to the mandatory
law of the host State and supplemented by its non-mandatory law (territorial
connecting factor).
Thus, to the organic jurisdiction in internal IGO law, discussed above in Part
Two and in public international law discussed above in Part Three, corresponds

1 See also an earlier article; “Jurisdiction over Organs and Ofcials of States, the Holy See and
Intergovernmental Organizations”, ICLQ , XIV (1965), pp. 33–82 and. pp. 493–527.
2 A situation which was ended by e.g. United Nations doc. A/CN.4/118/Add. 1, 5 May
1967, I, para 5.
442 chapter eleven

the organic connecting factor in conict of laws. It has, however, like the organic
jurisdiction discussed in Part Two, been largely ignored by legal writers, although
they get into the problem in connection with lex fori, which is an organic, not
a territorial connecting factor. In particular Werner Goldsmith, in his “Derecho
internacional privado”,3 got close to the organic connecting factor when he, in
his chapter on personal connecting factors, included a part on the “country
that the person serves (lex fori )”. He correctly pointed out, rst, that the term
lex fori is too narrow, because the principle applies not only to judicial, but
also to administrative functions (“tramitacion administrativa” ), and second, that
lex fori in the wide sense does not refer to the law of the country where the
organ acts, but to the law of the country which the authority serves ( “la ley
del pais al que la autoridad consegra sus servicios” ). This is an adequate description
of what is better called the organic connecting factor, as it is neither territorial,
nor personal, and as it may be preferable to reserve the term lex fori for the
judicial functions.
The relationship of employment with IGOs is partly contractual, partly
statutory.4 It is a contract of public law, similar to the contracts of ofcials of
States, and can be governed, neither by the administrative law of any given
State, nor by any law relating to private employment.
The law consistently applied to the relationship of employment between
an IGO and its ofcials is, in addition to the individual terms of appointment
or the contract of employment:

(a) The constitution of the organization, as interpreted in the light of general

principles of international and national law.
(b) The staff regulations, staff rules and other regulations enacted by the
organization, with5 or without6 basis in constitutional provisions.
(c) Customary law developed on the basis of administrative and judicial
precedents within the organization.
(d) General principles of law, drawn mostly from the internal law of other
IGOs and the public national law of the member States.

Many or most writers now admit that this is the only applicable law. But they
frequently consider it part of public international law, which it certainly is not,

3 3rd ed., Buenos Aires 1977, p. 171.

4 See the cases and other practice reported above, some of which was wrongly translated
and interpreted by Detter: Law Making by International Organizations, Stockholm 1965,
pp. 177–179, cf. p. 42.
5 See for example Art. 283 of the Treaty establishing the European Community and Art.
22 ( j) of the Cartagena Agreement of the Andean Community of Nations.
6 For example the League of Nations and UNRRA.
 internal relations 443

unless international law is to be dissolved into hundreds of distinct systems of

law on the level of national law.
This submission of the relationship of employment to the internal law of
the organization is only one aspect of the jurisdiction of the organization over
its organs as such – what the present writer has referred to as organic jurisdiction.
This organic jurisdiction comprises legislative, as well as administrative and
judicial powers over all organs and ofcials (as such) of the organization,7 and
it covers all their ofcial relations with the organization inter se. Even if the
organization should not exercise these powers in all respects, the host State or
any other external law or authority cannot ll the gap, unless so authorized
by the organization.
Thus there does not arise any conict of laws questions in respect of the
relationship between the organization and its ofcials as such. This is governed
exclusively by the internal law of the organization and falls outside the scope
of the following discussion.

11.2 Delimitation of the organic jurisdiction over officials

The delimitation of the organic jurisdiction – and of the eld of exclusive appli-
cation of the internal law of the organization – has been discussed above in Part
Two.8 As was pointed out, the exclusive organic jurisdiction covers all relations
with the ofcial as such, including the performance of her ofcial duties, func-
tional protection, liability to the organization9 and the organization’s liability
to her, working conditions, salary, allowances, social security and other employ-
ment benets, holidays, working hours and other working conditions, etc. On
the other hand, the exclusive organic jurisdiction does not cover relations with
the ofcials acting in a private capacity, for example if an ofcial lends or leases
equipment from the organization for private use.
Relations with applicants for positions in the organization are governed
exclusively by the law of the organization. Thus a Belgian court, holding itself
incompetent in such disputes, has stated that Belgian law is not applicable “aux
dispositions qui régissent le recruitement des fonctionnaires” of the former European
Coal and Steel Community.10 Conversely, the Court of Justice of the European

7 Goldschmidt’s lex fori should be reserved for judicial procedures.

8 Chapters 5.4 and 5.5.
9 See the discussion below, in connection with Art. 288 of the EC Treaty.
10 Vanhove c. CECA, Tribunal de première instance de Bruxelles (10e ch.), 15 April 1966.
444 chapter eleven

Communities has held itself competent in such disputes and has from the
outset decided them exclusively on the basis of Community law.11
Contractors do not fall under the organic jurisdiction of the organization.
Relations with them may, like those with ofcials acting in a private capac-
ity, be governed by national law, general principles of law or by the internal
law of the organization, in accordance with the practice and principles
discussed below.12 It should be noted, however, that agents other than ofcials13
are frequently submitted to some of the law of the organization, as speci-
ed for example in the conditions of employment of other servants of the
European Communities.14 On the other hand, the special service agreements
of the International Atomic Energy Agency provide only for application of
the Agency’s Travel Rules. Otherwise the agent shall have “the legal status
of an independent contractor” and “shall not be considered in any respect
as being a staff member of the Agency”. Still, he owes loyalty, discretion,
international independence and obedience like ofcials. Frequently he works
in the Secretariat in the same manner as a regular ofcial. It is obvious that
such contract cannot be governed by the law of the host State or of any
other State. It must be governed by general principles of law, or, rather,
by the internal law of the organization minus those staff regulations which
have been rendered inapplicable. The same may even be true of UNRWA’s
employment contracts with manual workers.15 These do not refer to national
law, but they provide that in the event of injury, illness or death attributable
to the performance of their ofcial duties, the employee shall be entitled to
receive by way of compensation a lump-sum payment equivalent in amount

11 Vandervyvere v. Parlement Européen, 31 March 1965, Recueil de la Jurisprudence de la

Cour, XI, pp. 214–217. See also ibid., XII, p. 814, and VI, pp. 937 and 1081. As noted
by Craig and De Burca, EU Law, Oxford 2003, p. 90, the judicial branch of the EU
has developed rapidly as a consequence of increasing case-loads. In 1998 a Court of
First Instance was created to hear, inter alia, staff cases. Thereafter, in 2004, an EU Civil
Service Tribunal was established based on the provisions of the Treaty of Nice authoriz-
ing judicial panels, cf. Art. 225 (a) of the EC Treaty. According to Annex 1, Article 1 of
decision 2004/752/EC, Euratom, the Civil Service Tribunal shall exercise in rst instance
jurisdiction in disputes between the Communities and their servants, including disputes
between the bodies or agencies in respect of which jurisdiction is conferred on the Court
of Justice.
12 See, more specically, Jenks: The Proper Law of International Organisations, London
1962, pp. 161–165. A contractor’s claim that he has acquired formal status as employee
of the IGO could be determined by the organization based on its internal law, see e.g.
the decision of the German Federal Labour Court (7 AZR 600/92).
13 On local personnel, see Elwan and Ost: “Kollisionsrechtliche Probleme bei Arbeitsstreitig-
keiten zwischen einer internationalen Organisation und ihren Ortskräften, dargestellt am
Beispiel der Arabischen Liga” in Praxis des Internationalen Privat- und Verfahrensrechts,
Vol. 15, Bielefeld 1995, pp. 1–8.
14 Consolidated Staff Regulation of 1 January 2005 based on Council Regulation (EEC,
Euratom, ECSC) No. 259/68 with subsequent amendments.
15 Cf. UNRWA’s practice in respect of external torts and contracts.
 internal relations 445

to the value of the compensation provided in the circumstances of the case

under the local workmen’s compensation or labour law.
Non-governmental organizations, which have been granted consultative
status with the organization, do not constitute its organs and do not fall
under its organic jurisdiction in the strict sense. Yet, as will be explained, the
relationship is governed by the internal law of the organization.
The precise delimitation of the exclusive organic jurisdiction is important
in order to determine the limits of the incompetence of foreign legislative,
administrative and judicial authorities and in order to determine the limits
which international law imposes upon the conict of laws of each State.
However, it is not so important for the concrete determination of applicable
law, because courts will, as a matter of their own conict of laws, apply the
internal law of the organization also in other relations which have their stron-
gest connecting factors with that law, cf. below, chapters 15 and 16.

11.3 Relations JURE IMPERII

The above types of legislative and other jurisdiction involve relations between
the organization and persons under its jurisdiction. This is a relationship jure
imperii, between the governor and those governed.16 It arises out of the special
governmental powers which have been conferred upon the organization in its
constitution or otherwise (above, chapter 6) and which it exercises in the eld
of legislation by enacting regulations. The relevant relations are then governed
by these instruments, i.e., by the internal law of the organization, within the
limits of international law. And any lacunae must be lled by the customary law
developed within the organization and by general principles of national law.
The constitution and the legislation of another legal community – State or
IGO – cannot be applied here, except to the extent that we move outside the
eld of exercise by the organization of its sovereign powers. The same is true
of the customary law developed within other governmental systems, except that
the customary law of other IGOs, and of States, frequently may be applied by
analogy, as general principles of law.
In Branno v. Ministry of War the Italian Court of Cassation adequately held
that Italian law was applicable and Italian courts competent with regard to a

16 The terms acta jure imperii (actes d’autorité) and acta jure gestionis (actes de gestion) have
been developed in court practice primarily for purposes of the immunity of States from
the judicial competence of other States, rather than for purposes of exemption from their
legislative power, and these do not necessarily coincide. In the present context, acta jure
imperii denotes exercise of governmental authority, while acta jure gestionis denotes acting
in the same manner as a private party. See also the use of the various relevant terms in
Branno v. Ministry of War, International Law Reports, 1955, p. 757.
446 chapter eleven

commercial contract between NATO Headquarters for Southern Europe and

an individual providing canteen facilities for its staff, because the organiza-
tion “was not performing an act of sovereignty connected with its public law
activity”. However, the Court added, obiter dictum but properly:
The North Atlantic Treaty Organization is, therefore, a subject of international
law, and it is autonomous with respect to each and all of the member countries.
Therefore none of the members – one of which is Italy – may interfere with the
activities of the North Atlantic Treaty Organization; the member States cannot
exercise judicial functions with regard to any public law activity of the North
Atlantic Treaty Organization connected with its organization or with regard to
acts performed on basis of its sovereignty.
The Italian courts will not exercise jurisdiction with respect to cases arising out
of public law activities of a subject of international law possessing both jus imperii
and a legal system of its own.17
The Court spoke of autonomy, particularly in respect of the judicial power.
However, the principle extends no less to the question of applicable law. The
exercise of sovereign powers is governed only by the law of the sovereign com-
munity concerned and by international law.
The editor of the above translation has added the word [sic] after “sover-
eignty”. However, in the view of the present writer, the crucial criterion of
sovereignty (and international personality) is precisely the autonomy described
by the Court.
The relations discussed in the present chapter, arising out of extended juris-
diction – unlike those arising under inherent jurisdiction – differ from one orga-
nization to another. Both types of relations are jure imperii and internal within
the organization and fall outside the eld of conict of laws in the narrow
sense (private international law).18 Better it may be said that conict of laws
in these cases refers to the law of the organization (or State) which exercises
the jurisdiction in question, on the basis of organic, territorial, personal or
supranational (State) connecting factors. However, here the national rules of
conict of laws are bound by public international law to refer to the law of

17 International Law Reports, 1955, pp. 756–757. The Protocol of 28 August 1952 on the
Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty
provided in Art. 11 (1) that a Supreme Headquarters may be sued or that the receiving
State may act on its behalf. The Protocol was not ratied by Italy until six months after
the judgment, but does not affect the principle of incompetence ratione materiae recognized
in the text.
18 In English law, the question of national courts’ jurisdiction to determine the matter is part
of conict of laws, whereas in other legal systems, this question belongs to procedural
law, cf. Dicey, Morris and Collins, The Conict of Laws, 14th ed., London 2006, Vol. 1,
pp. 4 and 92 ff. and Cheshire and North’s Private International Law, 13th ed., London,
Edinburgh, Dublin 1999, pp. 35–36 and 179 ff.
 internal relations 447

the organization (or State) concerned, at least in matters falling under the
organic jurisdiction, but probably also in other jure imperii matters.
Certain national courts will, as a point of departure, decline jurisdiction in
actions to enforce foreign public law. In the case of foreign States, the Institut
de droit international has resolved that the exercise of governmental powers
should in principle be inadmissible, unless they were justied by reason of the
subject matter of the claim, the needs of international co-operation or the
interests of the States concerned.19 This view should be adopted also in respect
of the internal law of intergovernmental organizations. In the case Guatemala
v SINCAFC the French Cour de Cassation adopted the view of the Institut
and in a dictum added that the outcome of the proceedings could have been
different if there had been a claim to enforce a public law obligation under an
international agreement.20

11.4 Other internal relations

There are also relations between an intergovernmental organization and indi-

viduals which do not involve the exercise of governmental authority, but which
nevertheless may be considered “internal” largo sensu.
Acting in the performance of specic functions conferred upon it in its
constitution, or assumed by it, the organization may have special relation-
ships with individuals acting either as “nationals” or inhabitants of a territory
under its jurisdiction or, more frequently, as nationals or inhabitants of its
member States, i.e., pursuant to a special relationship existing between their
State and the organization.
Organizations whose constitutional tasks include assistance to individuals
offer many examples of this. On the other hand, the international registration
of trademarks and design with the World Intellectual Property Organization
is not really a relevant example. It is true that WIPO only acts in respect
of applicants who voluntarily choose to register with the organization, and
that these may then be said to have voluntarily accepted the provisions of
the organization’s internal law as conditions for beneting from its services.
However, by its registration the organization not only creates rights and con-

19 See Ann. 1977, pp. 2–18 and 328–31. Cf. also P.B. Carter, Rejection of Foreign Law:
Some Private International Law Inhibitions, BYIL, LV 1984, pp. 111–31, and the 63rd
report of the International Law Association Conference (1988), pp. 719–757.
20 Guatemala v SINCAFC, Civ. 1ère, 2 May 1990, in 1991 Clunet 137; “l’illicéité de l’ex-
portation était fondée seulement au regard de la réglementation guatémaltèque du com-
merce extérieur et non sur la violation d’accords internationaux exprimant une exigence
de solidarité entre la France et le Guatemala . . .”.
448 chapter eleven

comitant duties for the applicant. It also creates duties for the other inhabit-
ants of the member States. And these have neither applied, nor consented.
So this is genuine exercise of sovereign powers (delegated to the organization
by the member States) – only, they relate to relations between individuals,
rather than to relations between the organization and individuals. On the other
hand, the copyright of WIPO in respect of its own publications is governed
by national law, because here the organization acts in the same manner as
a private party.
Another example of relations which are neither governmental, nor of a
private law nature, is the special relationship between IGOs and non-govern-
mental organizations, discussed below.21
In many of these cases, too, the relationship may be governed by the internal
law of the organization. However, this is not a rule of public international
law. It depends, in principle, upon the conict of laws of the lex fori. This is
true even if the organization happens to have legislative and other jurisdiction
over the individual concerned in other respects – or even in the same eld –
if the particular relationship concerned does not involve the exercise of that
authority. The crucial criterion is not who the other party is, but whether
or not the organization in this particular context is acting in a governmental
capacity. If it does not, then we are within the eld of conict of laws in the
strict, traditional sense (private international law), and the relationship may
be governed by national law.
A different matter is that the regular rules of conict of laws, as applicable
to relations between private individuals, may need some readjustments for such
cases. In this respect, each case must be considered on its merits, including the
relevant texts of the organization and the practice of the organization and its
member States. And the outcome may vary considerably from one organization
to another, depending, not only upon the nature of the relationship concerned,
but also upon the nature and set-up of the organization involved.
It is not possible, within the scope of the present book on the “common law
of intergovernmental organizations”, to examine these special and diversied
cases, except in so far as they may exemplify common problems. Otherwise,
reference must be made to the rich literature on particular organizations, such
as the United Nations and the European Community, even if this has not in
the past gone much into these conicts problems.

21 Cf. also contracts between States and private parties which may not relate to the exercise
of governmental authority, but which, on the other hand, are not of a purely private law
nature. The French contrat administratif appears to be a wider concept. The obvious analogy
for similar relations of IGOs would be the internal law of the organization, including its
unilateral legislative power. However, such relations of IGOs are more of an international
character, and we must therefore consider also other alternatives: General principles of
law (or international law) or even national law.
 CHAPTER TWELVE

EXTERNAL RELATIONS WITH PRIVATE PARTIES,

INTRODUCTION1

12.1 Types of relations

IGOs, like States, have commercial and other relations with private parties,
where the organization acts in the same manner as a private party ( jure gestionis).
Thus IGOs buy, sell and lease movable and immovable property, acquire copy-
right and patents, obtain and grant loans, engage rms and individual contrac-
tors to perform works and services, conclude contracts for insurance and public
utility services, receive donations and inheritance, claim or pay reparation for
injury and damage, litigate in national courts and courts of arbitration, etc.
Some organizations conclude certain types of contracts in great numbers.
Thus EURATOM research has a great number of purchase and construction
contracts in the course of its performance. However, the greatest number of
contracts (also of standard type) may have been concluded by relief organi-
zations like UNRWA and UNICEF (autonomous organs of the UN, acting
in their own names).
It makes in principle no legal difference whether such relations are with
natural or juridical persons, with nationals of member or non-member States,
or with persons who are or are not under the organization’s jurisdiction in
other respects.

12.2 Application of national law

While internal relations, including relations with ofcials, are governed by

the internal law of the organization, as discussed in Part Two above, external

1 Cf. the legal opinion prepared for the Institut de droit international by the Ofce of Legal
Affairs of the UN Secretariat also published in United Nations Juridical Yearbook, 1976,
pp. 159–176.
450 chapter twelve

relations jure gestionis are governed by national law, unless circumstances point
towards the application of the internal law of the organization or international
law or general principles of law (as in the cases of relations with NGOs and the
Loan Agreements of the International Bank).2 The presumption has tradition-
ally been in favour of a particular national law – which national law depending
upon the conict of laws of the lex fori, with appropriate adjustments in view of
the special nature of IGOs.

12.3 Theory on national versus international law3

Mann

F. A. Mann, in an article on “The Proper Law of Contracts Concluded by Inter-

national Persons”4 (including States and IGOs), started out from the traditional
view that contracts between an international person and a private party “are, as
a rule, governed by the system of municipal law chosen by the parties”. How-
ever, he pointed out that in many cases it would be advantageous to submit the
contract instead to international law, and he cites several cases where this has
been done by implication. He rejected the alternative methods of applying gen-

2 See however G. van Hecke, “Contracts Between International Organizations and Private
Law Persons” in Bernhardt and Bindschedler (eds.) Encyclopedia of Public International
Law (2nd ed. 1992) Vol. 1, 812–14; “It has sometimes been suggested by authors that
a distinction should be made between ordinary contracts, to be subjected to a domestic
system of law, and contracts closely connected with the performance of the organization’s
specic tasks, to be subjected to international law or the general principles of law. The
practice of organizations possessing a nancial task does not correspond to this theoretical
view” (p. 813).
3 Besides the writers reported in the text, reference may be made, as for contracts, to G.
van Hecke: “Contracts between International Organizations and Private Law Persons”
in Encyclopedia of Public and International Law, Vol. 7, Amsterdam 1984, pp. 52–54,
(with reference to R. Monaco; “Osservazioni sui contratti conclusi da enti enternazionali”
in Studi in onore di Francesco Santoro Passarelli, Napoli 1972) and to the reports by
N. Valticos in Annuaire de l’Institut de droit international, Vol. 57, I, (1977); and, as for
loans; J. Salmon: Le rôle des organisations internationales en matière de prêts et d’emprunts,
Paris 1958, and G. Delaume: “The Proper Law of Loans Concluded by International
Persons”, AJIL, Vol. 56 (1962), pp. 63–87. Cf. also infra, note 20 and 21.
In addition to the writers on IGOs, reference may be made to the writers on the
similar problems of States and private parties, including Mann: “The Law Governing
State Contracts”, BYIL, XXI (1944), pp. 11 ff.; Jessup: Transnational Law, New Haven
1956; McNair: “The General Principles of Law Recognized by Civilized Nations”, BYIL,
XXXIII (1957), pp. 1–19; Verdross, loc. cit., note 4 below; and Wolfgang Friedmann: The
Changing Structure of International Law (1964), pp. 173 et seq.
4 BYIL, XXXV (1959), pp. 34–57.
 external relations with private parties, introduction 451

eral principles of law or Verdross’ lex contractus doctrine (which in fact also relies
upon general principles of law, even if Verdross calls the contracts quasi-völker-
rechtlich)5 on the grounds that each contract must be governed by an established
system of law with its own jus cogens. All his examples relate to States, but his
terminology as well as a specic statement makes it clear that the principles he
propounded were intended to be equally valid for IGOs.

Jenks

Jenks’ book on “The Proper Law of International Organisations”6 is a thorough

and concrete (i.e. eld by eld) study of the law applicable to relations of IGOs
with private parties. He deals primarily with IGOs, but envisages partly also
other types of present or future “bodies corporate”. He –
neither concedes nor wholly rejects the assumption that if the legal transactions
of sovereign States are subject to the ordinary rules of private international law
applied by the courts of any State in which action is brought the legal transac-
tions of international organizations must, as matters now stand, be in the same
position.
Still, Jenks appears to start out from “municipal” law (which the present writer
prefers to term “national” in order to avoid confusion with municipalities). In
most cases he suggests application of a system of “municipal” law, basing his
choice on general principles of conict of laws, with due allowance for the
special situation of IGOs. But he emphasizes the dynamic approach away from
“municipal” law. He apparently assumes that even the relationship between
IGOs and their ofcials one generation earlier were governed by municipal
law,7 but points out that now it is subject to “international administrative law”
and that even relations with other agents are moving away from municipal law.
The law applicable to
relations with third parties continues for the most part to be governed by the con-
ict of laws, but far-reaching developments are conceivable and may in certain

5 “Die Sicherung von ausländischen Privatrechten aus Abkommen zur wirtschaftlicher

Entwicklung mit Schiedsklauseln”, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht, XVIII (1958), pp. 635 ff.
6 Jenks, The Proper Law of International Organisations, London 1962.
7 The present writer is not aware of any pre-war cases to support this. Thus, already the
rst judgment of the League of Nations Administrative Tribunal in 1929 expressly applied
“the internal law” of the organization. And the Italian judgment of 1931 in Proli v.
International Institute of Agriculture (reported above) clearly rejected national law in
favour of the internal law of the organization.
452 chapter twelve

cases be desirable. The rst step may be a wider recognition that the normal rules
of the conict of laws call for some modication in the light of the special needs
and problems of international organizations. At a later stage some of the legal
relations and transactions of international organisations with third parties may
become subject to international administrative law.8
When the problems
fall without the rationale of the established rules of private international law, we
must be careful not to give those rules an unwarranted scope and signicance by
applying them to situations which could not have been conceived of when the
existing rules were evolved.9
In course of time the international elements may become “comparable in
importance to the national elements”. But there “can be no simple or dogmatic
answer [. . .] the problem will often be one of determining where the balance of
convenience lies”. (It is recalled in this connection that Jenks’ study, unlike that
of Mann, is comprehensive and not conned to contracts, where the intention of
the parties reigns.) Jenks then goes on to say;
International organisations can neither be governed in respect of all their transac-
tions by, nor can they remain entirely remote from, local law, custom and tradition
and the practice of the market place. Ultimately the answer must be found in the
development of a recognised body of internationally accepted rules determining
the content of the law applicable to certain of their transactions and the principles
for the choice of law which determine the law applicable to transactions not gov-
erned by an international rule or practice.
We are not dealing with the clearly settled principles of an established legal
system but with experimental developments which have not yet passed beyond
their infancy.10
Jenks refers both to international law and to general principles of law, as well as
to “international administrative law”, “domestic law” of IGOs (which he con-
siders to be part of international administrative law) and the “personal law” of
an organization (also consisting of international rules, but different from inter-
national administrative law) – unfortunately without dening the relationship
between these many concepts.11 He also refers to transnational law, unication
of law and the common law of mankind.12

8 Jenks, loc. cit., pp. xxxvii–xxxviii.

9 Ibid., p xli.
10 Ibid., pp. 250–255.
11 According to their functions, the three latter concepts all appear to fall under what the
present writer refers to as the internal law of the organization. See, however, Jenks, loc.
cit., pp. xxi, xxxviii–xxxix and 9–10.
12 Ibid., pp. 258–263, cf. pp. xxxviii, 10, 43 and 192.
 external relations with private parties, introduction 453

Batiffol

A different approach was taken by Batiffol in his Paris lectures 1961–62 on “Pro-
blèmes des contrats privés internationaux”.13 Unlike Mann, he distinguished between
States and IGOs.
As for States, Batiffol appears to share the common (or at least the traditional)
view, that their contracts with private parties are presumed to be governed by
national law.14 He even appears basically to retain this presumption in respect
of contracts between two States acting jure gestionis.15
As for IGOs, on the other hand, he considers that they can agree to sub-
mit their contracts to a given national law. He distinguishes between three
categories:

(1) Ordinary or auxiliary contracts, for example contracts for delivery of

ofce equipment or for work. For these the organization can agree to
submit to a national law.16
(2) Contracts of employment with ofcials “non plus subalterne”. These are
governed by public international law, also referred to as international
administrative law or internal law.
(3) Contracts relating to the exercise of the functions of the organization,
including contracts which are of great economic importance, for example
“fournisseurs qui vont livrer des marchandises d’une importance considérable, des archi-
tectes, des entrepreneurs qui vont édier de bâtiments, et ceci en vue de l’activité propre de
l’organisme”. These are, in principle, governed by “public international law”
(although the organization may submit to national law, like in category
(1)). He draws an analogy both to the contracts of employment between
the organization and its higher ofcials and to domestic administrative
contracts (in French law) between a State and, e.g., private suppliers. Batiffol
may thus be applying by analogy to IGOs the presumption that a State
submits only to its own law,17 apparently giving that principle a broader
application to IGOs. These analogies and some of the terms he employs
raise the question as to whether Batiffol really has in mind the internal
law of the organization, or whether his analogy is merely based upon the
fact that he, like many others writers, does not distinguish between that

13 Université de Paris, Institut des hautes études internationales, 2 fascicules publiés par
l’Association des études internationales, pp. 91–95, cf. pp. 96–106.
14 Ibid., pp. 80–85.
15 Id., pp. 85–99.
16 Id., pp. 91–92, but see pp. 104–105.
17 Id., pp. 82–84.
454 chapter twelve

law and international law. On the other hand, Batiffol assumes that the
law resulting from his proposal is the same as that which Mann arrives
at (on a different basis, with which Batiffol disagrees), and Mann is clearly
talking of a public international law, citing only examples relating to
States.

Batiffol disagrees with Mann’s method of arriving at public international law

by the parties having voluntarily submitted to it in accordance with private
international law. Batiffol maintains that the application of public international
law cannot be deduced from a rule of private international law, the latter being
concerned with the choice of the law of one of the States with which the legal
relationship concerned has a genuine link.
If the traditional concept of private international law is still that narrow, it
is respectfully submitted that it is time that it be broadened (and if necessary
renamed “conict of laws” or given some other broader name – Scandina-
vians use “interlegal law”) to include reference to any legal system to which
the parties may refer or which may be applicable on the basis of objective
connecting factors to a relationship involving one or more private parties –
including, not only internal law of IGOs and general principles of law, but
also public international law. This is so provided that national courts will act
within the framework of their own conict of laws (in the broad sense) even
when they decide for or against the application of such law. If so, the only
elds that in the view of the present writer may be kept out of the concepts
of private international law and conict of laws are those where there is
no choice of law because a subject of international law is acting jure imperii.
However, even these relations play their part in conict of laws, although at
least the organic law is applied by foreign courts only on questions préjudicielles,
because foreign courts are incompetent ratione materiae in organic disputes of
other sovereign communities.
However, Batiffol’s restrictive terminology may reect a substantive view, viz.
that it cannot be evaluated on the basis of the conict of laws of the lex fori
whether a relationship is governed by national or some other law. This because
Batiffol, unlike some other writers, does not recognize any presumption for
national law in respect of relations involving IGOs – he admits national law
only when the organization has referred or submitted to it – and otherwise
presumes public international law (possibly meaning the internal law of the
organization as applied in the present book).
In this sense he is the writer that has moved furthest away from the tra-
ditional view. However, Batiffol readily admits submission to national law in
cases where this appears natural, for the whole contract or on specic points
where a precise (arbitrary) rule is needed. Accordingly, there may be little
 external relations with private parties, introduction 455

difference in practical results between Batiffol and some of the writers who
maintain the traditional presumption in favour of national law.

Terminological and substantive divergences: private and public international law

Bowett, in his textbook for students, lists the great variety of relations in which
the question arises and some solutions applied in practice to each type or
situation.18
Schermers and Blokker, in their large modern study of “International Institu-
tional Law”,19 properly indicate the various alternatives (national law, internal
law of the organization, general principles of law, the law of the host State),
also without suggesting any general rule or presumption.
A number of authors compare contractual relationships of intergovern-
mental organizations with that of public contracts in French law (contrats admi-
nistratifs).20 It has been pointed out that the internal law of the organization
applicable to contracts includes general principles of international law, and,
consequently, that the organization may unilaterally modify the terms of the
contract governed by its internal law, while at the same time being bound by
virtue of those general principles, such as the equality of bidders. It has further
been pointed out that references to national law in the internal law of the orga-
nization or in contracts concluded by it do not have the effect of submitting the
contractual relationship to that particular national law, but to provide rules of
interpretation, which, as a consequence of their incorporation in the contract,
become part of the organization’s internal law.21
It may well be that there is no longer a general presumption in favour of
national law. However this may be, it is clear that the emphasis has shifted
from the question of “what national law” to “whether national law” and “if
not, what law?” On the two latter questions there is today confusion, because
of divergences both in the doctrine (between writers) and in practice (between
the various organizations). This is no doubt an aspect, not only of the general

18 The Law of International Institutions, 4th ed., London 1982, pp. 366–71.
19 International Institutional Law, 4th ed., Leiden 2003, §§ 1601–16.
20 Cf. P. Glavinis, Les litiges relatifs aux contrats passés entre Organisations Internationales et
personnes privées, Travaux et recherches Pantheon-Assas, Paris II, Paris 1990, with further
references, pp. 216–7: “En présence d’une jurisprudence importante des tribunaux français
considérant que les travaux exécutés pour le compte d’une Organisation Internationale
ont le caractère de travaux publics au sens du droit français”.
21 Cf. Colin and Sinkondo, Les relations contractuelles des Organisations Internationales
avec les personnes privées, Revue de Droit International et de Droit Compare, Vol. 69
1992, pp. 18 and 24–8.
456 chapter twelve

uncertainty in conict of laws, but also of the rapid development to which

Jenks has referred.
Rather than attempt to arrive at a conclusion in principle on this uid
question, we shall now clarify a few preliminary issues and investigate practice,
and then test how far it is possible to get without a general presumption.

12.4 The autonomy of the parties

Before examining, in the next chapter, contractual clauses on applicable law, it

is necessary to have a look at their legal basis, the principle of the autonomy of
the parties, which is of great importance in respect of IGOs.

Binding international law?

The right of the parties to choose the law applicable to their contract (the so-called
“autonomy of the parties”) is a general principle of conict of laws. It has even
been referred to as “international customary law”.22 However, not all States –
and in particular not Argentina, Uruguay and other parties to the Montevideo
treaties on private international law23 – admit the autonomy of the parties.24
And their statutes on the subject have been in force for more than 100 years.

Application to IGOs

Even if States are not bound by international law to admit the autonomy of
two private parties, it does not necessarily follow that their courts would, or

22 See the writers cited by von Welck: Die privatrechtlichen Verträge der Europäischen
Gemeinschaften mit Angehörigen dritter Staaten, Göttingen 1967, p. 31, speaking appa-
rently of choice between different systems of national law. Scandinavian and European
law on the subject has been reviewed by Hambro: Jurisdiksjonsvalg og lovvalg, Oslo 1957.
23 Texts in Derecho internacional privado, Tratados de Montevideo 1889–1939–1940, pub-
lished by Professor Vieira, 2nd ed., Montevideo 1966. The Treaty on Private International
Law of 1940 was ratied by Argentina, Paraguay and Uruguay. The corresponding treaty
of 1889 still remains in force in relations to Bolivia, Colombia and Peru.
24 The Uruguayan Codigo civil, Art. 2403, provides this expressly: “Las reglas de compe-
tencia legislativa y judicial determinadas en este Título, no pueden ser modicadas por
la voluntad de las partes. Ésta sólo podrá actuar dentro del margen que le conera la ley
competente.” The Argentine Codigo civil, par. 1205, prescribes the lex loci contractus,
while paras. 1209–1210 prescribe the lex loci solutionis and take precedence whenever the
contract denes the place of its fullment. These mandatory provisions are considered to
preclude the autonomy of the parties. See also Arts. 13, 16 and 1197.
 external relations with private parties, introduction 457

could, refuse to do so in respect of contracts, one of the parties to which is an

IGO or a foreign State. The limitations established for private parties may not
apply to sovereign communities.25 At any rate, the organization can avoid the
imposition of a rigid national conicts law by refusing to waive its immunity
from suit in the national courts of the countries concerned, although foreign
States normally cannot do so with regard to acta jure gestionis. However, it is not
universally accepted that the autonomy of the parties depends upon the lex
fori,26 or that conicts law may refer to some other law,27 and the organization
might therefore have to insist upon its immunity from suit even in the courts of
other countries in order to protect its choice of law.

Extension to legal systems other than national law

The autonomy of the parties is a rule of traditional conict of laws, i.e., it

relates to choice between different national laws. However, at least in the case of
IGOs (and foreign States) it must imply also the right to choose a law other that
national law, including not only the internal law of the organization, but also
general principles of law or international law.28 Despite Batiffol’s narrow deni-
tion of droit international privé, the conict of laws of the lex fori must in principle
be applicable to such a choice too.29 However, a national court may consider
that a dispute of that type falls outside its jurisdiction.30 At any rate, when we
are concerned with IGOs and with the question of applying to these a law other
than national law, it is obvious that any restriction established in the applicable
conict of laws with regard to private parties cannot apply in the same manner.
As far as IGOs are concerned, the practical result may therefore be the same
as Batiffol’s.

25 See Jenks, op. cit., p. 148, and Mann, op. cit., p. 46.
26 Thus von Welck, op. cit., pp. 33–42, submits that it must be evaluated under the law of
each party, with the effect that the intentions of the parties is not decisive if one of these
laws does not admit this. Gaarder: Internasjonal privatrett, Oslo 1990, p. 112 supports the lex
fori. Both writers are concerned with choice between different systems of national law.
27 Argentine courts would permit the autonomy of the parties if this is permitted by the lex
causæ, i.e., in most cases where the contract designates its locus solutionis (or was signed)
abroad.
28 Mann, p. 46. Batiffol, as reported above, refuses to apply international law by virtue of
private international law. von Welck, op. cit., p. 32, doubts altogether the right to refer to
general principles of law. Hambro, op. cit., pp. 245–247, speaking of two private parties
in national courts, does not admit this right , citing, inter alia, the Serbian Loans case.
29 Mann, loc. cit., pp. 45–46 and Jenks, pp. 18, 148–149 and 151, seem to assume this,
although Jenks feels de lege ferenda that the law followed by the organization ought to be
applied instead. The position is different if international personality exceptionally has been
conferred upon the private party (Schwarzenberger).
30 Cf. Jenks, op. cit., p. 229.
458 chapter twelve

12.5 General principles of conflict of laws as a subsidiary or

binding source of each system of conflict of laws

In the following we shall discuss the question of which law governs the external
relations of IGOs jure gestionis in a general manner only. This is true in a double
sense.
In the rst place we shall not attempt to discuss each or any particular
system of conict of laws.
Conict of laws is not international law. Each State develops its own conict
of laws – by legislation, practice, etc. And it is this national conict of laws
that must be applied by its courts. Conict of laws is a lex fori.
However, the amount of legislation and practice on conict of laws in
each State is limited. In the absence of a clear solution on their own positive
law, courts will naturally, in this as in other matters of international concern,
look to the practice of foreign and international courts and authorities for
guidance and attempt to apply any general principles which may be induced
from such practice.
Like national courts, internal courts of IGOs too must, in principle, apply
their own conict of laws, i.e., the conict of laws of their organization.
However, with a few exceptions in the case of the European Community and
UNIDROIT, IGOs are not known to have developed any precise conict rules
by legislation or custom. They therefore must be expected to apply largely
general principles of law or general principles of conict of laws as their lex
fori. The same is often true of arbitral tribunals, to the extent that their terms
of reference do not provide for applicable law.
It is only these general principles of conict of laws which will be dealt with
below. We shall not examine the law of particular States or make a compara-
tive study of such laws. We will only try to evolve certain general principles
for the solution of the special conict problems of IGOs – which may be
applied to ll the lacunae in the conicts law of particular States or to make
up the conicts law to be applied by other fora than national courts.
In some cases the general principles may even be mandatory – notably if
they have been laid down in treaty or if disregard for them would constitute
a denial of justice or of the sovereign rights of another sovereign community.
Such principles will then concurrently be part of public international law. An
example is the exclusive legislative power of (States and) IGOs over their own
organs, which is submitted to be a principle of customary international law
and binding upon States when drawing up their own rules on conict of laws.
The same may be true of the exercise of other sovereign powers; however,
such questions have not so far arisen frequently in other jurisdictions, and it
may therefore not be possible to point to any customary international law in
 external relations with private parties, introduction 459

this respect.31 Most general principles of conict of laws, however, are merely
subsidiary sources of each system of conict of laws, i.e., they are drawn
upon when the positive law of the sovereign community concerned is silent,
but do not bind legislators.

12.6 Plan of discussion

The following discussion will be general also in the sense that we shall not
attempt to lay down the detailed rules even of these general principles of
conict of laws. Quite apart from the fact that the most important parts of
conict of laws do not lend themselves to the establishment of precise rules by
which individual cases can be decided, it would then be necessary to analyze
successively each eld of law. And this has been done by Jenks, so we can refer
to him.
We shall in the following concentrate upon certain general problems – which
arise in many or all legal elds – and upon a few important special cases which
illustrate such general problems. Before that we shall, in chapter 13, examine
the positive provisions (in treaties, regulations and agreements) governing
the external relations jure gestionis of IGOs and see if any general conclusion
can be drawn from them. Then we shall, in chapter 14, look at practice in
cases where there is no such provision and discuss important examples of
relationship where the circumstances point towards the internal law of IGOs,
international law or general principles of law, rather than towards national
law. In chapter 15 we shall attempt to clarify the confused and controversial
relationship between these three alternatives to national law. In chapter 16
we shall then turn to the conict of laws in the traditional, narrow, sense,
and examine in a general way the main general question which is special to
IGOs, viz. what to do if the applicable rules of conict of laws refer to the
law of the organization. In chapter 17 we shall take up the question of what
law each type of court applies and whether any conclusions as to choice of
law can be drawn from a reference to a particular type of court. Finally, we
shall, in chapter 18, attempt to summarize and draw up certain tentative pre-
sumptions in respect of the basic and controversial choice between national
law and general principles of law (or international law).

31 It is not decisive in this respect that the Act of State doctrine is not recognized as a rule
of public international law outside the eld of organic jurisdiction, cf. chapter 7.4.5 above,
because that doctrine is concerned with the problem of ( judicial) jurisdiction, not with
that of applicable law.
 CHAPTER THIRTEEN

PROVISIONS ON APPLICABLE LAW

13.1 National legislation

States usually have no special legislation on conict of laws with regard to IGOs.
This appears to be so even in the typical host countries, such as Switzerland,
Belgium, the Netherlands, France and the United States. Those statutes on
IGOs which do exist, are mostly concerned with privileges and immunities (or
with organizations of the type dépendant)1 and the juridical personality in munici-
pal law of IGOs, but do not lay down any substantive law or rules of conict
of laws governing their external relations with private parties and of course not
governing their internal relations. This leaves the way open for the application
of the regular conict of laws rules of the State concerned.
The headquarters agreement between the United Nations and the United
States, which has become a model headquarters agreement, States, in general
terms, that “except as otherwise provided in this agreement or in the Gen-
eral Convention, the federal, State and local law of the United States shall
apply within the headquarters district”.2 This does not mean that local law is
imposed on the organization contrary to its full an independent exercise of is
operations, including its recognized competence to apply its internal law and
to contract within the headquarters district. In fact, the United Nations has
never recognized the headquarters agreement as having the effect of generally

1 See notably the Swiss Statut des Bureaux internationaux placé sous la surveillance des
autorités de la Confédération Suisse of 31 January 1947 and Statut des Bureaux inter-
nationaux réunis pour la protection de la propriété industrielle, littéraire et artistique
(BIRPI) of 16 August 1960. However, this Statute has lapsed, after the organizations of
the type dépendant in Switzerland have themselves taken over handling their organization
and secretariat without any personnel provided by or nancial supervision from the Swiss
authorities.
2 Cf. Agreement Regarding the Headquarters of the United Nations, 26 June 1947, 11
UNTS 11, Article III, section 7 (b).
462 chapter thirteen

determining the choice of law applicable to the organization’s internal or

external relations.3
Similarly, the United States Bretton Woods Agreements Act of 31 July 1945
provides in section 10 that any action brought within the United States by
or against the International Monetary Fund or the International Bank “shall
be deemed to arise under the laws of the United States”.4 However, this is
apparently merely a form of words which under American legal terminol-
ogy confers jurisdiction upon United States federal courts, and no more. The
question of applicable law is therefore left to be decided in accordance with
the regular conict of laws rules of these courts. The corresponding Act of
Philippines of 20 November 19455 – which follows very closely the terms of
the United States Act and obviously was modeled upon it – must probably
be interpreted in the same sense, despite the fact that the Philippines is not
a federal State. Indeed, the loan agreements of the International Bank are
in most respects not governed by national law at all.

13.2 General international conventions

International conventions relating to conict of laws – like national statutes –

rarely contain special provisions for IGOs.

3 Cf. UN Legal Opinion set out in UN Secretariat’s ofce of legal affairs: Law Applicable
to Contracts Concluded by the United Nations with Private Parties – Procedures for
Settling Disputes Arising out of such Contracts – Relevant Rules and Practices; United
Nations Juridical Yearbook, 1976, p. 159. Cf. also “The Practice of the United Nations,
the Specialized Agencies and the International Atomic Energy Agency Concerning Their
Status, Privileges and Immunities – Supplementary Study Prepared by the Secretariat”,
Doc. A/CN.4/L.383 and Add. 1–3 (1985), p. 153.
4 Public Law 171–79th Congress; 59 Stat. 512, reproduced in Zeydel and Chamberlain,
Enabling Instruments of Members of the UN, p. 40. However, all Multilateral Development
Banks follow the same practice referred above as the UN and the specialized agencies; cf.
Suzuki and Nanwani, Responsibility of International Organizations: The Accountability
Mechanisms of Multilateral Development Banks, Michigan Journal of International Law,
2005, pp. 177–225 at p. 192.
5 Commonwealth Act No. 699 § 10 still in force as of 1997, reading: For the purpose of any
action which may be brought within the Philippines by or against the Fund or the Bank in
accordance with the Articles of Agreement of the Fund or the Articles of Agreement of
the Bank, the Fund or Bank, as the case may be, shall be deemed to be a resident of the
province or city which its branch ofce in the Philippines is located, and any such action
to which either the Fund or the Bank shall be a party shall be deemed to arise under the
laws of the Philippines, and the Court of First Instance shall have original jurisdiction
of any such action. See also section 15 of the agreement between the Asian Develop-
ment Bank and the Philippines regarding the headquarters of the ADB of 22 December
1966.
 provisions on applicable law 463

Copyright

An exception is the Universal Copyright Convention of 6 September 1952

with Protocol no. 2 concerning the application of that convention to the works
of certain organizations.6 The protocol merely provides that the protection
provided for in Article II of the Convention “shall apply to works published for
the rst time by the United Nations, by the Specialized Agencies in relation-
ship therewith, or by the Organization of American States”. Article II of the
Convention provides:
1. Published works of nationals of any Contracting State and works rst published
in that State shall enjoy in each other Contracting State the same protection as that
other State accords to works of its nationals rst published in its own territory.
2. Unpublished works of nationals of each Contracting State shall enjoy in each
other Contracting State the same protection as that other State accords to unpub-
lished works of its own nationals.7
The conicts provision thus is that the copyright of IGOs, like that of private
parties and States, is governed by the law of the State where protection is
claimed,8 which, of course, incorporates the provisions of the Universal Copy-
right Convention, the Bern Convention and any other relevant treaty to which
that State is a party.
The Protocol thus establishes the same conicts rule for IGOs as for other
private and public parties. This would seem to go without saying, and must,
indeed, apply also to IGOs other that those specied and in States which
are not parties to the Universal Copyright Convention. Indeed, when the
Intellectual Property Conference of Stockholm in 1967 rejected a proposal
to add a similar protocol to the Bern Convention, it was stated precisely that
this would be unnecessary.9

6 Cf. also Art. 6 ter (1) (b) of the Paris Convention for the Protection of Industrial
Property.
7 UNTS, Vol. 216, pp. 190 and 136.
8 Jenks, The Proper Law of International Organizations, London 1962, p. 191 appears
to attach importance to this only in respect of duration and of “remedy and measure
of damages for infringements of a copyright”, see p. 193 (but see p. 198). On the other
hand, Jenks points out that the personal law of the organization applies to questions of
assignment of copyright (pp. 192–193). This personal law, it is submitted, is the internal
law of the organization.
9 “Les œuvres des organisations en question étaient de toute façon protégées si elles ont
été publiées pour la première fois dans un pays de l’Union ou bien si leurs auteurs sont
ressortissants d’un pays de l’Union”, Rapport sur les travaux de la Commission principale
No. 1 [ by M. Bergström], Le Droit d’Auteur, LXXX (1967) No. 9, p. 215. In this sense
also the German comments on the draft protocol, Intellectual Property Conference of
Stockholm, 1967, doc. S/13, p. 46, see also the Portuguese comment, ibid., p. 91. The
464 chapter thirteen

This is correct, although Jenks earlier expressed doubts.10 However, it would

appear to submit the copyright of IGOs to the national law of the country
where the work was rst published, in those respects where the law of origin
is relevant.11
Whether or not this aspect was considered, it may be suspected that the
real reason for the rejection was the usual controversy over the question of
what organizations should be included. The Secretariat and the host country
had proposed the United Nations and its specialized agencies.12 Italy and
Luxembourg very properly proposed all IGOs.13 The Benelux countries nally
proposed to include IGOs “don’t le siège se trouve dans un pays de l’Union ou bien
dont les membres sont en majorité pays de l’Union”. But, of course, any enumera-
tion creates problems, because it might invite a contrario conclusions in respect
of the IGOs not enumerated. And this would not be justied, because they
all have general international and juridical personality, and hence copyright,
irrespective of whether their constitutions or conventions on privileges and
immunities say so.14 However, many writers assume that only certain IGOs
have international and juridical personality, depending upon the provisions of
the constitution and the convention on privileges and immunities of each one,
although they are unable to dene which organizations have such personal-
ity and which have not. On the other hand, States have refused to recognize
regional organizations of other regions to which they object politically, despite
the fact that recognition of international and juridical personality does not
entail any duty to enter into or maintain relations.15 In these circumstances
it has so far been hard to get an international conference to adopt the only
logical solution: A provision which embraces all IGOs.16 And then it is better

Paris Convention, Art. 6 ter (1) (b), covers IGOs “dont un ou plusiers pays de l’Union
sont membres”.
10 Op. cit., pp. 190–191. He stated that prior to the Universal Copyright Convention it was
uncertain how far IGOs “could be regarded as fullling various nationality and place of
publication requirements or could in practice appropriately fulll certain deposit, registra-
tion and manufacture requirements” and that this continues to be true in respect of the
organizations not enumerated in the Convention. This may be more appropriate in respect
of the U.S. Copyright Act and the successive Inter-American Copyright Conventions than
in respect of the Bern Convention, which provides for protection without formalities.
11 Cf. Jenks, op. cit. pp. 192–193.
12 Intellectual Property Conference of Stockholm, 1967, doc. S/1, p. 99.
13 Ibid., doc. S/13, p. 66 (see also pp. 12, 29, 46 and 91) and S/17, p. 13.
14 Above, chapter 2.
15 Cf. El-Erian’s summary of the conicting views and his proposed alternative formulae in
his second report to the International Law Commission on Relations between States and
Intergovernmental Organizations, Yearbook of the International Law Commission, 1967,
II, pp. 136–7 and 152–3.
16 The rst United Nations Conference on the Law of the Sea did this when it on the pro-
posal of the present writer adopted Art. 7 of the Convention on the High Seas of 29 April
 provisions on applicable law 465

to do as did the Stockholm Conference: Not include any special provision

on IGOs. For the same reason it may be difcult for future conventions on
conict of laws to solve any special problems of IGOs. Indeed, this is one of
the reasons why the common law of IGOs may continue to be developed by
practice rather than by treaty, until the well-established general practice and
the end of the cold war has been generally recognized in the International
Law Commission and other competent fora.
However, the example given above demonstrates not only this negative fact,
but also the positive fact that it is not always necessary to provide specially
for IGOs, because they frequently can be governed by the same conict rules
as apply to States and private parties.17

Liability for nuclear damage

This is also true of the conventions on liability for nuclear damage which, inter
alia, provide which national law shall be applicable to the liability of the opera-
tor of a nuclear installation or a nuclear ship.18 Reference may be made to a
memorandum by the Secretariat of the International Atomic Energy Agency
of 8 April 1964 entitled “Nuclear Installations Operated by International
Organizations”, written with particular reference to the Vienna Convention on
Civil Liability for Nuclear Damage of May 1963. The memorandum States,
inter alia:

1958, reading: “The provisions of the preceding articles do not prejudice the question
of ships employed on the ofcial service of an intergovernmental organization ying the
ag of the organization”. However, this was made possible by the fact that the provision
merely reserved the substantive question. (This it had to do because the International
Law Commission had been unable to solve the question of applicable law). See also the
Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as
modied by supplementary convention of 31 January 1963 and amended by Additional
Protocol of 28 January 1964 and by the Protocol of 16 November 1982. International
Convention on the liability of operators of nuclear ships of 25 May 1962 is not yet (as
of August 2007) in force.
The 1962 Brussels Diplomatic Conference on Maritime Law tried to solve a substan-
tive problem for IGOs generally, but failed (Meyers, The Nationality of Ships, the Hague
1967, pp. 338–341). The subsequent Standing Committee of the Conference, however,
succeeded in 1964 in nding a formula (International Atomic Energy Agency doc. CN-
6/SC 13 (1965), p. 70).
17 Cf. below, chapter 16.
18 See the four conventions reproduced in Civil Liability for Nuclear Damage, International
Atomic Energy Agency Legal Series No. 4, Vienna 1965.
466 chapter thirteen

3. It is quite clear that intergovernmental organizations, like any other public or

private body, can act under the Convention as operators of nuclear installations,
if they have been designated or recognized as such by an Installation State. This is
conrmed by an express mention of international organizations in the denition
of “person” in Article I (1) (a) of the Convention . . .
4. The relationship between the Organization and its ofcials as such is governed
by the internal law of the Organization and not by the law of the Host State.
Thus, unless otherwise agreed between the Organization and the Host State, the
extent of the compensation due to the ofcials is determined by the relevant provi-
sions of the Staff Regulations of the Organization. . . .
5. Liability in respect of third parties, on the other hand, with which the Con-
vention is concerned, is under the Convention governed partly by the law of the
competent court and partly by the law of the Installation State.19
The memorandum also discusses whether there is a need to amend the nal
clauses of the Convention to permit accession by IGOs.

The organization as a party to the conventions

With regard to the question of accession by IGOs, Jenks points out that
under current practice conventions on unication of laws or on conict of
laws
will normally contain a provision permitting an international body corporate to
become formally a party to it, but here would seem to be an advantage in includ-
ing such a provision in appropriate conventions in future, particularly in any cases
in which it may be desirable that international bodies corporate should be both
entitled to claim rights under and bound by obligations under the convention.20
The question of the capacity of IGOs to accede to multilateral conventions
between States and their eligibility to do so in the absence of an express men-
tion of IGOs in the accession clause have been discussed by the present writer
in another context.21

13.3 IGO constitutions

The difculty referred to above does not arise in the internal law of IGOs,
since this is distinct for each organization. Still, even here we do not nd many
provisions on conict of laws. This is particularly true of the constitutions,

19 Full text in United Nations Juridical Yearbook, 1964, p. 190.

20 Jenks, op. cit., p. 16.
21 Seyersted, United Nations Forces, Leyden 1966, pp. 333–361.
 provisions on applicable law 467

except that there are some relevant provisions in the constitution of the Euro-
pean Community, and there was a provision in Article 7 bis in the constitution
(statut organique) of the International Institute for the Unication of Private Law
(UNIDROIT). The latter now merely provides that any dispute concerning
obligations arising from contracts between the Institute and third parties shall
be submitted to the UNIDROIT administrative tribunal, if its jurisdiction is
recognized by the parties in writing in the contract. Earlier, Article 7 bis also
provided that the tribunal should apply “the provisions of the statute and of
the Regulations as well as the general principles of law. It may also decide ex
aequo et bono when such power has been given to it by an agreement between
the parties.” The reason for the deletion may have been that the provision was
too narrow.
Article 288 of the Treaty establishing the European Community provides:
The contractual liability of the Community shall be governed by the law appli-
cable to the contract in question.
In the case on non-contractual liability, the Community shall, in accordance
with the general principles common to the laws of the Member States, make good
any damage caused by its institutions or by its servants in the performance of their
duties.
The preceding paragraph shall apply under the same conditions to damage
caused by the ECB or by its servants in the performance of their duties.
The personal liability of its servants towards the Community shall be governed
by the provisions laid down in their Staff Regulations or in the Conditions of
Employment applicable to them.
Article 188 of the EURATOM Treaty provides the same, except that it omits
the third paragraph. This is an expression of the general principle of customary
law in Part Two above that relations between the organization and its ofcials
as such are governed by the internal law of the organization, supplemented by
general principles of public administrative law.
The rst paragraph of the EC and EURATOM provisions, on the Com-
munity’s liability under contracts, likewise expresses a general principle, which
applies to all IGOs.22 This provision in fact refers to the conict of laws (in
the wider sense) of the lex fori23 and to the intention of the parties as admitted
by that law. Cases will normally arise before a national court. But if the case
arises before the European Court of Justice, this must draw its conicts law

22 On contracts especially with nationals of non-member States, see a doctoral disserta-

tion by Stephan Freiherr von Welck: Die privatrechtlichen Verträge der Europäischen
Gemeinschaften mit Angehörigen dritter Staaten, Göttingen 1967.
23 In this sense also Wohlfahrt and others: Die Europäische Wirtschaftsgemeinschaft, Berlin
1960, pp. 564–565.
468 chapter thirteen

from general principles of conict of laws, to the extent that the Community
law contains no conict rules.24
The second paragraph of EC Article 288 – on non-contractual liability – is
more specic and restrictive. It leaves out e.g. the lex loci delicti – in favour of the
principle of the law of the defendant, which in the case of the Community is
dened as – or replaced by – a reference to the general principles common to
the law of the member States, which, to the extent that Community law has
been adopted to harmonize national provisions, will in effect be a reference
to community standards. However, thus far the Court merely seems to have
looked at principles of public administrative law.25 And the laws of member
States on State liability differ considerably.26 Article 288 must be applied by
the European Court of Justice – and probably also by the national courts of
the member States. But courts of non-member States are free to apply their
own national conict rules, including references to the lex loci delicti.
Even in respect of the European Court of Justice (and those of its member
States) it has been submitted in a thorough study of practice that the principles
“common to the laws of the Member States” are in fact very “disparate” and
play a minimal role:
La responsabilité extracontractuelle de la Communauté économique européenne
n’est practiquement pas déterminée par les “principles généraux communs aux
droits des Etats membres”, mais, au contraire, principalement par les règles du
traité, les principes que s’en déduisent et les nécessiteés propres aux Communautés
européennes. La conguration de la responsabilité extracontractuelle communau-
taire résulte bien plus de ces derniers que desdits “principes communs”, lesquels
apparaissent alors comme une source très subsidiarie du droit communautaire,
rarement utilisée en ce domaine.27
Otherwise it is submitted that the principles set out in the internal law of the
organization must apply. Thus, claims arising out of faults committed in the
exercise by the organization of its sovereign powers can be governed by no other
law than its own. This internal law of the organization should also be applied to
other claims arising out of faults committed in the internal functioning of the
organization, including its typical functions in relation to nationals of member
States as such. However, should any claim be brought in respect of an external
act, for example for injury suffered from the driving of a motor vehicle of the

24 On arbitral tribunals, see below, chapter 17.

25 See J. Steiner: Textbook on European Community Law, London 1992, chapter 30.
26 Smit & Herzog: The Law of the European Community, New York 1996, § 215.05 [3–4],
citing the relevant judgments.
27 Francette Fines: Etude de la responsbilité extracontractuelle de la Communauté Econo-
mique Européenne, Paris 1990, p. 423.
 provisions on applicable law 469

community, the question is open, cf. above. The Court may decide to apply the
lex loci delicti or some other national law in accordance with general principles
of conict of laws, despite the fact that French law applies administrative law
rather than private law. Or it may apply general principles of law.
The last paragraph of the provision on applicable law (EC Article 288)
expresses a general principle of customary law. In all IGOs the liability of
the ofcials as such vis-à-vis the organization is governed exclusively by its
internal law, whether or not it has enacted relevant regulations. Neither the
private, nor the administrative law of any State can be applied here, except
by analogy, as general principles of law, as the European Court and admin-
istrative tribunals of other organizations have done.
The second paragraph introduces a precise rule where none existed before.
In those cases where the Court under the latter article would apply the internal
law of the Community, there probably would be no real difference, because
the general principles of the law of the member States referred to in Article
288 are part of the internal law of the organization. It is true that neither
the constitution of the organization, nor its binding regulations form part of
“general principles of law” (or of general international law). However, both
become part of the law of the member States. The common principles of
the law of the member States therefore will not deviate from the written law
of the organization.
Still, EC Article 288 deviates from general principles of conict of laws in
respect of external liability in those cases where this is governed by national
law – if “the general principles common to the laws of the Member States”
is taken to refer to the substantive law of the member States, rather than
to their conict of laws. Such question of external liability will arise if the
term “in the performance of their duties” is interpreted to include all ofcial
acts, to the exclusion only of personal acts (or acts outside the scope of the
functions of the organization).28 Without offering a clear delimitation, they
maintain that EC Article 288 refers to the corresponding law of all member
States. However, these differ considerably, and it is thus not clear, for example,
whether and to what extent reparation for injuries caused by motor-vehicles is
covered by the provision.29 The jurisprudence of the Court gives no guidance.

28 Early German commentators interpreted these words quoted restrictively – possibly depart-
ing from the German text which says: “in Ausübung ihrer Amtstätigkeit” (the Dutch and
Italian texts, however, conform to the French text: “uitoefening van hun functies” and
“exercisio delle funzioni”).
29 Groeben und Boeckh, Kommentar zum EWG-Vertrage, Baden 1969, II, pp. 357–364; and
Wohlfart, op. cit., pp. 565–567. Lagrange, loc. cit., pp. 32–35, after a general comparison
of (the now) EC Art. 288 and the earlier text of CECA Art. 40, concluded that the dif-
ferences are only secondary ones.
470 chapter thirteen

The only judgments rendered so far on the basis of EC Article 288, second
paragraph, concerned the exercise of sovereign powers by the organization
and then – of course – applied the regulations and the customary law of the
organization, as well as general principles of law.30
Article 288, of course, applies only to the EC and EURATOM, not to
other IGOs. It is binding upon the Community, its ofcials, member States
and upon individuals under the jurisdiction of the latter, as well as upon the
European Court of Justice. It is not binding upon non-member States, their
courts and individuals under their jurisdiction. Courts of non-member States
(in which the organization might waive its inherent immunity) would therefore
apply Article 288, second paragraph, only when their conict of laws refers
to the law of the organization. Courts of member States are of course bound
by Article 288. However, these are hardly competent in disputes falling under
Article 288, second paragraph.31
A rather different matter is the fact, pointed out by Friederich Schön,32 that
the constitution of some IGOs designed for economic operation refer to the
law of the host country as a subsidiary source when the statutes (constitution)
of the organization are silent. Schön cites two typical examples, EUROFIMA
and the Fonds Agraire of Basel-Mülhausen Airport, plus a not very typical
example, the French-German Research Institute Saint-Louis (ISL). The lat-
ter is not a business organization and its constitution may merely have been
an unconscious copying of the former. Such provisions are, however, more
concerned with supplementing the internal law of the organization than with
problems of conict of laws.

30 Firma E. Kampfmeyer and Others v. CEE, Recueil de la Jurisprudence de la Cour, XIII

(1967), p. 317. The Court qualied the act as “Amtsfehler”, translated as “faute de service”.
See also ibid., XI, affaires jointes 29, 31, 36 à 47, 50 et 51/63.
31 EC constitution, Arts. 235 and 240 (in the present numerical order). Wohlfahrt, op. cit.,
p. 565, appears to interpret these articles in the same sense. Contra: Edward Wall, The
Court of Justice of the European Communities, London 1966, pp. 140 ff.
32 “Die Anwendung von Landesrecht auf völkerrechtliche Zweckverbände” in Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht, XXV (1965) at pp. 623 ff.
 provisions on applicable law 471

13.4 Conventions on privileges and immunities. Power of the

organization to enact conflicts law

Express conict provisions

The Agreement between the Parties to the North Atlantic Treaty Regarding the
Status of Their Forces of 19 June 1951 (the military status agreement) provides
in Article VIII 5:
Claims (other than contractual claims and those to which paragraph 6 or 7 of this
Article apply) arising out of acts or omissions of members of a force or civilian
component done in the performance of ofcial duty, or out of any other act, omis-
sion or occurrence for which a force or civilian component is legally responsible,
and causing damage in the territory of the receiving State to third parties, other
than any of the Contracting Parties, shall be dealt with by the receiving State in
accordance with the following provision:
(a) Claims shall be led, considered and settled or adjudicated in accordance
with the laws and regulations of the receiving State with respect to claims arising
from the activities of its own armed forces.
This concerns claims against the member States (or their ofcials). But the pro-
tocol of 28 August 1952 on the Status of International Military Headquarters
Set up Pursuant to the North Atlantic Treaty provides that the military status
agreement shall apply to Allied Headquarters (Article 2) and that the claims
to which Article VIII 5 of the military agreement applies shall include claims
“arising out of acts or omissions of any employees of an Allied Headquarters,
or out of any other act, omission or occurrence for which an Allied Headquar-
ters is legally responsible” (Article 6 (3)).33 This reference to the lex loci delicti
conforms to general principles of conict of laws.
Another express provision is the host agreement between France and
SHAPE, quoted below, under 13.5. It provides that the law applicable to
administrative contracts concluded by the host State shall be applied to con-
tracts of SHAPE relating to real estate (Article 7) and also to other contracts
if NATO has not enacted relevant regulations (Article 6).

33 The “civilian status agreement” (Agreement on the Status of the North Atlantic Treaty
Organization, National Representatives and International Staff) of 20 September 1951
contains no provision on applicable law, other than the usual disputes clause discussed
below.
472 chapter thirteen

A third provision is Article 7 of the host agreement between the Euro-

pean Space Research Organization (ESRO) and Sweden of 29 July 1964.34
It provided that “the activities of the organization in Sweden shall be governed
by Swedish law”. The provision implied that civil relationships, including
contracts with Swedish rms and subjects was to be governed by Swedish law.
The reference to Swedish law can of course not be taken too literally. It must
be interpreted at least to some extent in the light of the general principles of
conict of laws (or the conict of laws of the lex fori ) which refer in certain
cases to the law of other States or to the internal law of the organization. But
the provision must at least be taken to preclude the organization from claim-
ing that contracts and other civil relationships are governed by international
law or general principles of law, rather than national law.
A fourth, but different type of provision also referring to the law of the host
State cf. above 13.1, is found in the UN Headquarters Agreement with the
United States of 26 June 1947, in the approval of which the present writer
took an active part. It provides in Section 7 (b) that:
except as otherwise provided in this agreement or in the General Convention, the
federal, State and local law of the United States shall apply within the headquar-
ters district.
. . . but adds, in Section 8, that
The United Nations shall have the power to make regulations, operative within
the headquarters district, for the purpose of establishing therein conditions in all
respects necessary for the full execution of its functions. No federal, State or local
law or regulation of the United States which is inconsistent with a regulation of the
United Nations authorized by this section shall, to the extent of such inconsistency,
be applicable within the headquarters district.
An entirely different provision is found in the Third Protocol to the General
Agreement on Privileges and Immunities of the Council of Europe. It provides
in Article I that “the Council of Europe Resettlement Fund shall possess juridi-
cal personality” and that its
. . . operations, acts and contracts . . . shall be governed by this Protocol, by the Arti-
cles of Agreement of the Fund and by regulations issued in pursuance of the said
Articles of Agreement. In addition, a national law may be applied in a particular
case, provided that the Fund expressly agrees thereto and that such law does not
derogate from this Protocol or from the said Articles of Agreement.

34 Replaced by an agreement of 20 December 1971, which transferred the remaining opera-

tions from ESRO to Sweden.
 provisions on applicable law 473

Provisions on juridical personality and settlement of disputes

Otherwise, conventions on the privileges and immunities of IGOs, headquar-

ters agreements, host agreements and other similar agreements between IGOs35
and one or more of their member States usually do not go into the question of
what law shall be applicable to contracts concluded by the organization and to
its other relations of a private law nature. They do not provide for immunity
from substantive national law. Nor do they provide that external relations of
IGOs with private parties shall be governed by national law. They merely pro-
vide (1) that the organization shall have juridical personality and (2) that it shall
make provision for appropriate modes of settlement of disputes arising out of
contracts or other disputes to which the organization is a party.
An arbitral award appears to assume that since the juridical personality
of IGOs is based upon international law, their external relations with private
parties, too, must be on that plane, unless the organization expressly or by
implication submits to national law. It is submitted that none of these propo-
sitions is warranted. In fact such relations may be governed by national law,
general principles of law or, sometimes, the internal law of the organization.
But no conclusion in this respect can be drawn from provisions on juridical
personality in constitutions, conventions on privileges and immunities or even
in headquarters agreements. These merely conrm that the organization can
act as a person of national law.
The provision on appropriate modes of settlement of disputes implies
that the organization may establish its own courts to decide such disputes if
the other party wishes to sue or otherwise accept its jurisdiction. However,
the organization has an inherent power to do so in any case.36 On the other
hand, the provision does not commit national courts to decline jurisdiction
to any greater extent than follows from general international law and the
organization’s immunity from suit under applicable treaty provisions and
general international law.
Irrespective of whether its constitution or agreements on privileges and
immunities contain the above provisions, the organization may also enact
law, including conict of laws, to be applied to its contractual and other
external relations of a private law nature. This law will be binding upon its

35 IGOs are parties, not only to bilateral headquarters agreements and host agreements, but
also to the general conventions on privileges and immunities formally concluded between
member States, see Seyersted; op. cit., p. 339.
36 Cf. Seyersted; Settlement of Internal Disputes of Intergovernmental Organizations by
Internal and External Courts, Zeitschrift für ausländisches öffentliches Recht und Völ-
kerrecht, XXIV (1964), pp. 45–46.
474 chapter thirteen

own courts, and it will be applied by national courts whenever their conict
of laws refers to the law of the organization. This, too, is an inherent power
of the organization, which does not depend on any positive provision. And
an express provision on appropriate modes of settlement of disputes prob-
ably does not extend the inherent power of the organization in this respect.
Thus it is submitted that the provision does not commit the member States
to accept the law of the organization as binding upon their own courts to
any greater extent than follows from general international law and their own
conict of laws.
Even provisions in agreements on privileges and immunities that local law
shall apply on the premises of the organization do not add to what applies
in any case.
By their failure to provide for immunity from substantive municipal law, the
agreements on privileges and immunities leave the way open for application
of the rules of conict of laws of the lex fori, without providing what these
rules shall be with regard to the organization, except in the cases discussed
above, (conicts provisions).

13.5 IGO regulations and general conditions

Examples

Several IGOs have enacted general rules and regulations which lay down sub-
stantive conditions governing certain types of their contracts or similar relations
with private parties. In some cases these regulations merely constitute a guide
for the drafting of contracts, i.e., more or less binding instructions to the ofcials
negotiating the contracts. But in most cases the regulations are intended to
become parts of the contracts.37
Thus relief organizations, like UNRWA and UNICEF, have formulated
general conditions for their purchase of supplies. The UNRWA General
Conditions of Contract for Procurement of Goods were revised in 2002.
Work is currently carried out with the purpose of establishing one set of
general conditions for all UN organizations. All bids are made subject to
these conditions, which determine a number of legal questions relating to the
contracts, including the effect of miscalculations and other errors in bids, the

37 The Standard Contract established by FAO doc. AM/64/95 contains two sections. Section
I being a guide for the drafting of the special provisions and Section II containing the
General Provisions.
 provisions on applicable law 475

effect of default on the part of the contractor, settlements of disputes, etc.

The Council of Europe and, later, the European Communities have enacted
regulations governing works to be performed and goods and services to be
supplied to them in connection with the construction of their headquarters
and other installations or to cover their other administrative and operational
needs. The European Community, multilateral banks and other IGOs have
also enacted loan regulations and other regulations governing the condi-
tions upon which they provide loans, grants and other assistance. Thus, the
International Bank for Reconstruction and Development has enacted two
sets of Loan Regulations which set forth “terms and conditions” generally
applicable to loans made by the Bank to its member States and to non-gov-
ernmental borrowers, respectively. By the terms of the loan agreements the
parties expressly accept the provisions of the Loan Regulations. The loans
and grants which the European Development Fund provides to the Associated
African, Caribbean and Pacic States, overseas countries and territories, and
persons in those States are governed by a complex hierarchy of conventions
and regulations.38

Legal status: need for acceptance by other contracting party

Such regulations are extremely useful. In the rst place they eliminate, as far
as they go, the conict of laws question of which law is applicable to contracts
concluded by the organization. In the second place, the special nature and sta-
tus (including privileges and immunities) of IGOs in certain respects necessitate
rules different from those applicable to contracts between private parties.
However, the regulations have usually been enacted with a view to incor-
poration, by express reference or tacit consent, in the terms of each specic
contract. In many cases the “regulations” have no legal status other than as
parts of individual contracts, and are thus not “regulations” in the proper
(legislative) sense of the word. A different matter is that regulations may be
parts of the internal law of the organization, in the sense that they constitute
instructions, binding upon subordinate organs and ofcials which negotiate
individual contracts. They may even be binding upon member States and
individuals who are subject to the (extended) jurisdiction of the organiza-
tion in respect of the subject-matter.39 However, even this does not bind the

38 Revised Cotonou Agreement setting out the 10th EDF programme for the period 2008–
2013.
39 For the European Community see e.g. Council Regulation (EC, Euratom) No 1605/2002
of 25 June 2002 on the Financial Regulation applicable to the general budget of the
European Communities with later amendments.
476 chapter thirteen

other contracting parties, who are associated States or individuals under their
jurisdiction.
Indeed, regulations are not ipso facto binding upon the other contract-
ing party (or upon the organization in relation to a third party) unless they
have been enacted pursuant to jurisdiction conferred upon the organization,
and unless the other contracting party is subject to that jurisdiction in that
capacity, which he is usually not.40 Otherwise, in order to become binding in
relation to the other contracting party, the regulations must by accepted by
the external party – either expressly, for example by a clause in a contract –
or by implication, for example in connection with the making of bids to, or
with the acceptance of assistance from, the organization.41
The legal status of the regulations is – in addition to their internal effects,
primarily as instructions to the organs and ofcials of the organization – in
fact one of standard clauses to be included by reference as parts of individual,
negotiated contracts. Nevertheless, the regulations in fact lay down the most
important parts of the substantive law to govern the relationship between
the parties.

Clauses on applicable law and relation to mandatory national law

Still, the regulations may need interpretation and supplementation to ll lacunae.
What law should then be applied?
In one case this question was settled by a treaty between the organization
and the host State referring to the national law of the latter. The agreement
between France and the Supreme Commander of the Allied Forces in Europe
(SHAPE, an organ of NATO for purposes of international law, but a separate
juridical person for purposes of national law) of 5 November 1953 provided
in Article 6:
Les marchés sont passés selon les règles xées par le Conseil de l’O.T.A.N. ou, en
l’absence de telles règles, conformément à la réglementation française applicable
aux contrats de même nature passés pour le compte de l’Etat.
It thus referred to the French law governing contrats administratifs.42

40 Ofcials are in respect of their employment contracts, but these and other examples
of inherent organic jurisdiction are not considered here.
41 Cf. the EURATOM provisions quoted below.
42 Full text in Revue critique de droit international privé, CLV (1956), p. 732.
 provisions on applicable law 477

In other cases one must look to the regulations of the individual contracts.
The regulations usually contain provisions on the settlement of disputes –
mostly by standing or ad hoc internal courts of the organization or by arbitra-
tion. But they usually contain no clause on what law to apply when the regula-
tions and the contracts are silent.
Important exceptions are some of the regulations of the European Commu-
nities governing contracts with persons and enterprises in these Communities
and in third States, which, while conferring exclusive jurisdiction in disputes
upon the European Court of Justice, provide for the application of national
law. Thus regulations governing research contracts usually provide for the
application of the lex loci solutionis.
The EURATOM general conditions for contracts for the provision of
goods and services to that organization (for general household purposes as
well as for its nuclear installations) provides for the application of the law of
the host State of the organization (i.e. Belgium):
Auf den Vertrag ndet das Recht Anwendung, das zum Zeitpunkt des Vertrags-
schlusses an dem Ort gilt, an dem die Kommission ihren Sitz hat.43
A subsequent version reads:
Sauf stipulation contraire, le droit du pays du siège de la Commission est appli-
cable au marché.44
This applies even if the purchase is made outside Belgium. It thus makes for
uniformity in the application of the regulations.
The corresponding EURATOM conditions concerning construction works,
however, do not establish such uniformity. They provide for application of the
(territorial) law in force where the property is situated, if no other law has been
agreed.45 The text – in contradistinction to the French text of the conditions

43 Verdingungsordnung, Art. 36, cf. Art. 34, EUR/C/345/8/60–d.

44 Cahier des conditions générales applicables aux marchés de fournitures (EUR/C/345/
9/60–f ), Art. 32. A contrary provision, though restricted to liability, is found in Art. 9 of
the Council Decision establishing the European Joint Undertaking for the International
Fusion Energy Organization (ITER) – 2007/198/Euratom of 27 March 2007 – which
provides that contractual liability shall be governed by the law applicable to the contract
in question and that non-contractual liability shall be governed by the general principles
common to the Member States, and adding that the ECJ shall have jurisdiction, cf. Ofcial
Journal L 90, 30 March 2007, pp. 61–2.
45 Art. 22: ”Le droit applicable au contrat conclu entre la Communauté et le contractant
est, sauf disposition contraire, le droit en vigueur au lieu où se trouve le terrain sur lequel
doivent être effectués les travaux” (EUR/C/3306/3/61 n). The number of EURATOM
provision and construction contracts has been extremely large.
478 chapter thirteen

for the provision of goods and services – refers to the place46 rather than to
the State where the property is situated. Legally, this makes no difference,
since Community law – within the eld of the Community’s jurisdiction –
supersedes national law even as the national territorial law. Nevertheless,
in these circumstances the reference to “lieu” is more appropriate. It might
be the only appropriate reference, should any EURATOM installation in
future become extra-territorial, in the sense that the organization would be
given extra-territoriality, involving special territorial legislative powers for its
premises.
The conict clauses of these EURATOM conditions must be interpreted
as referring to the mandatory as well as the facultative law of the State con-
cerned. EURATOM has no power to enact regulations which supersede the
law of the member States in these respects, and no immunity from substan-
tive law in external relations. The mandatory provisions of the applicable
national law must therefore supersede the provisions of the general conditions,
as they supersede the provisions of the contract,47 except to the extent that
the national law refers, as a matter of conict of laws, to the internal law of
the organization.
Indeed, this must be the normal rule if the relations are governed by
national law – whether or not on the basis of an express reference to such
law – unless there is a provision excluding supersession by mandatory law.
An arbitration clause may be an example of the latter. Another may be
UNRWA’s insurance contracts. A different matter is that clauses precluding
supersession by national law frequently imply that the contract shall not even
be interpreted and supplemented by national law, but by international law
or general principles of law.

Applicable law when no clause

If the regulations contain no provision on applicable law, the relationship will

in principle be governed by the law to which the conict of laws of the lex fori
refers, including normally the mandatory as well as the facultative provisions
of that law. Bowett rightly points out that “the submission to a particular
jurisdiction will tend to be taken as evidence of submission to the law of that
jurisdiction.”48 It may also be that regulations are intended to sufce in them-

46 French text: “lieu”, Dutch text: “grondgebiet”.

47 Unless it could be demonstrated that the mandatory rules concerned are not applicable
to IGOs.
48 D.W. Bowett, The Law of International Institutions, 4th ed., London 1982, p. 369.
 provisions on applicable law 479

selves, as supplemented by general principles of law. In some cases it may even

be assumed that the entire law of the organization is applicable, including its
constitution and its other regulations in force at the time of conclusion of the
contract (or even enacted subsequently). This may be more easily assumed in
relations arising directly out of the typical operational activities of the organiza-
tion than in purely commercial transactions for household purposes.

13.6 Contract clauses referring to applicable law

The simplest solution of the conict of laws issue – in those important elds
where the conict of laws of the lex fori accepts the intention of the parties as
decisive – would be if these would specify in their contract the law that was
to govern it. However, information which the secretariats of 18 IGOs49 were
good enough to provide to the present writer at an early stage (1967) indicated
that, while IGOs usually include in their contracts a clause on the settlement of
disputes, they in most cases include no clause on applicable law. This was true
of the United Nations and the specialized agencies, with limited exceptions in
the case of the ITU, ILO, Bank, League of Nations, UN and UNRWA. The
latter is probably the organization – or more precisely, organ of an IGO (UN) –
which concludes the greatest number of contracts and which has the largest
number of disputes. Many regional organizations, on the other hand, do insert
clauses on applicable law in a number of their contracts. This is done by the
European Community in many cases not covered by the regulations discussed
above, chapter 13.5,50 and in some cases also by the Organization of American
States (OAS), the Council of Europe and – in exceptional cases when the other
party insists – by the Organization of Economic Co-operation and Develop-
ment (OECD).

49 See also the practice of the United Nations and the specialized agencies summarized in
UN document A/CN.4/L.118/Add. 1, Chapter I, 1 (b), paras. 5–8, cf. paras. 36–48, and
Add. 2, Chapter I, 1 (b), paras. 4–8, cf. paras. 20–22. See also the examples of express
clauses given by Delaume in AJIL Vol. 56 (1962), pp. 66–76 and by Bowett, op. cit.,
p. 368.
50 The EURATOM Cahier des clauses et conditons générales applicables aux marchés de
transports provided in Art. 29: “Le droit applicable au marché est déterminé par le cahier
des clauses et conditions particulières”.
480 chapter thirteen

General principles of law

In some cases these clauses refer to general principles of law.51

The General Terms and Conditions Applicable to FAO Procurement con-
tracts and all FAO purchase orders contain the following clause:
9. APPLICABLE LAW: Subject to any specic provisions herein, this contract and
any dispute arising from this Contract shall be governed by general principles of
law, to the exclusion of any single national system of law.
A concrete example, of a more public character, is the agreements on the Ari-
ana Site, which Switzerland concluded, rst with the League of Nations, and
then with the United Nations. These agreements dene the rights and duties
of the parties with regard to their respective properties in and around the site
of the Palais des Nations in Genève. They provide that they “shall be interpreted
in accordance with the general principles of law”.52 There is no indication in
the published travaux préparatoires of either agreement as to the reason for, or the
meaning of, this clause.
These are, of course, agreements with another subject of international
law. But the same clause was included in the Convention Concerning the
Establishment and Operation of a Wireless Station in the Neighbourhood
of Geneva between the League of Nations and the Radio Suisse of 2 may
1930.53 Similarly the ILO and UNRWA refer to general principles of law
in some of their contracts with private parties. And so do some arbitration
agreements in disputes arising out of contracts which are silent on the issue
of applicable law. Thus UNRWA’s arbitration agreements concerning settle-
ment of disputes arising from maritime or commercial contracts which are
silent on a particular point or on the application of a particular law frequently
provide that the arbitrator shall decide the dispute in accordance with the
principles, rules and customs generally recognized by legal systems in com-
mercial or maritime matters.54
A contract of 26 April 1967 between the International Labour Organisa-
tion and the Property Foundation for International Organizations (a private
law foundation established by the Swiss Confederation and the Republic
and Canton of Geneva) concerning the construction of a new building for
the ILO contained an arbitration clause which provided, in English transla-

51 See also the non-contractual provisions in this sense in the constitutions of the EC,
EURATOM and UNIDROIT.
52 Société des Nations, Journal ofciel, Supplément spécial, No. 79, p. 123, Art. 13; UNTS,
Vol. 1, p. 153, Art. 12.
53 Hudson, International Legislation, V, p. 501, cited by Jenks, p. 153.
54 E.g., the arbitration between the Levant Markets Habre & Co. and UNWRA, 1955.
 provisions on applicable law 481

tion: “The present contract shall be constructed according to the general

principles of law, supplemented where necessary by the relevant Swiss law”.
This provision was a compromise between the wish of the organization to
apply general principles of law and the wish of the Swiss authorities to apply
Swiss law. The arbitral tribunal provided for in the same article may nd it
convenient to implement the provision on the lines adopted in the arbitral
award reported below.
UNRWA’s re insurance contracts refer to general principles of insurance
law as a subsidiary source, viz. if the country where the risk occurs has no
law governing the subject-matter. This will probably be the normal subsidiary
source of the national law that is applicable in the rst place, even if not
expressly stated.
The main purpose of clauses referring to general principles of law is to
avoid the application of any particular national law, and in particular the law
of the other contracting party. General principles of law will also have to be
applied when the contract provides that national law shall not be applicable,
for example when UNRWA contracts provide that local law shall not apply in
respect of notaries notices, services of summons, mis en demeure, etc. The same
is true when the contract provides that its provisions shall exclusively govern
the relationship between the parties, as do some of UNRWA’s contracts for
services and supplies. However, general principles of law are also applied in
practice without any such express provisions.

Ex aequa et bono

Some clauses in contracts or rules give the (arbitral) court a wider freedom
by authorizing it to decide ex aequa et bono.55 An example is found in the Rules
laid down by the Secretary General of the Council of Europe (Rule No. 481
of 27 February 1976) on “arbitration procedures for any disputes between the
Council and private persons regarding supplies furnished, services rendered or
immovable property purchased on behalf of the Council”. These provide in
Article 1 that any dispute relating to the execution or application of a contract
where the Council is entitled to immunity in national courts shall be submit-
ted to arbitration. Article 4 of the Rules then provides: “If the parties do not
agree upon the law applicable the Board or, where appropriate, the arbitrator

55 See F.A. Mann: Notes and Comments on Cases in International Law, Commercial Law,
and Arbitration, Oxford 1992, pp. 16–18.
482 chapter thirteen

shall decide ex aequa et bono having regard to the general principles of law and
to commercial usage”.
Another example is the loan contracts of the Inter-American Development
Bank. Thus, its Loan Contract with Jamaica of 9 March 1972 provides that
any controversy that is not resolved by agreements shall be settled by an
Arbitration Tribunal which “shall proceed ex aequa et bono, basing itself on
the terms of the contract” (Article Four (b) of Annex A).
In some other cases the agreements contain provisions which preclude the
supersession of their terms by any rule of (mandatory) national law, without
stating what law shall be applied for interpretation and supplementation, in
the same manner as the Loan Regulations of the International Bank. An
example may be the agreement between the United Nations and the Carnegie
Foundation Concerning the Use of the Peace Palace in the Hague.
However, most contract clauses on applicable law refer to a system of
national law.56

Law of the host State

A great number of contracts refer to the law of the host State,57 either as the lex
rei sitae, the lex loci solutionis or the lex domicilii of one or both parties.
Thus contracts made by the International Telecommunication Union with
local authorities, companies and individuals for the purchase or rental of
real property in Geneva normally prescribed that disputes shall be settled by
arbitrators who shall determine their own procedure, but shall interpret the
deed in accordance with Swiss law (the lex rei sitae) and, to the extent neces-
sary, according to the general principles of law. Contracts for the provision
of goods and service do not State the applicable substantive law, but provide
for arbitration of disputes, declaring in many cases that the arbitral procedure
will be that provided for by the Geneva code.

Law of other named State

Many of the contracts made by the European Communities refer to the law of
the host State (Belgium or Luxemburg) – as do the EURATOM conditions for

56 In one case of purchase of a special type of car for technical assistance, the ILO accepted
the standard contract of the supplier expressly making a particular system of national law
applicable, because the supplier was not ready to accept the usual ILO purchase order.
57 Cf. above on the law of the host State as a subsidiary source in a more general way.
 provisions on applicable law 483

provision of goods and services. The Organization of American States some-

times provides for the application of “the laws of the District of Colombia or
United States federal law, where applicable” to “any questions regarding the
validity of this Agreement and the interpretation of any provisions thereof ”.
UNRWA’s contracts of insurance for third party liability provide that the Leba-
nese Law shall apply in the interpretation and application of the provisions of
the policy of insurance, or for anything not specically provided for therein.
This clause – in contradistinction to that of the OAS – may mean that the terms
of the contract shall take precedence over even mandatory national law.
Even certain agreements with the host State provide for the application
of the law of that State. Thus Article 3 of the Loan Agreement between
the International Labour Organisation and Switzerland of 4 March 1957
provided that “the Swiss Code of obligations shall be applicable to the loan
agreement”.58
The law of the host State is also frequently applied in the absence of
express provisions.
Other contracts refer, for convenience, to the law of a particular State that
possesses a well-developed and reputed law in the eld. Thus the charter-par-
ties concluded by the former International Refugee Organization provided
that they were to be interpreted according to English law.59 The International
Finance Corporation’s early contracts for loans to private parties, which involve
extremely complicated nancial transactions, stipulated New York Law.60 And
so did the early loan agreements of the International Bank – but only with
regard to their interpretation. The European Investment Bank stipulated that
Swiss law was to be applicable to loans it granted in countries associated with
the European Community (Greece, Turkey, associated African, Caribbean and
Pacic States), but adding that Swiss courts should have jurisdiction.61 Such
reference to a well-developed or well-known law in the eld is frequently used
also by private corporations in their contracts.

58 ILO Ofcial Bulletin, XXXX (1957), p. 352. This provision may apply only to the sub-
stantive, not to the formal aspects of the agreement.
59 Information supplied in 1951 by L. Stephen, General Counsel of the IRO.
60 Nurrick: “Choice-of-law Clauses and International Contracts”, Proceedings of the American
Society of International Law 1960 at p. 61, and Delaume; Legal Aspects of International
Lending and Economic Development Financing, New York 1967, pp. 80–81, explaining
also why these clauses were subsequently dropped.
61 Delaume, op. cit., p. 81, note 28. On loans granted in member States, see below. The
reason for this choice is well explained by Käser: “Darlehen der Europäischen Investions-
bank – Darlehen der Weltbank”, in Europarecht, II (1967), pp. 307–308.
484 chapter thirteen

Lex loci solutionis, etc.

The European Community sometimes refers to the law of the country where
the contract is to be performed (lex loci solutionis). This is true of most research
contracts, although in many of these cases the relevant provision is contained in
general conditions, rather than in each contract.62 It has already been pointed
out that UNRWA’s re insurance contracts provide that the law of the country
where the risk occurs shall be applied, but that if there is no law governing the
subject-matter, the provisions of the policy and general principles of insurance
law shall apply. (The lex loci delicti is applied in practice in torts, see below in 13.7
and above in 13.4 in initio.)

Loans: law of place of issue, etc.

Loans obtained by IGOs frequently have referred to the law of the country
where the loan is issued. More recently, the Social Development Fund of the
Council of Europe refers to the law of its host country (France) or, alterna-
tively to the law of the currency or the law of the borrower. The practice of
the International Bank for Reconstruction and Development was summarized
in the United Nations compilation of the practice of the United Nations and
the specialized agencies concerning their status, privileges and immunities as
follows:
The practice of the IBRD as a borrower depends on the custom in the particular
market in which the funds are raised, or bonds are issued, and the character of the
lender. While IBRD bonds issued in Canada, the United Kingdom and the United
States contain no stipulation of applicable law (although it may be assumed that
the law of the relevant marked applies), bonds issued in Europe, other than in the
United Kingdom, are expressly governed by the law of the particular market.63
As regards the character of the lender, it may be noted that, while loans made by

62 Most of the research contracts of EURATOM, under Art. 16 of the relevant regulations,
refer to the country where the research is performed, except that if the research is per-
formed jointly by several persons or enterprises, the lex domicilii of the organization is
applied, i.e. Belgian law, in order to avoid disagreements, see Carpentier and Mathijsen;
“Les contrats de recherche de l’Euratom” in Revue trimestrielle de droit européen, I,
(1965), p. 366. The former ECSC provision read (para. 13): “En règle générale, le droit
applicable aux rapports juridiques entre le bénéciaire et la Haute Autorité est, aux ter-
mes de la convention, celui du pays dans lequel est effectueée la recherche.” This part of
the regulation did not appear to have the legal status of provisions to be made directly
binding upon the other contracting party by incorporation in the contract. Some of the
EC research contracts also refer to the lex loci solutionis.
63 See for example the loans in Germany cited by Delaume, op. cit., p. 86, note 48.
 provisions on applicable law 485

Switzerland to the IBRD are governed by international law, loans made to the
IBRD by institutions such as the Deutsche Bundesbank, although governed by
municipal law, contain no express stipulation of applicable law.64

Standard forms of contract implying local law

In a compilation of the practice of the United Nations and the specialized

agencies concerning their status, privileges and immunities, the United Nations
Secretariat have stated:
Reference to a given system of national law may also be made implicitly. Thus the
lease contracts entered into by the specialized agencies in different countries have
usually been cast in the standard form employed locally, which have presupposed
the applicability of national law. A somewhat similar situation has prevailed where
an organization has entered into a contrat d’adhésion drawn up by the party
providing the service, such as the provision of transport facilities or of insurance
coverage.65

13.7 Clauses in arbitration agreements66

Most arbitration agreements leave the choice of law to the arbitrator. However,
there are exceptions. Thus an arbitration agreement concerning the non-con-
tractual liability of the United Nations for the loss of a private aircraft in the
Congo in 1961 specied that the arbitrator should apply Congolese law (lex loci
delicti), except for the conduct of the case and the procedure indicated in the
agreement.67
It has already been pointed out that UNRWA’s arbitration agreements
concerning maritime and commercial disputes frequently refer to general
principles of maritime or commercial law.

64 A/CN.4/L.118/Add.2, chapter I, para. 8.

65 Ibid., para. 4. For cases concerning third party liability insurance for UN motor vehicles
it is recognized that the insurance carrier have the right to defend (under local law) any
suits which might be brought against the UN, see Doc. A/CN.4/L.383 and Add. 1–3
(1985), p. 159.
66 On arbitration clauses and other jurisdictional clauses, see below, chapter 15.
67 In another case a regional IGO is said to have decided to accept for purposes of a proposed
arbitration the lex loci solutionis, for practical rather than for doctrinal reasons, because the
forum envisaged for the suit offered very low attorney’s fees.
486 chapter thirteen

13.8 Rules adopted by the INSTITUT DE DROIT INTERNATIONAL

The Institut de droit international, composed of elected members and associés from
the global community, plays an important part in the development of public
and private international law, by adopting resolutions formulating existing law
on the basis of proposals elaborated by special rapporteurs and commissions
composed of members having special knowledge on the subject. The proposals
are discussed and adopted at biannual plenary conferences of the international
law experts from the whole world who have been elected members or associés
of the Institut.
The Institute’s 1977 session in Oslo on “Contracts Concluded by Inter-
national Organizations with Private Persons” concluded inter alia that “it is
desirable that the parties expressly specify the source, national or international,
from which the proper law of the contract is to be derived” (Article 2) and
that “if not expressly indicated in the contract, the proper law shall, where
necessary and unless otherwise agreed by the parties at a later stage, be
determined by the body entrusted with the settlement of the dispute, which
shall try to ascertain the parties’ tacit intention or, failing this, apply objective
criteria” (Article 5). It was further concluded that “In so far as it constitutes
the proper law of the contract, the law of the organization shall be consid-
ered as including the constitutive instrument, any other rules governing the
organization and the practice established by the latter, these sources being
supplemented by the general principles of law” (Article 6).

13.9 Conclusions

States have the (inherent) power to lay down by legislation what rules on conict
of laws their courts shall apply. But they are not known to have done so with
special regard to IGOs, which in turn have the inherent power to lay down
by regulation what conict of laws their internal courts shall apply. But they
are also not known to have done so, except for a few constitutional provisions.
There are only a few scattered relevant provisions in international conventions,
in IGO constitutions and in agreements on privileges and immunities. The gen-
eral conditions for contracts adopted by the organization, the contracts them-
selves and arbitration agreements concluded by IGOs more frequently contain
clauses on applicable law. But even these do not cover the majority of cases.
The above survey of such provisions and clauses demonstrates that there
is not too much uniform practice – each organization frequently has its own
way of doing things.
 provisions on applicable law 487

Still, it is possible to draw the general conclusion that in most cases the
provisions and clauses conform to general principles of conict of laws. This
indicates that at lest in many cases the application of the regular rules of
conict of laws to IGOs is a feasible and natural solution, as far as choice
between national laws are concerned. Indeed, it may be said that IGOs largely
follow general principles of conict of laws in their (external) relations with
private parties not subject to their organic or extended jurisdiction.
However, as the latter reservation indicates, the parallel is the conict of
laws (in the wider sense) as applicable in relations between States and private
parties, rather than that applicable between private parties inter se as early
writers assumed in respect of personal law. This explanation is particularly
important when it comes to the question of the choice between national law
and international law or general principles of law, because national law is
more liable to be by-passed in this manner when one of the parties (or both)
is a subject of international law. Practice in respect of loans is that IGOs,
like States, usually elect national law, the only clear exception being the
International Bank.68
There are, however, some provisions in the law and practice of each orga-
nization which deviate from the regular pattern of conict of laws. Some pro-
visions substitute the law of the host State69 or some standard law, or general
principles of law,70 for the national law that might have been applicable under
otherwise applicable conict rules. Other provisions merely say that national
law shall not supersede the terms of the contract, without specifying under
what law the contract shall be interpreted and supplemented. These provisions
appear to be motivated partly by a desire for uniformity in the interpretation
and application of similar contracts concluded by the same organization with
parties in different States, and in the latter cases also by a desire to avoid the
possibility that particular States through their legislation may interfere with
the activities of the organization. Neither of these considerations is unknown
to private companies engaged in international business. But they attain greater
weight in the case of IGOs. On the other hand, there are some provisions
which do not strive for uniformity, viz. some of those provisions which make
the law of the other party applicable. To the extent that these may not have
been dictated purely by considerations of a regular conict of laws nature (lex
loci solutionis, law of the market, etc.), the organization has justly felt that, while

68 Delaume, “The Proper Law of Loans Concluded by International Persons”, AJIL, LVI
(1962), pp. 63–87, especially pp. 86–87.
69 For example the EURATOM conditions for the provision of goods and services.
70 Above, under 13.3 (EC Art. 288) and 13.6. Cf. also the International Bank’s loans from
Switzerland reported under 13.6 in ne.
488 chapter thirteen

it has no applicable law of its own, and while it on the other hand would not
be proper to give the law of the country where the organization happens to
have its seat a predominant position by applying that law both to parties in
that country and to parties in other member States, the organization should
strive for equality by applying each party’s own law.
In many cases the choice between these various alternatives appears to
be more accidental. Indeed, the practice of the various organizations differs
even with regard to the same type of contracts, and it is not always easy to
discern common principles or reasons behind these divergences. It appears
as if the personality of the legal adviser may in these cases be as important
as the special situation of each organization.
 CHAPTER FOURTEEN

PRACTICE WHEN THERE IS NO CONFLICTS PROVISION.

EXAMPLES OF APPLICATION OF LAW OTHER THAN
NATIONAL LAW

14.1 Introduction

In the majority of cases involving relations of IGOs with private parties there
is no provision on applicable law.1 In such cases each relationship concerned
must be evaluated – within the framework of the conict of laws of the lex fori –
in the light of all the circumstances which – via the real or presumed intention
(interests) of the parties (subjectively), or directly (objectively) – may permit a
conclusion as to the applicable law. Due regard must of course be paid to the
intergovernmental nature and the sovereign status of the organization. In this
respect, guidance may be sought in practice in corresponding relations between
States and private parties.2
In the present chapter we shall concentrate upon the question whether the
relationship is governed by national law or some other law, such as the internal
law of the organization, international law or general principles of law. We
have already discussed the attitude of three writers on this basic choice. After
a brief survey of practice in general we shall now consider three important
practical examples which may throw some light upon this question.

1 In this sense also G. Delaume, Law and Practice of Transnational Contracts, New York
1988, p. 6, citing certain exceptions pp. 6–7 and 13–14.
2 Cf. K.H. Böckstiegel, “The Legal Rules Applicable in Internal Commercial Arbitration
involving States or State-controlled Enterprises” in International Chamber of Commerce,
60 Years of ICC Arbitration: A look at the Future, Paris 1987, at pp. 154–176, with com-
ments by others at pp. 177–209.
490 chapter fourteen

14.2 General practice

There is little information available about practice in those cases where there
are no applicable conicts provisions. What little there is, conrms the conclu-
sions submitted.

Court practice

There are few decisions by national courts – because many IGOs are reluctant
to waive their immunity – and no known decisions by internal courts of IGOs.
There are many arbitral awards, but these are not usually made available for
publication. One important arbitral award will be discussed in detail below, in
chapter 14.5. Otherwise, the known relevant arbitral awards do not refer to any
particular law.

IGO practice

The practice of the UN and the specialized agencies in contractual relationship

with private parties indicate that without any general reference to particular
national law, the organization relies on general principles of law in the inter-
pretation of contracts.3
The information obtained from other IGOs on their own practice in the
absence of specic conict provisions is too scattered to allow for rm con-
clusions in the several elds of external legal relations, except that several
organizations4 have stated that they recognize the lex situs (lex rei sitae) as gov-
erning lease contracts and other transactions relating to immoveable property.
The law of the host country has been accepted by the UPU for commercial
and similar contracts and by the OAS for labour contracts and other private
law contracts. The International Bank appears to have accepted the law of
the market as applicable to loans it obtains from private parties. With respect
to torts, one organization (NATO) has stated that the lex loci delicti is always
applied in the case of motor car accidents,5 while UNRWA6 has applied that
law only in the assessment of compensation for injury from tortuous acts.
Otherwise UNRWA has applied general principles of law in torts and in the

3 See Doc. A/CN.4/L.383 and Add. 1–3 (1985), pp. 152 ff.
4 NATO, OAS, ILO.
5 In the practical cases – military vehicles – this is expressly provided by treaty.
6 UNRWA is not an independent IGO, but an autonomous organ of the United Nations.
 practice when there is no conflicts provision 491

interpretation (and legality) of contracts. The former International Refugee

Organization, which concluded a great number of contracts, tried to settle
disputes concerning these by negotiation on the basis of general principles
of law and what was considered right and fair, rather than looking for a
particular system of law.7

IGO policy

In the same vein, when the International Atomic Energy Agency decided not to
include a clause on applicable law in the research contract granted by it, it did
so for the following reasons, which are believed to be representative of thinking
within the United Nations and several other organizations:
(1) To permit the law of the contractor to apply would have made each of our
contracts subject to a different law, in many cases unfamiliar to us and perhaps
requiring textual changes in the contractual instrument.
(2) To refer always to Austrian law seemed arbitrary and not consistent with our
status as an international organization.
(3) Reference to “international law” or to “general principles” would surely have
caused difculties with at least some or our contractors, particularly since we would
have been hard pressed to inform them what the substantive provisions of such law
were with regard to any specic issues that might arise.
Since any disputes would be referred to an international forum (ad hoc arbitration)
and since we decided to take care that the nal step in concluding each contract
would be taken at headquarters (afxing the Agency’s signature after the contractor
had done so), we hoped that if any dispute should arise no particular national law
would be held applicable.8

14.3 Relations with non-governmental organizations

Consultative status and co-operation agreements

Many IGOs establish special relationships with non-governmental organiza-

tions (NGOs, mostly international NGOs) working within the same eld by

7 Information supplied in 1951 by L. Stephens, General Counsel of the IRO.

8 Paul Szasz, formerly of the Legal Division of the IAEA (subsequently of that of the Bank
and the UN legal department in New York), to the writer. (This was decided before the
present writer was appointed Director of the Agency’s Legal Division.)
492 chapter fourteen

granting them consultative status or by entering into special co-operation agree-

ments with them.9
These INGOs are neither organs, nor members of the IGO and are thus
not subject to its organic or membership jurisdiction in the strict sense.10 The
relations are therefore in principle of an external nature. On the other hand,
INGOs are not normally subject to international law, and relations with them
are therefore not ipso facto of a public international law nature. If we assume
that there are only three categories of law, we may therefore say that the
relations in principle are of a national law nature.
However, such relations between IGOs and NGOs have no direct parallel
in the relations of States and of private parties. They therefore do not fall
clearly within any one of the regular principles of conict of laws – i.e., there
is no established principle of conict of laws to determine which law is to
govern such relations. Not even by analogy would it appear natural to apply
any of the specic principles referred to above, such as the lex loci contractus,
the lex loci solutionis,11 or the lex domicilii of one of the parties. With regard to
the latter it may be noted that most international NGOs, like IGOs, are only
loosely connected with the national law of the country where they happen
to have their seat.
Non-commercial relations between IGOs and NGOs appear on the whole
to lack any strong connection with any particular system of national law,
and it would not even be natural to subject them to any system. The legal
system with which they have the strongest connection is the internal law of
the organization. It is therefore submitted that this law, as supplemented
by general principles of law, is the proper law of non-commercial relations
between IGOs and NGOs.
From a theoretical point of view this would be in accordance with a prin-
ciple of conict of laws which has been applied by courts and which has been
expressed by the Permanent Court of International Justice in the sense that a
sovereign State cannot be presumed to submit to any system of national law
other than its own with regard to the substance of its obligation.12 This was
never a generally accepted principle of conict of laws,13 as was demonstrated

9 Cf. above chapter 1.2.

10 On these concepts, see above, or more briey, Seyersted: United Nations Forces, Leyden
1966, pp. 144–145 (organic jurisdiction) and 158 (membership jurisdiction).
11 Except where the organization is to perform a specic task in a specic place.
12 Serbian Loans Case, PCIJ. Ser. A, No. 20, p. 42.
13 Cf. Schnitzer: Handbuch des internationalen Privatrechts, 4th ed., Basel 1957–58, p. 52;
Schwarzenberger and Braun: A Manual of International Law, 6th ed., Milton 1976, p. 52;
and Batiffol: Problèmes des contrats privés internationaux, Paris 1961–62, pp. 82–84.
 practice when there is no conflicts provision 493

by the gold clause decisions in various European countries in the 1930s.14 But
in the cases under consideration here, it may be reasonable to assume that the
NGO, as the weaker party, has submitted to the law of the organization as the
sovereign and stronger party, rather than vice versa. This is also so because, at
least in most cases, it is the IGO which is granting the greater benets, even
if rights and duties are reciprocal. If similar relations had existed between a
State and INGOs, the applicable law would no doubt have been the law of
that State. It is then in complete harmony with general principles of conict
of laws if in this case we apply the internal law of the organization.
Mann has taken the contrary view that the existence of
a presumption in favour of the law of the contracting international person, i.e.,
State . . . must be denied, for it could be of no use in those numerous cases in which
the contract is made with international persons who are not States and who, there-
fore, do not possess their own legal system.15
Even if one (wrongly) were to maintain such a strict uniformity of the law appli-
cable to States and IGOs,16 it cannot be denied that the organization possesses
its own legal system. Indeed, apart from the above considerations of principle
and of presumed intentions, the application of the internal law of the IGO
concerned also appears to be the most practical solution. The national law of
the State where the NGO has its seat, or of any other State, is not likely to con-
tain any rules which may be relevant to this special kind of relationship. And
any relevant national rules might be unsuitable on the IGO level. Any system
of national law is likely to be able to offer only its general principles of contract
law. And not even all of these may be adaptable to relations of this nature.
The internal law of the IGO, on the other hand, will usually contain certain

14 In these cases, European governments were considered to be subject to United States law
with regard to loans they had contracted in that country, see Delaume: Legal Aspects of
International Lending and Economic Development Financing (1967), pp. 100–102. As for
Scandinavia, see for example the judgments by the Norwegian Supreme Court reported
in “Norsk Retstidende”, 1937, p. 888 (but see 1962, p. 369), and by the Swedish Supreme
Court in “Nytt Juridiskt Arkiv”, 1937, p. 1.
15 BYIL, XXXV (1959), p. 42.
16 In the view of the present writer the analogy between States and IGOs is no more than
a presumption – where conditions are similar.
494 chapter fourteen

regulations governing such relations,17 which are binding upon the NGO.18 And
these may be adequately supplemented by further regulations and by general
principles of law not derived from the law of contracts of a particular country.
Another practical consideration is that any solution other than the application
of the internal law of the IGO and general principles of law would bring a
confusing lack of uniformity into the consultative status relationship of the
IGO concerned.
This is thus an example of conict of laws referring to the internal law of
an IGO in essentially the same manner as it refers to national law.19

Other relations

However, agreements and other relationships between IGOs and NGOs are
not subject to the internal law of the IGO if the parties have intended oth-
erwise. The parties may even intend the agreement not to be subject to any
particular system of law on the hierarchical level of national law, but to public
international law or to general principles of law pure and simple. They may
wish to do this in order to prevent the agreement from being modied by unilat-
eral legislative action of either party: The IGO or the State in which the NGO
has its seat. Certain agreements between NGOs and States may in this manner
be brought under the rules of public international law.20 The same may be
done in respect of agreements between NGOs and IGOs. The agreement of 6
April 1961 between the International Atomic Energy Agency, the Principality
of Monaco and the Institut Océanographique concerning Research on the Effects

17 On consultative status with UN, see ECOSOC resolution 1996 No. 31. On consulta-
tive status with the Council of Europe see the rules adopted by the Ministers’ Deputies
in October 1960 Concl. (60) 90 entitled “Relations between the CE and INGOs”. As
regards consultative and contractual relations with UNESCO, see the “Texte des directives
concernant les relations avec les organisations internationales non gouvernementales”,
approved by the General Conference at its Fifth Session (Actes de la Conférence Générale
de l’UNESCO, Cinquième session, résolutions, pp. 126–133). The previous regulations of
UNESCO may be found ibid., troisième session, résolutions, p. 79.
18 Provisions concerning contractual relations may not be binding unless they have been
incorporated in the contract by reference. But at least in the case of non-contractual
consultative status, amendments of the regulations apply ipso facto even to NGOs which
have acquired such status prior to the amendment (see e.g., para. 13 of the Council of
Europe rules cited in the preceding note), unless they renounce such status.
19 Zemanek, Das Vertragsrecht der internationalen Organisationen, Vienna 1957, pp. 123–128,
arrives at essentially the same conclusion as the present writer. Schneider: Treaty-Making Power
of International Organizations, Geneva 1959, pp. 139–140 applies public international law.
20 See the example of the ICRC cited above, chapter 2, and Seyersted, The Indian Journal
of International Law, Vol. IV 1964, p. 50.
 practice when there is no conflicts provision 495

of Radioactivity into the Sea21 may be an example of both. But in the case of
consultative status the presumption is against this – because the favours are
primarily conferred upon the NGOs, and the IGO clearly wants to determine
their contents at any given time.
The Agreement between the United Nations and the Carnegie Foundation
Concerning the Use of the Premises of the Peace Palace at the Hague22 is
entirely different from those envisaged above. It concerns mainly matters of
a commercial nature (lease of property) and would in itself probably have
been governed, not by the internal law of the United Nations, but by the lex
rei sitae, i.e., by Dutch law. Possibly in order to avoid this, the following provi-
sion was inserted in the agreement, as Article XIV:
It is expressly understood that the question of the establishment of the Interna-
tional Court of Justice at the Peace Palace exclusively concerns the United Nations
and the Carnegie Foundation, and is consequently outside the jurisdiction of any
other organization; the Foundation declares its readiness to accept all the respon-
sibilities arising out of this principle.
This provision was hardly aimed merely at the other organizations using the
Peace Palace. It probably was intended to preclude also the intervention of
Dutch authorities in the relationship between the parties. It then clearly pre-
vents the supersession of any clause of the agreement by mandatory Dutch
law, and it may preclude entirely the application of the lex rei sitae, even in
supplementation and interpretation of the agreement. On the other hand, it
does not follow from the text whether the agreement is to be governed instead
by internal United Nations law, by public international law or merely by general
principles of law. The question is of little practical importance for interpreta-
tion and supplementation, because in substance the result would in all cases be
essentially the same. Neither the internal law of the United Nations nor public
international law contains rules on the lease of property. They would therefore
both have to be supplemented by general principles of national law. But if the
agreement were held to be governed by United Nations law, that law could even
supersede the terms of the agreement. This was probably not intended, cf. the
term “. . . a matter exclusively between the United Nations and the Carnegie
Foundations”. It is true that the United Nations is the sovereign party. However,
it is the Foundation which is doing the favour because the annual rent of 68,400
orins appears to have been calculated only to cover the costs of the operating
services to be provided by the Foundation under the agreement23 and thus to

21 UNTS, Vol. 396, p. 255.

22 Approved by GA resolution 84 (I) and amended by GA resolution 586 (VI). Text annexed
to the former resolution and in ICJ Yearbook, 1946–1947, p. 94.
23 UNGA resolution 586 (VI).
496 chapter fourteen

fall below what the United Nations would have had to pay on a commercial
basis. In these circumstances it is submitted that the agreement – like the loan
agreements of the International Bank – is governed by general principles of law
(or by international law).

14.4 International bank loan agreements24

The International Bank for Reconstruction and Development grants loans to

its member States and to public and private companies in these. Such loans are
made in accordance with loan agreements concluded between the Bank and
the borrowing State, or, in the case of loans to a private company, by a loan
agreement with the latter and a guarantee agreement with the member State
concerned.25 Most of the terms of the loan and guarantee agreements are laid
down in the Bank’s General Conditions which have been enacted by the Bank
and are amended from time to time. They are incorporated by reference in each
Loan Agreement.
It has not yet been established in court whether these loan agreements
are contracts of national law or treaties of public international law. One
would assume that a distinction must be made in this respect between loans
to governments and loans to private parties. However, with a few exceptions,
the General Conditions are the same for both in all respects relevant to this
question.26

Internal law of the Bank?

It is clear that the loan agreements are not subject to the internal law of the
Bank, in the sense that their terms may be superseded by that law, including its
constitution and regulations which it enacts.

24 The loan agreements of the Bank are discussed by H.T. Adam: “Les accords de prêt de
la Banque Internationale pour la Reconstruction et le Développement” in Revue générale
de droit international public, LV (1951), pp. 41–72, by Salmon in Annuaire français de
droit international, II (1956), pp. 635–642; and by Broches, “International Legal Aspect
of the Operations of the World Bank”, Recuil des Cours, 1959 III (the latter discusses
only agreements with States).
25 On the relationship between the latter agreements, see Broches, loc. cit., p. 352.
26 See especially Annex, denition no. 54. There is a difference to the effect that arbitral
awards may not be enforced against a borrowing or guaranteeing State by legal action in
the courts of a jurisdiction under whose law the State can claim immunity from suit, cf.
Section 8.01 (k). Arbitral awards may be enforced against the Bank without distinction as
to whether the borrower is a State or a private party.
 practice when there is no conflicts provision 497

As for the constitution, it is expressly provided in Section 8.01 of the

General Conditions for Loans that no party can claim that any provision of
the General Conditions or the Legal Agreements “is invalid or unenforceable
because of any provision of the Articles of Agreement of the Bank”. Even if
the substantive provisions of the constitution limit not only the right, but also
the legal capacity of the organization to contract,27 this could not be invoked
by a party who has accepted Section 8.01.28
As for the General Conditions for Loans, they provide in Section 1.02 that
“if any provision of any Legal Agreement is inconsistent with a provision
of these General Conditions, the provision of the Legal Agreement shall
govern”.
This means that new regulations on general conditions for loans have no
effect. Thus the General Conditions are applicable only by virtue of their
incorporation, by reference, in the Legal Agreements, and not by virtue of
any legislative power on the part of the Bank. They are parts of the bilateral
contract – not unilateral legislation. The position is in this respect different
from that of the Regulations of the European Development Fund29 – and
from contracts between IGOs and their ofcials, which are subjects to the
exclusive organic legislative and judicial power of the organization.30

National law?

Nor are the loan agreements subject to the national law of the borrower or
to any other particular system of national law, in the sense that this could
supersede any provision of the loan agreement. This also follows from Section
8.01 of the General Conditions for Loans, which provides that the rights and
obligations of the parties –

27 On this question, see Seyersted, Indian Journal of International Law, IV (1964), pp. 27–35
and Broches, loc. cit., pp. 362–369.
28 Ibid., p. 369. – Adam, loc. cit., States that “l’accord de prêt ests régi par un acte supérieur
(la constitution) qui pose des limites à la volonté des parties”. This statement (wrongly) limits
the effect of his (correct) preceding statement that the loan agreements are not governed
by the internal law of the Bank. According to Delaume, p. 82, Salmon, p. 230, appears
to take the opposite view, considering the agreements to be subject to the internal law of
the Bank, but not to its constitution. Apparently none of these three writers considers the
constitution as part of the internal law, at the same time as it is (particular) international
law.
29 See “Practical Guide to contract procedures nanced from the 9th European Development
Fund” (ec.europe.eu/europeaid/index_en.htm – visited August 2007).
30 See Broches, loc. cit., p. 344.
498 chapter fourteen

shall be valid and enforceable in accordance with their terms notwithstanding the
law of any State, or political subdivision thereof, to the contrary . . .
It is not stated whether the loan agreements, not even in respect of interpreta-
tion and lling of gaps, are governed by the national law of a particular country
of the internal law of the bank in accordance with regular rules of conict of
laws, or whether even this is excluded.31
The earlier loan agreements of the Bank contained a clause to the effect
that their provisions “shall be interpreted in accordance with the law of the
State of New York, United States, as at the time in effect”.32 This clause was
designed to cover only the interpretation of specic terms of the agreements.
It was not intended to make these agreements subject to the law of New
York.33 In particular it did not give the legislators of New York the power to
alter (retroactively) the terms of the agreements. But the provision was not
clear, and was occasionally understood differently by member governments.34
It was therefore omitted in later loan agreements, on the assumption (on the
part of the Bank) that American law would in any case be looked to as a
guide in the interpretation of the agreements, since these are concluded in
the United States, executed in the English language exclusively and in general
follow the American pattern of drafting.

Procedure of conclusion

With regard to the procedure of conclusion, it may be noted that the provisions
concerning signature and approval of the agreements35 are similar for loans to

31 See below. In the interpretation of this and of other clauses of the Loan Regulations, due
account should be taken of the fact that they, like all other texts of the Bank, have been
drafted in the United States legal style, and could not in all respects be interpreted in the
same manner as agreements drafted in international style. In particular, one cannot depart
from the assumption that each word and each prase is intended to add to the meaning
of the text.
32 For example Art. VII, 2, of the Loan Agreement with Finland of 17 October 1949, and
Art. X of the Loan Agreement with N.V. Stromvaart Matschappij “Nederland” of 15 July
1948, cf. Art. VII of the Guarantee Agreement with the Netherlands of the same date.
33 Information supplied in 1951 by Mr. Davidson Sommers, General Counsel of the Bank,
and subsequently conrmed by himself, Broches and Delaume in Law and Contemporary
Problems, 1956, at p. 479.
34 Mann, pp. 38–39, and apparently also Gerald Gold in The Indian Journal of International
Law, 1960, p. 637, insisted that the effect of the clause was to subject the loan agreements
fully to New York law, thus superseding the contrary statement in (the then) § 7.01 of the
Loan Regulations quoted in the text above. Contra: Delaume, pp. 84–85.
35 See Broches, loc. cit., pp. 385 ff. and Delaume, Chapter I.
 practice when there is no conflicts provision 499

States and to private parties and are formulated broadly enough to take into
account both approval of private law contracts and ratications of treaties.36
Practice in respect of States depends upon their constitution and legislative
provisions – the agreement may be approved as a nancial transaction or as
a treaty or as both. Loan agreements with private borrowers are signed in the
form employed for contracts.

Procedure for settlements of disputes

The establishment of an independent inspection panel to receive requests for

inspection presented to it by an affected party, being a community or a group of
people, in the territory of the borrower, marks an extraordinary development
that is intended to contribute to further transparency and accountability of
Multilateral Development Banks.37 With regard to the general procedure for the
settlement of disputes, it may be recalled that IGOs in principle enjoy immunity
from suit in national courts,38 but that Article VII 3 of the constitution of the
Bank makes an exception from this inherent immunity by allowing private par-
ties and non-member States to bring action against the Bank in any court of
competent jurisdiction. However, as far as the loan agreements are concerned,
the Loan Regulations neutralized the exception to the immunity from suit in
national courts by providing that disputes arising out of the agreement shall be
settled by an arbitral tribunal, the Umpire of which in case of disagreement is
to be appointed by the President of the International Court of Justice or the

36 The General Conditions for Loans, Sections 9.01 and 9.02 provide, inter alia, that the
Legal Agreements shall not become effective until evidence satisfactory to the Bank has
been furnished to the Bank that the conditions specied have been satised, inter alia that
the execution and delivery of each Legal Agreement on behalf of the Loan Party or the
Project Implementing Entity which is a party to such Legal Agreement have been duly
authorized or ratied by all necessary governmental and corporate action and there shall
be furnished to the Bank an opinion or opinions that the Legal Agreement to which it is
a party has been duly authorized or ratied by, and executed and delivered on behalf of,
such party and is legally binding upon such party in accordance with its terms.
37 Cf. IBRD Resolution 93–10 and IDA Resolution 93–6 on The World Bank Inspection
Panel, adopted by the Bank’s Board of Executive Directors on 22 September 1993,
text reproduced in The World Bank Operational Manual: http://wbln0018.worldbank.
org/Institutional/Manuals/OpManual.nsf/caa51baa1998135f8525705d001727f7/d0ba9
6858dc16bfc8525672c007d081b?OpenDocument – visited September 2007. See further
Suzuki and Nanwani, Responsibility of International Organizations: The Accountability
Mechanisms of Multilateral Development Banks, Michigan Journal of International Law,
Vol. 27, 2005, pp. 177–225.
38 See Seyersted, op. cit., p. 152.
500 chapter fourteen

Secretary-General of the United Nations.39 Only in case of failure to comply

with the arbitral award, may actions be brought in national courts to enforce
award, subject to any immunity enjoyed by a borrowing or guaranteeing
State.40

Registration with the United Nations

Since 1952, the Bank submits the agreements for registration with the United
Nations Secretariat as “treaties and other international agreements” under
Article 102 of the Charter.41 The registration comprises loan and guarantee
agreements entered into with members of the United Nations. Agreements
entered into with States which were not members of the United Nations were
submitted for ling and recording in accordance with Articles 10–11 of the
Regulations to Give Effect to Article 102. Loan agreements made with private
companies are not considered international agreements within the meaning of
the Charter and are thus not regarded as subject to ling and recording. But
they are treated as annexes to the relevant guarantee agreements, since they are
referred to in the latter. The same is true of the Loan Regulations.42 However,
the fact that a loan agreement with a private company is not an international
agreement within the meaning of the Charter does not necessarily determine
the question of whether such an agreement is subject to international or
national law – it may be governed by international law if this was the intention
of the parties.

Conclusions

In these circumstances it is no doubt correct to assume, as had been done,43 that

the agreements with member States are governed by public international law.

39 The then valid Loan Regulations No. 3, § 7.03, and No. 4, § 7.04. For details, see Delaume,
op. cit., pp. 179–197.
40 Ibid., subsection (k). See also Broches, loc. cit., pp. 371–373, and Delaume, pp. 206–
208.
41 Earlier, the Bank proposed to the UN a clause to the effect that it was not bound by Art.
102, see UN doc. E/C.1/SR 56, p. 13, as reported by Kasme, La capacité de l’Organisation
des Nations Unies de conclure des traités, p. 98.
42 The factual information has been supplied by Mr. Davidson Sommers in 1951 and has
been set forth in greater detail by Broches and Boskey in Nederlands tijdschrift voor
internatonaal recht, 1957, at pp. 190–191.
43 Thus Adam, loc. cit., pp. 58–59; Delaume in AJIL LVI (1962), p. 68; Broches, loc. cit.,
p. 345; Jenks, The proper law of International Organisations, London 1962, p. 180.
 practice when there is no conflicts provision 501

As for loan agreements with private companies, the matter is less clear. It is
obvious that there is a close relationship and great similarity between the two
types of agreements. Some writers therefore consider that the loan agreements
with private parties, too, are subject to public international law.44 Other writ-
ers, belonging to the legal staff of the Bank, deny this emphatically, without
making an alternative suggestion, except to State that the Bank feels that its
legal position should be essentially the same, irrespective of whether the loan
is given to a State for re-lending to a private company or directly to a private
company under a guarantee from the State.45 At any rate it is clear that this
purpose could not be achieved if one were to apply generally a system of
national law for purposes of interpretation and supplementation, despite the
fact that similar relations between a State and private parties, according to
one of these writers (Delaume), would be governed by national law.
The choice must be between public international law and general principles
of law. Both are theoretically admissible46 and both have practical advantages.
The practical results will in both cases be much the same. Thus, both admit
resort to the constitution of the Bank for interpretation and supplementation,
but not for supersession of the terms of the loan agreement. And interna-
tional law must draw its substantive rules from general principles of law.
The present writer generally prefers general principles of law – for reasons
which will be explained in a different context below. However, in this par-
ticular case these reasons are less strong – because of the similarity between
the loan agreements with States under the (former) Loan Regulations No. 3
and those with public bodies or private companies under Loan Regulations
No. 4, and because of the interrelationship of the latter with the Guarantee
Agreements with States.
The fact that the loan agreements, as a whole, are subject to international
law or general principles of law, does not prevent the application of rules of

See also Jaenicke in Zeitschrift für ausländishes öffentliches Recht und Völkerrecht, XIV
(1951–1952), p. 92.
44 Mann, p. 53, and Adam, loc. cit., pp. 57–59. By a number of references to the provisions
of loan agreements with private companies and the complementary guarantee agreements
with the States concerned, Adam demonstrates the close relationship between these arrange-
ments, as well as the public character of both. Still he States that the loan agreements are
not international agreements “purs et simples”, on the pattern of diplomatic ageements.
“D’une nature spéciale, ils sont également régis par des sources que ne connaissent pas
les accords diplomatiques”. Jenks, pp. 179 and 243, refers to “the autonomous law of the
Bank”, but is not talking especially of loans to private parties. In case this term should
envisage the internal law of the organization, it is recalled that Jenks, like most writers,
considers this as part of international law.
45 Broches, loc. cit., pp. 351–353, cf. Delaume in AJIL LVI (1962), p. 60.
46 Broches, loc. cit., p. 345, may take a different view.
502 chapter fourteen

national or internal law for interpretation and even for supplementation of

special provisions of the loan agreements. It has already been indicated that
certain terms used in the loan agreements must be interpreted in the light of
American law. It is also possible that certain provisions must be supplemented
by the internal law of the Bank (including its constitution and regulations other
than the General Conditions for Loans) or by the national law of a particular
country.47 Thus it may be appropriate to interpret and supplement provisions
concerning mortgage, not by general principles of the law of mortgage, but
by the particular law of mortgage of the country where the mortgage is made
(lex situs)48 or some other particular national law. In fact, the Bank normally
does this and even amends the General Conditions to permit enforcement of
the security in national courts.49 The constitution of the Bank may also be
applied for interpretation or supplementation of the terms of the loan agree-
ment – either as an earlier treaty between the parties – or as an authorizing
document of one party known to the other party.
However, at the same time it is clearly provided that no rule of any particu-
lar system of national law, or of the internal law of the Bank, can supersede
any provision of the loan agreement.

United Nations Bond Loan

Another type of loan (not relating to the International Bank for Reconstruction
and Development) which was obviously not governed by national law was the
200 million US dollars loan (United Nations Bonds) contracted by the United
Nations pursuant to General Assembly resolution 1739 (XVI) of 20 December
1961. This was governed, in the rst place, by the annex to that resolution and
by the Bond Regulations enacted by the Secretary-General and printed on the
reverse side of the bonds. According to paragraph 7 of the said annex the bonds
were offered, not only to States, but on certain conditions also to “non-prot

47 It was clearly pointed out by the Permanent Court of International Justice in the Serbian
Loans case that a contract is not necessarily governed by the same legal system in all its
aspects (PCIJ, Ser. A, No. 20, p. 41). For an express reference, see the General Conditions
for Loans Section 6.02.
48 Davidson Sommers, Broches and Delaume in Law and Contemporary Problems, 1956,
pp. 479–480, list two loans that contain no relevant provisions but could be interpreted
in this sense. In one of the cases, where the securities were oil royalties due to Iraq from
a British company, the security agreement, like the loan agreement, expressly precluded
supersession by municipal law and provided for interpretation by New York law, cf. above.
(UNTS, Vol. 155, pp. 302 and 336.)
49 See, e.g., UNTS, Vol. 301, pp. 42–45, and Broches, loc. cit., p. 373.
 practice when there is no conflicts provision 503

institutions or associations”. As pointed out by Salmon, such loan cannot be

subject to national law even vis-à-vis the latter parties.50
On the other hand, the European Investment Bank subjects its loans to
borrowers within the European Community to the borrowers’ national law,
whereas loans made to borrowers outside the Community are subjected to
the national law in the Community’s headquarters or to Swiss law. However,
unlike the World Bank, these are pure loans to private parties, not accompa-
nied by a guarantee given by the borrower’s government.51

14.5 An important arbitral award

An important arbitral award (of 1960) concerned the failure of a commercial

rm to deliver to an IGO certain commodities pursuant to a contract of sale
and to co-operate in the arbitration provided for in the contract. The rm
denied that it had accepted arbitration and referred to an action it had brought
in the regular courts of the country where the organization had its seat and
where the commodities were to be delivered. The Arbitrator, however, declared
himself competent, basing his award upon the fact that the contract did contain
an arbitration clause, and upon the assumption that contracts of IGOs are
governed by international law, and that that law may be supplemented by any
particular national law only if this accords with the real or assumed intention
of the parties.

Juridical personality and capacity

The Arbitrator declared rst that the juridical personality of the organization,
its capacity to contract and the validity and binding force of its contracts, as well
as the arbitration clause, was based upon international law it was therefore not
necessary to base these upon any system of national law, as it would have been
in case of a contract between private parties, who “until this day” are subject to
the authority of a State, i.e. a national system of law.

50 “L’emprunt de 200 millions de dollars de l’Organisation des Nations Unies”, Annuaire

français de droit international, VIII (1962), pp. 570–574. Salmon speaks instead of addi-
tional regulations enacted by the Secretary-General, of international law and of general
principles of law.
51 G. van Hecke: “Contracts between International Organizations and Private Law Persons”
in Encyclopedia of Private International Law (Max Planck Institute) Vol. 7, Amsterdam
1984, p. 53.
504 chapter fourteen

Supervisory competence of national courts

The Arbitrator then discussed whether it would be appropriate to apply national

laws which empower national courts to supervise the arbitral procedure or even
to substitute themselves for the arbitral tribunal. He stated that they could not
assume these supervisory functions, because this would assume “que la cause
relève d’un système national ”. In the present case, however, he was faced with “une
cause qui ne relève pas d’un système juridique national, mais du droit international public”,
and international law does not envisage such supervisory functions. Recourse
to national courts was therefore excluded. It is submitted that this result would
follow already from the jurisdictional immunity of the organization from suit
(to which the Arbitrator also referred), and that, as long as this had not been
waived, national courts would have to decline jurisdiction even if the substance
of the dispute were governed by national law.

Non-co-operation in arbitration

The Arbitrator then discussed the effects of the refusal of the rm to co-oper-
ate in the designation of an arbitrator and in the adoption of a compromis. He
stated that national laws accorded varying rôles in this respect to reparation and
to execution of the arbitration respectively. However, international law, upon
which the arbitration clause was based, contained no rules on the subject. He
must therefore rely upon the general principle of the binding effect of contracts
and of each contracting party’s right to insist upon their fulllment in natura. It is
submitted that this inapplicability of the procedural law of any particular State
may also follow from the incompetence of national courts and from general
principles of international procedural law, when the arbitral tribunal, as in this
case, was not linked to any particular country (the Arbitrator was appointed
by the President of the Court of Arbitration of the International Chamber of
Commerce). If so, the Arbitrator’s result would, in this respect, too, obtain even
if the substance were governed by national law.

Rate of interest on reparation

The only concrete issue of choice of substantive law, to which the arbitration
gave rise, was the question of the rate at which the losing party was to pay inter-
est on the sums he was obliged to pay to the organization for breach of contract.
On this point, the Arbitrator stated that, even if contracts concluded by IGOs
derive their validity and force from international law, the organizations could
 practice when there is no conflicts provision 505

refer voluntarily to a national law “pour préciser les règles applicables à leurs opéra-
tions”, as they could incorporate any legal provision by reference. In the absence
of any such reference, and of any relevant rule in international law, and since a
rule had to be found, the Arbitrator must nd out which law the parties would
have referred to if they had thought of the question, i.e. he must nd – as in
private international law on contracts – the country with which the contractual
operation had the closest links. And this he determined to be the law that was
at the same time the lex loci solutionis and the lex domicilii creditoris.

Evaluation

The practical results of this award by an ad hoc arbitral tribunal would probably
have been the same even if the contract had been considered to be governed
by national law, if it is assumed that the inapplicability of national procedural
law follows also from the immunity of the organization from suit in national
courts, as long as this immunity has not been waived, and from the principle
of conict of laws that court procedure is governed by the (organic) law of the
State or organization whose organs the courts are (lex fori ). However, in other
cases it would have made a practical difference whether the Arbitrator started
out from national law or international law. Thus the Legal Adviser of the orga-
nization concerned has correctly pointed out to the present writer that “the
Arbitrator could not apply any specic rules of that national system which was
substantially different from the general principles of law applicable in commer-
cial matters. For, if he did so, he would in effect be substituting a choice of that
particular system of law for what I would have regarded as an implied choice
of international law”.
Indeed, the present writer believes that the Arbitrator rightly assumed that
the contract was not governed by any particular national law. However, it
may not sufce to deduce this from the fact that the juridical personality of
IGOs is derived from (or required by) international law, because even if it
were exclusively based upon that law, it would not necessarily follow that the
substantive law applicable to the various legal relations of IGOs must be inter-
national, rather than national law. It has even inversely – but wrongly – been
maintained that an express treaty provision on juridical personality implied
that external relations with private parties must be governed by national law
even if they otherwise would not have been. The exemption of the contract
from national law may instead be derived from the presumed intention of the
parties when including in the contract a clause submitting disputes to arbitra-
tion, although the Arbitrator in the above case did not rely on that.
 CHAPTER FIFTEEN

RELATIONSHIP BETWEEN INTERNATIONAL LAW OF IGOS

AND GENERAL PRINCIPLES OF LAW

15.1 The problems

The discussion in the three preceding chapters demonstrates that there are
considerable divergences among writers and in practice on the extent to which
external relations of IGOs with private parties should be governed by national
law. But it demonstrates also the divergences – and even confusion – as to what
law should be applied if national law is to be by-passed. Most writers on exter-
nal relations jure gestionis of IGOs (and a few legal advisers of IGOs) speak of
international law as the only alternative to national law, although international
law may not mean the same thing to all of them. IGOs never refer to interna-
tional law in their agreements with private parties, but to general principles of
law. Courts speak of both. In addition there is the internal law of IGOs, which
writers consider part of international law. Are these all different names for the
same thing, since in substance they are all made up from general principles of
law? Or are they different systems? If so, must we choose only one of them, or
shall we apply one or the other depending upon the circumstances?
It is now time to clarify the discussion on this point. We will therefore
in this chapter consider rst each type of legal system separately, and then
attempt to establish the relationship between them. But rst we will examine
the reason for the modern trend away from national law.

15.2 Reasons for avoiding national law.1 Practice

The national law of a particular State has the great advantage of being a rela-
tively fully developed and precise legal system. And, as will be demonstrated

1 See also Jenks, op. cit. supra, chapter 14.4, note 41, pp. 152–153.
508 chapter fifteen

below, national law and regular conict of laws can technically be applied to
IGOs without serious difculty. Still, several important IGOs feel that even their
commercial transactions, at least those of an operational nature, should not be
governed by the national law of any particular State. This has been so in the
United Nations and its autonomous organs UNRWA and UNICEF, which are
greatly involved in operational business transactions. Similar considerations
apply a fortiori to operational relations of a non-commercial nature, for example
the research contracts granted by the International Atomic Energy Agency,
although some organizations here submit to national law.2
If such relations are governed by national law, there is in the rst place a
risk that provisions of the contract or of applicable regulations be superseded
by mandatory provisions of the applicable law.3 This can be taken care of
by a clause specically precluding supersession, while leaving the way open
for interpretation and supplementation under the applicable national law.
However, there are few clauses in this sense, and it is doubtful whether those
which exist really stop at this point, or whether they do not preclude the
application of a specic system of national law even for purposes of inter-
pretation, except on specic points.
In the second place there is the problem of the uniformity of contracts which
are concluded with, or offered out for tender to, a great number of parties
in different countries. Some of these are operational contracts, for example
research or loan contracts, which follow a standard pattern set forth in the
contract or in regulations incorporated in it by reference. Others are regular
business contracts related to the operations of the organization – for example
the purchase of supplies by UNICEF, UNRWA and other relief organizations,
which are usually made the subject of bids from different countries. In one
case as in the other it is important to retain uniformity of the contents, of
interpretation of terms and even of the form of the contracts and regula-
tions. For this reason many organizations wish to avoid the law of the other
contracting party, because this would make each contract subject to a different
law. That law may, moreover, in many cases be unfamiliar to the organiza-
tion, and may even require textual changes in the contract or cause other
administrative inconvenience. (Still, this solution is applied by the European
Community in many cases, alternatively that the contract shall be governed
by the substantive national law of Belgium where the main EC institutions
have their seat. Moreover, only a limited number of national legal systems

2 The research contracts of the European Community are expressly submitted to national
law.
3 Such supersession appears to have been accepted, e.g. by EURATOM.
 relationship between international law 509

are involved and these may be better known to the Secretariat).4 In the case
of multilateral agreements it would, of course, be impossible to apply the
law of each contracting party. On the other hand, it would seem arbitrary
and not consistent with the status of an IGO to refer always to the law of
the host State or of some other specic State, although this, too, is done by
several regional organizations.
These reasons were on one occasion convincingly put in writing by the
International Atomic Energy Agency5 in connection with its trilateral contract
for the supply of nuclear materials from one member State to the Agency and
from the Agency to another member State. In reply to a proposal by one of
the two contracting States to include a clause referring to its municipal law,
the Agency stated:
The Agency has in its various contracts and agreements, never subjected itself to
the national law of its contract partner. To do so now, especially in an international
agreement, would create an unfortunate precedent. It might be feared other States
would insist on similar clauses which would result in

(a) Complexities of interpretation in the case of many Member States whose law
might be difcult to ascertain.
(b) A multiplicity of interpretations of similarly worded agreements concluded
with different Member States.
(c) The possibility, in a multilateral agreement such as this one, of the other party
to the agreement insisting on a similar clause and thereby causing possibly irrec-
oncilable conict.
The contracting State thereupon dropped its proposal. Although the sup-
ply agreements of the Agency concern commercial matters and are called
“contracts”,6 they are not directly in point for our purposes, because they are
concluded with States and not with private parties. Indeed, the agreements are
submitted for registration with the United Nations and are by the Agency con-
sidered to be governed by international law. Still, the same considerations apply
largely also to operational contracts with private parties.
In the case of States, considerations of prestige may prevent the express
inclusion of a reference to the law of the other party. In the case of IGOs,
it is not their own prestige, but the equality of the member States that is
important. And also the consideration that there is no balance, in the sense
that only the law of the other party, not that of the organization, would enter

4 In addition, the development of community instruments in the area of contractual law,

not least on procurement, has created a jus commune in the relevant areas of national law
of the member States.
5 Before the present writer had taken up the post of its legal councel.
6 See the text of a(nother) supply agreement in e.g. UNTS, Vol. 402, p. 255.
510 chapter fifteen

into consideration, because the organization usually has no territory and no

private law.

15.3 General principles of law

Practice. Practicability

In these and other cases the organization may provide for the application of
general principles of law, or the general principles of the laws of its member
States, or the internal law of the organization which in fact means the same
thing if the organization has not enacted any relevant regulations. However,
IGOs do so expressly only in some cases.7 In other cases they merely provide
for the settlement of disputes by an ad hoc arbitral tribunal not linked to any par-
ticular country, on the assumption that this will apply general principles of law.8
Some organizations also take care that the nal step in concluding each contract
is taken at their own headquarters (afxing the organization’s signature after the
other party has done so) in order to guard against any claim of application of
the lex domicilii of the other party as the lex loci contractus.
The major reason why general principles of law, or the general principles
of the law of the member States, are not referred to more frequently, is
probably that they are not dened anywhere, and that express reference to
them in contracts might therefore provoke the other party to press for an
explanation of what they would involve with regard to any specic issue that
might arise. Still, arbitral tribunals have applied general principles of law or
international law even where there was no provision, or no clear provision,
in this sense.9 Their decisions demonstrate that general principles can be

7 Examples, not related to IGOs, were cited by Verdross in Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht, XVIII (1957/58) at pp. 643–645, cf. pp. 647–649.
8 F.A. Mann: Notes and comments on international law, commercial law and arbitration,
Oxford 1992.
9 See, e.g., the arbitral awards between Saudi Arabia and the Arabian American Oil Company
(1958) where the tribunal considered that it was unlikely that Saudi Arabia had intended
to subject itself to the Swiss legal system, and decided that the case should be treated as
an inter-State arbitration, and Lena Goldelds Co. (1930, as reported by Schwarzenberger:
International Law, I, 1st ed., London 1945, p. 215) and the Abu Dhabi arbitration cited
below. Practice is divergent as to whether arbitral tribunals may accept clauses calling
for application of non-legal standards (equity, fair and reasonable), 2 Lloyds List Law
Reports (1962) Vol. 2, pp. 357 ff. refusing it, at pp. 264–5, contra Eagle Star Insurance
Co. vs. Yural Insurance Co. Ltd., Lloyds List Reports 1978, Vol. 1, pp. 357 ff. accepting
such standards, at pp. 361–2. According to F.A. Mann: Notes, Comments and Cases of
 relationship between international law 511

deduced, or developed, although they have resorted to the national law of a

particular State on specic points where an arbitrary rule was indispensable
(and did not deviate from, but merely add to, general principles of law) or
where it was not.10 In fact, general principles of law may be applied even in
relations between two private parties.11
An outstanding IGO practitioner, Jenks, has very appropriately stated the
position as follows:12
. . . whatever the position may be in respect of a contract both of the parties to
which are subjects to a particular legal system, there appears to be no reason or
principle why a contract concluded by an international body corporate should
not be held to be governed by general principles of law, if, applying the subjective
test, such a result appears to give the fullest expression to the presumed intentions
of the parties, or, applying the objective test, the nature of the transaction is such
that the application of general principles is more appropriate than the application
of one rather than another of the legal systems with which the transaction might
be regarded as having some connection.

Relationship to mandatory national law

Many writers do not regard general principles of law as a legal system of its
own. However, at least one of these13 has recognized that, in addition to serv-
ing as a source of law in national and international law, the general principles
of law can govern an agreement in lieu of facultative national law. The present
writer goes further, inasmuch as he favours the view, submitted by many writ-
ers in the context of relations between States and private parties, that general
principles of law can also be an independent system of law, which replaces
even mandatory national law. This system, like internal law of IGOs, may still
be subject to national law if an action is brought in a national court, in the
following two respects: First, the competent court may in principle decide in
accordance with its own conict of laws whether the other legal system shall
be applied, and in particular whether the choice of law by the parties is valid.
Second, even if the other legal system is applicable, the competent court may

International Law, Common Law and Arbitration, Oxford 1992, arbitral tribunals in the
UK must apply a particular legal system.
10 The arbitration between the Sheik of Abu Dhabi and Petroleum Development (Trucial
Coast) Ltd., ICLQ , 1952, at p. 251.
11 See the examples discussed by Batiffol, Problèmes des contrats privés internationaux, Paris
1961–62, pp. 106 ff., and Jessup: Transnational Law, New Haven 1956.
12 Supra note 1, p. 153.
13 K. Zemanek: Das Vertragsrecht der internationalen Organisationen, Vienna 1957,
p. 55.
512 chapter fifteen

disregard any rule, or any provision of the contract, which is contrary to its own
ordre public. To this extent, even general principles of law as a legal system of
its own is subject to national law, if a dispute is brought in a national court and
the national court considers itself competent. However, this is true, not only of
general principles of law, but also of foreign national law and of IGO law – and
even of international law.

Sources. Different systems of general principles of law

General principles of law comprise, in principle, the general principles of all

legal systems: national law, internal law of IGOs and international law. The
actual choice depends upon the purpose. For the purposes of commercial
and other relationships of a private law nature, as primarily considered in the
present context, general principles of law means largely general principles of
national law, since IGO law and international law do not as yet have many
applicable rules.
However, general principles of law are not necessarily one constant sys-
tem. In many cases the reference may have been expressly or by implication
conned to the principles of law common to certain countries, e.g. those of
a particular region, those which are members of the IGO concerned,14 or
those which are connected with the particular relationship concerned15 (“the
shared principles of law of more than one State”).16 Even if there has been
no clear intention towards such a limitation, the competent court will in fact
draw largely upon its own law,17 other laws known to it, and upon the law of
those countries with which the parties and the relationship are connected.
This may lead to considerable divergences in the application of general
principles of law. Great practical advantages will accrue when the world,
through the practice of international business and international arbitration,
has developed a common, independent practice – which may form one
well-known body of substantive law to take the place of general principles
of law, although this law, too, will basically be a further development and
crystallization of general principles of law. Such law has been advocated by

14 E.g. the EC constitution Art. 288. In such cases one may in fact be concerned with the
internal law of the organization.
15 The agreement between Iran and the National Iranian Oil Company of 29 October
1954 provided for application of “the principles of law common to Iran and the civilized
nations in which the other parties to this Agreement are incorporated”.
16 This term is used by Schwebel in The Rights and Duties of Private Investors Abroad,
New York 1965, p. 202.
17 The Abu Dhabi arbitration is a curious example of this.
 relationship between international law 513

several writers and has been referred to as “droit privé commun international”.18
The term “transnational law” would also have been appropriate, but it is
used in a wider sense by its promoters. Another relevant, but more limited
term is lex mercatoria.19

15.4 International law20

International law is the law governing relations between sovereign communi-

ties. Its rôle has been discussed above in Part Three. It was pointed out that it
is now generally presumed that even relations jure gestionis between subjects of
international law are governed by international law if there is no indication to
the contrary. This is true, not only of relations between States, but also of rela-
tions between States and IGOs and between IGOs inter se. It is commonly, but
not unanimously, assumed that even relations between subjects of international
law and private parties are governed by international law if the parties have so
intended; this is also true of relations of IGOs with private parties.
However, the leading writers on external relations jure gestionis of IGOs go
further than that. Jenks observation is prudent:21
How far public international law can, in the absence of express agreement of
the parties, be inferred to be the law governing the contract from the nature of
the transaction and attendant circumstances is a matter for the future concerning
which it could be unwise to be dogmatic.
Mann implies an intention to refer to international law if the contract is not of
a nature that lends itself to the application of national law (he rejects general
principles of law). Batiffol submits a general presumption in favour of interna-
tional law, at least for important contracts relating to the functions of the orga-
nization. And the arbitral award discussed departs from a general presumption
for international law, based upon the origin of the juridical personality of IGOs
in that law.
The parties are at any rate free to refer to international law, within the
framework of the applicable law on conict of laws. As Jenks further points
out:

18 Batiffol, op. cit., pp. 106 ff.

19 See Mustill: “The New Lex Mercatoria: The First Twenty-Five Years” in Bos and Brownlie:
Liber Amicorum for Lord Wilberforce, Oxford 1987, pp. 149–83.
20 See Jenks, supra note 1, pp. 150–151.
21 Id. p. 151.
514 chapter fifteen

. . . there is no reason of policy for which any system of private international law
should preclude an international body corporate and a private person, who would
be entitled to submit that contract to some other system of municipal law, from
submitting it to public international law.
That is, if the parties have really intended to submit the contract to inter-
national law. But when they have merely intended to avoid national law, we
cannot take it for granted that international law is the law to apply. There are
also other possibilities, viz. general principles of law or the internal law of the
organization. The same is true if there is no evidence of any intention of the
parties, but the circumstances of the relationship indicate that national law is
not the appropriate law. In these cases, too, we must evaluate whether the best
alternative is international law, general principles of law or the internal law of
the organization. This we will do below, under chapters 15.7–8.

15.5 Internal law of IGOs.22 Relationship to international and

national law

The internal law of IGOs has been described above in Part Two. As was
explained, it is a distinct legal system for each organization, parallel in all impor-
tant respects to the national public law of States. This is in particular true in
respect of conict of laws: The internal law of an IGO is applied as a whole by
national and other courts when their own conicts law refers to the law of the
organization. The internal law is not incorporated in national law in the same
way as public international law, except for those higher parts which are also
international law, notably the constitution and other relevant treaties between
the members, plus binding substantive regulations enacted by those few organi-
zations which have been specically granted extended jurisdiction over States.
Except for certain organizations exercising extended jurisdiction, the internal
law of IGOs does not comprise private law. However, in most practical cases
when conict of laws refers to the internal law of IGOs, it refers to public
law, which they have. The question whether the internal law of IGOs can
be extended to cover even private law, if this is called for, will be discussed
in its context below, chapter 16.

22 Cf. I. Seidl-Hohenveldern: Du “contrat sans loi nationale” à la “Société sans loi nationale”,
in Studi in onore di Guiseppe Sperduti (1984), pp. 321–31.
 relationship between international law 515

15.6 General principles of law as a source of the other

legal systems

The distinction which has been made above between international law, the
internal law23 of the organization and general principles of law is not always
made. Writers tend to speak either of international law or of general principles
of law, or of both interchangeably; indeed, they disagree as to whether general
principles of law exist as a separate legal system or only as part of international
or national law.24 The internal law of IGOs is not usually considered as separate
legal systems, but as part of international law, although several writers recognize
the hierarchically lower internal law (regulations, but not the constitution) as
being distinct.
General principles of law play a large rôle as the primary source of both
international law and IGO law, since neither contains many positive rules
of its own on the subject-matters we are considering in the present context:
Commercial relations, torts and other relations of a private law nature.

International law

International law contains rules on inter-State treaties and inter-State respon-

sibility which are largely applicable by analogy to relations with and between
IGOs.25 They may also be adaptable to relations of States or IGOs with private
parties in those exceptional cases where the intention has been to confer upon
non-governmental parties international personality, for example the Inter-
national Committee of the Red Cross (ICRC).26 But in the normal cases of
relations with private parties it is hard to see how they could be applied. The
International Law Commission has categorically denied that the law of treaties
is applicable to such relations. It is submitted that, if relations between private
parties and (States or) IGOs are governed by international law, the substance of
the rules to be applied must, at the present stage, in fact be drawn from general
principles of law. And this largely means, as pointed out above, general prin-
ciples of national law, when the substance is of that nature. A different matter

23 Cf. Bin Cheng: General principles of law as applied by International Courts and tribunals,
London 1953.
24 See e.g. Ingrid Detter Delupis: Law making by international organizations, Stockholm
1965, pp. 184–186.
25 The question of the applicability of the law of treaties to IGOs was rst studied by the
Fourteenth Commission of the Institut de droit international, which was established in 1968
with the then Secretary-General of the Hague Academy, Professor Dupuy, as Rapporteur.
26 Cf. Seyersted, Indian Journal of International Law, IV (1964), pp. 50–51, note 169.
516 chapter fifteen

is that international law gradually may develop its own rules to govern such
relations, as demonstrated by Mann and others. However, this, too, will prob-
ably depart largely from general principles of national law, rather than from
inter-State law.

Internal IGO law

Nor do IGOs as yet have any positive rules in their internal law governing
the substance of relations with private parties, with a few possible exceptions
in the case of the European Community.27 Other organizations merely have
“regulations” which have the status of general conditions to be incorporated in
contracts with the express or tacit consent of the other contracting party. They
certainly express the policy of the organization, but it is doubtful whether they
could be applied as its law. IGO law, too, must therefore be drawn from general
principles of law, which in commercial and other relations with private parties
largely means general principles of national law.
It should be noted, however, that an IGO will naturally look for the com-
mon principles of the laws of its own member States. This is expressly stated
in the constitution of the European Community, while the constitution of
the International Institute for Unication of Private Law (naturally) is not so
conned. This may make a real difference in the case of small regional orga-
nizations – since the general principles common to the laws of for example
Anglo-Saxon States (whose legal practice and terminology today dominate
many United Nations organizations), former communist States or continental
Western European States may be rather different.

Conclusion

With this reservation, the conclusion is that – until such time as international
law and IGOs may have developed their own, different rules on private law rela-
tions – it will in substance make little difference whether we choose international
law, IGO law or general principles of law. The practical results will in most cases
be much the same, viz. general principles of law.

27 Another exception is, of course, indirect condominia and coimperia.

 relationship between international law 517

15.7 Field of application of internal IGO law

Still, IGO law distinguishes itself clearly from the other two. While interna-
tional law and general principles of law are more or less universal, neutral laws,
IGO law is the law of one of the parties, and a law whose contents can be deter-
mined by that party unilaterally, through legislation (even if this power has not
been taken much advantage of so far). In both these respects it is comparable
to national law. It is therefore natural that this law plays a rôle similar to national
law in conict of laws, i.e., that it is applied when the relationship is governed
by national law and traditional conict of laws (private international law) and
the latter refers to the law of the organization, and when otherwise the relation-
ship has its strongest connecting factors with the organization. This is different
from the application of international law or general principles of law in cases
where the relationship is not, or should not be, subject to national law and in
particular not to the arbitrary positive law of one of the parties. In the rst case
it is the constitution and the regulations of the organization and its particular
customary law that must be applied, as supplemented, like any other legal sys-
tem, by general principles of law. In the second case we presumably want to
avoid the positive and arbitrary law of either party, including the constitution
and regulations of the organization as well as the constitution and legislation of
the State concerned. And if we do not, then it may be precisely the internal law
of the organization that we want. But we must make a choice, also because the
internal law is a distinct system for each organization, while international law
and general principles of law in principle are only one system each. For these
reasons the application of IGO (and national law) must be clearly distinguished
from the application of international law and general principles of law.
The basic elds of application of the internal law of IGOs are:

(1) Internal relations as discussed in Part Two, i.e. relations between the orga-
nization and (member States as such or) persons subject to its jurisdiction
(or between these inter se), acting in that capacity.
(2) External relations that are governed in principle by national law, when the
applicable rules of conict of laws refer to the law of the organization,
on the basis of the regular organic, personal or territorial connecting
factors, as will be discussed below, in chapter 16.
(3) Other external relations if the parties have so intended or if the relation-
ship has its strongest connecting factors with the organization.

The latter may be true of many organizational or operational relations where

the organization acts as an IGO, rather than as a private party, even if the
other party is not part of the organization or subject to its jurisdiction in other
518 chapter fifteen

respects. A clear example is the consultative status of NGOs. The special service
agreements of the International Atomic Energy Agency and the other relations
with agents other than ofcials also lend themselves well to the application of
the internal law of the organization. And so do many operational relations
outside the strict eld of extended jurisdiction. Thus, when the organization
renders assistance of service in pursuance of its functions (e.g. scholarships), it
can frequently be presumed that the assistance shall be governed by the law
of the organization – including its constitution, its relevant regulations and
general principles of law – even if these have not been referred to in a contract
between the organization and the receiving party. But the regulations or the
contract may of course refer, expressly or by implication, to some national law,
as is frequently done within the European Community. In any event, the basic
consideration that must be borne in mind is whether it is reasonable to submit
the other contracting party to the unilateral legislative power of the organiza-
tion28 and to its constitution, which in international law is binding upon mem-
ber States and only if not superseded by a subsequent treaty. If it is not, then
we must turn to international law or general principles of law.

15.8 Choice between international law and general

principles of law

The distinction between international law and general principles of law and
the need for making it are not so obvious. In either case we will, at the present
stage, be applying largely general principles of national law if we are concerned
with commercial transactions, torts or other relations of a private law nature.
And when we exceptionally are faced with a relationship or an aspect29 where
principles of genuine international law are called for, then the formula “general
principles of law” clearly includes that, too.
Still, a hot discussion, not specially concerned with IGOs, has developed
between adherents of international law and adherents of general principles
of law. Thus Mann and Friedmann insist on international law and emphati-
cally refuse to recognize general principles of law as an independent system
of law, although at least Friedmann agrees that the substantive principles of
law governing commercial transactions which follow well-established patterns
of private law will have to be drawn from general principles of national law

28 Jenks goes far in this respect.

29 For example related to the organization’s immunity.
 relationship between international law 519

even if both parties are States.30 McNair 31 takes the opposite view, and Verdross
goes even a little further with his lex contractus doctrine, even if he qualies the
contract as quasi-völkerrechtlich. In the view of the present writer, this question
is important from the point of view of legal terminology and reasoning, while
the substantive issues involved appear insignicant.
A practical difference between the two formulæ arises only when both systems
contain (different) rules on the same subject.32 An important example of this
is the rules concerning how, in the case of commercial transactions, it will be
more natural to look to general principles of national law concerning contracts
than to rules of international law concerning treaties. The choice between any
other conicting rules of the two systems probably turns the same way. Indeed,
it may be asked whether any rules of genuine international law (inter-State
law) would be suitable in commercial an other “normal” relations between
intergovernmental organizations and private parties, unless they coincide with
general principles of law (or the internal law of the organization concerned)
or can ll lacunae in such principles.
Also from a theoretical point of view the general principles of law formula
appears preferable to that of international law. If we use the international law
formula, we would be turning the individuals into subjects of international law
and expanding the eld of international law beyond its distinctive function: To
govern relations between sovereign communities (although one important step
in this direction has already been made when we include relations between
sovereign communities acting jure gestionis), while in actual fact we are creating
a new legal system,33 the main substance of which is drawn from national
rather than international law. Even if semantically the term international law
would be broad enough to comprise this new system, too, it is better to call
it what it really is – general principles of law – until it may have developed
its own characteristics and can be given a more distinctive name.

30 In The Changing Structure of International Law, New York 1964, p. 171 (cf. pp. 172–175)
he States that the general principles of law referred to in Art. 38 of the Statute of the
International Court of Justice “will have to be discovered from a comparative study of
the major principles of commercial contract prevailing among the major legal systems of the
world”. Similarly, Mann, p. 37, gives an example of a rule of international law as to the
place of payment, and States that the Arbitral Tribunal derived it “from a comparative
approach”.
31 “The General Principles of Law Recognized by Civilized Nations”, BYIL, XXXIII
(1957).
32 Jessup: A Modern Law of Nations, New York 1949, pp. 140, 142 and 150 gives some
interesting examples on the border-line. Mann’s example p. 37 is not on the border-line.
33 Contra: Jenks, p. 257: “Any such substitution of inverted logic for mellow experience
cannot but convert the life of the law into its death.” However, in other contexts he, too,
speaks of general principles of law, cf. above, under 15.3. He does not explain whether
he sees a substantive difference between international law and general principles of law.
520 chapter fifteen

The resistance to the latter approach may partly be based upon the tradi-
tional concept, formulated by the Permanent Court of International Justice
in the case of the Serbian Loans, that there are only two legal systems:
International law and the national law of particular countries. However, it
has been demonstrated above that this does not hold true. We must, at least,
recognize the internal law of other sovereign communities – such as IGOs
and the Holy See – as distinct legal systems. Surely it must then be possible
to admit yet another system or other systems, such as general principles of
national law, or general principles of the law of the member States, or of the
countries with which the relationship is connected, if these, too, can contribute
to avoiding confusion in the conict of laws. As explained under 15.3 above,
it is part of this proposition that the general principles of law will replace
not only facultative, but also mandatory national law, within the limits of the
conict of laws and the ordre public of the lex fori.
Another reason which may have prompted writers to favour international
law may be that they are thinking in part of the internal law of the orga-
nization, and, not distinguishing that law from international law, they have
to buy the latter in order to get the former. The failure to distinguish these
two may in fact also be reminiscence from the same statement in the Serbian
Loans Case.
International law does not admit the Anglo-Saxon system of binding prec-
edent. Still, the judgments of the Permanent and the International Court of
International Justice play a basic rôle in international law. But we would be
pressing our natural respect for that Court too far if, on the basis of a dictum
in its 80–years old judgment, we were to force into the concept of international
law two legal systems which have grown up in a post-war world and which
are entirely different. This could but serve to dissolve a hitherto clear and
useful concept. IGO law and general principles of law both belong rather
on the level of national law and have in fact more in common with that law
than with international law. But they do not belong to national law either.
They are independent systems of law, and the sooner this is recognized, the
sooner we can achieve clarity in modern conicts of laws.
Some terminological confusion may also have arisen out of the fact that
Article 38 (1) (c) of the Statute of the International Court of Justice expressly
incorporates general principles of (national) law into international law as a
(primary) source of that law – after treaties and State practice, but before
court practice and the doctrine, which are merely subsidiary sources. However,
this does not mean that general principles of law from there on exist only as
part of international law. Indeed, it is submitted that even if a contract uses
the precise words of, or refers expressly to, Article 38 (1) (c) of the Statute,
 relationship between international law 521

rather than to “general principles of law”, there is no presumption that it

was intended to include also Article 38 (1) (a), (b) and (d).34
And if it does not, then the reference is in fact to general principles of law,
rather than to international law.
The adherents of international law stress emphatically as a basic substan-
tive reason for limiting the choice to international law and national law that
the choice must be between established systems of law with their jus cogens,
i.e., international law or national law.35 It is true – as has been pointed out by
Hambro36 – speaking in the context of relations between private parties – that
there is a practical need for protecting the weaker party against standard
conditions imposed by the stronger party, and that this is an important part
of mandatory national legislation on the law of contracts. This need may
exist even when we leave the eld of relations between two private parties.
However, if we admit the applicability of international law, we have already
given up the protection contained in any specic national legislation. But we
still have that which is common to the various systems of national law. It is
submitted that this is binding, whether we speak of international law or of
general principles of law. Indeed, it is submitted that, in the elds with which
we are concerned in the present context, there is hardly any jus cogens in inter-
national law that is not drawn from – or does not coincide with – general
principles of law. Nor does international law provide for any enforcement of
this jus cogens. The example quoted by Mann – contracts on the execution
of Germany’s crimes against humanity – is an example of both. Indeed, it
is submitted that a national court, an IGO court or an arbitral tribunal can
apply this jus cogens as easily under the name of general principles of law as
under that of international law. A different matter is that the court may prefer
to apply some of it as part of its own ordre public.
For these reasons it is submitted that relations between IGOs (or States)
and private parties that are not governed by (national) law or by the internal

34 Art. 46 of the agreement of 29 October 1954 between Iran and the National Iranian Oil
Company reads:
“In view of the diverse nationalities of the parties to this Agreement it shall be governed
by and interpreted and applied in accordance with the principles of law common to Iran
and the civilized nations in which the other parties to this Agreement are incorporated,
and in absence of such common principles then by and in accordance with principles of
law recognized by civilized nations in general including such of those principles as may
have been applied by international tribunals.”
Verdross, loc. cit., p. 643, quotes this as a reference or a subsidiary reference to inter-
national law. The latter appears justied on the basis of the last 13 words, cf. also above,
15.8 in initio.
35 Mann, p. 50. See also Friedmann, loc. cit.
36 Loc. cit. supra, chapter 12, note 18.
522 chapter fifteen

law of the organization, are normally governed by general principles of law

rather than international law. Even if the parties have provided for the appli-
cation of international law, it is submitted that what they really have in mind
is usually general principles of law, if the subject-matter is of a private law
nature.37 IGOs therefore rightly do not provide for international law, but for
general principles of law in their agreements with private parties and even
in many agreements with States.38

15.9 Conclusions. Relations jure gestionis with other

sovereign communities

The present writer believes that the modern tendency in practice and the doc-
trine away from specic national law in international relations is a sound one,
at least in relations involving IGOs. This is the important, substantive question.
However, the tendency in doctrine to achieve this by expanding the eld of
international law to take in relations which have little or nothing in common,
not even by analogy, with traditional international law as an inter-State law, is
neither sound, nor helpful. In order to avoid confusion, it is necessary to distin-
guish between international law, internal law of IGOs and general principles
of law, and reserve the former for relations between sovereign communities.
This does not prevent the two former from being supplemented by general
principles of law.
Even commercial relations between IGOs and States or other IGOs may
in many respects fall more appropriately in the category of general principles
of law. It is recalled in this connection that the main reason for the presump-
tion that even relations jure gestionis between subjects of international law are
governed by international law, is the negative desire to avoid national law,
because “it cannot be taken for granted or lightly assumed that sovereign
States, being equal in law, are prepared to subject themselves to the will of
another sovereign State”.39 However, this is a different and more doubtful
matter, because, when both parties are sovereign communities, the interna-
tional law of treaties, responsibility, etc., can be applied, even if this is not
always done.40 Relations jure gestionis between sovereign communities are in

37 Cf. the statement by Adam, quoted above, chapter 14, note 23: and Detter, op. cit.,
p. 184. Mann, however, in 1967 categorically refused to “leave the rm ground of a specic
legal system and to have resort to some ‘droit anational’ or some ‘loi d’autonomie’ ”.
38 Cf. Wortley, ICLQ 1963, Vol. 12, pp. 330–336 (Ariana site).
39 Schwarzenberger: A Manual of International Law, Milton 1976, p. 123.
40 Delaume: Legal aspects of international lending and economic development nancing,
New York 1967, chapter I.
 relationship between international law 523

fact in an intermediary position. If they, too, are considered to be governed

by general principles of law rather than by international law, one might retain
the traditional denition of international law as the law governing relations
between sovereign States as such,41 only replacing the word “States” by “com-
munities” in order to include IGOs, the Holy See, insurgents, etc., to which
traditional international law is basically applicable by analogy. If relations jure
gestionis between subjects of international law are considered to be governed
by international law, the denition still remains valid, subject to the deletion
of the words “as such”.
The conclusion thus is that, in those cases where the relationship between
an IGO and a private party is not governed by national law, it is normally
governed either by the internal law of the organization or by general principles
of law. The choice between these two systems must be made with a view to
the propriety of the constitution of the organization and its unilateral legisla-
tive power being in a position to overrule general principles of law, but as a
point of departure it may be said that the internal law of the organization
is more suitable where the organization acts as an IGO than in cases where
it acts as a private party.

41 The Permanent Court of International Justice said in the Serbian Loans case: “between
States in their capacity as subject of international law”, supra, chapter 14, note 47. This
is the same thing stated in a circular manner.
 CHAPTER SIXTEEN

CHOICE BETWEEN NATIONAL LAWS: REFERENCES TO THE LAW

OF THE ORGANIZATION IN TRADITIONAL CONFLICT OF LAWS

16.1 General

It is a modern tendency to subject external relations jure gestionis of IGOs to

legal systems other than national law, and various views have been advanced
in the doctrine on the extent to which this should be done. In chapter 14 we
discussed some concrete examples of this, and in chapter 15 we discussed the
choice between the various alternatives to national law. It was concluded that
in some cases the internal law of the organization was the proper law, while in
most cases general principles of law must be preferred. International law in the
proper sense cannot be applied in other than exceptional cases or on specic
points.
Whichever of the theoretical views is taken as a point of departure there
will still remain a number of cases that are governed by national law,1 or
partly by national law and partly by the internal law of the organization.2
We shall in the present chapter discuss the choice between various systems
of national law in such cases, in an attempt to establish whether this raises
any insoluble difculties.
First it should be emphasized that the submission of external relations jure
gestionis of IGOs to national law does not, of course, detract from the interna-
tional personality of IGOs any more than it detracts from that of States. As
was stated by the International Court of Justice in its Advisory Opinion on
Reparation for Injuries Suffered in the Service of the United Nations, the fact that the
United Nations is an international person does not imply “that all its rights
and duties must be upon the international plane, any more than all the rights

1 For example under the conventions on civil liability for nuclear damage reported above,
chapter 13.2, which refer partly to lex fori and partly to lex situs. See also the many
examples given by Batiffol, Problèmes des contrats privés internationaux, Paris 1961–62,
pp. 104–105.
2 Two examples of the latter are discussed below, under 16.2.
526 chapter sixteen

and duties of a State must be upon that plane”.3 Thus internal relations may
be on the plane of internal IGO law, and external relations jure gestionis may
be on the plane of national law (i.e. they may be governed by national law
or the internal law of the organization).
In order to answer the question of which national law is applicable we must –
in the absence of special conventional or legislative provisions or customary
law for IGOs – look to traditional conict of laws ( private, administrative
or procedural international law) as developed between private parties and
between States and private parties, and apply it to IGOs with the necessary
modications. In some cases the question of applicable law is answered in the
transaction concerned, expressly or by implication. Otherwise, each court will
depart from its own conict of laws (lex fori ) and adapt it to IGOs. Internal
courts of IGOs, international courts and arbitral tribunals which have no
positive conict of laws of their own, will draw their conict of laws from
general principles of conict of laws.4
The law governing relations of States with private parties may be the law
of the State concerned (as it will always be in the case of relations jure imperii )
or the home State of the individual concerned, or the State with which the
relationship has its most substantial connection on the basis of territorial or
organic connecting factors.
The position is the same, in principle, with regard to relations of IGOs
with private parties. On the adaptations which have to be made in the vari-
ous elds of conict of laws because of the special characteristics of IGOs,
reference is made to Jenks’5 thorough eld by eld study.
It shall not be attempted here to discuss the conict of laws in substance, as
Jenks has done, but only to try and evolve a few principles as to how this law,
which was developed with a view to relations between two private parties –
or between a private party and a State acting as a private party – can be
applied to relations between a private party and an intergovernmental orga-
nization. Indeed, we will concentrate upon the major general problem which
arises out of the fact that, while all IGOs have an internal administrative
law, they have no internal private law. This and other deciencies of IGOs
apparently combined with a failure to recognize their general international

3 ICJ Reports 1949 p. 179. Cf. the statement by the Permanent Court of International
Justice in the Serbian Loans case, quoted above, chapter 15.
4 Special reference is made to the following general treaties on conict of laws: Ernst Rabel:
The Conict of Laws, 4 vols. (Ann Arbour 1958–64), which is a global, comparative study,
and Adolf F. Schnitzer: Handbuch des Internationalen Privatrechts, 2, Basel 1957–58,
which is specially concerned with the law of a typical host country, Switzerland, while
Schnitzer himself was at the time an international ofcial.
5 Jenks, The proper law of International Organisations, London 1962.
 choice between national laws 527

personality – have led some writers to treat such organizations as being in

certain respects comparable to non-governmental organizations, rather than
to States. However, IGOs are not under the jurisdiction of any particular
State, as even international NGOs and other private parties are. Indeed, in
those respects where conict of laws distinguishes between (foreign) States
and (foreign) individuals, it is the former that afford the appropriate analogy,
as will be demonstrated below.
In the following we shall examine the problem of what to do if the normally
applicable principles of conict of laws refer to the law of the organization.
This question was discussed, on an abstract basis, by a number of early writ-
ers, with particular regard to the League of Nations.6 Presumably taking for
granted that the League did not itself possess any applicable law, they sought
to apply the law of some State, in some cases even without making a distinc-
tion between external and internal relations (relationships of employment).
The majority proposed to apply the national law of the host State, – thereby
assimilating IGOs to NGOs. A minority felt that, rather than look for a sub-
stitute for the law of the organization, one should apply some other principle
of conict of laws which does not refer to the law of the organization, such
as the lex loci contractus. One writer, discussing the International Commission
of the Cape Spartel Lighthouse, rejected the application of any system of
national law (except with regard to real property, which was to be governed by
the lex rei sitae) and proposed instead to apply “the general principles of law,
and in the event that these principles might not be applicable, the principles
of right and equity”.7

6 Schücking und Wehberg: Die Satzung des Völkerbundes, I, 3rd ed., Berlin 1931, pp.
160–161; Göppert: Der Völkerbund, Berlin 1938, p. 29; Liermann in Zeitschrift für
Völkerrecht (Breslau) XV (1930) at pp. 41–43; an opinion by G. Marchegiano, Juridi-
cal Counsellor of the International Zone of Tangier, on “The Juristic Character of the
International Commission of Cape Spartel Lighthouse”, translated in AJIL, XXV (1931)
pp. 339–347; and Bayer; “Das Privatrecht der Montanunion”, Zeitschrit für ausländisches
und internationales Privatrecht, XVII (1952) pp. 331 et seq., especially p. 340. See also
Borsi, “Il rapporto d’impiego nella Società delle Nazioni” in Rivista di diritto internazio-
nale, XV (1923) at pp. 283–285; van Haastert: Het international landbouw institut 1947
p. 150; Frankenstein: Internationales Privatrecht, II, Berlin 1926, pp. 507–508; and Gon-
siorowski: Société des Nations et problème de la paix, I, Paris 1927, pp. 287–288. The
two latter writers discussed primarily contracts of employment, apparently without making
any distinction between these internal relations and external relations. Kelsen: The Law
of the United Nations, 1950, pp. 313–314 and 318, also applied the national law of the
host State even to the internal relationships of employment.
7 G. Marchegiano in AJIL, XXV (1931) pp. 345–347. A similar attitude was taken already
by Fedozzi: Gli enti collettivi nel Diritto Internazionale Privato, Padova 1897, p. 120, as
quoted by Frankenstein, op. cit., p. 507.
528 chapter sixteen

None of these writers referred to any cases in the matter. IGOs have been
involved in several cases of litigation, but the question of a substitute for the
law of the organization does not appear to have arisen in any of them. This
is particularly so in the cases to which the International Refugee Organization
and UNICEF were parties. This may be an indication that the question of a
substitute law does not really arise or does not give rise to difculties.
We shall now successively examine the application to IGOs of each of the
main categories of connecting factors8 that are used in national systems of
conict of laws – in order to establish: (1) in what elds of law there may
be a reference to the law of the organization and (2) what law then is to be
applied. There are three main categories of connecting factors:

(a) Organic connecting factors. These refer to the law of the sovereign com-
munity to which an organ belongs, but they are not yet recognized by
the majority of theoretical writers as a distinct and important type of
connecting factor.
(b) Personal connecting factors refer to the law of the State with which a per-
son has a more permanent afliation: lex patriae or lex domicilii for natural
persons, and the law of the State of incorporation or seat for juridical
persons.
(c) Territorial connecting factors refer to the law of the territory in which an
object (in wide sense) or a person is located or in which an act is per-
formed; for example lex situs ( lex rei sitæ), lex loci contractus, lex loci actus, lex
loci solutionis, lex loci delicti.
(d) The pure lex domicilii may be treated as a personal or a territorial con-
necting factor and will therefore be discussed separately at the end.

16.2 Organic connecting factors (in public law)

Organic connecting factor in conict of national law

Organic connecting factors may be a new concept and may therefore require
rst an explanation of their important role in traditional conict of laws, quite
apart from the special problems of IGOs.

8 This term was dened in Cheshire: Private International Law, 5th ed., 1957, p. 45 as
“some outstanding fact which establishes a natural connection between the factual situa-
tion before the court and a particular system of law”.
 choice between national laws 529

Organic connecting factors relate to the exclusive legislative (and other)

jurisdiction which each State, IGO or other sovereign community exercises
over its organs and which has been explained in depth above. In conict of
laws an organic connecting factor refers to the public law of the sovereign
community to which the organ belongs.
The best known example is the lex fori, which governs procedural law,
criminal law and conict of laws. This is usually considered a territorial con-
necting factor. Indeed, in most cases the organic and territorial connections
coincide, because most courts are national and they usually sit in the territory
of their own State. However, a court will apply its own procedural, criminal
and conicts law even if it sits abroad, for example military courts and con-
sular courts. Similarly, international courts apply their own law, irrespective of
where they sit. And so do IGO courts, even if they do not sit in a headquar-
ters district where the organization has territorial legislative power. Arbitral
tribunals – or the organization or the parties establishing them – also choose
their own procedural and conicts law, the territorial law being one of the
alternatives to choose from; however, this is a more complicated matter and
is, moreover, relevant to organic connecting factors only when the tribunal is
an IGO or an organ of one or more States or IGOs, in which case it may
be an international, internal or national court.
Another example of organic connecting factors is the form (procedure)
of the wedding ceremony and the effect of its non-observance. These are
determined by the law of the governmental authority performing the cer-
emony. Even the substantive conditions for marriage and divorce are in some
countries determined by the law, in other countries it is determined by the
personal law of the parties or by both. This law, too, is by writers usually
referred to as the territorial law. But in fact it is the law of the State to which
the administrative or judicial organ belongs, because it is applied even if
the organ and the parties sit in the territory of another State, for example
if the marriage is performed abroad for sailors or soldiers by a diplomatic
or consular ofcer or chaplain of their home State. Article 2 of the Nordic
private international law convention on marriage, adoption and guardianship
of 6 February 1931 refers to “the law of the State to which the performing
authority belongs.”9

9 As amended by Art. 2 of the Convention of 3 November 1969. On the other hand, the
Montevideo Treaty on Private International Law of 19 March 1940 (ratied by Argentina,
Paraguay and Uruguay) provides that the law of the place where the marriage is performed
governs the capacity of the parties to marry and the form, existence and validity of the
act of marriage, cf. also Appendix 2395 to the Uruguayan Codigo Civil in Art. 13 that
“la capacidad de las personas para contraer matrimonio, la forma del acto y la existencia
y validez del mismo, se rigen por la ley del lugar en donde se celebra” (italics added).
530 chapter sixteen

Indeed, it is a general principle of conict of laws that the form and pro-
cedure of acts of public organs – judicial or administrative – depend upon
the law of the community to which the organ belongs, even if this is not
the territorial law. Thus, if a court receives assistance from foreign courts
or administrative authorities, these will in principle apply their own law to
hearings, to the service of summons and to other acts.10 The latter has been
described as an exception from the lex fori.11 However, it is an application of
the organic connecting factor, which, within its area, takes precedence over
territorial and personal connecting factors. Indeed, lex fori is an organic con-
necting factor. On the other hand, if the summons is served or hearings are
held abroad by the consular authorities or courts of the State of the requesting
court, they will apply the law of their home State. While locus regit actum is a
valid principle for the form of most private acts, public acts are governed by
the law of the State to which the acting organ belongs.
A different matter is that the competence of the administrative or judicial
organ with regard to the parties concerned may follow from personal or ter-
ritorial connecting factors ( jurisdiction), for example from the nationality of
the parties to be married. But even the competence of the organs concerned
may depend upon organic connecting factors ( jurisdiction), for example in
matters of public employment with States or IGOs12 and, partly, with regard
to the validity of public acts (Act of State doctrine).13
Organic connecting factors occur in the rst place in the public law branches
of conict of laws. They dominate procedural and criminal international law.
They play an important part also in administrative international law,14 even
when this extends into the eld of private international law, as the above
example of wedding demonstrates.

10 Convention on Civil Procedure of 1 March 1954, Art. 14.

11 Karlgren, Kortfattad lärobok i internationell privat- och processrätt, 3rd ed., Lund
1971.
12 This is true even of criminal jurisdiction, see Seyersted: United Nations Forces, Leyden
1966, p. 371. On organic jurisdiction as a power distinct from territorial and personal
jurisdiction, see above.
13 Cf. above and the constitution of the European Community, Art 234, and EURATOM
Art. 150.
14 Not to be confused with “international administrative law”, a concept that some writers
used for the internal law of IGOs, or “global administrative law”, which is used to describe
a global administrative space distinct from public international law and domestic admin-
istrative law, and which includes the common internal (public) law of intergovernmental
organizations.
 choice between national laws 531

Organic connecting factors imply that if the applicable conicts rule refers
to an organ, the relationship is governed by the law of the community to which
that organ belongs. Thus, if we are concerned with an organ of a State, the
national law of that State is applicable. If it is an organ of the Holy See,
Canon law is applicable. And if the reference is to an organ of an IGO, the
applicable law is the internal law of that organization.
National courts do not frequently apply foreign public law. Such law
may be based on political, scal or other special considerations to which it
may not be natural for the State of the competent court to subject its or its
nationals’ interests, even if they do not affect its ordre public.15 However, even
if this is true of the public law of foreign States, it may not apply against the
administrative law of IGOs, at least not if the State concerned is a member
of the organization. It has been suggested that national courts should apply
instead their own administrative law. However, this would not be appropriate,
at least in respect of organic law. If national courts do not feel in a position
to enforce the administrative law of another State, they – rightly – decline
competence. This is true for example of tax claims. It is rather on preliminary
issues (questions préjudicielles) that the question of applying foreign and IGO
administrative law arises. Thus the question of the civil liability of a State
for acts of its diplomatic or consular ofcials abroad, or of an IGO for its
ofcials can hardly be determined according to the administrative law of the
host State governing its liability for its ofcials. Constitutional, procedural and
criminal law are denitely applied abroad only on preliminary issues.
The distinction between organic and territorial connecting factors may be
of a practical importance with regard to States only when their organs excep-
tionally act abroad. IGOs, however, normally have no territory and therefore
always act “abroad”. In their case, therefore, the distinction between organic
and personal connecting factors, on the one hand, and territorial connect-
ing factors, on the other hand, are of basic importance for the solution of
conicts problems.
Organic connecting factors will always refer to public law. So will personal
connecting factors in the case of sovereign communities, as will be demon-
strated in (3) below. It is submitted that whenever conict rules refer to the
public law of the organization it would be impossible to apply the law of a
State concerning its organs or concerning those of non-governmental orga-
nizations under its jurisdiction. Nor is it necessary in this manner to seek a
substitute, because all IGOs have their own law governing their organs, both

15 See however the critical remarks by P.B. Carter, Rejection of Foreign Law: Some Private
International Law Inhibitions, in BYIL LV 1984, pp. 111–31.
532 chapter sixteen

in respect of their organization, functions and procedure. This law has been
referred to above as the internal law of the organization. More specically this
part of the internal law may be referred to as “organic” law. It corresponds to
the public law of States.16 Since the organs of an IGO – per denition – are
not subject to the authority of any particular State it would be impermissible
for any court to apply the law of a State to the organs of an IGO as such.
This would not merely deviate from obtaining principles of conict of laws.
It would be a violation of public international law, which protects the internal
autonomy of all sovereign communities – comprising in the rst place their
exclusive jurisdiction over their own organs as such. No court is known to
have attempted to do this. Indeed, we are here not merely concerned with a
principle to ll any lacunae in the conict of laws of States, but with a public
international law limitation upon that law.
We shall now look separately at each eld of public law to see whether
IGOs have a law of their own and whether this could and should be applied
even by national courts, when their conict of laws refers to the law of the
organization.

Constitutional and administrative law

All IGOs have a constitutional and an administrative law of their own. And
even if this should prove to be insufcient in certain respects, it could not pos-
sibly be supplemented by the constitutional and administrative law of any par-
ticular State, except in those respects where the organization might specically
have decided to apply the administrative law of the host State, as IGOs some-
times do in respect of social security for their employees. Otherwise any gaps
in the constitutional and administrative law of IGOs must be lled by internal
customary law and by general principles of law, including general principles
of the constitutional and administrative law of IGOs and of States. This was
clearly stated already in 1931 by the Italian Court of Cassation in Proli v. Inter-
national Institute of Agriculture:
The particular system of the Institute must be self-sufcient, both in these substan-
tive rules and with regard to rules governing the enforcement [realizzazione coattiva]
of these relations of its internal life, such as those concerning employment. The
gaps in its substantive law are lled by means common to all autonomous legal

16 Cf. A. Reinisch, International Organizations Before National Courts, Cambridge 2000,

p. 377, who suggests that a choice-of-law rule with jurisdictional effect would exclude certain
internal matters of intergovernmental organizations from the jurisdiction of national courts
by analogy with the constitutional and administrative law rules of States.
 choice between national laws 533

systems, that is, by analogy and by assimilation, through a process of deduction,

from the general or universal principles of law.17
The case concerned internal relations. But the principle must apply likewise
when the internal law of IGOs is applied in external relations. Indeed, ques-
tions concerning employment with an IGO must be decided exclusively on the
basis of its internal law, not only if they arise in the court of the organization,
but also if they arise as preliminary questions in disputes brought in national
courts by or against persons who are no longer ofcials of the organization or
their relatives. In such cases, too, the organic connecting factors are decisive for
the conict of laws question. An example would be actions brought by IGOs
against former ofcials for reimbursement of over-payment of salary. The
available reports of such cases18 do not indicate which law was applied. But it
must be assumed that any question as to whether the payment was in fact an
over-payment, was determined exclusively on the basis of the internal law of
the organization, as supplemented, if necessary, by general principles of admin-
istrative international law. This does not mean, of course, that the internal law
of the organization is necessarily applicable to the other aspects of the dispute
as well, with regard to whether the ex-ofcial is under an obligation to reimburse
the over-payment and whether the amount is to be repaid in full (condiction inde-
biti and the lex domicilii debitoris),19 if the terms of appointment (including notably
the staff regulations of the organization) contain no relevant provisions.
Another example of application of the organization’s administrative law by
national courts is a judgment of the Court of Torino of 11 January 1967 in
a tax claim of the (former) European Coal and Steel Community against the
bankrupt estate of an Italian steel company. The court applied Community
law to determine the existence of the Community’s claim for payment of the
taxes it had levied upon the steel company in accordance with the ECSC
constitution, and Italian law to determine whether the claim enjoyed the same

17 Translated from Rivista di diritto internazionale, XXIII (1931), p. 386. For concrete
examples of application of general principles of administrative and private law to ll
gaps in the internal law of IGOs, see the jurisprudence of their administrative tribunals,
for example Schumann v, League of Nations and Perasse v. League of Nations in Annual
Digest of Public International Law Cases, 1933/34, Case No. 203. This judgment rejected
some principles of private law and accepted others.
18 Annual Report of the Secretary-General, 1952–1953, p. 149; Pasicrisie Belge, 1953, No.
10, p. 65, cf. the nal judgment of the Court of Appeal of Brussels of 30 June 1955 in
the same matter.
19 On rules of conict of laws in this respect, see Michaeli: Internationales Privatrecht,
Stockholm 1948, pp. 339–40, and Rabel: The Conict of Laws, a comparative study
(Ann Arbour 1958–64). The fact that the substance of a debt and certain modalities of
its payment may be governed by different legal systems was emphasized by the Permanent
Court of International Justice in the Serbian Loans case ( PCIJ, Ser. A, No. 20, p. 41).
534 chapter sixteen

priority in the steel company’s bankruptcy as taxes imposed by the Italian

Government.20 This is, however, a more special case, because it concerned a
supranational organization. In the rst place, the organization had not merely
been granted the extended power to tax nationals of member States, but its
law had in addition been accepted as part of the national law of the member
States. But the principle of applicable law would have been the same, even if
the latter had not been the case. The competence of the organization to levy
taxes does not emanate from organic jurisdiction, but from the territorial or
personal jurisdiction of the member States, part of which they had ceded to
the organization. But once that power has been established, the applicable
law is that of the organization.

Procedural law

It has already been pointed out that questions of procedural law (and conict
of laws) are governed by the lex fori, i.e., the law of the community to which the
court belongs. When IGOs establish courts of their own, they also enact the
most essential rules of procedure to be followed by such courts. This they do
also for non-judicial organs. These rules, again, could not be supplemented by
the procedural law of any State, but only by the internal customary law of the
organization and by general principles of procedural law.

Criminal law

The same is true of questions of criminal law. These, too, are governed by the
law of the prosecuting State – i.e. lex fori. In those cases where IGOs exercise
criminal jurisdiction,21 they have themselves laid down the criminal law to be
applied. The criminal tribunals of IGOs could not apply the criminal code of
any particular State, unless this has been specially provided in the constitution
or so decided by the organization, something which is practical with respect to
so-called “mixed” or “hybrid” criminal tribunals.22

20 CECA c. faillite des “Acciaierie e Ferriere di Bogaro”, S.p.A., French translation in excerpts
in Journal des Tribunaux, Brussels, No. 4621 of 15 June 1968, pp. 403–5.
21 Cf. International Criminal Tribunals, above chapter 1.4. See also international river com-
missions and other organizations exercising territorial jurisdiction, Seyersted, op. cit. pp.
365–372, and in the Saar, see Transactions of the Grotius Society, 1944 p. 161.
22 Cf. above chapter 1.4.
 choice between national laws 535

National courts, on the other hand, will apply their own procedural and
criminal law, not that of IGOs. But it may in certain cases be necessary to
draw upon IGO law in order to determine preliminary questions, for example
whether an act was illegal. Thus, national courts which (on the basis of ter-
ritorial jurisdiction) prosecute persons for unauthorized use of the name,
emblem or ag of the united Nations or for violation of the United Nations
Flag Code, must apply United Nations law, including the Flag Code and
regulations enacted by the Secretary-General, in order to determine what
constitutes unauthorized use or violation.23
Thus, the fact that conict rules may refer to the public law of IGOs on
the basis of organic connecting factors, does not give rise to special difculties,
since the organization in these cases have an applicable law of their own,
which can and must be applied.

16.3 Personal connecting factors in the law of persons

In the eld of private law the position is different. Those organizations which do
not exercise any substantial territorial jurisdiction – and very few organizations
do – usually have no private law of their own.
Private international law is dominated by territorial connecting factors and
personal connecting factors. We will rst discuss the latter.

Determination of the personal law: lex patriae and lex domicilii

The personal law ( lex personalis) is determined by nationality, domicile or similar

tests, depending upon the country where the question arises and upon whether
a natural or a juridical person is involved. As for natural persons, some coun-
tries, including Sweden and most countries on the European continent and
many Latin American countries, dene the personal law as the law of the State

23 See GA resolutions 92 (I) and 167 (II); the UN Flag Code of 11 November 1952 and
the Regulation implementing it of 1 January 1967; OR GA, II, Sixth Committee, pp.
310–312. See also Art. 6 ter (1) (b) of the Paris Convention for the Protection of industrial
Property, which imposes upon the contracting States an obligation to prohibit the use of
emblems, etc., of IGOs without authorization from the latter. See also Art. 44 of the
First and Second Geneva Convention of 12 August 1949 and Third Additional Protocol
relating to the Adoption of an Additional Distinctive Emblem of 8 December 2005, on
restrictions in the use of protected emblems of the Geneva Conventions.
536 chapter sixteen

of which the natural person concerned is a national (lex patriae).24 Other coun-
tries, including the Anglo-Saxon countries, several Latin American countries,
Denmark, Norway and Switzerland, dene the personal law of a natural person
as the law of the State in which he is domiciled (lex domicilii). The personal law
of juridical persons is dened in Anglo-Saxon countries and Russia as the law
of the State of incorporation, and in most other European and Latin-American
countries as the law of the State where the organization has its legal or factual
seat25 (siege social, Geschäftssitz). It is curious that those European and Latin-
American countries which avoid the test of domicile with regard to natural
persons, apply it with regard to juridical persons, while, on the other hand, the
Anglo-Saxon countries, which apply the test of domicile with regard to natural
persons, do not apply it with regard to juridical persons, but apply instead the
test of incorporation. This may be seen as an indication that even incorporation
is not considered as equivalent to nationality. In the Montevideo Treaty coun-
tries26 and Scandinavia there is consistency in this respect. Sweden applies the
test of nationality to natural persons and that of incorporation to such juridical
persons as are required to be incorporated. Denmark and Norway apply the test
of domicile in both respects. In the typical host country, Switzerland, too, the
lex domicilii is the point of departure for the determination of the personal law
of both natural and juridical persons, but in respect of both several concessions
have been made to the lex patriæ.
When early writers for IGOs proposed the substitution of the national
law of some State, they appear to have had in mind the cases now under
discussion, where the applicable conict rules refer to the personal law of
the organization,27 although only some of them said so,28 while others talked

24 With regard to the capacity to become bound by bills of exchange and cheques, this
principle has been adopted by all countries which have ratied the relevant conict of
laws conventions of 7 June 1930 and 19 March 1931, respectively, cf. Art. 2 of both
conventions.
25 Likewise, under EC law, a European public limited-liability company (Societas Europaea or
SE) is governed by the provisions which would apply to a public limited-liability company
with a registered ofce in the Member State in which the SE is registered, cf. Council
Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company
(SE), Art. 5, (Ofcial Journal L 294, 10. November 2001, pp. 1–21).
26 Cf. Arts. 1 and 4.
27 And possibly the lex domicilii in Vermögensrecht, see below, under 5 (d). The problem
does not arise in respect of territorial connecting factors (below, under 16.4) and organic
connecting factors were (and still are?) not recognized at all in legal doctrine.
28 Schücking und Wehberg; Die Satzung des Völkerbundes 3rd ed., Berlin 1931, pp. 160–161;
Göppert, Der Völkerbund, Stuttgart 1938, p. 29; Bayer “Das Privatrecht der Montanunion”
in Zeitschrift für ausländisches und internationales Privatrecht, XVII (1952) p. 340.
 choice between national laws 537

also or only of relations of employment29 in terms as if these were external

relations governed by the national law of States. The majority of these writ-
ers proposed to apply the law of the host State.30 A minority preferred to
apply instead a territorial connection, notably the lex loci contractus. And a few
writers proposed to apply general principles of law.31
From a formal point of view it might be felt appropriate to make a distinc-
tion as to whether the question arises in a country which denes the personal
law as the lex domicilii or in one which denes it as the lex patria. One might
maintain that the organization has a domicile in the host country, and that
therefore the organization’s lex domicilii would be the municipal law of that
country. The problem would then arise only in those countries which dene
the personal law as the lex patriæ, since the organization has no nationality.
However, such a distinction would imply an undue exaggeration of the dif-
ference between those countries which apply the nationality principle and those
which apply the principle of domicile. It is therefore with good reason that
one of the writers cited above proposes to make this distinction by applying
the law of the host country if the question arises in a country which applies
the principle of domicile, but not if it arises in a country which applies the
nationality principle.32 Those who propose not to apply the law of the host
country at all, appear to envisage the latter as well as the former case. They

29 Gonsiorowski: Société des Nations et problème de la paix, Paris 1927, pp. 287–288;
Frankenstein; Internationales Privatrecht, I, Berlin 1926, pp. 507–508; Kelsen: The Law
of the United Nations, pp. 313–314.
30 Schücking and Wehberg, loc. cit.; Göppert, loc. cit.; Gonsiorowski, loc. cit.; Bayer,
loc. cit. Frankenstein, loc. cit., took the same view to the extent that the internal law of
the organization is silent. van Haaster; Het international landbouw instituut (1.1.A) en de
Organisatie voor voedsel en landbouw (FAO), ‘s-Hertogenbosch 1947, p. 150, speaking of
the International Institute of Agriculture and the FAO, States broadly that the courts [of
the host State] must apply their territorial law and that they shall consider the organiza-
tions as national legal persons.
31 Marchegiano in AJIL, XXV (1931), p. 346 and Fedozzi: Gli enti collettivi nel diritto inter-
nazionale privato, Padova 1897, p. 120 (the latter as cited by Frankenstein, op. cit., p. 507).
Seidl-Hohenfeldern/Loibl: Das Recht der Internationalen Organisationen einschliesslich
der Supranationalen Gemeinshaften, 7th ed., Cologne 2000, and in Revue égyptienne
de droit international, XXI (1965) pp. 66–67, speaking in general of references to the
national law of a legal person, proposes the common general principles of the member
States, and may thus in fact be thinking of EC Art. 288 or of (part of ) the internal law
of the organization, cf. below, under 16.5. This may also be true of another writer, Jenks,
when he States that the corporate life of an IGO is governed by a personal law “consisting
of international rules”. However, he adds that the organization may adopt a particular
system of national law, or part thereof, as its personal law (op. cit., pp. 10 and 200, cf. pp.
219–220). Jessup: Transnational Law, New Haven 1956, p. 99, States that “the authority
or capacity of the agent of the United Nations who signed the contract . . . might well be
resolved by United Nations law”.
32 Schücking und Wehberg, op. cit., pp. 160.161, make the distinction, but arrive at the same
conclusion for both types of countries.
538 chapter sixteen

motivate their proposal for both cases by practical reasons of necessity, while
admitting the absence of a logical theoretical basis for this solution. Thus,
Göppert emphasizes that, although the League of Nations had its domicile
in Switzerland, it was exterritorial in that country, and the establishment of
its headquarters in the country therefore did not imply a submission to the
laws reigning there, as it would have implied in the case of other juridical
persons. This is an overstatement, because “exterritoriality” does not neces-
sarily extend to territorial substantive law, but only to territorial jurisdiction
and enforcement.33 Nevertheless, it is true that IGOs do not, by establishing
their headquarters in one particular State, submit to its personal law. In these
circumstances it would not be appropriate to arrive at the application to IGOs
of the personal law of the host State by assimilating it, via the domicile of the
organization, to territorial law. Whether dened by nationality or by domicile,
it is and remains a personal law.
When, despite the obvious theoretical objections to submitting an IGO to
the personal law of a State, pre-war writers proposed to apply the law of the
host State or of another particular State, most of them did so because they
considered it to be the only practical solution. They appear to have taken it
for granted that IGOs do not possess any personal law of their own.34
However, if the relations in which the question of the personal law may
arise with regard to IGOs are examined in detail, it becomes apparent that
both of these assumptions are false. IGOs do have a personal law of their
own, and the application of the national law of any particular State would
lead to results which would not be helpful, not even from a practical point
of view.

Legal elds where the personal law of the organization is called for

The personal connecting factors, as dened above, are important only in the
elds of the law of natural and juridical persons, law of succession (probate)
and matrimonial law. But here they are dominant factors, particularly in the two
former elds. Thus a person’s legal capacity and his capacity to act are deter-
mined according to his personal law ( lex personalis), which follows him wherever
he happens to be. And the substantive law of succession is in many countries

33 Cf. ICLQ XIV (1965) pp. 518–521.

34 Only Frankenstein, loc. cit., recognized the applicability, in principle, of the constitution
of the organization, but considered it insufcient.
 choice between national laws 539

the personal law of the deceased,35 while some countries apply the lex situs to
real estate or even to the entire property.36
Most of these elds concern natural persons only and are not relevant to
IGOs. Family law is not relevant at all. And in the law of succession IGOs only
act as recipients of legacies, etc., and the law of succession is not governed by
the recipient’s personal law, but by that of the deceased. Indeed, our problem
arises only in the law of persons, and only with regard to such aspects of that
law as are applicable to juridical persons. These aspects include such questions
as juridical personality and capacities, competent organs, conditions for valid
decisions, etc. But these problems are governed by international law37 and by
the constitutional and administrative law of the organization, as laid down in
its constitution, in regulations and other decisions adopted by its organs and
in its internal customary law, and as supplemented by treaties on privileges
and immunities and by general principles of public international law and of
national constitutional and administrative law.38
It is (this international law and) this internal law of the organization which
must be applied as the personal law of the organization. It is true that the
written law of many organizations (and certainly general international law)
does not contain specic answers to many important legal problems which
may arise. But this happens in other legal systems, too. And it does not fol-
low that such problems would be more adequately solved by resorting to
the national law of the host country than by applying internal customary
law and general principles of international and public national law. On the
contrary, the examples below demonstrate that the application of such rules
of the national law of any particular State as go beyond what would follow
from general principles of law would lead to unsatisfactory or even impos-
sible results. National law may to some extent be applied to international
business companies, like the joint undertakings of the European Nuclear
Energy Agency and other European IGOs,39 but not with regard to proper
intergovernmental organizations serving public purposes.
In the following the question of the applicable personal law will be exam-
ined specically with regard to major aspects of the law of persons which

35 E.g. Nordic convention on succession of 19 November 1934, Art. 1.

36 E.g. the Montevideo Treaty on Private International Law of 19 March 1940, Art. 45, and
Art. 2400 of the Código civil of Uruguay.
37 See below.
38 In this sense probably also Jenks, op. cit., pp. 6–7 and 225, although he States that “there
are still no general rules or principles relating to international bodies corporate to which
we can automatically turn when in search of their personal law”.
39 See EURATOM constitution, Art. 49; Seidl-Hohenveldern in Revue égyptienne de droit
international, XXI (1965) p. 65; and Jenks, op. cit., p. 200.
540 chapter sixteen

are of importance in the external relations of IGOs. These are in the rst
place the juridical personality and capacities of IGOs and the question of
which organs are competent to act on behalf of the organization and what
constitutes a valid and binding decision of its organs.40

Juridical personality and capacity to act

The juridical personality of non-governmental juridical persons depends upon

the law of the State where they were constituted or incorporated41 or where
they have their seat,42 although other States may limit their capacities in their
territory. Foreign States and public bodies are recognized as juridical persons
if they have such personality under their own public law. This is expressly
provided in the Montevideo Treaty on Private International Law of 19 March
1940, Article 3:
Los Estados y las demás personas jurídicas de derecho público extranjeras, podrán ejercer su capa-
cidad en el territorio de otro Estado, de conformidad con las leyes de este ultimo.43
Certain IGOs of the older type secured juridical personality by way of incor-
poration in the host State. But most IGOs have refrained from resorting to any
such emergency solution – and for good reasons. Court and State practice dem-
onstrate that at least those IGOs which have not themselves submitted to the
national law of the host country by seeking incorporation in the same manner
as a non-governmental organization, are dealt with and accorded juridical per-
sonality, in the host State and in other countries, as sovereign entities by analogy
with foreign States, and not according to the rules governing non-governmental
organizations or other persons subject to the personal jurisdiction of their home
State.44 There is no indication that courts have asked whether the personality is

40 For a more complete list and a precise delimitation between personal and territorial law
in respect of private companies, see the Draft Convention on Conicts of Law Relating
to Companies in International Law Association, Report of the Forty-Eighth Conference,
New York 1958, pp. 645–646.
41 Convention on the Recognition of the Juridical Personality of Foreign Corporations,
Associations and Foundations of 1 June 1956, Art. 1.
42 Treaty on Private International Law of 19 March 1940, Art. 4: “La existencia y la capa-
cidad de las personas jurídicas de carácter privado, se rigen por las leyes del país de su
domicilio”.
43 Hague Convention, Art. 1, see also Montevideo Treaty, Art. 4, third para. See also Art
17 (1) of the Italian Civil Code cited in the text below, repealed by Art. 73 of Law No.
218 of May 31, 1995.
44 See for example the pre-war Belgian and American judgments reported in Clunet, LIII
(1926), pp. 1045–1046 and in AJIL, XX (1926), p. 260; the pre-war statement of the Swiss
Government reported in Martin Hill; Immunities and Privileges of International Ofcials,
 choice between national laws 541

recognized in the host State or that they have attempted to apply to such IGOs
any restriction which the national law of their respective host countries may
impose upon the juridical personality of domestic non-governmental organi-
zations or upon the State itself. These and all other aspects of the national law
of the host State are entirely irrelevant for the determination of the juridical
personality of IGOs.
The juridical personality of IGOs must be determined by analogy, not to
that of foreign non-governmental organizations, but to that of foreign States.
It depends upon whether the lex fori (or the lex causae – i.e., the law which is
applied to the substance of the claim) recognizes the juridical personality of
(foreign States and) intergovernmental organizations. This all States appear
to do, on the basis of applicable treaties and general international law. In
so far as either of these legal systems refers to the personal law in order to
determine the capacities of the particular organization concerned, recourse
must be had, not to the law of the host State of the organization (neither
that applicable to non-governmental organizations, nor that applicable to the
State itself ), but to applicable treaties and general international law and to
the internal law of the organization.
This is true, for example, of the question whether an institution is a juridi-
cal person of its own or a branch of another juridical person. This question,
which also depends in principle upon the personal law, has arisen in courts in
respect of States as well as of IGOs. When a Spanish public body claimed
immunity from suit in United Kingdom courts on the ground that it was a
department of the Spanish State, the British Court of Appeal stated expressly
that this latter question depends on the law of the State concerned.45 The
question of such distinct juridical personality in respect of an IGO must be
determined in accordance with its constitutional law, as supplemented by public
international law. It is in this manner that it must be decided whether the
European Nuclear Energy Agency or its joint enterprises, the Inter-American
Commission on Human Rights or the Military Headquarters of NATO are
separate legal entities under international or national law. The tribunal of

the Experience of the League of Nations, Washington D.C. 1947, pp. 126 and 134; and
the postwar judgment by the Tribunal civil de Bruxelles of 27 March 1952 reported in
Pasicrisie Belge, 1953, No. 10, p. 65.
45 Baccus S.R.L. v. Servicio Nacional del Trigo (1956) 3 W.L.R., as reported in AJIL, LI
(1957), p. 428. Still, in the particular case the court held that the defendant was a depart-
ment of the State of Spain, notwithstanding the fact that it was a corporate body with a
separate legal personality (they had the power to make contracts on their own behalf for
the buying and selling of wheat and could sue and be sued in their own name) and that
hence it was entitled to immunity. There was thus a difference between legal personality
in national law and international personality, but this was a matter of Spanish law.
542 chapter sixteen

Firenze decided on 2 January 1954 that the Headquarters of Allied Forces

Southern Europe at Napoli had no separate juridical personality, basing itself
on an agreement between the member States of NATO which had not been
ratied by Italy and which therefore had not become part of Italian law.
When the tribunal nevertheless (correctly) applied the agreement, it did so
on the analogous basis of the conicts provision in the former Article 17 (1) of
the Italian Civil Code, which provides that the status and the legal capacity
of persons are regulated by the law of the State to which they belong. The
provision the court correctly applied refers to the law of NATO, not to that of
the host State of the organization or its headquarters.46 In this case the dispute
was really internal, but the same would apply in an external dispute.47

The question of which organs are to act for the organization and what constitutes a
valid decision by them

Nor could the question of which organs are to act on behalf of the organization
and what constitutes a valid and binding decision of such organs be determined
on the basis of the arbitrary rules of any particular system of national law.
The guiding principle in this matter is that it is up to any juridical person
to designate itself which organs shall be competent to act on its behalf and
to determine what shall constitute a valid decision by such organs.
States do this in a sovereign manner by enacting the necessary rules as
part of their administrative law, to the extent to which there are no relevant
provisions in their constitutions. But such rules are closely linked up with
the organizational structure of the State concerned. They are therefore not
adaptable to IGOs, whose organizational structure is different, except in
so far as the rules merely express general principles of law, common to all
juridical persons.
In the case of non-governmental organizations, too, questions as to which
are their competent organs and what is the proper procedure for adoption of
decisions, are determined in the rst place by the organizations themselves,
by provisions in their constitutions or by decisions of their organs (by-laws,
rules of procedure). But their freedom in this respect is limited by any

46 International Law Reports, 1955, p. 761. The Court of Appeal on 14 March/23 August
1955 conrmed the judgment, the main substance of which was that the headquarters
were “exempt from Italian jurisdiction insofar as concerns the employment relationship
involved in the case”.
47 Another internal decision on the question of the distinct juridical personality of the
Pensions Fund vis-à-vis the League of Nations is reported in Annual Digest of Public
International Law Cases, 1933/34, p. 462 (3).
 choice between national laws 543

mandatory rules of the particular system of national law which represents

their personal law.48 Such rules have been enacted in the national law of
most States with regard to specic types of companies and associations. But
these rules, too, are closely linked up with the organizational structure and
with the purposes and functions of the specic types of non-governmental
organizations concerned. They cannot be applied to other types of juridical
persons, and least of all to IGOs, whose organizational set-up, purposes and
functions are very different.
Clearly, no legal transaction performed by an IGO could be declared
invalid merely because it had not been performed or approved by the organ
whose action or consent would have been required under national law relat-
ing to governmental agencies or private business corporations, respectively, or
because the decision had not been made according to the rules prescribed in
such a statute. This was clearly conrmed by the Superior Court of Montreal
on 2 December 1952 in UN v. Canada Asiatic Lines Ltd. In this case the defen-
dant sought to reject the power of attorney produced by the lawyer for the
United Nations, which had been signed by the Secretary-General. However,
the Court held the power of attorney to be valid and distinguished the cases
which had been cited to it relating to companies on the grounds that “the
affairs of the United Nations are administered by the Secretariat and not by
a Board of Directors as is done in the case of a company incorporated under
Letters Patent”. The Secretary-General was chief administrative ofcer of the
United Nations and the institution of the action fell within the scope of the
authority of the Secretariat.49
It is therefore with good reason that writers dealing specically with the
question of which organs are competent to act on behalf of an IGO, do
not apply the national law of the host State.50 They refer instead to inter-
national law or treaties or propose that the question be solved by an express

48 The fact that organic representation is governed by the personal law is conrmed by Tomasi
in Revue critique de droit international privé, 1958, p. 652. He points out that all kinds
of “representation légale, qu’il s’agisse de représenter en tant qu’organe une personne
juridique ou des pouvoir d’un tuteur, est réglée par la loi du siege ou, selon les pays, par
la nationalité ou le domicile”, while “representation conventionelle” is complicated by the
autonomy of the parties.
49 UN doc. A/CN.4/L.118/Add. 1, p. 33.
50 Thus, Seidl-Hohenveldern stated in Archiv des Völkerrechts, IV (1953), pp. 34–35,
somewhat timidly: “Die innerstaatlichen Regeln des Vereins- oder Gesellschaftsrechts
dürften nicht immer eine klare Lösung dieser Frage bringen können, da die durch einen
internationalen Vertrag geschaffene Organisation in ihrer Konstruktion von den dort
vorgesehenen Typen abweichen kann”.
544 chapter sixteen

treaty provision.51 Article 34 (a) of the Cartagena Agreement provides that

the Andean Community Secretary General acts as the General Secretariat’s
legal representative, and Article 1, paragraph 2, of the General Agreement
on the Privileges and Immunities of the Council of Europe provides that in
transactions of a national nature “the Secretary General shall act on behalf
of the Council of Europe”.52 However, as these examples demonstrate, a
constitutional provision will either express merely what follows from the
organizational set-up of the organization and from general principles of law,
or it will be too rigid and give rise to legal conclusions which have not been
intended. In either case, one must resort to other provisions of the internal
law of the organization and to general principles of law to give the provisions
meaning or to modify them, respectively.
Thus the rule that legal transactions are performed by the executive and
not by the deliberative organs is a general principle of law. It concerns both
governmental and non-governmental organizations, and applies even if noth-
ing has been stated to that effect. Contracts are usually concluded on behalf
of IGOs by their secretariats without specic authorization.53
It is also a general principle of law that distinct organs perform legal
transactions within their own eld of competence, if they have a secretariat
and a budget of their own or if they have otherwise been given a sufciently
independent position in this respect – a question which must be determined
on the basis of the organizational set-up and the other internal law of the
organization. Nor are specic constitutional provisions necessary for formal
reasons. It is not a condition for binding effect in national courts that the
rules concerning the competent organs and their decisions shall have been
embodied in the constitution of the organization or in another treaty, and
thus be given the force of public international law. A mere regulation or other
decision by the competent organs of the organization, although of a lower
hierarchical order than the constitution (which usually is contained in an
international convention), will and must similarly be applied by the national
courts of the country where the question arises, whenever the rules of conict

51 In the latter sense Jaenicke in Zeitschrift für ausländisches öffentliches Recht und Völ-
kerrecht, XIV (1951–1952) p. 88 and Seidl-Hohenveldern, loc. cit. preceding note. See
more generally Schitzer: Handbuch des internationalen Privatrechts unter besonderer
Berücksichtigung der schweizerischen Gesetzgebung und Rechtssprechung, 4th ed., Basel
1957–58, pp. 331–2. and Max Egger: Die Vorrechte und Befreiungen zugunsten inter-
nationaler Organisationen und ihrer Funktionäre, Vienna 1954, p. 27.
52 Art. 282 of the EC Constitution and art. 185 of Euratom provide that the Commission
represents the Community.
53 As for the League of Nations, see a letter from its Secretariat to Liermann, quoted by the
latter in Zeitschrift für Völkerrecht, XV (1930), p. 30.
 choice between national laws 545

of laws of that country refer to the personal law of the organization. And
most IGOs have enacted relevant regulations in the exercise of their inher-
ent organic jurisdiction. Accordingly, for the purposes of external relations,
there is no need for constitutional provisions on the subject. Indeed, they
would be undesirable, because they would be too rigid. The organizational
set-up of an IGO is subject to steady evolution – by regulations of high or
low hierarchical order, which, for example, establishes new organs – while a
constitutional provision could be altered only by constitutional amendment.
Moreover, even a mere restatement of general principles of law in the con-
stitution of the organization may give rise to unfortunate interpretations, for
example that the power could not be delegated to new subsidiary organs, or
that the plenary or other superior organs could not interfere.54
Even the question of which organ has the power to enact the necessary
rules designating the competent organs and how these shall make their deci-
sions, need not be resolved in the constitution. The answer follows from the
organizational set-up of the organization and from general principles of law.
In the absence of any constitutional provision, the plenary organ will have
the power to designate the organ which shall perform legal transactions on
behalf of the organization. If it does not do so, and does not so empower
another organ, the Secretariat will usually have the power to act on behalf
of the organization,55 or to designate other organs to do this. Indeed, express
regulations are frequently enacted to designate which ofcers within the
Secretariat have the authority to enter into nancial commitments. Thus
the Financial Regulations of the United Nations provide in Article 10 that
the Secretary-General shall “designate the ofcers who may receive monies,
incur obligations and make payments on behalf of the organization”.
Similarly, all IGOs have rules, partly in their constitutions and partly in
their rules of procedure, on what constitutes a valid decision by the Orga-
nization, and in particular on what organs are competent to make decisions
and on the procedure that these must follow. These clearly must be applied
if any question of validity arises. This has been made abundantly clear in
those cases where the constitutions even provide that questions of the validity
of the acts of the organization can only be adjudicated by the organizations’

54 Kelsen: The Law of the United Nations, has drawn such conclusions in other elds of
the internal law of the UN, for example that the Trusteeship Council cannot establish
subsidiary organs (p. 653, note, cf. p. 144; cf. the criticism above, and that the General
Assembly cannot enact regulations for the registration of treaties by the Secretariat under
Art. 102 of the Charter (p. 699, cf. p. 703).
55 In this sense also Jaenicke, loc. cit.
546 chapter sixteen

own courts, even if they merely arise as preliminary issues (questions préjudicielles)
before national courts.56
Indeed, the question of what organs are competent to act on behalf of
the organization and of what constitutes a valid decision by the organization
must be decided on the basis of the internal, organic law of the organization,
which comprises its constitution, as well as its regulations, its internal customary
law and general principles of international and public law. IGOs, like other
juridical persons, are entitled to designate themselves those organs which are
competent to act on their behalf and to determine what shall constitute a
valid decision by such organs. And IGOs – unlike NGOs – are not restricted
in the exercise of this power by the national law of the host State, or by that
of any other State. They have exclusive jurisdiction over their organs. And in
exercising this jurisdiction they create genuine, sovereign law, which is subject
only to public international law, and which must be applied whenever rules
of conict of laws refer to their personal law. Thus, in this respect, too, the
lex personalis of an IGO is its own internal law, in the same manner as the lex
personalis of a State is its own national law.
However, not all questions depend upon the personal law. Thus many
organizations have enacted certain rules concerning the authority of the
organs that act for the organization externally to perform binding legal trans-
actions. These latter rules are usually found, not in the constitution, but in
the nancial regulations adopted by the plenary organ or in administrative
orders enacted by the Secretariat. Thus it is provided in Regulation 5.9 of the
Financial Regulations of the United Nations57 that “obligations for the cur-
rent nancial period or commitments for current and future nancial periods
shall be incurred only after allotments or other appropriate authorizations
have been made in writing under the authority of the Secretary-General”.
This is probably intended merely as internal instructions binding upon the
competent ofcials of the organization, but not upon third parties. An earlier
(provisional) version of the nancial regulations was different and provided
in Regulation 25:
No contract, agreement or undertaking of any nature, involving a charge against
the United Nations exceeding US$ 100 shall be entered, or have any force or effect,
unless:
(a) Credits are reserved in the accounts to discharge any obligation which may
come in course of payment in the nancial year under such contract, agreement
or undertaking;

56 EC, Art. 234 and EURATOM, Art. 150.

57 Financial Regulations and Rules of the United Nations, Secretary-General’s bulletin,
ST/SGB/2003/7, 9 May 2003.
 choice between national laws 547

(b) The charge is a proper one against the United Nations; and
(c) Proof has been provided that the service is for the benet of the United Nations
and the cost thereof is fair and reasonable.58
The question of whether such internal administrative limitations upon the
authority of the organization’s representatives are valid vis-à-vis third parties in
an external civil law relationship is not an internal question and may therefore
depend upon the lex causae, rather than upon the personal law. This may have
been the reason why the United Nations dropped the italics words from its
nancial regulations. However, since the proper analogy, if any, is not the con-
ict of laws governing foreign corporations, but that governing foreign States,59
the substantive rules may have to be drawn from general principles of law.60 At
any rate, whether this matter is governed by the personal law or by the lex causae
(or by general principles of law), the law of the host State as such is irrelevant.
A court could not set aside the United Nations regulation merely because under
the national law of the organization’s host State a public or national private
body could not have validly invoked such a provision against third parties.

Conclusion

The foregoing concrete examination of some of the more important legal ques-
tions which rules of conict of laws refer for decision to the personal law of
IGOs, leads, in conclusion, to the general proposition that in those few elds of
law where rules of conict of laws refer to the personal law ( lex personalis) of an
IGO, one must apply the internal law of the organization. There is no need to
deviate in these cases from the general principle of conict of laws that the per-
sonal law is the party’s own law – and to start looking for a substitute in the form
of some particular system of national law. On the contrary, the application of
any particular system of national law as the personal law of the organization
would, at least in the most readily conceivable cases, as best offer no guidance,
but in most cases lead to inadequate or even impossible solutions. Neither the

58 Adopted by General Assembly resolution 163 (II). Italics added.

59 In an internal dispute the League of Nations Administrative Tribunal has held that the
Secretariat was not responsible for a promise it had given ultra vires on behalf of the Pen-
sion Fund, because the rule that a person who promises that an act will be performed by
a third party is responsible for the refusal of the third party to perform the promised act
was applicable solely to civil law relationships. It did not apply to an administrative law
relationship governed by the principles of public law, including the principle that a person
cannot be responsible for fulllment of a promise which it was outside his competence to
make. (Annual Digest of Public International Law Cases, 1933/34, p. 462 (4).)
60 Cf. Jenks op. cit., p. 9.
548 chapter sixteen

public law of a State relating to the organization and capacity of the State itself
and its subdivisions, nor its law concerning the organization and capacity of
corporations and associations, could be applied to IGOs. The internal law of
IGOs is not as insufcient as has been generally assumed. It is true that the con-
stitution may not contain the necessary rules. However, it must, like any other
legal system, be supplemented by internal legislation, internal customary law,
and general principles of law. The latter may be drawn from public interna-
tional law, as well as from constitutional and administrative national law.
Some modern writers who accept the principle of the inapplicability of
national law, tend to speak instead of general principles of law or international
law, or of a “personal law” consisting of international rules, but distinct from
international “administrative law”.61 This may be due to the common failure
to recognize the internal law of IGOs as a legal system distinct from interna-
tional law, or to a failure to admit that the constitution of an IGO forms part
of its internal law (as well as constituting particular international law).
However, this is not to say that, in addition to the internal law of the
organization, there may not also have evolved certain rules of genuine (and
general) international law which govern certain aspects of the matters discussed
above, for example of the juridical personality of IGOs. Writers tend to base
the claim to juridical personality in member States upon express constitutional
provisions – and, in non-member States, upon the general principle of conict
of laws relating to NGOs that if their juridical personality is recognized at
home it is also recognized abroad.62 It is submitted that IGOs enjoy juridi-
cal personality even if no provision to that effect has been included in its
constitution or in a convention on privileges and immunities. If this is a rule
of general international law, then there is no need to rely upon analogy to
NGOs. And if it is not, the better analogy is foreign States.63
Even if there are applicable rules of general international law, it is neces-
sary to distinguish between these and the internal law of the organization.
Thus, it has already been pointed out that a national court will apply the
internal law of IGOs according to its own rules on conict of laws, while it
will apply international law according to its constitutional rules on incorpo-
ration of treaties and customary international law into its national law and
that the constitution of the organization falls in both categories in member
States and (only) in the rst category in non-member States.

61 Jenks, op. cit. pp. xxxviii and 192.

62 Seidl-Hohenveldern, notably in Revue égyptienne de droit international, XXI (1965), pp.
64–65. Cf. also the Hague Convention cited above, note 41.
63 See the Montevideo Treaty quoted above, under (c), and Batiffol: Traité élémentaire de
droit international privé, 3rd ed., Paris 1959, pp. 227–8.
 choice between national laws 549

16.4 Territorial connecting factors (in private law)

General. Lex causae in law governing economic matters

The connecting factors we have been considering so far will not usually be
applied by national courts to the main question of a dispute involving an IGO.
They will in such courts usually relate to preliminary issues in disputes which
in substance are concerned with commercial matters or other matters of an
economic nature. The main substance of such disputes will, if not governed by
general principles of law, be governed by some system of national law as the
lex causae. An example is cheques, which IGOs have used at least as much as
other parties. The Convention for the Settlement of Certain Conicts of Laws
in Connection with Cheques of 19 March 1931 provides in Article 2 for the
application of the national law to the capacity of a person to bind himself by
cheque, and in Articles 3–8 for the application of various territorial laws (lex loci
solutions, lex loci actus) to substance and form.
In the remaining parts of the present chapter we will consider the question
of the lex causae in the non-personal elds of private law – i.e., in the law
concerning economic matters or private economic law. These are the most
important, because it is mostly in these elds that IGOs become involved
in disputes with private parties. We are concerned with such matters as
property, contracts and other obligations, torts, and other economic matters.
Excluding torts, these legal elds are in Scandinavia referred to as formuesrett,
in German Vermögensrecht, as a common denominator. Anglo-Saxon law has
no corresponding term.
In these elds there are three main methods of choice of law:
(1) In some elds there are standard connecting factors, usually of a ter-
ritorial nature, for example lex rei sitae in real property and, less rigidly, lex
loci delicti in torts64 and lex loci actus with regard to the form of private acts65
( locus regit actum). These principles are applied also to IGOs. Thus, the docu-
ments by which land property was transferred to the League of Nations were
ordinary notarial acts according to Swiss law.66 The arbitration agreement
reported in chapter 14.5 provided for application of the lex loci delicti to the

64 Bowett: The Law of International Institutions, 4th ed., London 1982, p. 370 nds it
“tempting to suggest that, subject to immunities, the local law will apply to torts commit-
ted within a headquarters district”.
65 On acts of public organs, see above, under 16.2.
66 The Secretariat of the League to Liermann, quoted by the latter in Zeitschrift für Völker-
recht, XV (1930), p. 30.
550 chapter sixteen

non-contractual liability of the United Nations for the loss of a private aircraft
in the Congo in 1961. And a Belgian court, in United Nations v. B and others
expressly held that the rule locus regit actum was applicable to the cession of a
claim from UNRWA to the United Nations.

(2) In other elds there is in many countries a more exible method, the indi-
vidualizing method, which probably coincides with what Anglo-Saxon lawyers
refer to as the proper law method. This avoids the application of one rigid con-
necting factor in all cases of a certain category. It allows instead for a concrete
evaluation in each case of all connecting factors, or links, that the legal relation-
ship may have with one or another system of law, in order to determine with
which system it has its strongest links. The individualizing method is applied
particularly in the law of contracts, partly also in other elds of Vermögensrecht
and torts, and is well suited for IGOs. However, this method is not admitted
in the conict of laws of all countries, and notably not in a number of Latin
American States.

(3) Finally, the conict of laws of most, but not all countries, recognizes the
autonomy of the parties in certain elds, notably in the law of contracts. The
parties may then themselves choose the applicable law, and, if they have done
so, this choice is given effect within certain, rather wide, limits. The examples
cited above, in chapter 14, prove that IGOs frequently exercise this choice.
In the second and third case, the courts and the parties, respectively, will of
course choose a law that is practical. They will therefore not normally choose
the private law of an IGO that does not have any such law. And should
they exceptionally do so, it will be for good reasons, viz. that they want the
relationship to be governed by general principles of law and any regulations
enacted by the organization.
In the rst case, the applicable law will usually be territorial, for example
the lex rei sitæ, lex loci actus, lex loci contractus,67 lex loci solutionis,68 or lex loci delicti.
Alternatively, the applicable law may be the lex domicilii of one of the parties,69
i.e. of the organization or the other party.
We shall now discuss the application to IGOs, rst of territorial connecting
factors, and then of the lex domicilii.
In all those cases which are governed by a territorial connecting factor – or
where the individualizing method leads us to the application of a territorial
connecting factor – the applicable law will be the law of the territory to which

67 Particularly in Belgian, Dutch, French and, partly, Anglo-Saxon law on contracts.

68 Particularly in German and Swiss law on contracts.
69 Notable the lex debitoris in Nordic law on obligations.
 choice between national laws 551

the pertinent conicts rules refer, irrespective of who the parties are. There
are four different situations.

State territory

The normal case is that the territory concerned is under the sovereignty and
administration of a State. The national law of that State will then be appli-
cable.70

IGO territory

If the territory is under the sovereignty or administration of an IGO, the neces-

sary law, including private law, will have been enacted by or under the author-
ity of the organization or taken over from its predecessor. Thus, in the case of
territorial administration authorized by the UN Security Council as part of a
peace support operation (e.g. Kosovo and East Timor) or joint Allied military
occupation government or other indirect condominium and coimperium, the ter-
ritorial law previously in force continues to apply to the extent and with the
71
amendments and supplements that the authorized organization determines.
The same is usually true of internationalized territories, for example West
New Guinea (Irian Barat),72 although the necessary revised or additional law
is then more frequently enacted by local organs set up under the supervision
of the organization, for example in the Saar. The necessary law for territories
under trusteeship would have been enacted by the administering authority or
by the UN if the organization itself were to become administering author-
ity, for example in South West Africa. In one case as in the other, the law is

70 H. Aufricht “Relative Sovereignty” in Cornell Law Quarterly, XXX (1944–1945) VII B,

points out that it is “conceivable that a Bill of Exchange in which the League of Nations
appears as the ‘drawer’ and the Permanent Court of International Justice as the ‘drawee’
would be subject to the rules established by the conventions of June 7, 1930, since the
Netherlands as well as Switzerland have ratied [and presumably implemented in their
municipal law] the conventions”.
71 See for illustration UNMIK Regulation no. 1999/24, 12 December 1999, with later amend-
ments, on the law applicable in Kosovo and the UNMIK Ofcial Gazette for a complete
list of Regulations and Administrative Directions for Kosovo (www.unmikonline.org/regula-
tions/index.htm – visited September 2007). See also the list of UNTAET Regulations for
East Timor (www.unmiset.org/legal/UNTAET-Law/Regulations%20English/regenglish.
htm – visited September 2007).
72 The administration of West New Guinea was transferred from the Netherlands to a United
Nations Temporary Executive Authority (UNTEA). UNTEA had full authority from
1 October 1962 until 1 May 1963 when full authority was transferred to Indonesia.
552 chapter sixteen

supplemented by the means common to all legal systems – notably by internal

customary law and general principles of law – and not by any particular foreign
system of national law.

IGO premises

A territorial connecting factor may also relate to the premises of an IGO.

These are not usually under the sovereignty of the organization or under its
territorial jurisdiction. Like premises of embassies, they are inviolable, but not
extraterritorial in respect of territorial substantive law. As has been pointed out
elsewhere,73 the premises are therefore subject to the territorial law of the host
State. The only exceptions are the headquarters districts of the United Nations
in New York, of the IAEA in Vienna, of UNESCO in Paris and of the Council
of Europe in Strasbourg, in those few respects in which those organizations
have enacted headquarters regulations as authorized in their headquarters
agreements with the host State. With this minor exception, the law to be applied
is in principle the national law of the host State.74 This is so, for example, if a
contract which is governed by the lex loci contractus is concluded on the premises
of an IGO, or if a tort governed by the lex loci delicti is committed there.
However, due account must be taken of the fact that the premises of an
IGO are much less closely connected with the law of the host country than
are other parts of its territory. Even if the legal relationship concerned has its
strongest connection with the premises of an IGO, the comparatively loose
connection between the latter and the law of the host country will render
the connection of the legal relationship with the law of the host country
weaker than it would otherwise have been. It is consequently quite possible
that some other connecting factor (territorial, personal or organic) which the
legal relationship may have with the same or another legal system will involve
a stronger direct connection. If this is the case, it is more natural to apply
this connection, at least if we are not within a eld of law which under the
conicts law of the lex fori is governed by one rigid principle, but which admits
the individualizing or some other exible method. In view of the interna-
tional nature of the organization, one should not attach undue importance
to the fact that its headquarters happens to be in one particular State. The
practice of the European Community and EURATOM demonstrates that

73 Cf. Seyersted, ICLQ , XIV (1965), pp. 518–521.

74 As pointed out ibid., pp. 505–516. Contracts of employment with ofcials are not governed
by territorial, but by organic law, i.e. by the internal law of the organization.
 choice between national laws 553

these organizations in some cases avoid the law of their host State as such,
and in other cases they do not.
This is thus the rst case where we may wish to deviate from the otherwise
applicable connecting factor because of the special nature of IGOs. We do
so, not because it is necessary in order to nd an applicable law, but because
it gives a better solution. And this alternative solution, too, is in accordance
with general principles of conict of laws.
Jenks,75 discussing torts on international premises, distinguishes, not accord-
ing to whether or not the conict of laws of the lex fori lays down a rigid rule
of lex loci delicti, but according to whether or not the headquarters agreement
or host agreement concerned contains an express provision to the effect that
the law of the host State shall apply on the premises. Jessup does the same
with regard to contracts signed and/or to be performed on the premises.76
However, this clause occurs only in a few headquarters agreements, and then
together with a provision which authorizes the organization to enact (territorial)
regulations for the headquarters district77 and/or which State that the premises
shall enjoy “extraterritoriality” and be under the “control and authority” of
the organization.78 It was as a natural supplement to, and limitation of, such
provisions that the clause on applicability of local law was added in these few
agreements (and in one case of uncritical partial copying of these precedents),
and not in order to deviate from general principles of conict of laws. It is
therefore submitted that these agreements do not in substance deviate from
the normal headquarters agreements and host agreements, which contain no
such clauses, but merely add a provision to the effect that the premises shall
be “inviolable”,79 or, in a few cases,80 both inviolable and extraterritorial (in
different articles). Even the distinction between the two latter terms can hardly
be considered as signicant.81 Thus the headquarters agreement between the
ILO and Switzerland of 11 March 1946 contains both terms, while the host

75 The Proper Law of International Organizations, London 1962, pp. 213–219, but cf.
p. 141.
76 Transnational Law, New Haven 1956, pp. 98–99.
77 As explained above, these create territorial law, which supersedes the national territorial
law. Contra: Jenks, op. cit., p. 141.
78 UN-US of 26 June 1947, §§ 7 (a)-(b) and 8 (“control and authority and power to enact
regulations”); International Atomic Energy Agency-Austria of 11 December 1957, Arts.
7–8 (“control and authority”, “extraterritoriality”, power to enact regulations); Council of
Europe-France of 2 September 1949. Arts. 1–2 (power to enact regulations); FAO-Italy
of 31 October 1950 §§ 6 (a)-(b) (“control and authority”, “extraterritoriality”).
79 League of Nations and UN with Switzerland, ICAO and Pacic Commission with France,
ICAO with Canada.
80 The headquarters agreements of ILO, IRO and WHO with Switzerland.
81 Jenks, op. cit. pp. 139–140 and 214, appears to attach signicance to this distinction,
too.
554 chapter sixteen

agreement concluded of 1 July that same year between the United Nations
and Switzerland merely provides for inviolability. Similarly, two of those head-
quarters agreements which provide expressly for the application of local law
contain both terms (FAO and IAEA), while the remaining three provide for
inviolability only (UN, UNESCO, Council of Europe). It is submitted that
there is in fact no legal difference between the various provisions (except, of
course, in so far as four of them confer a territorial legislative power upon the
organization). Their content depends in either case upon the same custom-
ary law or analogy82 – which as far as applicable law is concerned – applies
also in the absence of any express provision. Any distinctions deduced from
differences in the wording of the various headquarters agreements would
not reect real differences between the needs of the organizations and the
intention of the drafters.
The practical result of Jenks’ interpretation would be that local law in
fact applies more rigidly on the premises of the United Nations and a few
others of the most important IGOs, than on the premises of all other IGOs,
including the less important. Indeed, in those cases where there is no express
provision in the agreement for the application of local law and a provision
for extraterritoriality, rather than, or in addition to, inviolability, Jenks83 pro-
poses to apply the lex fori, rather than the lex loci delicti, to claims made by the
organization against persons (ranging from ofcials to private visitors) who
have committed torts on the premises of the organization. This is no doubt
a practical method. However, it may be appropriate to take into account the
relationship of the tortfeasor with the organization. Indeed, there may be
more reason to distinguish according to such real differences in the status of
the tortfeasor than according to accidental semantic differences in the status
agreements of the various organizations. Thus the liability of ofcials may be
adjudicated on the basis of the internal law of the organization (i.e. general
principles of law) – thus substituting the organic for the territorial connect-
ing factor – while the liability of a visitor for private purposes may remain
under the territorial rule of lex loci delicti (i.e. the law of the host State even
if he is a foreigner). Jenks himself makes this distinction in respect of the
organization’s liability as occupier of premises for injuries or damage suf-
fered there.84 In that case it is obvious that the liability of the organization
vis-à-vis its ofcials depends upon its own law, because this is an aspect of the
relationship of employment and thus falls under the organic jurisdiction. As

82 Cf. Jenks, ibid., pp. 217–218.

83 Id. pp. 215–218.
84 Op. cit., pp. 144–145.
 choice between national laws 555

for the liability of the organization towards others who use the premises for
ofcial international business, Jenks States that “it would appear to be within
the competence of the organization’s representative organs to determine
the law to be applied to such cases as may arise”. This would seem to point
to the internal law of the organization (i.e. general principles of law) if the
organization has not decided otherwise.

Ships, aircraft and space-vessels registered with the organization

The fourth situation that may arise is when the connecting factors refer to a
ship, aircraft or space vessel registered with an IGO (and ying its ag) rather
than with a State.
When these are in the territory of a State, the law of that State is (with
some reservations) the law on board. But when they are on the high seas, in
stateless territory or in outer space, the territorial law on board is the law of
the sovereign community whose ag they y. However, IGOs which have no
other territory do not have a private and a criminal law.
This was what made the International Law Commission hesitant about
recommending the inclusion in the Convention on the High Seas of 29 April
1958 of an article on ships under the ag of an IGO, and what caused the
present writer and the Conference to conne itself to inserting an article
(Article 7, proposed by the present writer) reserving the matter.85 Since then,
the question has been discussed and partly solved in connection with certain
particular conventions or draft conventions, on the basis that the organization
shall designate the law of some State as the applicable law86 to the extent
that it has not enacted its own laws. As for criminal law, the Tokyo Conven-
tion on Offences and Certain Other Acts Occurring on Board Aircraft of 14
September 1963 provides in Article 18 that the member States shall designate
one of their number to assume the criminal jurisdiction which the convention
confers upon the State of registration; the courts of that State will then, of
course, apply their own law, unless the States concerned agree otherwise. The
same principle was adopted in respect of civil liability for nuclear damage by
the Standing Committee of the Diplomatic Conference on Maritime Law,

85 Yearbook of the International Law Commission, 1956, II, pp. 102–103 and 279; UN
Conference on the Law of the Sea, Genève 1958, OR, II, pp. 20–21, and IV, pp. 65–76,
129 and 138–140; H. Meyers: The Nationality of Ships, the Hague 1967, pp. 329–338.
86 Even a State has done this: Liberia has designated the non-statutory general maritime
law of the US as the general maritime law of Liberia, see text quoted by Meyers, op. cit.,
p. 346.
556 chapter sixteen

in its draft Article XXV bis to the (not yet in force) Brussels Convention on
Liability of Operators of Nuclear Ships of 25 May 1962. The article provides
that the Organization shall designate the courts of a Contracting Party as the
“courts of the licensing State” in respect of ships licensed by the organiza-
tion. These courts shall then apply their own law whenever the Convention
refers to the “applicable national law”, which is dened in the convention
as the law of the court having jurisdiction ( lex fori). However, this law shall
be applied “together with any special provisions of the Organization which
are necessary in view of the international character of the Organization and
which have been made applicable by agreement with that Contracting Party”.
Moreover, when the convention refers to the “law of the licensing State” (it
does so only once), this article provides a reference to “any relevant provisions
adopted by the Organization”.87
Indeed, IGOs have an inherent power to enact their own territorial law for
sea, air and space vessels which are not registered in any State,88 or to adopt
some national law as the territorial law. The latter is, of course, the more
practical method whenever there is a need for positive arbitrary rules, but
only to the extent that the special nature of the organization or the operation
does not require special rules.
However, when the organization has neither enacted, nor designated an
applicable territorial law – as the United Nations had not done in respect of
the ships ying its ag in Korea and the Middle East – then there will be a
legal vacuum in respect of objects and acts governed by the territorial law
on board, whether or not the organization is a party to the legal relations
concerned.
This vacuum can be lled, in civil law, by the application of general prin-
ciples of law as the law of the organization. However, if we are not concerned
with relations between the organization and the captain and crew as such

87 International Atomic Energy Agency document CN-6/SC/13, 1965, pp. 70–71, cf.
pp. 17–18. See also the discussion in Meyers, op. cit., pp. 339 et seq., of earlier events
and pp. 345–348 of the questions of principle.
The provision adopted by ICAO and the UN concerning, respectively, aircraft and
space vehicles registered with an IGO, do not provide for jurisdiction. On aircraft, see
ICAO constitution, Art. 77, and the Council’s resolution of 14 December 1967 on joint
and international registration of aircraft (doc. 8722–C/976); part I D of Appendix 2 to
that resolution appears to assume that jurisdiction will be national. On space vehicles,
see Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967,
Art. XIII; Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space of 22 April 1968, Art. 6; the Convention
on Liability for Damage Caused by Space Objects of 29 March 1972, Art. XXII. and
Darwin: “The Outer Space Treaty” in BYIL XLII (1967) pp. 278–89.
88 In this sense also Meyers, op. cit., p. 346.
 choice between national laws 557

(which is subject to organic, not to territorial law), the problem can also be
solved by the application of the national law of some State on the basis of
other (territorial or non-territorial) connecting factors, as suggested above, in
respect of certain relations connected with the premises of the organization.
Which of these two methods the competent court will apply, will probably
depend, inter alia, upon whether the relationship concerned under its own
conict of laws is governed by a rigid territorial reference or by some more
exible principle, such as the individualizing method or the presumed intention
of the parties. Indeed, in the latter cases it may be natural to look for other
connecting factors even if the organization has designated an applicable law,
if such other connecting factors involve a stronger link to some other law.
In criminal law there is no way of lling the gap in the organization’s law
if the organization has not made use of its inherent power to establish its
own criminal courts and either to enact its own criminal law or to adopt by
incorporation the criminal law of some State. Recourse must then be had to
national courts, which will apply their lex fori. Indeed, most national criminal
courts assume extraterritorial jurisdiction over nationals who have commit-
ted criminal acts abroad. The culprit can therefore be handed over to the
authorities of his own State for prosecution under its laws. This is the solution
adopted for the Atlantic Treaty of 1 December 1959, in respect of observers
and exchanged scientic personnel; and in respect of members of United
Nations Forces, by the regulations enacted for these and by the agreements
which the United Nations has concluded with the host States and the States
providing contingents.89

Conclusion

In conclusion, the application of territorial connecting factors to civil relations

involving IGOs gives rise to special problems only when the connection is with
the premises of the organization or with a means of transport registered exclu-
sively with the organization, while it is outside the territory of any State. The
direct, logical solution is, in the rst case, to apply the law of the host State, and
in the second case, to apply any law enacted or designated by the organization
and general principles of law. However, it may often be reasonable to look for

89 Text in Seyersted, op. cit., pp. 428, 441 and 444, discussion pp. 102 and 370 et seq. See
however the problems in this respect reported in UN doc. A/59/710, 24 March 2005,
cf. also above chapter 6, note 83 and chapter 10, note 35.
558 chapter sixteen

other connecting factors, if the relationship under the conict of laws of the lex
fori is not rigidly governed by this one territorial connection.

16.5 LEX DOMICILII (and LEX PATRIA) in economic law

Personal connecting factors in economic law

Genuine personal connecting factors do not appear to play any role outside the
legal elds discussed under 16.3 above. By genuine personal connecting factors
is then meant either the pure lex patriae, or the lex personalis as dened by the lex
patriae in those countries which apply the nationality principle and by the lex
domicilii in those countries which have adopted the principle of domicile.
However, conict rules in the eld of economic law ( Vermögensrecht), and
notably in the law of contracts, frequently refer to the lex domicilii of one of
the parties, for example the debtor, the vendor, the lender, the donor, the
agent or the person he represents, as the lex causae.90 As for loans, conict of
laws rules generally hold the lender’s law applicable when there are no special
circumstances,91 except that public lenders (States and IGOs) sometimes accept
the law of the borrower (and except that bond loans usually are governed by
the law of the market).92
In these cases the reference is not to the lex personalis of the party con-
cerned, but to a genuine law of domicile, determined by domicile even in
those countries where nationality is the test of the personal law. The differ-
ence may be illustrated by examples from Swedish conicts law, which applies
the nationality principle. Thus, under Swedish law guardianship for minors
and the insane, which is governed by the personal law of the minor or the
insane, is governed by his lex patriae. But a power of attorney is governed by
the lex domicilii of the agent or the person he represents, if it is not governed

90 The Polish Law on Private International Law of 12 November 1965 No. 46 provides in
Articles 26–27 that, if the parties to a contract have not chosen an applicable law, the
contract shall be governed by the lex domicilii of both parties or of the party that provides
an object or a service ( lex debitoris). Full text in Revue critique de droit international privé,
LV (1966), p. 326.
91 Gerald Gold, “Conict of Law Problems Accompanying the International Credit Transac-
tion”, Indian Journal of International Law, 1960–61, at p. 651.
92 Nurrick, “Choice-of-law clauses and International Contracts” in Proceedings of the
American Society of International Law; 1960, at pp. 59–61.
 choice between national laws 559

by the law of the country where it is designed to operate or by some other

territorially dened law.93
What do we then do if the party, whose lex domicilii is to be applied, is an
IGO that has no territory with a private law of its own? The answer depends,
in the rst place, upon whether we regard the lex domicilii as a territorial or
a personal law, and, in the nal resort, upon whether we are faced with a
rigid rule of lex domicilii or whether we are in a country and a eld where the
more exible methods are admitted.94

The territorial law of the host country

If the lex domicilii is regarded as a territorial connecting factor, the applicable

law is in principle the national law of the host State. In the eld of private eco-
nomic law the theoretical and practical reasons advanced under 16.3 against
the application of the national law of the host country do not apply.
On the contrary, if the lex domicilii is regarded as territorial law, it will be
in accordance with general principles of conict of laws to apply the territo-
rial law governing the premises of the organization. And this is, as has been
demonstrated in chapter 16.4, the territorial law of the host country. The
organization enjoys no general extraterritoriality with regard to substantive
territorial law, as it does with regard to organic (and personal) law. From a
practical point of view, too, the application of the national law of a State
appears to be a good solution in the eld of Vermögensrecht, because IGOs which
exercise no territorial jurisdiction have no such law of their own. The national
law of a State will offer adequate solutions in most cases where the external
contractual and similar relations of IGOs are not essentially different from
those of other parties. If they are, then the matter may not be governed by
national law and traditional conict of laws at all, but by general principles
of law, as discussed in earlier chapters.
It has been pointed out that, where the applicable conict rule contains a
direct reference to the territorial law of the premises of an IGO, one must
take into account the fact that the link with the territorial law of the host
State is usually weaker than when the reference is to State territory for other

93 Nial: Internationell förmögenhetsrätt, Stockholm 1944, pp. 59–60.

94 In Scandinavia, however, there is still a tendency in the law of contracts to use the lex
domicilii of the debtor as a last resort when the individualizing method does not provide a
solution, see Lundgaard: Gaarders innføring i internasjonal privatrett, 3rd ed., Oslo 2000, chapter
XIV, cf. Almén as cited by Karlgren: Kortfattad lärobok i internationell privat- och processrätt, 3rd.
ed., Lund 1971, p. 106.
560 chapter sixteen

reasons. It was indicated that for this reason it might often be natural to
discard this particular connecting factor altogether and apply instead some
other connecting factor, at least in those elds and countries where a exible
principle of conicts law prevails. This applies with even greater force if the
reference is to the lex domicilii than if it is directly to the territory concerned.
The link of the organization to its law of domicile, dened as the law of the
host country, is very much weaker than that of natural persons, national non-
governmental organizations and States, to their law of domicile. Therefore,
if the legal relationship concerned has some other connection, which may
be somewhat less dominant, but which points to some system of national
law directly rather than via the intermediary of the domicile of the organi-
zation, this may be the connection which in the specic case represents the
strongest link with any particular system of national law. This connection
should then be preferred, at least if one moves in a eld of conict of laws
which is governed, not by a rigid principle, but by a concrete evaluation of
all the connecting factors involved in each particular case, as are many elds
of Vermögensrecht, and particularly the law of contracts. The case for resorting
to such an alternative connection is of course particularly strong where there
would in any case have been doubt as to which connection should be given
preference, for example if there are about equally strong reasons for applying
the lex domicilii debitoris and the lex loci solutionis or the lex loci contractus.
It appears from the practice reported above that the European Communi-
ties in some cases appear to treat their lex domicilii as the territorial law of the
host State, notably when the EURATOM general conditions for the provision
of goods and services provide that “le droit du pays du siège de la Commission est
applicable au marché”.95 In other cases, however, other connecting factors are
applied in order to avoid leaning too heavily on the law of the host State.

The internal law of the organization

It may be preferable to consider even the pure lex domicilii as personal rather
than territorial law. In that case the logical law to apply is the internal law of the
organization. This is certainly true if it were to be found that conict rules even
within the eld of Vermögensrecht or torts in certain specic respects refer to the

95 However, in many cases this law is also the lex loci solutionis, the lex loci contractus and/or
the lex domicilii of the other contracting party.
 choice between national laws 561

lex patriae,96 or to the (genuine) lex personalis, as dened by nationality or domicile

according to the country.97
The application of the internal law of the organization would in these cases
meet with the objection that IGOs usually have no Vermögensrecht of their own.
The question would then arise whether the internal law can be extended to
take care of such questions.
This could be done in the rst place by the organization enacting the
necessary rules as part of its internal law. This all IGOs have an inherent
power to do, if their constitutions do not provide to the contrary – and they
do not. The territorial sovereignty of the host country over the premises of
the organization would be no obstacle to the application of this law – if the
lex domicilii is considered as personal rather than as territorial law. However,
IGOs are not known to have enacted law for the purpose of external relations
of a private law nature, either in the form of substantive rules98 or in the form
of incorporation of some system of national law, nor of rules of conict of
laws prescribing renvoi.99 And they are not likely to do it – unless they estab-
lish courts of their own with competence in commercial or other economic
disputes. But even the organizations that have done so are not known to have
as yet enacted any law to be applied by such courts in external disputes.
A different matter is that some organizations meet the need, in those cases
which are of greatest practical importance, by enacting general rules for
incorporation by reference in certain types of contracts which they conclude
in great numbers. When they have been so incorporated, they apply without
regard to whether the applicable rules of conict of laws refer to the internal
law of the organization or to some system of national law. But in most cases
the rules apply only to contracts and only when these refer to the rules. It is

96 As pointed out above, in 16.3 and 16.4 in initio, Art. 2 of the conventions on cheques
and bills of exchange do not extend beyond the law of persons.
97 Karlgren: Kortfattad lärobok i internationell privat- och processrãtt, 4th ed., Lund 1971,
pp. 98–99, cites a Swedish judgment in this sense and the criticism which has been
advanced against it. If a tort is committed outside the jurisdiction of any State, Jenks,
op. cit., pp. 219–222 proposes to substitute the lex fori for the lex loci delicti “subject to
any allowance made by the lex fori for the personal law of the tortfeasor”.
98 The Secretariat of the UN at any early stage suggested that the organization enact
regulations under § 8 of the Headquarters Agreement between the United Nations and
the United States concerning necessary contractual arrangements to be concluded within
the headquarters district (document A/1409, para. 1). However this suggestion probably
was based upon a misconception, inasmuch as it envisaged in the rst place contracts
of employment, which are of an internal nature and not subject to State law.
99 During the discussion of Headquarters Regulations at the Fifth Session of the UN Gen-
eral Assembly, it was proposed drafting a code of regulations which would be helpful
in settling disputes involving conict of laws, OR GA, V, Sixth Committee, Summary
Records, p. 271.
562 chapter sixteen

doubtful whether the rules could be considered part of the internal law of the
organization – in the sense that they could be applied also in other cases –
when the applicable conict of laws refers to that law.
In the absence of any applicable internal regulations one would have to
rely upon general principles of law, in particular the general principles of law
of the member States, to ll in the law of the organization.100 The arbitral
award reported above, chapter 14.5, demonstrates how, even in such cases, any
necessary arbitrary rules can be drawn from one specic system of national
law, selected in accordance with the presumed intention of the parties (which
presumably is virtually the same as the individualizing method), provided that
they do not conict with general principles of law. It has been pointed out
that the direct application of general principles of law has been more or less
expressly provided for in certain IGO constitutions (for torts) and in certain
agreements concluded by IGOs. There are several other examples where con-
tractual and other relations of States or IGOs with individuals were held to
be governed by general principles of law, despite the fact that they concerned
subject-matter similar to that which is governed by national law.101 Few if any
of these examples are directly relevant to the question of the law of domicile
or the personal law of IGOs. But they demonstrate that it is not considered
impracticable for such agreements to be governed by general principles of
law, rather than by a specic system of national law.

The law of other connecting factors

In many or most cases it may be more practical not to be dogmatic, but to

follow the suggestion of pre-war writers and look for an alternative system of
national law.
The majority proposal in this respect was to apply the law of the host State
as the personal law of the organization. This would lead to the same result
as the rst solution proposed above. However, in view of the international
and sovereign character of IGOs, this solution would appear somewhat
arbitrary if one does not consider lex domicilii as a territorial connection,

100 Seidl-Hohenveldern proposes these as the general solution whenever the applicable
conicts law refers to the national law of a legal person.
101 The application of general principles of national law is also indispensable for the purpose
of lling gaps in inter-State loan and other agreements which, although they concern
regular commercial matters, are governed by public international law rather than by
the national law of one of the contracting States. For examples, see Mann: “The Law
Governing State Contracts”, in BYIL, XXI (1944), pp. 11 et seq., especially pp. 20–21
and 28.
 choice between national laws 563

and especially if one were concerned with a case of genuine personal law
(including lex patriae).
It would then be more appropriate to discard altogether the personal con-
necting factors as determining the lex causae. Rather than look to another legal
system with which the organization is loosely connected, it would be appropriate
to look for another legal system with which the legal relationship concerned
is connected. One would then determine the lex causae according to the next
available connecting factors, which, altogether less dominant than that relating
to the personal law, has a direct and therefore stronger link with a particular
system of national law. This system, too, may in fact often be the law of the
host country. Indeed, one or two pre-war writers actually took the view that
the League of Nations had no personal law, and that Swiss law could not be
applied as a substitute personal law.102 Instead they proposed to apply some
principle of conict of laws other than the personal law. However, they appar-
ently had in mind one or two xed alternative principles, such as the lex loci
contractus, or the lex rei sitae together with the rule locus regit actum, or the lex fori.
But any such rigid alternative would not be in conformity with the exible
systems of conict of laws which are applied in a number of national legal
systems in many elds of private economic law, and especially in the law of
contracts. It is precisely these systems which lead to the recourse to the next
strongest connecting factor if the dominant connecting factor refers to a legal
system which is not sufciently developed to offer an adequate solution. It
would be consistent with this exible system to apply whatever connection is
strongest in the given case.

Conclusion

In conclusion it may be stated that references to the lex domicilii or to genuine

personal law in Vermögensrecht present no problems if we are in a eld of law and
a country where the individualizing method, the presumed intention of the
parties or some other exible system is admitted, as most countries do in many
elds of Vermögensrecht and particularly in respect of contracts. We can then
apply the internal law of the organization if the organization has enacted one

102 Liermann: “Der Völkerbund als Privatrechtssubjekt”, in Zeitschrift für Völkerrecht, XV

(1930), pp. 41–43. See also Göppert: Der Völkerbund, Stuttgart 1938, p. 29 and, with
regard to contracts of employment with persons other than ofcials, Borsi: “Il rapporto
d’impiego nella Società delle Nazioni” in Rivista di diritto internazionale, XV (1923)
pp. 284–285, note, Frankenstein: Internationales Privatrecht, Berlin 1927–35, I p. 508,
note, and Schücking und Wehberg: Die Satzung des Völkerbundes, 2nd ed., Berlin 1924,
p. 161, note, considered this solution “strange”.
564 chapter sixteen

or if the case really lends itself to the application of general principles of law.
And we can apply the law of the host State when the legal relationship really has
its strongest connection with that law. In other cases we can apply any other law
with which the relationship concerned has its (second) strongest links.
Problems arise only in those cases where even a private law relationship
outside the elds discussed under 16.3 above, may be governed by a rigid
reference to lex domicilii or to genuine personal law. Even in such cases it may
be appropriate to deviate from such conict of laws rules established for
relations between private parties. But if the lex fori should insist upon apply-
ing its rigid principles of conict of laws even to IGOs, one would have to
choose between the law of the host country and the law of the organization
(i.e. general principles of the laws of the member States). That is, if we are
concerned with genuine lex personalis or lex patriae, only the latter alternative
would be open.

16.6 Conclusions

The rm principles of conict of laws – such as the lex rei sitae for transactions
relating to immovable property, the lex personalis for questions of personal status
and competence to act and the lex fori for form and procedure of acts of public
organs and for criminal law – will apply to IGOs as to other parties and will then
refer either to a national law or to an internal law of the organization that exists.
In other elds of private economic law in which IGOs may – and frequently
do – become engaged, the common principles now widely recognized – of the
express or implicit will of the parties, and of the individualizing method which
relies upon a concrete evaluation in each case of the relative and aggregate
weight of all connecting factors – are easily applied to IGOs. In implementing
these exible principles, the parties or the courts, respectively, will of course not
apply an internal law of the organization that does not exist, unless they really
feel that the relationship should be governed by general principles of law and
any relevant provisions of the organization.
In public law and the law of persons there appears to be no problems at
all arising out of references to the law of the organization. Organic con-
necting factors, which dominate public law, refer to the law of the sovereign
community to which the organ belongs, whether this is a State or an IGO.
Personal connecting factors in the law of persons also refer, in the case of
sovereign communities, to their own public law. In both respects each IGO
has the necessary elements in its internal law. And any supplementary rules
can and must be drawn from general principles of law. Application of the
 choice between national laws 565

national private or public law of a particular State (relating to NGOs or to

the State itself ) would lead to strange or impossible results.
In the majority of cases, however, and notably in the eld of private
economic law (Vermögensrecht and torts), the substance of the relationship is
governed by territorial connecting factors. These usually refer to the law of a
State, and no problem arises, except that, if the territory concerned is the
premises of the organization, we may in some cases nd a stronger genuine
connection with some other law. If the territory concerned is under the
administration of an IGO, there is also a territorial private law enacted or
taken over by the organization. However, this may not be true in the, so far
exceptional, cases of ships, aircraft and space vessels registered with an IGO.
In such cases the competent court may prefer to look for an alternative con-
necting factor, rather than apply an internal law of the organization which is
not sufciently developed to play the role assigned to it by the conicts rule
which applies in the rst place. Alternative connecting factors are easily found
in respect of IGO premises and means of transport in the great majority of
cases which are governed by the individualizing method or some other ex-
ible principle of conict of laws.
Only in the rare or non-existent cases of personal connecting factors in
private economic law and in the more frequent cases of reference to the pure
lex domicilii (if this, too, is treated as a personal connecting factor) do we as
a general rule have to look for other connecting factors, if we want to avoid
the application of an internal private law of the organization that must be
drawn entirely from general principles of law. However, other connecting
factors are even more easily found, because references to the lex domicilii are
really concentrated in elds of law which in most countries are governed by
exible principles of conict of laws.
Thus, references to the law of the organization can in the majority of cases
be dealt with by direct application of the normally applicable connecting factor,
and in other cases by the application of other connecting factors in accordance
with the now prevailing exible methods of conict of laws. Only if there
should be any rigid personal connecting factors in private economic law may
we have to apply an internal law of the organization which consists exclusively
of the general principles of the private law of the member States.
A different matter is that the special nature of IGOs may in some respects
require special conict rules for reasons other than the absence of private
IGO law. It should be noted in this respect that the applicable national law or
general principles of national law will of course have to take into account any
relevant rules of international law, e.g. with regard to the juridical personality
of IGOs, in accordance with their constitutional rules on the incorporation
566 chapter sixteen

of treaties and customary international law into their national law. In this and
in other respects it should also be noted that, to the extent that the applicable
conicts of law differentiates between relations between two private parties
and relations between a private party and a State, the latter affords the better
analogy for IGOs.103 But there may, of course be yet further special circum-
stances which distinguish IGOs even from States, and which make even this
analogy awkward, but which can easily be accommodated within the exible
principles of the autonomy of the parties and the individualizing method. The
problems which arise in this connection are mostly special to special elds of
law, and require separate examination of each eld of national law.104
The basic general question in this respect is to what extent the external
relations of IGOs are governed by national law at all – or by other types of
legal systems. This problem has been discussed in earlier chapters. However,
it may be concluded from the account of practice (in chapter 14) and from
the discussion in the present chapter that the application to IGOs of tradi-
tional conict of laws with its references in certain cases to the law of the
organization does not present insoluble problems which in themselves would
force courts to resort to general principles of law (otherwise than as part of
the internal law of the organization) or international law.

103 See for example the question discussed above, under 16.3.
104 Reference can here be made to Jenks’ book, op. cit.
 CHAPTER SEVENTEEN

RELATIONSHIP BETWEEN COMPETENT COURTS AND

APPLICABLE LAW. INTERPRETATION OF
JURISDICTIONAL CLAUSES

17.1 Introduction

In the cases discussed above in chapters 15 and 16, there was either an express
or implied reference by the parties to a dispute, or other circumstances to indi-
cate the applicable law and in particular whether the relationship was to be
governed by national law or by the internal law of the organization or general
principles of law (or international law). In such cases that law must be applied
by any court before which the dispute arises, within the limits of its own conict
of laws and in particular of its recognition of the autonomy of the parties.
If there is no express or implicit expression of the intention of the parties
(and there usually is not), and if there are no other circumstances that point
out an applicable law, then the choice may depend upon the court chosen
by the parties.1 Indeed, most contracts concluded by IGOs contain a clause
on the settlement of disputes by arbitration, or by a national court or an
IGO court. We shall now examine the question of what law each type of
court normally applies and how a reference of disputes to that court may be
interpreted (qui elegit judicem elegit jus).

17.2 Procedural law

The procedure is in all courts governed by lex fori. In the case of national court
and internal or international courts established by IGOs this is the law enacted

1 See Schermers and Blokker, International Institutional Law, Leiden 2003, §§ 597–702 for a
presentation of a vast number of specic international and IGO tribunals that adjudicate
international and internal disputes.
568 chapter seventeen

by the State or IGO concerned. This follows from their exclusive jurisdiction
over their organs and is a recognized general principle of conict of laws
In the case of standing arbitral tribunals, the lex fori is the procedure laid
down by the parent body. In the case of ad hoc international courts or ad hoc
arbitral tribunals, the lex fori is the procedure agreed by the parties.2 Instead of
laying down the arbitral procedure themselves, the parties may refer to some
standard rules. Or they may submit to the national law of the State where
the court sits or to the national law which is applicable to the substance or
to some other national law. Such submission may be implicit, for example
if the parties refer to the rules of a national arbitration association (but not
to those of an international arbitration association, if these do not refer to
national law) or if they agree on arbitration in a particular country. However,
it follows from the immunity of IGOs from suit in national courts that they
are not subject to national procedural law unless they have accepted it.3 Such
acceptance cannot easily be implied if the organization has not accepted the
jurisdiction of the national courts concerned.
In those cases where the parties or the organization establishing the tribu-
nal have not laid down the procedural law, and where national procedural
law is not applicable, the procedural law must be laid down by the tribunal
itself – or drawn from general principles of procedural law,4 or, in the case of
international courts (but not internal IGO courts), from international law.5
If the organization, or the other party with the organization’s consent, i.e.
by waiver of immunity, presents the judgment or arbitral award to national
authorities or courts for enforcement, the questions of recognition and enforce-
ment will be governed by the procedural law of the State concerned.6

2 Cf. the European Convention on International Commercial Arbitration of 21 April 1961,

Art. IV (1) (a)–(b), and Mezger in Domke: International Trade Arbitration, New York 1958,
p. 236, both opposed by Mann in Liber Amicorum for Martin Domke, the Hague 1967,
pp. 164–167, cf. pp. 159–161, in accordance with his general view that all contracts must
be governed by an established system of mandatory law, i.e., national or international
law.
3 In this sense also Jenks, The Proper Law of International Organizations, London 1962,
p. 245, citing rightly the Arbitration between Saudi Arabia and Aramco. There have been
cases where the procedural law of the host country was applied (e.g., UNRWA v. Iraq
Clothing Co., 1954), but the present writer has been unable to obtain the text in order to
verify whether and how the organization had accepted this.
4 In this sense also Jenks, op. cit. p. 245, but cf. p. 244. Contra: Mann.
5 Cf. the ILC Draft Convention on Arbitral Procedure, Report of the International Law
Commission Covering the Work of Its Fifth Session 1953 OR GA, VIII, Suppl. No. 9,
pp. 9 ff., cf. GA resolutions 797 (VIII) and 989 (X).
6 See above, and Seidl-Hohenveldern: “The Foreign Litigant before the Court of Justice of
the European Communities”, Journal of Business Law, 1964, pp. 183–184.
 relationship between competent courts and applicable law 569

In the following sections we will examine the choice of substantive law,

separately for each type of court.

17.3 International courts7

International courts apply in principle international law. If the parties refer

disputes for settlement to an international tribunal, they must therefore be pre-
sumed to have intended that the relationship shall be governed by international
law, unless the relationship has stronger connections with another legal system
and the court is competent under its own constitution to apply that law.
Standing tribunals will usually have a statute providing for applicable law,
and any reference to such tribunals would then imply a submission to that
law. However, reference to genuine international courts of disputes involving
private parties is not very practical.8
Internal courts of IGOs are usually referred to as international, but they are
not.9 They administer the internal law of the particular organization, which is
different from international law. A reference to such a court therefore cannot
be interpreted as an implicit reference to public international law, i.e. to the
law governing relations between sovereign communities.
A reference to an advisory opinion by the International Court of Justice
is not conclusive as to the choice of law, because Article 65 of the Court’s
Statute provides that the Court may give an advisory opinion “on any legal
question”. So far IGOs have asked for advisory opinions only on questions
of international law or – more frequently – on questions of the internal law
of the organization.10 But it is submitted that an IGO could also ask for an
advisory opinion on an external dispute with a private party, subject to simi-
lar reservations as were discussed in the advisory opinion on Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against the UNESCO.11
Reference of disputes between IGOs and private parties to international
tribunals for settlement under contentious procedure is possible only if the

7 See also Jenks, op. cit. pp. 13–14, and Detter: Law Making by International Organizations,
Stockholm 1965, p. 179.
8 An example was the Mixed Commission established by the Agreement on German External
Debts of 27 February 1953. The courts established in the annexes may be more in the
nature of private arbitration, because the annexes are private agreements between groups
of creditors and debtors. A peculiar example has been given by Mann in BYIL, XXXV
(1959), pp. 50–51. See also three examples of the past in Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht, XXVI (1964), p. 62, notes 193–194.
9 Ibid., pp. 61 et seq.
10 Examples ibid., pp. 112 ff.
11 ICJ Reports 1956, pp. 77 ff.
570 chapter seventeen

tribunal is competent in disputes involving private parties. And then it is

difcult to draw the borderline to private arbitration – indeed, there is no
clear distinction as far as ad hoc tribunals are concerned. The weight to be
attached to a reference to such a tribunal will then depend upon how clearly
it distinguishes itself from private arbitration.12 However, one of the criteria
in this respect, besides the origin of the court and the admission of private
parties, is precisely the law it applies.

17.4 National courts13

National courts apply their own national law. They will apply foreign law if their
own conict of laws refers to such a law, or if the parties have done so within
the limits set by the applicable law (usually its own conict of laws). If national
courts assume jurisdiction in matters which are governed by the internal law of
an IGO or by international law, they will no doubt apply that law.14 However,
the present writer is not aware of any case where a national court accepted
jurisdiction in a case that was exclusively governed by the internal law of an
IGO.15 Normally, national courts apply internal law of IGOs only on prejudi-
cial issues. In one case as the other, it is submitted that even the application of
non-national law must be within the framework of the conict of laws of the
State concerned.
If the parties refer disputes to national courts, the presumption must be that
they intended the relationship to be governed by national law, unless there are
circumstances pointing to some other law. More specically, the relationship
is governed by the law to which the conict of laws of the State concerned
(the lex fori ) refers. An express reference to the courts of a particular country
may even reect an intention of the parties that the substantive law of that

12 Compare, for example, the procedure of the International Bank to that of the International
Chamber of Commerce or the American Arbitration Association.
13 Se also Jenks, op. cit. pp. 18 and 228–241, and Detter, Law Making by International
Organizations, Stockholm 1965, p. 179.
14 Detter, op. cit. p. 179, appears to take a different view: “. . . a municipal Court would
probably apply municipal law for primary matters in analogy with the rules on l’Etat
commerçant. But as far as operative acts are concerned a municipal Court may have to
use some form of international law. An international tribunal would probably always have
to apply some form of international law.” Primary matters appear to envisage primarily
internal matters, cf. ibid., p. 42.
15 The closest examples are the claims by IGOs against former ofcials for reimbursement
of overpayment of salary discussed above.
 relationship between competent courts and applicable law 571

country shall be applied.16 However, the latter may be less likely in cases
involving an IGO, if the reference to the national courts became necessary
because arbitration was not permitted in the country concerned or because
the other party was unwilling to accept reference to the internal court of the
organization.17
Moreover, the question arises if the national court may accept a choice of
law other than a particular national law, if the parties have agreed to e.g. general
principles of law or international law to be applied to the dispute concerned.
If proceedings are brought before a national court in a State party to the 1980
Rome (EEC) Convention on the Law Applicable to Contractual Obligations,18
the parties’ choice of law is limited to the law of a State, excluding the choice or
application of non-national systems of law, such as the lex mercatoria or general
principles of law.19 However, Article 3 (2) of the proposed “Rome I” Regulation
of the European Community20 gives the parties a wider scope of choice:
The parties may also choose as the applicable law the principles and rules of the
substantive law of contract recognised internationally or in the Community.
However, questions relating to matters governed by such principles or rules
which are not expressly settled by them shall be governed by the general principles
underlying them or, failing such principles, in accordance with the law applicable
in the absence of a choice under this Regulation.
The Commission comments on the provisions on freedom of choice in the fol-
lowing way:
[. . .] paragraph 2 authorises the parties to choose as the applicable law a non-
State body of law. The form of words used would authorise the choice of the
UNIDROIT principles, the Principles of European Contract Law or a possible future
optional Community instrument, while excluding the lex mercatoria, which is not pre-
cise enough, or private codications not adequately recognised by the international

16 Gaarder: Innføring i internasjonal privatrett 2nd ed., Oslo 1990, p. 19, speaking in the
context of two private parties, cf. Mann, The Proper Law of Contracts Concluded by
International Persons, in BYIL XXXV (1959).
17 Mr. Knapp of the Legal Ofce of ILO to the present writer. von Welck: Die privatre-
chtlichen Verträge der Europäischen Gemeinschaften mit Angehörigen dritter Staaten,
Göttingen 1967, p. 71, on the other hand, considers quite generally choice of courts as
evidence of choice of law.
18 In force from 1 April 1991. See also Art. 17 of the Inter-American Convention on the
Law Applicable to International Contracts, 17 March 1994, drawn up under the auspices
of the OAS, in 33 ILM 732 (1994), which denes “law” as the law current in a State,
however, Art. 10 stipulates that “the guidelines, customs, and principles of international
commercial law as well as commercial usage and practices generally accepted shall apply
in order to discharge the requirements of justice and equity in the particular case”.
19 Dicey, Morris & Collins, The Conict of Laws, 14th ed., London 2006, Vol. 2, pp.
1567–8.
20 Cf. Doc. COM (2005) 650 nal, 15 December 2005.
572 chapter seventeen

community. Like Article 7(2) of the Vienna Convention on the international sale
of goods, the text shows what action should be taken when certain aspects of the
law of contract are not expressly settled by the relevant body of non-State law.
The “Rome II” Regulation on the law applicable to non-contractual obliga-
tions21 stipulates in Article 14 that the parties’ choice of law should be expressed
or demonstrated with reasonable certainty by the circumstances of the case,
but should presumably, by its lack of reference to any other system of law, be
understood as a reference to the law of a State. These instruments are without
prejudice to mandatory provisions of domestic or community law.

17.5 Arbitral tribunals

Most jurisdictional clauses refer to arbitration, i.e. to a body which is neither an

organ of the organization, nor of any State.
The question of the law to be applied by arbitral tribunals is a much dis-
puted subject, where decisive rules are not easily discernible.22 In some cases
the reference is to an established system of arbitration: thus UNICEF and
OAS frequently refer to the rules of the American Arbitration Association,
FAO refers mostly to the rules of the International Chamber of Commerce or,
in the United States, to the American Arbitration Association.23 In other cases
the reference is to an ad hoc arbitration, independent of any established system.
Even the established rules of arbitration – such as those of the International
Chamber of Commerce, the Inter-American Commercial Arbitration Com-
mission and the American Arbitration Association, to which many contracts

21 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11

July 2007, OJ L 199, 31 July 2007 pp. 40 ff., which shall apply from 11 January 2009, cf.
Article 32.
22 See, generally, Domke on Commercial Arbitration, revised ed. by G.M. Wilner, Callagan
1990; J.M. Lookofsky: Transnational Litigation and Commercial Arbitration, Copenha-
gen 1992; H.P. Lowry, International Commercial Law and Arbitration, Boston 1991; F.P.
Davidson: International Commercial Arbitration, Edinburgh 1991; F.A. Mann: Notes and
comments on cases in international law, commercial law, and arbitration, Oxford 1992;
H.A. Grigera Naón: Choice-of-law Problems in International Commercial Arbitration,
Tübingen 1992, A. Redfern, Law and Practice of International Commercial Arbitration,
London 1991.
23 The general conditions of FAOs requests for bids and purchase orders contain the fol-
lowing arbitration clause:
“All disputes arising in connection with the present contract shall be nally settled under
the Rules of Conciliation and Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with the Rules.
If the present contract is performed in the United States, all disputed arising in con-
nection therewith shall be nally settled by arbitration conducted in accordance with the
rules of the American Arbitration Association.”
 relationship between competent courts and applicable law 573

of IGOs refer – contain no provisions on applicable law. Nor is it possible to

draw upon practice to any great extent, because arbitral awards are usually
not rendered public and do not always give as full reasons as judgments do;
indeed, Anglo-Saxon awards do not give reasons at all.
If no provision has been made on applicable law, an arbitral tribunal
may apply a particular national law, or general principles of law,24 or simply
international trade customs and the sense of justice of the arbitrator. If the
tribunal applies a particular national law, it may select this according to the
conict of laws of the country where it sits, or of the country with which
the legal relationship is most closely connected, or according to general prin-
ciples of conict of laws. In either case, the place where the arbitration takes
place is an important connecting factor to be taken into account, together
with the usual connecting factors of the contract.
Even the European Convention on International Commercial Arbitration
of 21 April 1961 was unable to be much more specic than this, when it
provided:
1. The parties shall be free to determine, by agreement, the law to be applied by
the arbitrators to the substance of the dispute. Failing any indication by the
parties as to the applicable law, the arbitrators shall apply the proper law under
the rule of conict that the arbitrators deem applicable. In both cases the arbi-
trators shall take account of the terms of the contract and trade usages.
2. The arbitrators shall act as amiables compositeurs if the parties so decide and if
they may do so under the law applicable to the arbitration.25
Later, in 1967, P. Sanders, a leading practitioner on international commercial
arbitration, stated the position in these terms:
What international trade is looking for are decisions based on the contract, inter-
national trade usages and principles common to the law of civilized nations. All
those, engaged in drafting international contracts, know how difcult it is to make
parties agree on a specic national law to which their contract should be submit-
ted. International trade is not thinking in national terms, but on international
lines. International arbitration seems more qualied to develop such a new lex
mercatorum, international in essence, than national judges are.26
The main reason why IGOs prefer arbitration is that they usually do not want
to give up their immunity and submit to the courts of any State. However, many
IGOs – including the United Nations, but not consistently all the specialized

24 According to F.A. Mann, op. cit., arbitral tribunals in England must apply a particular
legal system.
25 Art. VII, UNTS, Vol. 484, p. 374.
26 “Recent Developments in International Commercial Arbitration”, APITOTEEION
IIANEIIITHMION EAONIKH (Saloniki) XVIII (1967), pp. 633–643.
574 chapter seventeen

agencies – include arbitration clauses in their contracts also because they want
to secure the application of the terms of the contract supplemented by general
principles of law, rather than any particular national law, for the reasons set
forth above. In such cases, the arbitration clause should be interpreted as refer-
ring to general principles of law27 if there are no indications pointing towards
any other law. Such application of general principles of law may be more easily
assumed if the parties have agreed upon an ad hoc arbitral tribunal not designed
to sit in, or otherwise linked to, any particular country – than if they refer dis-
putes to an established system of commercial arbitration in a given country28
or provide that the court shall sit in a given place. In some cases the arbitration
clause resembles the clauses included in international treaties,29 and then the
presumption denitely is against national law.
Even if the arbitration clause is interpreted as referring to a particular
system of national law for purposes of interpretation and supplementation,
it must usually be interpreted as designed to avoid the supersession of any
terms of the contract by mandatory national law.

17.6 Internal courts of the organization

In some cases the constitution, regulations or the contracts provide that disputes
with private parties shall be brought before standing or ad hoc internal courts of
the organization (IGO courts).30 Thus contracts concluded by the International
Labour Organisation and the International Institute for the Unication of Pri-
vate Law (UNIDROIT) usually refer disputes to the administrative tribunals of
these organizations.31 Their competence to accept such jurisdiction has been set
forth, by UNIDROIT in its constitution, Article 7 bis, and by ILO in the regula-
tion containing the statue of the tribunal. Similarly, many contracts concluded

27 Cf. the interpretation in this sense of an arbitration clause in the arbitral award of 15
March 1963 in the dispute between Sapphire International Petroleum Ltd. and the National
Iranian Oil Co., as reported by Verdross in Zeitschrift für Rechtsvergleichung, 1965, at
p. 133 in initio.
28 FAO’s reference to the American Arbitration Association for contracts to be performed
in the US can hardly be interpreted differently from its reference to the International
Chamber of Commerce.
29 Cf. Section 7.04 (c) and ( j) – but see ( k) – of the Loan Regulations No. 4 of the Interna-
tional Bank, cf. also Section 7.01.
30 On these, see above.
31 Art. 7 bis of the Statute (constitution) of UNIDROIT was amended in 1968 to require
that the Tribunal’s competence must have “been expressly recognized by the parties to
the contract giving rise to the dispute.” However, this is in fact not done, and there has
been no case before the Tribunal.
 relationship between competent courts and applicable law 575

earlier by the Council of Europe referred disputes to an administrative court of

arbitration to be set up ad hoc by that organization.32 The European Commu-
nity usually refers contractual disputes to the European Court of Justice, which
has been expressly authorized in the constitution to accept such jurisdiction.33
Moreover, the constitutions of the European Communities confer exclusive
competence upon the Court in respect of non-contractual liability for ofcial
acts. However, all of these provisions have been little used or not at all.34
The standing tribunals of ILO, UNIDROIT and the European Commu-
nities are competent both in internal disputes with ofcials and in external
disputes arising out of contracts with third parties if these latter contain a
reference to the tribunal. The relevant provisions of the European Com-
munity speak in this latter context of a clause compromissoire, but this does not
mean that the Court shall act as a court of arbitration in the sense that it
may disregard the law and decide the case ex aequo et bono,35 at least not if the
parties have not agreed to authorize it to do so.
The UNIDROIT administrative tribunal, on the other hand, may alterna-
tively decide the case ex aequo et bono if both parties agree. This is expressly
stated in Article 7 bis (3) of the UNIDROIT constitution, which provides that
the Tribunal shall apply “the provisions of the Statute and of the Regulations
as well as the general principles of law. It may also decide ex aequo et bono when
such power has been given to it by an agreement between the parties.”
According to this provision, the tribunal shall apply the internal law of the
organization, as supplemented by general principles of law, even to external
disputes.
The constitutions of the European Community and EURATOM also
contain provisions on applicable law. These have been quoted and discussed
above. They refer, in respect of non-contractual liability for ofcial acts, to
the common principles of the law of the member States, which in fact largely
coincide with the internal law of the organization, considering that the con-
stitution and most regulations of the Communities become part of the law
of the member States. In respect of contractual liability the constitutional
provisions conform to general principles of conict of laws, inasmuch as they

32 See for example Art. XIX of the Cahier and the similar provisions in para. 11 of the
model contract with experts and the last article of printing contracts. Under Rule no. 481
issued by the Secretary General of the Council, disputes shall be settled by an Arbitration
Board set up by the parties in common.
33 EC Art. 238, cf. also EURATOM Art. 153.
34 Smit and Herzog: The Law of the European Community, New York 2005, lists only two
cases until 1996.
35 This has been pointed out by the Legal Adviser of EURATOM in a letter to the Court
of 11 April 1967.
576 chapter seventeen

in fact merely refer to the conict of laws (in the wider sense) of the lex fori.
The conict of laws of the European Court of Justice will of course in this
respect have to rely largely on the general principles of the conict of laws
of the member States, which no doubt would to a great extent apply national
law.36 It is recalled in this connection that the European Community and
EURATOM in their regulations and contracts confer jurisdiction upon the
European Court of Justice, but provide that it shall apply national law. On
the other hand, the European Court of Justice will in many cases apply the
internal law of the organization because of the nature of the legal relationship
concerned, for example because it falls under the community’s supranational
jurisdiction, or because it relates to other typical operations of the Community
acting as an IGO, or because the other party must be considered to have
tacitly accepted the conditions laid down by the Community in its regulations.
These principles will no doubt be applied by national courts, too, as part of
their conicts law (in the wider sense). The constitutional provisions discussed
above create no difference in the law to be applied by the European Court
of Justice and national courts, because the rule is the same for both courts in
respect of contracts, and because the European Court of Justice has exclusive
competence in respect of non-contractual liability for ofcial acts.
The other organizations, which have no constitutional provision on appli-
cable law, have an inherent power to enact law to be applied by their courts,
including conict of laws.37 However, they are not known to have done so.
And, as already stated, there is no known court practice either. In these cir-
cumstances it is still an open question what law they will apply.
They must of course apply any relevant provisions of the constitution of the
organization – which is the supreme law for any internal court, as expressly
recognized in Article 7 bis of the UNIDROIT constitution quoted above – and
of the statute of the court. – For the rest they may – in the absence of any
indication as to the proper law – apply either general principles of law or the
(remaining) internal law of the organization or some particular system of law.
The latter would have to be selected in accordance with the general principles
of conict of laws of the member States, to the extent that no relevant rules
or principles can be deduced from the constitution, the regulations or the
practice of the organization. This conict of laws of the organization may
refer to national law or to the law of the organization.
The choice between these three solutions may easily go different ways in
different organizations.

36 Above, chapter 17.3.

37 In this sense also Jenks, op. cit. p. 17.
 relationship between competent courts and applicable law 577

The submission to an IGO court might of course be interpreted, to the

same extent as a submission to arbitration, as a reection of an intention of
the parties to avoid any particular national law, or at least any supersession
of the terms of the contract by mandatory national law.
Much will depend upon the policy of the organization concerned, even if
this is not laid down in regulations which are binding upon the court.
It is still an open question whether the ILO Administrative Tribunal, on
the other hand, will conform to the policy laid down by UNIDROIT, in view
of the similarity of the provisions and of the types of disputes concerned,
by preferring general principles of law (per se or as part of the internal law
of the organization) to national law.38 The Council of Europe has found a
both easier and more radical way out, by providing in Rule no. 481 issued by
the Secretary-General with the approval of the Committee of Ministers as
provided in Article 21 of its General Agreement on Privileges and Immuni-
ties, that “if the parties do not agree upon the law applicable the Board or,
where appropriate, the arbitrator shall decide ex aequo et bono having regard
to the general principles of law and to commercial usage”.

17.7 No jurisdictional clause in the contract

We have so far considered jurisdictional clauses contained in the contract. A

subsequent agreement between the parties is not quite the same, because, theo-
retically, the applicable law was established already at the time of the conclu-
sion of the contract. However, if obviously this was not done in a manner that
a court can discern, the competent court must be permitted to attach weight
to the fact that even at this late stage the parties know that a national court is
more used, and will be more likely to apply national law, than a court of arbi-
tration or an IGO court, not to mention an international court. It is then really
immaterial whether this is viewed as a fact that can throw light upon the original
intention of the parties or upon a subsequent decision.
In the absence of any jurisdictional clause, action can be taken unilaterally
only before national courts, and then only if the organization itself sues or
waives its immunity. In either case, the organization must be considered to
have accepted national law if there are no circumstances pointing towards
another legal system.

38 Cf. Jenks, op. cit. p. 244. Jenks, as Deputy Director-General of the ILO, stated that the
ILO Administrative Tribunal “will probably apply general principles of law”. He may not
necessarily have intended thereby to reject the internal law of the organization, which in
fact is the same, because he may just have disregarded the possibility of relevant regula-
tions and constitutional provisions which did not exist in the ILO.
 CHAPTER EIGHTEEN

CONCLUSIONS

18.1 Applicable provisions and general principles of conflict of

laws

As demonstrated there are so far only a few scattered provisions on the conict
of laws of IGOs in national statutes, in international conventions on conict
of laws, in constitutions of IGOs and in their conventions on privileges and
immunities. In some cases, however, the organizations adopt themselves the
necessary substantive law in the form of regulations. These become directly
binding upon the parties in those cases where the legal relationship is governed
by the internal law of the organization.1 But in most cases the “regulations”
are intended merely as “general conditions”, which become binding only when
they have been accepted by both parties as part of their contract (general condi-
tions). Some regulations, contracts and arbitration agreements contain clauses
on applicable law. However, most of them do not. On the other hand, most
regulations and most contracts contain jurisdictional clauses, and these may
offer some guidance as to the intention of the parties.
However, in many cases there are no provisions and no evidence of an
intention. The parties may not have thought of the problem. Or they may have
considered it too difcult to draw up a satisfactory clause, or not worthwhile
to do so. Or they may simply have felt that they could not agree.
In such cases the question of applicable law depends in principle upon
the conict of laws of the lex fori. This must in the case of internal courts of
IGOs, ad hoc arbitral tribunals and international courts usually be drawn from
general principles of conict of laws subject to a natural tendency of such
courts towards general principles of (substantive) law. Even national courts
rely to a great extent upon general principles of conict of laws. However,
in respect of the basic choice between national law and other legal systems,

1 Example: Staff Regulations of the European Development Fund.

580 chapter eighteen

the general principles of conict of laws are loose or non-existent. As for the
special problems of IGOs, neither the provisions, nor the practice of IGOs in
the absence of provisions, offer any uniform picture from which it is possible
to discern generally accepted conict rules upon which the competent courts
can draw, with a few exceptions.

18.2 Internal relations

The most important exceptions concerns relations between the organization

and its organs, including its ofcials and other individual members of its organs
acting in that capacity. As demonstrated above in chapter 5, these parties are,
according to established customary law, under the inherent organic jurisdic-
tion of the organization, and relations with them are governed exclusively by
the internal law of the organization. The same is true of relations between the
organization and other individuals who are subject to its extended jurisdiction,
or sovereign powers, as far as relations involving exercise of such jurisdiction
is concerned. As pointed out above in chapter 6, there are a few organizations
upon which member States, or even non-member States, have conferred territo-
rial, personal or supranational jurisdiction. IGOs may even unilaterally assume
jurisdiction over territory or persons that are not subject to the jurisdiction
of any State, or in respects in which they are not subject to State jurisdiction,
although there are few examples so far. These are not merely general principles
of conict of laws of the lex fori. They are rules of public international law
which are binding upon States (although, in respect of territorial and personal
jurisdiction there has not yet been enough time to develop customary law for
IGOs, so here it is necessary to rely upon analogy from the law applicable to
States). In other words, States are bound to have their courts apply the law of
the organization in these cases, to the extent that it does not conict with sub-
stantive rules of international law.

18.3 External relations: the four alternatives

In other elds, no rm rules can be laid down. The choice of law depends, not
only upon the nature of the legal relationship concerned, but also upon which
organization is involved and upon the type of court before which the question
arises and its particular conict of laws. And the choice is not only between
different systems of national law, or between the two types of legal systems into
which traditionally all law is divided; national law and international law. The
choice is between four different categories of legal systems:
 conclusions 581

(a) National law. According to the traditional view there is a presump-

tion for the application of national law to external relations of IGOs with
private parties. It may be noted in this connection that the national law of
the member States of the European Community includes the constitution
and regulations and other binding secondary legislation (acquis communautaire)
of the organization. Similarly, the Andean Community Law also comprises
declarations and decisions in addition to the constitution.2 We have seen that
the application of national law to legal relationships involving IGOs does not
give rise to such serious difculties as has been thought would arise out of
references in the applicable conict of laws to the law of the organization.
In most cases where the conict of laws of the lex fori refers to the law of
the organization, the organization has a relevant law of its own, and this can
and must be applied. Otherwise, and in certain other cases, it may be neces-
sary or appropriate to modify the regular conict rules, but this can easily be
done within the framework of the lex fori in the great majority of the practical
cases, when we move in a eld and a country which admits the individualizing
method, the presumed intention of the parties or some other exible conicts
method. Whenever there is a difference in the conicts rules relating to rela-
tions between two private parties and those relating to relations between a
State and a private party, the latter usually provide the better analogy.
On the other hand, we have seen that here is, for other reasons, a general
trend away from national law in international relations. This holds true of
relations between States inter se and between States and foreign private parties,
and even of certain relations between private parties in different countries.
There is no reason why IGOs, as international bodies whose external relations
are always with “foreign” parties, should be lagging behind in the movement
towards some droit anational in such cases in lieu of national law. On the con-
trary, they are at the spearhead of that movement.
However, there are major divergences in the doctrine, not only on the
extent to which national law should be avoided, but also on the question of
what law should be substituted for it. Indeed, there is some confusion on what
the alternatives are and on the relationship between them. There are in fact
three possibilities, all made up largely from general principles of law, which,
in the eld of commercial and other relations of private law nature means
largely general principles of national law.
(b) The internal law of the organization has been discussed above. It is not part
of international law, as most writers appear to have assumed. It is a series of
distinct legal systems for each organization, comparable in most respects to

2 Art. 17 of the Cartagena Agreement. Cf. also Arts. 20, 40 and 42 of Mercosur.
582 chapter eighteen

national, not to public international, law, also with regard to external bind-
ing effects. It comprises constitutional and administrative law, and sometimes
also other eld of law comprised within a system of national law. As already
pointed out, it governs the internal relations of the organization, and is also
applicable to external relations when the applicable conict rules refer to the
law of the organization. This law thus has its proper characteristics – and
its proper place in some relations, where it cannot be replaced by any other
law.
(c) International law and general principles of law, on the other hand, are
more easily interchangeable. Most writers on IGOs seem to prefer international
law, but some reject that law in relation to private parties.
However, it has been pointed out that international law in the traditional
sense is not suitable for normal relations with private parties – outside those
exceptional cases where the organization has conferred upon the other party
international personality for the purposes of the relations concerned. What
should really be applied is general principles of law and the jus cogens derived
from these. In these circumstances, it would create unnecessary confusion to
expand the concept of international law to take in such relations.
(d) In most cases where we want to avoid a particular national law, and
where the internal law of the organization is not appropriate, we must thus
apply general principles of law. In the case of commercial relations, torts and
other relations of a private law nature, this largely means general principles
of national law. The general principles of law must be recognized as an
independent system of law, distinct from both international and national law.
However, its contents, including jus cogens, would be substantially the same
even if it were considered part of international law, as most writers on the
subject of the conict of laws of IGOs do.

18.4 Substantive presumptions

It is not possible at the present stage to lay down rm rules, or even generally rec-
ognized guiding principles, governing the choice between these systems. Quite
apart from the confusion in the doctrine between international law, internal law
of IGOs and general principles of law, conict of laws in itself is not a precise
eld of law, at least not as far as contracts are concerned. And the application
of conict of laws to IGOs is a novel problem, where the situation is even more
uid. However, the major factor of uncertainty is the rapid evolution that is tak-
ing place with regard to international commercial relations generally (i.e. quite
apart from the development of IGOs) – and the period of transition in which
the law applied to them is at present. The traditional presumption in favour of
 conclusions 583

national law is dwindling and at the present stage no general presumption may
prevail in favour of one law or the other as far as IGOs is concerned.
All that can be offered therefore is tentative, temporary presumptions, which
may be of some assistance in the concrete evaluation of each case which
must be relied upon in the rst place. This is done with all reservations due
to the scarcity of accessible practice and to the divergences in the practice
of the various organizations.
There is still a presumption in favour of national law in many special elds,
such as real estate (lex rei sitae); copyright, etc.3 However there is no such gen-
eral presumption in the law of contracts, which is the eld where problems
of conict of laws are of the greatest practical importance, other than that
the greatest number of contracts are not subjected to private national law.
As pointed out there is a presumption in favour of the law of the organiza-
tion in certain relations which are so closely connected with its organization
and typical functions that it is natural to submit them to the constitution of
the organization as the supreme law and to any regulations adopted by the
organization as binding upon the other party. But it is a rather open question
how far this presumption extends. Thus it is doubtful whether an analogy
can generally be drawn from the eld of application of the French system
of contrats administratifs.
In other relations closely connected with the typical functions of the orga-
nization or of great importance to it, there may now be a presumption for
general principles of law, while in a daily incidental transaction of a com-
mercial nature there may still be a presumption for national law.4 However,
these presumptions are hardly strong enough to supersede presumptions
related to competent courts, cf. below. Indeed, it must be said with regard to
the basic borderline between national law and general principles of law that
no denite guiding general principle can be offered, any more than when the
similar question arises with regard to States.

3 Cf. above. In this sense also Batiffol, Problèmes des contrats privés internationaux, Paris
1961–62, p. 105, who also mentions torts. Further, reference is made to chapters 12–25
of Jenks, The proper law of International Organisations, London 1962.
4 This basic distinction has been made by Batiffol, op. cit., p. 466. However, he does not
make it clear whether he really bases his views upon that distinction or upon a general
presumption in favour of international law, subject to the right of the parties to submit
to national law. Furthermore, he is one of the many writers who refer to international
law rather than to general principles of law. See, however, van Hecke, supra chapter 12,
note 2.
584 chapter eighteen

18.5 Jurisdictional presumptions

When such special (but direct) presumptions are not sufciently evident, the
choice depends, as submitted in chapter 17, to a large extent upon in what type
of court the dispute is brought. A national court will normally apply national
law. An arbitral tribunal will often prefer general principles of law, especially
if it is not set up under a national system of arbitration or otherwise linked
to a particular country. An internal court of an IGO may have a tendency to
apply the internal law of the organization or general principles of law, which
in practice amount to the same if the organization has enacted no relevant
regulations, except that the European Community has express constitutional
provisions apparently favouring the application of national law to contracts. In
most cases the parties will have been aware of these tendencies to the extent
that their reference of the dispute to a particular type of court will reect an
intention on their part. In other cases the tendency is merely a fact that lawyers
have to take into account. In one case as in the other it is submitted that there
is a presumption for national law in national courts. In ad hoc arbitral tribunals
there is a presumption for general principles of law, if a policy in this sense is
part of the reasons why the organization prefers arbitration to national courts
and there is no indication that the other contracting party held a different view.
The same may be true of internal IGO courts (other than the European Court
of Justice in matter of contracts), except that the presumption may then alter-
natively be for the internal law of the organization. However, these presump-
tions do not extend to all types of disputes; cf. what has been said above about
special substantive presumptions.

18.6 Tentative nature of presumptions

Although none of the presumptions listed above is general, they might com-
bined appear to cover most cases that would arise, particularly since most
contracts contain a jurisdictional clause. However, this does not mean that
the law is clear, because in many cases several of these presumptions may be
applicable, or one may have to evaluate them as against other circumstances
of the particular relationship concerned that point towards another legal
system. In such cases it is submitted as a general guiding principle that the cir-
cumstances of each case take precedence over general substantive and juris-
dictional presumptions.
This is not very precise, and perhaps not even very clear. However, conict
of laws is not a precise branch of law. This is even more so turning to conict
of laws of IGOs, rst because it is still a rather unfamiliar eld, in which there
 conclusions 585

has not yet been developed as much written law and practice as in relations
between private parties, and second, because there appears to be as many, if
not more, differences in the practice and outlook of the various organizations
as there is between the conict of laws of different States. Indeed, the conict
of laws applicable to IGOs is such a novel and dynamic eld of conict of
laws that it would be unrealistic – and even deceptive – to attempt to lay
down precise rules for genuinely external relations at the present stage. The
main value of these legal presumptions is therefore to assist in legal assess-
ment, e.g. in drafting contract provisions and in safeguarding accountability
through adequate mechanisms for dispute resolution.
 TABLE OF CASES
Permanent Court of International Justice
Certain German Interests in Polish Upper
Silesia 326 n. 249
Rights of Minorities in Upper Silesia
325 n. 247, 331 n. 267
Serbian Loans 25, 149, 161 n. 165,
327 n. 255, 457 n. 28, 492 n. 12, 502 n. 47,
520 n. 41, 523 n. 41, 526 n. 3, 533 n. 19
Brazilian Loans 325–327, 329, 331 n. 265,
348 n. 309
Exchange of Greek and Turkish
Populations 10, 101, 115 n. 28, 213, 250,
280
Polish Postal Service in Danzig 185 n. 6
Jurisdiction of the European Commission of
the Danube 97 n. 56, 360 n. 7
Interpretation of the Greco-Turkish
Agreement of 1 December 1926 336 n. 278
ICJ
Ethiopia and Liberia v. South Africa 320
n. 229
Legality of Use of Force (Serbia and
Montenegro v. France) 426, 426 n. 40
Certain Norwegian Loans (France v.
Norway) 327, 327 nn. 254, 256,
328 n. 258
Legal Consequences of the Construction of a
Wall in the Occupied Palestinian
Territory 411 n. 33
Legality of the Threat or Use of Nuclear
Weapons 411, 411 n. 32
Legality of the Use by a State of Nuclear
Weapons in Armed Conicts 411 n. 31
Certain Expenses of the United Nations 66
n. 5, 69, 118, 252 n. 27, 256 n. 45, 291
n. 143, 335 nn. 274–275, 350 n. 313, 362,
365, 372 n. 40, 376, 376 n. 47, 393 n. 99,
412, 412 n. 37, 413 n. 39
Constitution of the Maritime Safety
Committee of the Inter-Governmental
Maritime Consultative Organization 341
n. 290
Judgments of the Administrative Tribunal
of the ILO upon Complaints Made
against UNESCO 148 n. 118, 252 n. 28,
302, 312 n. 208, 336 n. 276, 339, 341,
569
Effect of Awards of Compensation Made by
the United Nations Administrative
Tribunal 118, 123 n. 45, 148 n. 118. 155
n. 142, 250, 256 n. 45, 300
Reparation for Injuries Suffered in the
Service of the United Nations 29, 53
n. 47, 63 n. 74, 66 n. 3, 129, 138 n. 80,
140, 380, 405 n. 17, 525
On the interpretation of the Agreement of
25 March 1951 between the WHO and
Egypt 417
ECHR/ECtHR
M & Co. v. Germany 428 n. 46
Waite and Kennedy v. Germany 145
Bosphorus Hava Yollari v. Ireland
309 n. 193
Behrami and Behrami v. France 191 n. 29,
425 n. 37
Saramati v. France, Germany and
Norway 191 n. 29, 425 n. 37
ECJ/Court of rst instance
Vandervyvere v. Parlement Européen 444
n. 11
Vanhove c. CECA 443 n. 10
Firma E. Kampfmeyer and Others v.
CEE 470 n. 30
Société kledingverkoopbedrijf de Geus en
Uitdenbogerd contre (1) Société de droit
allemand Robert Bosch GmbH, et (2)
Société Anonyme Maatschappij tot
voortzetting van de zaken der rma Willem
van Rijn 344 n. 297
N.V. Algemeene Transport- en expeditie
onderneming van Gend & Loos contre
Administration scale Néerlandaise 344
n. 297
588 table of cases
Da Costa en Schaake N.V. Jacob Meijer N.V.
Hoechst-Holland N.V. contre
Administration scale Néerlandaise 344
n. 297
C-141/78: France v. United Kingdom 286
n. 129
C-314/85 Foto-Frost/Hauptzollamt
Lübeck-Ost 281 n. 121
Case 302/87, Parliament v. Council 290 n. 140
Case 70/88, Parliament v. Council 290
n. 140
Case C-327/91 France v. Commission 423
n. 28
C-25/94 Commission v. Council 409 n. 26
C-388/95: Belgium v. Spain 286 n. 129
Case C-149/96 Portugal v. Council xiv n. 7
Case T-228/02, Organisation des
Mojahedines du peuple d’Iran v. Council
of the European Union xx n. 25
Case C-160/03, Spain v Eurojust 257 n. 50
Case C-176/03 Commission v. Council 290
n. 140
National judgments
Avenol v. Avenol 210 n. 79, 268 n. 84
Proli v. International Institute of
Agriculture 28, 44 n. 20, 49 n. 34, 133
n. 66, 163, 169, 262, 314 n. 213, 361, 451
n. 7, 532
Soucheray et al. v. Corps of Engineers of the
United States Army et al. 11 n. 20
Branno v. Ministry of War 42 n 17, 49
n. 34, 169, 445, 445 n. 16
Mazzanti v. Headquarters Allied Forces
Southern Europe 49 n. 34, 169
Godman v. Winterton and Others 53 n. 49
Calvaruso v. Byington 86
Mazzucchi v. American Consulate 87, 89
Epoux Prevostchikoff-Germeau v.
Canada 87
Little v. Riccio and Fischer 88 n. 22
Kazmann v. Russian Trade Delegation in
Italy 88 n. 22, 89 n. 26
Slomnitzky v. Trade Delegation of the
U.S.S.R. in Italy 89 n. 27
De Semenoff v. Norwegian State
Railways 89 n. 28
Hinton v. Devine 147 n. 111
Chemidlin v. International Bureau of Weights
and Measures 158 n. 150, 164,
314 n. 213
UN v. B and Others 161 n. 163
Diaz Diaz v. United Nations Economic
Commission for Latin America 164, 307
n. 188
Schuster v. United Nations Information
Centre, Buenos Aires 164, 167
Goddard v. Gray 273 n. 101
Charr c. Hasim Ullasahim 273 n. 101
Ehem. M. v. Ehefr. M 276 n. 109
Hewitt v. Speyer et al. 343 n. 293
Bánská a Hutni Spolecnost, národni podnik v.
Hahn et al. 343 n. 293
Chapman v. Commissioner of Internal
Revenue 369 n. 31
Arab Monetary Fund v. Hashim 370 n. 35
Baccus S.R.L. v. Servicio Nacional del
Trigo 541 n. 45
UN v. Canada Asiatic Lines Ltd. 543
United Nations v. B and others 550
CECA c. faillite des “Acciaierie e Ferriere di
Bogaro”, S.p.A. 534 n. 20
Sakharoff c. Représentation Commerciale de
l’U.R.S.S. 89 nn. 23, 26
Rosati c. Rappresentanza Commerciale
dell’U.R.S.S. 86
Guatemala v SINCAFC 447, 447 n. 20
Reg. v. Bow Street Magistrate Ex parte
Pinochet (No. 3) 277 n. 110
Arbitration awards
Casablanca Deserters (the Permanent
Court of Arbitration, the Hague 22 May
1909) 84
UNESCO v France (see p. 174 in the proof text)
UNESCO (constitution) case, Special
Arbitral Tribunal, 19 September 1949, (see
proof text pp. 103, 142)
Pallavicini v. the Czechoslovak State 256
n. 45
Pablo Najera (France) v. Mexico 306, 383
n. 75
UNRWA v. Iraq Clothing Co., 568 n. 3
Administrative tribunals
The Monod case (League of Nations
1925) 158 n. 152
di Palma Castiglione v. ILO 28 n. 60
Schumann v. League of Nations 161 n. 162
Perasse v. League of Nations 161 n. 162,
533 n. 17
De Merode v. World Bank, (ILO
Administrative Tribunal, Judgment
No. 61) 156
Kaplan v. Secretary-General of the United
Nations (UNAT judgment No. 19) 142
n. 100
Sokolow v. Secretary-General of the United
Nations (UNAT judgment No. 23) 142
n. 100
 INDEX
Administrative law
IGOs, of, 532–534
Administrative tribunals
adjudication by, 120
staff, appointment and remuneration, 150
African Union
Court of Justice, establishment of, 247
Aircraft
international registration, 194–195
jurisdiction over, 100–101, 103
territorial, 192–197
territorial connecting factors, 555–557
Andean Community
legal system, 247
Antarctica
claims to territory, 202–203, 206
common heritage of mankind, as, 205
global commons, as, 202–207
international obligations, 204–205
internationalization, proposals for, 205
marine living resources, conservation of,
204
mineral resource activities, regulation of,
204
Treaty body, decisions of, 222
Arbitration
applicable law, clauses for, 485
failure to deliver commodities, award on,
503–505
independent tribunals and Permanent
Court of International Justice
compared, 305–306
non-co-operation in, 504
non-member States, decisions binding on,
234
tribunal
applicable law, 571–573
lex fori governing, 568
Arctic
national territory in, 202
Arctic Council
limits of IGOs, falling below, 39–40
Attributed powers
doctrine of, 66
Breach of contract
rate of interest on reparation, 504–505
Catholic Church
Holy See, jurisdiction of, 95–96
Central Commission for the Navigation on
the Rhine
members, 9
oldest intergovernmental organization,
as, 8
Coimperium
indirect, 190
territorial jurisdiction, 190–191
Condominium
indirect, 190
territorial jurisdiction, 190–191
Conict of laws
adjustment of rules, 448
applicable law
acceptance of provisions by contracting
party, 475–476
arbitral tribunal, in, 571–573
arbitration agreements, clauses in, 485
conclusions, 579
contract clauses, 479–485
copyright, as to, 463–465
court deciding ex aequa et bono, 481–482
courts, before, 567
deviations from normal practice,
487–488
general international conventions,
462–466
general principles, 480–481, 487
host State, of, 482
IGO constitutions, under, 466–471
IGO regulations and general conditions,
474–479
IGOs, in relation to, 461
Institut de Droit International rules, 486
internal courts, in, 573–576
international courts, in, 569–570
lack of clause, where, 478–479
legislation, 486
lex loci solutionis, 484
590 index
loans, place of issue of, 484
local law, standard forms of contract
implying, 485
mandatory national laws, 476–478
named State, of, 482–483
national courts, in, 570–571
national legislation, 461–462
no jurisdictional clause in contract,
where, 576–577
nuclear damage, liability for, 465–466
organization as party to
convention, 466
privileges and immunities conventions,
471–474
procedural, 567–569
regulatory clauses, 476–478
autonomy of parties, 455–457, 550
development of, 458
discussion of, 459
failure to deliver commodities, award
on, 503–505
rm principles, application to IGOs, 564
general principles, 457–459
general principles, conclusions, 579
individualizing method, 550
international law of IGOs and general
principles, relationship of
binding precedent, international law not
admitting, 520
choice between, 518–522
conclusion, 522–523
contracts, uniformity of, 508
different rules on same subject,
containing, 519
general principles, 510–513
IAEA, contracts of, 509
internal law of IGOs, 514
international law, 513–514
jus cogens, systems with, 521
mandatory national law, 511–512
national law, reasons for avoiding,
507–510
other legal system, general principles as
source of, 515–516
practicability, 510–511
practice, 510–511
problem, 507
sources of general principles, 512
jurisdictional presumptions, 584
law of organization and host State,
between, 170
law of organization, reference to, 527
national laws, choice between,
connecting factors, 528
generally, 525–528
theoretical views, 525
traditional conict law, 526
national laws, inapplicability, 548
no provision for, application of law in case of
court practice, 490
general practice, 490–491
IGO policy, 491
IGO practice, 490
international bank loan agreements,
496–503. See also International Bank
for Reconstruction and Development;
United Nations
majority of cases, in, 489
national courts, supervisory competence
of, 504
non-governmental organizations,
relations with, 491–496. See also
Non-governmental organizations
organic connecting factors. See Organic
connecting factors
personal connecting factors. See Personal
connecting factors
sources of systems of, 457–459
special nature of IGO, special rules
required for, 565–566
substance of, 526
substantive presumptions, 582–583
tentative nature of presumptions, 584–585
territorial connecting factors. See Territorial
connecting factors
Constitutions of IGOs
amendment, 218
applicable law under, 466–471
competent organs, dening, 363
disputes, settlement of, 246–248
drafting, 398–400
internal restrictions in, 365
international courts, reference of disputes
to, 317–319
interpretation of, 29–33, 396–397
law of host country, reference to, 470
legal capacity, deducing, 361
legal personality, provisions for, 357–359
meaning, 33
non-members, relevance to, 384–385
purposes, limiting, 363–364
sovereign and international acts, legal
capacity for, 413–414
State constitutions, equivalent to, 363
substantive limitations, 365
whether international capacities depending
on, 362–371
written, 9
Constitutional law
IGOs, of, 532–534

Consultative organizations
role of, 12
Contract
applicable law, clauses for
court deciding ex aequa et bono, 481–482
general principles, 480–481
host State, of, 482
lex loci solutionis, 484
loans, place of issue of, 484
local law, standard forms of contract
implying, 485
named State, of, 482–483
simple solution of, 479
breach, rate of interest on reparation,
504–505
capacity, 503
failure to deliver commodities, award on,
503–505
IGO and individual, between, 124–125,
446
jurisdictional clause, lack of, 576–577
uniformity, problem of, 508
Contractors
organic jurisdiction over, lack of, 444
Copyright
conicts rules, 463–465
Universal Copyright Convention, 463
Criminal law
lex fori, governed by, 534–535
Customary law
internal law of IGOs, application of,
441–443
Customs union
new trading regime, compensation for, 427
Decisions of IGOs
binding, becoming, 221–223
environment, protection of, 240
majority
all members, binding on, 230–234
States not opting out, binding on,
225–229
member States, binding on, 373
national, international and internal law,
effects on, 236–238
non-member States, binding on, 234–235
organs acting for, of, 542–547
rules as to, 545
Rules of Procedure, 373
sanctions, 220–221
settlement of internal disputes, for,
248–251
soft law, 220
treaties, whether, 235–236
unanimous
index 591
adoption, binding on, 223–225
binding, becoming, 221–223
weighted voting, 241–242
Delegated powers
doctrine of, 66
inherent powers contra, 359–362
inherent powers, versus, 65–70
intergovernmental organizations, of, 29–33
Developing countries
technical assistance to, 364
Disputes
exercise of functions giving rise to, 245
external, 246
law governing, 285
third parties, with, 266
individuals under extended jurisdiction,
with, 279–284
internal, settlement of. See Internal courts;
Settlement of internal disputes
organization and members of ofcials,
between, 245
private individuals, with, under extended
jurisdiction, 279–284
within or between organs, 245
Economic law
internal law of organization, and,
560–564
lex domicilii and lex patria, 558–564
other connecting factors, law of, 562–563
personal connecting factors, 558–559,
563
territorial law of host country, 559–560
Employment
IGOs, relationship with, 442–443
Environment
protection, decisions of IGOs, 240
EURATOM
conict clauses, interpretation, 478
construction works, conditions for,
477–478
contractual liability, 467
goods and services, contracts for, 477
personal liability of servants, 171
settlement of disputes, provision for, 260
European Community
applicable law, provisions on, 466–470
comprehensive jurisdiction, 238, 242
contractual liability, 467
judgment against private individual,
enforcement of, 283–284
judicial power against ofcials of, 267
legal sphere, 366
non-contractual liability, 468
personal liability of servants, 171
592 index

settlement of disputes, provision for, 260 competence in absence of constitutional

Staff Regulations, 370 provisions, 319
European Court of Human Rights compulsory jurisdiction, conferring,
advisory opinions, 252 332–333
disputes in, 299 constitutional provisions, 317–319
European Court of Justice existing courts, reference to, 321
compulsory jurisdiction, scope of, 281 law of organization, limitations arising
establishment of, 299 from, 330–333
extension of competence, 294–296 limitations arising from constitution of
IGOs, judgments relating to activities of, court, 319–330
350 power to refer, 330–332
natural or legal persons, actions by, 280 standing courts, competence ratione
organs, adjudicating disputes between, 290 materiae, 324–330
preliminary ruling by, 282, 343–344 standing courts, competence ratione
European Nuclear Energy Agency personae, 319–324
appeals against decisions of, 282–283 national courts as, 308
establishment of, 299 competence, 314, 316–317
extension of competence, 296–297 declining jurisdiction, 315
European Union extended jurisdiction, disputes arising
Council under, 316
binding decisions of, 223–224 organic jurisdiction, disputes arising
weighted voting, 241–242 under, 313–317
international legal personality, whether types of, 307–308
possessing, 52 External law of IGOs
treaty-making powers, 423 customary, 23
Extended jurisdiction existing literature, 4
comprehensive, 238 source of, 23
constitutional authority, whether requiring, types of, 22
239 External relations with private parties
disputes arising, 245 autonomy of parties, 455–457
reference to national courts, 316 conclusions, 580–582
environment, protection of, 240 conict of laws. See Conict of laws
external subjects of law, over, 266 internal law, application of, 581–582
intergovernmental organizations, of international law, application of, 582
concurrent, 96–97 legal systems, subjection to, 525
scope of, 100 national law
legal basis for, 183, 242–244 application of, 449–450, 566, 581
limited, 244 choice between, 457
meaning, 35 subjection to, 525
prescribed powers for, 183 national versus international law, theory on
regulations contra treaties, 240 Batiffol of, 453–455
special law, 183 Jenks, of, 451–452
stretching, 243 Mann, of, 450
supranational, 238 terminological and substantive
weighted voting, 241–242 divergence, 455
External courts nature of law governing, 526
ad hoc tribunals, 330 types of, 449
disputes between States, competence
limited to, 320 Foreign judgments
IGOs resorting to, 307 internal courts, of, external effects of,
internal courts of other IGOs as, 307, 272–277
309–313 national courts, enforcement by, 273
International Court of Justice as, 308–309 recognition of, 276
international courts as, 308 Free trade area
ad hoc tribunals, 330 new trading regime, compensation for, 427
 index 593

Global commons nature of, 219

Antarctica, 202–207 organizational, and, 219
areas of, 197 intergovernmental organizations, of
high seas, 197–198 functional matters, in, 100
international occupation, 207 internal legislation, 107–117
international sea bed, 199 organizational and functional
meaning, 197 regulations, 107–109
nuclear safeguards, 207 organizational matters, as to, 99–100
outer space, 200–202 representatives of member States, over,
ships in, 193 99
Global organizations internal, 69
types of, 10 internal administration, 117–119
internal judicial power, 120–122
Headquarters agreements meaning, 35, 122
conventions, 210 member States, over, 216
Council of Europe, of, 176 membership. See Membership jurisdiction
IAEA, of, 175 organs and members of organization,
organic jurisdiction, interference with, over, 68, 74
174–176 organs and ofcials, over, 366
UNESCO, of, 175 private individuals, contracts with,
United Nations, of, 174–175 124–125
High seas resolutions, nature of, 125–126
global commons, as, 197–198 scope of
law on, 198 bilateral external relations, 124–127
Holy See constitutional limitations, 131–132
Catholic Churches, jurisdiction over, generally, 122
95–96 internal relations stricto sensu, 123–124
central organs, 93–94 public order of host country, respecting,
diplomatic envoys, 94–95 132–133
international law, as subject of, 45 unilateral external decisions, 127–129
organic and membership jurisdiction, Inherent powers
92–96 adoption of principle, 66
Human rights delegated and implied powers contra,
ECHR, responsibility of member States 359–362
under, 428 delegated powers, versus, 65–70
Kosovo, violations in, 425–426 intergovernmental organizations, of, 31,
33
Implied powers internal and external jurisdiction, 65
doctrine of, 31, 359 limitations on, 393–396
exceptional resort to, 65 meaning, 35
exercise of functions, necessary for, 31–32 Intergovernmental organizations
ction of, 65–70 acts committing, 366
inherent powers contra, 359–362 administration. See Internal
intergovernmental organizations, of, 30–32 administration of IGOs
new obligations, imposition of, 69 authorized acts of, 30
process of implication, 70 basic aid to, 3
Inherent jurisdiction bilateral, 11
accessory, 129 capacity to perform acts, 376
acquired jurisdiction distinguished, 103 capacity to perform sovereign and
constitutional limitations, 131–132 international acts, test of, 63–64
delegation, 133–136 characteristic elements of, 38
delimitation of, 122 common law of, 3–4
distinct legal acts, 136 all types, applying to, 21
functional customary, 21
development of, 220 external. See External law of IGOs
594 index

internal. See Internal law of IGOs non-member States, relations with,

use of term, 23 370–371
constitutional limitations, 366–367 non-members, validity vis-à-vis
constitutions. See Constitutions of IGOs constitution, relevance of provisions of,
consultative, 12 384–385
convention, establishment by, 38 existence of convention, relevance of,
criminal jurisdiction, lacking, 113 385–386
criteria, 39 recognition, consequences of
decisions of. See Decisions of IGOs declaration and constitutive view of,
denition, establishment of, 41–42 386–390
description of, 392 Reparations case, 380–382
developing countries, technical assistance UN Charter, whether binding, 382–384
to, 364 number of, 4
duration, 10 objective international personality, 61–63
establishment of, 38, 43, 46–52 operational, 12
expenses of, 128 organizations of, 12–13
extended jurisdiction, 5 organs acting for, 542–547
factual existence and functioning of, 49 other organizations, membership of,
freedom of action, 54 409–410
functions and powers, 10 post-World War I and II, 9
general political, 11 public and private international law, actors
general subjects of international law, as, in, 4
394 public laws, 28
global and regional, 10 purposes, 9
governmental functions, failure to carry regulatory, 12
out, 186–187 resolution, establishment by, 38–39, 46
history of, 8–9 responsibility. See Responsibility of
implied functions, 24 IGOs
internal law, 9 right to remedy against, 257
international acts of. See International acts rights and duties created for, 371–372
international legal persons, as, 64 rights, duties and actions under
international organs, as, 39 international law, capacity for, 53–55
international persons, as, 43–46, 51 rules of procedure, 99
international public corporations, 17–18 self-governing entities, separate
international tribunals, 13–17 membership for, 41
judicial power. See Internal judicial power size of, 9
of IGOs sovereign acts by, 362
juridical personality and capacity to act, sovereign and international acts, capacity
540–542 for, 376–377, 391–392
legal concept of, 37–38 sovereign or government functions, 38,
legal personality. See Legal personality of 46–52
IGOs specialized, 11
limitation on powers of, 366 States distinguished, 377–378
limited functions, of, 56 subjects of national and international law,
limited legal capacity, 60 acting as, 67
literature on law of, 4 subsidiary organs, 118
lower and upper limits, 37–42 supranational, 12
member States, dependence on, 62 technical, 11
members temporary, 19
self-governing entities, 41 terminology, 33
sovereign communities, 45 territory, lack of, 45
mixed agreements by, 367 treaties. See Treaties
mixed governmental and treaty organs, 13
non-governmental, 18–19 type dependant, 19–21
non-governmental organizations, and, 3 types of, 9–21

ultra vires acts, bound by, 362–363
upper limit, 40–42
Internal administration of IGOs
constitutional authorisation, without,
118–119
decisions, making, 117–118
delegation, 133–136
exclusive executive power, 119
jurisdiction, 117–118
subsidiary organs, establishment of, 118
Internal courts
actions by ofcials against organization,
258–263
actions by organization against ofcials,
263–266
actions by third parties against ofcials or
members of UN force, 266–270
ad hoc, 259
administrative tribunals, actions in,
258–263
applicable law, 573–576
capacity to establish, 277
compulsory jurisdiction, 265, 280–281,
293–294
disputes largo sensu, for, 288–289
disputes stricto sensu, for, 286–288
disputes with private individuals, for,
279–284
establishment of, 257–258, 350–351,
353
exclusive jurisdiction 351
extension of competence, 294–297
external court, as, 307, 309–313
internal disputes of other organizations,
jurisdiction over, 309–313
international competence, 275
international law questions arising before,
348
judgments
against private individual, enforcement
of, 283–284
external effects, 272–277, 294
internal enforcement, 270–272
rendered in organic disputes, binding
force of, 349
territorial jurisdiction, lack of, 351
judicial protection by, 353
largo sensu, 303–304
law of international courts, whether
governed by
courts largo sensu, 303–304
courts stricto sensu, 300–303
generally, 297–300
International Court of Justice, 304–307
limited jurisdiction of, 307
index 595
member States and other States under
jurisdiction, disputes between, 286–289
national courts, comparable to, 298
nature of jurisdiction, 262
need and justication for, 268
ofcials, actions against, 278
organs, disputes between, 289–292
parties before, 297–298
power to establish, 292–294
scope of competence, 263, 278
stricto sensu, 300–303
submission to, 576
tribunals, referred to as, 297
types of, 298–299
Internal judicial power of IGOs
administrative tribunals, of, 120
compulsory jurisdiction, 120–121
courts, establishment of, 121
delegation, 133–136
enforcement of judgments, 121
exclusive, 121
member States, disputes between, 122
ofcials, in relation to, 120
organs and ofcials, over, 120
scope of, 120
Internal law of IGOs
basis of, 172
constitutional and administrative law,
532–534
constitutional conventions, laid down in, 22
customary, 27
distinct legal systems, as, 24–29
distribution of powers, 117
each organization, for, 74
economic law, 560–564
effects in national law, 73–74
elements of, 73
employment, relationship of, 149–150
exclusive application of, 441–443
existing literature, 4
external application, 77
external relations, application to, 533,
581–582
false analogies from international law, 25
eld of application, 517–518
general principles as source of, 516
hierarchical levels, 28, 76
inherent jurisdiction, 24–25
international administrative law, as, 25–26
international and national law, relationship
to, 514
international courts, questions arising
before, 348
international law, clarication as, 25
legal systems, constituting, 325
596 index

legal texts, in, 22 other organizations, membership of,

legislation 409–410
authority to enact, 110–111 positive and negative jus legationis, 406–407
constitutional provisions, absence of, International Atomic Energy Agency
109–112 headquarters agreement, 175
general power of, 116–117 nuclear safeguards, 207
genuine, 112–116 trilateral contract, governing law, 509
individuals, whether binding, 114 International Bank for Reconstruction and
limitation, legal basis for, 110 Development
organizational and functional loan agreements
regulations, 107–109 general conditions, 497
right to enact, 112 internal law, not subject to, 496–497
system of, 116 international law, subject to, 501–502
types of, 107–108 national law, whether governed by,
use of term, 115 497–498
matters governed by, 26–27 procedure of conclusion, 498–499
meaning, 34, 532 settlement of disputes, procedure for,
national public law, legal systems parallel 499–502
to, 72–77 terns of, 496
organic, 532 loans by, 496
organic connecting factor, 441–443 weighted voting, 241
organizational and functional regulations, International Civil Aviation Authority
107–109 decisions, sanctions, 221
principle of legality, 24 majority decisions, 229, 232
procedural, 26 International Committee of the Red Cross
public international law, and, 24–25 functions of, 8
confusion with, 75 international functions, 54–55
relations with members and individuals, International conferences
governing, 27 convocation and participation in, 407–408
sources of, 27, 76 International Court of Justice
special customary law, development of, 22 advisory opinions, 251–252, 254
stricto sensu, 329 binding. See binding advisory opinions,
subject matter of, 75 above
subjects of, 75–76 competence, request exceeding, 411
territorial or personal connecting factors, constitutional basis for request, 412–413
applicable to, 71 jurisdiction, conditions for, 410–412
use of term, 28, 72 limitation of scope of request, 411
Internal relations regular, 336
conclusions, 580 request for, 410
individuals, with, 447 binding advisory opinions
jure imperii, 445–447 both parties, binding on, 338–339
non-governmental organizations, with, competence to render, 339–340
447–448 examples of, 337–339
ofcials, delimitation of organic external disputes between IGOs, in, 336
jurisdiction over, 443–445 internal disputes, settlement of, 308–309
organic connecting factor, 441–443 jurisdiction as to, 334
International acts power of IGO to require, 340–341
actual performance of, 56–58 truly advisory, 335–337
delegations, privileges and immunities, undertaking to be bound, 339
408–409 contentious jurisdiction, scope of, 322
IGOs, of, 48–50, 406–410 dispute of national law, compulsory
international conferences, convocation and jurisdiction in, 327
participation in, 407–408 disputes between States, competence
jurisdiction for, 406 limited to, 320
legal capacity for, 413–414 disputes in, 299

employees of international organizations,
jurisdiction over, 269
internal law disputes in, 269
International Labour Organization,
reference of disputes from, 321
law governing, 304–307
non-member States, determining validity
of action vis-à-vis, 305
organs, adjudicating disputes between,
290–292
parties other than States, extension of
jurisdiction to, 322–323
reference of internal disputes to,
constitutional provisions, 317–319
scope of jurisdiction, 326–327
voluntary jurisdiction, 330
International courts
competence ratione materiae, 324–330
competence ratione personae, 319–324
disputes of international law, adjudication
of, 324–325
disputes of national law, acceptance of
jurisdiction in, 328
internal disputes between States,
assumption of jurisdiction, 329
internal law of IGOs, jurisdiction as to
disputes arising from, 329
settlement of internal disputes by, 308
ad hoc tribunals, 330
competence in absence of constitutional
provisions, 319
compulsory jurisdiction, conferring,
332–333
existing courts, reference to, 321
law of organization, limitations arising
from, 330–333
limitations arising from constitution of
court, 319–330
power to refer, 330–332
standing courts, competence ratione
materiae, 324–330
standing courts, competence ratione
personae, 319–324
subjects of international law, jurisdiction in
disputes over, 333
International Criminal Court
establishment of, 15
judicial independence, 16
jurisdiction, 214
membership, 214
permanency, 15
UN Security Council, relationship with,
15–16
International criminal law
international tribunals, 15
index 597
International Criminal Tribunal for Rwanda
establishment of, 15
International Criminal Tribunal for the
Former Yugoslavia
establishment of, 15
International criminal tribunals
post-conict situations, in, 214–215
International Institute of Agriculture
private law, as subject of, 361
International Labour Organization
Administrative Tribunal
competence, 284
questions of internal law of IGO arising
before, 345–346
constitution, interpretation of, 321
functions of, 8
International Court of Justice, reference of
disputes to, 321
International law
binding precedent, not admitting, 520
derived subjects of, 395
general principles as source of, 515–516
general principles, choice between,
518–522
procedural, 274
recognition as subject of, 377
relations between sovereign communities,
governing, 513
soft law, 220
States as original or necessary subjects of,
375–380
subjects of, 54
submission of contract to, 513–514
violations by State or IGO, responsibility
for, 428–429
International Law Commission
State responsibility, work on, 415–419
International Monetary Fund
decisions, sanctions, 221
majority decisions, 225
weighted voting, 241
International organizations
characteristic elements of, 38
denition, 37, 41–42
international persons, as, 43–46
International persons
organizations as, 43–46
sovereignty, 43–46
International sea bed
recommendation on, 199
International tribunals
common law applying to, 17
exercise of jurisdiction, 14
growth in, 13
intergovernmental organizations, as, 14
598 index

intergovernmental organizations, as organs certain organizations, of, 362

of, 14 European Union, whether possessing, 52
international criminal law eld, in, 15 scope of, 362–371
judicial powers, 14 limited, 421
mixed or hybrid criminal, 16–17 national law, in, 357–359
Internationalized territories objective, 61–63
jurisdiction over, 184–190 denial of, 368
mandated, 184 United Nations, of, 380
special IGO, establishment of, 188–190 objective international
United Nations, governmental functions of, acquiescence, 390
185–188 legal nature and basis of, 387
recognition, 386–390
Jurisdiction refusal to recognize, 389–390
acquisition by IGOs, 97 practice, 368–371
administrative tribunals, of, 262 rights and obligations as corollary to, 415
criminal, over international crimes, 213–215
different sovereign communities or States, Mandated territories
of, 97 jurisdiction over, 184
extended. See Extended jurisdiction Member States
inherent. See Inherent jurisdiction decisions binding on, authorization of, 373
intergovernmental organizations, of delegation of authority to commit,
criminal, lack of, 113 372–375
functional, 103 delegation of powers to IGO, effect of,
organs and ofcials, over, 104 420–429
specic categories of person, over, 101 dependence on, 62
specic territory, over, 100 disputes between, 122
States, over, 102–103 inherent jurisdiction over, 216
international acts, for, 406 international rights and duties, as subjects
membership. See Membership jurisdiction of, 371–375
organic. See Organic jurisdiction jurisdiction over. See Membership
personal. See Personal jurisdiction jurisdiction
scope of, 81 loans by, 374
ships, aircraft and space vehicles, over, other States under jurisdiction, disputes
100–101, 103 between, 286–289
States, of, 81 Membership jurisdiction
territorial. See Territorial jurisdiction functional, 219
Holy See, of, 92–96
Legal personality of IGOs intergovernmental organizations, of
constitutional provisions for, 357–359 admission and exclusion, as to, 105
general international, reasons for denying concurrent, 96–97
acts imposing obligations, confusion dependence on, 98
with, 59–61 genuine nature of, 98
associations of individuals, assimilation member or other States, over, 105
to, 58–59 nature of, 104
duty to enter into ofcial relations, organic jurisdiction, and, 104
confusion with, 62–63 meaning, 219
nancial obligations, confusion with, member States, over, 181–182
59–61 organizational, 97–105, 217–219
member States, dependence on, 62 reference to, 102
resources for fullment of obligations, MERCOSUR
lack of, 61–62 settlement of disputes, 248
States as subjects of international law,
doctrine of, 58 National law
inherent general international, 392–393 conict. See Conict of laws
international internal law, as, 34
 index 599

meaning, 34 regulations applied, 160

subjects of, 6 salaries, reduction of, 154, 156–157
Non-governmental organizations Staff Rules, 152–153
acts of, 7 statutory, 137, 157
co-operation agreements, 491–494 termination indemnities, 171
consultative status, 445, 491–494 terms, 151–152
internal regulations, binding, 112 variation between organizations, 159
internal relations with, 447–448 functional protection, 139–142
international, 6–8 IGOs, relationship of employment with,
meaning, 6 442–443
mixed governmental and independence, 142–149
non-governmental, 18–19 international
national law, subject to, 7 immunity of, 268
organs acting for, 542–543 meaning, 138
organs and employees, powers over, 179 national juridical proceedings involving,
relationships with IGOs 145
agreement as to applicable law, 494–496 ofcial duties, performance of, 139–142
applicable law, 492–494 organic jurisdiction over. See Organic
co-operation agreements, 491–494 jurisdiction
consultative status, 491–494 organization, actions against, 258–263
non-commercial, 492 organs of organization, disputes with,
types of, 6–7 352
Nordic Council permanent and temporary appointments,
decisions of, 223 147
establishment of, 46–47 private acts, jurisdiction as to, 278–279
North American Free Trade Agreement procedure of appointment, abuse, 147
settlement of disputes, 248 seconded, 143
Nuclear damage social security, 172–174
liability for, conventions, 465–466 specic posts, earmarking, 147
Nuclear safeguards staff of tribunals and courts, appointment
International Atomic Energy Agency, and remuneration, 150
of, 207 taxation of, 208–211
third parties, actions by against, 266–270
Ofcials tribunals to adjudication actions against,
actions by organization against, 263–266 278
applicants for position, relations with, 443 US practice as to, 155
appointment and dismissal, 142–149 Operational organizations
compulsory judicial power over, legal basis role of, 12
for, 265–266 Organic connecting factors
employment, relationship of administrative or judicial organ,
acquired rights, delimitation, 159 competence of, 530
character of, 149 conict of national law, in, 528–532
contractual, 151 constitutional and administrative law,
contractual elements, 137 532–534
general, 149–150 criminal law, 534–535
internal courts, governed by, 160–172 internal law of IGOs, application of,
internal law, under, 149–150 441–443
international or national ofcials, as, 170 law of community, relationship governed
judicial aspect, in, 163 by, 531
legal system of organization, governed lex fori, 529
by, 171–172 meaning, 34–35, 528
letters of appointment, 151 procedural law, 534
national courts, actions in, 161, 163–169 public law branches of conict, occurring
national law, application of, 161–162 in, 530
public law nature of, 158 public law, referring to, 531
600 index

public organs, acts of, 530 seconded, 143

territorial and personal, 70–72 social security, 172–174
wedding ceremony, form and procedure, States, of, 82, 137–174
529 organizational, 97–105
Organic jurisdiction personnel, over, 138
absolute, 179 powers of non-governmental
active nature of, 177 organizations, and, 179
acts of, 178 representatives of member States, over,
connecting factors, 70–72 215–216
constitutional aspects of, 178 self-governing communities, exercise by,
delimitation over ofcials, 443–445 82
disputes under, reference to national States, of
courts, 313–317 case on, 84–85
distinct legal acts, 136 employees of commercial agencies of
effects, 71 State, over, 89
exclusive, 178 exclusive and overriding, 89, 91
external relations, 125 exclusive, 83
headquarters agreements, interference by, existence and scope as competence of
174–176 States, 83–84
Holy See, of, 92–96 host State consumer employees, over,
immunity, and, 177–178 85–89
importance of, 98 organs and ofcials, governing relations
independence, 177 with, 82
inherent, 181 privileges and immunities, and, 83
intergovernmental organizations, of, 68 rights of other States, not violating, 91
concurrent, 96–97 scope, guidelines as to, 90
dependence on, 98 territorial and personal, coincidence
genuine nature of, 98 with, 90
membership jurisdiction, and, 104 territorial and personal jurisdiction,
States, vested in, 97 differences, 180
internal law of IGOs, application of, theoretical and practical importance, 181
441–443 type dependent organizations, 97
internal relations, 179 Organization for Economic Co-operation
international peace support operations, 97 and Development
legal force, 180 decisions of, 221–222
limitations, 179 Organization for European Economic
meaning, 34 Co-operation
nature of, 71 decisions of, 224
ofcials, over Organization for Security and Co-operation
appointment and dismissal, 142–149 in Europe
concurrent, 137–138 ambiguity of intentions, 51
delimitation, 137 governmental functions, 51
employment, relationship of, 137–174 intergovernmental organizations, not
exclusive, 137 functioning as, 52
functional protection, 139–142 Outer space
host and other member States, wishes damage caused by space objects, 200–201
of, 148 global commons, as, 200–202
independence, 142–149 international government for, 201–202
intergovernmental organizations, of, 104 treaties and resolutions, 200–201
legal protection, 142
local personnel, 144 Peace treaties
national juridical proceedings involving, non-member States, binding on, 234
145 Permanent Court of Arbitration
ofcial duties, performance of, 139–142 disputes between States, competence
questioning, 140 limited to, 323–325

Permanent Court of International Justice
independent arbitral tribunals compared,
305–306
practice, 25
scope of jurisdiction, 325–327
Personal connecting factors
are or non-existent cases of, 565
conicts of laws, legal questions, 547
economic law, in, 558–559, 563
elds in which important, 538
juridical personality and capacity to act,
540–542
lex domicilii or lex patria, 535–538
meaning, 528
organs acting for organization, 542–547
personal law, determination of, 535–538
personal law or organization, call for,
538–540
persons, law of, 535–548
sovereign communities, in relation to, 531
succession, law of, 538–539
Personal jurisdiction
consulate, of, 85
IGOs, exercise by
administered territory, in, 208
courts, establishment of, 210
criminal, 211, 213–215
international ofcials and agents,
taxation of, 208–211
private relations, 208–211
refugees, over, 211–213
stateless persons, over, 211–213
organic jurisdiction, and, 70–72
coincidence with, 90
scope of, 81, 177
State, vested in, 85
Political organizations
concerns of, 11
Premises
IGO, of, 552–555
international, torts on, 553–555
Privileges and immunities
conventions, 210
conventions, conict of laws
express provisions, 471–472
juridical personality provisions, 473–474
settlement of disputes, 473–474
delegations to IGOs, of, 408–409
foreign State, of, 88
General Agreement, 284–285
host State infringement, 91–92
IGOs invoking or waiving, 362
interpretation of application, 300
Italian law, 361
organic jurisdiction, and, 83
index 601
private acts of ofcials, jurisdiction as to,
278–279
Procedural law
arbitral tribunal, in, 571–573
internal courts, in, 573–576
international courts, in, 569–570
lex fori, governed by, 534, 567–569
national courts, in, 570–571
Public international law
actors in, 359
sources of, 27
Public law
foreign, national courts applying, 531
IGOs, not applicable to, 548
law of IGO, reference to, 564–565
organic connecting factors. See Organic
connecting factors
Public order
host country, of, 132–133
Refugees
asylum, 213
High Commissioner, 212
personal jurisdiction over, 211–213
Regional organizations
types of, 10
Regulatory organizations
role of, 12
Relations jure imperii
IGO and persons under jurisdiction,
between, 445–447
Responsibility of IGOs
delegation of powers by States, effect of,
420–429
Geneva Conventions, application of,
424
headquarters district, in, 426–427
intergovernmental organization, meaning
for purposes of, 416–417
International Law Commission, work of,
415–419
international law violations, for, 428–429
international personality, as corollary to,
415
members, of, 419
new member States joining, on, 427
no delegated powers, elds of, 430–432
part of member State powers, transfer of,
425
principle, summary, 434–436
remedies, 437
scope of, 418–419
States having delegated powers
relief from responsibility, 432–433
situations of, 433–434
602 index
States remaining responsible, effect of,
429–430
Rivers
international commissions, jurisdiction of,
238
international, territorial jurisdiction, 191
Secretariat
meaning, 34
Self-governing communities
international law, as subjects of, 379
relationship of IGOs with, 395
types of, 380
Settlement of internal disputes
actions by ofcials against organization,
258–263
actions by organization against ofcials,
263–266
actions by third parties against ofcials or
members of UN force, 266–270
ad hoc tribunals, 330
administrative decisions, whether binding,
254–257
administrative organs, decisions by,
248–251
administrative tribunals, actions in,
258–263
another legal system, preliminary
questions of
conict rules, 341
constitution precluding, 343
European Court of Justice, before,
343–344
generally, 341
internal law of organization arising
before national courts, 342–344
internal law, questions before
international courts, 348
international law, questions of, 348
national law, questions of, 347
nature of, 341–342
organic disputes, binding force of
judgments rendered in, 349
questions of internal law of one
organization arising before courts of
another, 344–346
binding advisory opinions from ICJ,
seeking. See International Court of
Justice
compulsory judicial power over ofcials,
legal basis for, 265–266
constitutional provisions, 246–248
disputes largo sensu, 288–289
disputes stricto sensu, 286–288
external courts. See External courts
individuals not under jurisdiction of
organization, involving, 284–285
internal courts. See Internal courts
international court, reference to, 333–334
judgments
external effects, 272–277, 294
internal enforcement, 270–272
law of organization, limitations arising
from, 330–333
legal body, advisory opinions from,
251–254
need for, 350
only one party subject to jurisdiction, 275
organic jurisdiction, outside, 352
organization and member States, between,
353
organization and ofcials, between, 352
organization and private parties, between,
353
organs, between, 289–292, 352
private acts of ofcials, jurisdiction as to,
278–279
UN commissions, establishment of, 270
Ships
global commons, in, 193
jurisdiction over, 100–101, 103
territorial, 192–197
territorial connecting factors, 555–557
United Nations, 192, 194
Social security
jurisdiction, 172–174
large organizations, systems of, 172
UN system, 173–174
Soft law
regulation of conduct by, 220
Sovereign communities
international law, as subjects of, 378–379
Sovereignty
international persons, of, 43–46
Space vehicles
damage causes by, 196
jurisdiction over, 100–101, 103
territorial, 192–197
permanently manned stations, 193
territorial connecting factors, 555–557
treaties, 195–196
Specialized organizations
concerns of, 11
Stateless persons
personal jurisdiction over, 211–213
States
coming into existence, 43
exclusive legislative power, 88
IGOs distinguished, 377–378
international law, as subjects of, 58

jurisdiction. See Jurisdiction
original or necessary subjects of
international law, as, 375–380
other communities, relationships with,
395
Succession
substantive law of, 538–539
Supranational organizations
role of, 12
Taxation
international ofcials and agents, of,
208–211
Technical organizations
concerns of, 11
Territorial connecting factors
choice of law, methods of, 549–550
civil relations, application to, 557
economic matters, lex causae, 549–551
IGO premises, 552–555
IGO territory, 551
meaning, 528
organic, coincidence with, 90
ships, aircraft and space vessels, 555–557
State territory, 551
substance of relationship, governing, 565
Territorial jurisdiction
condominia and coimperia, over, 190–191
constitutional provisions, 188
diminutions, 179–180
global commons, 197–207. See also Global
commons
IGO administration, resurgence in, 190
intergovernmental organizations, of, 100
international rivers, over, 191
internationalized territories, 184–190
legal basis for, 190
organic jurisdiction, and, 70–72
scope of, 177
ships, aircraft and space vehicles, over,
192–197
special IGO, establishment of, 188–190
State, vested in, 85
States, of, 102–103
Treaties
conclusion of, 401–405
decisions of IGOs as, 235–236
IGOs entering into, 366–367
authorization, lack of, 402
authorization, requiring, 404–405
co-operation agreements, 403–404
inherent powers, 405
legal capacity, lack of, 405
multilateral, 405
non-member States, with, 403
index 603
power of, 401–405
specic types, 401
intergovernmental organizations
concluding, 366–367
mixed agreements, 423
organs of, 13
Regulations on Registration of, 129–131
United Nations
Administrative Tribunal, 160–161
competence, scope of, 169
effect of awards, 250, 260–262
internal disputes of other organizations,
jurisdiction over, 311–312
questions of internal law of IGO arising
before, 344–345
staff regulations, proceedings as to, 277
Bond Loan, 502–503
Charter
legal position of, 29
non-members, whether binding on,
382–384
commissions, establishment of, 270
consultative nature, 12
delegation by, 133–136
Flag Code, 114–115
forces
actions by third parties against, 269–270
external courts of arbitration, 270
General Assembly plan, implementation
of, 126–127
general political organization, as, 11
global nature of, 10
governmental functions, assumption of,
185–188
headquarters agreement, 174–175
international person, acting as, 167
military personnel, international nature
of, 150
non-application of national law, basis for,
174
objective legal personality, 380
ofcials
functional protection, 141
governing law, 160–172
independence, 144–146
national courts, actions in, 161
new provisions, discharge on basis of,
155
procedure of appointment, abuse, 147
serious misconduct, dismissal for,
155–156
specic posts, earmarking, 147
Staff Rules, 152–153
tax refunds, 157
604 index
UNRWA staff, 158, 162–183
organs, disputes between, 290–292
Regulations on Registration of Treaties,
129–131
Security Council
agreements with members, 401–402
decisions and orders relating to
non-members, 383
ships, operation of, 192, 194
social security system, 173–174
specialized agencies, 11
UNRWA staff, 158, 162–183
voting in, 241
World Trade Organization
majority decisions, 233