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The Legal Validity of Ultra Vires Decisions of International Organizations

Published online by Cambridge University Press:  27 February 2017

Ebere Osieke
Ebere Osieke*
Affiliation:
University of Jos, Nigeria, International Labour Office, Geneva, Switzerland
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Extract

The question of the legal validity of the acts and decisions adopted by international organizations in excess of their authority has attracted the attention of international lawyers, as well as international courts and tribunals, in recent years. However, no general principles or criteria for determining such validity have as yet been formulated by the international community. In the meantime, the question has continued to give rise to controversy within and outside international organizations and to gain in importance, because of persistent procedural irregularities and the increasing tendency of some of the organizations to take measures that are not expressly provided for in their constitutive instruments but that they consider necessary or essential for the effective discharge of their mandates.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 2 , April 1983 , pp. 239 - 256
Copyright
Copyright © American Society of International Law 1983

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References

1 Osieke, , ‘Ultra-Vires’ Acts in International Organizations—The Experience of the International Labour Organization, 48 Brit. Y.B. Int’l L. 259 (1976–77)Google Scholar; Osieke, , Unconstitutional Acts in International Organisations: The Law and Practice of the International Civil Aviation Organisation (ICAO), 28 Int’l & Comp. L.Q. 1 (1979)Google Scholar; Osieke, , Admission to Membership in International Organizations: The Case of Namibia, 51 Brit. Y.B. Int’l L. 189, 220–22 (1980)Google Scholar; Morgenstern, , Legality in International Organizations, 48 id. at 24 (1976–77)Google Scholar; Jennings, , Nullity and Effectiveness in International Law, in Cambridge Essays in International Law 64 (1965)Google Scholar; Lauterpacht, The Legal Effect of Illegal Acts of International Organizations, in id. at 88; Cahier, , La Nullité en droit international, 76 Rev. Générale Droit Int’l Public 645 (1972)Google Scholar; Ciobanu, D., Preliminary Objections: Related to the Jurisdiction of the United Nations Political Organs (1975)CrossRefGoogle Scholar; and Leben, C., Les Sanctions Privatives de Droits ou de Qualité dans les Organisations Internationales Spécialisées (1979)Google Scholar.

2 See, e.g., the Advisory Opinions of the International Court of Justice on Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, 1960 ICJ Rep. 150 (June 8); Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), 1962 ICJ Rep. 151 (July 20); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16 (June 21); and the Judgment on the Appeal Relating to the Jurisdiction of the ICAO Council, 1972 ICJ Rep. 46 (Oct. 18).

3 This right was emphasized by Judge Bustamante in his dissenting opinion in the Certain Expenses case:

[W]hen, in the opinion of one of the Member States, a mistake of interpretation has been made or there has even been an infringement of the Charter, there is a right to challenge the resolution in which the error has been noted for the purpose of determining whether or not it departed from the Charter.

1962 ICJ Rep. at 304.

4 The cases of reluctance to raise objections for political reasons may be illustrated by the various resolutions concerning the apartheid policy of the Government of South Africa. Some member states from the industrialized countries refrain from raising objections on the ground of illegality because they do not wish to be seen as supporting the Government of South Africa on apartheid. One good example in recent years is the admission of nonindependent Namibia to full membership in international organizations. Many members considered that the admission might not be compatible with the law and practice of the organizations concerned, but some of them refrained from raising any formal objections and some even voted for it. See Osieke, Admission to Membership, supra note 1, at 213–16.

It has also been pointed out that member states are restricted from contesting the decisions of international organizations because these bodies do not always indicate the sources of their authority and, consequently, members do not often have the criteria they need to evaluate the “improper” decisions. See Wright, , The Strengthening of International Law, 98 Recueil des Cours 1, 121 (1959 III)Google Scholar; and D. Ciobanu, supra note 1, at 73–74.

5 See, e.g., the defeat at the International Labour Conference in 1973 of the resolution concerning “the policy of discrimination, racism and violation of trade union freedoms practised by the Israeli authorities in Palestine and the occupied territories,” discussed by the present writer in Ultra-Vires Acts, supra note 1, at 269–70; see also Osieke, Unconstitutional Acts, supra note 1, at 24–25.

6 1971 ICJ Rep. at 299.

7 See Detter, I., Law Making by International Organizations 23 (1965)Google Scholar; and D. Ciobanu, supra note 1, at 163–73.

8 For the proposals made in this respect by the Belgian delegation, see Doc. 2, G/7(k)(1), 3 UNCIO Docs. 335, 336 (1945).

9 1962 ICJ Rep. at 168. Again, when it considered the objection raised in the Namibia case that General Assembly Resolution 2145 (XXI) made pronouncements that the Assembly, not being a judicial organ and not having previously referred the matter to any such organ, was not competent to make, the Court stated:

To deny to a political organ of the United Nations which is a successor of the League in this respect the right to act, on the argument that it lacks competence to render what is described as a judicial decision, would not only be inconsistent but would amount to a complete denial of the remedies available against fundamental breaches of an international undertaking.

The Court concluded, therefore, that it was “unable to appreciate the view that the General Assembly acted unilaterally as party and judge in its own cause.” 1971 ICJ Rep. at 49. Although the Court was dealing in this case with Resolution 2145, in which the General Assembly derived competence from the mandate for South West Africa, the foregoing statements constitute some indication of its approach on the question of “compétence de la compétence” of international organizations.

10 This approach is normally supported by the following statement in the Report of Committee IV/2 of the San Francisco Conference:

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 Charter as are applicable to its particular functions. This process is inherent in the functioning of any body which operates under an instrument defining 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.

Doc. 933, IV/2/42(2), 13 UNCIO Docs. 703, 709 (1945). See also I. Detter, supra note 7, at 23.

11 Cf. the separate opinion of Judge Sir Percy Spender in the Certain Expenses case, 1962 ICJ Rep. at 196. See also 3 Schwarzenberger, G., International Law as Applied by International Courts and Tribunals 53–54 (1976)Google Scholar.

12 See Art. 84 of the Chicago Convention, 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295.

13 Cf. Art. 7(3) of the Constitution of the International Labour Organisation, which authorizes ILO members to appeal to the International Labour Conference a decision of the Governing Body as to which are the members of the Organisation that are of chief industrial importance.

14 See D. Ciobanu, supra note 1, at 75; Lauterpacht, supra note 1, at 111; Osieke, Ultra-Vires Acts, supra note 1, at 276–77; Osieke, Unconstitutional Acts, supra note 1, at 21–22. See also Lauterpacht, H., The Legal Remedy in Case of Excess of Jurisdiction, 9 Brit. Y.B. Int’l L. 117 (1928)Google Scholar; Castberg, , L’Excés du pouvoir dans la justice internationale, 35 Recueil des Cours 353, 361 (1931 I)Google Scholar; Guggenheim, , La Validité et la nullité des actes juridiques internationaux, 74 id. at 195 (1949 I)Google Scholar; and Jennings, supra note 1, at 83–84.

15 1960 ICJ Rep. at 171.

16 IMCO Res. A.21 (II) (Apr. 6, 1961); see also IMCO Doc. A.11/S.R.3, at 6–11 (1961).

17 IMCO Res. A.21 (II), supra note 16.

18 On the self-executing nature of certain decisions of international organizations, see Osieke, Admission to Membership, supra note 1, at 220–21.

19 See, e.g., Article 86 of the Chicago Convention, supra note 12, which stipulates that certain decisions of the ICAO Council, if appealed, shall be suspended until the appeal is decided.

20 1962 ICJ Rep. at 168.

21 1972 ICJ Rep. at 69–70.

22 Id. at 100; see also the separate opinion of Judge Jiménez de Aréchaga, id. at 153.

23 Cf Garner, J., Administrative Law 175–92 (5th ed. 1979)Google Scholar; De Smith, S., Constitutional and Administrative Law 550–59 (3d ed. 1977)Google Scholar; De Smith, S., Judicial Review of Administrative Action 314 (3d ed. 1973)Google Scholar; and Wade, E. & Phillips, G., Constitutional and Administrative Law 587–97 (9th ed. 1977)Google Scholar. See also the interesting discussion on these limitations with respect to the acts and decisions of international organizations by Lauterpacht, supra note 1, at 116–21.

24 Jenks, C. W., The Proper Law of International Organisations 85–101 (1962)Google Scholar; also 3 G. Schwarzenbercer, supra note 11; and the Judgments of the Administrative Tribunal of the ILO in Meyer v. International Atomic Energy Agency, Judgment No. 245 (Oct. 21, 1974); Djoehana v. Food and Agriculture Organization of the United Nations, Judgment No. 359 (Nov. 13, 1978); and Sita Ram v. World Health Organization, Judgment No. 367 (Nov. 13, 1978). See also the recent Judgment of the United Nations Administrative Tribunal in Adler v. United Nations, Judgment No. 267, UN Doc. AT/DEC/267, at 38 (Nov. 21, 1980).

25 Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/Rev.3, at 78–80(1980).

26 Osieke, Ultra-Vires Acts, supra note 1, at 264–73.

27 Id. at 278–79.

28 See the separate opinion of Judge Morelli in the Certain Expenses case, 1962 ICJ Rep. at 222, and the dissenting opinion of Judge Bustamante in the same case, id. at 304. See also Duke Pollard, who maintains:

[T]he status of an act by an international organisation is intrinsically independent of the existence of machinery for authoritatively appreciating it as a prelude to its enforcement or nullification as the case may be. The determinations of competent review machinery in appreciating the quality of an act in municipal systems are not constitutive; they are merely declaratory and are normally expressed to be so.

Pollard, , Conflict Resolution in Producers’ Associations, 31 Int’l & Comp. L.Q. 99, 120 (1982)Google Scholar.

29 Ibid.

30 3 de Vattel, E., The Law of Nations, bk. II, ch. XVIII, §329 (Carnegie ed. 1916)Google Scholar. See also H. Lauterpacht, supra note 14; Jennings, supra note 1, at 83–84; Castberg, supra note 14, at 361; and Guggenheim, supra note 14, at 195–263.

31 1962 ICJ Pleadings (Certain Expenses of the United Nations) 337 (statement of May 17, 1962).

32 Id. at 416.

33 1962 ICJ Rep. at 168.

34 Statement by Professor Eagleton during the discussion in the International Law Association on review of the UN Charter. ILA, Report of t he 46th Conference 80 (1954).

35 Gross, , Voting in the Security Council and the PLO, 70 AJIL 470, 471 (1976)Google Scholar.

36 Lauterpacht, , The Development of the Law of International Organization by the Decisions of International Tribunals, 152 Recueil des Cours 381, 393–94 (1976 IV)Google Scholar.

37 Statement made during a broadcast debate, in Laurent, E., Un Monde à refaire. Débats de France Culture. Trois Jours Pour la Planète 120–21 (Paris: Editions Mengès, 1977)Google Scholar.

38 Statement made in the debate, id. at 129.

39 Bedjaoui, M., Towards A New International Economic Order 147 (UNESCO 1979)Google Scholar.

40 Id. at 142.

41 See, e.g., the following British cases: Roberts v. Hopwood, 1925 A.C. 578; Chertsey U.D.C. v. Mixnam’s Properties, Ltd., [1964] 2 All E.R. 627; and R. v. Hullingdon London Borough Council, ex parte Royco Homes, Ltd., [1974] 2 All E.R. 643. See also J. Garner, supra note 23, at 158–59.

42 See Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organisations, in Cambridge Essays, supra note 1, at 48, 48.

43 1962 ICJ Rep. at 232.

44 1980 ICJ Rep. 73, 104 (Advisory Opinion of Dec. 20). See also the Report of the Special Committee on Reference to the International Court of Justice of Questions of United Nations Competence, which states that “a Member may now refuse to execute a decision of the Organization, if he feels strongly that the decision is unconstitutional,” quoted by D. Ciobanu, supra note l,at 174.

45 See D. Ciobanu, supra note 1, at 174; and the discussion in Gross, , States as Organs of International Law and the Problem of Autointerpretation, in Law and Politics in the World Community 59, 77–78 (Lipsky, G. A. ed. 1953)Google Scholar. See also Tammes, , Decisions of International Organs as a Source of International Law, 94 Recueil des Cours 261, 338 (1958 II)Google Scholar; Waldock, , General Course on Public International Law, 106 id. at 1, 108 (1962 II)Google Scholar; and Watson, , Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the Charter, 71 AJIL 60 (1977)CrossRefGoogle Scholar.

46 This right is sometimes referred to as “the right of last resort.” Thus, Professor Ciobanu has stated that “the States possess, under the law of the United Nations as it stands at present, the so–called ‘right of last resort’,” and in exercising such right, “a State itself corrects any defects which it may have found in the application by the relevant organ of the provisions pertaining to its competence or in the substance of the decision.” He then justifies some of the refusals of UN members to implement certain contested resolutions of the main organs of the United Nations on the basis of the “right of last resort.” D. Ciobanu, supra note 1, at 174–79.

47 Gross, supra note 45, at 76–77.

48 1962 ICJ Rep. at 224.

49 Pollux, The Interpretation of the Charter, 23 Brit. Y.B. Int’l L. 54, 56 (1946).

50 Wright, supra note 4, at 125.

51 Schachter, , The Relation of Law, Politics and Action in the United Nations, 109 Recueil des Cours 165, 198 (1963 II)Google Scholar.

52 See note 9 supra and accompanying text.

53 Suggested by Sir Gerald Fitzmaurice in his dissenting opinion in the Namibia case, 1971 ICJ Rep. at 300.

54 Suggestion by Professor Sohn, Louis in Due Process in the United Nations, 69 AJIL 620, 621 (1975)Google Scholar.

55 Jennings, , Report, in Max-Planck-Institut für Ausländisches Öffentliches Recht Und Völkerrecht, Judicial Settlement of International Disputes: An International Symposium 35, 48 (1974)Google ScholarPubMed. See also Farukowa, , La Controle de la Cour intemationale de Justice sur les organisations internationales—les actes ultra-vires des organisations Internationales, 78 Japan. J. Int’l L. & Dipl. 133 (July 1979)Google Scholar. Also the resolution in [47] 2 Institut de Droit International, Annuaire 274 (1957).

56 See Brownlie, I., General Principles of International Law 730–32 (3d ed. 1979)Google Scholar; and Rosenne, , The Non-Use of the Advisory Competence of the International Court of Justice, 39 Brit. Y.B. Int’l L. 1 (1963)Google Scholar.