The Limits of the Powers of International Organisations

Author(s): A. I. L. Campbell
Source: The International and Comparative Law Quarterly , Apr., 1983, Vol. 32, No. 2
(Apr., 1983), pp. 523-533
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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 THE LIMITS OF THE POWERS OF INTERNATIONAL
ORGANISATIONS

IF an international organisation has limited powers, interpretation of i

cannot extend them without limit. If the organisation's constitution is
as the basis of its competence, as is indicated in the Agricultural Prod
case' and the Conditions of Admission case2 for example,3 it mu
recognised that the constitution may limit the exercise of powers. This
been recognised in the Effect ofA wards case, where the Court said tha
is no express provision of the establishment of judicial bodies or organ
indication to the contrary". 4 The principle of implied powers, as estab
the Reparation for Injuries case,5 was invoked, but the inferen
maintainable that the court would not have done so if there had been
"indication to the contrary". This inference would be consistent with th
statement in the Advisory Opinion on the Jurisdiction of the European
Commission of the Danube, that "as the European Commission is not a State,
but an international institution with a special purpose, it only has the function
bestowed upon it by the definitive Statute with a view to the fulfilment of th
purpose, but it has power to exercise these functions to their full extent, in so fa
as the Statute does not impose restrictions upon it".6 In the Interpretation o
Peace Treaties case the Court similarly said that it could not attribute a meanin
to the provisions which would be contrary to their letter and spirit; this sugges
that the interpretation of an organisation's constitution should not be contrar
to its letter and spirit. 7 McNair also states that it is the duty of a tribunal to
ascertain a treaty's purpose and do its best to give effect to it, unless there
something in the language used by the parties which precludes the tribunal fro
doing so. 8 The purpose of this article is to discuss the extent to which it can b
said that powers may not be adopted by interpretation of an organisation's
constitution, with particular emphasis on the implication of powers, apart fro
the limits provided by ordinary principles of interpretation - e.g. the limits o

1. In the Agricultural Production case the Court said that: "The answer to the question ... must likewise depe
entirely upon the construction to be given to the same treaty provisions from which, and from which alone, th
organisation derives its existence and its powers:" P.C.I.J., 1922, Ser. B, No. 3, at pp. 53-55. The work "likewise"
in the quotation follows the Court's reference to its second Advisory Opinion as "based entirely" on the ba
constitution of the ILO.
2. The Court said that: "The political character of an organ cannot release it from the observance of the treaty
provisions established by the Charter when they constitute limitations on its powers as criteria for its judgment. To
ascertain whether an organ had freedom of choice for its decisions, reference must be made to the terms of its

construction:" [1947-19481 I.C.J. Reports 57, at p. 64.

3. In the European Commission of the Danube case, the PCIJ said that as the Commission was not a State but an
international institution it only had the functions bestowed upon it by the Definitive Statute: P.C.I.J., 1927, Ser. B,
No. 14, at p. 64.
4. [1954] I.C.J. Reports 47, at p. 56.
5. [1949] I.C.J. Reports 174, at p. 182.
6. P.C.I.J., 1927, Ser. B, No. 14, at p. 64. See also the Personal Work oftheEmployercase, wherethe Court was
concerned to point out that there was no limitation in the Constitution of the ILO on its competence such as to
prevent it from proposing the measures in question: P.C.I.J., 1926, Ser. B, No. 13, p. 18.
7. [1950] I.C.J. Reports 221, at p. 229.
8. The Law of Treaties (1961), p. 385.
523

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524 International and Comparative Law Quarterly [VOL. 32

the purposes of the organisation. 9

If the adoption of a power is actually prohibited in express terms then such a
power could surely not be implied or exercised - though there seem to be few, if
any, clear examples of this in the UN Charter. '~ But are there further limits on
the exercise of powers? Here the Opinion of Judge Moreno Quintana in the
Expenses case is interesting. " He established that the UN possesses financial
independence, on the basis of the principle of implied powers, and continued:
"[I]t is the necessary consequence of the establishment of an international
organisation, but it does not however imply that any specific organ should take
certain measures, nor that all the expenses must necessarily be born by all the
members. Nothing stands in the way of an appropriate distribution of
responsibilities, obligations and powers. That depends not only on the degree of
interest involved but also on the degree of intervention assigned to each
category of members by the constitutive instrument of the Organisation. Each
organ has its due function. The implied powers which may derive from the
Charter so that the Organisation may achieve all its purposes are not to be
invoked when explicit powers provide expressly for the eventualities under
consideration." In this article we will examine the possible limitations on the
implication and exercise of powers by (a) the existence of express powers; (b) the
distribution of functions within the organisation; and (c) verbal limitations in
the principle of implied powers.

A. Express Powers
Is the exercise of powers not expressly provided by the constitution precluded
by the existence of similar express powers? In other words, if an express power is
given does the definition of that power mean that you cannot exercise another
similar power which is not expressed? This question has not so far received
detailed consideration by the Court. But it would seem, despite Judge Moreno
Quintana's statement, that the existence of expressed powers does not
necessarily inhibit or preclude the exercise of further power. Judge Moreno
Quintana's statement, was partially contradicted in the Expenses case also, in the
dissenting Opinion of Judge Bustamente. 12 He thought that, despite the fact
that special agreements had not been concluded under Article 43 of the Charter,
the UNEF and ONUC actions could still be undertaken upon the principle of
"institutional effectiveness" applied in the Reparation for Injuries case. " But
it is important that Judge Bustamente only reached this conclusion after having
asked, and answered in the negative, the question whether "the negotiation of
'special agreements' is, according to the spirit of the Charter, such a basic one
that, if such agreements are not concluded, the action ordered should not be
undertaken". The clear inference to be made is that, if Article 43 had been so

9. Not specifically considered is the question of the preclusion of the adoption of powers by general principles
of international law. The principle nemo judex in sua causa may be thought applicable to the constitution of an
international organisation; see e.g. Judge Lauterpacht in the Voting Procedure case [1955] I.C.J. Reports, at pp. 99
et seq.
10. Possible examples are Art. 2(7) and Art. 100, the latter influencing the Court in the Reparation for Injuries
case, op. cit. supra n. 5.
11. [19621 I.C.J. Reports 161, at pp. 245-246.
12. Ibid. at p. 298.
13. [19491 I.C.J. Reports 174.

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APRIL 19831 The Powers of International Organisations 525

basic, the implied powers would be precluded, but, if not, then Article 43 cou
be treated as just one of the means of obtaining the UN purpose of maintainin
peace and alternative means could be sought. 14
The most important source upon this question, however, is undoubtedly th
Effect ofA wards case. " Two different aspects of this case require attention
First, as regards the exercise of the implied power to establish a tribunal, th
Court quite clearly thought that it was at least a relevant argument that th
implied power could be limited in its exercise by the existence of expressed
powers. For example, it rejected the contention that the General Assembly wa
in establishing a tribunal, able to bind itself in making awards of compensatio
divesting itself of its budgetary power under Article 17(1) of the Charter. 1
Again, it rejected contentions that the Assembly could not confer jurisdicti
on the Tribunal to intervene in the province of the Secretary-General (since t
Assembly itself could and had already limited the Secretary-General's powers
this respect) or that the incorporation in contracts of service of the right to r
on the Tribunal's Statute conflicted with the powers of the General Assemb
and the Secretary-General. 7 The Court appeared to think that such
contentions were at least relevant and worthy of consideration.
Secondly, the apparent conflict between Article 22 of the Charter and the
implied power to establish the Tribunal is of considerable interest, since it
involves the very legitimacy of the existence of such an implied power at all. The
difficulty in regarding Article 22 as the sole basis of the Tribunal was of course
that Article 22 only allows the General Assembly to establish such subsidiary
organs as it deems necessary to the performance of its own functions. But, as
the Court pointed out, the Tribunal exercised judicial functions, and the
General Assembly could not exercise judicial functions. 1 In basing the
legitimacy of the establishment of a judicial tribunal upon the principle of
implied powers, the Court was attempting to avoid this difficulty. '~ This
brought the following dissenting response from Judge Hackworth: "[T]he
adoption of implied powers is designed to implement, within reasonable
limitations, and not to supplant or vary, expressed powers. The General
Assembly was given express authority by Article 22 of the Charter to establish
such subsidiary organs as might be necessary for the performance of its
functions, whether those functions should relate to Article 101 or to any other
article in the Charter. Under this authorisation the Assembly may establish any
tribunal needed for the implementation of its functions. It is not, therefore,
permissible, in the face of this expressed power, to invoke the doctrine of
implied powers to establish a tribunal of a supposedly different kind, nor is
there warrant for concluding that such a thing has resulted." 20 It is certainly
clear that his protest was relevant. The Court found an implied power to create

14. Ibid. The majority also thought that Art. 43 did not preclude action by the Security Council, but based that
action on "some other" unspecified article(s), not on the principle of implied powers: [1962] I.C.J. Reports 151, at
p. 167.
15. [1954] I.C.J. Reports 47.
16. Ibid. at p. 59.
17. Ibid. at p. 60.
18. Ibid. at p. 64, 56, 61. In addition the Court stated that the power to create the Tribunal was essential to aid the
working of the Secretariat: ibid. at p. 57.
19. Ibid. at p. 61.
20. Ibid. at pp. 80-81.

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526 International and Comparative Law Quarterly [VOL. 32

an organ (the Tribunal) when there was also an express power for the creation
organs or agencies (though that expressed power was "inconvenient" in that
apparently did not permit the creation of a judicial tribunal); this was what
provoked Judge Hackworth's dissent. The implication of the power was not
precluded by the existence of an express power in the same field, with a broad
similar purpose, for the creation of further organs to aid the UN in the fulfilme
of its functions. The further question, whether this is theoretically justifiab
seems to turn essentially on whether the view is taken that Article 22 should
regarded as exhaustive of the UN's powers in the field of the creation of orga
because it was specially provided to regulate that activity, or whether the prop
view is that Article 22 provides only one of several possible means to an end
specially provided in the case of uncertainty, but not intended to be exhaustiv
Similarly in the Application for Review case,21 the Court examined t
constitutional basis for the creation of the Committee on Applications f
Review of Administrative Tribunal Judgments. Here the Court turned to an
relied on22 Articles 7 and 22 of the Charter, which provided authority for th
establishment of subsidiary organs and, in a not untypical vein, rejected
restrictive interpretation of those articles, on the premise that their object was t
enable the UN to accomplish its purpose and functions effectively. 23 Addition
reference was made in this context to the Effect of A wards case. 24 It said th
from the reasoning in the Effect ofA wards case, it followed that the Genera
Assembly's power to regulate staff relations also comprised the power to crea
an organ designed to provide machinery for initiating the review by the Court o
judgments of such a tribunal. 25 What the Court seems to argue is that, in
much as the Committee might possess judicial 26 or quasi-judicial 27 function
its validity was still "saved" on the basis of the Court's reasoning in the Effec
ofA wards case. 28 The apparent difficulty was that if the Committee had ev
quasi-judicial functions, as the Court seemed to recognise, the application of
Article 22 might seem to be in question because it concerns the establishment
organs for the performance of the General Assembly's own functions, and th
General Assembly cannot exercise functions of a judicial nature itself.29 Th
Court sought to solve this difficulty by reference to the Effect ofA wards case;
the establishment of a judicial tribunal could be "included" 30 in the Genera

21. [1973] I.C.J. Reports 166.

22. Ibid. at pp. 172, 175; see also Judges Gros and Morozov, at pp. 259, 298.
23. Ibid. at p. 172.
24. [1954] I.C.J. Reports 47.
25. [19731] I.C.J. Reports 166, at p. 173.
26. See Judges Onyeama, Gros and Morozov, ibid. at pp. 227, 260, 298.
27. The Court seems fairly clearly to recognise the quasi-judicial nature of the Committee in its reliance on t
Effect ofA wards case (ibid. at p. 173) and this is made clearer subsequently when it noted that the Rules adopted
the Committee "take account of the quasi-judicial character of its functions" (ibid. at p. 176). See also Ju
Onyeama, ibid. at p. 227.
28. Cf. Judge Onyeama, ibid.
29. See the Effect of Awards case [19541 I.C.J. Reports 47, at pp. 56, 61, and the Application for Review cas
[1973] I.C.J. Reports 166, per Judges Onyeama, Gros and Morozov, at pp. 226-227, 260. 298-299.
30. This is the Court's own word, which seems inappropriate. In the Effect ofA wards case the power to establ
the Tribunal was regarded as an implied power exercised by or through the "agency" of the General Assembly
power to regulate staff relations, so that the power to regulate staff relations had a subsidiary role and the power to
establish the Tribunal did not emerge from the power to regulate staff relations alone, nor was it regarded a

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APRIL 1983] The Powers of International Organisations 527

Assembly's power to regulate staff relations as was held in the Effects

A wards case, the establishment of the Committee could be "comprised" also
that same power. So the Applicationfor Review case, like the Effects ofA war
case, indicates that the existence of express powers does not preclude t
exercise of similar powers in the same field.
Reference must also be made to the Namibia case. 31 That case is indicative of
the Court's general approach to the Charter. Faced with an ambiguous
provision, Article 24 of the Charter, the Court chose not to treat the mention of
specific express powers in Article 24(2) as exhaustive: "I[T]he reference in para.
2 of this Article to specific powers of the Security Council under certain
chapters of the Charter does not exclude the existence of general powers to
discharge the responsibilities conferred in para. 1." 32 So the Court preferred
the approach that the enumeration of express powers does not preclude the
existence of other unexpressed powers in the same field. 33
In conclusion, in spite of the view expressed by Judge Moreno Quintana, the
evidence seems heavily tilted in favour of the view that the exercise of powers is
in general not precluded by the existence of express powers. This is so,
apparently, even if the powers expressly provided are in the same field, and even
if the power is very similar to an expressed power in its particular purpose and
effect.
On the other hand, it cannot be stated that the exercise of powers could never
be restricted because there are express powers. For example, it seems probable
that the court would not supplant a basic express power by the implication of a
power in similar terms. This can be inferred from the reasoning of Judge
Bustamente in the Expenses case,34-37 but in any case it seems unlikely that the
court would supplant a basic Charter article with another power. Although it
was prepared nearly to adopt such an approach as regards Article 22, it
seems unlikely that it would do so with, for example, Article 17 or 18 or Article
4. The Court's attitude to Article 4 of the Charter, 38 or, more clearly, Article 18
of the Charter, indicates that such fundamental provisions could not be
overridden or supplanted by the implication of a power in the same field, either
in relation to particular Charter functions or in general, so as to alter the basic
characteristics of the Organisation. Thus, in the Voting Procedure case, the
Court said that: "The voting system . .. forms one of the characteristics of the
organs. Taking decisions by a two-thirds majority vote or by a simple majority
vote is one of the distinguishing features of the General Assembly, while the
unanimity rule was one of the distinguishing features of the Council of the
League of Nations. These two systems are characteristic of different organs,
and one system cannot be substituted for the other without constitutional
amendment." 39 Similarly, although this is not directly supported by judicial

contained within that power per se. For reliance on the distinction between "inclusion" and "implication", see
Rouyer - Hamerey, Les Competences Implicites des Organisations Internationales (1962).
31. [1971] I.C.J. Reports 16.
32. Ibid. at p. 52.
33. See also Judge de Castro's Opinion, ibid. at p. 187.
34-37. Supra text accompanying n. 13.
38. See the Conditions of Admission cases [1947-1948] I.C.J. Reports 57.
39. [19551 I.C.J. Reports, at p. 75. See also Judge Bustamente, ibid. at p. 82; Judge Lauterpacht, ibid. at pp.
108-113; Judge Fitzmaurice in the Namibia case [19711 I.C.J. Reports, at pp 285-286.

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 528 International and Comparative Law Quarterly [VOL. 32

dicta, 40 it seems that the court would be unwilling to allow the implication of a
power which was inconsistent with, and which would not merely complement,
an express power the exercise of which was mandatory. Again, it has to be
remembered that in the Effect of A wards case the Court thought it at least
relevant that the exercise of an implied power might interfere with express
Charter provisions, and demonstrated that the Administrative Tribunal's
power to bind the General Assembly did not interfere with, or detract from, the
Assembly's budgetary powers, or the powers of the Assembly and the
Secretary-General in respect of staff. 4 It would appear, therefore, that the
exercise of powers would have to be such as would not substantially encroach
on, detract from, or nullify other powers. It is of course true that the weight of
Article 22 of the Charter was reduced by the adoption of an implied power to
establish a judicial tribunal, but that was only to a very limited extent and had
no general effect on Article 22. It would be otherwise, for example, if a general
power were to be exercised in terms different from Article 4 of the Charter
allowing the general admission of States on conditions not mentioned there, for,
as the Court had advised, "the provision would lose its significance and weight,
if other conditions unconnected with those laid down, could be demanded".42
It would seem to be inconsistent with the Court's general attitude to Charter
interpretation were powers to be exercised which would mean a general,
substantial encroachment on, or reduction of, the significance of other powers.
The Court has generally been concerned to interpret the Charter as a whole and
to adopt an interpretation of a provision which would fit in with other
provisions. One obvious example of this is the Competence of the General
Assembly for theAdmission ofa State to the UN case, where the Court refused
to accept an interpretation which would deprive the Security Council of an
important power, 43 and in the Namibia case the Court said that: "[W]hen the
Security Council adopts a decision under Article 25 in accordance with the
Charter, it is for Member States to comply with that decision, including those
members of the Security Council which voted against it and those members of
the United Nations who are not members of the Council. To hold otherwise
would be to deprive this principal organ of its essential powers and functions
under the Charter."44 Here the remark of Judge de Visscher in the
International Status of South West Africa case is of more than passing interest:
" [I t is an acknowledged rule of interpretation that treaty clauses must not only
be considered as a whole, but must also be interpreted as to avoid as much as
possible depriving one of them of practical effect for the benefit of others. This
rule is particularly applicable to the interpretation of the text of a treaty of a

40. There is a suggestion, however, by Judge Lauterpacht in the Voting Procedure case that a mandatory
provision of the Charter is paramount and could not be overridden save by constitutional amendment (see [19551
I.C.J. Reports 67, at pp. 92, 109). Despite his qualifications (ibid. at pp. 111-112) that in that case the voting rule in
question might be overridden, subject to consistency with the fundamental structure and tenets of the Organisation,
the general proposition seems still to stand and to have persuasive authority.
41. [19541 I.C.J. Reports, at pp. 59, 60.
42. The Conditions of Admission of a State to Membership in the UN case [1947-19481 I.C.J. Reports 57, at
p. 62. The philosophy espoused in this case seems in fact less liberal towards granting UN powers it finds necessary
than e.g. in the Namibia case.
43. [1950] I.C.J. Reports 4.
44. [19711 I.C.J. Reports, at 54.

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APRIL 1983] The Powers of International Organisations 529

constitutional character like the United Nations Charter."945

B. Distribution of Functions within an Organisation

Is the exercise of powers inhibited or precluded by the distribution of functions
within an organisation? In the Expenses case, Judge Moreno Quintana
intimated that, as regards implied powers: " [N]othing stands in the way of an
appropriate distribution of responsibilities, obligations and powers. ... Each
organ has its due function.""46 In other words it is not enough that the United
Nations as a whole possesses a power which can be implied from its broad
purposes and functions; the adoption of an implied power by one organ must
not encroach upon the functions and powers of any other organ - an obvious
and controversial example would be the adoption of enforcement powers of the
UN by the General Assembly in particular. But to what extent, if at all, is it true
to say that the exercise of powers is restrained in this way?
The concern shown by Judge Moreno Quintana was echoed also in the
dissenting Opinion of President Winiarski in the same case. 47 He was concerned
to emphasise in general the need to maintain the balance of carefully established
fields of competence, and that: " [T]he fact that an organ of the United Nations
is seeking to achieve one of the UN's purposes does not suffice to render its
action lawful. The Charter, a multilateral treaty which was the result of
prolonged and laborious negotiations, carefully created organs and determined
their competence and means of action."48 Judge Winiarski intended these
remarks to apply generally to counteract over-stress on UN purposes, but he
also thought that they applied, "perhaps less strictly, to the doctrine of implied
powers". It is apparent, then, that both Judge Moreno Quintana and Judge
Winiarski wished to emphasise that the exercise of powers must be consistent
with the relevant scope of competence of UN organs. Judge Fitzmaurice in the
Namibia case appeared to share this view.49 Judge Fitzmaurice was
anxious to establish that the basic structure adopted in drafting the Charter
consisted of the establishment of a careful balance of competence between the
Security Council and the General Assembly, and that, in general, the
competence of the General Assembly was restricted to non-executive powers of
recommendation. On that basis he observed that the principle of applied
powers was: "... . accepable if it is read as being related and confined to existing
and specified duties; but it would be quite another matter, by a process of
implication, to seek to bring about extension of functions, such as would result
for the Assembly if it were deemed (outside Articles 4, 5, 6, 17) to have a non-
specified power not only to discuss and recommend, but to take executive
action, and to bind." 50 This kind of view is consistent with the Court's general
approach to the interpretation of the Charter which recognises the importance of
the distinctiveness of the functions of organs. Thus, for example, the Court in
the Competence of the General Assembly for the Admission of a State to the

45. [19501 I.C.J. Reports at p. 187; see also at p. 189, and Judge Krylov at p. 191.
46. [19621 I.C.J. Reports, at p. 245.
47. Ibid. at p. 230.
48. Ibid.
49. [1971] I.C.J. Reports, at pp. 280 et seq.
50. Ibid. at p. 282.

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530 International and Comparative Law Quarterly [VOL. 32

UNcase devoted its attention to the structure of the Charter, and particularly
the relations between the General Assembly and the Security Council, and
result rejected an interpretation as to the scope of the powers of the Gener
Assembly which would "almost nullify the role of the Security Council in
exercise of one of the essential functions of the Organisation".' Similarly, i
the Expenses case, 52 the Court paid very careful attention to the respective r
of the General Assembly and the Security Council. Such consideratio
permeate the whole Opinion of the Court which itself pointed out that it h
"considered the general problem of the interpretation of Article 17, para. 2,
the light of the general structure of the Charter and of the respective functi
assigned by the Charter to the General Assembly and to the Security
Council . ..."53 There is one passage54 where the Court establishe
presumption that the action taken in pursuance of UN purposes is not ultra
vires, but it seems clear from the context of these remarks that the Court had
mind only the question of the financial liability of the Organisation as a who
It went no further than to say, in the context of the expenses of th
Organisation, that expenditure incurred by action within the functions of
Organisation as a whole, but taken by the wrong organ, was not necessarily n
an expense "of the Organisation" - it may have been thinking particularly o
financial liability to third parties. In other words, in the context of "expenses
the Organisation", and only in that context, the Court suggested that t
internal division of competence might not always be decisive, and even then,
reference to the "wrong organs" shows, the structure was still signific
internally. Reference may also be had in this respect to the Effect ofA war
case, 55-56 where the Court clearly thought that the General Assembly was n
competent to exercise functions of a judicial nature. For example, it pointed
that "the General Assembly itself, in view of its composition and functions
could hardly act as a judicial organ .. .", and "[t]he Charter does not con
judicial functions on the General Assembly. ..."57 Reference ought also to b
made to the Voting Procedure case,58 where the court was clearly concerne
with the distinguishing characteristics of the UN General Assembly, as again
those of the Council of the League of Nations.
But we must ask whether the Court's approach in the Effect of A wards cas
is inconsistent with the view advanced above, in that it allowed the General
Assembly to exercise an implied power to establish an organ with functions
which the General Assembly does not have itself. In the Effect ofA wards case, t
Court found that there was an implied power of the UN to establish
51. [19501 I.C.J. Reports 4, at pp. 8-9.
52. [1962] I.C.J. Reports 151.
53. Ibid. at p. 167. See also its approval of the consideration of the structure of the Charter and the relations
between the General Assembly and the Security Council in its Advisory Opinion, Competence of the Ge
Assembly for the Admission of a State to the UN (ibid. at p. 157) and its observation that it could not have b
"patent on the face of the resolution that the establishment of UNEF was in effect 'enforcement action' und
Chapter VII which, in accordance with the Charter, could be authorised only by the Security Council" (ibid. a
141).
54. Ibid. at p. 168. See also Judge Fitzmaurice at p. 199.
55-56. [19541 I.C.J. Reports 47.
57. Ibid. at p. 61.
58. [19551 I.C.J. Reports 67, at p. 75.
59. [19541 I.C.J. Reports 47.
60. Ibid. at p. 57.

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APRIL 19831 The Powers of International Organisations 531

administrative tribunal with judicial functions. This power was implied

ensure the efficient functioning of the Secretariat and to give effect to the
consideration mentioned in Article 101(3) of the Charter. But, although this
power was implied primarily to aid the Secretariat, the General Assembly coul
exercise this power. Given that the General Assembly exercised an impli
power to ensure the efficient working of the Secretariat, did this extend th
functions of the General Assembly or upset the balance of competence betwee
UN organs? It would seem not. As regards the balance of competence betwee
the General Assembly and the Secretariat, the Court was indeed anxious
demonstrate that the exercise of this implied power by the General Assemb
would not provide a new or additional encroachment on the province of the
Secretary-General by the Tribunal's exercise of jurisdiction, and it seems cle
that the existing balance of competence between these organs was not upset. 6
Did the the exercise of this implied power extend to functions of the Gener
Assembly to judicial functions? Again it seems not. The exercise of the implie
power simply meant that the General Assembly could establish a tribunal to
undertake judicial functions. It did not itself directly exercise judicial function
Nor did it do so indirectly, in the sense that it controlled the Tribunal's exerci
of judicial functions. While it could freely determine the jurisdiction of the
Tribunal and could 63 and did alter the Tribunal's Statute, it could not interve
in the actual exercise of its judicial functions. Indeed, in view of the Court's
clear assertions ~ that the General Assembly could not exercise judicia
functions, it seems scarcely conceivable that it would allow it to do so, directl
or indirectly, by the exercise of another power. It seems therefore that the Cou
did not upset the balance of competence between UN organs, nor did th
General Assembly thereby extend its own functions. Identical conclusion
would seem to follow from the Application for Review case.65 Does th
Namibia case suggest that powers may be exercised though they are n
inconsistent with the distribution of functions? On the whole it seems not. The
Court thought that the General Assembly had a power or revocation on the
basis of a general principle of law (not on the basis of interpretation of the
Charter of the UN) but apparently distinguished between the ability of the
General Assembly to revoke and the executive power to ensure the withdraw
of South Africa, to be exercised by the Security Council. 66
The available evidence leads to a conclusion that the exercise of powers mu
be consistent with the respective scope of competence of UN organs, both in
relation to each particular organ and to the overall balance of competence. It
seems right that powers should not be exercised so as to alter a balance
competence. The constitution of an organisation is clearly legally designed to
form a distribution of powers and such structure may be basic to the
organisation. A distribution of competence can also be a question of the highes

61. See the Court's Opinion ibid. at p. 57.

62. See the Court's Opinion ibid. at p. 60.
63. See the Court's Opinion ibid. at p. 58.
64. Ibid. at pp. 56, 61. See also Judge Carneiro at pp. 92, 94, 95. In the Application for Review case, the Court
referred in particular to the statement that the General Assembly does not have judicial functions: [19731 I.C.J
Reports 166, at p. 173.
65. [19731 I.C.J. Reports 160.
66. [19711 I.C.J. Reports 16, at p. 51. See Judge Dillard at p. 164.

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 532 International and Comparative Law Quarterly [VOL. 32

political sensitivity, as was apparent in UN peace-keeping , and in the Expenses

case. 67

C. Limitations on the Scope of the Implication of Powers

IN the Reparation for Injuries case 68 the Court said that: "Under international
law, the Organisation must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties.''69"
Is the use of the word "duties" in this statement of principle restrictive of
the implication of implied powers? On first reading of word "duties" may
suggest that powers are implied only as being essential to the mandatory
responsibilities or "duties" of the UN, the mandatory nature of such
responsibilities reinforcing the "essential" nature of the implied powers. The
Opinion of Judge Fitzmaurice in the Expenses case may indeed seem to support
such a limitation. "7 In dealing with the issue whether every member has an
obligation to finance non-obligatory UN activities, he proposed a rough
classification of UN functions into those which are obligatory in character, or
which the UN has a "duty to carry out", and those which are permissive in
character. He then applied the principle of implied powers to the former
category only - i.e. only in respect of functions which the UN has a duty to
perform. An invocation of the principle in relation to the latter category
appears to have been inhibited because Sir Gerald thought that non-
contribution to the costs of activities is inconsistent with membership in the case
of mandatory activities, but such was not clear in the case of permissive
activities. But, if the question of membership is overlooked, it could seem that
Fitzmaurice did not think that the principle of implied powers was applicable in
relation to non-obligatory or permissive activities. However, such a distinction
would, as Judge Fitzmaurice recognised, 72 impose difficulties of definition.
Nor did Judge Fitzmaurice subsequently suggest such a distinction. In the
Namibia case 73 he talked of UN functions on a general basis when dealing with
the implied powers of the General Assembly and seemed to equate general
functions with the Assembly's "duties" from which powers could be implied.
Such a distinction is not suggested by the Opinion of the Court in the
Reparation for Injuries case, 74 or in the Opinion of individual judges in any
other case. For example, in the Effect of A wards case 75 the Court made no
attempt to say that the provisions from which the power to establish a Tribunal
was applied were mandatory. We must conclude therefore that the word
"duties" does not impose a special limitation on the implication of powers to
areas of mandatory responsibilities, fortunately for the purposes of definition.
In fact the word "duties" appears to refer to the fulfilment of the functions and

67. [19621 I.C.J. Reports 151.

68. [19491 I.C.J. Reports 174.
69-70. Ibid. at p. 182. See also the European Danube Commission case, P.C.I.J., 1927, Ser. B, No. 14, at pp. 67,
69.
71. [19621 I.C.J. Reports 151, at pp. 213-214.
72. Ibid. at pp. 214-215.
73. [1971] I.C.J. Reports, at pp. 281-282.
74. [19491 I.C.J. Reports 174.
75. [19541 I.C.J. Reports 47.

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APRIL 19831 The Powers of International Organisations 533

purposes of the Organisation in general. For example, after the statement o

general principle which uses the word "duties", the Court refers in th
Reparation for Injuries case to the UN's purposes and functions: "Und
international law, the Organisation must be deemed to have those powe
which, though not expressly provided in the Charter, are conferred upon it b
necessary implication as being essential to the performance of its duties
Having regard to its purposes and functions already referred to, the
Organisation may find it necessary, and has in fact found it necessary, to entr

its agents
general with important
approach to the scopemissions. ... ."
of the UN's 76 This corresponds
competence: to the
" [T ]he rights and Cour
dut
of an entity such as the Organisation must depend upon its purposes an
functions as specified or implied in its constituent documents and developed i
practice." 77
It is not clear, however, whether powers are implied only in relation to
purposes and functions which are expressed, or also in relation to functions
which may be implied.
A. I. L. CAMPBELL

76. [19491 I.C.J. Reports 174, at p. 183.

77. Ibid. at p. 180.

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