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The Function of Public International Law pp 215–247Cite as

The Concept of International Institution Situated Within the Framework of Obligation and the Framework of Authorization

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Abstract

The theory of law developed by Finnis formulates a circular relationship between rules and institutions in the sense that rules determine institutions which, in turn, determine rules. When situated within the framework of obligation, this circular relationship between rules and institutions is problematic, because the hierarchical, vertical structure of which the framework of obligation partakes, only allows unidirectional causality; if, on a higher level, rules determine institutions, it cannot simultaneously be admitted that institutions determine rules, unless these rules are situated at a lower level than the institution. In that hypothesis, however, a differentiation is made between higher level and lower level rules. When situated within the reformulated framework, this circular relationship between rules and institutions does not present a problem because, from that perspective, both rules and institutions are regarded as elements of the constituting of international society by the members of international society. Within the reformulated framework, the constituting of international society by the members of international society is seen in the first instance as giving rise to rules of public international law, which, since they address the dilemma situation of the members of international society of having a power to act, are both enabling and disabling. To the extent that the constituting of international society by the members of international society acquires a more durable form, these rules of public international law may transform into international institutions. From this angle, international institutions may be said to participate in the constituting of international society by the members of international society in the form of producing rules of public international law. These rules of public international law may be said to represent the common good of international society.

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Notes

  1. 1.

    The traditional sources of public international law have themselves also become linked to the development of international institutions. The transposability of general principles of public law to the international plane has been made dependent on the development of international institutions through which the concept of public international law would acquire a vertical structure. Treaties creating international organs or general rules, such as the Covenant of the League of Nations, have been characterized in terms of constitutional international law or international public law. In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), opinio juris was derived from General Assembly resolution 2625 (XXV).

  2. 2.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25.

  3. 3.

    Weil 1992, pp. 101–110; Zemanek 1997, paras 141–144; Tomuschat 1999, Chap. IV, paras 3–9; Dupuy 2002, pp. 107–109.

  4. 4.

    Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174, 178–179.

  5. 5.

    Bederman 1996, pp. 366–371; Klabbers 2002, pp. 52–59.

  6. 6.

    Charter of the United Nations, Article 1; Constitution of the International Labour Organization, Article 1 (1); Constitution of the United Nations Educational, Scientific and Cultural Organization, Article I (1); Constitution of the Food and Agriculture Organization of the United Nations, Preamble; Constitution of the World Health Organization, Article 1; Articles of Agreement of the International Monetary Fund, Article I; Articles of Agreement of the International Bank for Reconstruction and Development, Article I; Constitution of the International Telecommunication Union, Article 1; Constitution of the Universal Postal Union, Article 1; Convention on International Civil Aviation, Article 44; Convention on the International Maritime Organization, Article 1; Convention of the World Meteorological Organization, Article 2; Statute of the International Atomic Energy Agency, Article II; Convention Establishing the World Intellectual Property Organization, Article 3; Constitution of the United Nations Industrial Development Organization, Article 1; Agreement Establishing the World Trade Organization, Article II, para 1.

  7. 7.

    Charter of the United Nations, Article 60; Constitution of the United Nations Educational, Scientific and Cultural Organization, Article I (2); Constitution of the Food and Agriculture Organization of the United Nations, Article I; Constitution of the World Health Organization, Article 2; Convention on the International Maritime Organization, Articles 2 and 3; Statute of the International Atomic Energy Agency, Article III A; Convention Establishing the World Intellectual Property Organization, Article 4; Constitution of the United Nations Industrial Development Organization, Article 2; Agreement Establishing the World Trade Organization, Article III.

  8. 8.

    Charter of the United Nations, Articles 10–17 (General Assembly), 24, para 1, (Security Council), 62–66 (Economic and Social Council), 87–88 (Trusteeship Council); Constitution of the International Labour Organization, Article 10 (International Labour Office); Constitution of the United Nations Educational, Scientific and Cultural Organization, Article IV (B) (General Conference), Article V(B) (Executive Board); Constitution of the Food and Agriculture Organization of the United Nations, Article IV (Conference), Article V, para 3 (Council); Constitution of the World Health Organization, Article 18 (World Health Assembly), Article 28 (Executive Board); Articles of Agreement of the International Monetary Fund, Article XII (2) (a) (Board of Governors); Article XII (3) (a) (Executive Board); Articles of Agreement of the International Bank for Reconstruction and Development, Article V, Section 2, para a (Board of Governors); Article V, Section 2, para a (Executive Directors); Constitution of the International Telecommunication Union, Article 8 (2) (Plenipotentiary Conference); Article 10 (3)–(4) (Council); Constitution of the Universal Postal Union, Article 17 (1) (Council of Administration); Article 18 (Postal Operations Council); Convention on International Civil Aviation, Article 49 (Assembly), Articles 54 and 55 (Council), Article 57 (Air Navigation Commission); Convention on the International Maritime Organization, Article 15 (Assembly), Article 21 (Council), Article 28 (Maritime Safety Committee), Article 33 (Legal Committee), Article 38 (Marine Environment Protection Committee), Article 43 (Technical Cooperation Committee); Convention of the World Meteorological Organization, Article 8 (World Meteorological Congress), Article 14 (Executive Council); Statute of the International Atomic Energy Agency, Article V D, E and F (General Conference), Article VI F (Board of Governors); Convention Establishing the World Intellectual Property Organization, Article 6, para 2 (General Assembly); Article 7, para 2 (Conference); Article 8, para 3 (Coordination Committee); Constitution of the United Nations Industrial Development Organization, Article 8, para 3 (General Conference), Article 9, para 4 (Industrial Development Board), Article 10, para 4 (Programme and Budget Committee); Agreement Establishing the World Trade Organization, Article IV, para 1 (Ministerial Conference), paras 2–4 (General Council), para 5 (Council for Trade in Goods/Council for Trade in Services/TRIPS Council).

  9. 9.

    Charter of the United Nations, Articles 10, 11, paras 1 and 2, 13, para 1, 14 (General Assembly), 24, para 2, 25, 36, para 1, 37, para 2, 39, (Security Council), 62 and 63 (Economic and Social Council); Constitution of the International Labour Organization, Article 19, para 1 (General Conference); Constitution of the United Nations Educational, Scientific and Cultural Organization, Article IV, para 4 (General Conference); Constitution of the Food and Agriculture Organization of the United Nations, Articles IV, para 3, and XIV, paras 1 and 2; Constitution of the World Health Organization, Articles 19, 21 and 23 (World Health Assembly); Constitution of the International Telecommunication Union, Article 4 (3); Article 6 (1); Article 54; Constitution of the Universal Postal Union, Article 22 (1)–(4); Convention on International Civil Aviation, Articles 37 and 54, para l; Convention on the International Maritime Organization, Articles 2, paras a and b, 3, 15, paras i and j, 21, para b, 29, paras a and b, 34, para a, 39, paras a and b, 44, para a; Convention of the World Meteorological Organization, Articles 8, para b, 9, 14, para e; Statute of the International Atomic Energy Agency, Article V D; Convention Establishing the World Intellectual Property Organization, Article 7, para 2 (ii); Constitution of the United Nations Industrial Development Organization, Article 8, para 3, (d) and (e).

  10. 10.

    Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion of 8 December 1927, Series B.—No. 14, 64: ‘As the European Commission is not a state, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.’

  11. 11.

    Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25: ‘International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.’

    Dupuy 2002, pp. 100, 103–104.

  12. 12.

    Competence of the International Labour Organization in Regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture, Advisory Opinion of 12 August 1922, Series B.—No. 2, 23; Competence of the International Labour Organization to Examine Proposals for the Organization and Development of the Methods of Agricultural Production as Well as Other Questions of a Like Character, Advisory Opinion of 12 August 1922, Series B.—No. 3, 53–55; Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion of 23 July 1926, Series B.—No. 13, 22–23; Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion of 8 December 1927, Series B.—No. 14, 64; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, Dissenting Opinion Judge Hackworth, ICJ Reports 1954, 47, 77; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Percy Spender, ICJ Reports 1962, 151, 184; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 19.

  13. 13.

    Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion of 8 December 1927, Series B.—No. 14, 64; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25.

    Klabbers 2002, pp. 63–67.

  14. 14.

    Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion of 23 July 1926, Series B.—No. 13, 18: ‘It results from the consideration of the provisions of the Treaty that the High Contracting Parties clearly intended to give to the International Labour Organization a very broad power of co-operating with them in respect of measures to be taken in order to assure humane conditions of labour and the protection of workers. It is not conceivable that they intended to prevent the Organization from drawing up and proposing measures essential to the accomplishment of that end. The Organization, however, would be so prevented if it were incompetent to propose for the protection of wage-earners a regulative measure to the efficacious working of which it was found to be essential to include to some extent work done by employers. If such a limitation of the powers of the International Labour Organization, clearly inconsistent with the aim and the scope of Part XIII, had been intended, it would have been expressed in the Treaty itself. On the other hand, it is not strange that the Treaty does not contain a provision expressly conferring upon the Organization power in such a very special case as the present.’; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174, 180: ‘(…) the rights and duties of an entity such as the Organization must depend on its purposes and functions as specified or implied in its constituent documents and developed in practice.’; 182–183: ‘Under international law, the Organization 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.’; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Reports 1954, 47, 56–58; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Percy Spender, ICJ Reports 1962, 151, 196; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25: ‘[T]he necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as “implied” powers.’

    Zemanek 1997, paras 145–149; Klabbers 2001, pp. 295–297, 302–303; Klabbers 2002, pp. 67–73.

  15. 15.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para 110: ‘As to the basis of the resolution, Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case. The reference in paragraph 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 paragraph 1.’; Separate Opinion Judge Padilla Nervo, 118; Separate Opinion, Judge De Castro, 187.

    Castañeda 1969, pp. 71–76.

  16. 16.

    Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 19.

  17. 17.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168: ‘But when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.’

  18. 18.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168: ‘In the legal system of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.’

  19. 19.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168: ‘These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action.’

  20. 20.

    Competence of the International Labour Organization in Regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture, Advisory Opinion of 12 August 1922, Series B.—No. 2, 23: ‘It was much urged in argument that the establishment of the International Labour Organization involved an abandonment of rights derived from national sovereignty, and that the competence of the Organization therefore should not be extended by interpretation. There may be some force in this argument, but the question in every case must resolve itself into what the terms of the Treaty actually mean, and it is from this point of view that the Court proposes to examine the question.’; Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion of 23 July 1926, Series B.—No. 13, 22–23: ‘So, in the present instance, without regard to the question whether the functions entrusted to the International Labour Organization are or are not in the nature of delegated powers, the province of the Court is to ascertain what it was the Contracting Parties agreed on.’

    Bederman 1996, pp. 364–366; Klabbers 2002, pp. 60–63.

  21. 21.

    Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174, 182; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25.

  22. 22.

    Report of the Appellate Body, EC – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, para 115: ‘The standard of review appropriately applicable in proceedings under the SPS Agreement, of course, must reflect the balance established in that Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves.’

  23. 23.

    Pastor Ridruejo 1998, pp. 193–214.

  24. 24.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Dissenting Opinion Judge Bustamante, ICJ Reports 1962, 151, 304.

  25. 25.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Gerald Fitzmaurice, ICJ Reports 1962, 151, 210; Dissenting Opinion President Winiarski, 232–234; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para 115: ‘The decisions are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out.’

    Castañeda 1969, pp. 6–16; Zemanek 1997, paras 397–398 (ICAO, WHO); Tomuschat 1999, Chap. IX, paras 65–66 (General Assembly); Dupuy 2002, pp. 155–156 (ICAO, WHO), 156–157 (Security Council).

  26. 26.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 133.

  27. 27.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168.

  28. 28.

    Report of the Appellate Body, EC – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, para 115.

  29. 29.

    Klabbers 2002, pp. 96–100.

  30. 30.

    Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Advisory Opinion of 15 November 1932, Series A./B.—No. 50, 365, 375: ‘An examination of the Opinions referred to above is sufficient to show that the limits of the sphere of the Labour Organization are not fixed with precision or rigidity in Part XIII, and a study of the text of Part XIII provides ample material for arriving at the same conclusion.’

  31. 31.

    Castañeda 1969, pp. 122–123.

  32. 32.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para 25.

    Klabbers 2002, pp. 202–206.

  33. 33.

    Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion of 7 February 1923, Series B.—No. 4, 24–25.

  34. 34.

    Article 3, paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq), Advisory Opinion of 21 November 1925, Series B.—No. 12, 18–26.

  35. 35.

    Article 3, paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq), Advisory Opinion of 21 November 1925, Series B.—No. 12, 26–28, 27: ‘Though it is true that the powers of the Council, in regard to the settlement of disputes, are dealt with in Article 15 of the Covenant, and that, under that article, the Council can only make recommendations, which, even when made unanimously, do not of necessity settle the dispute, that article only sets out the minimum obligations which are imposed upon States and the minimum corresponding powers of the Council. There is nothing to prevent the Parties from accepting obligations and from conferring on the Council powers wider than those resulting from the strict terms of Article 15, and in particular from substituting, by an agreement entered into in advance, for the Council’s power to make a mere recommendation, the power to give a decision which, by virtue of their previous consent, compulsorily settles the dispute.’

  36. 36.

    Zemanek 1997, paras 402–413.

  37. 37.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168.

  38. 38.

    Delbrück 2002b, para 6.

  39. 39.

    Delbrück 2002b, paras 17–18.

  40. 40.

    Wood 2006, paras 18–19.

  41. 41.

    Schilling 1995, pp. 93–96; Martenczuk 1999, pp. 534–546.

  42. 42.

    Delbrück 2002a, para 11.

  43. 43.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 168.

  44. 44.

    Klabbers 2002, pp. 185–192.

  45. 45.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Gerald Fitzmaurice, ICJ Reports 1962, 151, 203.

  46. 46.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 157: ‘The rejection of the French amendment does not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were “decided on in conformity with the Charter”, if the Court finds such consideration appropriate. It is not to be assumed that the General Assembly would thus seek to fetter or hamper the Court in the discharge of its judicial functions; the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion.’

  47. 47.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151, 170–179.

    Weil 1992, pp. 323–324; Tomuschat 1999, Chap. XI, para 49; Chemin 2006, pp. 55–59.

  48. 48.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para 88.

  49. 49.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para 115.

    Weil 1992, pp. 323–324; Tomuschat 1999, Chap. XI, para 49; Chemin 2006, pp. 55–59.

  50. 50.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, Separate Opinion Judge Petrén, ICJ Reports 1971, 16, 130–131: ‘Since Security Council resolution 276 (1970) is based upon General Assembly resolution 2145 (XXI), and upon a series of subsequent resolutions of the General Assembly and Security Council, there can be no question of the Court being able to pronounce on the legal consequences of Security Council resolution 276 (1970) without first examining the validity of the resolutions upon which that resolution is itself based (…) So long as the validity of the resolution upon which resolution 276 (1970) is based has not been established, it is clearly impossible for the Court to pronounce on the legal consequences of resolution 276 (1970), for there can be no such legal consequences if the basic resolutions are illegal, and to give a finding as though there were such would be incompatible with the role of the court.’

  51. 51.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, Separate Opinion Judge Onyeama, ICJ Reports 1971, 16, 143–145: ‘The Court’s powers are clearly defined by the Statute, and do not include powers to review decisions of other organs of the United Nations; but when, as in the present proceedings, such decisions bear upon a case properly before the Court, and a correct judgment or opinion could not be rendered without determining the validity of such decisions, the Court could not possibly avoid such a determination without abdicating its role of a judicial organ. (…) I do not conceive it as compatible with the judicial function that the Court will proceed to state the consequences of acts whose validity is assumed, without itself testing the lawfulness of the origin of those acts. I am therefore of the view that, whether an objection had been raised or not, the Court had a duty to examine General Assembly resolution 2145 (XXI) with a view to ascertaining its legal value; it had an equal duty to examine all relevant resolutions of the Security Council for the same purpose. (…) I conclude that in the present request, the Court had a duty to examine all General Assembly and Security Council resolutions which are relevant to the question posed to it, whether objections had been taken to them or not, in order to determine their validity and effect, and so that the Court can arrive at a satisfactory opinion.’

  52. 52.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, Separate Opinion Judge Dillard, ICJ Reports 1971, 16, 151: ‘A court can hardly be expected to pronounce upon legal consequences unless the resolutions from which the legal consequences flow are themselves free of legal conclusions affecting the consequences. (…) There is, of course, nothing in the Charter which compels these organs to ask for an advisory opinion or which gives this Court (…) a power of review to be triggered by those who may feel their interests unlawfully invaded. But when these organs do see fit to ask for an advisory opinion, they must expect the Court to act in strict accordance with its judicial function. This function precludes it from accepting, without any enquiry whatever, a legal conclusion which itself conditions the nature and scope of the legal consequences flowing from it.’

  53. 53.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, Dissenting Opinion Judge Gros, ICJ Reports 1971, 16, para 18.

  54. 54.

    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para 28.

  55. 55.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Morelli, ICJ Reports 1962, 151, para 2.

  56. 56.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Morelli, ICJ Reports 1962, 151, paras 8–10.

  57. 57.

    Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints Made against the United Nations Educational, Scientific and Cultural Organization, Advisory Opinion of 23 October 1956, Dissenting Opinion Judge Córdova, ICJ Reports 1956, 77, 158–159; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Gerald Fitzmaurice, ICJ Reports 1962, 151, 202–203.

  58. 58.

    Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150, 171.

  59. 59.

    Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Provisional Measures), Order of 14 April 1992, ICJ Reports 1992, 3, paras 39–41: ‘Whereas both Libya and the United Kingdom, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention; Whereas the Court, while thus not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures; Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by the United Kingdom by virtue of Security Council resolution 748 (1992);’; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Provisional Measures), Order of 14 April 1992, ICJ Reports 1992, 114, paras 42–44: ‘Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreements, including the Montreal Convention; Whereas the Court, while thus not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures; Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair the rights which prima facie appear to be enjoyed by the United States by virtue of Security Council resolution 748 (1992).’

  60. 60.

    Tomuschat 1999, Chap. XI, para 49.

  61. 61.

    Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Preliminary Objections), Judgment of 27 February 1998, ICJ Reports 1998, 9, para 50; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Preliminary Objections), Judgment of 27 February 1998, ICJ Reports 1998, 115, para 49.

  62. 62.

    Constitution of the International Labour Organization, Article 37, para 1; Constitution of the United Nations Educational, Scientific and Cultural Organization, Article XIV, para 2; Constitution of the Food and Agriculture Organization of the United Nations, Article XVII, para 1; Constitution of the World Health Organization, Article 75; Articles of Agreement of the International Bank for Reconstruction and Development, Article IX, paras a and b; Convention on International Civil Aviation Organization, Article 84; Convention on the International Maritime Organization, Articles 69 and 70; Convention of the World Meteorological Organization, Article 29; Statute of the International Atomic Energy Agency, Article XVII A; Constitution of the United Nations Industrial Development Organization, Article 22, para 1.

  63. 63.

    Klabbers 2002, pp. 235–243.

  64. 64.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Percy Spender, ICJ Reports 1962, 151, 195–197.

    Alvarez 2005, pp. 87–92.

  65. 65.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Gerald Fitzmaurice, ICJ Reports 1962, 151, 202–205; Dissenting Opinion President Winiarski, 232.

    Zemanek 1997, paras 150–160.

  66. 66.

    Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, Separate Opinion Judge Sir Percy Spender, ICJ Reports 1962, 151, 183.

  67. 67.

    Klabbers 2002, pp. 202–206.

  68. 68.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 131–132.

  69. 69.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 132.

  70. 70.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 133.

  71. 71.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 133.

  72. 72.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 133–136.

  73. 73.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 136–138.

  74. 74.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 133, 136.

  75. 75.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 132.

  76. 76.

    Castañeda 1969, p. 128.

  77. 77.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, Separate Opinion Sir Arnold McNair, ICJ Reports 1950, 128, 157–162; Separate Opinion Judge Read, 164–173.

  78. 78.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 138–140.

  79. 79.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, Dissenting Opinion Judge De Visscher, ICJ Reports 1950, 128, 186–190; Dissenting Opinion Judge Krylov, 191–192.

  80. 80.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, Dissenting Opinion Judge Alvarez, ICJ Reports 1950, 128, Section VII.

  81. 81.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128, 141–143.

  82. 82.

    International Status of South-West Africa, Advisory Opinion of 11 July 1950, Separate Opinion Sir Arnold McNair, ICJ Reports 1950, 128, 162–163.

  83. 83.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para 81:

    hus, by South Africa’s own admission, “supervision and accountability” were of the essence of the Mandate, as the Court had consistently maintained. The theory of the lapse of the Mandate on the demise of the League of Nations is in fact inseparable from the claim that there is no obligation to submit to the supervision of the United Nations, and vice versa. Consequently, both or either of the claims advanced, namely that the Mandate has lapsed and/or that there is no obligation to submit to international supervision by the United Nations, are destructive of the very institution upon which the presence of South Africa in Namibia rests, for:

    The authority which the Union Government exercises over the Territory is based on the Mandate. If the Mandate lapsed, as the Union Government contends, the latter’s authority would equally have lapsed. To retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified (I.C.J. Reports 1950, p. 133; cited in I.C.J. Reports 1962, p. 333).

  84. 84.

    Dupuy 2002, pp. 215–244.

  85. 85.

    Dupuy 2002, pp. 299–307.

  86. 86.

    Paulus 2001, pp. 285–328.

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    Jan Anne Vos

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Vos, J.A. (2013). The Concept of International Institution Situated Within the Framework of Obligation and the Framework of Authorization. In: The Function of Public International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-861-3_13

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