University of Macerata Prof. Avv. Roberto Baratta, PhD University of Macerata Prof. Avv. Roberto Baratta, PhD International Organisations Law 5 International Organisations Law 5

It is generally agreed that IOs can only work on the basis of their legal powers (principle of conferral or doctrine of attributed powers) The underlying argument is along the line of a delegation (or loans) of powers from the MS to the IO. How to determine the scope of the powers? PCIJ Opinion n 2 on the Competence of the ILO to Regulate the Condition of Labour of Persons Employed in Agriculture (1922): the proper scope of the powers of IOs was regarded as matter of interpretation of the terms used under the constitution of the ILO - the PCIJ concluded that ILO was empowered to regulate labour relations in the agricultural sector: the scope of powers must “depend entirely upon the construction to be given to the … treaty provisions from which, and from which alone, that Organisation derives its powers” (p. 53) The same line of reasoning based on a mere contractual approach, i.e. looking to constituent treaties - instead of embarking on social theories, of which no mention is made on the Treaty. That approach was adopted by the PCIJ Opinion n 13 on ILO (1926)

In an Opinion concerning the powers of the European Commission for the Danube, the PICJ formulated a general theory because it thought that the contractual approach created uncertainty. It held that that org. “is not a State, but an international institution with a special purpose”. Thus, “it has only the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has powers to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it”. This approach squares with prevailing positivist mode of thinking in international law: restrictions on sovereignty are not to be presumed. IO are but a construct of sovereign states will: as a result, they must remain within the powers conferred upon them One of the clearest expression of the doctrine of attributed powers is to be found in Article 5(2) TEU: the Union “shall act only within the limits of the competences conferred upon it by the MS in the Treaty to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain within the MS”.

The same holds true for the EU institutions and organs - Article 13 (2) TEU “Each institution shall act within the limits of the powers conferred on it in the Treaties …” The principle of attribution raises two issues, one theoretical, the other more practical - as to the theoretical issue: if one takes the principle to its extreme, the IO is just a common vehicle for its members rather then an entity with a distinct will of its own. Easy counter-argument: that is not necessarily true because the IO will may be formed in accordance to decision-making process based on majority - as to the practical issue: since IOs are dynamic entities, the principle of attribution is a point of departure, given that the constituent treaties could not envisage any future problem: gaps to be filled somehow are unavoidable in the life of an IO. IOs must be allowed some flexibility, granting them certain powers impliedly. There is quite wide agreement among scholars that implied powers exist and are generally a good thing. The main issue relates to its justification

The doctrine of implied powers two competing theories about its foundation: 1. implied powers flow from a rule of interpretation which holds that treaty rules must be interpreted in such a way to guarantee their effectiveness or effet utile - IPCJ 1928 Opinion on Interpretation of Greco-Turkish Agreement that created a mixed commission: “from the very silence of” the treaty “on this point, it is possible and natural to deduce that the power to refer a matter to the arbitrator rests with the Mixed Commission”. The power is implied in the existence of another, explicit power. - ECJ, 8/55, joined cases 281, 283 and 287/85 Germany v Commission: effective interpretation of the treaties. - judge Hackworth in its dissenting opinion to the ICJ Reparation for injury case: “powers not expressed cannot freely be implied. Implied powers flow from a grant of express powers, and are limited to those that are “necessary” to the exercise of powers expressly granted”

Thus, IOs must be deemed to have those powers, though not expressly provided in its constituent instrument; they are conferred upon it by necessary implication as being essential to the performance of its duties. In this perspective the doctrine of implied powers entails flexibility and uncertainty - what is necessary? Who decides what is essential for performing a duty? The criterion of ‘essential to the performance of duties’ often prevails in the ICJ case law. ICJ 1954 opinion in the Effect of Awards case - When asked as to whether the UNGA had the power to establish an administrative tribunal, the ICJ replied in the affirmative. Indeed, that power arose ‘by necessary intendment out of the UN Charter’; it ‘was essential to ensure the efficient working of the Secretariat’ (p.57).

2. ICJ 1962 Opinion in Certain Expenses of the UN, it formulated the doctrine of implied powers in a presumptive way: ‘when the Org takes action … for the fulfilment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires the Org’ (p. 168). In 1971 Namibia Opinion, the ICJ found that the GA had the power to terminate South Africa’s Mandate over Namibia. It built its entire reasoning on the idea the GA had succeeded to the supervisory role of the League of Nations so that the power to terminate rested upon the principle of succession. Admittedly, this conception is quite broad since it is founded on the pursuing of the IO objectives General assessment. The implied powers doctrine has proved immensely seductive for both instrumentalist sentiments and internationalist views. The counter theory is based upon the notion sovereignty. The latter is endorsed by Klabbers: the IOs powers must be kept in check. It may lead to more effective international governance, but not necessarily to greater democracy or legitimacy, and may undermine the position of citizens

Reconciling the attribution principle and implied powers doctrine - the former finds its rationale in the manifest will of the founders. there is no room to imply any powers - the latter on the interest of the Org to effective functioning. Had the founders only thought of it, they would no doubt have granted a power to ensure effectiveness The ICJ justified implied powers ‘by necessary intendment’ of the founders A way to limit the implied powers doctrine has been suggested by judge Hackworth as a preliminary requirement to apply it: there must be an explicit power from which another power can be implied. Thus, an implied power cannot flow from the purposes of the Org.; and the mere necessity is not sufficient, being it a blank cheque that would be given to the IO Arguably, within the EU the doctrine of implied powers as to conclude international agreements in the fields in which the EU had no explicit competence (the so-called ERTA doctrine), is quite justified. For it was based on primary law provisions that allowed EU to exercise competences internally

Seyersted’s view of inherent powers: IOs would possess inherent powers to perform all those acts they need to perform to attain their aims. These powers inhere in organisation-hood. As long as acts are not prohibited in the constituent instrument, they must be deemed legally valid. According to Klabbers, this approach is somewhat exotic and never gained much following White’s approach. The advantages of inherent powers doctrine are twofold. First, it is functional for it helps Os to reach their aims. Second, the IO functioning is easier since the legal control over the is reduced to two elements: a) does the act aim to achieve the O’s purpose? b) Is the act at stake expressly prohibited? As to EU, Dashwood shows a sense of unease from viewing external relations powers as being almost exclusively based on implied powers (the so-called ERTA doctrine). However, the Treaty of Lisbon (2009) codified that doctrine Klabbers argues that the implied powers doctrine is incoherent because it ignores completely the intention of the drafters. Moreover, the test that an action must be aimed at contributing to the purposes of the O is not terribly strict

Nowadays, international judges tend to approach the implied powers issue more restrictively than in the past ECJ, C-376/98 Tobacco directive case: the EU lacks the power to engage in certain activities, i.e. banning the advertising of tobacco products ICJ, asked for an opinion by the WHO concerning the legality of nuclear weapons, it found that the WHO’s constitution did not grant it the power to address issues concerning the legality of weapons systems: “none of the functions of the WHO is dependant upon the legality of the situations upon which it must act”; the “competence of the WHO to deal with” its constituent activities “is not dependant on the legality of the acts that caused them” According to Klabbers, the doctrine of implied powers is loosing appeal