1. University of Macerata Prof. Avv. Roberto Baratta, PhD
International Institutions Law 6

2. It is generally agreed that IIs can only work on the basis of the conferred powers according to the constituent treaty (principle of conferral or doctrine of attributed powers or principle of speciality) “The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. 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”, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Request by WHO, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 66 ss., a p. 78, § 25
conferred

3. Article XVI.1 of the constituent instrument of FAO “The Organization shall have the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the powers granted to it by this Constitution” Article 1.2 OAS “The Organization of American States has no powers other than those expressly conferred upon it by this Charter, none of whose provisions authorizes it to intervene in matters that are within the internal jurisdiction of the Member States”.

4. Situations of competence creep by virtue of extensive practice = exercise of implied powers Classic definition of implied powers “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” (Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174 ss., p. 182)

5. The underlying argument is along the line of a delegation (or loans) of powers from the MS to the II. How to determine exactly 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 IIs 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:

6. 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 legal approach, i.e. looking to constituent treaties instead of embarking on social theories, of which no mention is made in the Treaty - was adopted by the PCIJ Opinion n 13 on ILO (1926)

7. 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 the Commission “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”.

8. This approach squares with prevailing positivist mode of thinking in international law: restrictions on sovereignty are not to be presumed. IIs 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 …”

9. 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. So there is no reason to extend the IO’s powers beyond those which have been explicitely attributed to it.
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.
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 II is just a common vehicle for its members to achieve common goals. So there is no reason to extend the II’s powers beyond those which have been explicitely attributed to it.
- as to the practical issue: since IIs 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 II.

10. IIs 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

11. 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 (effet utile doctrine)
- 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”

12. Thus, IIs 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).

13. 2. Implied powers flow from the need to pursue the objectives and goals of the institution 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 II objectives

14. 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 of sovereignty. The latter is endorsed by some authors: the IIs 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

15. Reconciling the attribution principle and implied powers doctrine
- For the sovereignity of states theorists, that principle finds its rationale in the manifest will of the founders. There is no room to imply any powers
- For the theorists who defend the interest of the Institution 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

16. 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 a given II; and the mere necessity is not sufficient, being it a blank cheque that would be given to the II Arguably EU external competence based on the idea of ‘parallelism’ - whereby 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) - it is quite justified. For it was based on primary law provisions that allowed EU to exercise competences internally

17. Seyersted’s view of inherent powers: IIs 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 critics, 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 IIs to reach their aims.
Second, the II functioning is easier since the legal control over the I 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 completely ignores the intention of the drafters. Moreover, the test that an action must be aimed at contributing to the purposes of the I is vague and easy to meet

18. 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” (Opinion of 8 July 1996, I.C.J. Reports 1996, 66)
According to some critics, the doctrine of implied powers is loosing appeal

19. The solution from a legal point of view Since the constituent instrument of the Institution is a treaty, the law of treaties is to be applied 1) The legal basis for an inherent or implied power is the constituent treaty itself as long as that power is provided for in it by virtue of its interpretation (intra-system solution) 2) the practice of the institution’s organs may be the basis for additional powers  genuine implied powers - because outside the scope of attributed powers (extra-system solution) The legal basis is a customary rule of international law, since a custom may modify a treaty  Certain expenses of the United Nations – practice “adopted without a dissenting vote”

20. Treaty interpretation rules General rule of interpretation A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (article 31(1) VCLT) It reflects customary IL

21. Four fundamental criteria: 1) Good faith 2) The actual text of the agreement  the focus is on the analysis of the words 3) The context (the text of the treaty, including its preamble and annexes, as well as any other agreement or instrument concluded by the parties and accepted by the other parties as an instrument related to the treaty; subsequent practice)  systematic approach

22. 4) Emphasis on the object and purpose of the treaty  theological approach The fifth criterion is complementary: the will of the parties: a ‘special meaning shall be given to a term if it is established that the parties so intended’ (article 31(4) VCLT)  the objective theory prevails; travaux préparatoires as a subsidiary means of interpretations

23. Three methods of interpretation So: Article 31 VCLT lays down the general rules: treaty are interpreted in good faith, according to the ordinary meaning of its wordings (textualism), in their context (systematic approach) and in the light of its object and purpose (teleological approach) The context includes the subsequent practice between the parties

24. As complementary tools of interpretation, VCLT allows parties to resort to a more historical approach in the case the general rules leads to absurd or unreasonable result or leaves the meaning of a term ambiguous or obscure
It is often argued that some treaties require a more goal-oriented mode of interpretation, e.g. human rights treaties and IIs constituent instruments
The most clear example is the ECJ case-law: the EU is to be regarded as a new and unique legal order; direct effect; primacy etc

25. According to some authors, to be justified the teleological interpretation presupposes an agreement between the participants MS on the precise goals of the Institution being achieved. General rules are more balanced since they show at best the intention of the parties (to put it clear, direct effect, primacy and so forth would have been clearly stated in the EU treaties, if the EU MS wished so to do)
ICJ case-law does not refer to teleological interpretation in 1960 IMCO Maritime Safety Committee case, embracing an ‘ordinary meaning’ approach to interpretation instead
Sato’s conclusion (in Evolving Constitution book): where the text of a treaty is sufficiently clear, interpretative bodies do not usually look further. It is doubtful whether there is a special rule regarding the interpretation of IIs instruments based on teleological approach

26. As to the power to interpret the IIs treaties, the general principle is that each organ is responsible for interpreting the constituent documents. Thus, the balance of power shifts away from MS to organs
In 1962 Certain Expenses case, the ICJ held that ‘each organ must, in the first place at least, determine its own jurisdiction’
As to the EU, the balance tilts in favour of the ECJ as consequence of Article 19 TEU. In 1995 Bosman ruling C-415/93, ECJ affirmed that the other institutions do no have the power to render an authoritative interpretation of the treaties. Or rather their interpretations remain subject to review by ECJ. So the Commission ‘may not give guarantees concerning the compatibility of specific practice with the treaty. In no circumstances does it have the power to authorise practices which are contrary to the Treaty’ (para 136). The ultimate power of interpretation lies on the ECJ, arguing from Article 19 TEU

27. Why does the doctrine of implied powers matter in practical terms
Why does the doctrine of implied powers matter in practical terms? The need to revise the constituent treaty since it is a living instrument of cooperation between the contracting parties  insofar as social needs changes, the law must be adapted accordingly

28. Treaty amendments and revisions
Need to adapt the constituent instrument when the circumstances change
The EU treaties - Article 48 is based on unanimity. So it implies a veto power to each of its members - high degree of rigidity (the highest the number, the most difficult revision is)
Other treaties provide that amendments shall become effective when approved by a two-thirds majority of all members, e.g.
- Article XXXIII of the Charter of the Organisation of American States;
- the UN Charter, Article 108: approval by two-thirds of the GA and ratification by two-thirds of MS including the permanent members of the SC; the latter enjoy a veto power)
- other International Institutions treaties (ICAO or FAO) allows MS that amendments will not bind them. As a result, different members are bound by different versions of the constituent document (differentiation or fragmentation of the treaty regime)

29. Is it possible to bypass formal amendment procedures, and instead legislate to reach the same result or engage in a certain practice that was unforeseen in the constituent document? Relying on the implied powers doctrine when it is difficult to revise the constituent instrument
The UN practice that engaged in peace-keeping activities without the Charter having referred to the term
The NATO practice: it has changed its activities since the end of the Cold War by means of summit declarations and new strategic concepts
Obvious criticism: the Institution lacks the competence to engage in activities not provided for in the constituent treaties
The EU does not expose to that criticism - case (1976) Defrenne v Sabena 43/75: the ECJ, while noting that a MS resolution “was ineffective to make any valid modification of the time-limit fixed by the Treaty”, clearly held that “the Treaty can only be modified by means of the amendment procedure carried out in accordance with Article 236”.