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Max Planck Encyclopedia of Public International Law [MPEPIL]

International Organizations or Institutions, Secondary Law

Markus Benzing

Content type:
Encyclopedia entries
Product:
Max Planck Encyclopedias of International Law [MPIL]

Module:
Max Planck Encyclopedia of Public International Law [MPEPIL]
Article last updated:
March 2007

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 April 2025

Subject(s):
Acts of international organizations — International organizations, practice and procedure

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Introduction

1.  Primary and Secondary Law of International Organizations

1  The law of international organizations can be divided into primary and secondary law, the primary law being the founding treaties, sometimes characterized as the constitutions of the organizations. Secondary law derives from primary law, in that its normative effect formally depends upon a primary source of international law, ie a treaty provision allocating this competence to the organization. In its derivative character, it is to be distinguished from the law generated by the conclusion of treaties between two international organizations. These treaties do not fall within the scope of secondary law, but are rather a source of law sui generis (International Law, Development through International Organizations, Policies and Practice; International Organizations or Institutions, External Relations and Co-operation).

2  Secondary law of international organizations is comprised of acts produced by those organizations. Under traditional international law doctrine, these acts do not constitute a separate source of international law, given that, according to this view, a source of law must by definition be one that produces binding abstract and general rules. Accordingly, decisions and other acts of international organizations are not explicitly mentioned in Art. 38 Statute of the International Court of Justice (‘ICJ Statute’) (International Court of Justice [ICJ]). There is, however, growing consensus that secondary rules promulgated by international organizations today form part of the sources of international law (see, eg, Tomuschat 325). The characterization of legal acts of international organizations as an independent source of international law pays tribute to the fact that such secondary law plays an increasingly important role for the development of international law. These legal acts are a secondary source of international law as they formally derive their legal effect from a primary source, ie a treaty.

3  Due to its provenance, such secondary law does not normally, however, form part of general international law (General International Law [Principles, Rules and Standards]), but is regime-specific and only applies within the respective legal order of the international organization. One of the most prominent examples of secondary law of international organizations is the law produced by the organs of the European Union (‘EU’) (European Union, Historical Evolution).

2.  The Growing Importance of Secondary International Law

4  With the growing interdependence of the international system, and especially as a result of globalization, an ever increasing number of problems cannot be solved solely by unilateral action of States. The necessity of inter-State co-operation results more and more often in the creation of international institutions tasked with a functionally limited mandate. This leads both to an expansion of the subject-matters regulated by international law, as well as an increase in the normative density with which these matters are regulated. Both phenomena are intrinsically connected with an ever shrinking domaine réservé of States.

5  At the same time, in order to fulfil their respective mandates satisfactorily, international organizations need flexible tools to adapt to changing situations and needs. A regulation of these new challenges by way of traditional inter-State treaty-making would often be too cumbersome and slow. International treaties are often too static to allow for speedy and effective adaptation. In addition, many rules needed to fill the framework set up by founding treaties of international organizations are of too technical a nature to be reasonably included in international treaties. These phenomena account for the ever growing significance of secondary law of international organizations. By way of creating secondary law, international organizations thus partake in global governance.

3.  Forms of Legal Acts of International Organizations

6  In order to put into effect their mandate, international organizations and institutions use a wide variety of instruments and various forms of decision-making, varying widely in their function and normative status. Resolutions are one prominent example, while other forms comprise decisions, recommendations, declarations, regulations, directives, standards, or guidelines. In addition, some international organizations use instruments of a more managerial type, such as policy programmes for action or reporting and monitoring devices. Relevant categories according to which different types of legal acts of international organizations can be distinguished are: a) whether they are binding or not; b) whether they produce their effects in a sphere internal or external to the organization; c) whether they apply to States, whether member or non-member, to individuals, to other international organizations, or to international courts; d) whether they are executive or legislative in character; e) whether they are lawful or not. These categories are neither fully comprehensive nor clear-cut and overlap to a considerable extent; nevertheless, they are useful for a systematic and comprehensive study of the secondary law of international organizations.

7  Although an important indication, the nomenclature accorded to an act of an international organization often is not determinative of its legal status. While the term ‘resolution’ does not appear in the United Nations Charter, within the United Nations (UN) system it is normally taken to include both recommendations and decisions and can thus serve as a generic term for these acts. The ICJ generally reserves the term ‘recommendation’ for non-binding, and the term ‘decision’ for binding acts (see Certain Expenses of the United Nations [Article 17, Paragraph 2, of the Charter] [Advisory Opinion] [‘Certain Expenses of the UN (Advisory Opinion)’] 163; Certain Expenses of the United Nations [Advisory Opinion]). An act named ‘resolution’ is thus not necessarily binding, nor is it in all cases executive in character. Additionally, even within an otherwise binding resolution, there may be parts of a merely recommendatory or declaratory character. This shows that the effect of an act of an international organization needs to be assessed according to various factors, its name just being one of many.

B.  Legal Effect of Secondary Law

8  Due to uncertain classification and nomenclature, the legal effect of acts of international organizations cannot be determined by reference to their name only. Instead, the instrument on the authority of which the act has been adopted needs to be analysed, as well as its actual contents. Even though the dividing line is not always easy to draw, it seems useful, for reasons of clarity, to distinguish between internal and external effects of legal acts (see paras 1–2 above). In addition, such acts can be analysed by their normative consequences (see para. 3 above).

1.  Effects of Legal Acts within the Internal Sphere of the Organization (Internal Secondary Law)

9  All international organizations, and more specifically their organs, have the competence to regulate their procedure and their organizational structure within the limits set by their governing instrument (International Organizations or Institutions, Internal Law and Rules). While most treaties setting up international organizations provide for this power explicitly, this competence is accorded to them even where the constituent treaty is silent. Thus, one important field of application of secondary law is the internal sphere of international organizations, be it with respect to the relationship between the Member States and the organization, the organization and its employees, or the internal functioning of their organs. The ensemble of norms—primary and secondary—regulating the functioning of the organization may be considered the internal law of an international organization.

10  As far as the UN is concerned, internally effective acts are the admission or expulsion of members, or the suspension of their membership (Arts 4–6 UN Charter), the approval of the budget (Art. 17 UN Charter), and the establishment of subsidiary organs by the UN General Assembly (Art. 22 UN Charter) or the UN Security Council (Art. 29 UN Charter) (United Nations, General Assembly; United Nations, Security Council).

11  Moreover, international organizations generally have the competence to regulate in a binding manner employment conditions of their international civil servants (Civil Service, International). Here, internal acts have direct effect on individuals (Individuals in International Law).

2.  Legal Acts Taking Effect outside the International Institution (External Secondary Law)

12  The external law of international organizations comprises all norms concerning the legal relationship with other subjects of international law that take effect outside the organizational structure of the institution. The external effect of secondary law, in particular resolutions, is in most cases limited to the Member States of the organization adopting the act (see paras 13–18 below). However, there may be instances where the legal effect of acts is erga omnes, ie also binding on third States (see para. 19 below). Furthermore, legal acts may also directly affect individuals (see paras 20–23 below). Finally, acts of one international organization may also in one way or another affect or even bind other international organizations (see paras 24–25 below). The more legal acts of international organizations affect individuals, the more the question of the democratic legitimacy of international organizations gains in importance (International Organizations or Institutions, Democratic Legitimacy).

(a)  Effects of Legal Acts vis-à-vis the Member States of the Acting Organization

13  Legal acts have binding effect on the Member States of an organization insofar as the organ adopting the act is competent to do so in an obligatory manner and an interpretation of the act in question clarifies that it was in fact intended to be binding. Generally, the competence to issue binding decisions or resolutions is the exception rather than the rule, and must hence be expressly accorded to international organizations.

14  Textbook examples for binding acts are resolutions of the UN Security Council which are obligatory by virtue of Art. 25 UN Charter—reinforced by Art. 48 for resolutions under Chapter VII UN Charter. Security Council resolutions are included in the scope of Art. 103 UN Charter. Besides creating obligations, binding resolutions may have authorizing effect, eg, where a Security Council resolution authorizes the use of force against a State (Use of Force, Prohibition of). It is doubtful, however, whether non-binding resolutions may have the same effect of authorizing States to act in violation of other norms of international law, thus justifying their otherwise unlawful behaviour.

15  Organs of other international organizations have also been accorded the competence to issue binding resolutions to their Member States. For instance, within the World Trade Organization (WTO), the Ministerial Conference may take decisions (Arts III (2), IV (1) Agreement establishing the World Trade Organization [‘WTO Agreement’]), adopt amendments (Art. X WTO Agreement), or issue interpretations (Art. IX (2) WTO Agreement). In addition, it may waive obligations of members (Art. IX (3) WTO Agreement [Waiver]). The Congress of the World Meteorological Organization (WMO) can determine general or technical regulations (Art. 7 (a), (d) Convention of the World Meteorological Organization [‘WMO Convention’]), and the WMO Congress Executive Committee may adopt resolutions on matters of urgency (Art. 14 (b) WMO Convention). The Assembly of the African Economic Community (‘AEC’) may take decisions which are to be automatically enforceable 30 days after promulgation; as well as directives (Arts 8 (h), 10 Treaty establishing the African Economic Community [‘AEC Treaty’]), the AEC Council may issue binding regulations (Art. 13 AEC Treaty).

16  Some resolutions of international organizations automatically become binding for States if they do not declare not to be bound within a certain period of time (‘contracting out’, see Arts 21–22 Constitution of the World Health Organization [WHO] [‘WHO Constitution’] with respect to WHO regulations; Arts 37–38, 54, 90 Convention on International Civil Aviation [‘ICAO Convention’], in relation to annexes to the Chicago Convention [1944] [International Civil Aviation Organization (ICAO)]. Under Art. 6 (3) OECD Convention (Organization for Economic Cooperation and Development [OECD]), decisions of the OECD Council become binding only upon ratification by each Member State.

17  While binding legal acts are gaining in importance, the classic tool of interaction by international organizations with their Member States is that of non-binding recommendations. Resolutions of the UN Security Council taking the form of mere recommendations, though not legally binding, may nevertheless exercise a powerful compliance pull. The importance of international organizations for global co-operation speaks in favour of a general duty of Member States at least to consider seriously whether they ought to follow a non-binding resolution. The same applies to resolutions of the UN General Assembly which are generally not binding (see South West Africa Cases [Ethiopia v South Africa; Liberia v South Africa] [Second Phase] 51; South West Africa/Namibia [Advisory Opinions and Judgments]). However, they may contribute to the formation of customary international law (see paras 30–33 below).

18  The general rule is that legal acts of international organizations are not directly applicable in national legal orders (International Law and Domestic [Municipal] Law, Law and Decisions of International Organizations and Courts). However, States are obliged to implement the obligations arising from secondary law into their national legal systems. Independently from this implementation, States are generally prohibited from acting in conflict with the contents of binding secondary law and may otherwise incur State responsibility.

(b)  Effects of Legal Acts vis-à-vis Third States

19  According to the rule that treaties only create rights and duties for the parties (pacta tertiis nec nocent nec prosunt) (Art. 34 Vienna Convention on the Law of Treaties [1969] [‘VCLT’]), the treaties setting up international organizations, and, a fortiori, resolutions or decisions adopted by institutions pursuant to these instruments, do not create binding legal effects for States other than those which are members of the organization (but see Art. 6 (2) UN Charter). However, it is sometimes argued that particular acts of international organizations may have erga omnes effect (Obligations erga omnes). For instance, acts of the International Seabed Authority (ISA) taken under Part XI UN Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the UN Convention on the Law of the Sea with respect to resource exploration and exploitation of the seabed and subsoil beyond the limits of national jurisdiction have been stated to be valid and binding even vis-à-vis States not member to the UN Convention on the Law of the Sea. The reason given for the erga omnes effect of the ISA’s decisions is that it acts on behalf of ‘mankind as a whole’ (Art. 153 (1) UN Convention on the Law of the Sea), the seabed and its resources being the ‘common heritage of mankind’ (Art. 136 UN Convention on the Law of the Sea) (Common Heritage of Mankind; International Seabed Area).

(c)  Effects of Legal Acts vis-à-vis Individuals

20  Acts of international organizations other than those regulating the internal sphere of the institution are normally directed at States only. However, from time to time, organizations take decisions that are legally binding on individuals. In this respect, a distinction has to be made between an act that binds individuals qua international law on the international plane, and an act that is directly applicable to an individual in the domestic sphere of States. The latter requires a piercing of the corporate veil of States and a direct applicability of legal acts in national legal systems.

21  Some international organizations have been given the competence to bind individuals directly, the most prominent being the EU. In all other instances, the general rule is that international organizations have no power to address individuals, and that legal instruments adopted by them are not directly applicable in national legal orders.

22  An indirect effect of legal acts on individuals can be achieved by establishing international criminal tribunals (International Criminal Tribunal for Rwanda [ICTR]; International Criminal Tribunal for the Former Yugoslavia [ICTY]). These tribunals, as subsidiary organs of the UN Security Council, directly apply international law to individuals. The same is true for resolutions imposing travel bans and the freezing of assets for persons included on a list managed by a subsidiary organ of the Security Council (UNSC Res 1267 [1999] [15 October 1999]; see generally Sanctions; Terrorism).

23  A recent Security Council resolution for the first time directly named individuals and subjected them to sanctions (UNSC Res 1672 [2006] [25 April 2006]). This may point towards a development that will allow international organizations to act with direct effect on individuals. A specific form of direct effect of resolutions occurs where international organizations perform the international administration of territories. In these cases, subsidiary organs of international organizations exercise, as the case may be, virtually all functions of national government (UNSC Res 1244 [1999] [10 June 1999]: Kosovo; UNSC Res 1272 [1999] [25 October 1999]: East Timor).

(d)  Effects of Legal Acts vis-à-vis International Organizations

24  Within one international organization, legal acts of one organ may bind or authorize other organs to act in a certain way. This is different as between two international organizations. Except otherwise provided, they are independent from each other and operate on an equal footing. This means that legal acts of one organization are normally not binding for another.

25  Nevertheless, some acts taken by international organizations have legal effect on other institutions. Generally, such effect needs to be authorized by a specific provision in a founding treaty of a specific organization, or a treaty concluded between two or more international organizations (‘relationship agreement’). Examples include Arts 13 (c) and 16 Statute of the International Criminal Court (ICC), which grant the UN Security Council a certain influence on the operation of the ICC. Another instance is the relationship between the International Monetary Fund (IMF) and the WTO (see Art. XV (2) General Agreement on Tariffs and Trade [1947 and 1994]; Art. XII (5) (e) General Agreement on Trade in Services [1994]).

3.  Normative Consequences of Secondary Law

(a)  Executive Acts

26  The standard effect of a resolution adopted by an international organization is the definitive regulation of an individual case. It can be equated to the executive or administrative function of government in national systems. To give expression to this, resolutions of international organizations can be most aptly termed ‘decisions’. The UN Charter envisages that UN Security Council enforcement measures under Chapter VII are directed at concrete situations and terminated when the purpose for which they were adopted, ie to counter a threat to international peace and security, ceases to exist (Peace, Threat to).

(b)  Legislative Acts

27  International legislation is classically the province of States, be it in the form of the conclusion of treaties or by the formation of customary international law. International organizations have long played a far more limited role in this respect. One important legislative aspect of the word of international organizations is the definition of their internal rules and procedures. As concerns external secondary law, their powers and competences are less extensive. At most they are called to prepare a treaty text, later to be ratified by States, or to discuss possible changes to international law in appropriate forums and thus to contribute to the codification and progressive development of international law, or the formation of customary international law (Art. 13(1) (a) UN Charter; see paras 30–33 below). In a limited sense, law-making by international organizations occurs where they are granted the competence to amend their own constituent treaties (Art. XX Constitution of the Food and Agriculture Organization of the United Nations [Food and Agriculture Organization of the United Nations (FAO)]; Art. XIII (1) Constitution of the United Nations Educational, Scientific and Cultural Organization [United Nations Educational, Scientific and Cultural Organization (UNESCO)]; statutory resolutions under Art. 20 Statute of the Council of Europe [Council of Europe (COE)]). Traditionally, however, law-making power in the sense of the promulgation of generally applicable rules has not been vested in international organizations.

28  However, some international organizations do have the competence to issue acts that are legislative in character, in that they do not purport to regulate a specific single case, but provide for a general rule applying to an unlimited number of cases within a given situation—concrete-general application of the rules—or even a potentially unlimited number of situations—abstract-general application of the rules. The most prominent example of this form of secondary legislation is to be found in the law of the EU, whose organs can pass legislative acts in the form of regulations and directives. Apart from this, there are few international organizations endowed with the express competence to issue resolutions of a legislative character. These include the WHO which can adopt regulations (Arts 21–22 WHO Constitution).

29  The UN system does not include a legislature (Prosecutor v Tadić [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction] para. 43; Tadić Case). A relatively new phenomenon in this respect is the practice of the UN Security Council to adopt resolutions of general, not specific, content (eg, UNSC Res 1373 [2001] [26 September 2001] with respect to terrorism, and UNSC Res 1540 [2004] [28 April 2004], regulating the non-proliferation of weapons of mass destruction), and to establish organs for the supervision and promotion of compliance with the legislation (Counter-Terrorism Committee). It has even been argued that such legislation could take direct effect within Member States if it is sufficiently clear and does not need to be further concretized by States (see Wagner 913). While the UN Charter does not explicitly provide for such legislative competences of the Security Council, the dominant opinion in literature seems to accept it, as long as the requirements of Chapter VII are fulfilled. However, this phenomenon raises a number of questions, the most important being whether such acts automatically lose their binding nature when the situation justifying the exercise of Chapter VII powers cease to exist.

(c)  Contribution to the Formation of Customary International Law

30  A possible role in the contribution to the interpretation and formation of customary international law is mainly discussed for acts of a non-binding character issued by organs which represent nearly the entire community of States. This makes clear that the main focus here is on resolutions and declarations adopted by the UN General Assembly.

31  Besides playing a role in interpreting the meaning of UN Charter provisions (Art. 31(3) (a) VCLT), General Assembly resolutions may help to elucidate the contents of rules of customary international law. The specific formulation a customary rule has received in a resolution may thus be indicative of its actual contents. Accordingly, the resolution can be characterized as a subsidiary means for the determination of international law not explicitly mentioned in Art. 38 (1) (d) ICJ Statute, while having no effect on the development or emergence of a rule stricto sensu. Such use of General Assembly resolutions has for instance been made by the ICJ in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) (at 103) (Military and Paramilitary Activities in and against Nicaragua Case [Nicaragua v United States of America]).

32  However, the role of resolutions may go beyond that of an interpretation aid. A series of identical resolutions has been considered by the ICJ in the Nuclear Test Case (Australia v France) (at 255) (Nuclear Tests Cases), to constitute proof of opinio iuris, unless the contents have clearly been viewed by the voting States as merely political in character, or a group of important States has voted against the resolution. Whether repetition is a necessary requirement, though, is doubtful; depending on the circumstances, a single General Assembly resolution may suffice to create a strong indication of opinio iuris.

33  Most importantly, under a traditional positivist doctrine of sources of international law, General Assembly resolutions do not create customary international law ipso facto, but only contribute to its interpretation or formation. Nevertheless, certain resolutions of the General Assembly, as a result of their importance, have arguably been accorded a quasi-legislative character by interpreting them as constituting both elements of customary law (opinion iuris and State practice). The most significant among those are the Universal Declaration of Human Rights (1948) (UNGA Res 217 A [III] [10 December 1948]), the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [XV] [14 December 1960]), and the Friendly Relations Declaration (1970) (UNGA Res 2625 [XXV] [24 October 1970]), even though all industrialized Western States either abstained or voted against the resolution.

(d)  Indirect Effects of Non-binding Legal Acts

34  Recommendations, even though non-binding, may have an indirectly binding effect in that neither the constitutive instrument of the international organization nor the resolution create binding law as such, but this effect is accorded to it by way of another factor. One of these indirect effects is their impact on the formation of customary international law. Moreover, other international agreements may incorporate non-binding legal acts of international organizations by reference. Instances of this phenomenon are found in the UN Convention on the Law of the Sea in relation to International Maritime Organization (IMO) codes, guidelines, regulations, and recommendations, the Agreement on the Application of Sanitary and Phytosanitary Measures (‘SPS Agreement’) in relation to the FAO/WHO Codex Alimentarius (Art. 3 (2) SPS Agreement; Codex Alimentarius Commission [CAC]; Sanitary and Phytosanitary Standards), and the Agreement on Technical Barriers to Trade (‘TBT Agreement’) in relation to the international standards produced by the International Organization for Standardization [ISO] (Art. 2 (4), (9) TBT Agreement; Technical Barriers to Trade).

(e)  Soft Law

35  Inasmuch as legal acts of international organizations do not create binding effect or amount to customary international law, they add to the ever-growing body of international soft law. As such, they exercise only hortatory or moral influence, but can nevertheless be an efficient tool of international governance.

C.  Legality and Validity of Secondary Law

1.  Competence to Adopt Legal Acts

(a)  Competence of the Organization or Institution

36  Every international organization only enjoys international legal capacity insofar as it is necessary to achieve its purpose (International Organizations or Institutions, General Aspects). This functional limitation constitutes the outer limit of the competence of international organizations to adopt secondary law. The competence to adopt legal acts can be explicitly granted to international organizations by their constitutive instrument, or be contained in other secondary legal acts of the organization (delegated authority). Furthermore, such authority may be among the implied powers of international organizations (International Organizations or Institutions, Implied Powers). Finally, international organizations generally have the competence, even if not explicitly mentioned in their constitution, to regulate their internal procedure and organizational structure.

(b)  Competence of the Acting Organ

37  For the legality of the legal act, it is important that it be adopted by the organ to which this competence is allocated (International Organizations or Institutions, Decision-Making Bodies). This issue has become most relevant in relation to the delimitation of the respective jurisdictions of the Security Council and the General Assembly in matters of peace and security, where the Security Council has primary, but not exclusive, responsibility (Uniting for Peace Resolution [1950]). However, in its Certain Expenses of the UN (Advisory Opinion), the ICJ has implicitly stated that even acts adopted by the wrong organ of an otherwise competent organization may be considered valid (at 168).

2.  Substantive Limitations on Organs of International Organizations

38  Organs of international organizations, in adopting legal acts, do not act legibus solutus (Prosecutor v Tadić [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction] para. 28, with reference to the UN Security Council). In addition to rules of competence, international organizations and their organs are subject to the specific substantive limitations contained in their respective statutes. A prominent example is Art. 2 (7) UN Charter, which has been progressively narrowed in its scope of application in the practice of the Security Council, mainly with reference to human rights as an integral part of the definition of international peace and security.

39  Besides treaty-specific limitations, the powers of international organizations are limited vertically—ie vis-à-vis States—by the principle of subsidiarity, and horizontally—ie vis-à-vis other international organizations—by the duty to respect the jurisdiction of other institutions in good faith (bona fide) and not to interfere unreasonably with their competence.

40  In addition, international organizations are bound by general international law in as far as it applies to them, eg Humanitarian Law, International, if the UN or the North Atlantic Treaty Organization (NATO) engages in military operations; general international law may thus also constitute a limitation of competence in specific cases. Finally, international organizations must respect the principle of proportionality and act in good faith.

3.  Effects of Legal Acts Ultra Vires or Violating Substantive Limitations

41  As a general rule, those—purportedly binding—legal acts which have been adopted by international organizations evidently outside their sphere of competence are null and void, ie without any legally binding effect (Nullity in International Law; for procedural errors, see para. 45 below). Soft law instruments, which do not claim binding effect, are less easily characterized as intra or ultra vires. Nevertheless, if they exceed the competence of the organization or organ, they must not be relied upon, especially not where they are incorporated into a—binding—international agreement by way of reference.

42  In addition, legal acts are null and void if they violate fundamental norms of general international law, ie ius cogens norms—in analogy to Art. 53 VCLT.

43  In all other cases, ie when legal acts are contrary to other norms of general international law, international law has not yet developed clear rules as to the consequences of that illegality. According to one view, such legal acts may be unlawful but are not technically void. In parallel to many national administrative law systems, such acts may be voidable, ie legally valid until revoked or declared unlawful by a competent organ or international court. Others contend that, as long as acts of international organizations are not normally subject to judicial review (International Organizations or Institutions, Legal Remedies against Acts of Organs), illegal acts of international organizations cannot be considered valid (see Certain Expenses of the United Nations [Article 17, Paragraph 2, of the Charter] [Separate Opinion of Judge Morelli] 222).

4.  Procedure for the Adoption of Legal Acts

44  The procedure for the adoption of legal acts necessarily differs between organizations and varies according to the specific act in question (International Organizations or Institutions, Decision-Making Process; International Organizations or Institutions, Voting Rules and Procedures). UN Security Council resolutions are usually prepared in informal consultations of the Security Council members and then adopted with a vote, but without a debate, in a formal public meeting of the Security Council. In matters other than of a procedural character, Art. 27 (3) UN Charter requires a majority of nine, including all permanent members. This power of veto granted to each of the five permanent members is highly unusual in international organizations. However, abstention by a permanent member has been interpreted in practice not to hinder the adoption. UN General Assembly resolutions are normally adopted by consensus.

45  Under certain circumstances, a breach of procedural rules may affect the validity of the resolution itself (see Appeal relating to the Jurisdiction of the ICAO Council [India v Pakistan] 69). International law has not yet developed clear standards in this area. A distinction arguably has to be made between the breach of procedural rules contained in the constitutive treaty of the international organization and norms contained in secondary law, especially rules of procedure adopted by the respective organ itself. If the procedural error concerns rules established in the constitutive treaty itself, there is a strong case for nullity of the decision (see, however, ibid, suggesting that the rule infringed must be of importance for the just determination of the outcome). If procedural rules derive from secondary law, nullity will only result from significant violations.

D.  Interpretation of Secondary Law

46  While the VCLT also applies to treaties establishing international organizations (Art. 5 VCLT), the interpretative rules contained in Arts 31 to 33 VCLT only apply to the primary law of the organization, not the secondary rules adopted by international organizations (Interpretation in International Law). However, it is generally agreed to apply these rules by analogy to secondary acts, or to recur to customary rules of interpretation identical to those contained in the VCLT (Analogy in International Law).

47  A specific feature of the interpretation of secondary law is the paramount importance of contextual interpretation. Legal acts always have to be construed by reference to and in accordance with the constitutive instrument of the organization, a form of constitutional interpretation resulting from the hierarchy of norms. Legal acts should also be construed so that they are in conformity with general international law binding on the international organization, especially rules of ius cogens.

48  On the other hand, interpretation according to the object and purpose, which is crucial for the construction of the constitutive instruments of international organizations, has to be referred to more cautiously as far as secondary law is concerned. This is a result of the delegated character of secondary rules.

E.  Conclusion

49  It is safe to conclude that legal acts of international organizations and institutions, inasmuch as they are binding, have by now acquired the status of a source of international law. It is thus justifiable to speak of secondary law of international organizations. As to non-binding acts, scholarly debate increasingly recognizes that the traditional positivist doctrine of sources may not satisfactorily explain their legal effect and significance (Gloabal Administrative Law).

50  The importance of secondary law has been ever increasing since the early 1990s. International law as it stands today largely consists of, and cannot be fully explained without, secondary law made by international organizations, whether legally binding or soft law. For the future, it is to be expected that more and more activities of international organizations will not only be relevant to States, but also, or even exclusively, to individuals.

51  While the increasing regulation of international matters by international organizations through secondary law makes international governance faster and more efficient, major deficits to be addressed in the future are the lack of an accepted doctrine both with respect to the competences of international organizations, and to legal forms in which they may act. Furthermore, there is considerable uncertainty about the substantive limitations to legal acts of international organizations, in particular human rights. Another reason for concern is the lack of judicial review for acts of international organizations, in particular where those acts involve a direct infringement of rights of the individual. The more international organizations take over governance tasks from States, the more pressing is the question of how individual rights can be effectively protected against legal acts of international organizations. International human rights obligations hard fought for must not be rendered ineffective by transferring the exercise of powers from States to international organizations.

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