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The Oxford Handbook of International Organizations edited by Katz Cogan, Jacob; Hurd, Ian; Johnstone, Ian

Part VIII International Institutional Law, Ch.47 Assessing the Legality of Decisions

Jan Wouters, Jed Odermatt

From: The Oxford Handbook of International Organizations

Edited By: Jacob Katz Cogan, Ian Hurd, Ian Johnstone

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 February 2020

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

(p. 1006) Chapter 47  Assessing the Legality of Decisions

The present chapter examines the avenues available for assessing the legality of acts adopted by international organizations (IOs). The broader issue of ‘accountability’1 (examined in detail in Chapter 54 of this volume) is an important issue in the law of IOs, and entails legal, political, administrative, financial, and democratic dimensions. The present chapter focuses on the legal/judicial accountability of IOs. ‘Judicial review’ in reference to acts of IOs has been defined as ‘a process by which a court of law determines whether a legal person has acted substantively within the scope of its powers and procedurally in a correct manner’.2 Using this definition of review, one finds that there is a serious lack of judicial review of acts of IOs at the international level. This stems mostly from the absence of appropriate bodies to exercise judicial review in a meaningful way.

(p. 1007) The first part of this chapter discusses the variety of IOs that are now active and the diverse types of acts they produce. It then examines the forums where these acts can be legally challenged. The next part examines the grounds for review upon which acts of IOs are challenged and the legal consequences that flow from an act being found to be in violation of legal requirements. Finally, the chapter examines non-judicial review mechanisms, such as non-compliance and withdrawal from an organization. We conclude that the legal review of acts of IOs remains an underdeveloped area of the law of international organizations, especially given the impact such acts can have on states and individuals.

Acts of International Organizations

In its Draft Articles on the Responsibility of International Organizations, the International Law Commission uses the following definition of ‘international organization’:

‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.3

While there is no commonly accepted definition of an IO in public international law, this definition captures two important features of an IO: it is a body established by an international instrument and it has legal personality and ‘separate will’ distinct from its members. For the purposes of this chapter we will focus on the IOs included in the ILC definition. While this includes a tremendous variety of IOs,4 it does not cover bodies such as the G20 and the Financial Stability Board, which are growing in significance but nevertheless lack international legal personality. IOs vary in a number of ways including their membership, structure, and decision-making processes. They are also extremely diverse in terms of the types of acts they adopt. They include an array of resolutions, declarations, directives, regulations, guidelines, best practices, standards, guiding principles, codes of conduct, and programmes of action. This diversity makes it difficult to generalize about how acts adopted by IOs may be challenged. Whereas some bodies have well-developed (p. 1008) review mechanisms, the vast majority of IOs do not have avenues available for assessing the legality of their acts.

First, acts vary in terms of their legal effects. Many are legally non-binding, but may nonetheless be highly influential in terms of policy or even law. For instance, standards developed by scientific or technical organizations may have a great impact even though they are legally non-binding according to the law of the IO at hand. Resolutions of the UN General Assembly (UNGA) are typically non-binding for UN member states (except when they relate to the life of the organization, such as the adoption of the biannual budget) but may nevertheless reflect the state of customary international law.5 The UN Security Council (UNSC) has the power to take decisions that have binding legal effect on all UN member states6 and have precedence over member states’ conflicting international obligations.7

Second, acts of IOs vary in terms of the method by which they are to be implemented. The European Union (EU) adopts regulations which are directly applicable within the legal order of the member states.8 Much of its legislation however is in the form of directives, which require member states to implement them in their national legal systems and give greater choice to the member states regarding the method of implementation.9 The UNSC now plays a greater ‘legislative’ role,10 adopting resolutions responding to international terrorism,11 weapons of mass destruction12 and other threats,13 in a manner characteristic of national legislation.14 International legislation remains exceptional, however, and the majority of acts of IOs are in the form of broader declarations which give members greater scope to decide how they will be implemented. This can make it difficult to challenge their legality since they are often couched in broad and general terms, rather than setting out defined and immediate legal obligations.

(p. 1009) Third, acts of IOs vary in terms of their addressees. They include internal rules such as staff regulations, budgetary decisions, or decisions regarding the establishment of committees and subsidiary organs. They may be addressed to the membership of the organization generally or to one member or a group of members. Even when they are addressed to the organization’s membership, they may nevertheless have significant effects on individuals and legal persons. The UNSC’s action to combat international terrorism, for example, while strictly imposing obligations on UN member states, establishes sanctions against individuals, legal persons, and groups.15 Decisions taken by IOs responsible for the administration of territory, such as the UN’s administration of Kosovo16 or East Timor,17 may have considerable effects on individuals, and there remain few avenues to challenge these acts. IOs also affect individuals when they exercise individual criminal jurisdiction, such as the International Criminal Court (ICC) and the ad hoc tribunals established by the UNSC. In most cases an individual will not have the right to challenge directly an act of an IO, even though the impact thereof on individuals highlights the need for review mechanisms.

The next section will examine some of the internal review mechanisms that have been established in certain IOs. This chapter will focus on review mechanisms at the international and regional level. Although individuals have sought to challenge acts of IOs before domestic courts,18 they often run into the problem of the immunity of IOs.19 The topic of Privileges and Immunities is the subject of Chapter 49 of this volume, and is not discussed in detail here. The issue of ‘Internal Rules and Administrative Tribunals’ is discussed extensively in Chapter 51 and therefore this chapter does not address legal mechanisms established to hear complaints from members of staff of IOs in the course of their employment.

Forum

Internal Review Mechanisms

The most appropriate forum for review in many cases is the IO itself. Some IOs contain dispute settlement clauses in their founding documents that allow members to challenge acts of the IO. Some technical organizations allow for dispute resolution in their constituent treaties20 but these are rarely employed. Moreover, these clauses remain the exception; very few IOs provide mechanisms for direct legal review of their acts within their constitutive documents.

Court of Justice of the European Union

One organization that stands out in this regard is the EU. The European Community, as it was called for many years, began as primarily a regional economic integration organization, and its Court of Justice was established to resolve disputes and provide judicial review of the acts of its institutions. As the activities of its institutions expanded, the Court found itself dealing with a broader array of issues, including fundamental rights.21 Nowadays, the Court of Justice of the European Union (CJEU) comprises the Court of Justice and the General Court, along with ‘specialized courts’.22 It is entrusted with the task of ensuring ‘that in the interpretation and application of the Treaties the law is observed’.23 The CJEU’s jurisdiction is prescribed by the EU Treaties, and it may only hear cases according to the procedures established therein.24 As the Court held in Les Verts,25 the European Community (now Union) is based on the rule of law, and member states and institutions cannot avoid judicial review of their acts. According to Article 19(3) of the Treaty on European Union (TEU), the CJEU hears three types of cases: (a) actions brought by a member state, an institution or a (p. 1011) natural or legal person;26 (b) preliminary rulings,27 at the request of courts or tribunals of the member states, on the interpretation of Union law or the validity of acts adopted by the institutions; and (c) other cases provided for in the Treaties.28 The CJEU plays a role in both ensuring that EU law is correctly applied and interpreted in the EU member states and by providing judicial review of EU acts.

Article 263 of the Treaty on the Functioning of the European Union (TFEU)29 provides an avenue for EU acts to be directly reviewed by the CJEU. A wide array of legal acts may be reviewed, including ‘the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.’30 It also applies to ‘acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’.31 Some EU acts remain explicitly exempt from judicial review, such as (with certain exceptions32) acts adopted in the field of the EU’s Common Foreign and Security Policy.33

Access to judicial review depends on whether the party has standing (locus standi) before the CJEU. A ‘privileged applicant’ (EU member state or EU institution) has an automatic right to review of decisions,34 while natural and legal persons have more restricted access. They must satisfy certain conditions in annulment proceedings, such as showing the act is of direct and individual concern to them.35 Grounds for judicial review include lack of competence, the breach of a procedural requirement, infringement of the EU Treaties and any rule of law relating to its application, and the misuse of powers. The CJEU may find that the act in question was not adopted by the correct procedure or is in violation of general principles of law. An EU act may also be challenged on the basis that it infringes international law, including customary international law and treaties to which the EU is a party.36

In addition to the annulment procedure (the ‘direct route’), the CJEU may deal with the issue of validity of an EU act via a reference for a preliminary ruling (the ‘indirect route’).37 This is a procedure whereby a national court of a member state requests the CJEU to answer questions regarding the interpretation or the validity of EU law. The CJEU has jurisdiction to provide a preliminary ruling on ‘the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’.38 In contrast with the direct challenge involved in annulment proceedings, a (p. 1012) reference for a preliminary ruling first involves the party seeking relief in the member states’ legal system.

The EU harbours the most developed system of internal review mechanisms of any of the IOs discussed in this chapter. It should also be noted that alongside the CJEU, the Court of Justice of the European Free Trade Association (the EFTA Court) is also given tasks similar to that of the CJEU with regard to the EFTA states parties to the Agreement on the European Economic Area (Iceland, Liechtenstein, and Norway).39

Regional Bodies

Systems of judicial review and dispute resolution are also contained in other regional bodies, mostly those charged with establishing regional economic integration. While some of these courts share features with (or have borrowed from40) the CJEU, none provide individuals with the same capacity to review the legality of acts. It should also be pointed out that, while review mechanisms have been written into the treaties of several regional bodies, they often remain under-utilized in practice due to legal, political, or practical restraints. While certain features of the CJEU system may be emulated, such as the preliminary ruling system from domestic courts, states have also included clauses that safeguard the sovereignty of member states.41

Within the Central American Integration System, the Central American Court of Justice has the competence, inter alia, to hear cases for annulment against acts of the Central American Integration System which may be brought by natural and legal persons.42 Similarly, the Court of Justice of the Andean Community also may declare the nullity of acts adopted by organs of the Andean Community43 which are allegedly in violation of the Andean Community legal system, and may be brought by member states44 or by natural or legal persons.45 The Court of Justice of the Economic Community of West African States (ECOWAS) hears cases on the interpretation and application of the Treaty of the Economic Community of West African States (and its Annexes and Protocols).46 Cases may be brought against both member states and institutions of the Community. Since a 2005 Amendment, (p. 1013) the ECOWAS Community Court of Justice also has jurisdiction to hear human rights cases.47

The Southern African Development Community (SADC) had a Tribunal with jurisdiction to rule on the validity of protocols, instruments adopted in the framework of the Community, and acts of its institutions.48 However, the SADC Tribunal was de facto suspended at the 2010 SADC Summit after several rulings against the Zimbabwean government.49 The Council of Ministers has decided that a new Protocol should be negotiated that is ‘confined to interpretation of the SADC Treaty and Protocols relating to disputes between member states’.50 The East African Court of Justice was established to ensure the adherence to law in the interpretation and application of the Treaty for the Establishment of the East African Community.51 The Court of Justice for the Common Market for Eastern and Southern Africa (COMESA)52 has jurisdiction to hear cases regarding violations of the COMESA Treaty, which may be referred to it by the Secretary-General,53 by a member state,54 or by an individual after exhaustion of domestic remedies.55

The Court of Justice of the African Union (AU) was intended to be the ‘principal judicial organ of the Union’.56 However, in 2008, before the Court was able to commence operations, the AU decided that the Court of Justice would be merged with the existing African Court on Human and Peoples’ Rights into a single court,57 the African Court of Justice and Human Rights. According to its Statute, the jurisdiction of this Court includes ‘all acts, decisions, regulations and directives of the organs of the Union.’58 The Protocol is well short of the fifteen ratifications required to bring the Court to life, however.

The Caribbean Court of Justice (CCJ)59 also contains a review mechanism within the Caribbean Community. The CCJ exercises both appellate jurisdiction as well as (p. 1014) original jurisdiction with regard to the interpretation and application of the Treaty Establishing the Caribbean Community.60

This overview may give the impression of a wide array of internal review mechanisms in IOs. Many of these bodies are primarily involved in establishing regional economic integration, and review of acts is often limited to economic issues rather than concerns with human rights.61 Yet in practice the review mechanisms remain limited. States have sought to safeguard their sovereignty and are reluctant to embrace a system that would allow an intrusion into their internal affairs to the same extent as the EU system. While the treaties and protocols establishing these tribunals provide for review mechanisms, few regional bodies have a well-developed system of judicial review to adequately protect individuals.

External Review

As the previous section demonstrates, few IOs provide avenues for internal judicial review of their acts. In order to challenge acts of IOs, parties have sought judicial review by other mechanisms, at the international, regional, and domestic levels.

European Court of Human Rights

It is uncommon for a court in one legal order to cast judgment on the legal validity of the acts in another. In this way, the European Court of Human Rights (ECtHR) has been highly reluctant to rule on decisions and acts of other IOs. The ECtHR has been called upon to indirectly rule on the validity of acts of IOs, most notably the EU and UN. At present, only states are parties to the European Convention on Human Rights (ECHR), although the EU is in the process of acceding to the Convention.62 This means that an applicant seeking to challenge an act of an IO runs into an immediate problem: since it is only the member states of the IO that are parties to the ECHR, the IO itself is not directly bound by the legal obligations under it. Therefore, applicants have requested indirect review of acts of IOs by bringing action against one or more member states.63

In Matthews64 the issue arose whether an EU member state could be responsible for a violation (the absence of elections in Gibraltar to the European Parliament) that stems, not directly from its own action, but from the primary law of the EU. (p. 1015) The ECtHR held that ‘[t]he Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be secured’.65 This means that contracting parties to the ECHR may join an international organization such as the EU and transfer powers to it, but they must still ensure that the rights in the Convention will be respected. Another issue arises when a member of an IO implements binding law emanating from that organization that leads to a human rights violation. This occurred in Bosphorus66 where the respondent Republic of Ireland had impounded an aircraft pursuant to an EU regulation implementing sanctions adopted by the UN Security Council against the former Republic of Yugoslavia.67 The ECtHR held that it would not directly review the legality of EU acts as long as the EU secured a level of human rights protection that was equivalent to that of the ECHR system. This is known as the ‘equivalent protection test’—the Court will refrain from exercising its jurisdiction in such cases unless there is a manifest deficit in the protection guaranteed by the IO.

International Court of Justice

Whereas regional human rights mechanisms like the ECHR are designed to monitor states, and may be ill-suited to the task of reviewing (other) IOs, the International Court of Justice (ICJ), ‘the principal judicial organ of the United Nations’,68 may potentially play a role, especially reviewing acts adopted within the UN system. The ICJ has heard several cases where the legal validity of an act of an IO has been called into question. Yet the ICJ was not established as an appellate court capable of conducting judicial review of IOs or UN organs. The ICJ stated in Namibia that it ‘does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned’.69 Yet it has been argued that, despite the lack of explicit powers of judicial review given to the ICJ in the UN Charter, it may nevertheless exercise judicial review as a necessary element of its judicial function and its role as principal judicial organ of the UN.70 While the ICJ can and does review the legality of acts that are before it, its procedural rules make it difficult to act as a court of judicial review; rather it is only given the opportunity to undertake review in an incidental fashion, via contentious proceedings and through its advisory function.

(p. 1016) The first obstacle is standing. Only states may be parties before the ICJ.71 An IO may be asked to present relevant information to the ICJ in certain cases,72 and the Registrar shall notify an IO ‘whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question’.73 However, an IO can neither bring a case to the ICJ nor may a state bring a case against an IO directly. For instance, in the Legality of Use of Force74 cases the Federal Republic of Yugoslavia (FRY) could not bring an action directly against the North Atlantic Treaty Organization (NATO) in relation to its air campaign against FRY, and therefore instituted separate proceedings against the NATO members concerned.

In certain cases, the constitutive instrument of an IO may allow a dispute between members relating to the interpretation and application of its law to be brought before the ICJ. For instance, the constitutive treaties of the World Health Organization (WHO),75 the UN Educational, Scientific and Cultural Organization (UNESCO),76 the International Atomic Energy Agency (IAEA),77 the International Civil Aviation Organization (ICAO),78 and the International Labour Organization (ILO)79 allow for disputes relating to the application or interpretation of their founding treaties to be brought before the ICJ. Such referral normally takes place after attempts to resolve the dispute through negotiation have taken place, and does not rule out other forms of dispute resolution that states may choose to adopt.

The ICJ may review an act of an IO in an indirect manner through contentious proceedings. In Lockerbie80 the legality of a UNSC resolution was directly called into question and the ICJ was asked to determine its power to exercise judicial review of UN organs.81 UNSC Resolution 731 (1992) called upon Libya ‘to provide a full and effective response’ to UK and US requests for surrender of the suspects involved in the destruction of Pan Am flight 103 and UTA flight 772. Libya argued that this (p. 1017) resolution went beyond the power of the Security Council under the UN Charter and violated the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention). Ultimately, however, the ICJ did not conclusively decide upon the issue of its powers to review UNSC resolutions as the case did not proceed to the merits stage. In the Bosnia Genocide Case82 the ICJ was also asked to rule, inter alia, on the issue of the legality of UNSC Resolution 713 (1991) imposing an arms embargo on Bosnia which was said to breach Bosnia’s right to defend itself under Article 51 of the UN Charter and customary international law.83 Although the ICJ seems to have ruled out a power of judicial review,84 the ICJ might be able to play a role in indirectly reviewing acts of the UNSC, particularly since there is no other legal body that would be capable of ensuring the UNSC complies with the UN Charter and general international law. However, in doing so the ICJ would be in a position of potentially ‘second-guessing’85 the UN’s organ tasked with the ‘primary responsibility’ of maintaining international peace and security86 and therefore it would be highly reluctant to interfere in this role. Moreover, where the legality of an act of an IO is raised incidentally in contentious proceedings, the IO may not have an adequate opportunity to fully defend the legality of the measure in question since IOs may not appear as full parties before the Court.87

The ICJ may also review acts of IOs via its advisory function. It may be asked by the UNSC or the UNGA to provide an opinion on ‘any legal question’88, which may include the validity of decisions of IOs, including UN organs. Other UN organs and specialized agencies may request an advisory opinion on legal questions ‘arising within the scope of their activities.’89 For instance, in the 1960 advisory opinion Re Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization the ICJ examined whether the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization was established in accordance with the organization’s constitutive treaty.90 In many cases the competence of an IO to actually request an advisory opinion will be challenged. In the Wall advisory opinion Israel argued that the UNGA did not have the (p. 1018) competence to request an advisory opinion on the construction of the wall in the Occupied Palestinian Territory, although the ICJ rejected this argument.91 In the Nuclear Weapons advisory opinion the ICJ held that the WHO, a specialized agency of the UN, did not possess the competence to request an advisory opinion on the legality or illegality of the use of nuclear weapons.92 Such incidental review does not present an adequate form of judicial review. Advisory opinions are relatively rare since they can only be requested by a very limited range of parties; moreover, they lack legally binding effect. While it may indirectly review acts of IOs in certain cases, the ICJ is not well placed to become a ‘global administrative court’.

Grounds for Judicial Review

If a party is able to obtain judicial review of an act of an IO, what are the grounds upon which such an act may be challenged? There is little doubt that ‘[i]nternational organizations are subjects of international law and, as such, are bound by the obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.93 Yet there remains debate over the precise limits to the decision-making capacity of IOs and the extent to which this capacity is restricted by international law.

Internal Law of the IO

First, an act of an IO may be contrary to its own internal law. This includes an act being adopted by the wrong organ of the IO. This can occur in IOs such as the UN, where organs can have somewhat overlapping mandates. For example, both the UNGA and the UNSC play roles in the maintenance of international peace and security.94 The ‘internal law’ of an IO is not restricted to the IO’s constitutive treaty or instrument; it may also include law of the IO established by the organization’s practice and case law. It is not sufficient that an act merely meets the formal procedural (p. 1019) requirements to be valid. It must also conform to the legal order of the organization and its founding instrument. For example, an act may breach the internal law of the IO by going against the aims and objectives of the founding treaty. In this way, an act of a UN organ may be challenged on the basis of violating the ‘purposes and principles’ of the UN Charter.95

Second, an act may be challenged on the basis that it goes beyond the organization’s powers (ultra vires). IOs are not sovereign entities and exercise powers only to the extent that member states have conferred those powers to them. However, according to the doctrine of implied powers,96 an IO may take decisions concerning issues that are not explicitly mentioned in its constitution where this is required for the IO to fulfil its tasks and objectives. It may be difficult to delineate the extent of the powers of an organ of an IO; while the constitutive document of the IO is of paramount importance, the subsequent practice of the IO is also highly significant in determining the scope of its powers.97

Acts of IOs may be challenged on the basis of other principles—founded in domestic administrative or constitutional law—although it is often difficult to identify and apply these principles at the international level. For example, it has been argued that IOs are limited by the principle of proportionality; that is, their acts must not be disproportionate to the aim pursued by the IO. For example, it has been argued that the measures the UNSC may take to maintain international peace and security must be proportionate to the actual threat posed.98 However, due to lack of pertinent practice, it is difficult to state with certainty whether these rules apply to the law of IOs. While proportionality remains an important legal issue—for example, in the context of human rights law, WTO law, and EU law—it remains underdeveloped in other contexts.

Contrary to International Law

Acts of IOs may also be challenged on the basis of violations of international law. As discussed above, states cannot evade their international responsibilities by creating an IO that is able to breach these obligations. However it is notoriously difficult to determine which international legal obligations bind IOs. Unlike states, IOs are generally not parties to a host of binding international treaties, and it may be difficult (p. 1020) to pinpoint their precise international obligations. Some argue, for instance, that an IO could be bound by international treaties that are binding on all IO members, especially obligations stemming from universal human rights treaties.99 A problem with this argument, however, is that it overlooks the fact that IOs are distinct international legal entities, separate from their members. States may be reluctant to establish a new IO if it is to be encumbered by the international obligations of its members immediately upon its creation, particularly obligations under human rights treaties.100 However, this argument is less persuasive when applying universal human rights norms—since states can only confer powers upon an IO they legally possess, they cannot confer to an IO the power to violate fundamental human rights. Even the UNSC is not regarded as ‘legibus solutus (unbound by law)’.101

The situation is even more complex with regard to the duty to respect customary international law. One difficulty is to identify which rules bind an IO and how they limit its powers. Similarly, while it is generally accepted that IOs cannot take decisions in violation of jus cogens norms, and that such a decision would be void from the moment they were adopted (void ab initio), the question remains which judicial body is capable of actually ruling upon such question.

Legal Consequences and Remedies

Consequences

Even if an act of an IO is found to be legally flawed, this does not necessarily lead to the act itself being null and void. It is still difficult to say with much precision what the legal consequences will be in a given case,102 although this will generally depend on the reason for the legal flaw.

First, if an act was adopted in breach of a procedural requirement, or by a body that was not properly constituted, it may nevertheless be regarded as having legal effects. In Certain Expenses, the ICJ implied that acts adopted by the wrong organ of (p. 1021) an IO according to its constitutive treaty may nevertheless retain legal validity.103 In Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization104 the ICJ held that the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization was not made in accordance with the constitutive treaty, yet this did not result in decisions being rendered null and void. A similar conclusion was reached in Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan).105 The ICJ would not examine the topic of procedural irregularities or defects unless they ‘prejudice in any fundamental way the requirements of just procedure’.106 The limited jurisprudence of the ICJ as well as the academic literature on the subject is of the view that, short of a fundamental disregard for the procedures of the IO, breaches of procedural requirements do not result in the invalidity of the institutional act.107

The result is different when an IO acts beyond its powers (ultra vires). Generally if an IO takes a decision which it did not possess the competence to take, the decision itself is without legal effect. Within the EU, the CJEU may annul an act if it is found to violate the EU Treaties or international law binding the Union (see ‘Court of Justice of the European Union’, earlier in this chapter). The situation is less clear in other IOs. As discussed above, due to the implied powers doctrine, it may be difficult to establish that an IO took a decision that was outside of its powers. To a certain extent there is a presumption of competence in favour of IOs. As the ICJ stated in Certain Expenses:

when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such an action is not ultra vires the Organisation.108

There is debate about the legal consequences of an act violating international law binding upon the IO. Even where an act is ultra vires, the question arises whether it would be void from the moment of the adoption of the decision (void ab initio) or from the moment it was declared invalid (ex nunc). A common view is that acts that violate general international law are voidable—that is, legally valid until determined otherwise by a judicial determination. This is a problematic situation, however, given the lack of judicial mechanisms competent to declare upon the validity of IO acts. For acts that violate jus cogens norms, however, there is a view that these would be void ab initio and shall not be enforced by states.

(p. 1022) Due to the lack of practice of acts of IOs being found invalid, it is difficult to articulate the precise consequences that flow from this. Much of the discussion in this field is influenced by (primarily Western) domestic administrative law principles. However, domestic analogies may not be applicable or relevant when discussing review of decisions at the international level. Rather than implementing systems of judicial review, states have preferred to resolve disputes with IOs using political or diplomatic means.

Remedies

There are few legal remedies available where an act of an IO is found to be invalid. The ICJ may issue an advisory opinion or a declaratory judgment stating an act to be invalid. Many of the ‘remedies’ available within IOs are not legal remedies at all but involve initiatives such as ombudspersons,109 Inspection Panels,110 Commissions of Inquiry,111 and other non-judicial review mechanisms. While these types of bodies help increase political accountability, they are often far from adequate in terms of providing access to court and a judicial remedy. In Kadi II, for instance, the CJEU reiterated its view that the system established to review decisions of the UNSC on terrorist sanctions did not provide for adequate judicial protection.112 A judicial body may still rule on questions of the legality of decisions of IOs without going so far as to rule on whether they are ultra vires or void. A court may also put into doubt the legality of an act in its judgment without taking the somewhat bold step of proclaiming a right to pronounce on the legality of the act.

Informal Review Mechanisms

Given the lack of legal avenues to challenge acts of IOs, states have employed a variety of ‘extra-legal’ avenues to challenge acts they view as invalid.

(p. 1023) Non-compliance

The first option is for a state to simply not comply with an act of an IO, or to not fully implement it. This step would presumably put the state in breach of its international obligations. However, it has been argued that non-compliance with an act of an IO could constitute a legally valid response in circumstances where an IO has acted contrary to international law or its own internal rules.113 Whether a state has the inherent right not to comply with an act it deems ultra vires is subject to debate.114 In a decentralized legal system without any formal review body, it could be argued that it is up to states to interpret whether acts are ultra vires. Yet it may be difficult for an IO to function effectively if states were to determine unilaterally which acts were legally valid and therefore choose which to implement. This is especially the case in the context of the UN Security Council where the Council will often be called upon to act quickly in response to international developments.

Non-Funding

Another step available to states is to withdraw fully or partly their assessed contributions to an IO. In the 1980s the US began the practice of withholding parts of its assessed contributions to the UN. While insisting that it was legally bound to pay its assessed contributions, the US made the legal argument that withholding contributions was a justified response to ‘ultra vires’ acts of the UN.115 More recently, following the decision of the UNESCO General Conference to admit Palestine as a member, the United States, which contributes 22 per cent of the UNESCO budget,116 withdrew funding from that organization. The constitutive treaties of IOs generally oblige their members to pay dues to fund the expenses of the organization.117 Yet the legal position is unclear regarding members who withhold or refuse to pay dues to fund the implementation of acts they view as illegal or ultra vires.118 Such acts are often taken due to political reasons. There have been attempts to legally justify the (p. 1024) right to withhold funds,119 yet there is not yet enough state practice to establish the withholding of funds as a legitimate legal response to an illegal decision of an IO.120 Moreover, legal sanctions that might exist against states that withhold funding have rarely been enforced. The withholding of funding remains an act closer to ‘civil disobedience’ than a remedy regulated under international law.

Withdrawal from or Non-Cooperation with the IO

A more drastic response is for the aggrieved member to either no longer cooperate with the IO or to withdraw from the IO altogether. The option of non-cooperation with an IO is designed to have political, rather than legal, effects. Some African states have declared that they would no longer cooperate with the ICC, in response to the prosecutorial strategy of the Office of the Prosecutor, which they view as unfairly targeting African states.121 Despite a warrant of arrest for Sudanese President Omar al-Bashir and repeated calls by the ICC for states to cooperate fully with it, certain African states have allowed al-Bashir to enter their territory, an act which arguably breaches their obligations as ICC state parties.122 Although states can still be subject to sanctions and other measures for non-compliance, the use of such measures against non-compliant states is rare.

Another step is for the state to leave the IO altogether. For instance, the Kenyan Parliament took steps towards Kenya’s withdrawal from the ICC.123 While withdrawal is permitted under Article 127 of the Rome Statute, it does not come into effect until one year after notification to the UN Secretary-General and does not prejudice the consideration of matters that were before the Court before the withdrawal became effective.124 The legal possibility of withdrawal is enshrined in the statutes of many, but not all, IOs.125 Once a state has left an IO, acts of the IO from the date of withdrawal will no longer bind the member. It is less clear, however, whether previous acts of the IO will continue to bind the (former) member.126

(p. 1025) Conclusion

Very few IOs contain internal mechanisms for judicial review of their acts, and review mechanisms that do exist often remain relatively unused and underdeveloped. This has led states and individuals to challenge decisions in other forums, such as regional human rights bodies, the ICJ, and domestic legal systems. States have also sought to challenge acts of IOs by resorting to extra-legal responses, such as non-compliance with them or withholding of funds. The grounds upon which acts may be challenged, and the legal consequences of an act being found invalid, remain uncertain, primarily due to the lack of case law at the international level. Much of this discussion remains theoretical and based on domestic administrative law concepts that are not always applicable at the international level, where states continue to employ diplomatic and other measures.

It is often stressed that the growing normative and decision-making power of IOs is not matched with an equivalent level of accountability and control. Moreover, ‘accountability’ mechanisms at the international level often emphasize financial or political elements of accountability rather than assessment of acts according to legal standards. Given the power of IOs to affect individuals in an ever-expanding range of fields, this lack of judicial mechanisms is highly problematic, especially when the acts concerned affect fundamental human rights. It should be kept in mind that the issue of legality of an act and the availability of review mechanisms are two separate issues. The lack of review mechanisms does not imply that the principle of legality does not apply to the acts of an IO. Unlike at the domestic level, there remains no central body capable of reviewing acts of IOs, leaving judicial review to an array of international, regional, and domestic courts to each play a role. The best place for review of a decision of an IO is arguably within the legal order of the IO itself. However states have been reluctant to develop sufficient internal review mechanisms for the IOs they establish. It could be argued that by establishing an IO without sufficient legal safeguards, the founding members are themselves breaching their international human rights obligations to allow access to a remedy and access to court.127

Footnotes:

1  See International Law Association, Berlin Conference, Final Report, Accountability of International Organizations (2004), 5; I. F. Dekker, “Accountability of International Organizations: An Evolving Concept?,” in Accountability for Human Rights Violations by International Organizations, ed. J. Wouters et al. (Antwerp: Intersentia, 2010), 21–36.

2  E. Lauterpacht, “Judicial Review of the Acts of International Organisations,” in International Law, the International Court of Justice and Nuclear Weapons, ed. L. Boisson de Chazournes and P. Sands (Cambridge: Cambridge University Press, 1999), 92.

3  Art. 2, Draft Articles on the Responsibility of International Organizations, International Law Commission, 30 May 2011, A/66/10.

4  See J. Wouters and J. Odermatt, “Are All International Organizations Created Equal?,” International Organizations Law Review 9/1 (2012): 7–14.

5  R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994), 24–8; S. Schwebel, “The Legal Effect of Resolutions of the UN General Assembly on Customary International Law,” Proceedings of the Annual Meeting of the American Society of International Law (1979): 301.

6  Arts. 24 and 25 of the UN Charter. For a recent illustration of this see UNSC Res. 2118 (2013) (Middle East): “Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions.”

7  Art. 103 of the UN Charter.

8  Art. 288 of the Treaty on European Union (TEU).

9  Ibid.

10  J. Wouters and J. Odermatt, “Quis Custodiet Consilium Securitatis? Reflections on the Lawmaking Powers of the Security Council,” in The Security Council as Global Legislator, ed. V. Popovski and T. Fraser (London: Routledge, 2014), 71.

11  UNSC Res. 1373 [2001].

12  UNSC Res. 1540 [2004].

13  See S. Talmon, “Security Council Treaty Action,” Revue Hellénique de Droit International 62 (2009): 65, 89.

14  See P. Szaz, “The Security Council Starts Legislating,” American Journal of International Law 96 (2002): 901; S. Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175.

15  UNSC Res. 1672 [2006].

16  UNSC Res. 1244 [1999].

17  UNSC Res. 1272 [1999].

18  See C. Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121. J. Wouters and P. Schmitt, “Challenging Acts of Other United Nations’ Organs, Subsidiary Organs and Officials,” in Challenging Acts of International Organizations Before National Courts, ed. A. Reinisch (Oxford: Oxford University Press, 2010), 77–110.

19  See M. Parish, “An Essay on the Accountability of International Organizations,” International Organizations Law Review 7 (2010): 277; A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford: Oxford University Press, 2013).

20  See, e.g., Art. XVIII of the Agreement Relating to the International Telecommunications Satellite Organisation (INTELSAT) (1971); Art. 17 of the Operating Agreement of the Intersputnik International Organization of Space Communication (2002); Art. 31 of the Convention on the International Maritime Satellite Organization (1976).

21  G. De Búrca, “The Evolution of EU Human Rights Law,” in The Evolution of EU Law, ed. P. Craig and G. De Búrca (Oxford: Oxford University Press, 2011), 465–97.

22  Art. 19(1) of the TEU; e.g., the EU Civil Service Tribunal.

23  Art. 19(1) of the TEU. This provision has been the basis for review in light of fundamental rights. See K. Lenaerts and P. Van Nuffel, European Union Law (London: Sweet & Maxwell, 2011), 826–9. See Case 4/73 Nold v Commission [1974] ECR 491; Case 11/70 Internationale Handellsgeselschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermitte [1970] ECR 1126: “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.”

24  See K. Lenaerts, I. Maselis, and K. Gutman, EU Procedural Law (Oxford: Oxford University Press, 2014); A Türk, Judicial Review in EU Law (Cheltenham: Edward Elgar, 2009).

25  Case 294/83 Les Verts v Parliament [1986] ECR 1339, para. 23.

26  These procedures include Art. 258 of the TFEU (infringement action by the European Commission); Art 259 of the TFEU (infringement action by a member state against a member state); Art 263 of the TFEU (action for annulment); Art. 268 of the TFEU (liability).

27  Art. 267 of the TFEU.

28  Arts. 272 and 273 of the TFEU.

29  Art. 263 of the TFEU.

30  Ibid.

31  Ibid.

32  Art. 275 of the TFEU and Art. 40 of the TEU.

33  Arts. 24(1) and 275 of the TEU.

34  Art. 263 of the TFEU.

35  Ibid.

36  Case C-377/98 Netherlands v European Parliament and Council [2001] ECR I-7079.

37  Art. 267 of the TFEU.

38  Ibid.

39  Art. 36, Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, 1992.

40  See K. J. Alter and L. R. Helfer, “Transplanting the European Court of Justice: the Experience of the Andean Tribunal of Justice,” American Journal of Comparative Law 6 (2012): 629–64.

41  See K. Alter, “The Global Spread of European Style International Courts,” West European Politics 35 (2012): 135–54, 151.

42  Art. 22 (b) and (g) of the Statute of the Central American Court of Justice.

43  Art. 17 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979).

44  Art. 18 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979).

45  Art. 19 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979).

46  Art. 9 of Protocol A/P.l/7/91 on the Community Court of Justice, revised by Supplementary Protocol A/SP.I/01/05.

47  Art. 3(4) of ECOWAS, Supplementary Protocol A/SP.1/01/05 Amending the Preamble and Arts. 1, 2, 9, and 30 of Protocol A/P.1/7/91 Relating to the Community Court of Justice and Art. 4, para. 1 of the English Version of Said Protocol (2005).

48  Arts. 14, 17, and 18 of the Protocol on the Tribunal in the Southern African Development Community (2008).

49  See E. de Wet, “The Rise and Fall of the Tribunal of the Southern African Development Community: Implications for Dispute Settlement in Southern Africa,” ICSID Review 28/1 (2013): 45–63.

50  Final Communiqué of the 32nd Summit of the SADC Heads of State and Government, Maputo, Mozambique, 18 August 2012.

51  East African Community, Treaty for the Establishment of the East African Community (as amended on 14 December 2006 and 20 August 2007).

52  Art. 19 of the Agreement Establishing the COMESA.

53  Art. 25 of the Treaty Establishing a Common Market for Eastern and Southern Africa.

54  Art. 24, ibid.

55  Art. 26, ibid.

56  Art. 2(2) of the Protocol of the Court of Justice of the African Union, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003.

57  Art. 1 of the Protocol on the Statute of the African Court of Justice and Human Rights (2008).

58  Art. 28(e), ibid.

59  Agreement Establishing the Caribbean Court of Justice.

60  Art. XII, ibid.

61  See S. Eborah, “Litigating Human Rights before Sub-Regional Courts in Africa: Prospects and Challenges,” African Journal of International and Comparative Law 17 (2009): 79–91.

62  On 18 December 2014, the CJEU found in Opinion 2/13 that the Draft Agreement on the European Union’s Accession to the European Convention on Human Rights was incompatible with Union law.

63  See Nada v Switzerland (2013) 56 EHRR 18.

64  Matthews v United Kingdom (1999) 28 EHRR 361.

65  Ibid., para. 32.

66  Bosphorus Airways v Ireland (2006) 42 EHRR 1.

67  Council Regulation (EEC) No. 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro), OJ 1993 L 102/14.

68  Art. 92 of the UN Charter.

69  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. 89.

70  D. Akande, “The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?,” International and Comparative Law Quarterly 46 (1997): 309, 331. See the separate opinion of Judge E. Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Request for the Indication of Provisional Measures, 13 September 1993, para. 99.

71  Art. 34(1) of the Statute of the International Court of Justice.

72  Art. 34(2), ibid.

73  Art. 34(3), ibid.

74  Legality of Use of Force (Yugoslavia v United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999.

75  Art. 75 of the Constitution of the World Health Organization.

76  Art. XIV of the UNESCO Constitution.

77  Art. XVII of the Statute of International Atomic Energy Agency.

78  Art. 84 of the Convention on International Civil Aviation (“Chicago Convention”). See Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), Judgment of 18 August 1972, ICJ Reports 1972, 46.

79  Art. 37 of the Constitution of the International Labour Organization.

80  Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Request for the indication of Provisional Measures, Order of 14 April 1992, ICJ Reports 1998, 115.

81  Wouters and Odermatt, “Quis Custodiet Consilium Securitatis? Reflections on the Lawmaking Powers of the Security Council,” 77.

82  Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, ICJ Reports 1993.

83  Ibid., 3.

84  See Namibia (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971; Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168.

85  K. Roberts, “Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review,” Pace International Law Review 7 (1995): 281, 322.

86  Art. 24(1) of the UN Charter.

87  See Lauterpacht, “Judicial Review of the Acts of International Organisations,” 95; K. Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002), 55.

88  Art. 96(a) of the UN Charter.

89  Art. 96(b), ibid.

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

91  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, paras. 24–8.

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

93  Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 73, para. 37.

94  See UNGA Res. 377 (V) (“Uniting for Peace”), UN Doc. A/1775, 3 November 1950.

95  These are set out in Arts. 1, 2, and 24(2) of the UN Charter.

96  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 159, 182.

97  J. Arato, “Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations,” Yale Journal of International Law 38 (2013): 289.

98  See S. Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175, 185; N. Tsagourias, “Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity,” Leiden Journal of International Law 24 (2011): 539, 555.

99  See O. De Schutter, “Human Rights and the Rise of International Organisations: The Logic of Sliding Scales in the Law of International Responsibility,” in Accountability for Human Rights Violations by International Organisations, ed. J. Wouters et al. (Antwerp: Intersentia, 2010), 57–68.

100  Ibid., 64.

101  Prosecutor v Dušco Tadić a/k/a “Dule,” Decision on the Defence Motion For Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY, 2 October 2005, IT-94-1, para. 28.

102  E. Lauterpacht, “The Legal Effect of Illegal Acts of International Organizations,” in Cambridge Essays in International Law (London: Stevens & Sons, 1965).

103  Certain Expenses, Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168.

104  Advisory Opinion of 8 June 1960, ICJ Reports 1960.

105  Judgment of 18 August 1972, ICJ Reports 1972, para. 44.

106  Ibid., para. 45.

107  P. Sands and P. Klein, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 2009), 298.

108  Certain Expenses, Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168. E. Osieke, “The Legal Validity of Ultra Vires Decisions,” American Journal of International Law 77 (1983): 246. See J. Wouters and J. Odermatt, “Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), International Court of Justice [1962] ICJ Rep 151,” in C. Ryngaert et al., Judicial Decisions on the Law of International Organizations (Oxford: Oxford University Press, 2016).

109  e.g., Office of the Ombudsman of the 1267 Committee, established by UNSC Res. 1904 [2009] regarding removal of individuals, groups, and entities from the Security Council’s Al-Qaida Sanctions Committee List.

110  e.g., World Bank Inspection Panel, established by the Board of Executive Directors, Res. No. IBRD 93-10, 22 September 1993.

111  e.g., Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, United Nations (1999).

112  Judgment in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, EU:C:2013:518, paras. 133–4.

113  See A. Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford: Oxford University Press, 2011).

114  See Osieke, “The Legal Validity of Ultra Vires Decisions,” 254.

115  See J. F. Murphy (ed.), The United States and the Rule of Law in International Affairs (Cambridge: Cambridge University Press, 2004), ch. 3, “UN Dues”; J. E. Alvarez, “Financial Responsibility,” in The United Nations and International Law, ed. C. C. Joyner (Cambridge: Cambridge University Press, 1997), 418.

116  UNESCO, “UNESCO Director General Presses Washington to Restore U.S. Funding,” Press Release, 15 December 2011, http://www.unesco.org/new/en/media-services/single-view/news/unesco_director_general_presses_washington_to_restore_us_funding.

117  e.g., Art. 17(2) of the UN Charter; Art. VII of the Agreement Establishing the World Trade Organization.

118  J. E. Alvarez, “Legal Remedies and the United Nations’ à la Carte Problem,” Michigan Journal of International Law 12 (1991): 229, 231.

119  See E. Zoller, “The ‘Corporate Will’ of the United Nations and the Rights of the Minority,” American Journal of International Law 81 (1987): 610, 632.

120  See the discussion in N. White, The Law of International Organisations, 2nd ed. (Manchester: Manchester University Press, 2005), 154.

121  See “Decision on International Jurisdiction, Justice and the International Criminal Court,” AU Doc. Assembly/AU/13(XXI), contained in Decisions, Declarations and Resolution of the Twenty-First Ordinary Session of the Assembly of the Union, May 2013.

122  See, e.g., ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, “Decision Regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria,” ICC-02/05-01/09.

123  “Kenyan Lawmakers Vote to Leave International Court,” New York Times, 5 September 2013.

124  Art. 127(2) of the Rome Statute of the International Criminal Court.

125  See H. G. Schermers and N. M. Blokker, International Institutional Law: Unity Within Diversity, 5th ed. (Leiden: Martinus Nijhoff, 2011), 99–101.

126  H. G. Schermers and N. M. Blokker, “International Organizations or Institutions, Membership,” in Max Planck Encyclopedia of Public International Law, Oxford Public International Law, http://opil.ouplaw.com/home/EPIL, para. 15.

127  M. Parish, “An Essay on the Accountability of International Organizations,” International Organizations Law Review 7 (2010): 277, 329–34; A. Reinisch, “Securing the Accountability of International Organizations,” Global Governance 7 (2001): 131, 133.