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Legality of the Use by a State of Nuclear Weapons in Armed Conflict International Court of Justice,

Advisory Opinion of 8 July 1996, [1996] ICJ Rep 66

Gian Luca Burci and Jakob Quirin

Relevance of the advisory opinion

The advisory opinion contains important guidance on the delimitation of competence and co-ordination of international organizations, in particular those forming part of the UN system. The Court held by eleven votes to three that it did not have jurisdiction to give the advisory opinion ‘which was requested of it’. The opinion marks an important step in the Court’s jurisprudence in that it focusses not on an expansion of competence of international organizations as previous ICJ jurisprudence, but rather on the limits of this competence. The opinion is a succinct reminder of the tension between the goal to effectively and efficiently ‘divide labour’ between the mandates of the UN and the specialized agencies and the relative lack of mechanisms to enforce this division of labour.

I. Background

The World Health Organization (WHO), which requested the advisory opinion from the Court, is a United Nations specialized agency in the sense of art. 57 of the Charter. Its objective, as expressed in art. 1 of the WHO Constitution, is ‘the attainment by all peoples of the highest possible level of health’. In May 1992, the World Health Assembly started engaging in a discussion of the legal aspects of the use of nuclear weapons. In May 1993, it passed resolution WHA46.40 to request an advisory opinion from the Court on the following question:

‘In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?’

The vote on the resolution was taken by secret ballot. It obtained seventy-three affirmative votes from among the 164 member States at the time.1 One-and-a- half years after resolution WHA46.40 was adopted the United Nations General Assembly requested the Court to give an advisory opinion on the question: ‘Is the threat or use of nuclear weapons in any circumstances permitted under international law?’. [1]

Thus faced with two closely related requests for advisory opinions, the Court decided to hold public sittings and to hear, during those sittings, oral statements relating to both requests. Public sittings were mostly held in the first half of November 1995. Twenty States presented oral statements. WHO made a statement in which it laid out the procedural history of the request but maintained, in view of its divided membership, a position of ‘strict neutrality’.[2] The Court gave distinct advisory opinions on the requests on 8 July 1996.[3]

II. The legal question

It was clear that the proceedings, as far as the WHO request was concerned, would strongly focus on whether the Court had jurisdiction. Jurisdiction hinged, in turn, on whether WHO acted intra or ultra vires through the decision to request the advisory opinion since art. 96, para. 2, of the UN Charter stipulates that a question asked by a specialized agency must be one arising within the scope of the activities of the requesting agency. This question had been intensely discussed within the WHO before the organization formally requested the opinion.

III. Excerpts

[...]

  • 18. The Court will now seek to determine whether the advisory opinion requested by the WHO relates to a question which arises ‘within the scope of [the] activities’ of that Organization, in accordance with Article 96, paragraph 2, of the Charter. [...]
  • 19. In order to delineate the field of activity or the area of competence of an international organization, one must refer to the relevant rules of the organization and, in the first place, to its constitution. [...]
  • 20. [...] The functions attributed to the Organization are listed in 22 subparagraphs (subparagraphs (a) to (v)) in Article 2 of its Constitution. None of these subparagraphs expressly refers to the legality of any activity hazardous to health; and none of the functions of the WHO is dependent upon the legality of the situations upon which it must act. [.]
  • 21. [...]

The question put to the Court in the present case relates [...] not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them. Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO Constitution [...], can be understood as conferring upon the

Organization a competence to address the legality of the use of nuclear weapons, and thus in turn a competence to ask the Court about that.

22. World Health Assembly resolution WHA46.40, by which the Court has been seised of this request for an opinion, expressly refers, in its Preamble, to the functions indicated under subparagraphs (a), (k), (p) and (v) of Article 2 under consideration. [...] In the view of the Court, none of these functions has a sufficient connection with the question before it for that question to be capable of being considered as arising ‘within the scope of [the] activities’ of the WHO. The causes of the deterioration of human health are numerous and varied; and the legal or illegal character of these causes is essentially immaterial to the measures which the WHO must in any case take in an attempt to remedy their effects. In particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same.

[...]

25. The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. The Permanent Court of International Justice referred to this basic principle in the following terms:

‘As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.’ (Jurisdiction of the European Commission of the Danube, Advisory Opinion, PCIJ, Series B, No. 14, p. 64.)

[.] In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons—even in view of their health and environmental effects—would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.

26. The World Health Organization is, moreover, an international organization of a particular kind. As indicated in the Preamble and confirmed by Article 69 of its Constitution, ‘The Organization shall be brought into relation with the United Nations as one of the specialized agencies referred to in Article 57 of the Charter of the United Nations’. [...]

As these provisions [arts. 57, 58, and 63 of the UN Charter] demonstrate, the Charter of the United Nations laid the basis of a ‘system’ designed to organize international co-operation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers. The exercise of these powers by the organizations belonging to the ‘United Nations system’ is co-ordinated, notably, by the relationship agreements concluded between the United Nations and each of the specialized agencies. [...]

It follows [...] that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter. If, according to the rules on which that system is based, the WHO has, by virtue of Article 57 of the Charter, ‘wide international responsibilities’, those responsibilities are necessarily restricted to the sphere of public ‘health’ and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies. Besides, any other conclusion would render virtually meaningless the notion of a specialized agency; it is difficult to imagine what other meaning that notion could have if such an organization need only show that the use of certain weapons could affect its objectives in order to be empowered to concern itself with the legality of such use. It is therefore difficult to maintain that, by authorizing various specialized agencies to request opinions from the Court under Article 96, paragraph 2, of the Charter, the General Assembly intended to allow them to seise the Court of questions belonging within the competence of the United Nations.

For all these reasons, the Court considers that the question raised in the request for an advisory opinion submitted to it by the WHO does not arise ‘within the scope of [the] activities’ of that Organization as defined by its Constitution.

[...]

28. It remains to be considered whether the insertion of the words ‘including the WHO Constitution’ in the question put to the Court (which essentially seeks an opinion on the legality of the use of nuclear weapons in general) could allow it to offer an opinion on the legality of the use of nuclear weapons by reference to the passage in the question concerning the WHO Constitution. The Court must answer in the negative. Indeed, the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions.

[...]

29. Other arguments have nevertheless been put forward in the proceedings to found the jurisdiction of the Court in the present case. [.]

As the Court has stated, ‘each organ must, in the first place at least, determine its own jurisdiction’ [...] But likewise it is incumbent on the Court to satisfy itself that the conditions governing its own competence to give the opinion requested are met; through the reference made, respectively, by Article 96, paragraph 2, of the Charter to the ‘scope of [the] activities’ of the Organization and by Article X, paragraph 2, of the Agreement of 10 July 1948 to its ‘competence’, the Court also finds itself obliged, in the present case, to interpret the Constitution of the WHO [...] and in doing so the Court arrives at different conclusions from those reached by the World Health Assembly when it adopted resolution WHA46.40. [.]

32. For these reasons, THE COURT,

By eleven votes to three,

Finds that it is not able to give the advisory opinion which was requested of it under World Health Assembly resolution WHA46.40 dated 14 May 1993. [...]

IV. Commentary

Framed as a statement on the jurisdiction of the Court, the advisory opinion gives important guidance on the delimitation of competence and co-ordination of international organizations, in particular those forming part of the UN system. It is of particular importance not only for the WHO, which requested the opinion, but for all United Nations specialized agencies.[4] The advisory opinion is the second opinion requested by the WHO[5] and the fifth coming from a UN specialized agency in total.[6] The Court refused to give an advisory opinion requested from it for the first time,[7] having previously stated, albeit with regard to its discretionary power under art. 65 of the Statute (‘may’), that requests for an advisory opinion ‘in principle, should not be refused’[8] and that it would take ‘compelling reasons’[9] for it not to give the requested opinion.

The Court’s finding that it lacked jurisdiction to give the requested advisory opinion rests on the reasoning that one of the three conditions set out by art. 96, para. 2 of the Charter is not fulfilled, namely, that the opinion must be on a question ‘arising within the scope’ of activities of the requesting specialized agency.[10] The Court supports this conclusion with two arguments, both relying on an interpretation of the WHO Constitution and the UN Charter in accordance with art. 31 of the Vienna Convention on the Law of Treaties, but also with due regard to the particularities of interpreting the constituent instrument of an international organization.11 The first argument is already introduced in para. 20 of the opinion, the second in para. 25.

The first argument has neither been widely reflected upon in the literature nor in the jurisprudence of the Court to date. In contrast, the second argument has both been discussed in the nearly twenty years since 1996 and also draws attention to a necessary corollary of the implied powers—jurisprudence of the Court.

A. Mandate

Under the first argument, the Court correctly observes that the WHO can address the effects of the use of nuclear weapons in armed conflict on health and the environment while remaining squarely within its mandate. Depending on the scale of use of nuclear weapons in an armed conflict, it can also be safely assumed that the WHO would, at least ex post, not focus its resources on determining the legality of, and responsibility for, the use of these weapons but would concentrate on directing and co-ordinating international efforts to alleviate peoples’ suffering and to support the affected governments in that effort. To conclude from these facts that the legality or otherwise of the use of nuclear weapons in armed conflict ‘in no way determines the specific measures, regarding health or otherwise’ that the WHO can take in such a situation may, however, not be accurate/2 Judge Shahabuddeen noted in his dissenting opinion that in ‘the course of carrying out its activities, the WHO can be confronted with the constraining effects of the conduct of a member State. If that conduct constitutes a breach by that State of its obligations under the Constitution of the WHO, the latter could take or initiate appropriate remedial measures to remove any resulting impediment to the carrying out of its activities’/3 This observation seems correct with the caveat that the WHO would, in choosing ‘remedial measures’, be limited by its constituent instrument like any other international organization. As noted in the general commentary to the draft articles on State responsibility, ‘(i)n carrying out their functions it may be necessary for international organizations to take a position on whether a State has breached an international obligation’/4 This applies as much to the WHO as to any other international organization. For instance, in the aftermath of a use of nuclear weapons it may be highly relevant for the work of the WHO to [11] [12] [13] [14]

assess (state) responsibility for the use and in order to do so, the WHO would need to concern itself with whether the use was legal.15 Judge Weeramantry, in his dissenting opinion, gives more examples and makes the point that the Constitution obliges the WHO to prepare for the public health impact of a use of nuclear weapons and that the ‘duty of preparedness for that eventuality’ is all the greater if the use is, in the event, lawful.16

B. Principle of speciality

The second argument made by the Court merits further attention. The Court proceeds to it in para. 25 of the opinion where it states that international organizations ‘are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them’.

The principle of ‘speciality’, of ‘attributed powers’, of ‘conferral’, or of ‘conferred powers’ is indeed an important principle of the law of international organizations, which lack the Kompetenz-Kompetenz of States/7 The Permanent Court of International Justice had enunciated the substance of the principle of speciality in its opinion in the case concerning Jurisdiction of the European Commission of the Danube/8 Quoting this opinion, the Court revisits and applies the principle in the opinion under review. In some contrast to its earlier jurisprudence, which focussed on expansion of the competences of international organizations under the ‘implied powers’19 doctrine, the Court highlights the limits of competence of an international organization, in this case that of the WHO. In para. 25, it comes to the conclusion that ‘to ascribe to the WHO the competence to address the legality of the use of nuclear weapons [...] would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States’. The second half of this sentence is important. It highlights the rationale of the implied powers doctrine, which does not aim at extending an international organization’s competence

‘5 M. Bothe, ‘The WHO Request’, in Boisson de Chazournes/Sands (eds) (n. 1), pp. 103, 104.

'6 Legality Nuclear Weapons (WHO), Dissenting Opinion of Judge Weeramantry, [1996] ICJ Rep 101, 129-34; see also D. Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’, (1998) European Journal of International Law 437, 447.

‘7 N.M. Blokker, ‘International Organizations or Institutions, Implied Powers’, in Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press 2009), para. 1.

‘8 See Jurisdiction of the European Commission of the Danube, Advisory Opinion, PCIJ Series B, No. 14, p 64, 8 December 1927.

‘9 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 174, 182, 11 April 1949; see also Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, [1954] ICJ Rep 47, 57, 13 July 1954; Certain Expenses (n. 8), 151, 168, 20 July 1962; see also Legality of Use of Force, Yugoslavia v United States of America, Declaration of Judge Shi, [1999] ICJ Rep 927, 2 June 1999; the implied powers doctrine must be distinguished from the ‘inherent powers’ doctrine, on the difference between the two doctrines see Certain Activities carried out by Nicaragua in the Border Area and in the case concerning the Construction of a Road in Costa Rica along the San Juan River, Costa Rica v Nicaragua/Nicaragua v Costa Rica, Separate Opinion of Judge Cangado Trindade to the Joinder of Proceedings, 17 April 2013; for a critical assessment see Klabbers (n. 11), pp. 65-9.

beyond what its member States consented to. On the contrary, the implied powers doctrine aims ‘to give effect to what (States) agreed by becoming parties to the constitutional treaty’.[15] [16] [17] [18] [19] [20] [21] Similarly, and as noted by the Court, the principle of speciality is a ‘function of the common interests’ which member States mandate an international organization to pursue. Both doctrines bear, in effect, close resemblance in that they both strive to give effect to the ‘purposes’ or ‘common interests’ guiding an international organization. These common interests are indeed not a one-way street, which can only justify an expansion of competence (through the implied powers doctrine). The common interest of States can also point in the other direction, that of limits on competence (through the principle of speciality), as in this case. Perhaps, the Court merely intended to draw attention to a necessary corollary to the implied powers doctrine in para. 25 of the opinion, rather than making ‘backward steps in the development of the law of international organisations’.” At the same time, it may well be true that the decision is part of a broader dynamic also visible in the jurisprudence of the European Court of Justice since the 1990s,22 in which the principle of implied powers loses prominence and international organizations are reminded of ‘their main tasks as envisaged’” In any case, the Court has not revisited the doctrine of ‘implied powers’ in the years since 1996 while the principle of speciality was argued before the Court by the International Fund for Agricultural Development (IFAD) in the proceedings regarding IFAD’s request of an advisory opinion” and the Court briefly revisited it in 2010, when it confirmed, with regard to the Administrative Commission of the River Uruguay, that the principle ‘also applies of course to organizations, which like CARU, only have two member States’”

C. System of the UN Charter

The Court proceeds further in para. 26 where it argues that the WHO Constitution, ‘can only be interpreted [...] by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter’ and that the WHO’s ‘responsibilities are necessarily restricted to the sphere of public ‘health’ and cannot encroach on the responsibilities of other parts of the United Nations system’.” This reading of the principle of speciality by the ICJ in the advisory opinion has attracted criticism.[22] It is inspired by the functionalist theories that underpinned the creation of the specialized agencies and that advocated the creation of a system of international institutions with compartmentalized ‘technical’ (that is: not political) mandates.2[23] However, the Court’s interpretation seems to take this idea too far, given that it is in tension with the concept of public health expressed in the WHO’s Constitution and does not reflect the established practice of the WHO, as of other institutions in the UN system.

Regarding the WHO’s Constitution, it is of course correct that the WHO’s responsibilities are in the sphere of public health.2[24] The Constitution does not reveal a narrow understanding of these responsibilities, however. In contrast to its earlier predecessors, which were meant to focus on disease surveillance and control, the mandate of the WHO is surprisingly broad. Building on the work of the so-called social medicine movement, which had developed since the nineteenth century, a broad definition of health was included in the preamble to the WHO Constitution and the ‘functions’ of the WHO, enumerated in art. 2 of the Constitution, mention the ‘improvement of nutrition, housing, sanitation, recreation, economic or working conditions’ as important factors of public health. Since the early days of the WHO it has been accepted that these provisions give the WHO a mandate to work on what have become known as the political and social ‘determinants’ of health.[25] [26] [27] These determinants are manifold: environmental pollution, discrimination against vulnerable groups, bad sanitation infrastructure, or entrenched unhealthy lifestyles in a population are examples. Working on such determinants of health, the WHO necessarily touches on areas which are outside a narrowly understood public health mandate. In order to adequately address the issue of access to essential medicines, the WHO needs to concern itself with patent law and its international regulation through the TRIPS Agreement and bilateral investment treaties^ The WHO must equally deal with questions of investment and trademark law in its work on reducing the disease burden caused by tobacco consumption.32 The transmission of human pathogens (viruses, bacteria) between countries for research purposes raises the difficult legal question whether such pathogens are protected as a

‘genetic resource’ under international environmental law.33 It has also been reiterated that the WHO should pay close attention to fiscal policies as an ‘underused lever for curbing of non-communicable diseases and injuries?4

These few examples should suffice to show that the WHO is not only a stakeholder in the governance ‘of’ health but also in governance ‘for’ health. In this light one may put a question mark behind the Court’s assessment that questions not narrowly related to public health such as those ‘concerning the use of force, the regulation of armaments and disarmament’ are necessarily excluded from the mandate of the WHO. To avoid confusion: if it was the Court’s concern to guarantee an effective and efficient delivery of the utterly broad mandate of the UN and its specialized agencies, this concern can only be supported. Ten years after the Court gave its opinion, the report of the UN Secretary-General’s High-level Panel on UN System-wide Coherence in the Areas of Development, Humanitarian Assistance, and the Environment asserted a ‘proliferation of agencies, mandates and offices’ and a general ‘loss of cohesion?5 The various horizontal agreements between the specialized agencies are meant to counter such trends. Today, they are complemented by a number of more political initiatives, which are meant to integrate the work of institutions in the UN system^6

D. Hierarchy

In national administrative law contexts, a most important means to guarantee the effective and efficient achievement of objectives is hierarchy, expressed through authority/ competence based on law” The responsibility of institutions to discharge their functions is distributed in pyramidal systems with competence and authority gradually increasing from bottom to top. Conflicts over ‘who does what’ can be resolved through this institutional hierarchy. Such systemic hierarchy does not exist in the relations between the UN and its specialized agencies, which are more a network or an ‘unwieldy system’3® than a pyramid. It is certainly correct that the ‘specialized agencies [...] to a certain extent come under [the United Nation’s] power of coordination and supervision?9 Articles 17 [28] [29] [30] [31] [32] [33] [34]

paras 3, 58, and 64 of the Charter and the various relationship agreements between the UN and its specialized agencies specify these powers.[35] However, the means by which the various mandates within the network can be co-ordinated are rather limited. Article 63 para. 2 of the Charter merely mentions ‘consultation’ and ‘recommendations’ by the Economic and Social Council in relation to the specialized agencies. On the one hand, this relative lack of co-ordinating power between the United Nations and the specialized agencies seems natural considering that States are interested in having multiple autonomous yet interlinked fora to implement their common interests. On the other hand, these circumstances are in some tension with the goal to effectively and efficiently ‘divide labour’ on the very broad normative mandates of the UN and the specialized agencies. The Court’s advisory opinion is a succinct reminder of this state of affairs.

  • [1] For a detailed account of the events at WHO preceding the request see Legality of the Use by a Stateof Nuclear Weapons in Armed Conflict, Separate Opinion of Judge Oda, ICJ Rep 1996 pp. 88, 90 ff, 8 July1996; see also L. Boisson de Chazournes/P. Sands, ‘Introduction’, in L. Boisson de Chazournes/P. Sands(eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge, CambridgeUniversity Press 1999), pp. 1, 4ff.
  • [2] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Oral Statement by the WHOLegal Counsel, verbatim record of the public sitting held on Monday, 30 October 1995, at 10 a.m., at thePeace Palace, CR 1995/22, pp. 19, 20.
  • [3] For the Court’s advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, given onthe same day upon the request of the United Nations General Assembly, see [1996] ICJ Rep 226.
  • [4] J. Salmon, ‘Quels sont les destinataires des avis?’, in Boisson de Chazournes/Sands (eds) (n. 1),pp. 28, 31.
  • [5] The first one concerned the interpretation of the ‘Agreement between the World Health Organizationand the Government of Egypt for the purposes of determining the privileges, immunities and facilities tobe granted in Egypt by the Government to the Organization, to the representatives of its Members and toits experts and officials’ (WHO/Egypt host-country agreement) (Cairo, 25 March 1951, 223 UNTS 3058),see Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion,[1980] ICJ Rep 73, 20 December 1980.
  • [6] Besides the first WHO request, the others are Judgments of the Administrative Tribunal of the ILO uponComplaints Made against Unesco, Advisory Opinion, [1956] ICJ Rep 77, 23 October 1956; Constitution ofthe Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, AdvisoryOpinion, [1960] ICJ Rep 150, 8 June 1960 and Judgment No. 2867 of the Administrative Tribunal of theInternational Labour Organization upon a Complaint Filed against the International Fund for AgriculturalDevelopment, Advisory Opinion, [2012] ICJ Rep 10, 1 February 2012.
  • [7] The Permanent Court of International Justice had refused a request for an advisory opinion once, inthe case Status of Eastern Carelia, Advisory Opinion, PCIJ Series B No. 5, 23 July 1923.
  • [8] Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion, FirstPhase, [1950] ICJ Rep 65, 71, 30 March 1950; see also Certain Expenses of the United Nations (Article17, paragraph 2, of the Charter), Advisory Opinion, [1962] ICJ Rep 151, 155, 20 July 1962; LegalConsequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16, 27, 21June 1971.
  • [9] Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, AdvisoryOpinion, [1956] ICJ Rep 77, 86, 23 October 1956; see also Certain Expenses (n. 8), 151, 155; Namibia(n. 8), 16, 27.
  • [10] The other two conditions which must be satisfied to found the competence of the Court are thatthe agency—in this case the WHO—is duly authorized, under the Charter, to request opinions fromthe Court and that the opinion requested is on a legal question. The Court concluded that in this casethese conditions were fulfilled. Legality of the Threat or Use of Nuclear Weapons (WHO), [1996] ICJ Rep,paras 10-17.
  • [11] On interpretation of the constituent instrument of an international organization, see C.F.Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge, CambridgeUniversity Press 2005), pp. 24-61; D. Akande, ‘International Organizations’, in M.D. Evans (ed),International Law (Oxford, Oxford University Press 2014), pp. 248, 257; for a short account of the earlyapproach of the Permanent Court of International Justice to interpretation of the constituent instruments of international organizations see J. Klabbers, An Introduction to International Institutional Law(Cambridge, Cambridge University Press 2009), pp. 53-5.
  • [12] cf. Legality Nuclear Weapons (WHO), Dissenting Opinion of Judge Koroma, [1996] ICJ Rep 172,190-91: ‘[U]nduly formalistic and narrow view taken of the competence and scope of activities of theOrganization’.
  • [13] Legality Nuclear Weapons (WHO), Dissenting Opinion of Judge Shahabuddeen, [1996] ICJ Rep97, 98.
  • [14] ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, General Commentarypara. 4(b), in Yearbook of the International Law Commission 2001, Volume II, Part Two, United Nations2007, p. 31.
  • [15] K. Skubiszewski, ‘Implied Powers of International Organizations’, in Y. Dinstein (ed), InternationalLaw at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff 1989), pp. 855, 860.Skubiszewski also notes that ‘intention referred to in the context of implication will in most cases indicate a purpose or a task that Member States wish to be fulfilled’.
  • [16] V. Leary, ‘The WHO case: Implications for specialised agencies’, in Boisson de Chazournes/Sands(eds) (n. 1), pp. 112, 127; see also Blokker (n. 17), para. 12.
  • [17] See Opinion 1/94, Re WTO Agreement [1994] ECR I-5267; Opinion 2/94, Re European Convention onHuman Rights [1994] ECR I-5267; Case C-376/98, Germany v European Parliament and Council [2000]ECR I-8419.
  • [18] 23 Klabbers (n. 11), pp. 70, 72.
  • [19] Judgment No. 2867 (n. 6), Written Comments of IFAD, para. 21, 11 March 2011.
  • [20] 25 Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment, [2010] ICJ Rep 14, 53/para. 89, 20April 2010.
  • [21] For a similar reasoning regarding the distribution of competences among the organs of the UnitedNations see Certain Expenses (n. 8), Dissenting Opinion of Judge Winiarski, [1962] ICJ Rep 227, 230.
  • [22] See, for instance, M. Bothe, ‘The WHO Request’, in Boisson de Chazournes/Sands (eds) (n. 1), p. 103;N.D. White, ‘The World Court, the WHO, and the UN System’, in N.M. Blokker/H.G. Schermers (eds),Proliferation of International Organizations—Legal Issues (Brill 2001), pp. 85-109.
  • [23] P. Klein, ‘Quelques reflections sur le principe de speciality et la “politisation” des institutions spe-cialisees’, in Boisson de Chazournes/Sands (eds) (n. 1), pp. 78, 87; E. Klein, ‘Specialized Agencies’, inWolfrum (ed.) (n. 17), paras 6, 80.
  • [24] For a detailed analysis of the WHO Constitution see G.L. Burci/C.-H. Vignes, World HealthOrganization (London, Kluwer Law International 2004).
  • [25] See, O.P. Ottersen et. al., ‘The political origins of health inequity: prospects for change’, [2014] TheLancet 630-67.
  • [26] On the former see J. Quirin, ‘Art. 31bis’, in P. Stoll/J. Busche/K. Arend (eds), WTO—Trade-RelatedAspects of Intellectual Property Rights (Leiden, Martinus Nijhoff 2009); H. Grosse Ruse-Kahn, ‘TheInternational Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: TowardsSafeguarding TRIPS Flexibilities?’, (2011) Journal of Intellectual Property Law 1, available athttp://papers.ssrn.com; on the latter see UNITAID, The Trans-Pacific Partnership Agreement—Implications for Access to Medicines and Public Health, available at http://www.unitaid.eu.
  • [27] See M. Davison, ‘Plain Packaging of Tobacco and the “Right” to Use a Trade Mark’, (2012) EuropeanIntellectual Property Review 498-501; A.D. Mitchell/S.M. Wurzberger, ‘Boxed In? Australia’s PlainTobacco Packaging Initiative and International Investment Law’, (2011) Arbitration International 623-51.
  • [28] M. Wilke, ‘A Healthy Look at the Nagoya Protocol—Implications for Global Health Governance’,in E. Morgera/M. Buck/E. Tsioumani (eds), The 2010 Nagoya Protocol on Access and Benefit-Sharing inPerspective (Leiden, Martinus Nijhoff 2012), pp. 123-49.
  • [29] See G. Yamey et al., ‘Global Health 2035 Report: A World Converging Within a Generation’, [2013]The Lancet 1898-955.
  • [30] Report of the UN Secretary-General’s High-level Panel on UN System-wide Coherence in the Areasof Development, Humanitarian Assistance, and the Environment, 9 November 2006, para. 10, availableat http://www.un.org/events/panel/resources/pdfs/HLP-SWC-FinalReport.pdf.
  • [31] Since 1994, the ‘human security’ concept gained traction in the United Nations, which emphasizesthe interconnectedness of economic, food, health, environmental, personal, community, and politicalchallenges; see C. Ryngaert/M. Noortmann (eds), Human Security and International Law (Cambridge/Antwerp/Poland, Intersentia 2013); the Millenium Development Goals served a similar integrating purpose in that they broadly guided the work of many agencies in the UN system.
  • [32] 37 See H. Dreier, Hierarchische Verwaltung im demokratischen Staat (Tubingen, Mohr Siebeck 1991),pp. 19-158; a trend away from hierarchy as a mode of governance in domestic contexts has been observedfor a number of years now, see K.-H. Ladeur, ‘The Changing Role of the Private in Public Governance—The Erosion of Hierarchy and the Rise of a New Administrative Law of Cooperation. A ComparativeApproach’, EUI Working Paper LAW No. 2002/9, available at http://hdl.handle.net/1814/187.
  • [33] 3 8 White (n. 27), pp. 85, 93.
  • [34] B. Conforti, The Law and Practice of the United Nations (Leiden, Martinus Nijhoff 2010), p 349.
  • [35] On the relationship agreements, see W. Meng, ‘Article 63 paras 1-36’, in B. Simma/D.-E. Khan/G. Nolte/A. Paulus (eds), The Charter of the United Nations (Oxford, Oxford University Press/C.-H.Beck 2012).
 
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