Attribution of Powers Flashcards
Do international have general powers?
No.
1) While states have general powers to act in accordance with international law,
2) IOs are competent to act only as far as powers have been attributed to them by the member states.
What are IOs powers normally limited to?
Whatever is necessary to perform the functions their constitutions have defined.
What is the principle of speciality? (WHO Advisory Opinion)
IOs are invested by the states with powers the limits of which are a function of the common interests whose promotions those states entrust to them.
What functions does the EC, as an international organisation, have?
(AO: Jurisdiction of the European Commission of the Danube River).
1) Only has functions bestowed upon it by the definitive statute with a view to the fulfilment of that purpose.
2) Has power to exercise these functions to their full extent, in so far as the statute doesn’t impose restrictions.
How does an organ act ultra vires?
The organ exceeds its powers (attributed).
Give examples of how practice has suggested otherwise, with regard to ultra vires acts of international organisation:
1) Creation of ad hoc tribunals in 1990s –> Brazil
2) OPCW –> dismissal of Bustani
3) OPCW –> Germany’s request to ask the OPCW to confirm findings on Nalvany.
4) 1950 Uniting for Peace Resolution –> power for assembly to issue recommendations to member states for collective measures
When can an organisation assert it did not act ultra vires?
When the organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN.
(Certain Expenses of the UN)
What is mission creep?
When an organ acts outside its stated purpose.
What was a solution to the mission creep in PrepComm?
1) Could do a formal adaptation,
but overly formalistic, so
2) There was a broad consensus among members about choices to be made. As long as use of new powers didn’t violate existing rules of organisation.
What is the problem with principle of attribution and conflicting provisions?
In most IOs, whenever the competence of an organ is challenged that organ itself usually decides whether the challenge has merit.
Eg consolation of UN Office of Legal Affairs
Who is an exception to the decision of an IO with regard to the competence of its own powers?
European Court of Justice has considered whether organs have exceeded their powers or infringed upon powers of other organs.
In doing so, it has introduced the principle of institutional balance.
The Parliament, Commission and Council must each respect each other’s competences.
Why are implied powers necessary?
Because an exhaustive list is not possible.
An organisation needs to respond to developments in practice which cannot be foreseen when it is created.
What are implied powers based on?
Powers or functions attributed to the organisation at its creation.
What is a question to ask when applying implied powers?
Is the power in question necessary or essential for the organisation to perform its functions?
How was this applied in Reparations for Injuries?
1) Organisations must be deemed to have those powers which…are conferred upon it by necessary implication as being essential to performance of its duties.
2) Concluded UN agents, in carrying out their functions, must be ensured of effective protection by UN.
