Citation:
Ebere Osieke, The Legal Validity of Ultra Vires
Decisions of International Organizations, 77 Am. J.
Int'l L. 239 (1983)
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THE LEGAL VALIDITY OF ULTRA VIRES
DECISIONS OF INTERNATIONAL ORGANIZATIONS
By Ebere Osieke*
I. INTRODUCTION
The question of the legal validity of the acts and decisions adopted by
international organizations in excess of their authority has attracted the attention
of international lawyers,' as well as international courts and tribunals,2
in recent years. However, no general principles or criteria for determining
such validity have as yet been formulated by the international community. In
the meantime, the question has continued to give rise to controversy within
and outside international organizations and to gain in importance, because of
persistent procedural irregularities and the increasing tendency of some of
the organizations to take measures that are not expressly provided for in their
constitutive instruments but that they consider necessary or essential for the
effective discharge of their mandates.
The present article will examine the legal status of these acts and decisions
on the basis of the writings of international lawyers, the opinions of international
courts and tribunals, and the law and practice ofcertain international
organizations, with a view to determining whether any general principles have
now emerged. However, an inquiry of this sort will necessarily involve consideration
of two other issues on which there are still some differences of
opinion among legal commentators, namely, the right of member states to
* Reader in Law, and Ag. Head of the Department of Public and Private Law, University of
Jos, Nigeria. Formerly, member of the Legal Advisory Staff, International Labour Office, Geneva,
Switzerland.
' Osieke, 'Ultra-Vires'Acts in InternationalOrganizations-TheExperienceof the InternationalLabour
Organization,48 BRIT. Y.B. INT'L L. 259 (1976-77); Osieke, UnconstitutionalActs in International
Organisations:The Law andPracticeofthe InternationalCivil Aviation Organisation(ICAO), 28 INT'L
& COMp. L.Q. 1(1979); Osieke, Admission to Membership in InternationalOrganizations:The Case of
Namiba, 51 BRIT. Y.B. INT'L L. 189, 220-22 (1980); Morgenstern, Legalityin InternationalOrganizations,48
id. at 24 (1976-77); Jennings, Nullity and Effectiveness in InternationalLaw, in CAMBRIDGE
ESSAYS ININTERNATIONAL LAW 64 (1965); Lauterpacht, The Legal Effect ofIllegalActs
ofInternationalOrganizations,in id. at 88; Cahier, LaNullit en droitinternational,76 REv. GENERALE
DROIT INT'L PUBLIC 645 (1972); D. CIOBANU, PRELIMINARY OBJECTIONS: RELATED TO THE
JURISDICTION OFTHE UNITED NATIONS POLITICAL ORGANS (1975); and C. LEBEN, LES SANCTIONS
PRIVATIVES DE DROITS OU DE QUALITE DANS LES ORGANISATIONS INTERNATIONALES
SPiCIALISEES (1979).
2
See, e.g., the Advisory Opinions of the International Court of Justice on Constitution of the
Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, 1960
ICJ REP. 150 (June 8); Certain Expenses of the United Nations (Article 17, paragraph 2 of the
Charter), 1962 ICJ REP. 151 (July 20); Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), 1971 ICJ REP. 16 (June 21); and theJudgment on the Appeal Relating to theJurisdiction
of the ICAO Council, 1972 ICJ REP. 46 (Oct. 18).
THE AMERICAN JOURNAL OF INTERNATIONAL LAW
challenge the legal validity of the acts and decisions of international organizations
and the competence of these bodies to rule on such challenges. It
would therefore seem appropriate to deal with these two questions before
examining the legal validity of the acts and decisions adopted in excess of
authority.
The Right ofMember States to Challenge the Decisions
The constitutions of most international organizations generally do not contain
express provisions authorizing challenges of their acts and decisions by
the member states, on grounds of excess of authority or procedural irregularity.
In practice, however, member states have consistently made such challenges,
and their right to do so has mostly been accepted within and outside
the international organizations.3
The right of member states in these cases appears to derive from the consensual
nature of the constitutions concerned. Because they are international
treaties, each party possesses an inherent right to supervise their implementation
to ensure that the organizations do not adopt decisions that would be
incompatible with their objects and purposes, or that would be detrimental
to the interests of the member states in excess of what they had accepted as
the basis for membership.
In practice, member states have often been reluctant, for political or other
reasons, to challenge the legal validity ofthe acts and decisions ofinternational
organizations.4
However, the availability of the right has helped put the organizations
on their guard, and its exercise by some member states has in
many cases resulted in the defeat of proposals that would have constituted
' This right was emphasized byJudge Bustamante in his dissentingopinion in the CertainExpenses
case:
[W]hen, in the opinion of one of the Member States, a mistake of interpretation has been
made or there has even been an infringement of the Charter, there is a right to challenge
the resolution in which the error has been noted for the purpose of determining whether
or not it departed from the Charter.
1962 ICJ REP. at 304.
' The cases of reluctance to raise objections for political reasons may be illustrated by the
various resolutions concerning the apartheid policy of the Government of South Africa. Some
member states from the industrialized countries refrain from raising objections on the ground of
illegality because they do not wish to be seen as supporting the Government of South Africa on
apartheid. One good example in recent years is the admission of nonindependent Namibia to full
membership in international organizations. Many members considered that the admission might
not be compatible with the law and practice of the organizations concerned, but some of them
refrained from raising any formal objections and some even voted for it. See Osieke, Admission to
Membership, supranote 1, at 213-16.
It has also been pointed out that member states are restricted from contesting the decisions of
international organizations because these bodies do not always indicate the sources of their authority
and, consequently, members do not often have the criteria they need to evaluate the
"improper" decisions. See Wright, The StrengtheningofInternationalLaw, 98 RECUEIL DES COURS
1, 121 (1959 III); and D. CIOBANU, supra note 1, at 73-74.
[Vol. 77
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
flagrant departures from the functions and powers ofthe organizations as laid
down in their constitutions and other fundamental laws.5
The Competence of the Organizationsto Decide the Challenges
The constitutions of most international organizations do not contain any
provisions on their competence to determine claims concerning the legal validity
of their acts and decisions. This silence has led some writers to conclude
that these bodies have no competence to make such determinations, and that
for them to do so would be to act as "judges in their own cases," contrary to
the general legal principle nemo debet essejudex inpropriacausa.In his dissenting
opinion in the Narmibia case (1971), Judge Sir Gerald Fitzmaurice put the
issue thus:
In the institutional field, the justification for the act of some organ or
body may turn upon considerations of a political or technical character,
or of professional conduct or discipline, and if so, the political, technical
or professional organ or body concerned will, in principle, be competent
to make the necessary determinations. But where the matter turns, and
turns exclusively, on considerations of a legal character, a political organ,
even if it is competent to take any resulting action, is not itself competent
to make the necessary legal determinations on which the justification for
such action must rest. This can only be done by a legal organ competent
to make such determinations.6
This position has not been generally accepted by writers. Indeed, the more
general view, supported by pronouncements of the International Court of
Justice and the consistent practice of the organs ofinternational organizations,
is that these bodies are competent to deal with claims against their competence
and jurisdiction.7
The attitude of the Court on this issue is discernible from
its Advisory Opinion in the Certain Expenses case (1962), where it stated:
In the legal systems of States, there is often some procedure for determining
the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposals made during the drafting of the Charter to place the
ultimate authority to interpret the Charter in the International Court
of Justice were not accepted;8
the opinion which the Court is in course
5See, e.g., the defeat at the International Labour Conference in 1973 of the resolution concerning
"the policy of discrimination, racism and violation of trade union freedoms practised by
the Israeli authorities in Palestine and the occupied territories," discussed by the present writer
in Ultra-VresActs, supra note 1, at 269-70; see also Osieke, UnconstitutionalActs, supra note 1, at
24-25.
6 1971 ICJ REP. at 299.
7
See I. DETTER, LAW MAKING BY INTERNATIONAL ORGANIZATIONS 23 (1965); and D.
CIOBANU, supra note 1, at 163-73.
8 For the proposals made in this respect by the Belgian delegation, see Doc. 2, G/7(k)(1), 3
UNCIO Docs. 335, 336 (1945).
19831
242 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
of rendering is an advisory opinion. As anticipated in 1945, therefore,
each organ must, in the first place at least, determine its ownjurisdiction.9
According to some commentators, the competence of international organizations
to determine claims against their jurisdiction is derived from their
inherent power to interpret their constitutions in order to ascertain the nature
and extent of their functions and powers.'0
It is difficult, however, to reconcile
this assertion with reality. The interpretation oftheir constitutive instruments
by international organizations in order to ascertain the extent of their functions
and powers is not the exercise of ajudicial function because there is no
question or dispute involved. On the other hand, the determination ofjurisdictional
claims raised by member states could be characterized as the exercise
of a judicial function because it involves a question or dispute necessitating
considerations of a legal character. It follows, therefore, that the inherent
powers of international organizations to exercise a nonjudicial function cannot
be the proper basis for the performance of functions of a judicial character.
The main justification for the attribution of competence to international
organizations to determine claims against theirjurisdiction, or the legal validity
of their acts and decisions, is the absence of review bodies with original or
appellate jurisdiction to deal with these cases. To deny international organizations
competence in these circumstances would create a lacuna; and it could
seriously impede the effective attainment oftheir objects and purposes because
all that a member state would have to do to create an impasse or prevent the
adoption of a decision is to challenge the competence of the organ or the
organization, or indeed the legal validity of the decision.
9 1962 ICJ REP. at 168. Again, when it considered the objection raised in the Namibia case that
General Assembly Resolution 2145 (XXI) made pronouncements that the Assembly, not being
a judicial organ and not having previously referred the matter to any such organ, was not competent
to make, the Court stated:
To deny to a political organ of the United Nations which is a successor of the League in this
respect the right to act, on the argument that it lacks competence to render what is described
as a judicial decision, would not only be inconsistent but would amount to a complete denial
of the remedies available against fundamental breaches of an international undertaking.
The Court concluded, therefore, that it was "unable to appreciate the view that the General
Assembly acted unilaterally as party and judge in its own cause." 1971 ICJ REP. at 49. Although
the Court was dealing in this case with Resolution 2145, in which the General Assembly derived
competence from the mandate for South West Africa, the foregoing statements constitute some
indication of its approach on the question of "comptence de la compitence" of international orga-
nizations.
10This approach is normally supported by the following statement in the Report of Committee
IV/2 of the San Francisco Conference:
In the course of the operations from day to day of the various organs of the Organization,
it is inevitable that each organ will interpret such parts of the Charter as ale applicable to
its particular functions. This process is inherent in the functioning of any body which operates
under an instrument defining its functions and powers. It will be manifested in the functioning
of such a body as the General Assembly, the Security Council, or the International Court
of Justice. Accordingly, it is not necessary to include in the Charter a provision either authorizing
or approving the normal operation of this principle.
Doc. 933, IV/2/42(2), 13 UNCIO Docs. 703, 709 (1945). See also I. DETTER, supra note 7,
at 23.
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
It appears, therefore, that the determination of jurisdictional claims by
international organizations, though perhaps not as satisfactory as a judicial
determination, is necessary at the present time. Furthermore, the apparent
legal defects of the present practice seem to be mitigated by the fact that in
the proceedings of many international organizations, claims as to jurisdiction,
or the legal validity of acts and decisions, are not often seen in their purely
legal contexts by member states, but rather as political devices or manipulations
by opponents to defeat a proposal. For instance, a claim that an international
organization has no competence to adopt a resolution condemning
the apartheid policies of the Government of South Africa will be seen by many
member states as a political ploy by the opposing members to defeat the
resolution. Hence, the supporters of the resolution will see its adoption as a
political victory, rather than a legal triumph-and its opponents will take the
opposite view.
1I. THE LEGAL STATUS OF REVIEWABLE ACTS AND DECISIONS
The legal status of an act or decision adopted by an international organization
in excess of its authority will depend to a large extent on whether there
is the possibility for review. Thus, the present section will examine the legal
status of reviewable acts and decisions, while the nonreviewable cases will be
dealt with in the next section.
Although there is no general review machinery in international organizations,
in some of them certain acts and decisions may be reviewed if an objection
or appeal has been made." Such a review could be by a judicial organ,
as with certain decisions of the Council of the International Civil Aviation
Organization (ICAO) which are appealable to the International Court ofJustice,'2
or by a political organ, normally the main or plenary body of the
organization.
13
As a general rule, all review bodies possess the power to invalidate an
impugned act or decision that they find to be in excess of authority or illegal;
but in determining the question oflegal effects, they seem to make a distinction
between substantive and procedural acts. These two categories of cases will
therefore be considered separately.
Substantive Ultra Vires Acts
The word "substantive" is a generic term normally employed to designate
certain acts and decisions that are not procedural. Stated simply, a substantive
act or decision is one that is not procedural. But this definition does not get
one very far in the context of international organizations because questions
" Cf the separate opinion of Judge Sir Percy Spender in the Certain Expenses case, 1962 ICJ
REP. at 196. See also 3 G. SCHWARZENBERGER, INTERNATIONAL LAW As APPLIED BY INTERNATIONAL
COURTS AND TRIBUNALS 53-54 (1976).
"
2
See Art. 84 of the Chicago Convention, 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295.
" Cf. Art. 7(3) of the Constitution of the International Labour Organisation, which authorizes
ILO members to appeal to the International Labour Conference a decision of the Governing
Body as to which are the members of the Organisation that are of chief industrial importance.
1983]
THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
of substance are very often intertwined with those of procedure. The best
approach would be to categorize as substantive all the decisions that affect the
policies of an organization, such as those relating to budget, allocation of
functions and powers, appointment of the executive head, amendments to the
constitution, conclusion of treaties, admission to and termination of membership,
and many others. The list is not exhaustive. A possible guide to what
constitutes substantive acts and decisions would be the requirement of a voting
majority of two-thirds and above, but this is not always determinative because
some substantive decisions may be adopted by simple majorities.
With respect to the legal effects of substantive ultra vires acts, opinion is
divided among legal commentators on whether they are void ab initioor voidable.
4
However, it appears from the jurisprudence of the International Court
of Justice and the law and practice of international organizations that, unless
there are express provisions to the contrary, substantive ultravires acts and
decisions of international organizations are not void ab initio, but only cease
to give rise to binding legal obligations with effect from the date of their
invalidation. For instance, after the International Court of Justice concluded
in its Advisory Opinion on the MaritimeSafety CommitteeoftheInter-Governmental
Maritime Consultative Organization (IMCO) that the committee, which was
elected on January 15, 1959, was not constituted in accordance with the
Constitution ofthe Organization, the second Assembly ofIMCO, which met
in 1961, decided to dissolve the committee and to constitute a new one in
accordance with Article 28 of the Convention as interpreted by the Court. 6
At the same time, the Assembly confirmed and adopted the measures that
had been taken by the improperly constituted committee during the period
1959 to 1961, i.e., before its dissolution. 1
The confirmation of these measures by the IMCO Assembly shows that it
did not regard them as without legal validity from their inception. In other
words, the Assembly did not consider them as void ab initio.
Further light may be thrown on the approach ofinternational organizations
to this question by Article 7(3) of the Constitution ofthe International Labour
Organisation (ILO), which stipulates that an appeal to the Conference against
the declaration of the Governing Body as to which members of the Organisation
are of chief industrial importance "shall not suspend the application of
the declaration until such time as the Conference decides the appeal." Thus,
even if the declaration of the Governing Body is eventually invalidated, legal
effect will be attributed to actions or measures taken on the basis of the
declaration before the determination of the appeal by the Conference. The
14 See D. CIOBANU, supranote 1, at 75; Lauterpacht, supra note 1, at 111; Osicke, Ultra-Vires
Acts, supra note 1, at 276-77; Osieke, UnconstitutionalActs, supra note 1, at 21-22. See also H.
Lauterpacht, The Legal Remedy in Case ofExcess ofJurisdiction,9 BRIT. Y.B. INT'L L. 117 (1928);
Castberg, L'Excs du pouvoirdanslajusticeinternationale,35 RECUEIL DES COURs 353, 361 (1931
I); Guggenheim, La Validitiet la nullitg des actesjuridiquesinternationaux,74 id. at 195 (1949 I);
andJennings, supra note 1, at 83-84.
151960 ICJ REP. at 171.
16 IMCO Res. A.21 (II) (Apr. 6, 1961); see also IMCO Doc. A.I1/S.R.3, at 6-11 (1961).
17IMCO Res. A.21 (II), supra note 16.
244
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
justification for this interpretation is that if the invalidated declaration were
regarded as void ab initio, all the decisions adopted by the improperly constituted
Governing Body before the appeal is determined would be null and
void, and without legal effects. Since a period of up to 10 or 11 months could
elapse before the appeal is decided by the Conference, this could give rise to
serious consequences in the Organisation.
Similar considerations would seem to apply to the provisions of Article 86
of the Chicago Convention that unless the Council of ICAO decides otherwise,
any of its decisions on whether an international airline is operating in conformity
with the provisions of the Convention "shall remain in effect unless
reversed on appeal."
The nonattribution of absolute nullity to the substantive ultravires acts of
international organizations-although different from the position in many
municipal systems-would appear to be justified by the special character of
the decisions of these organizations. Many of their decisions, such as those
relating to the admission of new members or the creation of committees or
subsidiary organs, very often become effective immediately after adoption,'"
and it would be unrealistic to maintain that all the actions taken by the organization
and its organs, as well as third parties, should be considered as
absolute nullities on the basis ofthe subsequent invalidation of the substantive
decision by a review body. The fact that these acts are only voidable may not
be entirely satisfactory, but the alternative would lead to uncertainties and
chaos, which would weaken the effectiveness of international organizations.
A possible solution may be to suspend the implementation ofdecisions against
which objections or appeals have been made until the matter is decided by
the review body.'
9
ProceduralUltra Vires Acts
Where the constitution or other instrument ofan international organization
authorizes a certain function or power to be exercised in accordance with a
specified procedure, failure to observe the procedure could constitute a
ground for a review body to invalidate the resulting act or decision. It is not
possible-nor indeed necessary-to draw up a list ofall the procedural defects
that may occur in an international organization, but these would include
adoption of decisions by a method of voting other than that prescribed in the
rules, e.g., voting by show of hands instead of by record vote or secret ballot;
failure to appoint a committee whose recommendation is required for a decision
by a superior organ; adoption of a decision on a matter that was not
placed on the agenda ofan organ in accordance with the prescribed procedure;
adoption of a decision by the wrong organ or by a smaller majority than that
laid down in the rules. The list is not exhaustive.
"' On the self-executing nature of certain decisions of international organizations, see Osieke,
Admission to Membership, supra note 1, at 220-21.
9
See, e.g., Article 86 of the Chicago Convention, supra note 12, which stipulates that certain
decisions of the ICAO Council, if appealed, shall be suspended until the appeal is decided.
1983]
246 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
The attitude of review bodies to procedural irregularities appears to be
somewhat cautious. The International Court ofJustice has been reluctant to
admit that such irregularities could constitute the basis for invalidating a decision
of an international organization. In its Advisory Opinion in the Certain
Expenses case, the Court stated:
If it is agreed that the action in question is within the scope of the
functions of the Organization but it is alleged that it has been initiated
or carried out in a manner not in conformity with the division offunctions
among the several organs which the Charter prescribes, one moves to
the internal plane, to the internal structure of the Organization. If the
action was taken by the wrong organ, it was irregular as a matter of that
internal structure, but this would not necessarily mean that the expense
incurred was not an expense of the Organization. Both national and
international law contemplate cases in which the body corporate or politic
may be bound, as to third parties, by an ultra vires act of an agent.2
"
Again, during the proceedings before the International Court ofJustice in
1971 concerning the Appeal Relatingto theJurisdictionofthe ICAO Council, the
Government of India contended, interalia,that the impugned decisions of the
Council were vitiated by procedural irregularities. The Court rrade the following
statement on the matter:
The Court however does not deem it necessary or even appropriate to
go into this matter, particularly as the alleged irregularities do not prejudice
in any fundamental way the requirements of ajust procedure. The
Court's task in the present proceedings is to give a ruling as to whether
the Council has jurisdiction in the case. This is an objective question of
law, the answer to which cannot depend on what occurred before the
Council. Since the Court holds that the Council did and does have jurisdiction,
then, if there were in fact procedural irregularities, the position
would be that the Council would have reached the right conclusion
in the wrong way. Nevertheless it would have reached the right conclusion.
If, on the other hand, the Court had held that there was and is no
jurisdiction, then, even in the absence of any irregularities, the Council's
decision to assume it would have stood reversed.'
It would appear, therefore, that procedural irregularities would not normally
constitute a ground for invalidating the acts or decisions of an international
organization by a review body, unless such irregularities result in the
adoption of a wrong decision or in a miscarriage ofjustice. Judge Dillard
emphasized this latter point in his separate opinion in the ICAO case: "It is,
of course, not impossible to contemplate a situation of gross abuse of procedural
requirements leading to a miscarriage ofjustice. In such a situation the
validity of the decision adopted by a subordinate adjudicating body may be
legitimately challenged on appeal."2 2
What amounts to a wrong decision or miscarriage ofjustice in this respect
will depend upon the special circumstances ofeach case, but one clear example
is where the rules stipulate that a particular decision should be adopted by a
20 1962 ICJ REP.at 168. 21 1972 ICJ REP. at 69-70.
22
Id.at 100; see also the separate opinion ofJudge Jim6nez de Argchaga, id. at 153.
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
two-thirds majority and the organ concerned adopts it by a simple majority,
which derogates from the constitutional rights of some members.
As in the case of substantive ultra vires, the acts and decisions that are
invalidated by review organs on the basis of procedural irregularities would
not be void ab initio, but would merely cease to give rise to binding legal
obligations after their invalidation.
Limitationsto Review
The power of review bodies to invalidate the acts and decisions of international
organizations would appear to be limited, as in municipal systems of
law, by the operation of a number of rules, such as acquiescence, estoppel,
severability, and lapse of time ex tempore.2
" In addition, review bodies appear
to be unwilling to interfere with the exercise of discretionary power by an
international organization, or to substitute their discretion for that of an organ,
unless there has been a miscarriage ofjustice.24
It is also doubtful whether
a review body would interfere with rules, regulations, or procedures adopted
by the organs of international organizations in the exercise of their constitutional
powers.
The recent Draft Convention on the Law of the Sea (Informal Text) contains
some provisions that may reveal the attitude of the international community
on this question. Article 187 grantsjurisdiction to the Sea-Bed Disputes
Chamber to determine disputes between a state party and the Sea-Bed Authority
concerning acts or omissions ofthe Authority alleged to be in violation
of part XI of the Convention or its Annexes, or of rules, regulations, or
procedures promulgated in accordance therewith; "or acts of the Authority
alleged to be in excess ofjurisdiction or a misuse of power."
At the same time, Article 190 of the Convention, which deals with limitations
on the jurisdiction of the Sea-Bed Disputes Chamber with regard to
decisions of the Authority, stipulates that the Chamber "shall have no jurisdiction
with regard to the exercise by the Authority of its discretionary powers
in accordance with this Part; in no case shall it substitute its discretion for that
of the Authority"; and that "in exercising its jurisdiction pursuant to Article
187, the Sea-Bed Disputes Chamber shall not pronounce itself on the question
whether the application of any rules, regulations or procedures adopted by
2 5
Cf.J. GARNER, ADMINISTRATIVE LAW 175-92 (5th ed. 1979); S.DE SMITH, CONSTITUTIONAL
AND ADMINISTRATIVE LAW 550-59 (3d ed. 1977); S.DE SMITH, JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION 314 (3d ed. 1973); and E. WADE & G. PHILLIPS, CONSTITUTIONAL
AND ADMINISTRATIVE LAW 587-97 (9th ed. 1977). See also the interesting discussion on these
limitations with respect to the acts and decisions of international organizations by Lauterpacht,
supra note 1, at 116-21.24
C. W. JENKS, THE PROPER LAW OF INTERNATIONAL ORGANISATIONS 85-101 (1962);
also 3 G.SCHWARZENBERGER, supranote 11; and the Judgments of the Administrative Tribunal
of the ILO in Meyer v. International Atomic Energy Agency,Judgment No. 245 (Oct. 21, 1974);
Djoehana v. Food and Agriculture Organization of the United Nations, Judgment No. 359 (Nov.
13, 1978); and Sita Ram v. World Health Organization, Judgment No. 367 (Nov. 13, 1978). See
also the recent Judgment of the United Nations Administrative Tribunal in Adler v. United
Nations, Judgment No. 267, UN Doc. AT/DEC/267, at 38 (Nov. 21, 1980).
1983]
248 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
the Authority are in conformity with the provisions of this Convention, nor
declare any such rule, regulations or procedure invalid." 25
These provisions clearly limit the review powers of the Sea-Bed Disputes
Chamber over the activities of the Sea-Bed Authority when the exercise of
its discretionary powers or the application of rules, regulations, and procedures
it has adopted are involved.
Another limitation to the review of acts of international organizations is
that review bodies do not normally have the jurisdiction to interfere on their
own motions, ex moromotu, but may exercise their review functions only if the
matter has been referred to them by a member state or an organ of the
organization. Consequently, a presumption of validity, omniapraesumunturrite
et solemniteresse acta, will be made with respect to all the acts and decisions of
international organizations to which no objections have been raised.
III. THE LEGAL STATUS OF NONREVIEWABLE ACTS AND DECISIONS
One of the complexities of the law and practice of international organizations
is that many oftheir acts and decisions, particularly those of the plenary
bodies, are not subject to appeal or review by any other organ, judicial or
political, within or outside the organization. Some examples of these "final"
acts and decisions are those relating to the admission ofa new member or the
appointment of the executive head of the organization or a committee and
those against which no appeal is permitted under the 'constitution.
The practice ofinternational organizations shows that objections are sometimes
raised against these acts and decisions, 26 but opinion is divided among
international lawyers as to their legal validity if the objections are overruled
by the organ concerned. Some writers consider that the acts and decisions
cannot be regarded as automatically void if it is not possible to appeal them
and no machinery exists for determining the objections raised against them.2 7
Some other writers maintain, however, that even in the absence of compulsory
jurisdiction or review machinery, the final acts and decisions that are manifestly
outside the scope ofthe powers of an international organization, or that
are based on irrelevant political considerations, should be regarded as ultra
vires and without legal effect. 28
Thus, in the opinion of these writers, the
attribution of ultravires status to such acts and decisions does not depend on
25 Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP. 10/
Rev.3, at 78-80 (1980).
21 Osieke, Ultra-ViresActs, supra note 1, at 264-73.
27
Id. at 278-79.
28
See the separate opinion of Judge Morelli in the Certain Expenses case, 1962 ICJ REP. at
222, and the dissenting opinion of Judge Bustamante in the same case, id. at 304. See also Duke
Pollard, who maintains:
[T]he status of an act by an international organisation is intrinsically independent of the
existence of machinery for authoritatively appreciating it as a prelude to its enforcement or
nullification as the case may be. The, determinations of competent review machinery in
appreciating the quality of an act in municipal systems are not constitutive; they are merely
declaratory and are normally expressed to be so.
Pollard, Conflict Resolution in Producers'Associations,31 INT'L & COMP. L.Q. 99, 120 (1982).
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
a determination or declaration by a review body.29
This argument raises a
number of important points that should be considered further.
Manifestlv Ultra Vires Acts
The concept of "manifest ultra vires," which appears to have received a
measure of acceptance with respect to the improper awards of arbitration
tribunals,3
" has not received the same approbation as regards the acts and
decisions ofinternational organizations. However, during the oral proceedings
in the Certain Expenses case, the representative of the Government of the
United Kingdom submitted that there was no power to apportion the expenditure
arising out of ultra vires acts that were "manifestly invalid."'" And
according to the United States representative, ultra vires acts could give rise
to lawful expenditure unless they were "manifestly invalid."3
In its Advisory Opinion in the case, the International Court ofJustice also
made a statement that suggests that the presumption of validity only attaches
to an action pertinent to the stated purposes of an organization: "when the
Organization 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 action is not ultravires the Organization.""3
Obviously, the rather unsettled state of the law and practice of international
organizations on questions of nullity and invalidity makes the concept of manifest
ultra vires very attractive, but its practical application would give rise to
considerable difficulties. It might not be easy to establish the category ofacts
and decisions that could be characterized as manifestly ultra vires. Perhaps all
the acts and decisions that are contrary to the objects and purposes of an
international organization should be considered as manifestly ultra vires. But
what if no objections have been raised against them? Should they still be
presumed to be ultra vires and nonexistent? Who decides whether an act or
decision is manifestly ultra vires? The organ whose acts have been impugned?
Or should the matter be left to the unilateral decision of a member state?
Another difficulty stems from the nature of the decision-making process in
international organizations. A decision ofan international organization is consensual
in character and must be approved by a majority of the member states.
This means that any such decision constitutes some form of understanding
or agreement among the sovereign states that participated in its adoption.
Therefore, it would seem difficult to maintain that a decision accepted by a
majority of states in the proper exercise of their rights of membership in an
international organization should be considered as ultravires and nonexistent
perse, i.e., in the absence of a declaration to that effect by a competent review
body.
Ibid.
3"3 E. DE VATTEL, THE LAW OF NATIONS, bk. II, ch. XVIII, §329 (Carnegie ed. 1916). See
ao H. Lauterpacht, supra note 14; Jennings, supra note 1, at 83-84; Castberg, supranote 14, at
361; and Guggenheim, supranote 14, at 195-263.
"' 1962 ICJ Pleadings (Certain Expenses of the United Nations) 337 (statement of May 17,
1962).
'2Id.at 416. 351962 ICJ REP. at 168.
1983]
250 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
Acts and DecisionsBased on IrrelevantPoliticalConsiderations
Many of the decisions of plenary organs of international organizations to
which objections are often raised relate primarily to political questions, such
as the apartheid policies of the Government of South Africa and the policies
of the Government of Israel in the occupied territories. Invariably, the decisions
on these matters are motivated on the whole by political considerations,
and on many occasions, many member states, particularly those belonging to
the Group of77 and the socialist countries ofEastern Europe, vote togethera
situation generally characterized as "bloc voting."
These developments have given rise to serious criticisms by the member
states from the industrialized market economy countries, as well as by legal
commentators. More significantly, doubt has been raised as regards the legal
validity of the politically motivated decisions adopted by international organizations
with the support of the "automatic" majority. One eminent jurist,
Professor Eagleton, considered that if a political action taken by a majority
vote were to be regarded as proof that the organ was competent under its
constitution to take the action, the result would be anarchy from a constitutional
or legal viewpoint. 4
Writing about events in the United Nations, particularly the role played
by the majority relating to the adoption of certain decisions, Professor Leo
Gross concluded that the minority members could have prevented the spread
of majoritarianism in the Organization:
One would have been justified in expecting that the United States and
other minority members, particularly those which are permanent members
of the Security Council, would have been on their toes to prevent
the contagion of unbridled majoritarianism from infecting that principal
organ of the United Nations. This, regrettably, has not been the case.3 5
In a recent study, Professor Elihu Lauterpacht emphasized the extent to
which the adoption of decisions by the majority is controlled by the legal
system of international organizations:
What conclusion is to be drawn from references to situations in which
majorities in international organizations have shown their unconcern for
the constitutional rights of States which can muster only minority support?
It could, of course, be argued that what may appear to be illegal
acts are in truth not so; that adoption by sizable majorities demonstrates
the general acceptability of the line of conduct in question; and that the
very fact of general acceptability excludes the possibility of illegality. But
the answer to such an argument is clear. The extent to which acceptability
determines legality is controlled by the legal system surrounding the
conduct in question. Since it is axiomatic that international organizations
operate within some legal system. . . one must look to see whether in
the international constitutional system there is any such in:aant assimis
Statement by Professor Eagleton during the discussion in the International Law Association
on review of the UN Charter. ILA, REPORT OF THE 46TH CONFERENCE 80 (1954).
35 Gross, Voting in the Security Counciland the PLO, 70 AJIL 470, 471 (1976).
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
lation of acceptability to legality. And the answer is emphatically
negative.
36
The contention that majority decisions motivated by political considerations
are ultra vires has not been generally accepted by commentators. Speaking on
the subject, the Prime Minister of Luxembourg, Gaston Thorn, stated:
We should not complain about the intrusion of politics into the United
Nations-we created the organization for political reasons, in order to
apply our strategy there. What has happened recently are the accidents
and setbacks of a former majority. So they should play the game! In the
United Nations the problem is every bit as much one of the new minority
that has not accepted its new position.3 7
According to Amadou-Mahtar M'Bow, the Director-General of the United
Nations Educational, Scientific and Cultural Organization (UNESCO):
[T]he record of the former majority is catastrophic in every field. One
must not forget that it was the former majority which prevented the
admission of the People's Republic of China into UNESCO for more
than twenty years. Was it a technical vote or a political vote in an international
institution whose purpose is to deal with science and culture?
It can hardly be claimed that the 800 million Chinese had nothing to
contribute to the world in the way ofeducation, science and culture!Yet
they were kept away. Solely for political reasons!"8
Recently, Ambassador Mohammed Bedjaoui, now judge of the International
Court of Justice, wrote:
[Tihe process of elaborating international legal norms is much more
complex than the critics of the supposed "automatic majority" would
have one believe. It reflects complex power balances. When such diverse
countries as Algeria, Chile and India vote together, thereby contributing
to the creation of that "automatic majority" in order to try to promote
the new international economic order, one loses sight somewhat too
conveniently of the fact that the power of decision-making remains the
prerogative of a small group of States which are "more equal than
others".39
According to Ambassador Bedjaoui, the consequence ofthe emergence of the
new majority is that "for the first time, the real political and economic power
in the world, still held by the West, no longer finds its juridical expression
embodied in the same way as it still was a few years ago, for example, in the
resolutions of the United Nations, ILO, UNCTAD, or Unesco."40
"' Lauterpacht, The Development of the Law of InternationalOrganizationby the Decisions of InternationalTribunals,
152 RECUEIL DES COURS 381, 393-94 (1976 IV).
"
7
Statement made during a broadcast debate, in E. LAURENT, UN MONDE A REFAIRE. DEBATS
DE FRANCE CULTURE. TROISJOURS POUR LA PLANiTE 120-21 (Paris: Editions Meng~s, 1977).
" Statement made in the debate, id. at 129.
3 M. BEDJAOUI, TOWARDS A NEW INTERNATIONAL ECONOMIC ORDER 147 (UNESCO
1979).
4
'Id. at 142.
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252 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
These statements indicate that many commentators see the question of the
"automatic majority" and "politicization" in international organizations as a
political, rather than a legal, issue. It is true, of course, from a purely legal
standpoint, that national review bodies normally invalidate the decisions of
national administrative organs on the ground of improper considerations or
motive.4
But the situation appears to be different with respect to decisions
of international organizations.
Apart from the absence of review machinery, and the consensual nature
of decisions in international organizations to which reference has already been
made, many of the political decisions adopted by the plenary organs of international
organizations, particularly on such questions as the apartheid policy
of the Government of South Africa, are symbolic in character and are, in
most cases, self-executing. Their primary objective is normally to condemn
the member state concerned, and that objective is fulfilled once a resolution
is adopted and published. This does not mean that the question of the legal
validity ofthe resolution is not relevant, but that question loses its significance
because the primary objective of the resolution, namely, condemnation of the
member state, has been attained.
Again, the political decisions of many international organizations, which
are adopted in the form of resolutions, do not normally give rise to binding
legal obligations for the member states. The resolutions often ask the members
not to collaborate with the policies of the condemned government or to give
it assistance in the implementation of its policies. Thus, any member that
strongly opposes adoption of the nonbinding resolution is not under a legal
obligation to implement its provisions-a factor that reduces the legal significance
of political decisions in international organizations.
Finally, it is evident from the practice of international organizations that
the controversy concerning "automatic majorities" normally arises when the
decision concerned is of a political nature or when certain member states
consider that their interests would be affected or at stake. It is important,
therefore, that efforts be made to reconcile the divergent points of view and
to ensure that the decisions reflect a sufficiently wide consensus of the general
membership. 2
This is all the more important because quite often the decision
ofan international organization, especially on political issues, is the beginning
of a process aimed at the attainment of certain objectives on the basis of
prescribed actions and measures to be taken subsequently by the members
individually or collectively. Thus, the adoption of decisions of international
organizations by consensus constitutes an important element in their effective
implementation.
One cannot argue on this basis, however, that majority decisions of inter"
See, e.g., the following British cases: Roberts v. Hopwood, 1925 A.C. 578; Chcrtsey U.D.C.
v. Mixnam's Properties, Ltd., [1964] 2 All E.R. 627; and R. v. Hullingdon London Borough
Council, ex parte Royco Homes, Ltd., [1974] 2 All E.R. 643. See alsoJ. GARNER, supra note 23,
at 158-59.4 2
See Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majoritiesand Consensus as
Modes ofDecision in IntenzationalOrganisations,in CAMBRIDGE ESSAYS, supranote 1, at 48, 48.
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
national organizations are illegal or invalid because they were adopted against
the wishes of the minority. From a purely legal point of view, what is necessary
is that the decision be adopted in accordance with the prescribed rules and
procedure, and once the required conditions have been fulfilled, the legal
validity of the decision will not depend on the wishes or the desires of the
minority of the members of the organization. To accept otherwise would be
to undermine the principle of "majority rule" on which the operations of
contemporary international organizations are predicated.
The Right of Member States to Reject Ultra Vires Acts
The contention that the acts and decisions of international organizations
that are manifestly outside the scope of their functions and powers, or that
are based on irrelevant political considerations, are ultra vires even in the
absence of review machinery has led some international lawyers to assert that
member states possess the right to reject them. In his dissenting opinion in
the CertainExpenses case, Judge Winiarski, the President ofthe Court, rejected
the contention that the nullity of a legal instrument can be relied upon only
where there has been a finding of nullity by a competent tribunal. He concluded
that, in the international legal system where there is no tribunal competent
to make a finding of nullity,
[i]t is the state which regards itself as the injured party which itself rejects
a legal instrument vitiated, in its opinion, by such defects as to render
it a nullity....
A refusal to pay, as in the case before the Court, may be regarded by
a Member State, loyal and indeed devoted to the Organization, as the
only means of protesting against a resolution of the majority which, in
its opinion, disregards the true meaning of the Charter and adopts in
connection with it a decision which is legally invalid. . .. "
Similarly, in his separate opinion in the recent case of the Interpretationof
the Agreement of 25 March 1951 between the WHO and Egypt,Judge Gros stated:
A decision of the WHO which is contrary to international law does not
become lawful because a majority of States has voted in favour of it. The
WHO and, in particular, its Assembly were created by the member States
in order to carry out that which they had decided to do together, and
that alone; member States are not bound to implement an unlawful act
if that is what they hold it to be, and the practice of international organizations
has shown that recourse is had in such circumstances to a
refusal to carry out such act. Consequently nothing is settled by a decision
taken by a majority of member States in matters in which a specialized
agency over-steps its competence. Numbers cannot cure a lack of constitutional
competence.44
0 1962 ICJ REP. at 232.
44 1980 ICJ REP. 73, 104 (Advisory Opinion of Dec. 20). See also the Report of the Special
Committee on Reference to the International Court of Justice of Questions of United Nations
Competence, which states that "a Member may now refuse to execute a decision of the Organization,
if he feels strongly that the decision is unconstitutional," quoted by D. CIOBANU, supranote
1, at 174.
1983]
254 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
According to some writers, the right of member states to reject the actions
and decisions of international organizations that they consider to be ultravires
is derived from their inherent right to interpret the law if they are not satisfied
with the interpretation given by an international organ.4 5
This right entitles
member states to claim that their interpretation of the constitutions of international
organizations is the correct one, and they could therefore refuse to
comply with the decisions of the political organs that they claim to be uncon-
stitutional.46
Professor Gross has endeavored to explain the meaning and scope
of the right of auto-interpretation:
It is generally recognized that the root of the unsatisfactory situation in
international law and relations is the absence of an authority generally
competent to declare what the law is at any given time, how it applies
to a given situation or dispute, and what the appropriate snnction may
be. In the absence of such an authority, and failing agreement between
the states at variance on these points, each state has a right to interpret
the law, the right of autointerpretation, as it might be called. The interpretation,
however, is not a "decision" and is neither final nor binding
upon the other parties. In consequence of the technical insufficiency
prevailing in general international law, we may never know, or, in some
cases, we may not know for a time, which autointerpretation was correct.
. . .This is, for better or worse, the situation resulting fiom the organizational
insufficiency of international law.4 7
The right of member states to reject decisions they consider unconstitutional
in the absence of a legal determination by a review body to that effect
has not been generally accepted by international lawyers. In his separate opinion
in the CertainExpenses case, Judge Morelli stated:
In my view it is not possible to suppose that the Charter leaves it open
to any State Member to claim at any time that an Assembly resolution
authorizing a particular expense has never had any legal effect whatever,
on the ground that the resolution is based on a wrong interpretation of
the Charter or an incorrect ascertainment of situations of fact or of law.
It must on the contrary be supposed that the Charter confer; finality on
the Assembly's resolution irrespective of the reasons, whether they are
correct or not, on which the resolution is based; and this must.be so even
in a field in which the Assembly does not have true discretionary power.48
45See D. CIOBANU, supra note 1, at 174; and the discussion in Gross, States as Organsof InternationalLaw
and the Problem of Autointerpretation,in LAW AND POLITICS INTHE WORLD COMMUNITY
59, 77-78 (G. A. Lipsky ed. 1953). See also Tammes, DecisionsofInternatignalOrgansas
aSource ofInternationalLaw, 94 REcUEIL DES COURs 261, 338 (1958 II); Waldock, GeneralCourse
on Public InternationalLaw, 106 id.at 1, 108 (1962 II); and Watson, Autointerpretaticn,Competence,
and the ContinuingValidity ofArticle 2(7) of the Charter, 71 AJIL 60 (1977).
"6This right is sometimes referred to as "the right of last resort." Thus, Professor Ciobanu has
stated that "the States possess, under the law of the United Nations as it stands at present, the
so-called 'right of last resort'," and in exercising such right, "a State itself corrects any defects
which it may have found in the application by the relevant organ of the provisions pertaining to
its competence or in the substance of the decision." He then justifies some of the refusals of UN
members to implement certain contested resolutions of the main organs of the United Nations
on the basis of the "right of last resort." D. CIOBANU, supra note 1, at 174-79.
17 Gross, supranote 45, at 76-77. 4s1962 ICJ REP. at 224.
LEGAL VALIDITY OF ULTRA VIRES DECISIONS
According to Pollux, the "easiest, the most primitive, and the most unsatisfactory
solution is to say that each individual Member has the right to decide
for itself how to interpret the Charter";49
and in the opinion of Professor
Quincy Wright, "the suggestion, occasionally made, that the States themselves
should interpret the Charter, would tend toward nullification and a hopeless
incapacity of the United Nations to function."5
Professor Oscar Schachter
has also emphasized that even if the dominant motive of a government was
its own advantage, "the essential point is that this motive cannot be the juslfication
to others of an interpretation which is claimed to have legal effect."5 1
Because of the divergencies of opinion that still exist on the matter, it is
clear that the right of member states to reject decisions of international organizations
that they consider to be ultravires, or indeed the right of autointerpretation,
cannot be regarded as a generally accepted principle of international
law or of the law and practice of international organizations. There
is no doubt that in the course of the proceedings of international organizations,
member states are continuously interpreting the constitutions ofthese bodies
to determine the basis of the proposed acts or decisions and the nature and
extent of their obligations, and to contest any proposals that appear to them
to be incompatible with tle express provisions of the constitutions. But to
arrogate to the member states a general right to reject a properly adopted
decision on the basis of a unilateral determination that it is ultravires would
be tantamount to making the members judges in their own cases-a situation
that would be similar to the much criticized principle of compitence de la competence
of international organizations.
5 2
IV. GENERAL CONCLUSIONS
The present study has shown that some principles have emerged concerning
the legal validity of acts and decisions adopted by international organizations
in excess of their authority. It has been established that member states have
an inherent right to challenge the legal validity of acts and decisions; that the
organizations possess the competence to determine the claims that arise; that
the possibility exists in certain cases for review; and that, as a general rule,
the invalidated acts and decisions are voidable rather than void ab initio.
It is also clear that many acts and decisions of international organizations,
particularly those of the plenary organs, are not subject to appeal or review,
and that, at present, determining the validity of some of them poses considerable
difficulties. The increasing importance of international organizations
and the need for effectiveness in the attainment of their objects and purposes
through the full cooperation and collaboration of all the member states make
it imperative to establish some form of procedure for review.
4 Pollux, The Interpretationof the Charter,23 BRIT. Y.B. INT'L L. 54, 56 (1946).
"0 Wright, supranote 4, at 125.
- Schachter, The Relation of Law, Politics and Action in the United Nations, 109 RECUEIL DES
COURS 165, 198 (1963 II).52
See note 9 supra and accompanying text.
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256 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77
Several suggestions have already been put forward, including the creation
of an ad hoc body ofjurists,5
" the creation of a body made up of the senior
legal officers ofthe international organizations,54
and applications by member
states to the International Court ofJustice for binding advisory opinions. In
his report to the International Symposium of the Max Planck Institute in
1974, Professor R. Y. Jennings presented the latter idea as follows:
The Court should attain a position of greater power and importance if
its advisory jurisdiction could more often be used to test the legality of
the acts or omissions ofinternational organizations. Such cases will hardly
come from international organizations themselves, but a government
might be enabled to move for an advisory opinion through some such
device as a General Assembly Committee.5
An appeal to the International Court of Justice for a binding advisory
opinion may constitute the best procedure for determining the legal validity
of acts and decisions that are claimed to be illegal or unconstitutional. One
major drawback here is that reference to the Court, even in the form of a
request for an advisory opinion, is not free from practical problems56
and
could even result in protracted debates and long delays-which could further
undermine the activities of the organization concerned.
Another possible approach would be to establish machinery within the international
organizations themselves, on the lines of the Sea-Bed Disputes
Chamber, to deal with claims relating to the legality oftheir acts and decisions.
" Suggested by Sir Gerald Fitzmaurice in his dissenting opinion in the Namibia case, 1971 ICJ
REP. at 300.
" Suggestion by Professor Louis Sohn in Due Processin the United Nations, 69 AJIL 620, 621
(1975).
5
sJennings, Report, in MAX-PLANCK-INSTITUT FUR AUSLXNDISCHES OFFENTLICHES RECHT
UND VOLKERRECHT, JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES: AN INTERNATIONAL
SYMPOSIUM 35, 48 (1974). See alsoFarukowa, La Controlede la Courinternationaledejustice
sur les organisationsinternationales-lesactes ultra-viresdes organisationsinternationale,, 78 JAPAN. J.
INT'L L. & DIPL. 133 (July 1979). Also the resolution in [47] 2 INSTITUT DE DROIT INTERNATIONAL,
ANNUAIRE 274 (1957).5
6 See I. BROWNLIE, GENERAL PRINCIPLES OF INTERNATIONAL LAW 730-32 (3d ed. 1979);
and Rosenne, The Non-Use of the Advisory Competence of the InternationalCourtofJustice, 39 BRIT.
Y.B. INT'L L. 1 (1963).