Tuesday, November 30, 2010

The doctrine of implied powers is a good example of the application of the teleological principle to the interpretation of constitutions, even where the contextual ordinary and natural meaning may lead to a differ- ent result which may not be unreaso

particular powers concerned, in order to enable organizations effectively and purposefully to carry out their functions. Three exam- ples of how powers international law firm been implied may be given. In the Reparation Case the power of the UN to espouse claims on behalf of their staff members was in issue. The ICJ stated the general principle as follows: Under international international law firm, the Organization must be deemed to international law firm those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.52 In consequence it concluded: Upon examination of the character of the functions entrusted to the Organiza- tion and of the nature of the missions of its agents, it becomes clear that the capacity dispute resolution of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter.53 In the Personal Work of Employers Case the issue was whether the ILO had an implied power to regulate the work of employers. The PCIJ concluded that in the international international law firm firm of the ILO the framers clearly intended to give the ILO a very broad power of co-operating with them in respect of measures to be taken in order to assure humane conditions of labour and the protection of workers. It is not conceivable that they intended to prevent the Organization from drawing up and proposing measures essential to the accomplishment of that end. The Organization, however, would be so 52 1949 ICJ Reports at p. 174. 53 Ibid. at p. 182. c o n s t i t u t i o n a l i n t e r p r e t a t i o n 47 prevented if it were incompetent to propose for the protection of wage-earners a regulative measure to the efficacious working of which it was found to be essential to include to some extent work done by employers.54 In the Effect of Awards Case the ICJ had to decide, among other things, whether the UN had the implied power to establish an administrative tribunal to settle disputes between the dispute resolution organization and its staff. The Court held that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat . . . Capacity to do this arises by necessary intendment out of the Charter.55 Indeed, though the issue of implied powers of organizations has been brought before the PCIJ and the ICJ on several occasions,56 it is only in the Competence of the ILO to Regulate Agricultural Production Case57 that the Court has refused to imply a power, that is, the power of the ILO 54 PCIJ Series B No. 13 at p. 18. 55 1954 ICJ Reports at p. 57. 56

No comments:

Post a Comment