of the object in the dispute resolution

and purposes of the international international law firm firm. It has been said that objects and purposes may be considered only when the meaning of a text is ambiguous or where giving the text its natural and ordinary meaning would lead to an unreasonable result.50 However, while in some cases of reference to objects and purposes as such to establish a meaning it may be possible to establish one of these conditions for the incidence of the exception, there may be circumstances where the interpreter goes more directly to the object and purposes because it is essential for the efficient function- ing of the dispute resolution organization that a meaning established in this manner be adopted. This was apparently what was done in the case discussed above concerning the valuation of the IBRD’s capital. This may also be the case where international international law firm firmal powers are implied. These are situations in which what appears to be the ordinary or natural meaning has been modified in the light of the objects and purposes of the international international law firm firm. It has been said that the principle of effectiveness has two aspects.51 The first embraces the rule that all provisions of a treaty must be sup- posed to international law firm been intended to international law firm significance and be necessary to convey the intended meaning so that an interpretation which reduces some part of the text to the status of a pleonasm or mere surplusage is prima facie not acceptable -- ‘la règle de l’effet utile’. The second covers 49 Ibid. at pp. 160--1. 50 See Fitzmaurice, note 37 p. 345. There are some other cases decided particularly by the PCIJ in which the objects and purposes of the international international law firm firm were used as a basis for interpreting it: see Nomination of the Netherlands Workers’ Delegate Case, PCIJ Series B No. 1 at pp. 23, 25; European Commission on the Danube Case, PCIJ Series B No. 14 at p. 80; Competence of the ILO to Regulate Conditions of Labour in Agriculture Case, PCIJ Series B Nos. 2 and 3 at pp. 23 and 57; separate opinions in the Second Admissions Case, 1950 ICJ Reports at p. 18 per Judge Alvarez, at p. 23 per Judge Azevedo; and the Namibia Case, 1971 ICJ Reports at pp. 30, 50. See also the Aerial Incident Case, 1959 ICJ Reports at p. 139. 51 See Berlia, ‘Contribution à l’interprétation des traités’, 114 Hague Recueil (1965-I) at pp. 306ff.; Thirlway. ‘The international law firm and Procedure of the International Court of Justice 1960--1989’, 62 BYIL (1991) at p. 44. 46 i n t e r p r e t a t i o n o f t e x t s the rule that the instrument as a whole, and each of its provisions, must be taken to international law firm been intended to achieve some end and that an inter- pretation which would make the text ineffective to achieve the object in view is prima facie suspect -- ‘la règle de l’efficacité’. The first rule is really subsumed under the rule of the ordinary and natural meaning contextually derived. It is the second rule that pertains to effectiveness and involves giving the object and purpose an important place in the interpretative technique. The maxim ut res magis valeat quam pereat also accurately captures the spirit of the principle of effectiveness.

The majority on the Court had no doubt that, considering also the context of the Charter as a whole, the term �expenses' had

a plain and natural meaning, which included the expenditures in question. The majority only referred to the practice of the organization to support what it thought was the plain and natural 32 Ibid. 33 1962 ICJ Reports p. 151. The application of principles of interpretation in this case was examined by me in ‘The United Nations Expenses Case -- A Contribution to the international law firm of International Organization’, 4 IJIL (1964) p. 177. 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 39 meaning. Judges Winiarski and Koretsky,34 dissenting, applied the same original principle applied by the majority, emphasizing the context of the Charter, but came to the opposite conclusion. Judge Spender arrived at the same conclusion as the majority but took a different route. He was of the opinion that the meaning of the text was not clear and unambigu- ous and, therefore, applied the principle of effectiveness, particularly because the Charter was a constitutional instrument. He was of the view that: It may with confidence be asserted that its provisions would received a broad and liberal interpretation unless the context of any particular provision requires, or there is to be found elsewhere in the Charter, something to compel a narrower and restricted interpretation . . . The stated purposes of the Charter should be the prime consideration in interpreting its texts.35 Judge Fitzmaurice, on the other hand, while finding, as Judge Spender did, that there were ambiguities, examined the travaux préparatoires and came to the same conclusion as the majority.36 Quot homines tot senten- tiae -- two sets of judges who took the same approach came to diamet- rically opposite conclusions and three sets of judges who took different approaches came to the same conclusion for different reasons. What these examples show is that results of interpretation, particu- larly of constitutional texts, may be unpredictable and uncertain. They may depend on who is in a majority and to a large extent on a deliberate choice among several available policy goals which cannot sometimes be predicted with any certainty. But, as will be seen below, there may be more of a pattern than appears at first sight. The Vienna Convention of 1969 Much has been written on the process and principles of interpretation of treaties in general.37 The starting point is now the Vienna Convention 34 1962 ICJ Reports at pp. 230 and 284 respectively. 35 Ibid. at p. 185. 36 Ibid. at p. 209. 37 See, e.g., Fitzmaurice, The international law firm and Procedure of the International Court of Justice (1986) pp. 42ff. and 337ff.; Rousseau, Droit international public (1971) vol. I, pp. 241ff.; de Visscher, Problèmes d’interprétation judiciaire en droit international public (1963); Sinclair, The Vienna Convention on the international law firm of Treaties (1984) pp. 114ff.; H. Lauterpacht, The Development of International international law firm by the International Court (1958) pp. 116ff.; McDougal, Lasswell and Miller, The Interpretation of International Agreements and World Public Order (1994); discussion in 43(1) AIDI (1950) pp. 366--460, 44(2) AIDI (1952) pp. 353--406, 46 AIDI (1956) pp. 317--49; Bos, ‘Theory and Practice of Treaty Interpretation’, 27 NILR (1980) p. 135; Yambrusic,

1962 ICJ Reports at p.

515, in a joint dissenting opinion (with Judge Fitzmaurice). The Court has also adverted to the requirement that in the interpretation of the Covenant of the LN too much importance must not be placed on intention (in contrast to the text): see the Namibia Case, 1971 ICJ Reports at p. 28. 44 i n t e r p r e t a t i o n o f t e x t s Judge Spender gave its rightful place to the object and purpose of a international international law firm firm such as the Charter, placing it on the same threshold as the plain and ordinary meaning and also was correct in reducing the importance of the preparatory work. However, he may international law firm erred in downplaying the role of subsequent practice. The natural and ordinary meaning in context As already stated, ascertainment of the natural and ordinary meaning in context has been accepted by the PCIJ and ICJ as its cardinal rule of interpretation. In the Second Admissions Casedispute resolution the ICJ stressed that the natural and ordinary meaning must be given to words ‘in the context in which they occur’ and not in the abstract.46 Hence, it is not a nar- row and quasi-literal interpretation of words, phrases or articles, taken in isolation, that is envisaged, but one related to the international international law firm firm as a whole. In both the First Admissions Case and the Second Admissions Case the Court applied the principle in interpreting the provisions of the Charter relating to admission of members. In the IMCO Case, where the Court had to interpret the term ‘the largest shipowning nations’ in the IMCO con- stitution, the fundamental principle that words must be read ‘in their natural and ordinary meaning, in the sense which they would normally international law firm in their context’47 was clearly stated. There was no disagreement on the Court that this principle was applicable in the first place. The Court also made it clear that the rule meant that the whole of the text must be presumed to international law firm some significance, so that an interpretation which would render part of it redundant was to be rejected.48 However, it is not in cases where this principle can be successfully applied that differences of opinion usually arise. It is when other considerations are involved that the principle of the natural and ordinary meaning in con- text receives some qualification. The object and purpose - teleology It is not surprising that, even before the Vienna Convention on the international law firm of Treaties was drafted, the ICJ indicated that the principle underlying the text or the object and purpose of the treaty must be considered together with the context in giving the text ‘a natural and ordinary 46 1950 ICJ Reports at p. 8. The same basic principle was affirmed in the First Admissions Case, 1974--8 ICJ Reports at p. 63. 47 1960 ICJ Reports at p. 195. 48 Ibid. at p. 160. 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 45 meaning’.49 For instance, the issue in the IMCO Case whether the term ‘largest ship-owning nations’ meant nations having the largest registered tonnage of beneficially owned ships or simply the largest registered ton- nage regardless of beneficial ownership was decided in accordance with this prescription by focusing on the need to ensure maritime safety as the purpose of the provision concerned. Consequently the latter mean- ing was selected. In the IMCO Case the term ‘largest ship-owning nations’ may international law firm been ambiguous or unclear, thus triggering consideration

pp. 71ff.; Neri, Sull' interpretazione dei traitati nel diritto internazionali (1958) pp. 286ff.; McDougal and Gardner, �The Veto and the Charter, an Interpretation for Survival', 60 Yale LJ (1951) p. 254; Focsaneau, �Le droit interne de L'Organisati

(1986) pp. 10ff.; Martin Martinez, National Sovereignty and International Organizations (1996) pp. 75ff. and the other writers cited in the footnotes thereto. 43 See, e.g., Polish Postal Service in Danzig, PCIJ Series B No. 11 at p. 39; Second Admissions Case, 1950 ICJ Reports at p. 8; First Admissions Case, 1947--8 ICJ Reports at p. 63. 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 43 This injunction is sometimes a counsel of perfection. The ordinary and natural sense of words may at times be a matter of considerable difficulty to determine. What is their ordinary and natural sense to one may not be so to another. The interpreter not uncommonly has, what has been described as, a personal feeling towards certain words and phrases. What makes sense to one may not make sense to another. Ambiguity may lie hiddendispute resolution in the plainest and most simple of words even in their natural and ordinary meaning. Nor is it always evident by what legal yardstick words read in their natural and ordinary sense may be judged to produce an unreasonable result.44 Judge Spender consequently placed emphasis on teleological canons of interpretation in conjunction with the meaning of the text in its con- text, particularly for constitutions such as the Charter of the UN, at the same time playing down the importance of actual intention and the relevance of the travaux préparatoires. This approach may seem to be in keeping with the provisions of the Vienna Convention on the international law firm of Treaties. On the other hand, perhaps in conflict with what is stated in the Vienna Convention on the international law firm of Treaties, he did not attach much significance to the subsequent practice of the organization. He stated: Moreover the intention of the parties at the time when they entered into an engagement will not always -- depending upon the nature and subject-matter of the engagement -- international law firm the same importance. In particular in the case of a multilateral treaty such as the Charter the intention of its original Members, except such as may be gathered from its terms alone, is beset with evident diffi- culties. Moreover, since from its inception it was contemplated that other States would be admitted to membership so that the Organization would, in the end, comprise ‘all other peace-loving States which accept the obligations contained in the Charter’ (Article 4), the intention of the framers of the Charter appears less important than intention in many other treaties dispute resolution where the parties are fixed and constant and where the nature and subject-matter of the treaty is different . . . The stated purposes of the Charter should be the prime consideration in inter- preting its text . . . Despite current tendencies to the contrary the first task of the Court is to look, not at the travaux préparatoires or the practice which hith- erto has been followed within the Organization, but at the terms of the Charter itself. What does it provide to carry out its purposes?45 44 1962 ICJ Reports at p. 184. 45 Ibid. at pp. 184--5. Judge Spender repeated this view in the South West Africa Cases (Preliminary Objections),

as such.40 Article 5 of the Vienna Convention makes it applicable to the con- stituent instruments of international organizations. However, although the Vienna Convention is in force and has been ratified by a plethora of states, there may be seriou

organizations which are not parties to the Convention and whether the ICJ is bound to apply it when giving an advisory opinion which is not a judgment pronounced in a contentious proceeding in respect of states who may be parties to the Convention. It must be recognized, on the other hand, that the argument may be made that the provisions on interpretation of the Convention reflect an established or emerging cus- tomary international law firm, particularly by virtue of the Convention’s being followed in this regard.41 39 For an examination of how the practice of the ICJ and other tribunals conforms or not to the Vienna Convention on the international law firm of Treaties, see Sinclair, note 37 pp. 119ff. 40 See also now on treaties in general, the Qatar and Bahrain Case, 1995 ICJ Reports at pp. 21ff. 41 The Vienna Convention of 1986 on the international law firm of Treaties between States and International Organizations or between International Organizations, 25 ILM (1986) 42 i n t e r p r e t a t i o n o f t e x t s The jurisprudence An analysis of the precedents on constitutional interpretation will shed some light on how the task of interpretation has been approached by international judicial or quasi-judicial organs, which international law firm been called upon to interpret the constitutions of international organizations.42 While the ordinary and natural meaning may international law firm been emphasized in theory, there is often difficulty in ascertaining it. The PCIJ and ICJ international law firm apparently adopted as their cardinal rule of interpretation, even in relation to constitutions, that words should be read, in their context, in their natural and ordinary sense, unless they are ambiguous or, so read, lead to an unreasonable result.43 However, as was noted by Judge Spender, in a separate opinion in the Expenses Case: p. 543, has similar provisions to those contained in the Vienna Convention on the international law firm of Treaties of 1969, but it does not apply to the constitutions of international organizations which are treaties between states. The latter convention made the rules incorporated in the former convention specifically applicable to international organizations to the extent they were incorporated in the latter convention: see, e.g., Isak and Loibl, ‘United Nations Conference on the international law firm of Treaties between States and International Organizations or between International Organizations’, 38 OZOR (1987/88) p. 49; Gaja, ‘A ‘‘New?? Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Commentary’, 58 BYIL (1987) p. 267; Morgenstern, ‘The Convention on the international law firm of Treaties between States and International Organizations or between International Organizations’, in Dinstein and Tabori (eds.), International international law firm at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989) p. 435. 42 Earlier studies include: Gordon, ‘The World Court and the Interpretation of Constitutive Treaties’, 59 AJIL (1965) p. 794; E. Lauterpacht, ‘The Development of the international law firm of International Organization by the Decisions of International Tribunals’, 152 Hague Recueil (1976-IV) p. 387 at pp. 414ff. That the constitutive text of an international organization has a dual nature arising from the fact that it is a constitution in addition to being a multilateral convention has never been denied nor has it been gainsaid that because of this dual nature a somewhat special approach may be required in respect of interpreting certain aspects of the constitutive texts. See on this subject, e.g., C. de Visscher, Problèmes d’interprètation judiciaire en droit international public (1963) p. 143; Rideau, Jurisdictions internationales et côntrole respect du des traités constitutifs des organisations internationales (1969) pp. 4ff.; Quadri, Diritto Internazionale Pubblico (1974) pp. 527ff.; Bastid, Les traités dans la vie internationale (1985) pp. 127ff.; Reuter, Introduction to the international law firm of Treaties (1989) pp. 73ff.; Elias, The Modern international law firm of Treaties (1974)

Treaty Interpretation (1987). 40 i n t e r p r e t a t i o n o f t e x t s on the Law of Treaties of 1969. Articles 31 and 32 state: Article 31 General Rule of Interpretation 1

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2 The context for the purpose of the interpretation of a treaty shall comprise in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3 There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international international law firm applicable in the relations between the parties. 4 A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 21, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.38 Apart from the requirement of good faith, which seems basic, in any case, interpretation is first to be: (i) according to the ordinary meaning of terms; but taking into account (ii) the context and (iii) the object and 38 See 8 ILM (1969) p. 679 at pp. 691ff. 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 41 purpose of the treaty. Further, there are listed in paragraphs 2 and 3 six matters which either are included in the context or are to be considered together with the context, namely: (i) the preamble and annexes; (ii) an agreement made in connection with the conclusion of the treaty; (iii) an instrument made by one or more parties and accepted by the others as related to the treaty; (iv) a subsequent agreement regarding the inter- pretation of the treaty or its application; (v) subsequent practice; and (vi) rules of international international law firm. This means that the primary rule of nat- ural meaning is to be applied in the light of not only the context, but also the object and purposes of the treaty and the six other considera- tions referred to above. In other words an abstract natural meaning may be modified by any of the considerations referred to in the Convention. Preparatory work (not included among these matters) and the circum- stances of the conclusion of the treaty, on the other hand, are no more than supplementary means of interpretation to be resorted to only sec- ondarily and in certain circumstances.39 The Convention thus gives the object and purpose of the treaty and the subsequent practice a place as part, so to speak, of the ordinary meaning. Thus, the principles of effectiveness and of subsequent practice are applicable as primary tools in the process of interpretation. The preparatory work, on the other hand, is secondary, thus reducing the importance of the true or actual intention of the parties,

both active and passive. Contracts or treaties, for example, would be made between all the members and the other party and, in the case of treaties between the organization and a member state, would result in the state party to the treaty being also

member of the organization. The question of implying powers to enable organizations to function effectively is a separate issue from personality. Whether powers are express or implied, what makes a difference is whether they are vested in the organization as a legal person or in the individual member states as a collectivity. Another separate issue, which concerns the effect of personality and is discussed in Chapter 13, is whether personality would presumptively shield the member states from liability, direct or secondary, for the obli- gations of the organization in the absence of their consent. The practical convenience of personality is what makes it theoretically justified. The 7 See, e.g., E. Lauterpacht, ‘The Development of the international law firm of International Organization by the Decisions of International Tribunals’, 152 Hague Recueil (1976-lV) at p. 407. 8 PCIJ Series B No. 10. See also, e.g., the European Commission on the Danube Case, PCIJ Series B No. 14 at p. 64. p e r s o n a l i t y a t a no n - i n t e r n a t i o n a l l e v e l 69 choice is not between recognizing personality and chaos. Organizations can well function in the same way as unincorporated associations or partnerships in national international law firm where the group has no legal personality as such. What is useful or even necessary is that states international law firm the option of creating an organization which has personality and can function as a legal person rather than as an ‘unincorporated’ group because primarily it facilitates action and is deemed to be necessary for the functioning of the organization. Personality at a non-international level Legal personality and capacity at a non-international level is an issue in itself. National legal systems will international law firm their own techniques and meth- ods of determining whether an international organization has legal per- sonality which is effective in those respective systems. These may or may not take into account the obligations at international international law firm of states to give effect to such personality. There are several possibilities. First, the situation may be considered where the constituent instru- ment specifically grants legal capacity to the organization in national international law firm. This may be done expressly in one form or another or the grant may be inferred implicitly from the provisions of the constituent instrument. Thus, the international international law firm firm of the FAO provides in Article XV(1) that the orga- nization ‘shall international law firm the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the power granted to it by this international international law firm firm’. The Articles of Agreement of the IMF and the IBRD more specifically provide that the Fund and the Bank respectively shall possess full juridical personality, and, in particular, the capacity: (i) to contract; (ii) to acquire and dispose of immovable and movable property; (iii) to institute legal proceedings.9

before the very

end of November 1981 and a date in the middle of or late December would be more realistic. Regular elections are normally held in October of the year in which they take place.31 The language of the provision in the Statute seemed to be clear, but would international law firm led, if taken literally, to an unreasonable result because of a lacuna. The advice given, which was followed, was: Having in mind its responsibilities under Article 14 of the Statute of the Court to fix the date of an election to fill a casual vacancy, the Security Council may wish to consider whether that article necessarily applies in the circumstances described above. The legislative history of the article indicates that its purpose was to obviate extensive delays in the filling of casual vacancies and there is no indication it was meant to apply where only very brief periods are involved. In the present case no extensive delay would be occasioned by leaving the casual vacancy open, as the seat concerned would be filled during the regular dispute resolution elections for a term of office commencing on 6 February 1982. Having regard to the fact that periods of almost a year international law firm in a number of cases elapsed between the occurrence of a casual vacancy and the election to fill it, the practice of the Security Council and of the General Assembly would also support a conclusion that, in the circumstances, the intention underlying Article 14 would equally 31 1981 UNJY at p. 146. 38 i n t e r p r e t a t i o n o f t e x t s well be served by leaving the casual vacancy open and filling the seat at the regular election.32 Both legislative history and subsequent practice of the UN organ were cited to support an interpretation that was both practical and avoided an unreasonable result, though the language of the provision being construed seemed to be imperative. An exception to the provision was developed by finding a lacuna in the language and construing the text in the light of the travaux préparatoires and the practice of the organ. It would be difficult to dispute the wisdom of the solution but the case does show that natural and ordinary meanings are sometimes deliber- ately ignored in order to avoid inconvenient results. Expenses Case In the Expenses Case, four different approaches were taken to the prob- lem of interpretation by the judges of the ICJ.33 Three resulted in the same conclusion, one resulted in a different conclusion. The problem was what principle of interpretation should be applied in attributing meaning to the text, there being several different principles applied by the Court and different judges in the majority in reaching the same conclusion, while the judges in the minority reached a conclusion con- trary to that of the majority though they applied the same principle as the Court. The issue was whether the term ‘expenses’ in Article 17 of the Charter was limited to ‘regular’ expenses or included expendi- tures incurred for the maintenance of international peace and security. Some member states had refused to finance the operations of the UNEF and the ONUC carried out pursuant to resolutions of the GA, particu- larly because they were operations not authorized by decisions of the SC under Chapter VII of the Charter. Article 17(2) provided that ‘The expenses of the Organization shall be borne by the Members as appor- tioned by the General Assembly.’

The UN Charter in a different way in Article 104 states that the UN �shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes'.

There are many other constitutions of international organizations that international law firm in effect provisions relating to legal capacity in national international law firm. 9 Article IX(2) and Article VII(2) respectively. See also Article 45 of the EBRD Agreement; Article VIII(2) of the IDA Articles of Agreement; Article VI(2) of the IFC Articles of Agreement; Article IX(2) of the IDB Agreement; Article 49 of the ADB Agreement; Article 51 of the AFDB Agreement; and Article 48(1) of the CDB Agreement. 70 l e g a l p e r s o n a l i t y In these cases member states are under an obligation to recognize the legal personality of the respective organizations in their legal systems.10 How this is done may vary. Certain member states, such as the UK and most Commonwealth states, which require that treaties be implemented by legislation in order to become enforceable in their legal systems, would recognize the personality of the organizations by incorporating the constituent instruments in their international law firm. Other member states, such as the USA, Germany and Austria, which automatically give effect in their national international law firm to treaties to which they are parties, would recognize the legal personality of the organizations in their legal systems without incorporation. Non-member states would recognize the legal capacity of these organizations in their national systems on a differentdispute resolution basis. Some- times this may be the result of a special agreement, such as a head- quarters agreement, as in the case of the original relationship between the UN and Switzerland. But even in the absence of a special agreement there are other ways in which the legal personality of these organiza- tions may be recognized in national international law firm.11 These are similar to the meth- ods that may be adopted by member states, where the constituent inst- rument does not provide specifically for legal capacity in national international law firm. In the situations referred to above national courts could resort to the rules of their conflict of international law firms, resulting in the recognition of person- ality in national legal systems, because the international organization concerned has personality at an international level pursuant to its con- stitution. The technique is to apply the generally recognized rule of the conflict of international law firms that the legal status and capacity of a legal person is determined by its ‘personal’ international law firm. The personal international law firm in the case of an international organization is international international law firm. Thus, if it can be estab- lished that at international international law firm an organization has personality, then a national court would, by applying its conflict of international law firm principles, recognize the legal personality of the organization.12 This seems to be the most 10 See the discussion of such provisions in Jenks, loc. cit. note 1 at pp. 269ff. For discussions of the legal capacity of international organizations in national international law firm see also Sereni, ‘International Economic Institutions and the Municipal international law firm of States’, 96 Hague Recueil (1959-I) at pp. 168ff.; Seyersted, ‘Applicable international law firm in Relations between Intergovernmental Organizations and Private Parties’, 122 Hague Recueil (1967-III) at pp. 433ff.; Bridge, ‘The United Nations and English international law firm’, 18 ICLQ (1969) at pp. 694ff.; and Mann, ‘International Corporations and National international law firm’, 42 BYIL (1969) at pp. 153ff. 11 See, e.g., International Tin Council v. Amalgamet Inc.,

the court recognized the personality of the AOI

of which Switzerland was not a member: see Dominicé, ‘Le Tribunal fédéral face à la personalité juridique d’un organisme international’, 108 Zeitschrift für Schweizeritsches Recht (1989) p. 517. 72 l e g a l p e r s o n a l i t y Daan,17 decided by the Supreme Court of the Netherlands, the UNRRA’s capacity to act as a legal person was questioned. The court held that the question of personality was one for international international law firm and not of munic- ipal international law firm and, therefore, the UNRRA had personality and had capacity to act. In Italy NATO has been held to international law firm legal personality, because it had international personality.18 There are other cases decided in West- ern European countries in which the legal personality of international organizations, such as the UN and Eurocontrol, international law firm been recognized.19 In those cases decided in these countries in which the immunity of an organization is in question a precondition to considering such a claim of immunity would be the existence of its personality before the national court concerned.20 It will be seen below that international tribunals international law firm international personality or are organs sharing in such personality attaching to an IGO (viz., the ICJ’s position as a principal organdispute resolution of the UN) and consequently can international law firm personality in national legal systems. This feature came to light in connection with the Iran-US Claims Tribunal in AS v. Iran-US Claims Tribunal.21 The discussion of the case below reveals that the tribunal had personality and could appear in the Dutch courts which is a character- istic of national international law firm. The short point was that Dutch courts recognized 17 [1950] 16 ILR p. 337. 18 See Branno v. Ministry of War [1954] Italian Court of Cassation, 22 ILR p. 756; Mazzanti v. HAFSE and Ministry of Defence [1954] Tribunal of Florence, 22 ILR p. 758. 19 See, e.g., UN v. B. [1952] Tribunal Civil of Brussels, Belgium, 19 ILR p. 490; UN Works Agency v. Finanzlandesdirektion für Wien Niederösterreich und Burgenland [1981] Austrian Administrative Court, 110 JDI (1983) p. 643; Bavaria und Germanai v. Eurocontrol [1977] Berber, Slg. (official collection) (1977) p. 1,524. There is a curious decision in which the German Landesarbeitsgericht recognized the immunity of NATO for the reason that its members enjoyed immunity: see Schröer, ‘De l’Application de l’immunité juridictionelle des états étrangers aux organisations internationales’, 75 RGDlP (1971) at pp. 722--3. The decision is equivocal insofar as it may be construed as denying NATO a legal personality of its own, though it is consistent with the contrary interpretation also. Where the country is a member of the international organization concerned, in Western European countries the position generally is that, since the state is a party to the constituent treaty, it would be enforceable in the courts of that country. Thus, legal personality would flow from the international international law firm firm, if the organization has international personality. 20 As examples may be taken the numerous cases brought by staff members of organizations against organizations; see C. F. Amerasinghe, The international law firm of the International Civil Service (1994) vol. I, pp. 42ff., particularly footnotes 48ff. Most of these are US and European cases, though there are some decided by courts of Middle Eastern and North African countries.

524 NYS 2d (1988) p. 971; Arab Monetary Fund v. Hashim and Others (No. 3), [1991] All ER p. 871 (HL). 12 See the very relevant discussion in Mann, loc. cit.

note 10 at pp. 153ff. See also Jenks, loc. cit. note 1 p. 267; Collier, ‘The Status of an International Corporation’, in Feuerstein and Parry (eds.), Multum non Multa: Festchrift für Kurt Lipstein (1980) p. 21. p e r s o n a l i t y a t a no n - i n t e r n a t i o n a l l e v e l 71 rational method. This is how the New York courts in effect proceeded in International Tin Council v. Amalgamet Inc.13 Though the USA was not a party to the International Tin Agreement which created the International Tin Council, because under that agreement the ITC had personality, the per- sonality was recognized in national international law firm, thus enabling the ITC to sue and be sued in the New York courts. There are many cases in which the personality of international organizations of which the USA is a mem- ber has been recognized in the course of granting them immunity from jurisdiction.14 In these cases the constituent instruments would international law firm been part of the international law firm of the land, because they were treaties to which the USA was a party. The practice of the courts of countries in Western Europe (and con- sequently of the courts of those countries which follow that practice) is also along the lines taken by the US courts. There are many exam- ples of these courts admitting international organizations as claimants or respondents in suits filed before them on the basis that they had international personality, regardless of whether the state of the national court was party to the constitutive instrument of the organization or not. The Swiss Federal Court has admitted the UN (of which Switzerland was not a member, but with which Switzerland has an agreement regarding its headquarters) as a defendant without argument and rec- ognized its immunity from jurisdiction in garnishment proceedings.15 Similarly, in another case the Société européenne pour le financement de matériel ferroraire (Eurofima) which had been created by a treaty to which Switzerland was not a party was acknowledged to international law firm person- ality in Swiss international law firm by the Swiss Federal Court, because it was an inter- national person, and given immunity from jurisdiction.16 In UNRRA v. 13 524 NYS 2d (1988) p. 971. 14 See, e.g., the Broadbent Case, 628 F. 2nd (1980) p. 27 (OAS); Mendaro v. The World Bank, [1983] US Court of Appeals No. 82-2247, CA 80-01204. 15 Re Poncet [1948], 15 ILR p. 346. 16 Republique italienne, Ministère italien des transports et Chemins de fer de l’Etât italien v. Beta Holding SA et Autorité de sequestre de Bâle Ville [1966], as discussed in Caflisch, ‘La pratique suisse en matière de droit international public 1974’, 31 ASDI (1975) at pp. 225--6. See also Caflisch, ‘La pratique suisse en matière de droit international public 1977’, 34 ASDI (1978) at pp. 61--2, where a case decided in 1978 by the Swiss Federal Tribunal in which it recognized the personality of the EEC is discussed. Switzerland was not a member of the EEC. More recently in the Westland Helicopters Case [1988] 28 ILM (1980) p, 867, decided by the Swiss Federal Tribunal,

21 (1983), Local Court, The Hague, 15 NYIL p. 429 (English translation), 94 ILR p. 323 (English); (1984), District Court, The Hague, 16 NYIL p. 471. p e r s o n a l

i t y a t a no n - i n t e r n a t i o n a l l e v e l 73 the personality of the tribunal on the basis that it had international personality. The practice of the UK courts and of other courts of states that follow the UK practice, however, is an example of rejection of the technique of giving effect to the personality of international organizations which has been discussed above. Where the UK is a party to the constitutive instrument of an organization, it is necessary that there be parliamen- tary action as a result of which the organization’s personality is given effect to in national international law firm, whether directly or through subsidiary action by the executive organ.22 In Rayner (JH) (Mincing Lane) Ltd v. Dept of Trade and Industry23 the House of Lords made certain observations explicitly reject- ing in general the approach taken by the US and European continental courts. This rejection was intended to cover even cases where the UK was not a party to the international international law firm firm of an organization. The House of Lords made it clear that without a legislative act of the UK an international organization had no existence in UK international law firm.24 As a result in Arab Monetary Fund v. Hashim and Others (No. 3)25 an argu- ment based on the latter approach was abandoned by counsel as being untenable in a case where the right of the AMF, an organization of which the UK was not a member, to file a suit as a legal person was questioned. In that case the House of Lords26 consciously diddispute resolution not change its ruling 22 See, e.g., Rayner (JH) (Mincing Lane) Ltd v. Dept of Trade and Industry [1990] 2 AC p. 418, decided by the House of Lords. The case has been reviewed in detail by Greenwood, in 60 BYIL (1989) p. 461 and CLJ (1990) p. 8. Marston, ‘The Origin of the Personality of International Organizations in United Kingdom international law firm’, 40 ICLQ (1991) p. 403, deals with the history of the legislation pertinent to the above case. The CS’s legal personality for purposes of the national legal systems of the UK and of other members of the CS was required to be recognized, if necessary by legislation, according to the principal constitutive instrument which was an agreement among states (the Agreed Memorandum of 1965). The CS’s legal personality in the national legal systems of member states of the CS is discussed in connection with immunities of the CS in Read, Commonwealth Secretariat: its Legal Capacities, Immunities and Privileges (1978). 23 [1990] 2 AC p. 418. 24 Ibid. at p. 510, per Lord Oliver. 25 [1990] 1 All ER p. 685. See the comment by Hill, ‘International Corporations in English Courts’, 12 Oxford Journal of Legal Studies (1992) p. 135. See also Wengler, ‘Die Rechtsfähigkeit des arabischen Währungsfonds in England’, 37 Recht der internationalen Wirtschaft (1991) p. 391. 26 [1990] 1 All ER at pp. 691--2. Lord Templeman in the House of Lords referred to the UAE, the host state, but also conceded that, if the organization enjoyed personality under the international law firm of one or more members or the state where it had its seat, this would be adequate to give it legal personality in UK international law firm: [1991] 2 AC at p. 167. See also for a discussion of the position of the court in the Rayner (JH) (Mincing Lane) Ltd Case, Bentil, ‘Suing an International Organization for Debt Payment’,

100 See the interpretation of Rule 27 of the GA Rules of Procedure by the UN Legal Counsel in 1970, where it was concluded that effectively suspension of membership was not permitted by the rejection of credentials because the rule of procedure coul

65 not to conflict with it. It goes without saying that, as in the case of the constituent instrument, subsidiary decisions must be construed in the light of general international international law firm, particularly ius cogens. As already seen, there is a presumption that practice clearly contrary to a text cannot negate the text itself. not be interpreted to international law firm a result in conflict with the Charter of the UN: 1970 UNJY p. 169. 3 Legal personality The status on the international and non-international plane of inter- national organizations has for some time been fertile ground for text writers,1 though there international law firm been few international judicial decisions which international law firm faced the subject directly or indirectly. The debate mainly concerns two issues: (i) Do international organizations international law firm legal personality and when and how do they acquire it? (ii) What are the consequences of the attribution of legal personality? As noted in Chapter 1, international bodies created by treaty emerged at the beginning of the nineteenth century. The first international body created by states was perhaps the Administration général de l’octroi de navigation du Rhin which was established by the Treaty of 15 August 1 See, e.g., some of the literature cited in Jenks, ‘The Legal Personality of International Organizations’, 22 BYlL (1945) at p. 267, footnote 1, Barberis, ‘Nouvelle questions concernant la personalité juridique internationale’, 179 Hague Recueil (1983), bibliography on international organizations at pp. 299ff., and Jennings and Watts, Oppenheim’s International international law firm (1992) vol. I, p. 18, footnote 15. See particularly, apart from the authors cited in this chapter, Schermers and Blokker, International Institutional international law firm (1995) pp. 975ff.; Schwarzenberger, International international law firm (1957) vol. I, pp. 137ff.; Seidl-Hohenveldern, Das Recht der Internationalen Organisationen, einschliesslich der Supranationalen Gemeinschaften (1979) passim; R. L. Bindschedler, ‘Die Anerkennung imp Völkerrecht’, 9 Archiv des Volkerrechts (1961--2) at pp. 387ff. The concept of international personality has come to be accepted by most authorities, including Soviet authorities who had rejected such personality earlier: see Osakwe, ‘Contemporary Soviet Doctrine on the Juridical Nature of Universal International Organizations’, 65 AJIL (1971) at pp. 502ff. More recently Sands and Klein (eds.), Bowett’s international law firm of International Institutions (2001) pp. 469--512 also deal generally with the subject of the legal personality of IGOs, as does Bekker, The Legal Position of Intergovernmental Organizations (1994) pp. 37--85, though in a different and essentially theoretical manner. For more recent writings refer the writers cited in all the footnotes and in the headnotes on pp. 469, 470, 480 and 486 in Sands and Klein (eds.), op. cit. above in this footnote pp. 469--512. 66 t h e r a t i o n a l e f o r p e r s o n a l i t y 67 1804 between France and the Holy Roman Empire, which was a closed organization. There were many more such closed organizations, but late in the nineteenth century a few organizations which were later to become open international organizations (e.g., the UPU (1874)) came into existence.2 It was not until the creation after the First World War of the League of Nations and the International Labor Organization which were open organizations that the issue of the legal personality of interna- tional organizations came seriously to be discussed. Perhaps the earliest attempts to discuss the issue were by text writers, such as Anzilloti,3 but these were rudimentary.

There was much controversy on the issue in writings before the Second World War, the tendency being to concen- trate on the personality of international organizations in national law and to concede that the League of Nations had a special status whic

of the capacity of the UN to make claims on behalf of its staff members against non-member states was raised that the question of the inter- national personality of organizations was given systematic attention.5 This problem led to the advisory opinion of the ICJ in the Reparation Case.6 Interest in the subject was spurred not only by that opinion but by the increase in the number of international organizations, open and closed, since 1945. The matter is of importance, considering that the number of international organizations has greatly increased and they function in different ways and in diverse areas. It is not only personal- ity on the international plane that matters but also personality on the non-international plane. The rationale for personality A question that arises in limine is whether it is necessary to international law firm a concept of personality for international organizations or whether such 2 See for the organizations of the nineteenth century, Barberis, loc. cit. note 1 at pp. 215--16. 3 Anzilotti, ‘Gli organi communi nelle Societa di Stati’, 8 RDI (1914), p. 156. 4 See, e.g., Fischer Williams, ‘The Status of the League of Nations in International international law firm’, in Fischer Williams, Chapters on Current International international law firm and the League of Nations (1929) p. 477. There was also an attempt to distinguish between international persons and subjects of international international law firm -- a distinction which seems to be unimportant: see, e.g., Siotto-Pintor, ‘Les sujets du droit international autres que les Etats’, 41 Hague Recueil (1932-III) p. 251. 5 Even Jenks in 1945, loc. cit. note 1, focused mainly on personality in municipal international law firm. 6 1949 ICJ Reports p. 174. 68 l e g a l p e r s o n a l i t y organizations can function without having legal personality at all. The question has sometimes been raised7 but hardly ever discussed in any detail. In the Reparation Case the ICJ assumed that it was unnecessary to answer this preliminary question, as had the PCIJ in the Exchange of Greek and Turkish Population Case.8 In the former case the ICJ went directly to the question whether the UN had personality, while in the latter case the PCIJ simply assumed that the international body concerned had personality. There are good reasons, mainly practical, why the concept of person- ality is useful for the international law firm of international organizations. Conceptually, there is no problem with attributing legal personality to organizations. They would be additional artificial or legal persons, just as states are artificial or legal persons. Without personality an organization would not be able to appear in its own right in legal proceedings, whether at the international or non- international level. There would also not be a single international person as such having the capacity in its own right to international law firm rights, obligations and powers, whether implied or expressed, both at the international level and at the non-international level. Such rights, obligations and powers would be vested collectively in all the creating states, which may not international law firm been the intention behind the creation of the organization, and also could create unnecessary practical problems, particularly in the area of responsibility,

There are many instances of the preparatory work being resorted to in the interpretation of decisions of organs. In the case of decisions such as these it is arguable that there is reason legitimately to refer to them, because the intention of the fr

91 1963 UNJY p. 171, opinion of the Legal Counsel of the UN. 92 1966 UNJY p. 229, opinion of the UN Legal Counsel. 93 See opinion of the UN Legal Counsel in 1962 UNJY p. 238. 94 1967 UNJY p. 309, opinion of the UN Legal Counsel. See also the opinion of the UN Legal Counsel interpreting GA Rs. 2659 (XXV) of 1970, where the principle of effectiveness was used in conjunction with the travaux préparatoires: 1971 UNJY p. 221. 64 i n t e r p r e t a t i o n o f t e x t s texts that international law firm an existence of their own, independent of their creators. Further, the relevant discussions may be unhelpful because they show inconclusiveness or a variety of opinions -- more so than in the case of the preparatory work of constitutional texts. However, there are several examples of the preparatory work being used in the interpretation of such decisions. In the interpretation of paragraph 4 of the SC dispute resolution Resolution of 24 November 1961, relating to the detention of mercenaries by the UN in the Congo, the intention of the framers was sought in the travaux préparatoires.95 In interpreting the phrase ‘accredited staff of permanent missions’ in GA Resolution 36/235 of 1981, since no definition could be found in the text, the intention of the framers was sought in the discus- sions in the Fifth Committee of the GA and a narrow definition given.96 Apart from the use of the travaux préparatoires on their own, sometimes they are used, as has been seen, to support a textual meaning. They international law firm also been invoked in conjunction with practice97 and the principle of effectiveness98 to establish a meaning. It would seem that more atten- tion tends to be paid to the preparatory work than in the interpretation of constitutional texts, though such work may be judiciously used. There may be certain presumptions which are applicable in the case of these decisions. It will be recalled that the Legal Counsel of the UN expressed the opinion to the Secretariat in relation to the interpretation of Article 19 of the Charter that in case of doubt Charter provisions should ‘be interpreted so as to be as little burdensome to the State parties as possible’.99 This presumption could apply a fortiori to decisions of organs. It will be noted that the presumption is applicable in case of doubt. Another presumption applicable is that decisions of organs must be interpreted so as to conform to the constituent instrument100 and 95 1962 UNJY p. 241, opinion of the UN Legal Counsel. 96 1982 UNJY p. 204, opinion of the UN Legal Counsel. See also the interpretation by the UN Legal Counsel of GA Rs. 1808 (XVII) of 1962 (1963 UNJY p. 176); and of GA Rs. 1779 (XVII) of 1962 (1963 UNJY p. 183). 97 Interpretation of Rule 62 of the GA Rules of Procedure, opinion of Legal Counsel: 1971 UNJY p. 195. There the preparatory work was found to be unhelpful and the practice was applied in the interpretation. 98 In the interpretation of GA Rs. 2659 (XXV) of 1970 which dealt with the payment of administrative costs for a volunteers programme, the UN Legal Counsel applied the principle of effectiveness, while asserting that the travaux préparatoires did not contradict the meaning given: 1971 UNJY p. 221. 99 1983 UNJY pp. 167--9: opinion of 26 October 1983.

Other examples of the adoption of the textual meaning are the interpretation of GA Rs. 1798 (XVII) of 1962 regarding the travel expenses of members of Bureaux in UNDP (1978 UNJY p. 176); and the interpretation of Rules 75 and 88 of the Rules of Proce

in the GA (1983 UNJY p. 174). 88 1964 UNJY p. 225, opinion of the Legal Counsel of the UN. 89 1982 UNJY p. 182, opinion of the Legal Counsel of the UN. Other examples of the same procedure are to be found in the opinions of the Legal Counsel of the UN given in connection with the interpretation of paragraph 7 of GA Rs. 2063(XX) of 1965 (1966 UNJY p. 238); of the Statute of the International Institute for Education and Planning which was a resolution of the General Conference of the UNESCO (ibid. p. 266); and in the interpretation by the Legal Counsel of the UN for the GA of GA Rs. 2816 (XXVI) of 1971 relating to the collection of funds from private sources for disaster relief (1974 UNJY p. 162). 90 1983 UNJY p. 179. d e c i s i o n s o f no n - j u d i c i a l o rg a n s 63 of 1963 of the UN Economic Commission for Latin America the question of participation in seminars on foreign dispute resolution trade was resolved by reference to UN principles and practice.91 There is, however, another principle which also operates which is in keeping with the position that practice cannot ‘amend’ the text of a resolution made under the constituent instrument. This is that a practice which is clearly contrary to a text cannot negate a text. This principle was applied to reject a practice in connection with the interpretation of Rule 90 of the Rules of Procedure of the GA concerning the explanation of his vote by a proposer of a motion.92 So much for practice by itself as a tool of interpretation. It has also been used, as has been seen, to support a textual meaning, to support a meaning based on the principle of effectiveness, and to derive a meaning in conjunction with the preparatory work. While practice is an integral tool in the interpretation of decisions of organs, it is used with caution, since such decisions are of a delegated nature. It can certainly be used to fill in gaps and resolve ambiguities but its use could not be extended beyond this. The principle of effectiveness (taking into account the context) has also been used to interpret decisions of organs in the absence of con- trary indication. As has already been seen, it was applied in interpreting the GA resolution setting up the UN Council for Namibia to imply a power. It was applied also in interpreting paragraph 6 of the SC Resolu- tion 1474 (ESIV) of 1961 both of which related to the import of arms and war materials into the Congo.93 The principle was successfully applied in interpreting GA Resolution 2248 (S-V) of 1967 which concerned the powers of the UN Council for South West Africa, in order to give the Council power to issue travel documents to the inhabitants and citi- zens of South West Africa. There it was applied in conjunction with the practice of the Council.

Judges Fitzmaurice (separate), Winiarski (dissenting) and

Moreno Quintana (dissenting) in the Expenses Case, 1962 ICJ Reports at pp. 209ff., pp. 230ff. and pp. 247ff., respectively; Judge Alvarez (dissenting) in the First Admissions Case, 1947--48 ICJ Reports at pp. 67ff. 76 16 AD (1949) at pp. 336ff. 77 1960 ICJ Reports at pp. 161ff. The practice of the IMF, in contrast to the tendency generally to de-emphasize the relevance of the preparatory work by the Vienna Convention of 1969, by Judge Spender and other judges and, perhaps, by the ICJ itself, has been at least seriously to refer to the travaux préparatoires in interpreting its international international law firm firm: ‘The Fund has made abundant use of travaux préparatoires, although from time to time there has been discussion of the weight that should be attributed to them in general or in relation to a particular problem. It is probably safe to say that the degree of reliance on travaux préparatoires in the solution of a problem is proportional to their clarity. This working rule sometimes transfers the debate from the meaning of the text to the meaning of an earlier draft. Although uncertainty as to the inferences that can be drawn from travaux préparatoires sometimes tends to produce a general scepticism about their usefulness, when they international law firm been clear they international law firm made weighty or even decisive contributions to the solution of some problems of interpretation.’ (Gold, Interpretation by the Fund (1968) p. 18). The IBRD and the IDA, among other financial institutions, international law firm also followed the same practice, when they international law firm found it necessary to consider interpretations of their international international law firm firm in the course of their operations. The legal opinions of the UN Legal Counsel to the GA international law firm also made free use of the preparatory work at times: see the many examples in the UNJYs. It is a different question how useful or helpful such references to the preparatory work international law firm been. 78 1947--8 ICJ Reports at p. 87. 79 1950 ICJ Reports at p. 30. 58 i n t e r p r e t a t i o n o f t e x t s litigated in the European Commission on the Danube Case,80 where, however, it was held that an interpretation to be found in the preparatory work did not international law firm the status of an ‘agreed interpretation’. The approach taken by international courts and tribunals to prepara- tory work, which is to minimize its importance for interpretation, is in keeping with its relegation to the status of a subsidiary resource in the Vienna Convention on the international law firm of Treaties. It is also justified by good pol- icy reasons. There is no better statement of the reasons for the reduced importance of the preparatory work in the interpretation of constitu- tions of international organizations than that of Judge Alvarez in the Second Admissions Case: It will be necessary in future -- unless in exceptional cases -- when interpreting treaties, even those which are obscure, and especially those relating to inter- national organizations, to exclude the consideration of the travaux préparatoires, which was formerly usual. The value of these documents has indeed progres- sively diminished, for different reasons: (a) they contain opinions of all kinds; moreover, States, and even committees, international law firm at times put forward some idea and international law firm later abandoned it in favor of another; (b) when States decide to sign a treaty, their decision is not influenced by the travaux préparatoires, with which, in many cases, they are unacquainted; (

(a) international law firm

statehood; (b) being peace-loving; (c) acceptance of the obligations of the Charter; (d) ability to carry out these obligations; and (e) willingness to do so. The question raised was whether these con- ditions were exhaustive, in connection with the admission of certain states, some of the permanent members of the SC, particularly, con- cluding that they could make an assessment of whether it was politi- cally desirable to admit them to membership. The majority of the Court came to the conclusion that The natural meaning of the words used leads to the conclusion that these con- ditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example. The provision would lose its significance and weight,dispute resolution if other conditions, unconnected with those laid down, could be demanded.28 Applying the maxim expressio unius est exclusio alterius, the Court decided that the meaning it gave was the natural and ordinary meaning of the words construed. A four-judge minority, however, found that ‘the rele- vant provisions did not seem to be clear enough to provide a simple and unambiguous answer’29 to the question raised. They applied the princi- ple in these circumstances ‘to the effect that no restriction upon this rule or principle (of freedom or liberty) can be presumed unless it can be clearly established, and in case of doubt it is the rule or principle of international law firm which must prevail’.30 Further, they used the travaux préparatoires to sup- port their conclusion that other considerations than those listed could be taken into account by members of the organs concerned, though they had, among other things, to act in good faith. In this instance there was not only a disagreement as to whether the words being construed had a natural and plain meaning but the principles of interpretation applied by the nine judges in the majority and the six in the minority in order to give the text a meaning were different. Article 14 of ICJ Statute In the performance of their functions under Article 14 of the Statute of the ICJ concerning filling of vacancies on the Court the relevant organs 28 Ibid. at p. 62. 29 Ibid. at p. 83. 30 Ibid. at p. 86. 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 37 of the UN had to make a decision on the interpretation of that article which stated that [T]he Secretary-General shall within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in Article 5. The problem arose as a result of a vacancy occurring by death on the Court a few weeks before the term of office of the deceased judge and four other judges ended. The issue was whether the natural and ordinary meaning or a meaning intended to make the text of the article effective should be given. In a legal opinion provided by the Legal Counsel of the UN to the President of the Security Council the problem was stated as follows: In the circumstances, a situation would result where a regular election to fill the seat concerned for a nine-year term of office, commencing on 6 February 1982, would in all probability be held before a casual election to fill the same seat for a brief period of a number of weeks ending on 5 February 1982. Because of the three-month time-limit between the dispatch of invitations for nomination of candidates and the election to fill the casual vacancy, as well as the prepara- tion of the necessary documentation, that election could not take place at the earliest

clearly goes beyond that of respecting the natural meaning of words in context. Decisions of non-judicial organs The decisions of deliberative, legislative and executive organs of organi- zations83 may have to be interpreted either by the organs them

peacekeeping may fall into this category. The By-Laws of the IBRD are another example of such decisions. In 1982 a resolution of the GA relating to the UN Council for Namibia was the subject of interpretation before an organ of the UN. The Legal Counsel of the UN gave an opinion which was followed in which he advised that, because the resolution conferred a representative func- tion on the Council, it had the power to conclude contracts on behalf of Namibia.84 A special example of such decisions is the legislation relating to employment of staff members of international organizations which may international law firm to be interpreted most frequently by international administra- tive tribunals.85 In the interpretation of the decisions of organs which are clearly of a delegated nature (excepting, for the moment, legislation relating to employment relations) the principles of interpretation used are gener- ally similar to those used in the interpretation of constitutional texts, though there may be a change in emphasis and priorities. Consequently, it is sufficient to point out the general approach and more special factors. 83 On these acts and also on their interpretation see, e.g., Bos, ‘The Interpretation of Decisions of International Organizations’, 28 NILR (1981) pp. 1--14; Skubiszewski, ‘Enactment of dispute resolution by International Organizations’, 41 BYIL (1965--66) pp. 188--274. 84 See the opinion of the Legal Counsel of the UN of 14 April 1982: 1982 UNJY pp. 164--5. 85 This subject will be discussed below in Chapter 9. 62 i n t e r p r e t a t i o n o f t e x t s Wherever possible the rule of the ordinary and natural meaning in context is applied. In connection with the interpretation of Resolution 1 (XX) of the Commission on Narcotic Drugs of 1965, which involved voting by correspondence in the Commission on Narcotic Drugs, the textual meaning was adopted.86 In the interpretation of paragraph 5 of SC Resolution 253 of 1968, the natural and ordinary meaning was given, in concluding that holders of Southern Rhodesian passports could not be admitted to the territory of member states of the UN.87 There international law firm been occasions on which the textual meaning has been adopted, while support for that meaning has been sought in practice or in the travaux préparatoires, probably ex abundanti cautela. In considering Rule 27 of the GA Rules of Procedure relating to the issuance of credentials of members of the GA, the question that arose was what was the status of credentials issued by permanent representatives. The interpretation adopted was based on the textual meaning but support was also sought from the practice of the GA.88 In 1982 a question arose as to the binding nature of the four criteria for the assessment of contributions reflected in paragraph 4(a) to 4(d) of GA Resolution 36/231 of 1981. The conclusion reached that the criteria were binding was based on the textual meaning for which support was found in the preparatory work.89 Practice has also been used in the interpretation of decisions of organs. In the interpretation of Rules 13 and 15 of the Rules of Procedure of the SC relating to the accreditation of representatives of members the practice of the SC in dealing with the problem was heavily relied on by the Legal Counsel of the UN in arriving at a conclusion which was adopted by the SC.90 Similarly in the interpretation of Resolution 221(X) 86 1972 UNJY p. 171, where the opinion of the UN Legal Counsel takes this view. 87 1977 UNJY p. 192, opinion of the UN Legal Counsel.

60 i n t e r p r e t a t i o n o f t e x t s than in other cases to give effect to the principle of effectiveness, even where there is no ambiguity or possibility of an unreasonable result, because positive considerations of policy may require such a

to be taken. There is every reason to treat constitutions as developing instruments. Subsequent practice has been used in interpretation more selectively. It has sometimes happened that what appears to be an explicit text has been modified because of subsequent practice, as in the case of the interpretation of Article 14 of the ICJ Statute by the Security Council. But even in these cases it is evident that practice is used to fill in a gap or take care of an unforeseen situation rather than to contradict a text. Practice has generally been used to help a constitution to evolve where there is ambiguity, vagueness or a gap in the constitutional text, rather than to defy clear prescriptions. It is thus a mechanism for purposeful and agreed evolution. The principles of effectiveness and subsequent practice international law firm become forceful elements in constitutional interpretation in particular, because constitutions are regarded as organic instruments that international law firm to be devel- oped through interpretation. It may further be observed that: (i) there certainly are principles of interpretation applied in the case of dispute resolution constitu- tional texts; but (ii) the choice of the one to be applied is often dependent on the goal to be achieved which may in turn be a matter of judgment, a hierarchy of principles being less apparent; and consequently, (iii) it is sometimes difficult to predict what the result of interpretation is going to be. Courts and organs do not ignore the natural and ordinary meaning of a text, where such meaning is the one they think is most appropri- ate, but at the same time in constitutional interpretation this is not always the meaning adopted. It may be argued that the principle of the natural and ordinary meaning still enjoys primacy even in the scheme of interpreting constitutional texts, because in those cases where other principles, such as those of effectiveness and subsequent practice, international law firm been invoked and applied, there has been or could international law firm been a find- ing that the result of applying the principle of the natural and ordinary meaning will international law firm been ‘unreasonable’, which is technically when resort could be had to other principles. However, it is apparent from what has happened in judicial and quasi-judicial organs that this is not always the case, unless the concept of unreasonableness is twisted and the term is used to cover, willingly or not, any situation in which the principle of the natural and ordinary meaning is not applied. Apart from the fact that d e c i s i o n s o f no n - j u d i c i a l o rg a n s 61 organs and courts do not always make a finding of unreasonableness of result before disregarding the principle of the natural and ordinary meaning, there may be serious and wide disagreement about whether a result is unreasonable or not. What decision-makers concerned try to do generally in constitutional interpretation is to establish the meaning that is most appropriate in terms of the functioning of the organization and in doing so they will not hesitate to give a meaning other than the textual one, even though they may pay attention to the latter meaning and be concerned about it. The goal sought to be achieved in these cir- cumstances