Advisory Jurisdiction of the ICJ: The WHO Case: Implications for Specialized Agencies


The ICJ proceedings in the case concerning 'legality of the use by a state of nuclear weapons in armed conflict' are indicative of the sharp differences of view held by different states as to the proper role and function of international organizations.

On the one hand there were some states, which proposed the view that organizations such as the WHO are established solely to fulfill those tasks which have been expressly spelled out in their constituent instruments, subject to construction of any implied powers which are absolutely necessary for achieving those objectives. In this context, and particularly with respect to the organizations of the United Nations system, reference was largely made to the origins of their creation and to 'functionalist theory'. This approach stressed the need for an appropriate division of responsibilities between the United Nations organization, on the one hand, and the UN specialized agencies, on the other. It would leave powers of general scope to former and specialized sectoral powers to the latter. This view was supplemented by the belief that questions with strong political flavor should not be dealt with by the specialized agencies at all.

The alternative view did not deny the need for an appropriate division of responsibilities among the various international organizations. Rather, it suggested that today's issues are increasingly complex and will often cut across the institutional competencies envisaged in the 1940s and 1950s. According to this approach, international organizations can use different and often more wide-ranging tools and techniques to achieve their general objectives. This implies an expanded view of their roles and activities.

The two approaches can be compared. The first takes a 'restrictive approach' to recourse to international law as an instrument of policy development. Some states considered that Article 2 of the WHO Constitution does not allow resort to the development of international law as a way to achieve WHO objectives. The International Court endorsed this view. The second approach indicates a more 'purposive function' when the organization becomes an actor in its own right, determining for itself the scope of its competence and the extent to which it may resort to tools, which have not been granted to it in express terms at its inception.

In the case in question, in application of the principle of 'specialty', the Court declined to accede to the WHO request. Some of the international jurists consider this conclusion to be backward step in the development of the law of international organizations, while others consider that the Court acted correctly.

Perhaps the ICJ's rebuff to the WHO can be best understood in the context of the Court's decision to accede to the request from the General Assembly. Since the General Assembly had submitted a similar request, the ICJ could reject the WHO request without losing an opportunity to address the substantive issue of the legality of nuclear weapons. In effect, this two-track request enabled the ICJ to be legally exact and politically pragmatic at the same time.


International Law

Date of this Version

May 2005