Author name:
حيدر عبد محسن شهد
Supervisor name:
علي هادي حميدي الشكراوي
Abstract:
The implied powers of international organizations is one of the fundamental issues that are directly related to the life of the organization and its evolution growing as it represents the tools to enable them to achieve the goals and purposes for which it was, and the importance of this issue clear through the place occupied by the International Organization in the international community and its effective contribution to the administration helm of International Relations as an indispensable tool to achieve international cooperation in various fields, through the fullness independent international legal personality to enable them to exercise the rights and comply with obligations and make it a separate entity from the will of the Member States.The importance of implied powers have increased by increasing the number of international organizations in recent years, and the multiplicity of aspects of their activities in the political, economic and social fields, which made them play new roles and therefore new implied powers of commensurate with its growing role in international relations, and do not remain hostage to explicit constitutional provisions contained in the constituent Treaty.The basic principle that the powers of the international organization be explicit, and in the first stage of the life of the international organization its powers does not divided to the textual powers and implied powers, but implied powers appears after organization exercise its acts and arising new developments that need to organize in case of lacked of provisions of the Charter, known that developments to be infinite and legal texts finite and finite not accommodate infinite so it is accommodate those developments through the interpretation of ambiguous texts or create new texts in the light of the international emergency facts to enable the organization access to the areas not be covered explicitly by the governance provisions of the Charter without necessarily resorting to adjust the founding charters for what can an amendment texts faced the difficulties be incarnate in the rigidity of the core conventions of the International Organization or the absence of the political will of Member States to adopt the amendments, because of adherence of the Member States for its sovereignty and refused to assign them to the international organizationThe position of international judiciary was characterized contrast about this type of powers , in the era of the League of Nations International Court of Justice Permanent hesitated before acknowledging the implied powers international organizations motivated stuck states sovereignty and the belief that the expansion of the powers of the international organization at the expense of the member states as an assault on that sovereignty, as well as prevailed in that period that States alone possess international legal personality and that other entities do not have a ability of submit to the rules of international law, but the situation changed after 1945 and the founding of the International Court of Justice, which tended gradually in their successive advisory opinions to recognize the necessary implied powers needed to perform international organizations tasks, particularly the United Nations Organization through follow approach teleological in the interpretation of the constitutional provisions of the Charter, an interpretation that means first and foremost the purpose of the issue texts without wordy to be interpreted, and aims to achieve the goals of the organization on the grounds that the organization itself evolve by the evolution of international life therefor have arisen side goals the original texts of the Charter did not grasp it.The European Court of Justice has taken the same approach after it adopted the theory implied powers through interpretation of the controversial texts in the light of the purposes and principles and objectives of the EU constituent treaties, especially since these aims and targets were formulated in general terms so as to allow the court to adopt a broad and effective interpretation of the texts, which is dominated achieve the objectives of the Community on the other goals, and main factor in the adoption of the Court to approach the teleological interpretation is what is owned by the European Union of a unique mechanism enables it to exercise implied powers is differently from other international organizations, as the European Union has two types of implied powers first is what is known as the judicial implied powers or chock implied powers derived from the application of Court of Justice of the European Communities to the principle of effectiveness in the interpretation of provisions in the constituent treaties of the Union, and secondly, the political implied powers that descend from the put Article 235 of the constituent Treaty of the Union into practice.Therefore, the Court of Justice of the European Communities has reincarnation the role of the Constitutional Court in the federal state when knowledge implied powers the EU arising from the teleological interpretation of the provisions of the Treaty establishing , which had a clear impact on the sovereignty of Member States as the Court is designed to create new powers of the Union, even if powers were absent from the minds of the founding members with a view to the progressive implementation of the merger.The implied powers of the international organization is not absolute powers of each restriction , but are subject to the exercise of a range of restrictions and controls that are derived from international jurisprudence, unlike countries - which have comprehensive powers - exercised international organizations, the powers of a functional nature aimed at achieving the objectives specified in the founding document and based on the consent of the Member States, which was confirmed by the International Court of Justice in its advisory opinion issued in 07/08/1996 the private legitimacy of the use of nuclear weapons by a State in an armed conflict, which is known as the principle of specialization, which requires that the implied powers of organization focused on a particular aspect of aspects that are specialized and organized than other issues not covered by it specialization.The organization is also subject to other limitation is derived from the internal constitutional systems is the principle of necessity and appropriate that mean the executive of the implied powers to the extent necessary to achieve the goals of the organization which has established in order to achieve them and should not leave it to achieve other goals, if International Organization deviated for aims prescribed in its charter, it is a so - called deviation of power, what is the most important constraint as provided for in Article (2) of paragraph (7) of the UN Charter, which includes forbidden the access to areas that are subject to within the domestic jurisdiction of the state. The theory of implied powers allows the development of the principles and rules of general international law by structural functional Role of International Organization for the effective and efficient rules that allow it to move relatively freely based on the objectives and principles contained in the Charter, which makes it a main factor in the development of international legal norms, so that the work the international organization is flexible and movement in response to changing international realities, and otherwise means adherence to the powers predetermined basic Charter and that means that the constitutional texts remain texts rigid is unable to accommodate circumstances, there is no international organization should adhere to the competence of a limited or a certain behavior and everything could possibly organization comply with it is entrusted with the task, and that the end justifies the means by which the organization through which to inform, and for that the organization follow the interpretation functionally allows them to move freely and flexibility to achieve the objectives assigned to them.The common structural features of national constitutions and fundamental charters of international organizations represent main factor in the application of the theory of the implied powers in the international field, for what can it play in many functions at the national and international levels, it is an essential tool for achieving the legal and political balance between the various bodies, but in all cases It cannot be substitute for the Constitution, so in spite of the contribution of the implied powers decisively in the development of the effectiveness of the international organization and increase its ability to adapt to the new reality of the international community, but they have produced a very serious problem regarding the transition out of the UN Charter by giving broad interpretations of its provisions odds the will of the Member States, and the continuation of this of this problem linked in the absence of a decisive borders between (teleological interpretation) that the organization cannot do without it and (the gradual amendment of the Charter), which raises concerns member states
