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World Court Digest

I. Substantive International Law - First Part
4.3. International Organisations
4.3.4. "Implied Powers"

¤ Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Application to Intervene,
Order of 28 February 1990,
I.C.J. Reports 1990, p. 3

[pp. 40-41 D.O. Shahabuddeen] The whole nature of the Court, as a court of justice, constitutes a prohibition, no less clear for being implied, against giving the parties any say in the selection of judges to hear a case, whether through the Rules of Court or otherwise, and whether in whole or in part, except in the case of ad hoc judges. So fundamental was that prohibition to the character of the Court as a court of justice, as distinguished from an arbitral body, that it was no more necessary to express it in its Statute than it would have been to do so in the constitution of any other "court of justice" within the normal acceptation of the meaning of this expression.
This implied prohibition is not neutralized by approaching the matter from the point of view of the doctrine of implied powers. True, the fact that specific powers are conferred on a body does not necessarily imply the non-existence of others. But the latter do not float around at large. In the last analysis, all the powers of a body must be conferred by its constituent instrument, whether expressly or impliedly.

[pp. 41-42 D.O. Shahabuddeen] However elastic may be the test to be applied in determining the existence and extent of implied powers - and undue rigidity is surely to be avoided - it seems in any event clear that a constituent instrument cannot be read as implying the existence of powers which contradict the essential nature of the organization which it creates to exercise them. Powers of that kind could not be described as "required" or "essential" (within the meaning of the Reparation case) to enable the organization effectively to discharge the functions laid upon it by its organic text.