Specialised UN Agencies — WHO, ILO, UNESCO, UNICEF, UNHCR

Around the United Nations sit a constellation of intergovernmental organisations created to discharge specific economic, social, cultural, technical and humanitarian functions. They are not subsidiary organs of the UN; each is established by its own constitutive treaty, has its own membership, its own assembly and its own secretariat. They are, however, brought into relationship with the UN through the formal device of Article 57 of the Charter and are then known as specialised agencies. ECOSOC co-ordinates their work under Article 63 and may consult with them and make recommendations to the General Assembly under Article 64. The cluster — World Health Organization (WHO), International Labour Organization (ILO), UN Educational, Scientific and Cultural Organization (UNESCO), UN Children's Fund (UNICEF) operating as a programme of the General Assembly, and the Office of the UN High Commissioner for Refugees (UNHCR) — together translate the broad purposes of Article 1 of the Charter into operational programmes that touch the lives of populations across the developing and developed world. Their place in the wider institutional architecture is set in the chapter on the UN system — UNGA, UNSC, ECOSOC and ICJ; the broader coverage of these notes is in the International Law for Judiciary hub.

The chapter that follows surveys the constitutional basis of the specialised-agency system, the principal agencies relevant to the judicial-services exam, the unique tripartite design of the ILO, the standing of these instruments in Indian constitutional discourse and the practical implications for litigation in India.

The constitutional architecture — Article 57 of the Charter

Article 57(1) of the Charter provides that the various specialised agencies established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63. Article 57(2) provides that such agencies brought into relationship are to be referred to as specialised agencies. Article 58 directs the Organization to make recommendations for the co-ordination of the policies and activities of the agencies. Article 63 empowers ECOSOC to enter into agreements with each agency, defining the terms on which it is brought into relationship with the UN — those agreements requiring approval of the General Assembly — and to co-ordinate the activities of the agencies through consultation with them and recommendations to the agencies, the General Assembly and the members of the UN.

Three propositions flow from Article 57. First, a specialised agency is created by an intergovernmental treaty separate from the Charter. Second, an agency must have wide international responsibilities in the listed fields. Third, the link with the UN is contractual — through a relationship agreement under Article 63 — not constitutional. The agency therefore retains its own legal personality. The proposition is the corollary of the rule, examined more fully in the chapter on the subjects of international law, that international organisations possess international personality where their constituent instruments and practice indicate that the founding States so intended. The classical authority is the International Court's Advisory Opinion in Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Reports 174.

The principle of speciality and implied powers

An international organisation, unlike a State, does not possess general competence. The International Court has repeatedly observed that international organisations are governed by the principle of speciality: they are invested with the powers entrusted to them by the States that create them, the limits of those powers being a function of the common interests whose promotion has been confided to the organisation. Powers may be expressly laid down in the constituent instrument or may arise as implied powers necessary for the discharge of the organisation's functions. The doctrine was applied to a specialised agency in the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996) ICJ Reports 66, where the Court held that, although the WHO had general competence to address the effects on health of any hazardous activity, it lacked the competence to seek an advisory opinion on the legality of the use of nuclear weapons because that question fell outside the scope of activities entrusted to the WHO by its constitution. The boundary between express and implied powers is a recurring litigation issue and is treated in detail in the chapter on the sources of international law.

The World Health Organization (WHO)

The WHO was established by a constitution signed at New York on 22 July 1946 and entered into force on 7 April 1948 (now observed as World Health Day). Its objective, set in Article 1 of the WHO Constitution, is the attainment by all peoples of the highest possible level of health, with health defined in the Preamble as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The principal organs are the World Health Assembly (the plenary organ in which every member State has one vote and which meets once a year), the Executive Board (a smaller technical organ that prepares the Assembly's agenda and gives effect to its decisions) and the Secretariat headed by a Director-General. The WHO has the power under Articles 19 and 21 of its constitution to adopt conventions, agreements and regulations on matters within its competence. Regulations on quarantine and other procedures designed to prevent the international spread of disease, on nomenclature, on standards for diagnostic procedures, on safety, purity and potency of biological, pharmaceutical and similar products and on advertising and labelling of such products may bind member States that do not opt out within a stipulated period — an unusual feature in international institutional law and one that gives the WHO genuine normative reach. The International Health Regulations (2005) — adopted under Article 21 in the wake of the SARS outbreak and significantly tested by the COVID-19 pandemic of 2020 — set the obligations of member States to detect, report and respond to public health emergencies of international concern.

The International Labour Organization (ILO)

The ILO is the oldest of the specialised agencies, predating the UN itself. It was established by Part XIII of the Treaty of Versailles in 1919 as part of the Covenant of the League of Nations and continued in being after the dissolution of the League. Its 1944 Declaration of Philadelphia, annexed to its constitution, restated its aims in the light of the Second World War: lasting peace can be established only if it is based upon social justice; labour is not an article of commerce; and freedom of expression and association are essential to sustained progress. The ILO's distinguishing feature is its tripartite structure. Each member State sends to the annual International Labour Conference a delegation of four — two government delegates, one delegate of employers and one delegate of workers — each of whom votes independently. The Governing Body, the executive organ, is similarly tripartite. The International Labour Office is the secretariat.

The ILO's two normative instruments are Conventions and Recommendations. A Convention is a treaty open to ratification by member States; once ratified, it is binding. A Recommendation is non-binding guidance on best practice. The eight "core" Conventions deal with freedom of association and collective bargaining (Conventions 87 and 98), forced labour (Conventions 29 and 105), discrimination in employment (Conventions 100 and 111) and child labour (Conventions 138 and 182). India has ratified six of the eight core Conventions; it has not ratified Convention 87 on freedom of association and Convention 98 on the right to organise and collective bargaining. The Indian Supreme Court has on many occasions read the Articles 14, 19 and 21 fundamental-rights guarantees together with ILO standards — most prominently in People's Union for Democratic Rights v. Union of India (1982) 3 SCC 235 (the Asiad workers case), where Bhagwati J read the prohibition on bonded labour and the guarantee of minimum wage in light of the ILO conventions on forced labour. The deeper Indian-law account is in the chapter on the implementation of international treaties in Indian courts.

UNESCO — UN Educational, Scientific and Cultural Organization

UNESCO was established by a constitution adopted at London on 16 November 1945 and entered into force on 4 November 1946. Its purpose, set in Article I of the constitution, is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms affirmed for the peoples of the world by the UN Charter. The principal organs are the General Conference (meeting biennially), the Executive Board (meeting twice a year and consisting of fifty-eight members elected by the General Conference) and the Secretariat headed by the Director-General. UNESCO administers a number of important multilateral instruments — the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (and its two Protocols), the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 World Heritage Convention (under which India's monuments at Ajanta, Khajuraho, Hampi and elsewhere have been inscribed) and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. The cultural-property regime intersects with the rules on State responsibility considered in the chapter on State jurisdiction — territorial, personal and universal and with the broader prohibition on the destruction of cultural property in armed conflict considered in the chapter on international humanitarian law — Geneva Conventions.

UNICEF — UN Children's Fund

UNICEF was established by General Assembly resolution 57(I) of 11 December 1946, originally as an emergency fund to provide relief to children in countries devastated by the Second World War. Its mandate was made permanent and broadened by Assembly resolution 802(VIII) of 6 October 1953. UNICEF is therefore not a specialised agency in the technical sense of Article 57; it is a programme of the General Assembly under Article 22, financed by voluntary contributions and supervised by an Executive Board representing thirty-six member States. Its mandate centres on the survival, protection and development of children, particularly in the developing world, and it operates closely with WHO on immunisation, with the Food and Agriculture Organization (FAO) on nutrition, and with UNESCO on basic education. UNICEF is the lead UN entity for the implementation of the 1989 Convention on the Rights of the Child — the most widely ratified human-rights instrument in history. India ratified the Convention on 11 December 1992. The Supreme Court has drawn on the Convention in cases concerning child labour, juvenile justice and the right to education, including the body of jurisprudence recognised in the chapter on international human rights law.

UNHCR — Office of the UN High Commissioner for Refugees

UNHCR was established by General Assembly resolution 319(IV) of 3 December 1949 and began operations on 1 January 1951. Its statute, annexed to General Assembly resolution 428(V) of 14 December 1950, mandates it to provide international protection to refugees and to seek permanent solutions for the problem of refugees by assisting governments to facilitate voluntary repatriation, local integration in the country of asylum or resettlement in a third country. UNHCR's competence is rationally connected to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol — the principal multilateral instruments defining who is a refugee and what protections they are owed. The 1951 Convention adopts a definition centred on a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. India is not a party to the 1951 Convention or to its 1967 Protocol; nonetheless, India hosts a substantial population of refugees from Tibet, Sri Lanka, Afghanistan, Myanmar and elsewhere. The principle of non-refoulement — the prohibition on returning a person to a country where they face persecution — has been recognised by the Indian Supreme Court as flowing from the protection of life and personal liberty under Article 21 of the Constitution, in cases such as NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742 (the Chakma refugees case). The full account of India's refugee position is in the chapter on refugees and asylum — India's position.

The other specialised agencies — a brief survey

The Article 57 family is wider than WHO, ILO and UNESCO. The Food and Agriculture Organization (FAO), established in 1945 with headquarters at Rome, leads international efforts to defeat hunger. The International Civil Aviation Organization (ICAO), established by the 1944 Chicago Convention, regulates international air transport and has its principal seat at Montreal — the same Convention that supplies the framework for the chapter on jurisdiction over aircraft and the airspace. The International Maritime Organization (IMO), established in 1948 (originally as IMCO) and based in London, regulates international shipping and has produced the SOLAS, MARPOL, STCW and other landmark conventions referenced in the chapter on the law of the sea. The International Telecommunication Union (ITU) regulates international telecommunications and the radio-frequency spectrum. The Universal Postal Union (UPU) co-ordinates international postal services. The World Meteorological Organization (WMO) co-ordinates weather, climate and water-related services. The International Bank for Reconstruction and Development (IBRD or World Bank), the International Development Association (IDA), the International Finance Corporation (IFC) and the International Monetary Fund (IMF) — together with the Multilateral Investment Guarantee Agency (MIGA) and the International Centre for Settlement of Investment Disputes (ICSID) — together constitute the World Bank Group emerging from the Bretton Woods Conference of 1944. The World Intellectual Property Organization (WIPO), based at Geneva, administers the multilateral conventions on patents, trademarks and copyright. The World Tourism Organization (UNWTO) joined the family in 2003.

The Bretton Woods institutions differ in one significant respect from the rest of the specialised-agency family: voting in the IBRD and the IMF is on a weighted basis according to the level of subscription, with very important decisions requiring 70 to 85 per cent of the votes. The plenary organ is the Board of Governors and the executive organ is the Executive Directors. This contrast with the one-State-one-vote rule of the General Assembly and of WHO, ILO and UNESCO has been a continuous source of debate over governance reform.

Specialised agencies and the request for advisory opinions

Article 96(2) of the Charter permits other organs of the UN and specialised agencies, where authorised by the General Assembly, to request advisory opinions of the International Court of Justice on legal questions arising within the scope of their activities. The boundary of "scope of activities" was tested in the Nuclear Weapons Advisory Opinion already noted, where the Court declined to answer the WHO's question because the question of the legality of nuclear weapons fell outside the WHO's mandate, even though the health effects of such weapons did not. The same year, in a parallel proceeding initiated by the General Assembly itself, the Court did answer a substantially similar question — see Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 226 — confirming that the boundary in Article 96(2) is jurisdictional and operates independently of the merits of the question posed.

Privileges and immunities of specialised agencies

The Convention on the Privileges and Immunities of the Specialised Agencies, adopted by the General Assembly on 21 November 1947, extends to the agencies and their officials the immunities necessary for the independent performance of their functions — immunity from legal process, inviolability of premises and archives, exemption from direct taxation and customs duties, and freedom of communication. The functional theory underlying these privileges, traced to the General Convention on the Privileges and Immunities of the United Nations of 13 February 1946, is that an international organisation requires immunity from local jurisdiction so that it can carry out its tasks beyond the censure of the courts of member States. The doctrine has been recognised in the practice of national courts and in the jurisprudence of the International Court — including in the celebrated Cumaraswamy Advisory Opinion (1999) ICJ Reports 62 on the immunities of UN special rapporteurs. The framework parallels but does not duplicate the diplomatic immunities considered in the chapter on diplomatic and consular privileges and immunities.

The standing of specialised-agency instruments in Indian courts

India follows the dualist tradition: an unenacted treaty does not, of its own force, bind individuals; an enabling statute is necessary. But the Supreme Court has consistently used international instruments as aids to construction of fundamental-rights guarantees. In Vishaka v. State of Rajasthan (1997) 6 SCC 241, the Court drew on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to lay down workplace harassment guidelines pending parliamentary action. In Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759, the Court reaffirmed the Vishaka approach and held that international instruments cast an obligation on the Indian State to gender-sensitise its laws. In People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301 (the telephone-tapping case), the Court read Article 17 of the International Covenant on Civil and Political Rights into Article 21. In NALSA v. Union of India (2014) 5 SCC 438, the Court relied on the Yogyakarta Principles in recognising the rights of transgender persons. In Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, the Court accepted that customary international law on the precautionary principle and the polluter-pays principle had become part of Indian law in the absence of conflict — an approach that picks up on the broader jurisprudence noted in the chapter on customary international law and general principles. These cases collectively confirm that the normative output of the specialised-agency system, although not by itself enforceable in Indian courts without an enabling statute, is a regular and authoritative aid to constitutional construction.

Conclusion

The specialised-agency system is the operational arm of the UN's economic, social, cultural and humanitarian mission. It rests on three constitutional decisions taken at San Francisco. First, that operational responsibility in technical fields would be delegated to autonomous organisations rather than centralised in the UN itself. Second, that the relationship between the UN and these autonomous organisations would be contractual rather than constitutional, with ECOSOC as the co-ordinating organ. Third, that the technical neutrality of these organisations would be safeguarded by privileges and immunities of an institutional character. The result is a flexible, decentralised system that has expanded organically through the addition of new agencies — UNWTO joined as recently as 2003 — and that has supplied the normative reference points for much of contemporary Indian constitutional law on social and economic rights.

Frequently asked questions

What makes an organisation a "specialised agency" within the meaning of Article 57?

Three conditions must be satisfied. The organisation must be established by intergovernmental agreement separate from the UN Charter. It must have wide international responsibilities in economic, social, cultural, educational, health or related fields. And it must have been brought into relationship with the UN through an Article 63 relationship agreement concluded by ECOSOC and approved by the General Assembly. UNICEF, although closely associated with the UN system, is not a specialised agency in this technical sense — it is a programme of the General Assembly established under Article 22 by Assembly resolution 57(I) of 1946.

Why is the ILO described as having a "tripartite" structure?

The ILO is unique among international organisations in giving votes not only to government representatives but also to representatives of employers and workers. Each member State sends to the annual International Labour Conference a delegation of four — two government delegates, one delegate of employers and one delegate of workers — each of whom votes independently and may dissent from the other delegates of the same State. The Governing Body that runs the organisation between Conferences is similarly composed of government, employer and worker representatives. The structure was created in 1919 to embed industrial-relations expertise in the standard-setting process and remains the central institutional feature of the ILO.

Has India ratified the eight core ILO Conventions?

India has ratified six of the eight core Conventions: Conventions 29 and 105 on forced labour, Conventions 100 and 111 on equal remuneration and discrimination in employment, and Conventions 138 and 182 on minimum age and the worst forms of child labour. India has not ratified Convention 87 on freedom of association and the right to organise, and Convention 98 on the right to organise and collective bargaining. The Indian Government has historically argued that ratification of those two Conventions would conflict with restrictions placed by domestic law on the right of government servants to form trade unions.

Are decisions of the World Health Organization binding on member States?

Some are. Articles 19 and 21 of the WHO Constitution permit the World Health Assembly to adopt conventions, agreements and regulations on matters within its competence. Regulations on quarantine procedures, on nomenclature of diseases, on standards for diagnostic procedures, on safety and purity of biological and pharmaceutical products and on advertising and labelling of such products bind member States that do not opt out within a stipulated period. The International Health Regulations 2005, adopted under Article 21, set obligations on detection, reporting and response to public health emergencies of international concern. Other resolutions of the Assembly are recommendatory.

Why did the WHO's request for an advisory opinion on the legality of nuclear weapons fail?

Article 96(2) of the Charter limits requests by specialised agencies for advisory opinions to legal questions arising within the scope of their activities. In the Advisory Opinion of 1996, the International Court held that, although the WHO had general competence to address the effects on health of any hazardous activity, the question whether the use of nuclear weapons was lawful did not arise within the scope of the WHO's activities. The competence of the WHO to address the health effects of nuclear weapons did not depend on the legality of the underlying acts. The General Assembly's parallel request, made under Article 96(1), was answered on the merits.

Is India bound by the 1951 Refugee Convention through its membership of UNHCR's Executive Committee?

No. India is a member of UNHCR's Executive Committee but is not a party to the 1951 Convention Relating to the Status of Refugees or to its 1967 Protocol. India therefore does not owe Convention obligations as a matter of treaty law. The Indian Supreme Court has, however, recognised the principle of non-refoulement — the prohibition on returning a person to a country where they face persecution — as flowing from the protection of life and personal liberty in Article 21 of the Constitution. The leading authority is NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742, the Chakma refugees case, where the Court directed the State to protect refugees of Chakma ethnicity from forcible eviction.