Gudbrandsen - Legal Personality of International
They coordinate
Organizations
I. Intro
- examine the legal personality of int’l orgs under int’l law.
- determine basis and extent of legal personality in relation to
members/non-members
Problem = legal order created by states, under the principle of
sovereignty; no state can be subject to the will of another state
Despite this, the int’l community has allowed limitations to the
freedom of states (b/c of new challenges of modern times and
development in the outlook on certain issues)
Legal personality is important because states are the primary
subjects of international law.
There can be no organization without 2 or more states, but once
created, it lives its own life.
Question = when does an organization possess legal personality?
GR: organization cannot impose obligations on a state;
constituent treaty of organization not binding on non-member
states (cf. VCLT)
A special treaty entered into by states becoming members of an
organization can be seen as a type of constitution. VCLTSIO
defines rules of the organization as the constituent instruments,
decisions, and resolutions adopted in accordance with them and
established practice of the organization.
Such rules will confirm that the treaty is a living instrument
(interpretation = disappearance of the contractual element,
appearance of the institutional element). But treaties in general
do not create rights and duties for Third States.
So are there rules that can govern every international
organization?
Perhaps, as organizations have several characteristics in common
that justifies finding general rules.
Traditionally, only States were considered subjects of
international law. The principle applicable here is sovereignty of
each of the states. Legal system based on a limited number of
rules necessary to ensure peaceful relations (law of coexistence).
Due to new challenges, international organizations were created
to achieve certain goals thru cooperation.
International Organizations comprises a wide variety of entities
(e.g. NGOs, multinational enterprises based in the domestic legal
system of a state) but generally refer to intergovernmental
organizations.
Their membership is essentially composed of by states
(sometimes other organizations). Perhaps it is impossible to
define an international organization.
Origins:
- appearance on int’l conferences and congresses during the 19 th
century
- political, economic, diplomatic or technical nature, often
resulting in multilateral treaties being adopted
- conferences developed into organizations of two types:
> river commissions
- set up to administer free navigation of rivers
> Universal Telegraphic Union & Universal Postal Union
- performed administrative purposes
- lead to the creation of the League of Nations (a political
organization) in 1919
- 20th century = fall of the League, rise of the United Nations;
creation of other organizations (springing out of the common
interests of the int’l community)
- Int’l organizations are the incarnation of State co-operation, and
they adapt to the challenges faced by States at any given time
- proportion of organizations to states is 3:1!
- Int’l Orgs play a vital role in the community.
cooperation in humanitarian aid, human rights, environmental
protection, etc. W/o them, it would be difficult to meet these
challenges.
- Technical Orgs (INTELSAT, Int’l Postal Union, Int’l Maritime Org,
etc.) play an important role.
- Int’l Orgs may also decrease the economic gap b/w countries of
the world (IMF, Int’l Bank for Reconstruction and Dev’t)
- They also contribute to the codification of international law thru
treaties.
United Nations = universal scale; ILC -> VCLT, UNCLOS
Council of Europe = regional scale; CPHRFF
Int’l legal personality does not have a fixed content, so we must
go beyond mere definitions and look at the results of attributing
the same to an int’l org.
It may be possessed if the entity is capable of possessing int’l
rights and duties and has the capacity to maintain its rights by
bringing int’l claims.
As far as int’l orgs are concerned, as long as they possess int’l
rights and duties in their own name, they possess int’l legal
personality
While states are still the primary subjects of int’l law, int’l orgs
may also be considered subjects of int’l law. And multinational
enterprises and individuals might be considered subjects under
special circumstances.
For some, the circle of subjects of int’l law is larger than the
number of entities possessing legal personality. Others say that
they are exactly the same.
Int’l legal personality should not be confused w/ domestic legal
personality.
In int’l orgs, the personal law is actually int’l law. So in this case,
domestic legal personality results from int’l legal personality.
However, in this legal order, there is no legislative branch
empowered to determine which entities are its subjects. Thus we
are left with CIL and general principles.
Is a separate int’l legal personality for int’l orgs necessary?
Perhaps, as it makes them subjects of int’l law, capable of
enforcing rights and duties upon the int’l plane. If such a concept
was not accepted, it would be the individual legal personalities of
the member states which would operate, giving rise to problems
For example, if the int’l org did not have a legal personality, the
responsibility would be a collective one shared by all member
states. (imagine a org bringing suit against another org! or a
conflict b/w member states, or between the org and a member
state.)
Objective legal personality, 2 notions:
- has independent powers in relation to its member
states.
- has legal personality in relation to non-member states
an organization w/ objective legal personality could never be met
by a state’s denial of its existence in int’l law
Sources = state practice, general principles of int’l law, opinions
of the ICJ
II. CRITERIA FOR INT’L LEGAL CAPACITY
How and when can an int’ org possess int’l legal capacity
(concerning member states)?
States acquire legal personality just be being states (fulfilling the
requirements of being a state). But since int’l orgs are created by
states, their status can be seem to be totally dependent on the
intention of the states creating them. Yet the increasing
importance of these orgs can favor a view of being independent
of states.
REPARATIONS CASE
Advisory opinion of the ICJ n 1949. Concerned the capacity of the
UN to present a claim for reparations for injuries suffered by its
agents while in service (terrorists murdered the Swedsh count
Bernadotte, UN mediator in Palestine, others accompanying him
in 1948).
ICJ began by recognizing the capacity of a state to present the
claim, being a direct subject of int’l law. Considering the potential
capacity of the UN, it frames the issue as a question of
international personality (if the Org is recognized as having legal
personality, it is an entity capable of availing itself of obligations
incumbent upon its members)
Examination of the UN Charter, no provision therein which
provides for int’l personality. Next, consider what characteristics
it intended to give to the Org (going beyond the words of the
Charter), thus looking for an implied provision.
The ICJ then states that to achieve the ends (purposes and
principles) of the UN, the attribution of int’l personality is
indispensable. The court uses examples (organs of the UN, special
tasks, position of member states in relation to the org) to prove
the independence of the UN, as it occupies a detached position
from its members in certain respects (e.g. member is in breach so
UN reminds it of consequences). The UN is also given domestic
legal personality in all member states and enjoys privileges and
immunities in their territories.
ICJ notes the practice of the UN of concluding treaties with other
states as further proof of its independent character. It held that
the UN was intended to exercise and enjoy functions and rights
which can only explained on the basis of the possession of int’l
personality and the capacity to operate upon the int’l plane. Thus,
the ICJ found that the UN is an int’l person, a subject of int’l law
and capable of possessing int’l rights and duties, and it has the
capacity to maintain its rights by bringing int’l claims.
The question now arises whether the same can be said of all int’l
organizations, or just the UN?
One may think that because of the special character of the UN, the
arguments used by the ICJ may not be used for other orgs. Yet
they may actually support the validity of int’l legal personality of
other orgs (possibility of different types of subjects, importance
of the needs of the int’l community).
Subjects of law in any legal system are not necessarily identical in
their nature or extent of rights; nature depends upon the needs of
the community.
Indispensability – the constituent document intertwined with
effectiveness; independence/detachment from member states
(set of organs, special tasks, defined position of member states in
relation to org)
There is also the need for subsequent practice of functions and
rights as proof as confirmation of the existence of a separate legal
personality in relation to member states and an indication of
legal personality in relation to Third States.
Two approaches to the question of int’l legal personality:
1. subjective theory
a. the will of the member states is the vital
element, whether present in the constitution
or merely implied
b. identify certain rights, duties and powers
expressly conferred upon the organization and
derive from these the int’l personality of the
org
c. one must seek the intention behind the
constituent treaty in every case to ascertain
whether or not legal personality has been
intended for the org. what is needed is not the
“actual will”, but a “hypothetical will
2. objective theory
a. will of the members states is not necessary for
the existence of legal personality
b. the org must simply meet certain criteria
which constitute proof of facts that create an
int’l org with legal personality (similar to
statehood)
Comparison of the two theories:
Difference lies in the explanation of legal personality. Objective
finds its origin in general int’l law, Subjective link it to the will of
founding states. But both the facts (objective) and the intentions
(subjective) from which int’l personality is deduced may be found
in the constituent document. They are more closely intertwined
than initially thought. It is hard to keep the two theories separate,
as they both were developed from the Reparations case.
Decisive Criteria:
Before anything, a line must be drawn b/w those orgs that have
provisions giving them int’l legal personality and those that do
not.
If such a provision exists, it is sufficient to give the organization
personality in relation to member states
For orgs w/o an express provision (the most common situation),
the constituent document plays an important role as the source
from which the characteristics intended can be drawn.
Two fundamental criteria:
- INDISPENSABILITY of legal personality
- INTENTION of the position as a new subject of int’l law
Indispensability leads to a new question, why is it indispensable?
Answer is in the character of:
INDEPENDENCE.
- Establishing of organs = more or less permanent
- Performance of special tasks and purposes = legal powers the
org is given are different from that of member states; distinct
rights, duties and liabilities
- Defined position of the member states = org has a will of its
own; not subordinated to any other authority
INTENTION
Behind the legal personality of the UN is mentioned as proof of its
independent character (b/c founders gave it such, it is intended).
Intention is perhaps a name put on the fact that the entity is
created w/ powers, functions, and organs of its on. The only
intention which matters must be the original decision of the
founding states to cooperate in an institutionalized form.
III. Legal consequences of int’l legal personality
Does possession by itself entail consequences?
Difference b/w possessing int’l legal personality and special
powers of the org.
States’ legal powers (territorial sovereignty, jurisdiction over its
nationals, treaty making capacity, capacity to institute judicial
proceedings, engage in diplomatic/consular relations) are
inherent and the same no matter its size/power
Int’l orgs only possess a functional legal personality, suitable to
their individual needs and limited to fulfilling the purposes of the
org thru certain functions. The purposes already delimit the
scope of action the org can take. Thus, it’s legal personality is
limited compared to that of states. Certain principles cannot
apply to int’l orgs.
Powers derived from legal personality -> Functions of the org:
- Types of acts the org is entitled to perform
 - Purposes of the org (limits the types of acts)
e.g. in the Reparations case, ICJ equated possession of legal
personality with the capacity to present claims. But the next
question is which rights the UN has the capacity to maintain. This
will of course depend on the purpose of the org.
Inherent capacities = direct consequence of int’l legal
personality? Some say some capacities are inherent, others say
that all are inherent. Still others say that there are none.
ICJ said that the right to bring claims is intrinsic to legal
personality, but legal personality does not equate an org to a
state.
The org must have autonomous will to have int’l legal
personality, expressed or manifested by the org – the
acts/functions to achieve the established purpose
- treaty making capacity
- privileges/immunities of the org & agents
- capacity to present claims, etc.
it bears repeating that a certain act will always be limited by the
purposes of the organization. Even if certain capacities may be
considered “inherent”, the same must be analyzed to determine if
it falls w/in the purposes of the org.
Next question is HOW to delimit the powers in accordance w/ the
purposes. The ICJ stated that the rights and duties of the org
depends on the purposes and functions specified/implied in the
constituent document and developed in practice
Specified powers/delegated powers appear in the constituent
document. Implied powers have not been attributed specifically,
but nevertheless may be performed. The ICJ held that even
though the capacity to bring the claim had not been expressly
given to the UN, it was impliedly conferred as it was essential to
the performance of its duties.
The capacity arose by necessary intendment out of the Charter.
The organization has capacity to bring claims when necessitated
by the discharge of its functions (not all types of claims). What
matters is the needs and nature of the org at any given time.
There is a presumption that the action was appropriate for the
fulfillment of one of the purposes, not ultra vires.
The powers of the org are strictly limited to whatever is
necessary to perform the functions which its charter has defined.
There are clearly no powers common to all organizations, as their
purposes are all different. The determination of powers will thus
depend on the circumstances of each case.
IV. Objectivity of international legal personality
W/N a non-member state is obliged to respect an int’l org
without recognizing it.
- if the organization were to influence another subject of
law, it is clear that something other than subjective will
must be demanded. Otherwise, sovereignty and the
non-consent of third states would not be recognized
(the will of a group of states cannot be imposed on
another)
- If there is an express provision on the constituent
document on the relation to third states, it could have
some effect.
In the Reparations case, the ICJ asserted that 50 states had the
power to bring into being an entity possessing objective int’l
personality, not merely personality recognized by them alone.
- org represents a vast majority of the int’l community
(universal) e.g. IMF, World Bank
- this one criterion is interesting, as it appears that the
majority may decide over the minority. However, the
argument that a Third State is not bound by a treaty
entered into by other states is valid no matter how
many states have entered into the treaty. In
Reparations, the ICJ held that it was an exception to the
principle of sovereignty. This is problematic, as it seems
to allow all orgs to have personality.
- Another interpretation would be to look into the factors
not mentioned by the ICJ, such as powers and aims of
the organization. But considering it was the first case of
its kind, it is not wrong to think that the ICJ only meant
what it said.
There has been no practice of recognizing specifically
international orgs, unlike states. But they do have relations w/
various states (e.g. European Community). States may also refuse
to recognize int’l orgs by refusing to enter into legal relations w/
them. But the vast majority and frequent relations show that the
orgs are recognized as legal persons by states.
When an int’l org is in court in a Third State, the question of
objective int’l personality w/o recognition is presented. Question
is, w/n the courts of the Third States have recognized the int’l
personality:
 NY Courts = International Tin Council v. Amalgamet Inc
o US was not a member of the ITC and didn’t
expressly recognize it. The Court recognized
the international legal personality of the ITC
automatically, it didn’t even discuss it.
 UK Courts = Arab Monetary Fund v. Hashim & others
o UK did not acknowledge the creation of
subjects of law w/n the international legal
order. Only recognize entities created by
specific statutory provision, by an Order in
Council, or by law of a sovereign state
recognized by the UK. The org was created not
by treaty, but by one or more of the member
states.
Fundamental principle is that the question of int’l personality of
orgs and objectivity of must be decided on by int’l law alone.
The ILC was created by a resolution of the UN GA on 21 Nov
1947, with the task of “progressive dev’t of int’l law and its
codification”. Work is essentially divided into two parts:
1. status, privileges and immunities of reps of states to
int’l orgs
a. resulted in the VC on Representation of States
in their relations w/ int’l orgs of a universal
character
2. status, privileges and immunities of the actual orgs and
their agents
a. various reports from the Special Rapporteur of
the ILC.
Ended up with the ff article, supported by the ILC:
1. International organizations shall enjoy legal
personality under int’l law of their member States.
They shall have the capacity to the extent
compatible with the instrument establishing them,
to:
a. Contract;
b. Acquire and dispose of movable and
immovable property; and
c. Institute legal proceedings
2. The capacity of an int’l org to conclude treaties is
governed by the relevant rules of that org
Most int’l orgs come into being by way of a multilateral treaty,
but in relation to Third States comes into legal existence only
when it has show the independent character necessary.