International legal personality

Introduction

An entity which has international legal personality can be a subject of international law and then
can be a regular member of international society. In international society, international legal
relations are generally formed by treaties. Thus, from the legal point of view, the treaty-making
power is one of the essential elements of international legal personality. In principle, only
sovereign States have been qualified as entities which have full international legal personality.
But as international law advances, respectively international organizations and individuals came
to have limited international legal personality when they fulfill some legal conditions. It is
generally accepted that whilst the treaty-making capacity varies from one organization to
another, international organizations have a treaty-making power to some extent pursuant to their
constituent instruments. Lord McNair, arguing for the treaty-making power of international
organizations, wrote that "if fully sovereign States possess a treaty-making power, when acting
alone, it is not surprising to find the same power attributed to an international organization which
they have created and the members of which are usually sovereign States." The question is to
what extent international organizations can have a treaty-making power. Whereas a State
possesses the totality of international rights and duties recognized by international law, the rights
and duties of an entity such as an international organization must depend upon its purposes and
functions as specified or implied in its constituent documents and developed in practice. Whilst
there is an assertion that the treaty-making capacity of international organizations is confined to
expressly stipulated powers in their constitutions, the generally agreed view is that international
organizations can have expressly conferred and implied treaty-making power as well. The 1986
Vienna Convention on the Law of Treaties between States and International Organizations or
between International Organizations seems to accommodate this view. Article 6 of the
Convention affirms that the treaty-making power of an international organization is determined
by "the rules of that organization". In the preamble of the Convention, it is stipulated more
specifically that the capacity of international organizations to conclude treaties are recognized to
the extent that it is "necessary for the exercise of their functions and the fulfillment of their
purposes" and the capacity "should be in accordance with their constituent instruments".

Definition

International legal personality refers to entities endowed with rights and obligations under public
international law. The term includes both human and non-human entities. Generally,
international legal entities are states, international organizations, nongovernmental organizations,
and to a limited extent private individuals and corporations within a state.

Purpose

The purpose of this thesis is to examine the legal personality of international organisations under
international law in order to determine its basis and extent in relation to both members and non-
members. In relation to members the analysis will focus on the incidence of personality in
international law. In relation to non-members the question will be if, and to what extent, non-
members must respect this personality. The alternative to such an obligation would be a
voluntary recognition by third States of the organisation in question.

The concept

‘International legal personality’ is a concept in lack of a fixed content. When an entity has international
legal personality, the implications will differ from entity to entity. As a result of this, one must go beyond
the mere definitions and instead look at the practical results of attributing international legal personality to
an entity such as an international organisation.

Even though there is no fixed content, it can be said that international legal personality is possessed by an
entity if it is capable of possessing international rights and duties and [has] the capacity to maintain its
rights by bringing international claims.

It has been asserted, however, that this definition of the International Court of Justice (ICJ) is a circular
one, because the question of what kind of entity is capable of possessing international rights and duties
would be the next one to answer. The statement by the Court can nevertheless be seen as a basic
definition of legal personality. As far as international organisations are concerned, the important aspect is
of course that they possess international rights and duties in their own name, as opposed to in the name of
the member States. When they are capable of this, they are said to possess international legal personality.
Each legal order, including the international one, determines its own legal persons and the extent of their
legal personality. As these matters will be discussed in this thesis, it is difficult at the present stage to give
a more precise definition of the concept.

Traditionally, States were seen as the only subjects of international law. As the Permanent Court of
International Justice (PCIJ) affirmed in the Lotus case in 1927; international law governs the relations
between independent States in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.

States are still the primary subjects of international law, but other subjects have joined them. International
organisations, as will be discussed in this thesis, are now by most commentators considered subjects of
international law. Multinational enterprises and individuals might be considered subjects under special
circumstances.

The notion of legal personality is by some authors separated from the question of subjects of law.17 For
example, the circle of subjects of international law is often considered larger than the number of entities
possessing international legal personality. Others, however, are of the opinion that the two notions
coincide in scope. For the purposes of the present study the important question is the one concerning legal
personality, and there is no need to enter into the discussion mentioned. In the following, a subject of
international law will therefore be considered an international legal person, and vice versa.

Objective legal personality

When the fact that international organisations can have a legal personality distinct from those of its
member States is established, the questions concerning the extent of such a personality arise. One of those
questions is that of the objectivity of the legal personality. When an organisation is said to possess
international legal personality, this could encompass two distinct notions. It could mean that the
organisation has independent powers in relation to its member States. This is important for example when
there is a conflict between a member State and the organisation. It could also mean, however, that it has
legal personality in relation to non-member States. This would be the so-called objective legal
personality. The term is confined to the situations in which the legal personality of an international
organisation is opposable to nonmember States without their express recognition. Some commentators do
not separate the notions and only speak of legal personality. Often they mean what I refer to as objective
legal personality. Whether there is a legitimate reason for operating with two separate notions might be
questioned.

However, there are many situations where the separate legal personality of the organisation from those of
its member States is of vital importance even though the organisation might not have the legal status as a
separate subject of law in relation to third States. There is a danger of getting too theoretically entangled
in these questions. The possession of objective legal personality means simply that non-member States
must respect the organisation. The problem could prove practical in many circumstances.

First of all, an organisation with objective legal personality could in general never be met by a State’s
denial of its existence in international law. As international organisations get more and more involved in
the life of the international community, they are also more frequently involved in conflicts and lawsuits.
The denial of the objective legal personality of an organisation could therefore prove to be an ‘easy way
out’ for non-member States not wanting to get involved. The possibility of an organisation possessing this
kind of personality was first expressed in the so-called

Reparations case before the ICJ.

The question of objectivity might lead the thought to doctrinal, theoretical discussions far from reality,
but the fact is that the question is not a purely theoretical one. A good example is of course the already
mentioned Reparations case, where the ICJ actually decided upon the capacity of the UN to bring a claim
against a non-member State. The type of claim that the UN wanted to present, namely a claim for
reparations for injuries suffered by agents of the organisation, could prove very important for
international organisations due to the steadily increasing activity of their agents. All types of claims
resulting from breaches of international legal obligations could prove practical, however. Another side of
the relationship between international organisations and third States is of course the claims brought by
third States. A practical question in that respect is the immunity of jurisdiction of the international
organisation. The third State might not accept this as being within the powers of the organisation in
relation to the third State. Other sides to the question are the treaty-making power of the organisation and
potential conflicts concerning the privileges and immunities of the organisation.

Sources

To determine the origin and extent of the legal personality of international organisations, an investigation
into all available sources will have to be made. Most important are State practice, general principles of
international law, and the opinions of the ICJ in matters related to these. Especially the already mentioned
Reparations case will be thoroughly analysed. The sources will of course have to be analysed with the
dynamic character of international law in mind. The international legal order is constantly changing as a
result of the changing interests of the international community, and of the members of this community.

International legal personality ILP

International law is based on rules made by states for states. States are sovereign and equal in
their relations and can thus voluntarily create or accept to abide by legally binding rules, usually
in the form of a treaty or convention. By signing and ratifying treaties, states willingly enter into
legal, contractual relationships with other state parties to a particular treaty, which observance is
normally controlled by the reciprocal effects of non-compliance. The capacity of states to enter
into such relationships with other states and to create legally binding rules for themselves, is a
result of states' international legal personality, a prerogative attributed to all sovereign states.

In the beginning of the 18th century sovereign states alone were considered to have international
legal personality and therefore the only entities with capacity to have rights and obligations
under international law. As such, states were (and still are to a large extent) the omnipotent
creators of international law which in turn primarily concerned states and their conduct
internationally. Individuals, International Organizations (IOs) and other non-state actors (NSAs)
were of no concern to international law as they were devoid of international legal personality,
which is a prerequisite for the capacity to have international rights and/or obligations.

With globalization however, international law and international relations expanded rapidly with
increasing complexities: new technology made the world smaller and more interconnected, new
global threats emerged that could not be fought unless with state cooperation, new players
emerged at the international forum such as various IOs and NSAs. International law was greatly
influenced by this development and shifts in international relations whereby states were no
longer the only players on the international arena and thus not the only subjects of international
law any longer.

In a landmark case of 1949 the International Court of Justice (ICJ) found that IOs, in that case
the United Nations (UN), could indeed have international legal personality and thus have rights
and obligations under international law. The ICJ claimed that international legal personality of
the UN was derived from the UN Charter and the organization's given mandate and functions,
for without it the UN could not perform those tasks it was required to by the UN Charter.

After World War II the Security Council established two international ad hoc tribunals in an
attempt to prosecute for war crimes that were committed during the war. The Nurnberg and
Tokyo tribunals confirmed that under certain circumstances, individuals can have legal
personality under international law and have capacity to have rights and obligations directly
under international law, in particular Humanitarian Law (HL) and Human Rights Law (HRL).
For the first time in the history of international law, individuals were held accountable for
international crimes such as war crimes and crimes against humanity prohibited under customary
international law as well as several international conventions.

International liability of individuals has subsequently been confirmed on numerous accounts by

various courts such as the United Nations International Criminal Tribunal for the former
Yugoslavia and Rwanda, especially established by the UN Security Council to prosecute persons
responsible for war crimes, crimes against humanity and genocide under international law.

The procedure for holding individuals internationally responsible for international crimes was
finally made permanent with the establishment of the International Criminal Court (ICC),
governed by the Rome Statute which entered into force in 2002. The Courts mandate is to
prosecute individuals under international law for crimes such as genocide, war crimes and crimes
against humanity. Currently there are total of 121 state parties to the Rome Statute.

How about individuals' rights under international law? Can individuals, John and Jane, have
rights under international law and moreover seek justice in case their rights are violated?

The treatment of individuals on foreign territory has been regulated by international customary
law as well as conventions for decades. Such rules protect states' own citizens when they're on
foreign territory, against illegal actions of the foreign state. Thus for example if a citizen from
country A would live and do business in the territory of state B and state B would illegally
confiscate the assets and business of country A citizen, state A can hold state B responsible
under international law before the ICJ (see Diallo case). Whether or not state A drags state B
before the ICJ (or other regional or international court) is entirely up to state A without any
regard to the wishes of the citizen.
This stems from state sovereignty and the gradually diminishing principle of non-interference in
a state's internal affairs. Few decades ago, how a government would treat its own citizens, was an
entirely “domestic affair” or an “internal matter” which was by no means of any concern to other
sovereign states, left alone the rest of the international community. For decades states'
sovereignty veil seemed to be impenetrable until international and regional human rights law
acquired global acceptance with unprecedented speed.

The emergence of international human rights law however altered the sanctity of state
sovereignty and imposed certain international obligations upon states to respect, protect and
fulfil the human rights of all individuals within their territory. International human rights law
moreover established “soft” (complaint procedure under the International Covenant on Civil and
Political Rights) enforcement mechanisms and regional human rights law went a step further,
establishing a hard enforcement mechanism of a human rights court with the capacity to give
legally binding judgements on whether or not a state has violated the European Human Rights
Convention.

Domestic and international legal personality

It is the international legal personality of organisations that will be examined. The question of
legal personality arises in different legal orders as a result of the fact that the“international
organisations generally perform legal activities in various legal orders” The international legal
personality must therefore not be confused with the domestic legal personality. The latter is a
personality effective in the domestic legal system of a specific State. Each State will therefore
have its own rules and methods to determine which entities have legal personality in its domestic
legal system. Although the methodsmay vary, most national courts will use their rules of conflict
of laws. According to most legal systems, the legal status and capacities of an entity are
determined by its ‘personal’ law.19 The ‘personal’ law of international organisations is
international law, and recognition of the domestic legal personality of the organisation would
therefore follow from the existence of legal personality on the international plane. In these cases,
the domestic legal personality results directly from the international legal personality. As
mentioned above, each legal system determines for itself which entities are its subjects. Every
State does this through its legislature or other organ with the necessary powers. International law
is of course an independent legal system that determines its own subjects. The problem,
however, lies in the special characteristics of this legal order. There is no legislative branch
empowered to make such decisions, nor is there any general treaty dealing with the question.

This leaves us with customary law and general principles as being the sources for an
investigation into the subjects of international law. This does not mean that how domestic courts
deal with international organisations is irrelevant. Their attitudes towards international
organisations can be of great importance in the discussion of international legal personality.
What the distinction does mean, however, is that the question of international legal personality as
opposed to the domestic counterpart must be decided based on international law.

The importance of possessing international legal personality

It is legitimate to ask whether a separate international legal personality for international

organisations is really necessary. The legal personality that the international organisations can
possess makes them subjects of international law and thus capable of enforcing rights and duties
upon the international plane as distinct from operating merely within the confines of separate
municipal jurisdictions.

This states that international legal personality is necessary to operate on the international plane.
However, all the member States of any given organisation would possess international legal
personality. Why, then, is a separate legal personality for the organisation necessary? The reason
is that if this concept was not accepted, the individual legal personalities of the members of the
organisation would be the ones through which the organisation would operate on the
international field. Such a solution could give rise to serious problems.

One example is the question of responsibility as far as an organisation is concerned. If the

organisation did not have its own legal personality on the international plane, the potential
responsibility would be a collective one shared by all the member States. This could result in
practical problems and conflicts between member States. Also the opposite situation, namely that
the organisation wished to bring an international claim against another international legal person
claiming responsibility, could create problems because all the member States would have to
agree. This could sometimes give rise to political problems within the separate member States,
and also between particular States and third States.

Another example is the possibility of an international organisation to appear in legal proceedings

in its own right. Again conflicts between member States, perhaps relating to issues irrelevant to
the functioning of the organisation, could impede the work of the organisation. Problems could
also arise concerning conflicts between the organization and a member State. It is much more
practical that the organisation itself can handle these situations without all the other member
States being obliged to both getting involved and also jeopardising their relations with the
member State in question. A separate legal personality of international organisations has
therefore emerged as a practical concept giving the organisations the capacity to operate in their
own right, both in legal proceedings and as entities possessing their own rights and obligations.
 Conclusion

In Opinions 1/75 and 1/78, the express exclusive Community treaty-making power was
recognized by the ECJ. And in the well-known line of cases commencing with the ERTA case,
the ECJ consecrated the doctrine of parallelism whereby the treaty-making power would be
coextensive with the exercise of internal competence in any given field even without an explicit
treaty-making authority in the EC Treaty. The ERTA judgment confirmed that the Community
may, simply by using an internal competence, as it were, by adopting a common rule, deprive the
Member States of external powers, because, according to the ECJ, once an internal power to
adopt a common rule has been used, the respective external power stays exclusively with the
Community, at least as long as the internal order requires a unitary use of external powers
towards third States. Furthermore, in Opinion 1/76, the ECJ decided that parallelism could be in
operation, when necessary, in advance of internal exercise of the Community competence by
virtue of the mere creation and existence of the internal competence.

The principle of parallelism appears to be in accordance with the general principles of

international law. On the basis of an implied power theory in international law, an international
organizations "must be deemed to have those powers which though not expressly provided ....
are conferred upon it by necessary implication as being essential to the performance of its
duties." In this regard, the ECJ's decisions which recognized the implied power of the
Community are consistent with the theory of international law.

This view of the ECJ is due to the fact that, where a common policy is necessary, the Community
must be an actor representing the Community, because if each Member State negotiates and
concludes an agreement implementing a common policy, it will cause divergence between the
Member States. Form the Van Gend en Loos case, the rationale approving the implied power
could be inferred, the ECJ stated that:
The objective of the EEC Treaty implies that this Treaty is more than an agreement which
merely creates mutual obligations between the contracting states. It is also confirmed more
specifically by the establishment of institutions endowed with sovereign rights, the exercise of
which affects Member States and also their citizens.the Community constitutes a new legal order
of international law for the benefit of which the States have limited their sovereign rights, albeit
within limited fields....

This was more firmly confirmed in Costa v. ENEL as follows:

By contrasting a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity of representation on the international plane and more
particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from
the States to the Community, the Member States have limited their sovereign rights, albeit within
limited fields.Even though the Community's exclusive external power is recognized by the ECJ,
some questions still remain to be answered. First, if a multilateral convention which deals with
matters falling within the competence of the Community does not allow international
organizations to participate in it, should the Member States participate in it collectively?
Secondly, if, although it does not prevent the Community's participation, a multilateral
convention requires the joint participation of the Community and its Member States, how will
the Community cope with this situation? Thirdly, if, because the vital interests of the Member
States are concerned, the Member States demand to participate in a convention jointly with the
Community, how will the Community solve this problem?

Partly due to these problems, the Community and the Member States developed the form of
mixed agreements. Mixity has been regarded as 'a political device whereby the Member States
might seek to avoid the consequence of parallelism, preemption and expansion'. In practice, for
third countries the mixed agreement formula provides more reliability, because the third States
can be sure that they have contracted with the right partner in any event. But as regards the first
question, mixed agreements still do not provide any solution. And as regards the other two
questions also, mixed agreements give very limited solution and sometimes, on the contrary they
bring about other more complicated problems such as the division of liability between the
Community and its Member States and the initiative struggle between the Community and the
Member States in the negotiation of mixed agreements.