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East Yangon University

Department of Law

Law-631(B)
Law of International Institutions
International Legal Personality

Name Thet Su San

Roll No LLM -05

Q. International Institutions have been regarded as having international personality?

Discuss.
Introduction
International personality means capacity to be bearer of rights and duties under
international law. Any entity which possess or international personality is an international
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person a subject of international law. International personality may be unlimited, in the case
with independent state or restricted, as in the case of dependent state of international
institutions.
International legal personality
In Article 104 states that "the Organization shall enjoy in the territory of each of its
members such legal capacity as may be necessary for the exercise of its functions and the
fulfilment of its purposes."
The provision on privileges and immunities in Article 105 was similarly restricted in
the form of a grant "in the territory of each of its Members." Similarly, Article 1, section 1 of
the General Convention on Privileges and Immunities of 1946 seems to be concerned
primarily with the position of the organization under municipal rather than international law.
The question therefore arose as to whether the organization only had personality under
municipal law, or also, to some degree, under international law; of the former interpretation.
The UN is concerned, was authoritatively given by the I.C.J. in the Advisory Opinion
on Reparations for Injuries suffered in the Service of the United Nations. The Court found it
necessary to affirm the international personality of the UN, before going on to consider
whether the organization had the capacity to bring an international claim. It stated that such
personality was "indispensable" to achieve the purposes and principles of the Charter, and
that the functions and rights of the organization "can only be explained on the basis of the
possession of a large measure of international personality."
The Court continued: "That is not the same thing as saying that it is a State, which it
certainly is not, or that its legal personality and rights and duties are the same as those of a
State. Still less is it the same thing as saying that it is a “super-State," whatever that
expression may means that it is a subject of international law and capable of possessing
international rights and duties, and that it has capacity to maintain its rights by bringing
international claims."
Moreover, the Court held that "fifty States, representing the vast majority of the
members of the international community, had the power, in conformity with international
law, to bring into being an entity possessing objective international personality, and not
merely personality recognized by them alone.
The indicia of personality which the Court noted were the obligations of members
towards the organization, the legal capacity and privileges provided for in Articles 104 and
105, and its treaty-making capacity. At this stage, however, a certain logical difficulty must
be noted, for whereas it is possible to refer to specific powers as indications of personality,
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the Court also went on to stress that other powers (such as the power to bring an international
claim) not specifically granted in the constituent treaty could be implied from the very fact of
personality. It stated that "the rights and duties of an entity such as the organization must
depend upon its purposes and functions as specified or implied in its constituent documents
and developed in practice.”
The danger is, therefore, that one might be tempted to deduce, say, a general treaty-
making power, from the very fact of personality, even though personality is itself deduced
from a specific treaty-making power:" in other words, one becomes involved in a circular
argument unless great care is taken to restrict implied powers to those which may reasonably
be deduced from the purposes and functions of the organisation in question. Therefore, the
test is a functional one; reference to the functions and powers of the organisation exercised on
the international plane, and not to the abstract and variable notion of personality, will alone
give guidance on what powers may properly be implied. There yet remains the question
whether one can imply only such powers as arise by necessary intendment from the
constitutional provisions or whether a more liberal approach is permissible so that powers
relating to the purposes and functions specified in the constitution can be implied. There
would seem little doubt that, in practice, organisations take the latter view and instances
abound of organisations acting in a manner which is neither specifically envisaged in their
constitutions nor necessary to give effect to them. Perhaps the prime example is the
development of peace-keeping by the General Assembly: significantly, in the Expense Case,
the IC.J. showed no inclination to ask whether the establishment of UNEF was necessary.
The attribution of implied powers as a result of a liberal interpretation of the purposes
and functions of an organization has certain con sequences which should be recognized. It
means that the organization is conceived as a dynamic institution, evolving to meet changing
needs and circumstances and, as time goes by, becoming further and further removed from its
treaty base. Moreover, since there is no judicial organ with power of review (otherwise than
by advisory opinions), the practice of the various organs is presumed to be intra vires and is,
in effect, an expression of the will of the majority: the dissenting minority may appeal to the
original meaning of their treaty commitments in vain. And if there is radical disagreement
over the purposes of the organization (as there is in the UN), the pursuit of a liberal approach
to those purposes by the majority will ultimately lead to a confrontation between majority and
minority which, ultimately, might leave the minority with no alternative but to withdraw from
the organization.
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However, to return to the more general question of personality, it seems that whilst
specific acknowledgment of the possession of international personality is extremely rare, it is
permissible to assume that most organizations created by a multilateral inter-governmental
agreement will, so far as they are endowed with functions on the international plane, possess
some measures of international personality in addition to the personality within the systems
of municipal law of the members which all the agreements on privileges and immunities (and
often the basic constitutions) provide for. Possession of such international personality will
normally involve, as a consequence, the attribution of power to make treaties, of privileges
and immunities, of power to contract and to undertake legal proceedings: it will also pose a
general problem of dissolution, for in the nature of things the personality of all such
organizations can be brought to an end. It is with the usual attributes of international
personality that the remaining sections of this first part are concerned: before proceeding to
these, however, mention must be made of certain special attributes of personality, or
manifestations of personality, attaching to the United Nations. These, as will be seen, are
consequent upon the very wide functions and powers of the United Nations, and it is by no
means certain that these same attributes could attach to other organizations of less
comprehensive aims.
The first, and most obvious, example is the power to maintain an international force.
Whatever character, the capacity to maintain an armed force under a United Nations
command, utilizing a United Nations flag to which (in so far as the force engages in
belligerency) the rules of war apply, is a striking attribute of international personality. As a
second example one might take the capacity to exercise jurisdiction over territory; this is
clearly anticipated in Article 81 of the Charter and was contemplated as a solution to the
Trieste and Jerusalem problems; it became an accomplished fact when the UN took over the
interim administration of Western New Guinea pending the formal transfer to Indonesia on
May 1, 1963. It is also implicit in the General Assembly's establishment of the U.N. Council
for Namibia (S.W. Africa) in resol. 2248 (S-V) of May 1967 that the Assembly has power to
administer territory.
A further example is the capacity for functional protection of its agents. This, it will
be recalled, was directly raised in the Reparations Case in that the question (to which the
Court gave an affirmative answer) was whether an international claim could be brought not
only in respect of the damage caused to the UN, but also in respect of the damage caused to
the victim or to persons entitled through him. The Court held that functional (as opposed to
diplomatic) protection was a power implicit in the purposes and functions of the Organization
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and that, even though the agent might possess the nationality of the defendant State, the rule
of nationality of claims could present no obstacle to this protection. It may well be that this
particular attribute of international personality is not confined to the UN and the specialised
agencies. Certainly instances in which the UN has exercised this right of functional
protection.
Conclusion
Jenks states that it would be destructive to regard that the existence of legal
personality, an international organization as being derive from the constitution and laws of an
individual member. Therefore, the concept of international personality appears as a firmly
established, albeit infinitely variable, it flows certain consequences, certain attributes, which
are fairly common to all international, inter-governmental organizations that it is to these that
we now turn.

References
D.W BOWETT/ The Law of International Institutions/ Third Edition/ London Stevens &
Sons/ Part Four/Pg 299-304