+ International

Organizations
+ Who are the Legal Persons?

 States.

 Entities legally Proximate to States.

 Entities recognized as belligerents.

 International Administration of Territories Prior to Independence.

 International Organizations

 Individuals.
+ International Organization as Subject of
International law
 No catch alldefinition.

 Art. 2(a) ILC Draft Articles on the Responsibility of International Organizations.

 “international organization” means an organization established by a treaty or other
instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States,
other entities;

 Pre supposes legal responsibility.

 Modus vivendi :Swiss Council – ILO .

 Reparations to injuries (1948) – international personality & capacity to operate on

the international plane.

 No mention in the UN Charter.

+ Reparation to Injuries, ICJ, 1949:
Advisory Opinion

 Has the United Nations, as an Organization, the capacity to bring an international

claim against the responsible de jure or de facto government with a view to
obtaining the reparation due in respect of the damage caused (a) to the United
Nations, (h) to the victims or persons entitled through him?

 "an international claim against the responsible de jure or de facto government"

 "capacity to bring an international claim"

+ Article 1
Freedom of action of the I.L.O.
Personality of the I.L.O.
Immunities of the I.L.O.
The Swiss Federal Council guarantees
to the International Labour
Organisation the independence and
freedom of action belonging to it as an
international institution.
Article 2
The Swiss Federal Council recognises
the international personality and legal
capacity in Switzerland of the
International Labour Organisation.
Article 3
The International Labour Organisation
enjoys the immunities known in
international law as diplomatic
immunities.
+ The UN Charter

 Art. 2(5). All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations is taking preventive or
enforcement action.(Relations)

 Article 10. The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers and functions of
any organs provided for in the present Charter, and, except as provided in Article
12, may make recommendations to the Members of the United Nations or to the
Security Council or to both on any such questions or matters (immunities)


Article 25. The Members of the United Nations agree to accept and carry out the
decisions of the Security Council in accordance with the present Charter (enforce
decision of the Security Council).
+
 Article 104

 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 (Legal capacity, immunities and privileges).

 Article 105 (Legal capacity, immunities and privileges).

 The Organization shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfilment of its purposes Representatives
of the Members of the United Nations and officials of the Organization shall
similarly enjoy such privileges and immunities as are necessary for the
independent exercise of their functions in connexion with the Organization.

 The General Assembly may make recommendations with a view to determining

the details of the application of paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this purpose.
+ Indica of International legal
Responsibility
 Two theories:–
 Recognition and consent of the the States.
 Objective legal personality independent of recognition by performing certain functions
on the international plane.

 Reparations to Injuries:–
 Permanent association of states, or other organizations, with lawful objects, equipped
with organs.
 Distinction, in terms of legal powers and purposes, between the organization and its
member states.
 Existence of legal powers exercisable on the international place and not solely within
the national systems of one or more states.

 Commonwealth of nations initially problem of legal entity but now has status as
legal responsibility on the international place but with no constitution.
+

 Commission like the river commission, arbitral tribunals - restricted capacities but
regarded as separate legal responsibility.

 Also to the subsidiary organizations of the UN- UNHCR, UNCTAD, etc.

 EU (?). Has considerable independence and powers to intervene but only into
affairs of the member states – federal arrangement.

 Organization established by Treaty – UN IDO (industrial development

organization) – G A resolution while OPEC and O S C E – government consensus.

 No legal and administrative responsibility to the municipal concept of operation.

+ PULP M I L L S O N THE RIVER URUGUAY:
ARGENTINA V. URUGUAY

• 2010
• Dispute between Argentinaand
Uruguay.
• River commission established by
both states.“Administrative
Commission of the River Uruguay”
(“CARU”, in its Spanish acronym)
• 1975 Statute is “to establish the
joint machinery necessary for the
optimum and rationalutilization”
• The river commission has a
permanent legal existence of its
own with legal personality

Argentina claims that that breach arises from “the authorization, construction and future commissioning
of two pulp mills on the River Uruguay”, with reference in particular “to the effects of such activities
on the quality of the waters of the River Uruguay and on the areas affected by the river”.
+
Objective Personality and Third States

 States when injured states in question though organization from through Treaty.

 Art. 2(a) ILC Draft Articles on the Responsibility of International Organizations.

 “international organization” means an organization established by a treaty or other
instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States,
other entities;

 Reparation for Injuries – objective legal personality.

+
Privileges and Immunities

 Minimum standard of freedom and legal security for their assets, HQ, and other
establishments and personnel.

 Diplomatic immunity(limited)/ territorial jurisdiction(?).

 Three concerns.
 Reciprocity.
 Nationality (relationship with the host organization).
 Diplomatic immunity on a very narrow basis.
 Diplomat from immunity from the receiving state and not own state.
+
Sources of Privileges and Immunities

 Treaty Law.

 National law.

 Customary International law.

+
Treaty Law

 Generally mentioned ordinarily in the general provisions stating that the Charter
and its personnel will be accorded immunity.

 Art. 105 of the UN Charter

 The Organization shall enjoy in the territory of each of its Members such privileges and
immunities as are necessary for the fulfilment of its purposes Representatives of
the Members of the United Nations and officials of the Organization shall similarly
enjoy such privileges and immunities as are necessary for the independent
exercise of their functions in connexion with the Organization.
 The General Assembly may make recommendations with a view to determining the
details of the application of paragraphs 1 and 2 of this Article or may propose conventions
to the Members of the United Nations for this purpose.

 Privileges and immunities of the United nations

 Crimes of universal jurisdiction/ grave crimes.

+
National Law

 Recognize relevant treaties and international agreements.

+
Customary International Law

 Immunity exists in custom – do not enter in to municipal law.

 Enable the organization to function- fulfil the object and purpose of the
organization, including immunity from legal processes, financial control, taxes and
duties.

 Occasionally recognized by non member states.

 ‘It would seem churlish for a state to house an organization but deprive it of thiese
attributes that would allow it to function as intended.’ ( International court on the
Privileges and immunities of the UN)

 Malaysian Court, comity did not require does not require it to acknowledge
immunity granted to an association of limited membership by the UK.

 Practice suggests that there is no customary rule in point.

+ League of Arab States v T M., Belgian Court of
Cassation, ILDC 42 (BE 2001), 12 March2001

 In League of Arab States, the Belgian Court of Cassation held that the League could
not rely on its immunity from jurisdiction before Belgian courts, as, absent
parliamentary approval, the Headquarters Agreement between Belgium and
the League could not have domestic legal consequences.

 The Court added that there was no general principle of public international law
in the sense of art. 38(1)(c) ICJ Statute to the effect of international
organizations enjoying immunity from jurisdiction.

 This decision is in line with decisions from other jurisdictions, which require a
treaty basis for international organization immunity to be successfully invoked.
+
Privileges and Immunities: Organization

 Through Treaty or general provision in the agreement.

 Reciprocated – WTO.

 If not in the general content then it needs to be given content.

 Immunity on functional basis with the extension of a particular protection

predicted on necessity.

 Immunity also vary in reference to the relationship – UN peacekeeping.

 National court response has varied.

+ Manderlier v Organisation des Nations Unies and Etat Belge (Ministre des Affaires
Etrangères), Tribunal Civil de Bruxelles, 11 May 1966, Journal des Tribunaux, 10 December
1966, No. 4553, 121

 The Court heard an appeal from a judgement of 11 May 1966 in which the Brussels
Court of First Instance had declared that an action brought by the appellant for
damage he claimed to have suffered " a s a result of abuses committed by the
United Nations troops in the Congo."
+ M v UN Tribunal Civil de Bruxelles, 11 May 1966
 This 1966 case constitutes one of the first cases in which UN immunity from
jurisdiction was challenged.

 Apart from the question whether the UN had legal personality under domestic law,
all other arguments raised by the plaintiff in this case—seeking to restrict UN
immunity from jurisdiction—are still debated nowadays before domestic
jurisdictions.

 The Brussels Civil Tribunal notably examined whether the UN’s immunity was
conditional upon the latter’s respect of art. VIII, Section 29 of the Convention on
Privileges and Immunities of the United Nations, whether the immunity could be
rejected in favour of a human rights argument based on the right of access to
justice, and whether it could only be invoked in relation to actions or
situations that were necessary for the UN to achieve its goals.

 Finally, it assessed the existence of a waiver in this particular case.

+ Immunity:Legality of Acts

In practice national courts are willing to deny immunity with respect to claims for
denial of justice before administrative tribunals.

Waite v. Kennedy (ECtHR, 1999).

The court held that Germany’s maintenance of the immunity of the European Space
Agency was consistent with its obligations under the ECHR Art. 6(1) regarding right
to fair trail.

However, immunity cannot be reflexive, and that access to German courts with
respect to actions against international organizations could only be refused to the
extent that the organization possessed an internal process of review that could
adequately protect art. 6(1) of the ECHR.
+
Inviolability of premises
 Mirrors diplomatic immunity.

 Generally agreed but sometimes breached. For example schools run by UNRA were damaged by the
Israeli Defence forces(2009).

 CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

 Article II PROPERTY, FUNDS AND ASSETS

 Section 2.
 The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy
immunity from every form of legal process except insofar as in any particular case it has expressly
waived its immunity. It is, however, understood that no waiver of immunity shall extend to any
measure of execution.

 Section 3.The premises

 Untied Nations shall be inviolable. The property and assets of the UnitedNations, wherever located
and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and
any other form of interference, whether by executive, administrative, judicial or legislative action.
+
Taxation

 Section 7.The United Nations, its assets, income and other property shall be :

 exempt from all direct taxes; understood, however, that the United Nations will not
claim exemption from taxes which are, in fact, no more than charges for public
utility services.

 (b) exempt from customs duties and prohibitions and restrictions on imports and
exports in respect of articles imported or exported by the United Nations for its
official use. It is understood, however, that articles imported under such exemption
will not be sold in the country into which they were imported except under
conditions agreed with the Government of that country;

 (c) exempt from customs duties and prohibitions and restrictions on imports and
exports in respect of its publications.
+
Privileges and Immunities: Personnel

 No general agreement on the scope of immunity in the absence of Treaty.

 Minimum immunity – immune from local jurisdiction.

 Immunity more expansive: I C C Immunities Agreement and the agreement

between the UN and Sierra Leone regarding the Special Court of Sierra Leone.
 Immunity to counsels and persons otherwise assisting.
 Witnesses and victims.

 Has the individual committed act in official capacity?

+ THE UNITED NATIONS (PRIVILEGES A N D IMMUNITIES) ACT, 1947

 Section 18. Officials of the United Nations shall:

(a) be immune from legal process in respect of words spoken or written and all acts

 performed by them in their official capacity;

 (b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations;

 (c) be immune from national service obligations;

 (d) be immune, together with their spouses and relatives dependent on them, from immigration
restrictions and alienregistration;

 (e) be accorded the same privileges in respect of exchange facilities as are accorded to the officials
of comparable ranks forming part of diplomatic missions to the Government concerned;

 (f) be given, together with their spouses and relatives dependent on them, the same repatriation
facilities in time of international crisis as diplomatic envoys;

 (g) have the right to import free of duty their furniture and effects at the time of first taking up their
post in the country in question.
+
Immunities: Attaching to State Representatives

 By agreement.

 More aligned to diplomatic immunity though they are accredited to the

organization and not to the host state.
+
PERFORMANCE OF ACTS IN THE LAW

 Have Legal powers associated with Statehood but also contingent on the legal
capacity of the organization.
 Treaty making powers.
 Capacity to espouse international claims.
 Standing before international tribunals.
 Capacity to own property.
 Responsibility.
+ Treaty Making Powers

 Capacity to enter into treaties initially doubted but now accepted.

(Reparation to injuries).

 Vienna Convention on the Law of Treaties between States ad international

Organizations- open to accession to organizations which have capacity to conclude
treaties.

 Existence of legal personality is not the same as power to make treaties.

 Competence of the organization as a whole further limits the interpretation.

 Organizations are bound by the organs, unlike states which have a legal
personality.

 Constituent instrument do not confer treaty making powers but interpretation is

through implied powers.
+

 CHAPTER XII: INTERNATIONAL TRUSTEESHIPSYSTEM

 Article 63 (Relationship agreements)

 The Economic and Social Council may enter into agreements with any of the agencies referred to in Article
57, defining the terms on which the agency concerned shall be brought into relationship with the United
Nations. Such agreements shall be subject to approval by the General Assembly.

 It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to
such agencies and through recommendations to the General Assembly and to the Members of the United
Nations.

 National armed forces at the disposal of the Security Council (art 43)
+ Capacity to Espouse Claims

 Reparation for Injuries.

 Capacity:
 Existence of a legal personality.
 Interpretation of the constituent instrument in the light of the functions of the particular
organization.

 Immunities not contingent on separate legal personality.

+
Standing Before International Tribunals

 If organization has a legal personality then the principle of locus standi.

 Important. Statute defining the the adjudicatory body – many times organizations
have no access.

 Most of the time - advisory jurisdiction.

 But organizations will have status if the tribunal is activated through the treaty
making or contracting capacity of the organization.
+
Property

 Own property under the municipal law of the State.

 Property of the organization under the aegis of the organization’s privileges and
immunities.
+
Responsibility

 If legal responsibility as that of State – in principle reasonable to impute

responsibility.

 Draft ILC on Privileges and Immunities

 Art. 3.Wrongful act by an organization.
 Art 10-13. Breach of International obligation.
 Art. 20-27. Precluding wrongfulness.
 Art 28-42. International responsibility.
+
Shared responsibility: States and Organizations

 Responsibility of States for Internationally Wrongful Acts 2001

 Art. 58. States may be held responsible for for aiding and abetting wrongful acts
by organizations.
 Art. 59. State has to exercise direction and control.
 Art. 60. acceptance of responsibly.

 UN and States. Peacekeeping operations, there is general practice that

financial responsibility is determined by agreements between contributing
governments ad theUN.

 UN in practice has accepted responsibility for its actions as an independent

body but in case of smaller organizations it is more about collective
responsibility.
+
Interpretation of the Constituent Instrument

 Identity of the Interpreter.

 Judicial and third party interpretation.

 Principles of interpretation.
 Practice within the organization.
+
Identity of the Interpreter

 Within international organization, each organ must interpret its own jurisdiction,
irrespective of whether a power is expressly conferred.

 Certain Expenses Case (1962)

 Article 17(2). The expenses of the Organization shall be borne by the Members as
apportioned by the General Assembly.

 Whether the expenditures authorized by the UN General Assembly for funding the
peace operations in the Middle East and the Congo were to be considered as valid
expenses of the UnitedNations.

 In the absence of further directions of the UN charter, each constituent organ of the
UN was entitled to determine its jurisdiction in the first case.
+
Certain Expenses Case (1962)
 Article 17(2). The expenses of the Organization shall be borne by the Members as
apportioned by the General Assembly.

 Questions of the UN deployment of Emergency Force in the Middle east (UNEF)

and the UN mission in Congo (UNOC) The UN Charter.

 Whether the expenditures authorized by the UN General Assembly for funding the
peace operations in the Middle East and the Congo were to be considered as valid
expenses of the UnitedNations.

 In the absence of further directions of the UN charter, each constituent organ of the
UN was entitled to determine its jurisdiction in the first case.

 When decision considered with propriety: presumptively intra vires.

 Eg. Interpretation to art 39 of the UN Charter- Threat to international peace and

security.
+
Judicial and Third Party Interpretation

 Generally instruments provide for resolution through a judicial organ.

 UN. International Court through its advisory jurisdiction.

 Certain Expenses Case.

 ‘when the organization takes action which warrants the assertion that it was appropriate
for the fulfilment of one of the states purposes of the UN, the presumption is that such an
action is not ultra vires to the organization.’

 Case criticized. Permits non obligatory recommendations to result in binding

financial obligations.

 Arbitral tribunal practice also exists which is established between the organization
and another party.
+
Principles of Interpretation

 Treaties of particular type.

 New subject of law with certain autonomy.

 Common goals

 Problems: interpretation to each organization within the purposes for which it

came into being.

 Reparation to Injuries Case. “ rights and duties of an entity such as the organization
must depend upon its purpose and functions as specified or implied in the
constituent document s and developed in practice. Interpretation is accomplished
with reference to what will enable the organization to achieve its goals effectively.’
+
Practice within the Organization

 Interpretation.
 Imperatives associated with the effective performance of its duties as well as its own
practice.

 Vienna Convention Law of Treaties

 Article 31(2)(b). General Rule of Interpretation

 Any instrument which was made by one or more parties in connexion with the conclusion
of the treaty and accepted by the other parties as an instrument related to the treaty.
(establishment of an instrument of interpretation).
+ Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970)
 On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was
terminated and that South Africa had no other right to administer the Territory.

 In 1969. the Security Council called upon South Africa to withdraw its administration from the
Territory, and on 30 January 1970 it declared that the continued presence of the South African
authorities in Namibia was illegal.

 In its Advisory Opinion of 21 June 1971, the Court found that the continued presence of South Africa in
Namibia was illegal and that South Africa was under an obligation to withdraw its administration
immediately.

 It found that States Members of the United Nations were under an obligation to recognize the
illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning
Namibia, and to refrain from any acts implying recognition of the legality of, or lending support or
assistance to, such presence and administration.

 S/RES interpretation of concurring vote.Abstention by permanent member amounted to

+
Implied Powers

 Reparation to Injuries
 Organization must be deemed to have those powers which, though not expressly
provided in the Charter, are conferred up it by necessary implication as being essential to
the performance itsduties.

 Power is wide but not unlimited.

 Nuclear weapons in Armed Conflict case, the Court denied W H O the capacity to address
the legality of the use of Nuclear weapons.

 Implied Powers.
 Essential and indispensable to the organization.
 Not contradict the express provisions of the constituent treaty.
 Not violate fundamental rules and principles of international law.
 Not change the distribution of powers between the organization and the organs.