Palacky University Olomouc
Faculty of Law
Law of International
Organisations
- Legal character and personality Lecture 3 (14. March 2011)
Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/15.0288
What is the legal position of IOs under
international law (compared to other IL
subjects)?
– Subjects of IL
– International Legal Personality
• Definition/criteria
• Aspects
– States
– International Organisations
• Legal personality under municipal law
• International legal personality
• The extent of legal personality of IOs
The starting point for today...
• International Law - definition:
„The body of law that governs the legal
relations between or among states or
nations.“
• International Law = state centric
system (post-Westphalian concept of
IL)
• Other subjects of IL??
Other subjects of IL?
• Reparations for Injuries Suffered in the Service of the United
Nations (1949) ICJ Rep. 174
• Facts of the case:
– swedish diplomat Folke Bernadotte
– mediator in the Arab-Israeli conflict of 1947-1948
– assassinated in Jerusalem in 1948 by terrorists
• Question to be answered by the court:
'In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a State, 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, (b) to the victim or to persons
entitled through him?'
Other subjects of IL?
• Reparations for Injuries (ICJ 1949, p. 178):
„The subjects of law in any legal system are not
necessarily identical in their nature or in the extent
of their rights, and their nature depends upon the
needs of the community.“
classification of
subjects
- term „subject of IL“
- scope of its rights and duties
Reparations for Injuries Suffered in the Service
of the United Nations (1949) ICJ Rep. 174
“Throughout its history, the
development of international law...and
the progressive increase in the
collective activities of States has
already given rise to instances of action
upon the international plane by certain
entities which are not States”
international organisations
Other subjects of IL?
• Are (should be) the following actors
subjects of IL? Discuss!
– Australia, Brazil, India, …
– United Nations
– Al Khaida, BP, Transparency
International, …
– Mr. Bankovic
– Coll. Muammar Gaddafi
Subjects of IL
subjects with limited
legal personality
States
other subjects
International
Governmental
Organisations
- Holy See
- ICRC
- Sovereign Military
Order of Malta
International non-govern.org.
individuals (???)
(NGOs: e.g. WWF, Greenpeace)
No legal personality under PIL
de facto
regimes
International Legal Personality
• subject of IL (having IL personality) =
Entity deemed capable of independently
bearing rights and obligations under
international law
IO = subject of IL, if able to bear
independently rights and obligations under
international law
International Organisations – Basic definition
• International organisations are:
– Based on an agreement concluded
between two or more States (or other
subjects of international law)
– Capable of internal decision-making and
external relations
• definition aspects in detail, i.e. IO =
– a permanent association of States,
– pursuing objectives compatible with PIL,
– equipped with own organs,
– possesing ability to create and realize its own will
different from its member states in terms of legal
powers, goals and purposes, etc. („autonomy of
the IO“)
– capacity to exercise legal powers at the
international level
AGREEMENT ON THE PRIVILEGES AND IMMUNITIES OF THE
INTERNATIONAL CRIMINAL COURT
Article 2
Legal status and juridical personality of the Court
The Court shall have international legal personality and
shall also have such legal capacity as may be
necessary for the exercise of its functions and the
fulfilment of its purposes. It shall, in particular, have
the capacity to contract, to acquire and to dispose of
immovable and movable property and to participate
in legal proceedings.
International legal personality of IO – the
two theories
• The „will (or subjective) theory“
– the will of the founders of the IO as the decisive element for
the organization´s legal personality
• (+) IL as system based on freely expressed consent of States
• (-) only few treaties constituing IOs contain explicit provisions
on international legal personality can be found (cf. UN)
• Recognition of int. legal personality by third states?
• The „objective theory“
– As soon as IO fulfills establishment criteria (as it exists as
matter of law), it is to be considered as having legal
personality
• (-) what are the establishment criteria under IL? Seyersted:
own will of the IO
• Practice: presumptive personality
– Klabbers: „As soon as an organization performs acts which
can only be explained on the basis of international legal
personality, such organization will be pressumed to be in
possession of international legal personality.“
Legal personality of IOs and its extent
• variety of subjects of IL = no standard set of
rights and obligations under IL
– States as primary and original subjects: original,
full and general personality
– other subjects: derivative, partial and particular
• indicators (Jan Klabbers):
– jus tractatuum (treaty making capacity)
– jus missionis (right to send and receive legations)
– right to bring and receive claims
Jus tractatuum
• treaty-making capacity of IO
• generaly accepted
• Vienna Convention on the Law of Treaties
concluded with or between International
Organizations (1986)
– „international organizations possess the capacity
to conclude treaties which is necessary for the
exercise of their functions and the fulfillment of
their purposes“
– Art. 6: „...the capacity of international
organizations to conclude treaties is governed by
the rules of that organization“
Right to bring and receive claims
Reparations for Injuries (ICJ 1949, p. 179):
„ … the Court has come to the conclusion
that the Organization is an international
person. ... What it does mean is 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.“
Legal personality of the UN
Reparations for Injuries (ICJ 1949, p. 178):
“In the opinion of the Court the Organisation was
intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which
can only be explained on the basis of possession of
a large measure of international personality and the
capacity to operate upon an international plane. It is
at present the supreme type of international
organisation and it could not carry out the intentions
of its founders if it was devoid of international
personality”
Does the UN have capacity to bring a
claim in reparation against a state which
is not a member of the UN?
Reparations for Injuries (ICJ 1949, p. 185):
“The 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
recognised by them alone, together with capacity to
bring international claims”
Legal personality under municipal law
• explicitly stated in the founding treaty
• implied recognition
– implied powers
– headquarters agreement
– by becoming a member of the IO
Summing up...
• IO = subject of international law
• Legal personality
– Under domestic law
– Under international law
• Objective v. subjective theory
• Indicators of legal personality/its extent
• Legal personality of IO = Derivative +
partial
– Compared to States: original + full
Thanx for your attention!
See you next week! 