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Law of International Organisations

- Legal character and personality -Lecture 3 (14. March 2011)

Palacky University OlomoucFaculty of Law

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 Throughout its history, the development of international law...and development of international law...and the progressive increase in the the progressive increase in the collective activities of States has collective activities of States has already given rise to instances of already given rise to instances of action upon the international plane by action upon the international plane by certain entities which are not States”certain entities which are not States”

international organisationsinternational 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

States subjects with limited legal

personality

International Governmental Organisations

other subjects

de facto regimes

- Holy See

- ICRC

- Sovereign Military Order of Malta

International non-govern.org. individuals (???) (NGOs: e.g. WWF, Greenpeace)

No legal personality under PIL

International Legal Personality

• subject of IL (having IL personality) =

Entity deemed capable of independently bearing rights and obligations under bearing rights and obligations under

international lawinternational 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 In the opinion of the Court the Organisation was Organisation was intended to exercise and enjoyintended to exercise and enjoy, and is in fact , and is in fact exercising and enjoying, exercising and enjoying, functions and rights which functions and rights which can only be explained on the basis of possession of can only be explained on the basis of possession of a large measure of international personality and the a large measure of international personality and the capacity to operate upon an international planecapacity to operate upon an international plane. It is . It is at present the supreme type of international at present the supreme type of international organisation and it could not carry out the intentions organisation and it could not carry out the intentions of its founders if it was devoid of international of its founders if it was devoid of international personality”personality”

Does the UN have capacity to bring a Does the UN have capacity to bring a claim in reparation against a state which claim in reparation against a state which

is not a member of the UN?is not a member of the UN?

Reparations for Injuries (ICJ 1949, p. 185):

““The fifty States, representing the vast majority of The fifty States, representing the vast majority of the members of the international community had the the members of the international community had the power, in conformity with international law, to bring power, in conformity with international law, to bring into being an entity possessing into being an entity possessing objectiveobjective international personalityinternational personality and not merely personality and not merely personality recognised by them alone, together with capacity to recognised by them alone, together with capacity to bring international claims” 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!