(A)  International Organizations as Subjects of International Law

Whilst useful, this definition was developed in the context of international responsibility, which presupposes legal personality. It is possible for an international organization to have no such personality but still—by virtue of its treaty-based, interstate character and activity—be considered an international organization. Nonetheless, most international organizations will possess separate personality.

Although international organizations have existed since the mid-nineteenth century, attribution of legal personality to them is relatively new.4 A shift began aft er 1919, though it was characterized by equivocation. The Covenant of the League of Nations made no reference to legal personality.5 By 1926, however, its modus vivendi with Switzerland included recognition of its separate existence on the international plane.6

Then, in Reparation for Injuries7 the International Court went a step further. Following the assassination of the United Nations’ envoy Count Folke Bernadotte and his entourage by Zionist nationalists,8 the Court was asked to advise on the capacity of the UN, as an organization, to bring an international claim for injury to its personnel on the lines of diplomatic protection, and in respect of injury to the UN caused by the harm to its agents. The Charter did not contain any explicit provision on the international legal personality of the UN,9 but the Court drew on the implications ofReferences(p. 168) the instrument as a whole, noting that, if the UN was to fulfil its tasks, ‘the attribution of international personality is indispensable.’10

(B)  Indicia of International Legal Personality

Two main theories have been offered to explain the decision.12 The first is that it is the will of the founders that determines whether an international organization possesses international legal personality.13 If international law is based on the freely expressed consent of states, they may breathe personality into an organization.14 But some organizations are not expressly endowed with international legal personality forcing its generation via inference.15 This problem was pronounced with organizationsReferences(p. 169) formed in the early years of the United Nations,16 but has declined with respect to later institutions.17More substantial is the question how organizations created by some states interact with third parties, whose refusal to acknowledge personality could reflect upon the potential emptiness of the concept. One solution is to condition personality on recognition by third parties, but in practice the institution of recognition has not been extended to organizations.18

The alternative and better view is that international organizations are capable of attaining ‘objective’ legal personality independent of recognition by performing certain functions on the international plane.19 This was the position taken, at least in part, by the Court in Reparation for Injuries.20 The criteria for the possession of legal personality by an international organization may be summarized as follows:21

1. 
   

   (1)  a permanent association of states, or other organizations, with lawful objects, equipped with organs;

   
   
2. 
   

   (2)  distinction, in terms of legal powers and purposes, between the organization and its member states; and

   
   
3. 
   

   (3)  the existence of legal powers exercisable on the international plane and not solely within the national systems of one or more states.22

An organization may exist but lack the organs and objects necessary for legal personality. The Commonwealth of Nations was such an association initially: it is now regarded as a distinct legal entity, though lacking a formal constitution.23 Similarly, a multilateral convention may be institutionalized to some extent with provision for regular conferences, yet not involve any separate personality.24 On the other hand joint agencies of states,25for example an arbitral tribunal or a river commission, mayReferences(p. 170) have restricted capacities and limited independence but be regarded as a separate legal person.26This applies also to agencies and subsidiary organs of organizations, such as the United Nations Conference on Trade and Development (UNCTAD), the High Commissioner for Refugees, and the Technical Assistance Board in relation to the United Nations.27

Secondly, if an organization has considerable independence and power to intervene in the affairs of member states, the arrangement may resemble a federal union. The EU is sometimes characterized in this way, though this is debatable, as it is only competent to exercise those powers attributed to it by its member states.28

Thirdly, while an organization with legal personality is normally established by treaty, the source could be the resolution of a conference of states or a uniform practice.29 The constitutional basis of the United Nations Industrial Development Organization (UNIDO) is to be found in resolutions of the General Assembly,30 whilst the Organization of the Petroleum Exporting Countries (OPEC) and the Organisation for Security and Cooperation in Europe (OSCE) derive from government consensus reached at international conferences.31

In short, at the international level there is no legal and administrative process comparable to the municipal concept of incorporation. Where there is no constitutional system for recognizing and registering associations as legal persons, the primary test is functional. Indeed, it would be fatuous to work from an abstract model in face of the existence of some 250 organizations of states, varying from the universal to the bilateral.

(C)  Objective Personality and Third States

One attribute of the objective theory of legal personality for international organizations is that it renders that personality opposable to third states, even though theReferences(p. 171) organization in question is normally the creation of treaty. This is made clear in the ILC’s commentary to Draft Article 2, where it is said that ‘it would not be necessary to enquire whether the legal personality of an organization has been recognized by an injured State before considering whether the organization may be held internationally responsible according to the present articles’.32 In this, the ILC saw as conclusive the decision in Reparation for Injuries, with its emphasis on ‘objective legal personality’.33 Although the Court conditioned its opinion on the quantity and standing of the founding Members of the United Nations, there are good reasons for applying this proposition to all international organizations, and in practice this has occurred.

In order to function effectively, international organizations require minimum standards of freedom and legal security for their assets, headquarters, and other establishments, and for their personnel and accredited representatives of member states. By analogy with diplomatic privileges and immunities, the necessary privileges and immunities of agents of international organizations, as well as of the organizations themselves. in respect of the territorial jurisdiction of host states (that is, those states which have agreed to house the headquarters or other activities of an organization) may be recognized. The analogy is not perfect, however, and three difficulties are apparent.35 First, in contrast to diplomatic immunity, it is normal for officials of an organization to have the nationality of (and often a special relationship with) a member state, including the host state. A national of the receiving state who is a member of a foreign mission will only be extended diplomatic immunity on a narrow and highly conditioned basis.36 Secondly, a diplomat, although immune from the jurisdiction of the receiving state, remains under the sending state’s jurisdiction. Thirdly, whereas reciprocity provides an incentive for states to respect international diplomatic law, an international organization does not have access to an effective regime of sanctions.

References(p. 172) (A)  Sources of Privileges and Immunities37

(B)  Privileges and Immunities Attaching to the Organization

As noted, the source of privileges and immunities of most organizations is a general treaty provision; some international organizations (notably the UN) have concluded additional treaties articulating these immunities.60But if they do not, the general provision in the original agreement will need to be given content. In that case reference may be had to the functional basis of privileges and immunities, with the extension of a particular protection predicated on necessity. Organizations vary, so may their immunities. As experience with UN peacekeeping forces shows, relations with the host state in particular will depend a great deal on the specific function involved and all the circumstances. Decisions of national courts on the immunities of agents of international organizations do not as yet produce a coherent body of principles. Some decisions rely by analogy on diplomatic immunities; others take a more rigorously functional view.61 But four broad immunities andReferences(p. 175) privileges are generally identified as attaching to—and subject to waiver by62—the organization.63

The key rationale for this immunity is that otherwise member state courts may purport to rule on the legality of acts of the organization. Some jurisdictions have sought to limit the scope of this immunity by reference to acts done iure gestionis as distinct from iure imperii, by analogy with state immunity.66 But practice is limited to a few states. However a trend may be developing whereby national courts are willing to deny immunity with respect for claims for denial of justice before administrative tribunals internal to the organization,67 due to the circumstantial inconsistency of the immunity with other supervening principles of international law. This is notable in the case of the European Court of Human Rights. In Waite and Kennedy v Germany68 and Beer and Regan v Germany69 the Court held that Germany’s maintenance of the immunity of the European Space Agency (ESA) was consistent with its obligations under ECHR Article 6(1) regarding the right to a fair trial.70The Court held, however, that maintenance of the immunity could not be reflexive, and that access to the 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 protect adequately the Article 6(1) rights of any claimants, a requirement fulfilled by the ESA Appeals Board.71

References(p. 176) The second common protection concerns the inviolability of the organization’s premises and archives.72 In practice, this mirrors the protection granted to diplomatic missions; the authorities may not enter the premises of the organization, even where effecting an arrest or serving a writ, without the consent of the administrative head of the organization. On rare occasions this protection has been breached: for example, schools administered by the United Nations Relief and Works Agency in the Gaza Strip were damaged severely through the actions of the Israeli Defence Force during 2009 operations against Hamas.73

This protects the United Nations from municipal exchange control regimes. It is supplemented by Article II, section 7, which protects it from direct taxation and customs duties, except municipal taxes which are merely a charge for the use of public utilities.76

The fourth functional protection extended to international organizations is freedom of communication.77 This is modelled on the similar freedom of diplomatic missions, and includes freedom from censorship, the right to use codes and couriers, the privilege of the diplomatic bag and its attendant inviolability, and, in the territory of each state, treatment of official communications in a manner as favourable as that accorded to diplomatic missions. The exemplar is General Convention Article III, sections 9 and 10.78

(p. 177) (C)  Privileges and Immunities Attaching to Personnel

The analogue for the exercise of legal functions in international relations is the state, in spite of the obvious analogical dangers. The most viable type of organization will have legal powers similar to those normally associated with statehood. However, the individuality of each organization must be emphasized: in the first place the extent of legal capacity will be found in the constituent treaty of the organization.

(A)  Treaty-Making Power96

Although the capacity of international organizations to enter into treaties was originally doubted,97 it is now accepted.98 The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations was adopted on 21 March 1986;99 it is modelled, perhaps too closely, on the 1969 Vienna Convention on the Law of Treaties (VCLT).100 It is open for accession ‘by any organization which has the capacity to conclude treaties’ (Article 84). It is not yet in force but acts as a legal and practical guide.

References(p. 180) The existence of legal personality does not necessarily imply power to make treaties, though in practice organizations readily assume a treaty-making power. Additionally, the constituent instrument may limit the treaty-making powers of the organization to certain organs.101 The competences of the organization as a whole provide a further limitation.102 Where an agreement is entered into, however, the organization as a whole will be bound,103 even, potentially, where the contracting organ is acting ultra vires.104 On the other hand while the organization is bound by its organs, member states are not as such bound due to their separate legal personality.105

Constituent instruments do not normally confer a general treaty-making power, but this may be (somewhat problematically) established via the interpretation of the instrument as a whole or the doctrine of implied powers.106 The UN Charter authorizes the conclusion of trusteeship agreements (Chapter 12), relationship agreements with the specialized agencies (Articles 57, 63), specialized agreements permitting national armed forces to be placed at the disposal of the Security Council (Article 43) and conventions concerning privileges and immunities (Article 105(3)). But it has concluded headquarters agreements and agreements on co-operation with other organizations, without express authorization. Thus a specific constrained power to enter into treaties is used to infer legal personality, which is in turn used to infer a general treating-making capacity.107

(B)  Capacity to Espouse International Claims

In Reparation for Injuries, the International Court held unanimously that the United Nations was a legal person with capacity to bring claims against both member and nonmember states for direct injuries to the Organization.108 The power to bring such claims was apparently regarded as concomitant with legal personality. However, the Court also expressed its conclusion in terms of implied powers and effectiveness.109 Similar reasoning may apply to other organizations. The capacity to espouse claims thus depends (a) on the existence of legal personality, and (b) on the interpretation of the constituent instrument in the light of the functions of the particular organization.110 In contrast, the existence of immunities is not conditioned on the separate legal personality of the entity concerned.

A problem which remains to be solved is the determination of priorities between the state’s right of diplomatic protection and the organization’s right of functional protec-tion.117 Again by analogy with states, it may be that the right to espouse is concurrent but subject to a rule against double recovery.

(C)  Standing before International Tribunals

When an organization has legal personality it has in principle locus standi before international courts and tribunals. But everything depends on the statute governing the adjudicatory body or the compromis concerned, and in many cases international organizations have no such access.118 Notably while certain organizations have access to the International Court through its advisory jurisdiction, the Statute still limits standing to states (Article 34).119 But international organizations may have standing before international tribunals where the jurisdiction of the tribunal may be activated through the treaty-making or contracting capacity of the organization.120

(p. 182) (D)  Capacity to Own Property

Another element of legal personality is the capacity for an international organization to own property under the municipal law of a state. This is a simple matter of functional necessity.121 Conversely ownership of property may act as an indication of legal personality.122 Any property so owned falls under the aegis of the organization’s privileges and immunities.

(E)  Responsibility123

If an organization has a legal personality distinct from that of the member states, and performs functions which in the hands of states may give rise to responsibility, then it is in principle reasonable to impute responsibility to that organization.124 Such claims are ordinarily predicated on the exhaustion of ‘local remedies’, that is, before any competent organ of the organization.125 This follows generally from the Court’s reasoning in Reparation for Injuries. The most notable development in the law of responsibility for international organizations is its codification in the ILC’s Draft Articles of 2011, a project which owes much to the Commission’s previous work on state responsibility. Under Draft Article 3, every internationally wrongful act by an organization entails its international responsibility (see also Draft Article 4). Similar rules have also been adopted with respect to attribution (Draft Articles 6 to 9), breach of international obligations (Draft Articles 10 to 13), circumstances precluding wrongfulness (Draft Articles 20 to 27), the content of international responsibility (Draft Articles 28 to 42) and its implementation (Draft Articles 41 to 57).

Moreover, separate legal personality presumptively prevents liability from attaching to an organization’s members, as demonstrated in the International Tin Council cases. This litigation commenced as a consequence of the inability of the ITC to meet its liabilities; the issues of public international law (e.g. the question of the residual responsibility of the member states) were not faced head on by the English courts and the decisions turned to an extent on the construction of the International Tin Council (Immunities and Privileges) Order in relation to matters essentially of English law.126

The House of Lords agreed with this view.128

Additionally, provision is made at length in Part V for the joint responsibility of states and organizations with respect to internationally wrongful acts. States may be held responsible for aiding and abetting wrongful acts by organizations (Draft Article 58), as well as the exercise of direction or control (Draft Article 59), coercion (Draft Article 60), and the acceptance of responsibility (Draft Article 62). Of special note is Draft Article 61, which provides that a state member may incur international responsibility if it causes an organization to commit an act that would have breached an international obligation if committed by the state, irrespective of whether the organization by so doing commits a breach.

In practice the United Nations has accepted responsibility for the acts of its agents.131 However, in the case of more specialized organizations with a smaller membership, it may be necessary to fall back on the collective responsibility of members. There is a strong presumption against a delegation of responsibility by a state to an organizationReferences(p. 184) arising simply from membership. But the organization may occasionally be conceived of as creating risks and incurring liabilities in the course of its activities and as a vehicle for the distribution of costs and risks. This can be seen from Article XXII(3) of the Convention on International Liability for Damage Caused by Space Objects, which, subject to certain preliminary conditions, provides that ‘[i]f an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable’.132

(A)  Identity of the Interpreter135