© T.M.C. Asser Press and the author 2015Joop VoetelinkStatus of Forces: Criminal Jurisdiction over Military Personnel Abroad10.1007/978-94-6265-057-2_9
9. International Organisations
Faculty of Military Science, Netherlands Defence Academy, Breda, The Netherlands
9.4 UN, NATO and EU
9.5.3 National Representatives
9.6.1 The Staff
9.6.2 International Forces
International organisations are established by treaty or other international instrument governed by international law and have legal personality. The extent of their legal rights and obligations depends on the organisations’ purposes and functions and their constituent instruments. They can, inter alia, conclude treaties that are necessary for the exercise of their functions and the fulfilment of their purposes. Most organisations operating in the framework of international military cooperation and crisis management, like UN, NATO and EU, possess legal personality and are entitled to conclude treaties, including SOFAs. International organisations and their staffs enjoy the immunities necessary to independently perform their duties.
Initially international law developed within the community of States in order to manage their bilateral and multilateral relations while preventing, as far as possible, breaches of the States’ sovereignty. Although this continues to be an important matter in international law today, the transnational nature of the problems that States increasingly have had to face obliged them to strengthen international cooperation. Consequently, since the nineteenth century States have delegated part of their functions to international institutions. From World War II on the institutions have undergone an explosive growth and developed into international governmental organisations (IGOs), which act in the interests of the cooperating States.
As international organisations vary in purpose, establishment, membership, functions and proceedings, they constitute a heterogeneous group. For the purpose of this chapter an international organisation is understood to be established by treaty or another instrument governed by international law and to have legal personality. As a consequence, non-governmental organisations are not included in the discussion in this chapter. Despite their legal personality international organisations do not possess the same rights and obligations as States do; for example, their capacity to conclude international agreements is more limited. Furthermore, they do not share the immunity accorded to States, but they possess similar rights on the basis of treaties and customary law.
For tasks such as national security, crisis management and the enforcement of international peace, States increasingly depend on international (military) cooperation. Since World War II military cooperation has to a large extent taken place under the auspices of international organisations, such as UN, NATO and EU. The functions of the organisations are diverse and may vary from coordination of the use of a particular military weapon system to the common defence of the member States’ territory. Within this broad framework of military cooperation some organisations conclude SOFAs. Military personnel can become part of the staff of such an organisation and international military forces enjoy an internationally recognised status.
This chapter discusses the status of international organisations and their staffs under international law, paying particular attention to UN, NATO and EU. In addition, the position of military personnel executing tasks within the framework of activities of international organisations is analysed.
The first sections identify the most important elements of the definition of international organisations (Sects. 9.2 and 9.3), followed by a discussion of the position of UN, NATO and EU (Sect. 9.4). The subsequent section focuses on the immunities of international organisations and their staffs (Sect. 9.5). The chapter concludes with a discussion on the status of military personnel temporarily assigned to, or employed by, an international organisation (Sect. 9.6).
9.2 Definition of International Organisations
Shortly before World War I the notion of international organisations emerged,1 but has subsequently never been clearly defined.2 This is partly due to the diversity of organisations, which complicates the definition of such a heterogeneous group. In general a distinction is made between, on the one hand, organisations that have a membership consisting of States and are established by treaty (IGOs) and, on the other, different organisations (non-governmental organisations, NGOs).3 This distinction is also made in the Vienna Convention on the Law of the Treaties, in which an international organisation is described as an intergovernmental organisation (Article 2, subparagraph 1(i)), implicitly excluding NGOs.4
As this definition was too broad for the purpose of the study of the International Law Commission (ILC) on the responsibility of international organisations,5 Article 2(e) of the Draft articles on the responsibility of international organizations 2011 6 defines an international organisation as:
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.
In the literature other definitions are proposed in which the emphasis may vary depending on the purpose for which they are adopted. In the context of this book it suffices to conclude that the core elements contained in the various definitions are also part of the ILC definition,7 which covers the organisations discussed below. Therefore, the ILC definition is used as starting point.
9.3 Establishment of International Organisations and Their Legal Personality
The last sentence of the ILC definition specifies that the membership of international organisations does not merely consist of States. This approach is in accordance with international practice that international organisations can also be members of other international organisations.8
The first sentence of the definition focuses on the establishment of an international organisation, which must take place either by treaty or by an “other instrument governed by international law.” Most organisations mentioned in Part I of this book, such as EU, NATO and UN, meet this requirement, as they were established by treaty. Only a few international organisations have been established by other international legal instruments, such as a decision of a Conference of States.9 The definition of international organisations excludes institutions formed on the basis of national law, such as multinational corporations and NGOs.10
Meeting the requirement of being established by an international instrument does not automatically entail that the international organisation actually falls under the ILC definition. The second element contained in the first sentence of the definition requires the international organisation has a legal personality. This means that, under international law, it possesses rights and obligations that enable it to operate independently from its members and to participate in the international legal order.11 Without this capacity organisations cannot be held responsible for their acts under international law.12 As a result, international legal personality is essential to the ILC definition on the responsibility of international organisations.
The subjective approach to international legal personality holds that legal personality depends on the will of the member States13 as expressed in the constituent instruments of the organisation. However, in most cases such an explicit provision is absent.14 The considerations of the ICJ in the Reparation for Injuries case suggest that legal personality of an international organisation may be implicit in case the organisation can exercise specific functions and possesses specific rights. With regard to the UN, the Court concluded that:
[…] the Organization [UN] 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 the possession of a large measure of international personality and the capacity to operate upon an international plane.15
The Court also specified that the UN possessed “objective international personality”,16 implying that the legal personality is effective vis-à-vis members and non-members alike, even in case the legal personality has not been explicitly recognised.17 The Court’s conclusion was based on the consideration that the fifty States constituting the UN represented the vast majority of the international community. This consideration has led some authors to conclude that the number of member States is one of the elements determining the existence of objective international legal personality.18
The legal personality international organisations possess is derived from the legal personality originally accorded to States. Therefore, the rights and obligations of international organisations are more limited than those of the States and depend on the organisations’ purposes and functions.19 They possess powers provided by their member States or flowing from their purposes. In the Nuclear weapons case, the ICJ considered that:
…the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as “implied” powers.20
Legal personality of international organisations entails the capacity to conclude treaties;21 however, this does not mean that all international organisations actually can. In general, their powers are limited to treaties that are “…necessary for the exercise of their functions and the fulfilment of their purposes.”22
Legal personality under international law is not the same as legal personality under national law. The capacity of taking legal actions under national law, such as renting a building or purchasing materials, requires legal personality under the laws of a particular State. In general, the constituent instruments of the international organisation include a provision on the legal personality of the organisation under the laws of (one of) the member States.23
9.4 UN, NATO and EU
Part I of this book discusses several organisations that operate in the field of international military cooperation and crisis management, such as UN, NATO and EU. If they possess legal personality and have the capacity to conclude treaties, they can adopt SOFAs for the benefit of armed forces from member States. The following sections briefly touch on the international legal status of these organisations and their treaty-making powers.
Shortly after the establishment of the UN the legal personality of international organisations became the subject of the ICJ’s Reparation for Injuries case. In this case the ICJ considered that international personality is indispensable to enable UN to meet its purposes and principles as laid down in the UN Charter.24 However, the Charter does not explicitly provide for the UN’s international personality. In the opinion of the ICJ it is nevertheless undeniable that the functions and rights allocated to UN can only be explained by the intention of its founding members to grant it a large measure of international personality.25
The UN Charter contains several provisions, in which the UN’s capacity to conclude international agreements is laid down. For example, Article 43, subparagraph 1, enables UN to conclude agreements with States on the contribution of armed forces to crisis management operations and on related assistance and facilities.26 With a view to the international personality of UN it can be assumed that Article 43 concerns treaties. The Charter remains tacit on the possibility to conclude international agreements with respect to other issues, such as SOFAs in the context of crisis management operations.
Whenever such a capacity has not explicitly been provided for, it may be implicit. In the Reparation for Injuries case the ICJ observed the following with regard to UN:
Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.27
One of UN’s main tasks is to promote international peace and security. To this end UN have established a number of crisis management operations. This activity implies the capacity to conclude agreements, such as SOFAs, with the States where the operations take place. UN’s broad practice in this field confirms the organisation’s authority to conclude international agreements. Furthermore, as mentioned in the preceding section, the UN possesses objective personality, which means that its personality applies to all States and international organisations.
The establishment of NATO is related to the 1949 NATO Treaty, although this agreement does not explicitly define NATO as an international organisation. As a consequence there are hardly any institutional provisions in the NATO Treaty. These provisions can be found in additional agreements, such as the Ottawa Agreement,28 regulating the civilian institutions and the Paris Protocol,29 defining NATO’s military headquarters.30
Article I(a) of the Ottawa Agreement defines the ‘organisation’ NATO as consisting of the North Atlantic Council (NATO Council) and its subsidiary bodies. Article IV determines that NATO possesses both the juridical personality and the capacity “to conclude contracts, to acquire and dispose of movable and immovable property and to institute legal proceedings.” The nature of the enumerated capacities refers, however, to NATO’s legal personality under national law. Other provisions of the agreement imply that NATO has international personality as well. For example, the organisation enjoys immunities that are comparable to those of diplomatic missions and it has the capacity to conclude treaties (see discussion below).31 Considering these aspects, NATO’s legal advisor rightly remarked32:
NATO, as an intergovernmental organization, is a subject of international law … entitled to rights, duties or powers established in international law, and, generally, the capacity to act on the international scene.33
The international personality is necessary to achieve the organisation’s purpose, which is: “…the further development of peaceful and friendly international relations…”.34 Therefore, the organisation has, inter alia, treaty-making powers. Article XXV of the Ottawa Agreement covers the NATO Council’s capacity to represent the organisation and to conclude complementary agreements in its name. The Council has used this capacity to conclude agreements on the status of the organisation’s bodies in member States.35
In addition, Article XVI of the Paris Protocol enables NATO’s Supreme Headquarters36 to conclude supplemental agreements with receiving States on the Protocol’s application.37 The fact that NATO’s subordinate headquarters have these powers implies that the organisation itself also possesses such a capacity. In any case NATO’s tasks and functions with respect to international military cooperation require the capacity to conclude agreements regarding those tasks and functions. This line of reasoning is confirmed by NATO’s practice of concluding treaties with States and international organisations38 on various topics related to military cooperation, such as status of forces.
NATO’s decision-making procedure deserves particular attention, because its member States retain almost all decision-making powers and are directly involved in the administration and operation of NATO.39 Decisions are taken by consensus, which means that a decision is only adopted when all States accept it:
Decisions are thus the expression of the collective will of the Sovereign member States, arrived at by common consent and supported by all.40
This decision-making process also applies to the Council’s decisions on NATO-led operations.
Whether NATO also possesses an objective international personality has not clearly been established yet. The current number of 28 NATO Member States constitutes a minority within today’s international community, which consists of more than 190 States. Therefore, the assertion that NATO possesses objective personality does not seem to be very convincing. Nevertheless, the organisation does not only fulfil an important regional task, but has also been influential in the field of international peace and security further afield.41 In this respect mention can be made of the UN authorization to take over its crisis management operations (IFOR/SFOR), or to execute major operations (ISAF, the anti-piracy operations near Somalia and the operations with respect to Libya in 2011). In the context of these operations, NATO has concluded international agreements with third States and international organisations, without its legal personality being disputed. Therefore, it seems plausible to conclude that NATO possesses objective international personality.
Today the position of the EU is well established. Initially, and similar to UN and NATO, an explicit conventional provision on its legal personality did not exist. In 1997 the Treaty of Amsterdam added Article 24 to the Treaty on European Union (hereafter TEU),42 enabling the EU to conclude treaties within the field of the common foreign and security policy. Since 2001 this legal basis has frequently been used by the EU Council, as a EU institution,43 to conclude a number of SOFAs for EU crisis management operations,44 which leads to the conclusion that the EU has legal personality.45 Any remaining controversy on the issue was put to rest with the adoption of the Treaty of Lisbon,46 which added Article 47 to the TEU stating: “The Union shall have legal personality.” Furthermore, a sentence was added to Article 1 of the TEU determining that the Union “shall replace and succeed the European Community (EC).” Article 281 of the EC Treaty saw to the legal personality of the EC,47 although it did not specify whether it concerned personality under national or international law. However, due to the capacities attributed to the EC in the same treaty, it was generally accepted that it included international personality.48 So, it is beyond doubt that the EU has acquired this status. From the discussion above on the objective international personality of NATO, it can be concluded that the same applies to the EU.
9.5 The Status of International Organisations
Generally speaking, the status of international organisations and their staffs has been laid down in multilateral international agreements that stipulate the member States’ mutual duties and define the functions and the status of the organisations and their staffs. An international organisation is a functional entity, which, unlike a State, does not have territorial sovereignty. Therefore, such an organisation will generally have its seat on the territory of a member State and will have to conclude an agreement with this host State.49 In general international organisations50 themselves have the capacity to conclude these so-called Host State Agreements.51
States establish international organisations that in their own name serve the agreed common interests of the participating member States. In this sense they embody the member States’ sovereign powers reflected in the purposes and functions of the organisations. Therefore, the international organisations will have to be able to function without the unilateral interference of member States, in particular of the State on whose territory the organisation is located.52 Essentially for this reason host States grant international organisations immunities necessary to guarantee the independent exercise of their functions (doctrine of functional necessity).53 As the purposes and the functions of international organisations vary widely, so does the status of organisations and their staffs.
Treaties on the status of international organisations generally grant the organisations absolute immunity from jurisdiction54 and as a result they do not distinguish between acta jure gestionis and acta jure imperii.55 Furthermore, it is common to exclude certain forms of responsibility from immunity, such as damages arising from traffic accidents.56 Likewise, in the field of commercial transactions the treaties often provide for arbitration as an alternative means to settle disputes57 in order to ensure that parties entering into legal relations with the international organisations can take legal action, if necessary. Lastly, the international organisations may refrain from immunity altogether.
In the absence of a treaty most national courts will not accept immunity of an international organisation.58 An exception is a Dutch Supreme Court’s case, in which it was considered that under international customary law an international organisation is entitled to immunity of jurisdiction in the State where it has its seat with the consent of the host State.59
The special position of international organisations requires that both organisations and their staffs can execute their functions independently from the host State.60 This means that also staff members need to be entitled to immunities. The scope of these immunities depends on the functions of the organisation. As States grant immunities to staff members in the interest of the organisation, these immunities are not for the personal benefit of the individuals themselves.
In the past States granted staff of international organisations a diplomatic status, or they treated them as if they were diplomats. However, the position of the staff of an international organisation fundamentally differs from the position of diplomats.61