(p. 166) 7 International Organizations
As discussed in chapter 1, in the late eighteenth and nineteenth century states developed multilateral forms of co-operation, supplementing reliance on bilateral treaties and diplomacy. These included the first international organizations. Initially the mandates of such organizations were constrained, for example the European Commission of the Danube (1856) and the International Telegraph Union (1865). But after 1920 the League of Nations and then the United Nations provided a more developed notion of universal peacekeeping arrangements, and many specialized institutions concerned with technical, economic, and social co-operation were established. The study of international organizations and the multiplicity of institutions and agencies is a department of the political and social sciences: the present chapter can only indicate the main legal problems arising from interstate organizations.1
2. Legal Personality
(A) International Organizations as Subjects of International Law
‘[I]nternational organization’ means an organization established by 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.3
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
the Organization 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. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. Still less is it the same thing as saying that it is ‘a super-state’, whatever that expression may mean.…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.11
(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
(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.
3. Privileges and Immunities34
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
(i) Treaty law
The privileges and immunities of international organizations derive from multiple sources. In the first place, the constituent instrument of the organization will ordinarily contain at least a general provision38 stating that the organization and its personnel are to be accorded immunity. Article 105 of the Charter is emblematic:
2. 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 Organisation.39
A further source of privileges and immunities are separate multilateral agreements. The Convention on the Privileges and Immunities of the United Nations40 is the example most frequently identified as such, having inspired other similar instruments, notably the Convention on the Privileges and Immunities of the Specialized Agencies.41 These may be further cemented by headquarters agreements between the organization and host state, for example the agreement between the United Nations and the US with respect to the UN headquarters in New York.42
(ii) National law
National law, especially host state law, is central in ensuring the privileges and immunities of international organizations. It will generally be required to implement relevant international agreements.43 It may add to these agreements, or act as substitute where the state in question has yet to enter into them.
References(p. 173) (iii) Customary international law
Then there is the question of the role of customary international law in this context.44 Some governments and municipal courts have adopted the view that immunity exists in custom.45 The Restatement Third specifies that international organizations are entitled in custom to ‘such privileges and immunities as are necessary for the fulfilment of the purposes of the organization, including immunity from legal process and from financial controls, taxes and duties’.46 Immunity has occasionally been recognized by the courts of non-member states,47 and aspects of the immunity may have the status of general principles of law, though it has been suggested that this may only extend to the United Nations system, due to its universal character.48
[I]nternational organizations such as the ITC have never so far as I know been recognized at common law as entitled to sovereign status. They are accordingly entitled to no sovereign or diplomatic immunity in this country save where such immunity is granted by legislative instrument, and then only to the extent of such grant.50
According to Amerasinghe51 and Higgins,52 this misses the point: immunity is necessary to allow these organizations to function, and there is no difference between organizations of limited and unlimited membership in this respect. It would seem churlish for a state to agree to house an organization but deprive it of those attributes that would allow it to function as intended.53 This was observed by the International Court in Privileges and Immunities of the UN.54
A further question is whether international organizations are entitled to immunity with respect to non-member states. Practice suggests that there is no customary rule in point.55 A Malaysian court held that comity did not require it to acknowledge immunity granted to an organization of limited membership by theReferences(p. 174) UK.56 A Swiss court held that it lacked jurisdiction over an employment dispute between an organization and one of its officials,57 though this may ref lect a sui generis exception as distinct from a general rule.58
It may be argued, however, that if the personality of international organizations stems from an objective assessment of their functions and non-parties are required to accept their separate identity, then this personality must be populated with the attributes necessary for the organization to carry out its mandate, including as necessary the immunity of the institution and its personnel.59
(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
Without being restricted by financial controls, regulations or moratoria of any kind,
(a) the United Nations may hold funds, gold or currency of any kind and operate accounts in any currency;
(b) the United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other currency.75
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
The privileges and immunities of personnel are again functional: international organizations require people to make decisions and carry them out.79
(i) Immunity attaching to organization officials
Officials of the United Nations shall:
Whilst such provisions ordinarily extend such immunity to officials of the organization only, some institutions cast the net wider. The ICC Immunities Agreement and the agreement between the UN and Sierra Leone regarding the Special Court for Sierra Leone80 both grant immunity to counsel and persons otherwise assisting,81 witnesses82 and victims.83 The ICSID Convention provides for the immunity of parties, agents, counsel, advocates, witnesses, and experts (Articles 21 and 22).
(p. 178) Difficulties can arise in determining whether an individual has committed an act in an official capacity.84The International Court has held that any determination of an official act made by the Secretary-General is binding,85 a position not adopted with alacrity by states.86
Treaties may also require that certain officials be given the equivalent of full diplomatic immunity. Both the General Convention (Article V, section 19) and the Council of Europe Immunity Agreement (Article 16) require that such protection be extended to the Secretary-General and Assistant Secretaries-General, their spouses and minor children. The immunity given to judges of the International Court87 and other holders of judicial or prosecutorial offices88 is also equated to diplomatic privileges.
(ii) Immunity attaching to state representatives
The agreements that provide immunity to the officials of international organizations usually extend protection to state representatives to the organization.89 General Convention Article IV, section 11 grants representatives to the United Nations an even broader set of immunities than those ordinarily granted to officials of the Organization. Indeed state representative immunity has much more in common with full diplomatic immunity90than the protections afforded to officials of the organization,91 though the two do not completely align, notably in the frequent restriction that a state representative is only granted immunity from legal process with respect to acts done in an official capacity.92
State representatives to international organizations are not ordinarily accredited to the host state but to the organization itself.93 A notable exception to this practice is contained within UN Headquarters Agreement, Article IX, section 25, which requires that apart from permanent representatives and certain other high-ranking officials, the staff of the mission must be agreed between the sending state, the US and the Secretary-General.
References(p. 179) The question of privileges and immunities of state representatives is addressed by the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character,94 adopted in 1975 in face of opposition from the major host states. It shows no sign of entering into force, and is an example of the futility of majoritarian processes in matters where a balance between the majority (sending states) and a controlling minority (host states) is essential.95
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.
The action of the Organization is in fact based not upon the nationality of the victim but his status as an agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim.116
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
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.
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
In sum, I cannot find any basis for concluding that it has been shown that there is any rule of international law, binding upon the member states of the ITC, whereby they can be held liable, let alone jointly and severally, in any national court to the creditors of the ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own name.127
The House of Lords agreed with this view.128
The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.
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
5. Interpretation of the Constituent Instrument133
[I]jnternational organizations…do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.134
(A) Identity of the Interpreter135
(i) Self-interpretation within international organizations
Within international organizations, each organ must interpret its own jurisdiction, irrespective of whether a power is expressly conferred.136 The International CourtReferences(p. 185) accepted this reality in Certain Expenses, holding that, in the absence of further direction within the Charter, each constituent organ of the United Nations was entitled to determine its jurisdiction in the first instance. Moreover such determinations, when accompanied by an assertion of propriety, are presumptively intra vires.137 Full advantage of this has been taken by the General Assembly, which has determined its own jurisdiction on multiple occasions.138 The Security Council has also been willing to engage in such introspection, notably when considering the meaning of ‘threat to the peace’ under Article 39 of the Charter.