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Legal personality of international organizations: the rule or exception?

In recent years the impact of the intergovernmental organizations (hereinafter IGO) on international relations has risen sufficiently. In this respect the concept of legal personality is a necessary starting point in determining the legal status of such organizations in the international law in general and consequences of their activity for the member states in particular [1, p. 273].
It appears to be widely accepted that an entity without legal personality cannot be the bearer of either rights or duties. We may simply say that, if an international organization has no distinct legal personality, cannot itself be legally liable for obligations even if incurred in its name; and it is likely that the liability will rather be that of the member states. [2, p. 8]
There is no rule governing international legal personality of international organizations in the contemporary international law. In such a case teachings of the scholars and judicial decisions should be referred to [3, p. 3].
International law doctrine today reflects three basic approaches to the issue of legal personality of international organizations [4, pp. 978-979]. The first is the contract or subjective theory approach, which holds that the legal personality of an international organization derives from the will of states explicitly attributed to the organization in a constitutive treaty. Some scholars argue that this treaty-contract approach was especially supported by socialist countries, but it has generally lost its appeal with the collapse of communism.
The second approach is the objective theory which suggests that if an organization operates in a sufficiently autonomous manner, it may possess legal personality ipso facto in addition to that conferred by constitutive instruments. [5, pp. 1-21] The autonomy arises generally when an organization both is not subject to the jurisdiction of any particular state and is endowed with an organ the function of which is to express the will of the organization. This theory accommodates (better than does the contract theory) the rapid growth in number and the increasing activity and relevance of international organizations.
The third approach, the implied powers or functional theory, is the most widely accepted approach for determining international legal personality. More often than not, the constitutive instruments of international organizations do not contain an express provision conferring legal personality upon the organization. Under the implied powers approach, personality derives indirectly from the functions of the organization appropriately exercised through its organs especially when that exercise demonstrates a will separate from its members [6, p. 332]. The preference of most writers today is to include this theory to any analysis to determine whether international organizations have international legal personality [7, p. 680].
The movement of international society from a contract approach to an implied powers approach to determine the nature and extent of international legal personality has been confirmed by the International Court of Justice (hereinafter ICJ). In the Reparation for Injuries Suffered in the Service of the United Nations Case [8, p. 233] the issue was whether the United Nations (hereinafter UN) could bring an international claim against a responsible government for injuries suffered by an agent of the UN. The Court employed the functional approach when it examined the concept of legal personality of the UN by looking at the organization’s implied powers in its constitutive documents supplemented by later practice. The ICJ concluded that the UN indeed possessed legal personality because the constitutive instruments of the UN and subsequent UN practice established a status for the UN organization separate from its state members. The Court also noted that the UN Charter equipped the organization with its own functioning organs that had unique tasks.
In the opinion of the Court: “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 on 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 legal personality. 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” [9, p. 179].
Importantly for present purposes, the Court concluded that the UN organization has international legal personality even without an express provision conferring personality. The Court emphasized efficiency considerations in analyzing the functions of the organization with regard to legal personality. Here, it emphasized three main requisites for legal personality: (1) legal personality must be indispensable to the achievement of the organization’s objectives; (2) the organization must have its own organs and special tasks; and (3) the organization itself must be distinct from its member states. The Court thus rested its decision both on the implied powers doctrine and the objectively determined characteristics of the UN organization [10, pp. 354-355].
At the same time it should be stressed that this decision of the Court should be applied cautiously. While the unique situation of the United Nations, with its near universal membership and unique tasks, may invest it with objective legal personality, this should not be presumed to apply to all international organizations. Indeed, nothing in the Reparation for Injuries case provides in favour objective legal personality for each and every international organization. Thus there is no evidence that states continue in any general sense to retain legal responsibility for the bodies they have created [11, pp. 111, 117]. Therefore, the matter of international legal personality of a particular international organization remains a question of case-by-case study.
In this respect the issue of international legal personality of the European Union (hereinafter EU) should be regarded as one of the most arguable and relevant in the contemporary international law.
Unlike the treaties establishing the three Communities, the Treaty on the European Union (hereinafter TEU) does not contain a specific provision conferring the Union legal personality [12, p. 247]. Hence, it lacks legal personality under the contract theory approach.
As for the objective and functional doctrines, the Union, at first sight, seems to satisfy two prime criteria for international legal personality — separation from the Member States and possession of its own organs [13, p. 105]. The Union, of course, was established by a treaty concluded by its Member States. The EU possesses permanent organs similar to those of the Community. And the Union is separate from its Member States, in the sense that it has distinct aims and goals. This separation from Member States is indirectly reflected in the Treaty provisions for solidarity of obligation and for a principle of subsidiary separate from the Community.
On the other hand, the TEU did not confer on the Union treaty-making powers. Instead, its powers in the area of common foreign and security policy are limited to the adoption of common positions and joint actions and declarations, neither of which require it to have international legal personality [14, p. 8] The functions and powers of the EU were intentionally designed by the Member States to be restricted at the time of its creation, which argues for the absence of discrete legal personality. That design reflects a deliberate intention to curtail the Union’s role and power in international legal relations. To act on the international plane, the Union must rely either on the existing Communities or on the Member States. [15, p. 11]. Thus the EU is not a legal person under the objective and functional doctrines as well.
The same was confirmed by The German Constitutional Court, [16, p. 338] which prior to German ratification of the TEU, took the view generally shared by other Member States, that the Union was not a legal person and that the narrow powers granted it did not make Union legal personality indispensable for the Union to perform its functions. It noted that «according to the interpretation applied by the Federal Government, the EU does not have a distinct personality either in terms of its relationship with the European Communities or with the Member States.»
Thus the examination of the international legal personality of the EU requires therefore an acceptance that the EU is distinct from its Member States and the Communities, and that it has not been granted legal personality unlike the three Communities. It is normally maintained that the EU lacks legal personality. [17, p. 12] However, it is not accurate to claim either that the EU is legally non-existent or that it is not distinct from the Member States or the existing three Communities.
Consequently, it is entirely possible to grant legal personality to the EU. Moreover such an attempt was already made – article I-7 of the EU Constitution Project (that is not ratified by the member states yet) provides that “EU shall have legal personality” [18, 2]. Thus it is likely that the EU in the years ahead eventually will emerge with an intact international legal personality regardless of the present state of law.
Therefore it’s seen that even though the IGO become more and more influential on the international plane, their legal status – the possession of legal personality under international law or not – remains absolutely dependant on the states’ (as their constituent members) will. While contemporary international law lacks a general rule governing international legal personality of IGO, in order to determine the existence thereof the treaty establishing an organization, its tasks, rights and functions should be analyzed in every particular case.
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2. Higgins, Rosalyn. The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations towards Third Parties. Extract from Institute of Internationl Law. Yearbook, vol. 66-I, Paris Pedone. 1995.
3. Klabbers, Jan. The Concept of Legal Personality. 11 IUS Gentium 35. 2005.
4. H.G. Schermers and N.M. Blokker. International Institutional Law (3rd ed.1995).
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Nordisk Tidskrift for International Ret. 1-112 (1964).
6. Derek Bowett. The Law of International Institutions (4th ed. 1982).
7. I. Brownlie. Principles of Public International Law (1990).
8. Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Reports 174.
9. Supra note 8, p. 179.
10. Louis Henkin. R.C. Pugh, Oscar Schachter, H. Smit, International Law: Cases and Materials (3rd ed. 1993).
11. M. Rama-Montaldo. International Legal Personality and Implied Powers of International Organizations. 44 British Yearbookof International Law (1970).
12. Treaty on European Union and Final Act, Feb. 7, 1992, Art. A, 29 I.L.M. 1992.
13. U. Everling. Reflections on the Structure of the European Union. 29 Common Mkt. L.Rev. (1992)
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16. German Federal Constitutional Court judgment of the Maastricht Treaty of October 12, 1993, 33 I.L.M. (1994).
17. Paasivirta, Esa. The European Union: From an Aggregate of States to a Legal Person? Hofstra Law and Policy Symposium (1997).
18. Constitution (or Constitutional Treaty) for Europe, 2004, available at: http://europa.eu/constitution/index_en.htm.