Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/15.0288

1
Support of the foreign language profile of law
tuition at the Faculty of Law in Olomouc
CZ.1.07/2.2.00/15.0288
Palacky University Olomouc Faculty of Law
Law of International Organisations - Legal
character and personality - Lecture 3 (14. March
2011)
2
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

3
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??

4
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?'

5
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.

• term subject of IL
• scope of its rights and duties

classification of subjects
6
Reparations for Injuries Suffered in the Service
of the United Nations (1949) ICJ Rep. 174

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

7
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

8
Subjects of IL
subjects with limited legal personality
States
other subjects
International Governmental Organisations
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
9
International Legal Personality

• subject of IL (having IL personality)
• Entity deemed capable of independently bearing
  rights and obligations under international law
• IO subject of IL, if able to bear
  independently rights and obligations under
  international law

10
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

11

• 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

12
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.

13
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 organizations 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.

14
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

15
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

16
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.

17
Legal personality of the UN

• Reparations for Injuries (ICJ 1949, p. 178)
• In the opinion of the Court the Organisation
  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 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 organisation and it could
  not carry out the intentions of its founders if
  it was devoid of international personality

18
Does the UN have capacity to bring a claim in
reparation against a state which is not a member
of the UN?

• Reparations for Injuries (ICJ 1949, p. 185)
• The fifty States, representing the vast
  majority of the members of the international
  community had the power, in conformity with
  international law, to bring into being an entity
  possessing objective international personality
  and not merely personality recognised by them
  alone, together with capacity to bring
  international claims

19
Legal personality under municipal law

• explicitly stated in the founding treaty
• implied recognition
• implied powers
• headquarters agreement
• by becoming a member of the IO

20
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

21

• Thanx for your attention!
• See you next week! ?