University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD International Organisations Law 4

IOs as subjects of international law * There is a wide consensus that IOs can be viewed as subjects of international law Subjectivity of IOs is a relative notion, the precise contents of which may differ from one subject to another. Indeed, as we will see, the IOs personality is defined by the rules of the organisation. Indeed, it hinges upon its constitutional status, its actual powers and practice ICJ Nauru v Australia (1992, para 47): not all arrangements by which states cooperate will necessarily establish separate legal personality: e.g. arrangement between Australia, NZ and UK concerning the joint Administrative Authority for Nauru in the agreement approved by the UN in 1947 *As the ICJ recognised in the Reparation for injuries Opinion (1949, ICJ Reports, 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”. *Thus, not all IOs possess identical set of rights and obligations * Personality is a status conferred by a legal system, but since int. law does not have a single authority endowed with the power to confer personality, there is no certainty about the elements upon which an IO acquires personality.

Two contending theories invoke the Reparation for injuries Opinion (1949, ICJ Reports, 178) in support - a brief summary of the case (the Swedish Count Bernadotte, a mediator of the UN lost his life in Middle East - the General Assembly of the UN asked the ICJ whether the UN would possess the right to bring claim against the entity it held responsible). The ICJ reached the conclusion that UN had international legal personality, but it is unclear as to why exactly it came to the result 1. the objective theory: IP of IOs follows the same pattern as that of States - acquisition of organisation-hood which stems from possessing a distinct will of its own - it is not a legal fiction as long as its decision-making is based on the majority principle (after all, unanimous decision can always be traced back to the MS). It operates erga omnes because the practice of the international community substantiates its IP 2. the will theory: it is the will of the founders of the org. which is decisive. For instance, unlike the EU (Article 47 TEU), the UN Charter lacks a provision concerning international legal personality since during the negotiation the founders thought it was unnecessary A problem with the will theory is that the IP is an empty concept if third parties are not willing to enter engagements with the O. This problem may be solved by resorting to recognition by third parties

However, practice shows a more pragmatic approach best captured by the notion of presumptive personality: as long as the IO performs in a such way that it possess IP in accordance with some indicators, it is presumed that it enjoys legal personality Reparation for injuries Opinion (1949, ICJ Reports, 185) supports this pragmatic approach: 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 the capacity to bring claims”. The presumption can be rebutted as long as indictors do not confirm that the O. does not exercise it in fact, for instance by notconcluding international treaties or by not exercising the so-called jus missionis

Indicators of subjectivity 1. right to enter international agreements (treaty-making capacity) 2. right to send and receive legations (jus missionis) 3. capability to bring and receive international claims they are not, strictly speaking, requirements, since if an IO does not exercise one of them it does not necessarily follow that it ceases to be a subject in the Reparation for injuries opinion, the ICJ alluded to two of them, without specifying their source: a) “competence to bring international claim”, i.e. “protest, request for an enquiry, negotiation and request for a submission to an international tribunal” (177); b) capacity “for the conclusion of agreements between the organisation and its Members” (179)

1. The treaty-making capacity According to the 1986 Vienna Convention on the law of treaties, it springs from general international law (see preamble, referring to the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purpose) Article 6 of the Convention specifies that the treaty-making power of the organisation “is governed by the rules of that organisation” So this capacity may be limited or even virtually unlimited, depending on the constituent instrument, decision and resolution of the relevant org. As a matter of fact, the treaty-making capacity is usually limited by the constituent instrument. The principle of conferral usually applies to IOs

2. Jus missionis Practice reveals that a number of IOs have permanent missions with states, and vice-versa by way of illustration, the EU. It has its missions inter alia in Washington, Geneva and Tokyo it is far from unique for IOs to have missions with one another (see the Applicability of the Obligation to Arbitrate Opinion, 1988 ICJ Reports, 12, at 15, para. 8)

3. Right to bring and receive claims As the ICJ affirmed in its Reparation for injuries Opinion, IOs may have the capacity to bring international claims: it appeared to imply that this right was inherent in being an organisation, by stating that “it cannot be doubted” that the UN can lodge a claim against a MS (p. 180) An illustration: the dispute between the UN and USA under Section 21 of the Headquarter Agreement: ICJ Opinion (1988) As a matter of fact, this capacity may be subject to limitations: for instance, IOs cannot be a party before the ICJ in contentious proceedings (Article 34(1) of the ICJ Statute) Moreover, claims before national tribunals against IOs may be actually limited by its immunities

Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by WHO) Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 74-75 “the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties”

The EU international legal personality The EU well-established practice to conclude international agreements with third parties Following an invitation sent to the European Union by the parties involved in the conflict in Bosnia-Herzegovina, the Council adopted in May 1994 a joint action within the framework of the Common Foreign and Security Policy (CFSP), the aim of which was to administer the town of Mostar, one of the towns most affected by the fighting. The EU action intended to finance the setting-up of a new Administration for the town of Mostar by the European Union (EUAM) setting-up of the Administration, the main objective of which was to overcome cultural, religious and ethnic differences so as to achieve peaceful coexistence in the town. In addition to this fundamental political objective of the EUAM, other objectives were set for the economic recovery of the town

A distinct concept - Legal personality under domestic law Many constituent treaties of IOs set out provisions as regards their personality under the domestic law of their MS: - Article 104 UN Charter: “The O. shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and fulfilment of its purposes” - Art. 335 TFEU: “In each of the MS, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws …” This kind of personality entails the right to acquire or dispose of movable and immovable properties, as well as right to be a party to legal proceedings Treaty wordings usually implies that the O. possesses the largest possible degree of personality as recognised in domestic law Legal personality under domestic law can only affect the organisation’s position within its MS, and not that as regards third states (pacta tertiis nec nocent nec prosunt, Art. 34 1969 Vienna Convention on the LoT). Thus, as to third States IO’s personality depends on their respective domestic law - the Arab Monetary Fund v Hashim and others case: House of Lords comity requires that the status of an IO should be recognised by the Courts of the UK