1. University of Macerata Prof. Avv. Roberto Baratta, PhD
International Institutions Law 4

2. IIs as subjects of international law
There is a wide consensus that IIs can be viewed as subjects of international law AO on the Interpretation of the Agreement of 25 March 1951 between the WHO and the Egypt, ICJ Reports 1980, para. 37: ”International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties” → the right of denunciation was implied in that Agreement (para 41), which created a “body of mutual obligations of co-operation and good faith” (para 43)

3. Subjectivity of IIs is a relative notion, the precise contents of which may differ from one subject to another. Indeed, as we will see, the IIs personality is defined by their rules. 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 IIs 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, it is argued that there is no certainty about the elements upon which an II acquires personality.

4. 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 IIs 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

5. 2. the will theory: it is the will of the founders of the org
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 I. This problem may be solved by resorting to implied recognition by third parties that have international relations with a given institution

6. However, practice shows a more pragmatic approach best captured by the notion of presumptive personality: as long as the II 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 I. does not exercise it in fact, (effectiveness) for instance by not concluding international treaties or by not exercising the so-called jus missionis

7. Indicators of subjectivity
1. power to enter international agreements (treaty-making capacity)
2. power to send and receive legations (jus missionis)
3. capability to bring and receive international claims
they are not, strictly speaking, requirements, since if an II 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)

8. 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 applies to IIs

9. 2. Jus missionis
Practice reveals that a number of IIs 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 an II to have missions agreements with other entities (see the Applicability of the Obligation to Arbitrate Opinion, 1988 ICJ Reports, 12, at 15, para. 8)

10. 3. Right to bring and receive claims
As the ICJ affirmed in its Reparation for injuries Opinion, IIs 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, IIs cannot be a party before the ICJ in contentious proceedings (Article 34(1) of the ICJ Statute)
Moreover, claims before national tribunals against IIs may be actually limited by its immunities

11. 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 ‘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’

12. 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

13. A distinct concept - Legal personality under domestic law
Many constituent treaties of IIs 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 I. 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 Vienna Convention on the LoT).
Thus, as to third States II’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 II should be recognised by the Courts of the UK