The Legal Nature of International Organizations

1980 ◽  
Vol 49 (1-2) ◽  
pp. 14-30
Author(s):  
Reinhold Reuterswärd
Keyword(s):  
International Law ◽  
International Organizations ◽  
Member States ◽  
Legal Personality ◽  
Legal Nature ◽  
Differences Of Opinion ◽  
Scientific Fact ◽  
Contemporary Writers ◽  
International Legal Personality

AbstractAmong contemporary writers on international law it is a widely held view that international organizations are new kind of subjects of international law besides the States, i.e., have an international legal personality distinct from that of their member States. Many writers, indeed, treat this as something almost self-evident and beyond dispute. Actually, however, the international legal personality of international organizations remains a theoretical thesis rather than a scientific fact. Although this thesis seems to be supported by most writers, there are considerable differences of opinion among theorists as regards both the basis of that international personality and its meaning. Furthermore, some important aspects of the matter have been given little attention by most writers. It would seem, therefore, that the problem is far from solved. Some writers differ from the majority and deny that international organizations have international legal personality. They have, I submit, convincingly shown that there are strong reasons to question the validity of the generally accepted doctrine.1 The purpose of the present paper is to set forth some of the facts which support the view of this minority and which deserve more attention than has so far been given to them.

Part III Forms of Organization, Ch.6 Formal Intergovernmental Organizations

2016 ◽  
Author(s):  
Klabbers Jan
Keyword(s):  
International Law ◽  
International Organizations ◽  
Organizational Design ◽  
Intergovernmental Organizations ◽  
Legal Personality ◽  
Relative Value ◽  
Legal Nature ◽  
Per Se ◽  
Set Up ◽  
International Legal Personality

International law provides little support for a hard and fast distinction between formal and informal international organizations (IOs). To the extent that the terms are useful, it is to signify a relative value: some organizations exhibit a higher degree of institutionalization than others or, differently put, the mixture of formal and informal elements in any organizational design may locate the organization on different points on a continuum between formal and informal. This chapter explores to what extent the formal-informal distinction affects foundational decisions: the decision to set up an organization, to grant or withhold international legal personality, and to endow it with specific powers. It suggests that the distinction between formal and informal meets with little resonance in the law of IOs or, more accurately, that while founding actors can opt for higher or lower degrees of formalization or institutionalization, their intentions have little direct bearing on the legal nature of the organization per se.

Abuse of the Legal Personality of International Organizations and the Responsibility of Member States

2007 ◽  
Vol 4 (1) ◽  
pp. 91-119 ◽  
Author(s):  
Jean d'Aspremont
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Decision Making Process ◽  
Member States ◽  
Legal Personality ◽  
International Obligations ◽  
International Legal Personality

AbstractIt is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.

scholarly journals THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS

2011 ◽  
Vol 60 (4) ◽  
pp. 997-1016 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
General Rule ◽  
International Organization ◽  
Member States ◽  
Legal Personality ◽  
European Court ◽  
Droit International ◽  
International Legal Personality

It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4

scholarly journals International Legal Subjectivity: Concept and Reality in the UN

2014 ◽  
Vol 4 (1) ◽  
pp. 381
Author(s):  
MSc. Ornela Taci
Keyword(s):  
United Nations ◽  
International Law ◽  
Qualitative Methodology ◽  
Legal Status ◽  
Legal Personality ◽  
Legal Subjectivity ◽  
Un Reform ◽  
Legal Nature ◽  
Open Debate ◽  
International Legal Personality

The article titled “International legal subjectivity: Concept and reality in the UN” the first, identifies debates on subjects of International Law briefly. The identification of debates serves to deal the creation of UNO (United Nations). Then, the article treates a brief historical overview on the functions of the UN since its creation until today to analyze international legal personality and its legal nature opposite functions that are dampened and transnational capabilities, the UN priority today. Also, it gives the reasons why the debate on UN reform should remain open.The aim of this study is to examine from the perspective of a qualitative methodology the characteristics of the legal status of the UN in space and in time to create a model based on Charter and on the real exercise of its functions but not according to denomination. The theories on international legal personality, the distribution of the United Nations and the consequences are not treated for this reason in this study. Also, historical and legal methods are used.The legal status of UNO is a tool to fulfil mission in approach of action of International Law, the challenge of the debate today. UNO was established in 1945 and acts are based on its Charter and international documents. The UN mission has changed today but the International Order is not in danger because the target of the UN is its renewal through reforms. The open debate on reform gives a contribution on evolution of International Law.

International Responsibility

2021 ◽  
pp. 176-207
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
International Law Commission ◽  
Final Consequence ◽  
Law Commission

The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.

International Organizations and the Creation of Customary International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 201-233
Author(s):  
Kristina Daugirdas
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Direct Role ◽  
Customary International Law ◽  
Legal Personality ◽  
Legal Questions ◽  
International Legal System ◽  
The Creation ◽  
International Legal Personality

Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.

Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent

1991 ◽  
Vol 85 (2) ◽  
pp. 259-280 ◽  
Author(s):  
C. F. Amerasinghe
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Agreements ◽  
Third Parties ◽  
International Level ◽  
Member States ◽  
Legal Personality ◽  
Municipal Law ◽  
Legal Consequences

One of the principal issues of interest to international lawyers in the International Tin Council cases decided by the English courts was whether member states of the International Tin Council (ITC) were secondarily or concurrently liable to third parties for the debts of the organization. This issue may arise when two or more states form an organization with legal personality that can perform functions with legal consequences. In the course of performing these functions, such an organization may incur liabilities to third parties. These third parties may be states, other organizations, individuals or legal persons. The states may be member states of the organization itself or other states, and the individuals and legal persons may be nationals of member states or not. The liabilities may emanate from transactions, such as international agreements between states and the organization, that take place at the international level and may be governed by international law; or they may stem from transactions governed by municipal law, whether between the organization and states, individuals or legal persons. Such liabilities may be contractual, quasi-contractual or delictual.

scholarly journals Damage in International Law: Precondition For State and International Organization Responsibility?

2021 ◽  
Vol 6 (3(16)) ◽  
pp. 381-408
Author(s):  
Enis Omerović
Keyword(s):  
International Law ◽  
Criminal Responsibility ◽  
International Organization ◽  
Punitive Damages ◽  
Legal Doctrine ◽  
Legal Personality ◽  
Legal Nature ◽  
Definition Of ◽  
International Law Commission ◽  
International Legal Personality

The first chapter of the paper elaborates the question of whether one of the constitutive elements of the internationally wrongful act and a precondition for responsibility could be embodied in an existence of damage that has to be inflicted upon participants with international legal personality. In this regards legal doctrine, the arbitral awards, international judgments as well as the works of the UN International Law Commission will be examined, particularly the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Draft Articles on the Responsibility of International Organisations from 2001 and 2011, respectively. An interesting question could be raised concerning the terms used in Law on Responsibility and that is whether there is a difference between damage, injury, and unlawful consequence. Punitive or penal damage and its application in Law on Responsibility will be further assessed. The author will begin its research with the definition of punitive damage, and will further take into consideration international legal doctrine, international arbitral awards, judicial decisions of international courts, decisions of various claims commissions as well as norms of general international law in supporting his hypothesis that international law does not entail reparations for punitive damages. One of the aims of this paper is to indicate the question of whether the existence of punitive damages in international law, if any, be linked to a legal nature of State and international organization responsibility, in the sense that application of punitive damages in international law would support the thesis on the very existence of criminal responsibility of the named subjects of international law? It is interesting to note that the criminal responsibility of states has been abandoned by the removal of Article 19 in the final Draft Articles on Responsibility of States.

scholarly journals LEGAL NATURE OF THE WORKING ARRANGEMENTS OF THE EUROPEAN BORDER AND COAST GUARD AGENCY

2020 ◽  
Keyword(s):  
International Organizations ◽  
Personal Data ◽  
Coast Guard ◽  
Legal Personality ◽  
Prior Approval ◽  
Legal Nature ◽  
International Obligations ◽  
The Right ◽  
International Legal Personality ◽  
First Time

The article analyzes the content and the procedure for concluding working arrangements of the European Border and Coast Guard Agency (FRONTEX). It is noted that, taking into account its legal personality, the Agency's partners may be third countries and international organizations with which it has the right to enter into the relevant arrangements on its own. The author draws attention to the fact that in FRONTEX’s enforcement practices there are different names of concluded agreements, but in form and content they are all working arrangements. The procedure for the negotiation and conclusion of working arrangements is analyzed and it is concluded that the EU pays serious attention to the legal instrument under consideration for cooperation with international partners. In particular, it is noted that the Commission and the Member States play a significant role in the harmonization of the text of the agreement. It is proposed to empower the European Parliament by granting it the right of prior approval of the final text of the document. The content of working arrangements concluded with third countries and international organizations is analyzed in detail and the following features are established: 1) since 2012, there is a trend to consolidate the principle of respect for human rights in agreements with third countries; 2) the agreements may contain provisions on the financial aspects of cooperation between the parties; 3) for the first time in the working arrangement with Kosovo, the provision on the exchange of personal data is enshrined; 4) certain working arrangements provide for the possibility of suspend of the agreement until the dispute is settled between the parties. It is concluded that the working arrangements are not international public treaties, because: 1) agreements with third countries directly establish that such documents do not create international obligations; 2) the agency is not endowed with the international legal personality to conclude agreements on behalf of the Union under the procedure provided for in Art. 218 TFEU; 3) the text of the document mainly contains non-binding wording. The author proposes to consider working arrangements as acts of soft law, the implementation of which leads to legal consequences. Cooperation between FRONTEX and third countries and international organizations is not limited by working arrangements and may be expanded by additional agreements.

ASEAN asWayang Kulit: A Critique of the Constitutional, Extra-constitutional, and Practical Fetters of ASEAN

2019 ◽  
Vol 9 (2) ◽  
pp. 275-297 ◽  
Author(s):  
Jose Duke BAGULAYA
Keyword(s):  
International Law ◽  
International Organizations ◽  
Structural Control ◽  
World Politics ◽  
International Organization ◽  
Control Mechanisms ◽  
Member States ◽  
Legal Personality ◽  
Rules Of Procedure ◽  
Wayang Kulit

AbstractInternational organizations have been described metaphorically as the Frankenstein of international law. They are created by states and yet more often than not they assume powers that humble their creators. This paper presents a different metaphor to describe the Association of Southeast Asian Nations [ASEAN]. Created in 2007, ASEAN, it is argued, resembles the fetteredwayang kulitin Indonesian theatre. It is an international organization which is controlled by its Member States in various ways. This paper analyzes three forms of ASEAN's fetters: constitutional, extra-constitutional, and practical. Constitutional fetters refer to the structural control embedded in the ASEAN Charter. Extra-constitutional fetters refer to rules of procedure that close the openness of the constitutional text. Finally, practical fetters refer to the ways the Member States limit ASEAN's legal personality in practice. Through these control mechanisms, ASEAN has so far acted on the stage of world politics according to the narrative of its puppet masters.

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