Introduction

States are the primary subjects of international law, but they are not exclusive subjects. Other
entities are afforded a degree of international legal personality or capacity. Of these entities,
international organisations are undoubtedly the most important.1This assignment will with the
aid of example discuss in sufficient detail the three requirements under which an international
organisation must satisfies in order to qualify to have legal capacity under international law
and a conclusion will therein be drawn.

Definition

An international organisation, for the purposes of international law, is an entity established by

agreement and which States as its principal members.2 In this respect, no definition of the
term “international organization” is to be found in a treaty.3 Legal writings may nevertheless
offer some guidance and according to Fitzmaurice, International Organizations have been
defined as “a collectivity of States established by treaty, with a constitution and common
organs, having a personality distinct from that of its member-State, and being a subject of
international law with treaty-making capacity”4 Reuter on the other hand refers to
international organizations as “an entity which has been set up by means of a treaty
concluded by State to engage in a co-operation in a particular field and which has its own
organs that are responsible for engaging in independent activities”5

Aust, states that an international organisation is rather like a company in that it has legal
personality separate from its members.6 This makes the organisation a subject of
international law, with rights and duties under it.7 Perhaps the most important aspect of
separate international legal personality is that the international organisation can enter into
treaties with other subjects of international law, whether member states, non-member
states or other international organisations. Organisations vary considerably in their
competencies, importance and membership.

1
Wallace R.M.M. (2005). International Law .(5th ed.). London: Sweet and Maxwell, p 70
2
Intergovernmental organisations are distinct from non-governmental organisations established by
individuals.
3
Article 2 para. 1 of the 1986 Vienna Convention on the Law of Treaties between States and International
Organizations
4
Report on the Law of Treaties, ILCYB (1956 II), 108
5
Reuter, P. and Combacau, J. (1985). Institutions et relations internationals, (3 rd ed.). as quoted in ILCYB
(1985II), P. 106
6
Aust, A. (2005) handbook of International Law. London: Cambridge University Press, p. 199
7
Ibid

1
The UN for example, is a global organisation enjoying almost universal membership, while
the Council of Europe is an example of a regional organisation as is the Organisation of
American States.
When legal personality has been conferred on an international organisation by the law of
a member state, the law of a non-member state may treat the organisation as having legal
personality even in that state.8
Legal Capacity or Personality of International organisations
An international organisation of States has legal capacity under international law if it satisfies
the following three essential elements:
i). it must be a permanent association of state members with established objectives and
administrative organs.
The role of international organisations in the world order centres on their possession of
international legal personality. Once this is established, they become subjects of international
law and thus capable of enforcing rights and duties upon the international plane as distinct
from operating merely within the confines of separate inunicipal jurisdictions.9
Not all arrangements by which two or more states co-operate will necessarily establish
separate legal personality. The International Court of Justice in Nauru v. Australia10 noted
that the arrangements under which Australia, New Zealand and the UK became the joint
Administering Authority' for Nauru in the Trusteeship Agreement approved by the UN in
1947 did not establish a separate international legal personality distinct from that of the
states.
Before an international organisation can make any impact on the international scene, it must
be afforded some degree of international personality.11 The degree of international
personality enjoyed by international organisations varies. An international organisation may
enjoy certain rights but not others, and while all States enjoy the same degree of personality,
that is not true of international organisations.12 In other words of international Courts of
Justice stated that international organisations are subject to international law which do not,
unlike States, possesses a general competence.

8
Arab Monetary Authority v. Hashim [1991] 2 WLR 738; 85 ILR 1
9
Shaw, M.N. (2003) International Law. (5th ed.). United Kingdom: Cambridge University Press, p. 1188
10
ICJ Reports, 1992, pp. 240,258; 97 ILR, pp. 1,25.
11
Ibid 1 at p. 71
12
ibid

2
International organisations are governed by the ‘principle of speciality’, that is to say, they
are invested by the State which create them with powers, the limits of which are a function of
the common interests whose promotion those States entrust to them.”13 The international
community has no legal and administrative process compared to that of incorporation in
municipal law, but it is significant that the latter may recognise unincorporated associations
as legal persons.14 In Reparation case15 the International Court of justice was asked for an
advisory opinion of the capacity of the United Nations, as an Organisation, to bring an
international claim in respect of injury to the United Nations caused by the injury to its
agents. The Charter did not contain any explicit provision on the legal personality of the
Organization,16 but the Court drew on the implications of the Charter as a whole.17

The subjects of law in any legal system are not necessarily identical in nature or in the extent
of their rights, and their nature depends upon the needs of the community.18 Throughout its
history, the development of international law has been influenced by the requirements of
international life, and the progressive increase in the collective activities of entities which are
not States.19 This development culminated in the establishment in June 1945 of an
international organisation whose purposes and principles are specified in the Charter of the
United Nations. But to achieve these ends the attribution of international personality is
indispensable.

ii). An International Organisation must possess some power that is distinct from the sovereign
power of its state member

International organisations frequently resemble States regarding the personality they possess
and their legal personality may, to some extent, parallel that of States. Organisations may
have the capacity to own, acquire and transfer property and to enter into contractual
agreements and international agreements with States and other international organisations.20

13
“Legality of the Use by a State of Nuclear Weapons in Armed Conflict” I.C.J. Report 1996 at 78
14
Cf. Knight and Searley v. Dove [1964] 2 QB 631
15
ICJ Reports (1949), 174
16
Article 104 relates solely to legal capacity of the Organization in the municipal law of member states
17
ICJ Report (1949), 178-9. Also the Advisory Opinion concerning Interpretation of the Agreement of the
Agreement of 25 March 1959 between WHO and Egypt, ICJ Reports 91980), 73 at 89-90
18
Brownlie, I. (2008). Principles of Public International Law. (7th ed.) New York: Oxford University Press, p. 676
19
ibid
20
Ibid 1 at p.17

3
They may pursue legal remedies and may enjoy rights and duties under international law.
International organisations are restricted though by their constituent charter, that is, the
agreement establishing the organisation. The most important aspect of separate
international legal personality is that the international organisation can enter into treaties
with other subjects of international law, whether member states, non-member states or
other international organisations. Determination of an organisation’s personality thus
demands the constituent document to be examined. The International Court of Justice has
acknowledged that the object of constituent instruments “is to create new subject of law
endowed with a certain autonomy, to which the parties entrust the task of realising common
goals”.21 However, personality may only be implied from the constituent document and
consolidated through the practice of the organisation.22

The question of personality or legal capacity will in the first instance depend upon the terms
of the instrument establishing the organisation. If states wish the organisation to be endowed
specifically with international personality, this will appear in the constituent treaty and will
be determinative of the issue.23

iii) The organisation’s powers must be exercisable on an international level rather than solely
under the national legal system of its member states.

However, personality on the international plane may be inferred from the powers or purposes
of the organisation and its practice. This is the more usual situation and one authoritatively
discussed and settled24 by the International Court in the Reparation for Injuries Suffered in
the Service of the United Nations case,25 where the Court held that the UN had international
legal personality because this was indispensable in order to achieve the purposes and
principles specified in the Charter. In other words, it was a necessary inference from the
functions and rights the organisation was exercising and enjoying.

21
“Legality of the Use by a State of Nuclear Weapons in Armed Conflict” I.C.J. Rep. 1996 at 75
22
Wallace, p. 72
23
Article 6 of the European Coal and Steel Community Treaty, 1951, and article 210 of the EEC Treaty, 1957
(now article 281 of the EC Treaty, Consolidated version). Also in Costa (Flamino v.ENEL (1964) ECR 585
24
(at least as far as the UN was concerned directly)
25
ICJ Reports, 1949, p. 174; 16 AD, p. 318

4
The Court emphasised that it had to be acknowledged that its26 members, by entrusting
certain functions to it, with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively discharged.27

For example, the UN Charter is silent on the Organisation’s international legal personality.
Only two Articles in the Charter deals explicitly with legal status, and then only with the
UN’s status within the UNs is to enjoy within Member States’ territory such legal capacity as
may be necessary for the existence of its functions and fulfilment of its purposes’, while Art.
105 provides that the UNs “shall enjoy in the territory of each of its members such privileges
and immunities as are necessary for the fulfilment of its purposes. The capacity of the UNs to
be party to agreement with States helped the International Court of Justice to conclude that
the Organisation indeed enjoy international legal capacity. The Court held that the United
Nations 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 the international plane.”28 In respect
of the International personality of the UNs when the General Assembly requested an
Advisory Opinion as to whether international organisation possessed the capacity to espouse
an international claim in respect of injury sustained by the UNs official while in the service of
the UN, the Court said that throughout its history, the development of international law has
been influenced by the requirements of international life, and the progressive increase in the
collective action of States has already given rise to instances which are not States. The
development culminated in the establishment in June 1945 of an international organisation
whose purposes and principles are specified in the Charter of the UN. But to achieve these
ends the attribution of international personality is indispensable.”29

The Court’s Opinion was to the effect that 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 the possession of a large measure of international personality and the capacity
to operate on an international plane… and could not carry out the intentions of the its
founders if it was of international personality.

26
[i.e. UN's]
27
Ibid 22 at p. 322.
28
The I.CJ. reaffirmed the independent legal personality of the UN, also Advisory Opinion on the Applicability
of Art. VI of the Convention on the Privileges and Immunities of the UN 1989 I.C.J. Rep. 177, 29 I.L.M. 98
(1990).
29
Advisory Opinion I.C.J. Rep. 1949, p. 174

5
It must be acknowledged that its members, by entrusting certain functions to it, with the
attendant duties and responsibilities, have clothed it with the competence required to enable
those functions to be effectively discharged.”30

The possession of international capacity meant that the organisation was a subject of
international law and capable of having international rights and duties and of enforcing them
by bringing international claims.31
Objective personality is not dependent upon prior recognition by the non-member concerned
and would seem to flow rather from the nature and functions of the organisation itself. It may
be that the number of states members of the organisation in question is relevant to the issue of
objective personality, but it is not determinative.32
The attribution of international legal personality to an international organisation is therefore
important in establishing that organisation as an entity operating directly upon the
international stage rather than obliging the organisation to function internationally through its
member states, who may number in the tens of dozens or more. The latter situation inevitably
leads to considerable complication in the reaching of agreements as well as causing problems
with regard to enforcing the responsibility or claims of such organisations internationally.33
However, there is a need to be careful not to confuse international with domestic legal
personality. Many constituent instruments of international organisations expressly or
impliedly provide that the organisation in question shall have personality in domestic law so
as to enable it, for example, to contract or acquire or dispose of property or to institute legal
proceedings in the local courts or to have the legal capacity necessary for the exercise of its
functions.34

30
Advisory Opinion ibid
31
Shaw, M.N. (2003) International Law. (5th ed.). United Kingdom: Cambridge University Press, P. 1188
32
Third US Restatement of Foreign Relations Law, St Paul, 1987, vol. I, p. 141, noting that 'an international
organisation with a substantial membership is a person in international law even in relation to states not
members of the organisation. However, a state does not have to recognise the legal personality of an
organisation of which it is not a member, which has few members, or which is regional in scope in a region to
which the state does not belong.' Cf. Amerasinghe, Principles, p. 86. It should be noted that the question of
objective personality is not essentially linked to recognition by non-member states as such. What will,
however, be important will be patterns of dealing with such organisations by non-member states.
33
Shaw. M.N. (2003). International Law. (5th ed.). United Kingdom: Cavendish University Press, p 1189
34
For instance, articles IX(2) and VII(2) respectively of the Articles of Agreement of the International Monetary
Fund and the International Bank for Reconstruction and Development. Also article 16 of the Constitution of
the Food and Agriculture Organisation, article 6 of the Constitutional of the World Health Organisation and
article 12 of the Constitution of UNESCO

6
Article 104 of the United Nations Charter itself provides that the UN 'shall enjoy in the
territory of each of its members such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes'. Where such provisions exist, it follows that
member states of the organisation have accepted an obligation to recognise such legal
personality within their legal systems. How that may be achieved will vary from state to state
and will depend upon the domestic legal system.35
To state that an international organisation has international personality does not dispose of
the question of what such personality entails. The attribution of international personality to an
organisation endows it with a separate identity, distinct from its constituent elements.
Whereas states are recognised as possessing the widest range of rights and duties, those of
international organisations are clearly circumscribed in terms of express powers laid down in
the constituent instruments or implied powers necessarily derived therefrom or otherwise
evolved through practice.36

The International Court emphasised that the attribution of international personality to the UN,
for example, was not the same thing as declaring the UN to be a state nor that its legal
personality and rights and duties were the same as those of a state. By the same token it did
not mean that the UN was a 'super-state'.37 The Court declared that UN personality involved
the competence to possess and maintain rights and the capacity to enforce them on the
international stage. Accordingly, whereas states would possess the totality of international
rights and duties recognised by international law, 'the rights and duties of an entity such as
the [UN] Organisation must depend upon its purposes and functions as specified or implied in
its constituent documents and developed in practice'. Precisely which powers and capacities
are involved will in reality therefore depend upon a careful analysis of the organisation itself,
including the relationship of such powers and capacities to the stated purposes and duties of
that organisation.38

35
For example article 282 of the EC Treaty (Consolidated Version) and Klabbers, (2002) An Introduction to
International Institutions, Cambridge University Press,, p. 49.
36
The Court in the Reparations case took particular care to emphasise that possession of international
personality was far from an ascription of statehood or recognition of equal rights and duties, ICJ Reports, 1949,
p. 185; 16 AD, p. 330.
37
ICJ Reports, 1949, p. 179; 16 AD, p. 322. Also the WHO case, ICT Reports, 1980, pp. 73, 89; 62 ILR, pp. 450,
473.
38
Shaw, p. 1193

7
In summary therefore, Ng’andu39 puts it rightly that an international organisation of States
has legal capacity under international law if it satisfies the following three elements:
1) It must be a permanent association of state members with established objectives and
administrative organs
2) An international organisation must possess some power that is distinct from the
sovereign power of its state member for instance, organs of the EU can order a
member state to act, over the State’s objection, in matters defined by the Union’s
constitutive international treaties.
3) The organisation’s powers must be exercisable on an international level rather than
solely under the national legal system of its member states.
Ng’andu40 further allude to the fact that public international organisation possess a legal
personality or capacity to exercise certain governmental power in a manner similar to those of
their individual member states. When those states yield the requisite degree of sovereignty to
the organisation it has truly international power- the capacity to engage in conduct otherwise
reserved to States.
Conclusion
The principle of international organisations in its operation on the international level is
reflected in their international legal personality, in other words, their ability to operate on the
international plane is distinct from the member states. The attribution of international
personality to an organisation endows it with a separate identity, distinct from its constituent
elements.

39
Ngandu, F. (2007) International Law: Module II (1st ed.). Lusaka: Zambian Open University, p.19
40
Ibid

8
Bibliography
Aust, A. (2005) Handbook of International Law. London: Cambridge University Press.
Brownlie, I. (2008). Principles of Public International Law. (7th ed.). New York: Oxford
University Press.
Klabbers. (2002). An Introduction to International Institutions. United Kingdom: Cambridge
University Press.
Ngandu, F. (2007). International Law: Module II. (1st ed.). Lusaka: Zambian Open
University.
Reuter, P. and Combacau, J. (1985) Institutions et relations internationals, (3rd ed.)

Shaw, M.N. (2003). International Law. (5th ed.). United Kingdom: Cavendish University
Press.
Wallace, R.M.M. (2005) International Law. (5th ed.). London: Sweet and Maxwell.
Reports referred to

1949 ICJ Reports

Report on the Law of Treaties, ILCYB (1956 II), 108