The legal personality of international organizations
By Hesham Elrafei - Legal Expert - Founder of Lexanimata.com
an international organization is an entity established by a treaty and possessing its own international legal personality.
International organizations may include as members, in addition to states,
other entities.’
International organizations are established by States and it is the founding States of each organization that determine their powers and functions.
Powers and functions are written into the organization’s founding (or constitutive) instrument.
An example of this is the United Nations (UN) Charter.
Some organizations are set up for a variety of purposes, such as the UN, whereas others are set up for a very specific purpose, as is the case with the International Sugar Organization.
There is considerable debate as to the legal personality of international organizations and two theories are usually put forward, namely, the inductive and the objective approach.
According to the inductive approach, the rights and duties of organizations under international law are derived from their constitutive instrument. This includes not only those rights and duties that are expressly stated therein, but also those that may be implied on the basis of the object and purpose of the organization.
The objective approach suggests that the international legal personality of organizations is not dependent on their constitutive treaty, but on whether or not they fulfil certain conditions under general international law.
This theory is particularly important because the constitutive instruments of many organizations, including the UN Charter, do not specifically state whether the organization enjoys international legal personality.
The conditions required under the objective approach are the establishment of the organization by treaty and independence from the member States that established it. In practice, a combination of the two approaches is where the truth lies.
International organizations possess a legal personality that is wholly distinct from the personality of each and every State that established them, despite the fact that their member States act as their executive organs and adopt decisions that bind the legal personality of the organization. This means that any claim which the organization might have against any State or other entity belongs to the organization itself and is brought in its own name.
Equally, any liabilities attributable to the organization are incurred by it alone and not by its member States (AOI and ors v Westland Helicopters Ltd (1988)). Equally, organizations and their staff enjoy privileges (such as tax exemptions) and immunities in the countries where they operate. These are usually derived from: (a) domestic laws conferring immunities and privileges; (b) headquarters agreements, between the organization and the host state; (c) a multilateral agreement, such as the Convention on the Privileges and Immunities of the United Nations (1947); and (d) the organization’s constitutive treaty.