By: James G. Apple, Editor-in-Chief, International Judicial Monitor, and President, International Judicial Academy Principle: International organizations can have “legal personalities” or be “international persons” subject to international law and “capable of possessing international rights and duties,” including the right to bring international claims.

The status of international organizations with respect to their standing and their rights and duties is not addressed in the Charter of the United Nations or in the charters and organic documents of other international organizations.  Questions about the legal personality of an international organization have arisen with respect to an international organization’s capacity to: (1) make claims for breaches of international law; (2) make treaties or agreements that are valid internationally; and (3) possess privileges and immunities enjoyed by individual nations.[i]  However, the issue of the legal personality of international organizations was addressed by the International Court of Justice (World Court) in its Advisory Opinion in the Reparation for Injuries case.[ii]

In December, 1948 the General Assembly of the United Nations passed a resolution requesting an advisory opinion from the ICJ on two questions:

      I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim again the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or (c) to persons entitled through him?

      II. In the event of an affirmative reply on point I(b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?

In its opinion released in April, 1949, the ICJ noted that the United Nations was not created as a center “for harmonizing the actions of nations in the attainment of common ends.” Rather, the UN had “organs” and the Charter had invested it with “specific tasks.”

The Court ruled on the first question:

[T]he Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. Still less is it saying that it is a “super-State”, whatever that expression might mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.

The ICJ followed up with a summary of the “criteria for legal personality in [international] organizations.” These are:

1. A permanent association of states, with lawful objects, equipped with organs;
2. A distinction, in terms of legal powers and purposes, between theorganization and its member states;
3. The existence of legal powers exercisable on the international planeand not soley withion the national systems of one or more states.

While these criteria may resolve easily and completely questions of legal personality of an international organization in some instances, in other cases there may be both legal and factual issues with respect to a particular organization that require substantial examination and analysis. In such instances the document or documents creating the organization and establishing its purposes, functions and powers will be critical to resolving the issue.

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[i] Ian Brownlie, Principles of Public International Law (New York: Oxford University Press Inc., 2003), 57.
[ii] ICJ Reports (1949), 174.