Legal Status (Personality)
In an international legal system that was set up around states, it is not surprising that the question of the international legal status of international organizations continues to pop-up, both in legal doctrinal debates and in judicial proceedings. The question of the legal status of international organizations is connected to their coming of age as autonomous legal subjects (leaving aside the question of whether they can be anything else). After all, it is only because of the acceptance of a distinction between the organization and its members that rights and duties of international organizations become relevant.
At the same time, it is the very tension between the organization and its members that seems to underly most of the debates in international institutional law. Text books often refer to the Janus-faced nature of international organizations: they are created by and composed of states, while at the same time in need of a certain autonomy. In order for states to become a member of something, there needs to be something. States make the rules from which international organizations draw their competences; in turn international organizations may be created to make rules to limit the freedom of the exact same states. International organizations are both creations and creators.
It is in particular the institutionalization of the legal order and the autonomy of international organizations that has led not only to the adoption of ‘international decisions’ (the products of law-making by international organizations), but also to questions related to their responsibilities and immunities. Literature on the law of international organizations and their role in the international legal order is quite extensive, and has been booming over the past decade. There is no doubt that states continue to be influential—and frequently clearly decisive—in relation to the role and function of the international organizations they created for certain purposes. Yet, as has been noted by many over the past years, the law-making functions of many international organizations made us aware of the existence of—perhaps not the emergence of a world government1—but at least of global governance ‘beyond the state’ in what is sometimes normatively framed as a ‘world community’.  International organizations have found their place in global governance, and are even considered ‘autonomous actors’, following an agenda that is no longer fully defined by their Member States— which has caused the latter to devote much of their time and energy to responding to what has been termed the ‘Frankenstein problem’.
It is therefore no coincidence that we start this collection of cases by addressing the legal status of international organizations. This question is closely connected to the question of the organizations’ legal personality. Basically, the legal status question concerns an organization’s subjectivity under international law. It has to do with the entity’s legal existence. Once that can be established one may say that an international organization enjoys legal personality: it can have legal rights and duties (or at least one right or duty).
Literature on the legal personality of international organizations is abundant and the classic debates never seem to reach a unified conclusion. Can international organizations exist without legal personality, or is legal personality a (perhaps the) feature to distinguish it from a more loosely organized international conference? Can international organizations have a ‘partial’ legal personality, or is the partiality related to their competences only? Perhaps the most pragmatic solution would be to follow Klabbers’ (somewhat circular) notion that ‘as soon as an organization performs an act which can only be explained on the basis of international legal personality, such an organization will be presumed to be in possession of international legal personality.’
The cases analysed in this Part do not provide all the answers. In fact, most of the time they form the source of the debates in academic circles as well as in Court rooms. This may be particularly true for the question of whether the United Nations could bring a claim against a (non-member) state (Reparation, Wessel). The fact that the UN was not merely a centre ‘for harmonizing the actions of nations’ reflects the foundation of international institutional law. In 1949 the International Court of Justice well understood the importance of the concept of legal personality and apart from solving a practical issue, its Advisory Opinion is full of references which indeed later formed the building blocks of the subdiscipline called the law of international organizations (such as the attribution of competences, implied competences, the importance of the objectives of an organization, or subsequent practice).
In a similar vein as the Reparation case defined the legal status of the UN, the ERTA case can be seen as a founding case in relation to the international legal competences of the European Union (ERTA, Klabbers). This case revealed the EU’s (or in fact at that time the European Community’s) external competences, on which—as in the case of the UN—not too much was regulated in the founding treaty. Again, implied competences were derived from both objectives and existing express competences. ERTA made clear that the European Community had become an international organization that was not only competent to regulate its own member states, but that it could (and in fact should) also engage in legal relations with third states on those matters: whatever the EU can do internally, it can also do externally.
The question to which extent the separate legal personality of an international organization is consistent with the possibility of members being held responsible for the conduct of the organization became apparent in domestic proceedings in the United Kingdom in the 1980s (International Tin Council, Palchetti). The judgment of the House of Lords is still leading in debates on the extent to which membership of an international organization can entail responsibility for the acts of the organization. This was also one of the central questions in the discussions in the International Law Commission that led to the 2011 Articles on the Responsibilities of International Organizations.
The distinction between domestic and international legal personality that was made by the House of Lords in the Tin Council case, returned in the 1990s in a case before the same court (Arab Monetary Fund, Schmalenbach). The case is interesting because it reveals the influence of a dualistic (UK) approach to the legal status of international organizations. Rather than following the ‘objective’ approach to international organizations of which the state is not a member—which was for instance used by the ICJ in the Reparation case—the Lords took recourse to the United Kingdom’s own rules on conflict of laws in order to recognize the Arab Monetary Fund as a corporate body established under the laws of the United Arab Emirates.
Like states, international organizations are abstract entities; they act through their organs. In discussing their legal status, one will have to remain aware of the fact that decisions are always taken by organs on the basis of the internal institutional rules of the organization. In two EU cases the relationship between the institutions and the organization was further developed (Algera, and France v Commission, Klabbers). The Court made clear that questions of international personality should be related to the organizations and not (necessarily) to the organs (‘institutions’ in EU jargon) of the organization. Here we see an interesting parallel between statehood and ‘organizationhood’ that is present in other debates as well (e.g. on international responsibility): we should in principle see the organization as a unity.
But, if that is the case, member states would be offered possibilities to hide behind the organizational veil and would perhaps find reasons to evade their individual responsibilities under international law. The question of how and when this veil can or should be pierced, returned when Macedonia was denied membership of NATO due to the fact that the organization could not reach a unanimous decision on that point (FYROM v Greece, Barros). The reason for a lack of consensus was that one member state, Greece, blocked Macedonian membership as a result of their differences of opinion concerning the correct use of the name of that state. The ICJ argued that the veil of an international organization must, when relevant, be lifted, in order for (member) states to be directly addressed by international law.
In the present Part in this collection this tension forms a thread that links the different cases together. Accepting a separate legal status of international organizations is a logical consequence of the fact that international organizations were established as separate entities. The states that created these organizations became members of these new entities and in that capacity willingly subjected themselves to the rules of the organization. The moment they take their ‘seat’ they are in fact part of the organization’s institutional structure. Yet, both in a practical and a conceptual sense it is difficult to deny the fact that member states remain states. Allowing them to hide behind the institutional veil would not only imply a denial of their individual international legal responsibilities, but also of political realities.