International Organisations: Personality and Reparation Case

International organisations such as the United Nations, the WHO and the World Bank carry out functions that states could not perform alone. To act, they need legal personality, both within the legal systems of states and in international law. This note explains how organisations acquire personality and powers, centred on the Reparation for Injuries opinion of 1949, and covers their obligations, immunities and responsibility.

1. Meaning and Kinds

• Definition. An organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality; its members may include states and other entities (Article 2(a), ILC Articles on Responsibility of International Organizations, 2011)
• Kinds. Universal, such as the UN, or regional, such as the African Union; general, or specialised, such as the ILO; intergovernmental, or supranational, such as the European Union, whose organs can bind members directly.

2. Personality under the Charter

• Article 104. The Organization shall enjoy in the territory of each member such legal capacity as may be necessary for the exercise of its functions, giving it personality under national law to contract, hold property and sue.
• Article 105. The Organization, its officials and representatives of members enjoy the privileges and immunities necessary for the independent exercise of their functions; detailed in the Convention on the Privileges and Immunities of the United Nations, 1946.
• India. The United Nations (Privileges and Immunities) Act, 1947 gives effect to the 1946 Convention in India.
• International personality. The Charter does not state expressly that the UN has international personality; the question was answered by the ICJ in 1949.

3. Reparation for Injuries, 1949

Figure 1: The reasoning of the Court

• Personality. The UN was intended to exercise functions and rights that can only be explained on the basis of a large measure of international personality; it is a subject of international law capable of possessing rights and duties and of bringing international claims.
• Implied powers. Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred on it by necessary implication as being essential to the performance of its duties.
• Functional protection. The UN can claim reparation for damage to itself and for damage to its agent, to ensure that agents can perform their duties independently; where the agent's national state also claims, the two should reconcile their claims.
• Objective personality. Fifty states, representing the vast majority of the international community, had power to create an entity with personality opposable to non-members; Israel was not then a member.

4. Powers and Limits

Figure 2: Advisory opinions on organisations

• Implied powers developed. In Effect of Awards (1954), the General Assembly could set up an administrative tribunal whose awards bound it; in Certain Expenses (1962), expenses of the peacekeeping forces in the Middle East and the Congo were expenses of the Organization, and action appropriate to the UN's purposes is presumed not to be ultra vires.
• Principle of speciality. Organisations have only the powers given to them to promote the common interests entrusted to them; the WHO could not ask about the legality of nuclear weapons (1996)
• Obligations. Organisations are bound by general rules of international law, their constitutions and their agreements (Interpretation of the Agreement between the WHO and Egypt, 1980)
• Treaty making. Organisations conclude treaties within their competence; the Vienna Convention on treaties of international organisations, 1986 is not yet in force.

5. Immunities and Responsibility

• Functional immunities. Organisations and their officials enjoy immunities needed for their functions; in Cumaraswamy (1999), a UN Special Rapporteur was entitled to immunity from legal process for words spoken in his mission, and Malaysia's courts were obliged to respect the Secretary-General's finding.
• Immunity and access to justice. Courts have upheld UN immunity even for serious claims, as with claims by victims of the cholera outbreak in Haiti, raising concerns about remedies.
• Responsibility. The ILC adopted the Articles on Responsibility of International Organizations in 2011, applying principles similar to those for states.

6. Frequently Asked Questions

Does the UN Charter expressly give the UN international personality?

No. Article 104 deals with legal capacity in members' territory. The UN's international personality was inferred by the ICJ in Reparation for Injuries (1949) from its purposes, functions and powers under the Charter.

What is the doctrine of implied powers?

An international organisation has, in addition to its express powers, those powers that are necessarily implied as essential to the performance of its duties, as the ICJ held in Reparation for Injuries (1949).

7. Related Topics

• Topic 18: Subjects of International Law. Categories of subjects.
• Topic 32: Specialised Agencies and Regional Organisations. ILO, WHO and others.
• Topic 56: United Nations. Organs and membership.