International Organisations as Subjects of International Law

International Organisations occupy an important position in the modern international legal system. Unlike States, which possess general and original international legal personality, international organisations generally possess legal personality derived from their constituent instruments and functions. Their international legal personality enables them to possess rights and obligations, enter into international agreements, bring or receive claims, and perform functions independently of their member States.

The recognition of international organisations as subjects of international law represents an important development from the traditional State-centred structure of Public International Law.

Meaning of International Organisation

An international organisation is an institution created by an international agreement between States, generally possessing:

• a permanent institutional structure;
• separate organs;
• defined purposes and functions;
• membership consisting primarily of States;
• a degree of legal personality.

Examples include:

• United Nations;
• World Health Organization;
• International Labour Organization;
• International Civil Aviation Organization;
• World Trade Organization;
• International Maritime Organization.

International Legal Personality

International legal personality refers to the capacity of an entity to possess rights and obligations under international law and to participate in international legal relations.

International organisations may possess international legal personality separate from that of their member States.

However, their personality is generally functional rather than unlimited.

This means that an organisation possesses those powers and rights that are necessary or appropriate for performing its legally assigned functions.

International Organisations as Subjects

International organisations are subjects of international law because they may possess:

• international rights;
• international obligations;
• legal claims;
• treaty-making capacity;
• responsibility under international law;
• privileges and immunities;
• capacity to participate in international legal proceedings.

However, their legal personality differs fundamentally from that of States.

States

States possess general international legal personality and sovereign powers.

International Organisations

International organisations generally possess personality limited by their constituent instruments and functions.

Creation of International Organisations

International organisations are generally created through an international agreement.

The agreement establishing the organisation is known as its constituent instrument.

Examples include:

• UN Charter for the United Nations;
• Constitution of the World Health Organization;
• ILO Constitution;
• agreements establishing specialised international institutions.

The constituent instrument defines:

• objectives;
• powers;
• organs;
• membership;
• voting arrangements;
• functions;
• financial structure;
• legal relationships.

Constituent Instrument

The constituent instrument performs a role similar to a constitution for the organisation.

It establishes the legal framework within which the organisation operates.

An organisation therefore cannot ordinarily exercise unlimited powers simply because an issue has international importance.

Its authority must be connected with the functions and powers granted by its constituent instrument.

Principle of Speciality

The legal personality of international organisations is governed by the principle of speciality.

Under this principle, an organisation possesses powers for the achievement of its specific purposes and functions.

For example, an organisation established to promote international health cooperation cannot ordinarily exercise unlimited authority over unrelated matters.

Thus:

International organisations possess powers for the purposes for which they were created.

Express Powers

An international organisation may exercise powers expressly granted by its constituent instrument.

These may include powers relating to:

• administration;
• treaty-making;
• financial management;
• dispute settlement;
• adoption of decisions;
• establishment of subsidiary organs.

Implied Powers

International organisations may also possess certain powers that are not expressly stated but are necessary for carrying out their functions.

These are known as implied powers.

The doctrine prevents an organisation from being unable to perform its functions merely because every necessary power has not been expressly written into its constituent instrument.

Reparation for Injuries Case, 1949

The leading authority concerning the international legal personality of international organisations is the Reparation for Injuries Suffered in the Service of the United Nations, 1949 advisory opinion.

The case arose after the assassination of Count Folke Bernadotte, the UN Mediator in Palestine, and the issue concerned whether the United Nations could bring an international claim for injury caused to its agent.

The ICJ recognised that the United Nations possesses international legal personality.

The Court also recognised that the organisation possesses powers necessary for carrying out its functions.

The case is therefore fundamental to understanding:

• international legal personality;
• implied powers;
• rights of international organisations;
• functional independence from member States.

Capacity to Bring International Claims

An international organisation with appropriate legal personality may be capable of bringing an international claim.

The organisation may seek protection for:

• its own rights;
• its property;
• its institutional interests;
• its agents where the applicable law permits.

The Reparation for Injuries opinion established the important principle that an international organisation can possess a legal capacity distinct from the legal personality of its member States.

Rights of International Organisations

International organisations may possess several international rights.

Right to Perform Functions

An organisation has the right to perform functions assigned to it under its constituent instrument.

Right to Enter International Agreements

An organisation may enter into international agreements where it possesses the necessary legal capacity.

Right to Bring Claims

Where legally authorised, an organisation may bring international claims.

Right to Privileges and Immunities

International organisations may enjoy privileges and immunities necessary for independent performance of their functions.

Right to Establish Subsidiary Organs

An organisation may establish subsidiary organs where permitted or necessary for performing its functions.

Duties of International Organisations

International organisations are not merely holders of rights.

They may also have obligations under international law.

Their duties may arise from:

• constituent instruments;
• international agreements;
• customary international law;
• general principles of law;
• other applicable rules of international law.

An organisation may therefore incur international responsibility for conduct that violates an applicable international obligation.

Responsibility of International Organisations

International organisations may incur international responsibility for internationally wrongful conduct.

The basic principle is similar to State responsibility:

Conduct attributable to the organisation

Breach of an international obligation

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International responsibility

The precise rules governing responsibility of international organisations are reflected in the work of the International Law Commission.

Attribution of Conduct

Conduct of an organ or agent of an international organisation may, in appropriate circumstances, be attributable to the organisation.

Examples may include conduct of:

• officials;
• organs;
• missions;
• authorised agents;
• other entities acting on behalf of the organisation.

The specific rules depend upon the circumstances and applicable international law.

Privileges and Immunities

International organisations generally require privileges and immunities to perform their functions independently.

These may protect:

• organisational property;
• official communications;
• documents;
• officials;
• representatives.

The purpose is not to provide personal benefits but to ensure the organisation can perform its functions independently.

International Agreements

International organisations may conclude agreements with:

• States;
• other international organisations.

Their capacity to conclude such agreements depends upon:

• their constituent instrument;
• their functions;
• applicable international law.

The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations is relevant to this area.

Participation in International Law-Making

International organisations contribute to the development of international law.

They may:

• facilitate treaty negotiations;
• adopt resolutions;
• develop international standards;
• establish legal institutions;
• promote codification;
• assist in the progressive development of international law.

The United Nations plays a particularly important role in these processes.

United Nations as a Subject of International Law

The United Nations is the most prominent example of an international organisation possessing international legal personality.

Its functions include:

• maintaining international peace and security;
• promoting international cooperation;
• protecting human rights;
• facilitating international law;
• coordinating humanitarian activities.

Its legal personality is distinct from the legal personality of its member States.

WHO and Other Specialised Agencies

Specialised agencies also possess international legal personality within their respective fields.

For example:

World Health Organization

Its functions focus primarily on international public health.

International Labour Organization

Its activities concern international labour standards and cooperation.

International Civil Aviation Organization

It deals with international civil aviation.

International Maritime Organization

It focuses on international maritime matters.

Their legal personalities are connected with the purposes and functions assigned to them.

Functional Personality

The personality of an international organisation is often described as functional personality.

This means that the organisation possesses international legal capacity to the extent necessary for performing its functions.

It does not possess the general sovereign authority of a State.

Therefore:

State → General international legal personality

International organisation → Functional and specialised legal personality

Independence from Member States

An international organisation is legally distinct from its member States.

Its legal personality means that:

• its rights are not simply the collective rights of its members;
• its obligations may be distinct from those of members;
• its property may be separate;
• its legal claims may be independent;
• its institutional decisions may have their own legal consequences.

However, the organisation remains governed by its constituent instrument and the powers conferred upon it.

International Organisations and Member States

The relationship between an organisation and its members can involve difficult questions.

An organisation may:

• act through organs composed of member States;
• possess independent institutional authority;
• adopt decisions;
• conclude agreements;
• incur separate legal obligations.

The legal responsibility of the organisation must therefore be distinguished from the responsibility of its member States.

International Organisations and State Responsibility

The fact that States participate in an organisation does not automatically make every act of the organisation an act of those States.

Similarly, an organisation cannot necessarily avoid responsibility merely because its organs consist of representatives of member States.

Responsibility must be determined according to the applicable rules of international law.

International Organisations and Individuals

Individuals may interact with international organisations in different capacities.

They may:

• work as international officials;
• receive protection as agents;
• be affected by organisational decisions;
• participate in international legal proceedings where permitted.

However, the legal personality of an individual and that of an international organisation are conceptually distinct.

International Organisations and International Courts

International organisations may interact with international courts and tribunals.

They may:

• request advisory opinions where legally authorised;
• participate in proceedings;
• submit information;
• be involved in legal disputes;
• establish or participate in dispute-settlement mechanisms.

The extent of these powers depends upon the relevant legal instrument.

Advisory Opinions

International organisations may have the authority to request advisory opinions from international courts where the applicable instrument permits it.

The United Nations General Assembly and Security Council, for example, possess authority to request advisory opinions from the ICJ under the UN Charter and ICJ Statute.

This demonstrates the active role of international organisations in the interpretation and development of international law.

International Organisations and Resolutions

International organisations frequently adopt resolutions and decisions.

Their legal effect depends upon:

• the organisation;
• the organ adopting the resolution;
• the constituent instrument;
• the nature of the decision;
• the circumstances of adoption.

Not every resolution creates legally binding obligations.

For example, General Assembly resolutions are generally recommendatory, while certain Security Council decisions may be binding under the UN Charter.

International Organisations as Sources of Legal Development

International organisations contribute to the development of international law through:

• codification;
• progressive development;
• treaty-making;
• institutional practice;
• resolutions;
• expert bodies;
• dispute settlement.

The International Law Commission is particularly important in the codification and progressive development of international law.

Implied Powers and Functional Necessity

The doctrine of implied powers is important because international organisations must be capable of performing their assigned functions effectively.

If an organisation is expressly given a function, it may possess powers reasonably necessary to perform that function even if those powers are not expressly listed.

However, implied powers are not unlimited.

They must remain connected with the organisation’s purposes and functions.

Important Cases

Reparation for Injuries Suffered in the Service of the United Nations, 1949

The most important case concerning the international legal personality of international organisations.

The ICJ recognised the United Nations as possessing international personality and the capacity necessary to perform its functions.

Certain Expenses of the United Nations, 1962

The ICJ considered the scope of UN powers and the legal nature of expenditures undertaken by the organisation.

The opinion is important for understanding the functions and institutional powers of the United Nations.

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954

The ICJ considered the legal consequences of decisions of the UN Administrative Tribunal.

The case is important for understanding the institutional authority of international organisations and their internal legal systems.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996

The ICJ considered the legal capacity of the World Health Organization to request an advisory opinion concerning nuclear weapons and public health.

The Court emphasised the principle of speciality, holding that an organisation’s powers are limited by its functions.

The case is therefore important for understanding the functional limits of international organisations.

International Organisations vs States

Point	States	International Organisations
Legal personality	General	Generally functional
Sovereignty	Possess sovereignty	Do not possess sovereignty in the State sense
Powers	Broad international powers	Limited by constituent instrument and functions
Creation	Historical and political development	Generally created by international agreement
Treaty-making	General capacity	Capacity depends on legal authority
Jurisdiction	Broadly recognised under international law	Limited and function-specific
Responsibility	Broad international responsibility	Responsibility connected with organisational conduct
Membership	Not applicable	Usually composed of States

International Organisations vs Individuals

Point	International Organisations	Individuals
Legal personality	Functional and institutional	Increasingly recognised in specific areas
Creation	International agreement	Natural persons
Rights	Institutional rights	Individual rights
Obligations	International organisational obligations	Obligations under specific international rules
Responsibility	Organisational responsibility	Individual international responsibility in certain areas

Common Confusions

Are international organisations sovereign?

No.

Sovereignty is a characteristic of States. International organisations possess legal personality and powers derived from their constituent instruments.

Do international organisations have unlimited powers?

No.

Their powers are limited by their constituent instruments and the principle of speciality.

Are international organisations subjects of international law?

Yes.

They can possess international rights and obligations and participate in international legal relations.

Are they equal to States as subjects?

No.

States possess general international legal personality, while international organisations generally possess functional and specialised personality.

Can an international organisation conclude treaties?

Yes, where it possesses the necessary legal capacity.

Can an international organisation incur international responsibility?

Yes.

An organisation may incur responsibility for internationally wrongful conduct attributable to it.

Can every international organisation bring a claim before the ICJ?

No.

The ability to participate in proceedings depends upon the applicable jurisdictional and institutional rules.

Are all resolutions of international organisations binding?

No.

Their legal effect depends upon the organisation, organ, constituent instrument and nature of the resolution.

Can an organisation exercise powers that are not expressly mentioned in its constituent instrument?

In appropriate circumstances, yes.

The doctrine of implied powers allows an organisation to exercise powers necessary for performing its functions.

Topic at a Glance

Point	Position
Subject	International Organisations as Subjects of International Law
Legal status	Subjects of international law
Personality	Functional and generally limited
Basis	Constituent instrument and international law
Core principle	Principle of speciality
Additional principle	Implied powers
Major rights	Claims, agreements, privileges and immunities
Major duties	Compliance with applicable international obligations
Responsibility	Possible for internationally wrongful conduct
Leading case	Reparation for Injuries, 1949
Important limitation case	WHO Nuclear Weapons Advisory Opinion, 1996
Major organisation	United Nations
Key distinction	Functional personality vs State sovereignty

Quick Revision

• International organisations are subjects of international law.
• Their legal personality is generally distinct from that of their member States.
• Their personality is usually functional rather than sovereign.
• Their powers are primarily determined by their constituent instruments.
• The principle of speciality limits their powers to their assigned purposes and functions.
• International organisations may possess implied powers necessary to perform their functions.
• They may possess rights and obligations under international law.
• They may conclude international agreements where legally authorised.
• They may bring international claims where the applicable legal framework permits.
• They enjoy privileges and immunities necessary for independent functioning.
• They may incur international responsibility for internationally wrongful conduct.
• The Reparation for Injuries, 1949 advisory opinion established the international legal personality of the United Nations.
• Certain Expenses, 1962 concerns the powers and functions of the UN.
• The WHO Nuclear Weapons Advisory Opinion, 1996 illustrates the principle of speciality.
• International organisations contribute to treaty-making, codification and progressive development of international law.
• Not every resolution of an international organisation is legally binding.
• States possess general international legal personality, while international organisations generally possess specialised and functional personality.
• The essential distinction is:

International organisations possess international legal personality, but they do not possess State sovereignty.

Conclusion

International organisations have developed from being merely forums for cooperation between States into important subjects of Public International Law. They possess international legal personality that enables them to hold rights and obligations, conclude agreements, bring claims, enjoy privileges and immunities and incur international responsibility. Their personality, however, is generally functional and limited by their constituent instruments and the principle of speciality. The doctrine of implied powers allows them to exercise powers reasonably necessary to perform their assigned functions. The Reparation for Injuries advisory opinion remains the leading authority establishing the international legal personality of the United Nations. Modern international organisations therefore occupy an important but distinct position within the international legal system: unlike States, they do not possess sovereignty, but they possess the legal capacity necessary to perform their internationally assigned functions.