International Organizations Before National Courts Part 3 pot

ticular those which appear to be neutral in the sense of not to favour specific persons. Clearly, immunity for a certain group of persons is not neutral, but rather unilaterally places the burden upon the party seeking judicial redress. 5 Among those other doctrines may be included ‘non-recognition’ the- ories, relating to a concept of the legal personality of international organizations or to the legal significance of their activities; procedural law requirements, relating to the ripeness or justiciability of a dispute that might disqualify certain issues from judicial scrutiny; 6 and the ‘political questions’, ‘act of state’ or similar doctrines. Compared to these broader and not necessarily international-law-re- lated concepts, the issue of immunity is more concrete and will serve as a method of last resort for courts to avoid adjudication of a claim against an international organization. Non-recognition as a legal person under domestic law Legal personality is generally regarded as the capability to possess rights and duties under a specific system of law. 7 An international organiz- ation’s status as a ‘legal’, ‘juridical’ or ‘juristic’ person 8 under domestic law is a prerequisite not only for entering into legal relationships, 9 but 5 The subsequent analysis will try to show that the prima facie neutrality of other ‘avoidance doctrines’ is not necessarily impartial in all cases. 6 Those requirements of domestic (procedural) law generally apply to cases with an ‘inter- national’ aspect as well as to domestic cases. E.g., it appears well accepted in the US that principles as to jurisdiction, standing, mootness, ripeness, etc. apply to ‘foreign relations cases’ as to others. Restatement (Third) of the Law, The Foreign Relations Law of the United States (ed. American Law Institute, St Paul, MN, 1987), § 1, Reporters’ Note 4. The conclusion seems well founded, since these adjudicative principles relate to a court’s power of decision-making in general. 7 Klaus F. Ro¨hl, Allgemeine Rechtslehre (Cologne, Berlin, Bonn and Munich, 1994), 471; see also the ICJ’s definition of the international personality of the United Nations as an entity ‘capable of possessing international rights and duties’. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) ICJ Reports 174 at 179. 8 All these terms are used in treaties, legislation and the literature on the subject. Cf. pp. 12ff above. It appears, however, that the expression ‘legal’ person or personality is predomi- nant. It will thus mainly be used here. 9 Gu¨nther Beitzke, ‘Zivilrechtsfa¨higkeit von auf Staatsvertrag beruhenden internationalen Organisationen und juristischen Personen’ (1969) 9 Berichte der Deutschen Gesellschaft fu¨r Vo¨lkerrecht 77–119 at 84. Friedrich Schro¨er, ‘Die Anwendung von Landesrecht auf vo¨lker- rechtliche Zweckverba¨nde’ (1965) 25 Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lker- recht 617–56 at 620. Cf. also the case of the International Commission for the Northwest Atlantic Fisheries recounted by J. E. Carroz and A. G. Roche, ‘The Proposed International Commission for the Conservation of Atlantic Tunas’ (1967) 61 American Journal of Interna- tional Law 673–702 at 697ff. Like most other intergovernmental fisheries organizations, its 37avoidance techniques also for being a party to legal proceedings before domestic courts. Thus, only an international organization endowed with domestic legal person- ality can be subjected to judicial proceedings in national courts. Only then is a potential exemption ratione personae 10 (for example, immunity) or ratione materiae 11 (for example, lack of adjudicative power) of interest. Accordingly, the most radical method available to national courts in order to avoid adjudication of a dispute involving an international organ- ization is to regard international organizations as non-entities, unable to bring suit or to be sued. Usually this kind of non-recognition or de- recognition will be framed in the language of lack of personality. Immun- ity might clearly become secondary, or even irrelevant, if no domestic personality is granted to an international organization, because then there is no possibility of suing the non-entity in domestic courts. 12 Only if an entity can be considered a legal person under the forum state’s law, may it play a role before its courts. An entity that does not legally exist cannot sue or be sued before domestic courts. This argument seems universally applicable and of a compellingly simple logic. Nevertheless, it has only rarely entered the actual case law, not at least because the arguments, if raised at all, appear very artificial. Thus, the issue of legal personality, both international and domestic, of international organizations – although there are scholarly disputes over whether this is an objective or merely a derivative personality 13 – has to be addressed in an inquiry focusing on immunity and other jurisdictional issues. Since many authors consider that there is a direct link between international and domestic legal personality – that is, that the first is a preconditionofthesecond–andsincetheissueofthescope or extent of the personality of international organizations willshow similarities,the issue of international legal personality will be dealt with as well. To address the constituent agreement was silent on the issues of (domestic) legal personality. When the organization intended to contract for an insurance plan for its staff, it was advised by Canada as headquarters state that it was considered not to have legal authority to enter into a contract. Cf. also the criticism by Seidl-Hohenveldern, Corporations, 102, qualifying this Canadian ruling as an ‘astonishing exercise of legal positivism’. 10 Cf. pp. 127ff below. 11 Cf. pp. 99ff below. 12 Christian Dominice´, ‘L’immunite´ de juridiction et d’exe´cution des organisations interna- tionales’ (1984 IV) 187 Recueil des Cours 145–238 at 164: ‘[A]ccorder des immunitie´s a` une organisation qui n’aurait pas, en droit interne, la personnalite´ juridique, n’aurait pas grand sens, car ce ne serait pas l’organisation qui, par example, devrait eˆtre assigne´e en justice.’ See also Michael Singer, ‘Jurisdictional Immunity of International Organiz- ations: Human Rights and Functional Necessity Concerns’ (1995) 36 Virginia Journal of International Law 53–165 at 67, arguing that the question of legal personality precedes that of jurisdictional immunity. 13 See pp. 57ff below. 38 descriptive analysis issue of personality is further useful in view of the intrinsic parallelism between a functional personality and a functional immunity concept. 14 The problem before the courts A number of cases evidence that domestic legal personality is required for an international organization to be a party to legal proceedings before a national court. Although they usually stop short of de-recognizing or failing to recognize the legal personality of international organizations, their reasoning clearly demonstrates the essential importance of the personality of an international organization in order to enable a domes- tic court to adjudicate the underlying dispute. The well-known case of Manderlier v. Organisation des Nations Unies and Etat Belge (Ministre des Affaires Etrange`res) 15 illustrates this point aptly. Although finally holding that the UN could not be sued before the Belgian courts because of its absolute immunity in accordance with the General Convention, the Civil Tribunal of Brussels explicitly reasoned that the UN was competent to appear in legal proceedings in Belgium as a result of the legal personality it enjoyed in the territory of each member state by virtue of Article 104 of the UN Charter. In another Belgian case, Centre pour le de´veloppement industriel (CDI)v.X, 16 the legal personality of an international organization as a prerequisite to bring suit was also discussed. CDI, an international organization with its seat in Brussels, was set up within the framework of the Lome´ Conven- tions in order to facilitate the development of the industrial sector in the African, Caribbean and Pacific states. The defendant worked as a market- ing advisor for CDI. When his employment contract was unilaterally terminated by his employer, he sought and obtained an arbitral award granting him substantial damages. Thereupon CDI sued him in Belgian courts seeking to annul the arbitral award that the employee had ob- tained in his favour and to annul a lower Belgian court’s exequatur of the award, permitting its enforcement in Belgium. The defendant claimed, inter alia, that the action should be declared inadmissible because of the 14 Cf. Edwin H. Fedder, ‘The Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization’ (1960) 9 American University Law Review 60–9 at 63: ‘The reliance on the functional principle in determining the extent of protection for international organizations . . . did not stop at legal status. The change from previous practice is also evident in the privileges and immunities accorded to the organizations.’ See also Bekker, The Legal Position of Intergovernmental Organizations: A Functional Neccessity Analysis of Their Legal Status and Immunities (Dordrecht, Boston and London, 1994). 15 Civil Tribunal of Brussels, 11 May 1966; Brussels Appeals Court, 15 September 1969. See pp. 279f below for the facts of this case. 16 Tribunal Civil de Bruxelles, 13 March 1992. 39avoidance techniques claimant’s lack of domestic legal personality. The Belgian court rejected this contention on the basis that CDI’s legal personality was expressly recognized in the headquarters agreement with Belgium and probably also implicitly recognized as an automatic result of the CDI’s interna- tional legal personality. 17 The court ironically questioned how the de- fendant might have entered into an employment contract if CDI had lacked legal personality. 18 A similar situation arose in two legal proceedings instituted by the UN and UNRRA against former employees in order to recover moneys paid to them in excess of the amount due. Both in United Nations and UNRRA v. B 19 and in UNRRA v. Daan, 20 the defendants contended that the plaintiff organizations did not have the legal personality required to bring suit in the domestic courts. Both courts rejected this argument. In the former case, brought by the UN and UNRRA collectively in order to recover payments erroneously made to the defendant, without specifically refer- ring to the domestic legal personality clauses contained in the treaty establishing UNRRA 21 or to the UN Charter, a Belgian court simply stated that Belgium had ratified both instruments and that such ‘public interna- tional establishments, recognized by Belgian law, had thus juridical personality in Belgium’. 22 In UNRRA v. Daan, a Dutch court found that, as a result of a treaty provision according to which UNRRA had the power to acquire and transfer property, to conclude contracts and to perform all legal acts appropriate to the fulfilment of its tasks, ‘it must also be considered a legal person under Dutch law, and as such competent to act as a party to legal proceedings’. 23 In Arab Monetary Fund v. Hashim (No. 3) 24 the plaintiff organization almost failed in the English courts because of the uncertainty involving its legal status under English law. In the course of this litigation, which went all the way to the House of Lords, the Court of Appeal actually denied its adjudicative power over the dispute as a result of what it perceived as the Fund’s lack of legal personality under domestic law. 25 17 See pp. 59ff below. 18 (1992) Actualite´s du droit 1377 at 1381. 19 Tribunal Civil of Brussels, 27 March 1952. 20 Cantonal Court Amersfoort, 16 June 1948, District Court Utrecht, 23 February 1949, Supreme Court, Decision of 19 May 1950. 21 Agreement for United Nations Relief and Rehabilitation Administration, Washington, 9 November 1943. 22 (1953) Pasicrisie Belge III, 66: ‘que ces e´tablissements publics internationaux, e´tant recon- nus par la loi Belge, ont donc la personnalite´ juridique en Belgique.’ 23 (1949) 16 ILR 337. 24 Chancery Division, 9–12 October, 14 November 1989; Court of Appeal, 26–27 March, 9 April 1990; House of Lords, 26–28 November 1990, 21 February 1991. 25 See pp. 64ff below for a detailed discussion. 40 descriptive analysis In practice, courts may employ a number of different methods to de-recognize an international organization’s domestic legal personality and its capacity to claim or defend its rights and obligations in a domestic forum: courts might feel empowered to regard the legal personality of an international organization as non-existent if there is no explicit or impli- cit international rule bestowing such personality or if any such rule is not directly applicable under domestic law. They may also do so if there is no corresponding domestic rule implementing it or if there are no conflict of laws rules allowing a domestic forum to recognize the ‘foreign’ personal- ity of an international organization, etc. Before discussing these specific avoidance techniques, the normal case where personality clearly exists should be analyzed. Since this issue usually depends upon the existence of a domestically applicable rule attributing personality to international organizations, it largely becomes a question of the sources of personality of international organizations. The normal approach to domestic legal personality The following will provide an overview of how domestic legal personality, as a prerequisite to appearing in national courts, may become relevant in various national legal orders. Since it is frequently asserted that there is an intrinsic relationship between such domestic legal personality and international legal personality the latter will also be addressed. Different approaches between member and non-member states There seems to be a fundamental difference between where the issue of the domestic legal personality of an international organization is raised before a court of a member state of that organization or before a court in a third country. In general, member states are under an international obligation to accord such personality to an organization – pursuant to its constituent treaty or possibly under customary international law 26 – while non-member states – in the absence of specific treaty obligations 27 – remain free to recognize an organization as a legal person under their domestic law. Member states may fulfil their international law obliga- tions by regarding the treaty or customary requirements to confer per- sonality as directly applicable in the sphere of domestic law; non-member states are likely to rely on their domestic legislation or on other rules of domestic law to allow them to recognize the legal personality of an international organization. The cases analyzed will show, however, that it is rarely a problem of 26 See pp. 45f below. 27 See pp. 43f below. 41avoidance techniques whether national courts are willing to accept the domestic legal personal- ity of international organizations where they are obliged to do so, but rather one of their ability to recognize it where they are not obliged to do so. Therefore, it is not surprising that most cases where the existence of domestic legal personality was an issue arose in the context of organiz- ations before courts of non-member states as in Arab Monetary Fund v. Hashim (No. 3), 28 Westland Helicopters Ltd v. Arab Organisation for Industrialisa- tion, 29 International Association of Machinists v. OPEC 30 and Re Jawad Mahmoud Hashim et al. 31 The predominance of English decisions among those where domestic legal personality caused serious problems and the fact that it was in issue also in cases involving organizations of which the UK is a member, like the Tin Council proceedings, shows, however, that these difficulties are apparently not primarily a result of the UK’s non-membership of the organization in question but rather of its specific rules of private interna- tional law and of its peculiar treatment of norms of international origin within the domestic realm. 32 Moreover, courts are quite reluctant to distinguish between organiz- ations of which the forum state is a member and organizations of which it isnot–asamatterofprinciple– when confrontedwithanissue ofdomestic legal personality. Thus,the distinctionbetween member and non-member states will be dealt with incidentally in the following sections. Sources of domestic legal personality As in the case of international legal personality, 33 a treaty norm or possibly a rule of customary international law may form the basis for the domestic legal personality of an international organization. In addition, domestic law may – even independently of a possible international re- quirement to this effect – provide for such personality. Since questions of domestic legal personality become relevant primarily before domestic law-applying and law-enforcing organs (courts and administrative authorities), the determinative rules must be ones that are applicable under national law. Thus, it will frequently be an issue regarding the incorporation and applicability of international rules into and within the 28 Chancery Division, 9–12 October, 14 November 1989; Court of Appeal, 26–27 March, 9 April 1990; House of Lords, 26–28 November 1990, 21 February 1991. 29 High Court, Queen’s Bench Division, 3 August 1994. 30 US District Court CD Cal., 18 September 1979, affirmed on other grounds, US Court of Appeals 9th Cir., 6 July–24 August 1981. 31 US Bankruptcy Court D. Arizona, 15 August 1995. 32 See pp. 46f below. 33 See pp. 53ff below. 42 descriptive analysis national legal order that is decisive to the question of domestic legal personality of international organizations. In this sense it is certainly justified to say that the methods of granting domestic legal personality depend primarily upon the domestic legal order. 34 Treaties Frequently, international agreements (founding treaties of international organizations, headquarters agreements, etc.) contain an express stipula- tion either directly granting legal personality 35 or imposing an obligation to provide for it domestically. 36 Most treaties constituting international organizations contain explicit provisions on the domestic legal personal- ity of the organization in question. 37 34 Beitzke, ‘Zivilrechtsfa¨higkeit’, 84; See also C. F. Amerasinghe, ‘International Legal Person- ality Revisited’ (1955) 47 Austrian Journal of Public and International Law 123–45 at 125: ‘Whether personality is recognized in municipal law will depend primarily on the municipal legal system and law concerned.’ See, however, pp. 59ff below concerning the declarative or constitutive character of the domestic grant of domestic legal personality. 35 See pp. 72ff below for examples. In a monist legal system, such treaty provisions are likely to be regarded as self-executing, thus being able to be relied upon without domestic legal implementation. See pp. 46ff below. 36 For instance, the Agreement Between the United Nations and Austria for the Establish- ment of the European Centre for Social Welfare Training and Research of 24 July 1974 contained the following clearly non-self-executing obligation for Austria: ‘The host Gov- ernment shall take the necessary steps to establish the Centre as an autonomous non- profitmaking entity, having legal personality under Austrian law.’ (cited in (1974) United Nations Juridical Yearbook 21). A similar provision was contained in the Agreement Between the United Nations and Austria to Continue the European Centre for Social Welfare Training and Research of 7 December 1978: ‘The host Government shall take the necess- ary steps to ensure the Centre’s status as an autonomous non-profitmaking entity having legal personality under Austrian law.’ (cited in (1978) United Nations Juridical Yearbook 32). In a less explicit way, the personality provision of the Agreement Establishing the WTO could also be understood in this way. Article VIII(1) provides that: ‘The WTO . . . shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.’ (emphasis added). 37 E.g., Article 104 of the UN Charter, Article IX(2) of the IMF agreement, Article VII(2) of the IBRD agreement, Article XVI of the FAO agreement, Article 39 of the ILO agreement, Article 66 of the WHO agreement, Article 107 of the ITU agreement, Article 27 of the WMO agreement, Article 9 of the CERN agreement, Article 35 of the EFTA agreement and Article 12 of the WIPO agreement. For the exact wording of these provisions see pp. 72ff below. In some cases the relevant provision does not specify exactly whether it refers to international or domestic personality. For instance, Article IX(2) of the IMF Articles of Agreement and Article VII(2) of the IBRD Articles of Agreement merely provide that the Fund/Bank ‘shall possess full juridical personality’. In such situations, a clarification can frequently be found by referring to the ‘object and purpose’ provision, normally preced- ing such a grant of personality. Article IX(1) of the IMF Articles of Agreement and Article VII(1) of the IBRD Articles of Agreement start out thus: ‘To enable the [Fund/Bank] to fulfil the functions with which it is entrusted the status, immunities and privileges set forth in 43avoidance techniques The domestic legal personality of an international organization might also be provided for in agreements other than those establishing an international organization. Multilateral treaties, such as the UN General Convention 38 and Special Convention, 39 bilateral headquarters agree- ments and other treaties relating to the recognition of an international organization’s status by a member or – more importantly – by a non- member country are examples. 40 It has been argued that some constituent treaties of international organizations not containing any provision dealing with domestic legal personality 41 must be deemed to have implicitly conferred such personal- ity. 42 Indeed, one might reason that certain functions entrusted to an international organization which can only be carried out by acting in the area of private law can be seen as an implicit grant of domestic legal personality. 43 This argument closely resembles the implied powers doc- trine pertinent at the level of international legal personality. 44 Provisions this article shall be accorded to the fund in the territories of each member.’ (emphasis added). As a result it is a commonly shared view that these provisions relate to domestic juridical personality only. Cf. Arghyrios A. Fatouros, ‘The World Bank’s Impact on International Law – A Case Study in the International Law of Cooperation’ in Gabriel M. Wilner (ed.), Jus et Societas. Essays in Tribute to Wolfgang Friedmann (The Hague, Boston and London, 1979), 62–95 at 65, for the IBRD. In a similar vein, the provision on the FAO’s legal status in its Constitution, Article XVI, is not very explicit. Article XVI(1) provides: ‘The organization shall have the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the powers granted to it by this Constitution.’ There is no explicit provision dealing with international legal personality. So this could apply to either form of personality. However, since Article XVI(2) deals with the ‘immunities and facilities’ of the FAO to be granted by its member states, one can infer that it is domestic personality that is referred to in Article XVI(1). 38 Article I(1) of the General Convention. 39 Article II(3) of the Special Convention. 40 E.g., Article 7 of the OPECFund Headquarters Agreement with Austria of1981 according to which ‘[t]he Government recognizes the juridical personality of the Fund and, in particu- lar, its capacity . . .’. See also Article I(1) of the 1946 Interim Arrangement Between the UN and Switzerland providing that ‘[t]he Swiss Federal Council recognizes the international personality and legal capacity of the United Nations’. See also p. 61 below. 41 For instance, the Universal Postal Union (UPU). The same is also true for some other older organizations, e.g. the International Institute of Agriculture. 42 Hug – disputing any general customary rule conferring personality upon international organizations – submits that the UPU’s domestic legal personality can be deduced from the explicit assignment of certain functions – among them the publishing of notes on international postal services, the printing of postal ID’s and of intentional response cards as well as the publication of a journal (according to Articles 113, 115 and 117 of the UPU Rules of Procedure) – which clearly require legal capacity to enter into the necessary contractual relationships. Dieter Hug, Die Rechtsstellung der in der Schweiz nieder- gelassenen internationalen Organisationen (Berne, Frankfurt am Main, Nancy and New York, 1984), 65ff. 43 Beitzke, ‘Zivilrechtsfa¨higkeit’, 88. 44 descriptive analysis contained in a treaty establishing an international organization concern- ing separate property of the international organization, concerning the representation of the international organization, or providing for the capability to own property, to receive gifts or legacies, etc., provide evidence of such an implicit legal personality. 45 Custom Since most constitutive treaties expressly provide for the domestic legal personality of international organizations, the issue of a potential cus- tomary source of such personality may seem rather theoretical. It might become relevant, however, in two types of situations: (1) the rare case where the constituent treaty contains no provisions on domestic legal personality at all; and (2) where an international organization’s potential legal personality in a non-member state is concerned. 1. As far as the first situation is concerned, where the constituent treaty contains no provisions on domestic legal personality, the majority opinion seems to deny a customary obligation of states to recognize that an international organization enjoys legal personality under their domestic law. 46 However, for practical purposes, the theory of an implicit conferment of domestic legal personality 47 will effectively replace the need to postulate a customary law duty. 2. Regarding the latter situation, where an international organization’s potential legal personality in a non-member state is concerned, a duty for non-member states to recognize or accord domestic legal 44 See pp. 72ff below. 45 Cf. the treaty provision regulating UNRRA’s capacities which does not expressly mention the organization’s personality: ‘The Administration shall have power to acquire, hold and convey property, to enter into contracts and undertake obligations, to designate or create agencies and to review the activities of agencies so created, to manage undertakings and in general to perform any legal act appropriate to its objects and purposes.’ Article I(1) of the Agreement for United Nations Relief and Rehabilitation Administration (UNRRA). The Dutch district court’s conclusion that, as a result of these specific powers, ‘[UNRRA] must also be considered a legal person under Dutch law, and as such competent to act as a party to legal proceedings’ can be counted as an acknowledgment of an implicit conferment of domestic legal personality on UNRRA. UNRRA v. Daan, District Court Utrecht, 23 February 1949, (1949) 16 ILR 337. 46 Beitzke, ‘Zivilrechtsfa¨higkeit’, 86; Schlu¨ter, Die innerstaatliche Rechtsstellung,63ff; Karl Zemanek, Das Vertragsrecht der internationalen Organisationen (Vienna, 1957), 131ff; see, however, Jean-Flavien Lalive, ‘L’immunite´ de juridiction des e´tats et des organisations internationales’ (1953 III) 84 Recueil des Cours 205–396 at 304ff, arguing in favour of such a customary rule. See also the possibly differentposition of a seat state as discussed by Josef L. Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 American Journal of International Law 828–62 at 849. 47 See pp. 44f above. 45avoidance techniques personality to an international organization is generally denied by reference to the res inter alios acta rule. 48 Most authors seem – at least implicitly – to share that assumption. 49 It appears, however, again for practical purposes, that the readiness of third countries to recognize the domestic legal personality of international organizations in their respective legal orders as a result of their private international law/choice of law rules 50 or pursuant to domestic legislation 51 lessens the relevance of this question. National legal rules For a national court, confronted with the issue of the domestic legal personality of an international organization, it is a rule of domestic law that determines the legal status of such an entity within the domestic legal sphere. Even if this rule is of international origin, 52 to become operative for the purpose of determining an international organization’s precise legal status under domestic law, the rule must form part of domestic law. Thus, only domestic law can define or attribute the status of domestic legal personality. The incorporation of international rules concerning domestic legal personality may be achieved through various techniques such as adop- tion, general or specific transformation, etc. 53 Normally the relevant treaties leave it to the states parties how they implement a duty to confer domestic personality. 54 Frequently, domestic legislation on the issue of 48 E.g., Hug, Die Rechtsstellung, 51, denying any relevance of the provisions of the UN Charter and of theconstituent treatyof OIPC(Organisationinternationale pourla protectioncivile) on the legal personality of these origanizations in Switzerland as a non-member country. 49 Hug, Die Rechtsstellung, 65 with further references. According to Hug, an older doctrine seems to have held so: Lalive, ‘L’immunite´ de juridiction’, 303ff; Philippe Cahier, Etude des accords de sie`ge conclus entre les organisations internationales et les e´tats ou` elles re´sident (Milan, 1959), 71, 113. 50 Cf. pp. 50ff below. 51 Ignaz Seidl-Hohenveldern and Gerhard Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften (6th edn, Cologne, Berlin, Bonn and Munich, 1996), 53, give the example of Austrian legislation protecting the signs of Comecon and of the Commonwealth against private use as trademarks as examples of non-member states recognizing the domestic legal personality of international organiz- ations. 52 Cf. pp. 42ff above. 53 See in general Ian Brownlie, Principles of Public International Law (4th edn, 1990), 43; Felix Ermacora, ‘Vo¨lkerrecht und Landesrecht’ in Hanspeter Neuhold, Waldemar Hummer and Christoph Schreuer (eds.), O¨sterreichisches Handbuch des Vo¨lkerrechts (2nd edn, Vienna, 1991), 115–25 at 117ff; and Knut Ipsen, Vo¨lkerrecht (3rd edn, Munich, 1990), 1078ff. 54 Cf. 13 UNCIO, Doc. 803, IV/2/A/7 (1945), 817, regarding Article 104 of the UN Charter: ‘The Committee has preferred to express no opinion on the procedures of internal law necessary to assure this result [i.e., to provide for a juridical status permitting the UN to exercise its function]. These procedures may differ according to the legislation of each member State.’ 46 descriptive analysis [...]... between the international and the domestic legal personality of international organizations Based on the legal irrelevance of international legal personality for domestic personality, the theory of a ‘pluri -national domestic legal personality’ of international organizations was developed.1 43 According to this view, international organizations enjoy ‘parallel’ domestic legal 137 138 139 140 142 1 43 Maclaine... will of the states concerned – in order to ascertain the international legal personality of international organizations According to the most prominent version of this theory of the ‘objective international personality’ of international organizations, a rule of customary international law confers international legal personality upon international organizations which fulfil certain objective requirements... otherwise’ See also Peter H F Bekker, ‘The Work of the International Law Commission on ‘‘Relations Between States and International Organizations ’ Discontinued: An Assessment’ (19 93) 6 Leiden Journal of International Law 3 16 at 3ff 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations Ibid., Article 2(1)(j) a v o id a nce... of international organizations – section 2(a) of the International Organizations Immunities Act 1945 (IOIA)71 provides for domestic legal status to be accorded to international organizations In such monist systems, specific legislation might safeguard the possibility of granting personality to international organizations in which the legislating state does not participate72 or where agreements with international. .. relevance of the international legal personality of international organizations for their domestic personality It has been suggested that the domestic legal personality of an international organization could somehow directly flow from its international legal personality.88 Accordingly, the legal personality of an international organization under domestic law would be entirely dependent upon its international. .. and Loibl, Das Recht der Internationalen Organisationen, 43 Seyersted, ‘Objective International Personality’, 99ff; see also Zemanek, ‘Reponse’, in ´ (1995 I) 66 Annuaire de l’Institut de Droit International 32 5 58 de s cr i p t i ve an a l y s is ations.111 Its Draft Article 5 provides quite generally that: International organizations shall enjoy legal personality under international law’ From the... of international organizations, however, refers to the issue of whether the recognition of their international legal personality automatically includes a recognition of their personality on the domestic level or merely entails a duty to recognize them domestically.90 International legal personality The international legal personality of international organizations, their existence as subjects of international. .. that international organizations enjoy certain capacities – constitutive for their international legal personality – independently from an express conferment of them by their member states One may thus, for instance, still maintain that the treaty-making capacity of an international organization itself flows from general international law.117 However, the theory that international organizations enjoy international. .. automatic consequence of international legal personality within domestic law that is claimed by a group of scholars adhering to a 117 118 Finn Seyersted, ‘Treaty Making Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission’s Draft Articles on the Law of Treaties Between States and International Organizations or Between International Organizations (19 83) 34 Osterreichische... legislation is, in general, open to the obligated state. 132 Only in specific cases might there be an obligation under international 128 129 130 131 132 Hug, Die Rechtsstellung, 62, recounts a Swiss tradition in all its headquarters agreements with international organizations to ‘recognize’ their international legal personality Kelsen, The Law of the UN, 33 6; Simma and Vedder, ‘Art 211’ in Grabitz (ed.), Kommentar . recognize them domestically. 90 International legal personality The international legal personality of international organizations, their existence as subjects of international law, is widely recognized. in the case of international legal personality, 33 a treaty norm or possibly a rule of customary international law may form the basis for the domestic legal personality of an international organization August 1995. 32 See pp. 46f below. 33 See pp. 53ff below. 42 descriptive analysis national legal order that is decisive to the question of domestic legal personality of international organizations.