International Organizations
3.1 Characteristics of International Organizations as the Subjects of Private International Law
An international organization is an organization with an international membership,scope,or presence.There are two main types: international nongovernmental organizations (INGOs) and international governmental organizations (IGOs).In this section,the international organizations refer to the latter,i.e.,the organizations that are made up primarily of sovereign states (referred to as member states),notable examples include the United Nations (UN),and the World Trade Organization (WTO).[4]Today,international organizations have played a crucial role in international arena.In a globalized world they facilitate co-operation across state frontiers,allowing for the identification,discussion and resolution of difficulties in a wide range of subjects,from peacekeeping and peace enforcement to environmental,economic and human rights concerns.
International organizations are established for certain purposes.Once an international organization is established,it exists as a new legal person,separate and distinct from that of the states creating it.In order to achieve its purposes,an international organization has to conduct activities externally in addition to maintaining its internal operation,which thus raised the issue of international legal personality of the organization.That is to say,the prerequisite for an international organization to engage in external activities is that it is capable of enforcing rights and duties upon the international plane as distinct from operating merely within the confines of separate municipal jurisdictions.
The question of international personality,in principle,depends upon the terms of the instrument establishing the organization.If states wish the organization to be endowed specifically with international personality,this will appear in the constituent treaty and will be determinative of the issue.Furthermore,the personality of an international organization on the international plane may be inferred from the powers or purposes of the organization and its practice.Generally speaking,whether and to what extent an international organization possesses personality will hinge upon its constitutional status,its actual powers and practice.
From the perspective of international practice,an international organization,in the territory of each of its member states,is usually entitled to contract or acquire or dispose of property or to institute legal proceedings in the local courts or to have the legal capacity necessary for the exercise of its functions.[5]On the international plane,an international organization is entitled to adopt international conventions,mediate international disputes,hold international conferences,claim international compensations,bear international responsibility and possess other rights and duties as the subject of international law.
As the subject of international law,an international organization will inevitably be engaged in various civil and commercial exchanges with natural persons,legal persons,other international organizations,or even states in order to exercise its functions and to sustain its everyday operation.Therefore,an international organization is also the subject of private international law.The characteristics of international organizations as the subjects of private international law are reflected in the following aspects:
First,the civil and commercial activities that international organizations engage in are performed in its own name,independent of their member states.Second,international organizations should engage in the activities that are deemed necessary for fulfillment of their functions.For instance,Article 104 of the UN Charter provides that “[T]he Organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.” Third,unlike states,international organizations are established for particular purposes,and the functions are conferred upon them as being essential to the performance of their duties,which are usually expressly laid down in the constituent instruments.Fourth,the above mentioned characteristics make international organizations special subjects of private international law,unlike natural persons and legal persons that possess a general competence as subjects of private international law.Last but not least,international organizations are entitled to the grant of privileges and immunities for their assets,properties and representatives in order to carry out their functions effectively.
3.2 Privileges and Immunities
In order to carry out their functions more effectively,states and their representatives benefit from a variety of privileges and immunities.International organizations will also be entitled to the grant of privileges and immunities for their assets,properties and representatives.The two situations are not,of course,analogous in practice,since,for example,the basis of state immunities may be seen in terms of the sovereign equality of states and reciprocity,while this is not realistic with regard to organizations,both because they are not in a position of “sovereign equality” and because they are unable to grant (or withdraw) immunities as a reciprocal gesture.The true basis for the immunities accorded to international organizations is that they are necessitated by the effective exercise of their functions.For example,Article 105 of the UN Charter provides that:
(1) The Organization shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfillment of its purposes.
(2) Representatives of the members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.
Immunities may be granted to the representatives of states to the organization,to the officials of the organization and to the organization itself.As far as the position of representatives of states to international organizations is concerned,Article IV,Section 11 of the UN General Convention 1946 provides for the following privileges and immunities:(https://www.daowen.com)
(1) immunity from personal arrest or detention and from seizure of their personal baggage,and in respect of words spoken or written and all acts done by them in their capacity as representatives,immunity from legal process of every kind;
(2) inviolability for all papers and documents;
(3) the right to use codes and to receive papers or correspondence by courier or in sealed bags;
(4) exemption in respect of themselves and their spouses from immigration restrictions,alien registration or national service obligations in the state they are visiting or through which they are passing in the exercise of their functions;
(5) the same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;
(6) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys; and also
(7) such other privileges,immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy,except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.
One question that may arise is whether such immunity is absolute or,as is the case now with state immunity,a distinction between sovereign or public acts (jure imperii) on the one hand and private acts (jure gestionis) on the other can be drawn.However,it is believed that the analogy with state immunity is inappropriate.30 International organizations do not exercise sovereign power nor is the theoretical basis of reciprocity arguable.International organizations are not states,but entities created in order to perform particular functions.In any event,relevant treaties do not make a distinction between sovereign or public acts and private acts in the case of international organizations and such a distinction cannot be inferred.Some scholars have,indeed,concluded that such a distinction is not justified and that the key to immunity for international organizations is whether the immunity is necessary for the fulfillment of the organization’s functions and purposes.31
3.3 Applicable Law
International institutions are established by states by means of international treaties.Such instruments fall to be interpreted and applied within the framework of international law.Accordingly,as a general rule,the applicable or “proper” or “personal” law of international organizations is international law.In addition,the organization in question may well have entered into treaty relationships with particular states,for example,in the case of a headquarters agreement,and these relationships will also be governed by international law.Those matters that will necessarily (in the absence of express provision to the contrary) be governed by international law will include questions as to the existence,constitution,status,membership and representation of the organization.
However,the applicable law in particular circumstances may be domestic law.Thus,where the organization is purchasing or leasing land or entering into contracts for equipment or services,such activities will normally be subject to the appropriate national law designated by private international law rules.Tortious liability as between the organization and a natural person will generally be subject to domestic law,but tortious activity may be governed by international law depending upon the circumstances,for example,where there has been damage to the property of an international organization by the police or armed forces of a state.The internal law of the organization will cover matters such as employment relations,the establishment and functioning of subsidiary organs and the management of administrative services.The internal law of an organization,which includes the constituent instruments and subsidiary regulations and norms and any relevant contractual arrangements,may in reality be seen as a specialized and particularized part of international law,since it is founded upon agreements that draw their validity and applicability from the principles of international law.32