Subjects of International Law and International Legal Personality

Abstract

The chapter proposes that a wider concept of “subject of international law” is required. It recalls the concepts of sovereignty and subject of international law which were distinct and broader in the middle ages that in the time after the Peace of Westphalia, as this underlines that the notion of subject of international law may be thought about in a much wider context that its current application. International law has no intrinsic constraint against the recognition of entities other than states or intergovernmental organizations as subjects of international law. Hence, a new class of dual or hybrid organizations established under national law but with recognition of its international legal personality by its home country and other countries has emerged. These organizations may be classified as subjects of international law and as international organizations. Moreover, the concept of “subject of international law” is broader than that of “international legal personality”. Hence, organizations characterized by “institutional ambivalence by design”, such as OSCE, may qualify for recognition as subjects of international law and as international organizations, if it is established that they are acting on the international plane. Moreover, also organizations established as trust funds may qualify for recognition as subjects of international law. This is shown with regard to Global Environment Facility and the Credit Guarantee and Investment Facility established as a trust fund of ADB. It is demonstrated that current theories of international law are not adequately suited to international organizations established as trust funds. As regards international legal personality, the chapter focuses on three issues: First, it shown that international legal personality is not a requirement for membership. Second, international legal personality does not need to be conferred to an organization at the time of its establishment, in the constituent agreement or otherwise. Hence, organizations may acquire international legal personality subsequently, based on bilateral or multilateral agreements which recognize their international legal personality or legal capacity, or through a variety of other means. Third, entities established as a subsidiary body or as a financial mechanism of an international convention may possess international legal personality. Whether this is the case, is not to be determined with reference to the mode of their establishment but based on their functions and the position which recognized subjects of international law have adopted in their regard. Moreover, the legal status of the European Agencies is reviewed. It is also discussed whether a conference or meeting of the parties to a multilateral convention may establish an international organization with international legal personality.