§2 Legal personality of international economic organizations. International legal personality of international organizations International legal personality of states and international organizations

International organizations as general rule have legal personality under both international law and the internal law of the Member States. Their international legal personality is determined by the charter and international law. Having stated that an international organization has legal personality, the International Court of Justice defined it as “the ability to enjoy international rights and bear international obligations”. At the same time, the Court pointed out the difference between the legal personality of an organization and the legal personality of the state: “The subjects of law in any legal system are not necessarily identical in nature and in the scope of their rights; however, their nature depends on the needs of the community”.

The national legal personality of organizations is determined by their charter and the internal law of the member states. Usually they can conclude contracts, own movable and immovable property and dispose of it, initiate legal proceedings.

Often, the constituent acts of organizations contain special provisions on this issue. In the multilateral agreement on the International Organization of Satellite Communications (INTELSAT) of 1971 we read that:
a) INTELSAT has legal personality. It shall enjoy the full legal capacity necessary for the exercise of its functions and the achievement of its purposes, including the capacity to:
i) enter into agreements with states or international organizations;
ii) enter into contracts;
iii) acquire property and dispose of it;
iv) be a party to legal proceedings.
v) Each Member shall take such steps within its jurisdiction as are necessary to bring these provisions into force in accordance with its own law.

Since the international legal personality of organizations has already been discussed in the General Part of the textbook, here we will only touch on some additional points. Organizations participate within their competence in diplomatic relations. For a number of organizations there are permanent missions states, in turn, organizations send their missions to states.

Organizations are involved in the recognition of states and governments. Legally, this is the prerogative of states, but admission to the organization is a direct path to recognition, which is sometimes even more important than recognition from individual states.

As we already know, organizations are usually created with the help of international treaties, as an exception - with the help of resolutions of other organizations. The states that have concluded such a treaty are referred to as the original participants. However, their legal status does not differ from the status of new members.

Organizations are also liquidated by agreement of members. It is noteworthy that the process of creating new organizations is ongoing, and cases of liquidation are rare. As an example, we can point to the liquidation of the Warsaw Pact in 1991 by agreement of the member states.

In connection with the liquidation of the organization, the question of succession arises. Usually, assets and liabilities are distributed proportionally among the former members. This was the situation during the liquidation of the Council for Mutual Economic Assistance in 1991. If one organization is replaced by another, then the legal successor is new organization. Such succession took place during the liquidation of the League of Nations and its replacement by the UN in 1946. The latter assumed the performance of a number of functions of the League, and according to an agreement concluded between them, the property of the League passed to the UN.

As for legal personality under internal law, it cannot be absent. The organization inevitably enters into legal relations on the territory of states (acquisition of goods and services, rent, property, labor relations, etc.). An analysis of the judicial practice of states shows that the legal personality of an organization is recognized even on the territory of states that are not its members. When entering into a transaction, the organization bears civil liability in the same way as an ordinary legal entity. She is also responsible for non-contractual obligations, for example, as a result of a traffic incident.

The implementation of this responsibility can be difficult due to the fact that the organization has immunity. In such cases, it should waive the immunity it enjoys in order to exercise its functions. The organization must not interfere with the administration of justice. But if there is no such refusal, then the matter is resolved at the diplomatic level. An organization may be sued for international level in accordance with international law.

Legal personality is a property of a person, in the presence of which it acquires the qualities of a subject of law.

An international organization cannot be seen as a mere sum of member states, or even as their collective agent acting on behalf of all. In order to fulfill its active role, an organization must have a special legal personality, different from the mere summation of the legal personality of its members. Only under this premise does the problem of the impact of an international organization on its sphere make any sense.

Legal personality of an international organization includes the following four elements:

1. legal capacity, i.e. the ability to have rights and obligations;

2. legal capacity, i.e. the ability of the organization to exercise its rights and obligations by its actions;

3. the ability to participate in the process of international law-making;

4. the ability to bear legal responsibility for their actions.

One of the main attributes of legal personality international organizations is the presence of their own will, allowing it to directly participate in international relations and successfully carry out its functions. Most Russian lawyers note that intergovernmental organizations have an autonomous will. Without its own will, without a certain set of rights and obligations, an international organization could not function normally and fulfill the tasks assigned to it. The independence of the will is manifested in the fact that after the organization is created by the states, it (the will) is already a new quality in comparison with the individual wills of the members of the organization. The will of an international organization is not the sum of the wills of the member states, nor is it the fusion of their wills. This will is “separated” from the wills of other subjects international law. The source of the will of an international organization is the constituent act as a product of the coordination of the wills of the founding states.

Most important features legal personality of international organizations are the following qualities:

1. Recognition of the quality of an international personality by the subjects of international law. The essence of this criterion lies in the fact that member states and relevant international organizations recognize and undertake to respect the rights and obligations of the relevant intergovernmental organization, their competence, terms of reference, to grant privileges and immunities to the organization and its employees, etc. According to the constituent acts, all intergovernmental organizations are legal entities. Member States shall vest them with legal capacity to the extent necessary for the performance of their functions.

2. Presence of separate rights and obligations. This criterion of the legal personality of intergovernmental organizations means that organizations have rights and obligations that are different from those of states and can be exercised at the international level. For example, the Constitution of UNESCO lists the following responsibilities of the organization: a) promoting rapprochement and mutual understanding of peoples through the use of all available media; b) encourage development public education and dissemination of culture; c) assistance in the preservation, increase and dissemination of knowledge.

3. The right to freely perform their functions. Each intergovernmental organization has its own constituent act (in the form of conventions, statutes or resolutions of an organization with more general powers), rules of procedure, financial rules and other documents that form the internal law of the organization. Most often, in the performance of their functions, intergovernmental organizations proceed from implied competence. In the performance of their functions, they enter into certain legal relations with non-member states. For example, the UN ensures that non-member states act in accordance with the principles set out in Art. 2 of the Charter, insofar as it may be necessary to maintain international peace and security.

The independence of intergovernmental organizations is expressed in the implementation of prescriptions of norms constituting the internal law of these organizations. They may establish any subsidiary bodies that are necessary for the performance of the functions of such organizations. Intergovernmental organizations may adopt rules of procedure and other administrative rules. Organizations have the right to remove the vote of any member who is in arrears in dues. Finally, intergovernmental organizations may ask their member for an explanation if he does not comply with the recommendations on the problems of their activities.

4. The right to conclude contracts. The contractual legal capacity of international organizations can be attributed to the main criteria of international legal personality, since one of the characteristic features of the subject of international law is its ability to develop the norms of international law.

In the exercise of their powers, agreements of intergovernmental organizations are of a public law, private law or mixed nature. In principle, each organization can conclude international treaties, which follows from the content of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. In particular, the preamble of this Convention states that an international organization has such legal capacity to conclude treaties that necessary for the performance of its functions and the achievement of its objectives. According to Art. 6 of this Convention, the legal capacity of an international organization to conclude treaties is governed by the rules of that organization.

5. Participation in the creation of international law. The law-making process of an international organization includes activities aimed at creating legal norms, as well as their further improvement, modification or cancellation. It should be emphasized that no international organization, including a universal one (for example, the UN, its specialized agencies), has "legislative" powers. This, in particular, means that any norm contained in the recommendations, rules and draft treaties adopted by an international organization must be recognized by the state, firstly, as an international legal norm, and secondly, as a norm binding on a given state.

The law-making of an international organization is not unlimited. The scope and type of lawmaking of the organization are strictly defined in its founding agreement. Since the charter of each organization is individual, the volume, types and directions of law-making activities of international organizations differ from each other. The specific scope of powers granted to an international organization in the field of lawmaking can only be clarified on the basis of an analysis of its constituent act.

In the process of creating norms governing relations between states, an international organization can play various roles. In particular, in the initial phases of the law-making process, an international organization may:

· to be an initiator, proposing to conclude a certain interstate agreement;

convene in the future a diplomatic conference of states in order to agree on the text of the treaty;

· itself to play the role of such a conference, carrying out the coordination of the text of the treaty and its approval in its intergovernmental body;

· after the conclusion of the contract, perform the functions of the depositary;

· enjoy certain powers in the field of interpretation or revision of the contract concluded with its participation.

International organizations play a significant role in the formation of customary norms of international law. The decisions of these organizations contribute to the emergence, formation and termination of the norms of custom.

6. The right to enjoy privileges and immunities. Without privileges and immunities, normal Practical activities any international organization. In some cases, the scope of privileges and immunities is determined by a special agreement, and in others - by national legislation. However, in general form the right to privileges and immunities is enshrined in the founding act of each organization. Thus, the UN enjoys on the territory of each of its members such privileges and immunities as are necessary to achieve its goals (Article 105 of the Charter). The property and assets of the European Bank for Reconstruction and Development (EBRD), wherever located and whoever holds them, are immune from search, confiscation, expropriation or any other form of seizure or disposal by executive or legislative action (art. 47 of the Agreement on institution of the EBRD).

Any organization cannot invoke immunity in all cases when it, on its own initiative, enters into civil legal relations in the host country.

7. Right to enforce international law. Giving international organizations the authority to ensure the implementation of international law indicates the independent nature of organizations in relation to member states and is one of the important signs of legal personality.

In this case, the main means are institutions international control and liability, including the application of sanctions. Control functions are carried out in two ways:

· through the submission of reports by Member States;

International legal personality nations and peoples fighting for independence

International legal personality of states

The concept of international legal personality

SUBJECTS OF INTERNATIONAL LAW

1. The concept of international legal personality

AT general theory law, it is recognized that the subject of law is the person to whom its rules apply. However, international law, as already noted, is an independent legal system. Therefore, the concepts and categories used in the national law of various states are not always identical in content to the concepts and categories of international law. Features of international law as a special system of law predetermine the specifics of international legal personality and, ultimately, the qualitative characteristics of the subjects of international law.

It should be noted that the content of the term "international legal personality" in the norms of international law is not disclosed; there are only theoretical constructions that characterize the legal nature, grounds and limits of international legal personality. In the most general terms, international legal personality can be defined as the legal capacity of a person to be a subject of international law. The content of international legal personality is formed by the basic rights and obligations of such a subject, arising from international legal norms.

According to its origin, international legal personality is divided into factual and legal. Accordingly, there are two categories of subjects of international law: primary (sovereign) and derivative (non-sovereign).

The primary subjects of international law (states and warring nations), by virtue of their inherent state or national sovereignty, are ipsofacto recognized as bearers of international legal rights and obligations. Sovereignty (state or national) makes them independent from other subjects of international law and predetermines the possibility of independent participation in international relations.

There are no rules conferring legal personality on the primary subjects of international law; there are only norms confirming that they have legal personality from the moment of formation. In other words, in this case, legal personality does not depend on anyone's will and is inherently objective in nature.

The legal source of legal personality for non-sovereign subjects of international law is their constituent documents. Such documents for international organizations are their charters, adopted and approved by the subjects of international law (primarily primary ones) in the form of an international treaty. Derivative subjects of international law have limited legal personality, which is due to the recognition of these participants international relations from the original subjects. Thus, the volume and content of the legal personality of derivative subjects depend on the will of the primary subjects of international law.

However, the subjects of international law not only have the rights and obligations arising from international legal norms, but also, in my opinion, have two other characteristics that distinguish them from the subjects of domestic law.

Subjects of international law also:

1) are a collective entity. Each such subject has elements of organization: the state - power and management apparatus; fighting nation - political body, representing it within the country and in international relations; international organization - permanent bodies, etc. In the exercise of power, the subjects of international law are relatively independent and not subordinate to each other. Each of them has an independent international legal status, acting in international legal relations on its own behalf;

2) have the ability to participate in the development and adoption international norms. Contractual capacity is essential element international legal personality. Subjects of international law (unlike most subjects of domestic law) are not just recipients of international legal norms, but also persons involved in their creation. All subjects of international law are at the same time subjects of one of the branches of international law - the law of international treaties.

Only the presence of all three of the above elements (possession of rights and obligations arising from international legal norms; existence in the form of a collective entity; direct participation in the creation of international legal norms) gives, in my opinion, reason to consider this or that entity a full-fledged subject of international law . The absence of at least one of the listed qualities in the subject does not allow us to speak about the possession of international legal personality in the exact meaning of the word.

Basic rights and obligations characterize the general international legal status of all subjects of international law. The rights and obligations inherent in subjects of a certain type (states, international organizations, etc.) form special international legal statuses for this category of subjects. The totality of the rights and obligations of a particular subject forms the individual international legal status of this subject.

In this way, legal status different subjects of international law is not the same, since the volume of international norms that apply to them and, accordingly, the range of international legal relations in which they participate are different.

According to the general theory of law, social relations regulated by law acquire the character of legal relations, become legal relations. The parties to such legal relations are called subjects of law.

In this way, subjects of international law - these are the parties of international legal relations, endowed with the norms of international law with subjective rights and subjective obligations.

At the same time, in contrast to national law, in international law, the subjective right of one subject of an international legal relationship is always opposed by the subjective obligation of another subject of this legal relationship.

The term-concept "subject of international law" for a long time served only as the property of the doctrine of international law. But in recent times it began to be used in international legal acts, in particular in general (universal) conventions. So, in Art. 3 of the Vienna Convention on the Law of Treaties of 1986, we are talking about "international agreements to which one or more states, one or more international organizations and one or more subjects of international law other than states and international organizations are parties."

Throughout the centuries-old history of international law, states have been the only subjects of international legal relations. The norms of modern international law continue to regulate mainly the relationship between states, as well as the relationship of states with international organizations and other international institutions. States are the main subjects of international law and the main real participants in international legal relations, since they need to constantly interact with each other, with international organizations and other subjects of international law.

In addition to states and international organizations, the subjects of international law are also other international institutions, referred to as international bodies. These are, in particular, international courts and international arbitrations, investigative, conciliatory and other commissions, which are created by agreement between states and are guided in their activities by international legal regulations, primarily by the norms of general international law.

Some such international bodies, such as the International Court of Justice, are bodies of a universal nature, since they are created by the international community of states and access to them is open to any state. Most often, these are bodies of a local nature (bilateral or multilateral).

Finally, special peoples are special subjects of international law. Special in the sense that in accordance with one of the basic principles of modern international law - the principle of equal rights and self-determination of peoples - all peoples are recognized the right to self-determination, i.e. the right to freely, without outside interference, determine their political status and pursue their economic, social and cultural development. Every state must respect this right. This, therefore, is about relationships (legal relations) between peoples and states. More details about the term-concept "people" and the conditions for the exercise by peoples of the right to self-determination will be discussed in the chapter on the basic principles of modern international law.

2. International legal personality of states

States are the main subjects of international law; international legal personality is inherent in states by virtue of the very fact of their existence. States have an apparatus of power and administration, possess territory, population and, most importantly, sovereignty.

Sovereignty is a legal expression of the independence of the state, the supremacy and unlimitedness of its power within the country, as well as independence and equality in relations with other states. The sovereignty of the state has international legal and internal aspects.

The international legal aspect of sovereignty means that international law considers as its subject and participant in international relations not state bodies or individual officials, but the state as a whole. All internationally significant actions performed by authorized persons officials states are considered committed on behalf of that state.

The internal aspect of sovereignty presupposes the territorial supremacy and political independence of state power within the country and abroad.

The basis of the international legal status of a state is formed by rights (the right to sovereign equality, the right to self-defence, the right to participate in the creation of international legal norms, the right to participate in international organizations) and international legal obligations of states (respect for the sovereignty of other states, observance of the principles of international rights). The Declaration on the Principles of International Law of 1970 states that each state is obliged to respect the legal personality of other states and observe the principles of international law (non-interference in internal affairs, conscientious fulfillment of obligations assumed, settlement of international disputes by peaceful means, etc.).

It also follows from sovereignty that no obligation can be imposed on a state without its consent.

3. International legal personality of nations and peoples fighting for independence

The legal personality of warring nations, like the legal personality of states, is of an objective nature, i.e. exists independently of anyone's will. Modern international law confirms and guarantees the right of peoples to self-determination, including the right to free choice and the development of their socio-political status.

The principle of self-determination of peoples is one of the basic principles of international law, its formation falls on late XIX- the beginning of the XX century. It acquired a particularly dynamic development after October revolution 1917 in Russia.

With the adoption of the UN Charter, the right of a nation to self-determination finally completed its legal registration as a basic principle of international law. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples specified and developed the content of this principle. Its content was most fully formulated in the Declaration on the Principles of International Law of 1970, which states: “All peoples have the right to freely determine their political status and to carry out their economic, social and cultural development without outside interference, and every state is obliged to respect this right in in accordance with the provisions of the UN Charter."

In modern international law there are norms confirming the legal personality of the struggling nations. Nations struggling to create an independent state are protected by international law; they can objectively apply coercive measures against those forces that prevent the nation from acquiring full international legal personality and becoming a state. But the use of coercion is not the only and, in principle, not the main manifestation of the international legal personality of nations. Only a nation that has its own political organization that independently performs quasi-state functions can be recognized as a subject of international law.

In other words, the nation must have a pre-state form of organization: popular front, the beginnings of authorities and administration, the population in the controlled territory, etc.

It must be borne in mind that international legal personality in own meaning not all, but only a limited number of nations can (and do) have this word - nations that are not formalized into states, but strive to create them in accordance with international law.

Thus, practically any nation can potentially become the subject of legal relations of self-determination. However, the right of peoples to self-determination was fixed in order to combat colonialism and its consequences, and as an anti-colonial norm, it fulfilled its task.

At present, another aspect of the right of nations to self-determination is acquiring special significance. Today we are talking about the development of a nation that has already freely determined its political status. In the current conditions, the principle of the right of nations to self-determination must be harmonized, consistent with other principles of international law and, in particular, with the principle of respect for state sovereignty and non-interference in the internal affairs of other states. In other words, it is no longer necessary to talk about the right of all (!) nations to international legal personality, but about the right of a nation that has received its statehood to develop without outside interference.

A struggling nation enters into legal relations with the state that controls this territory, other states and nations, and international organizations. By participating in specific international legal relations, it acquires additional rights and protection.

A distinction is made between the rights that a nation already possesses (they stem from national sovereignty) and the rights for which it is fighting (they stem from state sovereignty).

The legal personality of a struggling nation includes a set of the following fundamental rights: the right to independent expression of will; the right to international legal protection and assistance from other subjects of international law; the right to participate in international organizations and conferences; the right to participate in the creation of norms of international law and independently fulfill the international obligations assumed.

Thus, the sovereignty of a struggling nation is characterized by the fact that it does not depend on its recognition as a subject of international law by other states; the rights of a struggling nation are protected by international law; a nation, in its own name, has the right to apply coercive measures against violators of its sovereignty.

4. International legal personality of international organizations

A separate group of subjects of international law is formed by international organizations. We are talking about international intergovernmental organizations, i.e. organizations created by the primary subjects of international law.

Non-governmental international organizations, such as the World Federation of Trade Unions, Amnesty International, etc., are established, as a rule, by legal and individuals(groups of persons) and are public associations"with a foreign element". The statutes of these organizations, unlike the statutes of interstate organizations, are not international treaties. True, non-governmental organizations may have a consultative international legal status in intergovernmental organizations, for example, in the UN and its specialized agencies. Thus, the Inter-Parliamentary Union has the status of the first category in the UN Economic and Social Council. However, non-governmental organizations do not have the right to create norms of international law and, therefore, cannot, unlike intergovernmental organizations, have all the elements of international legal personality.

International intergovernmental organizations do not have sovereignty, do not have their own population, their own territory, and other attributes of the state. They are created by sovereign entities on a contractual basis in accordance with international law and are endowed with a certain competence, fixed in the founding documents (primarily in the charter). The 1969 Vienna Convention on the Law of Treaties applies to the constituent documents of international organizations.

The charter of the organization defines the goals of its formation, provides for the creation of a certain organizational structure(acting bodies), their competence is established. The presence of permanent organs of the organization ensures the autonomy of its will; international organizations participate in international communication on their own behalf and not on behalf of their member states. In other words, the organization has its own (albeit non-sovereign) will, different from the will of the member states. At the same time, the legal personality of the organization is functional in nature, i.e. it is limited by statutory goals and objectives. In addition, all international organizations are obliged to comply with the basic principles of international law, and the activities of regional international organizations must be compatible with the purposes and principles of the UN.

The fundamental rights of international organizations are as follows:

the right to participate in the creation of international legal norms;

the right of the organization's bodies to exercise certain powers of authority, including the right to make binding decisions;

the right to enjoy the privileges and immunities granted to both the organization and its employees;

the right to consider disputes between participants, and in some cases with states not participating in this organization.

International organizations are subjects of international law of a special kind. Their legal personality is not identical to the legal personality of states, since it does not stem from sovereignty.

An international organization, not possessing sovereignty, the source of its rights and obligations in the sphere of exercising its competence, has an international treaty concluded between the states concerned. Therefore, international organizations as subjects of international law are secondary, derivative in relation to states.

An organization becomes a subject if the founding states endow the organization with international rights and obligations. Its competence is specific in the sense that the rights and obligations of an international organization are distinct from those of a State. If the legal personality of the state is not limited either in the subject of legal regulation or in the scope of powers, then the legal personality of the organization is determined by those specific tasks and goals that are established by the states in the constituent act that creates the organization. In this regard, each international organization has its own, inherent only to it, range of rights and obligations. However, despite the differences in the nature and scope of rights and obligations, organizations operate within the framework of international law and have features that ensure the legal personality of an international organization. The creation and functioning of an international organization have a legitimate basis if they comply with the norms of international law, in the first place, its basic principles. On the one hand, Art. 5 of the Vienna Convention on the Law of Treaties of 1969 introduces international organizations into the scope of contractual regulation, as it determines the applicability of this convention "to any treaty that is a constituent act of an international organization." On the other hand, Art. 53 of this Convention declares a treaty null and void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. International organizations are obliged, in particular, to adhere to the principles of non-interference in the internal affairs of the state, sovereign equality members, conscientious fulfillment of international obligations.

Each international organization has a contractual legal capacity, the specifics and scope of which are determined by its charter.

In the modern period, the most famous international organizations are the United Nations (UN), the United Nations Educational, Scientific and Cultural Organization (UNESCO). International Labor Organization (ILO), World Organization(WHO), Organization of African Unity (OAU), Commonwealth Independent States(CIS) and others.

In a number of cases, succession of international organizations is carried out, in which, in order to maintain the continuity of functions, certain powers are transferred from an organization that has ceased to exist to a newly established organization by states. Thus, the UN was the successor to the rights and obligations of the League of Nations under a number of international treaties.

International law recognizes the responsibility of international organizations in case of violation by them of generally recognized international legal principles and norms and international treaties concluded by them, provisions of constituent acts.

See also:

having a constant impact on the formation and development of international management, is international law. ...
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International organizations are subjects of international law of a special kind. Their legal personality is not identical to the legal personality of states, since it does not stem from sovereignty.

Chapter 3. Subjects of international law

organizations differ from the rights and obligations of the state. If the legal personality of the state is not limited either in the subject of legal regulation or in the scope of powers, then the legal personality of the organization is determined by those specific tasks and goals that are established by the states in the constituent act that creates the organization. In this regard, each international organization has its own, inherent only to it, range of rights and obligations. However, despite the differences in the nature and scope of rights and obligations, organizations operate within the framework of international law and have features that ensure the legal personality of an international organization. The creation and functioning of an international organization have a legitimate basis if they comply with the norms of international law, in the first place, its basic principles. On the one hand, Art. 5 of the Vienna Convention on the Law of Treaties of 1969 introduces international organizations into the scope of contractual regulation, as it determines the applicability of this Convention "to any treaty that is the founding act of an international organization." On the other hand, Art. 53 of this Convention declares a treaty null and void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. International organizations are obliged, in particular, to adhere to the principles of non-interference in the internal affairs of the state, the sovereign equality of members, and the conscientious fulfillment of international obligations.

Each international organization has a contractual legal capacity, the specifics and scope of which are determined by its charter.

In the modern period, the most famous international organizations are the UN, UNESCO, ILO, the World Health Organization (WHO), the CIS, the Council of Europe, the Organization for Security and Cooperation in Europe (OSCE), etc.