1.3 International organisations
The legal status of the UN was considered in the International Court of Justice’s Advisory Opinion in 1949 (quoted earlier).
ReadAdvisory Opinion ICJ Rep 1949, p. 178, from the third paragraph (‘But, in the international sphere ...’) to the end of the penultimate paragraph on p. 179 (‘... by bringing international claims’).
What conclusions did the ICJ come to on the question of whether the UN has international legal capacity? Summarise the court’s reasoning in this respect.
The ICJ confirmed that the UN is an international person. It had been created with organs and given special tasks. Its members are required to assist it in carrying out its tasks and to accept and carry out the decisions of the UN Security Council. The UN General Assembly is authorised to make recommendations to the members and the organisation has been given legal capacity and privileges and immunities in the territory of its members. It is party to various conventions, distinct from its members to whom it has a duty to remind of their obligations, if required.
The ICJ distinguished between the status of the UN and that of states, but emphasised that the UN is a subject of international law and is capable of possessing international rights and duties and maintaining its rights by bringing international claims.
The UN was created with objective personality – it does not rely on the recognition of states, and as such it is a subject of international law even in respect of states that have come into existence after its creation and also non-member states.
Since the Second World War there has been an expansion in the numbers and types of international organisation that are concerned with a wide variety of issues; in order to operate effectively, they are recognised as having a limited degree of international personality which varies according to their objectives.
The UN has confirmed that other international organisations are the subjects of international law, even though they do not possess general competence:
international organizations are subjects of international law which do not, unlike States, possess a general competence. [But] are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.(Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion ICJ Rep 1996, 25)
In this case the advisory opinion of the ICJ had been requested by the World Health Organization (WHO) on the question of the legality of the use by a state of nuclear weapons in armed conflict. The ICJ considered that it was unable to give this opinion as although the WHO was duly authorised under the UN Charter to request opinions from the court and the opinion requested was a legal question, it was not a question that was within the scope of the activities of the WHO. The question from WHO did not relate to the effects of the use of nuclear weapons on health but to the legality of these weapons in view of their effect on human health and the environment. However, the UN General Assembly was held to be competent to ask the question.
This case reveals that international organisations do not have international personality for all purposes; it is derived and so depends on the express powers included in the constitution of the organisation concerned and on the existence of implied powers which enable the organisation to achieve its purposes: ‘the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion ICJ Rep 1996, 25).