achamila press- Dr sawssen Mabrouk
Expert in international law
The legal personality of an international organization means the authority of the latter to enjoy rights and fulfill obligations
in addition to having a legal will independent of the will of its founding member states. International law requires the availability of two elements necessary for the establishment of the legal personality: the first is that the personality is able to establish legal rules with other legal figures by mutual consent, and the second element is that the personality addresses the provisions of international law, meaning that it has the capacity to enjoy the rights and the capacity to fulfill the obligations assigned to her
The end of the nineteenth century and the beginning of the twentieth century witnessed the birth of a new jurisprudential trend calling for the enjoyment of international organizations with a legal personality. However, it soon encountered strong opposition from another jurisprudential trend that denied international organizations their legal personality, considering that only states are people of international law because they are the ones that It has the power to act at the international level according to its sovereign rights, while some others have denied this capacity to international organizations on the grounds that it is impossible for the legal personality to be established according to an international agreement, since this exceeds the powers of states.
This jurisprudential dispute will be resolved by the international judiciary in the advisory opinion issued by the International Court of Justice for the year 1949 upon a request submitted by the United Nations General Assembly before the court in order to examine the eligibility of the organization and its right to file international liability lawsuits against the state or states responsible for damages. Attached to the organization’s employees, against the backdrop of the killing of Count Bernadotte while on his duties as a mediator for the United Nations in Palestine
In this advisory opinion, the International Court of Justice recognized the legal personality of the United Nations Organization, affirming that states are not the only persons of general international law, as it considered that international bodies that arose as a result of developments in international circumstances can be considered legal persons of a nature distinct from the nature of states. International law with a special legal capacity commensurate with the breadth or narrowness of the goals for which it was established. This recognition of the legal personality of the United Nations has become applicable to other international organizations, given that all these organizations have goals that require their achievement to have an international legal personality that distinguishes them from states
However, granting legal personality to international organizations does not mean that this status is the same as that enjoyed by states, which is confirmed by the advisory opinion of the International Court of Justice, which leads us to talk about the special nature of the legal personality granted to the international organization. It is characterized in the beginning by being a derived personality other than the original fixed personality of states under international law, and this means that international organizations remain governed by legal rules that come from the will of states, so that they are established according to an international agreement that defines the limits of their personality, nature and life in light of that established will.
The legal personality of the international organization is also distinguished by its being a functional personality as it is limited to the limits of the functions and the objectives entrusted to it by virtue of its founding charter, in contrast to the countries that have an international personality that is not compromised by their sovereign rights. This personality is also characterized by its personal scope, as countries not members of the organization are not obligated to recognize its legal personality, with an exception for the United Nations, which has an objective legal personality that applies to all countries, which was confirmed by the advisory opinion of the International Court of Justice, as it includes in its membership as a whole Countries of the world, as well as the nature of their goals of achieving international peace and security
As for the effects resulting from the acquisition of a legal personality by the international organization, the latter entails the enjoyment of the international organization with a set of rights and privileges, on top of which is the authority to establish the international rules of the agreement. The international agreements in which international organizations are a party have become common and familiar in international life, and it should be noted that The international organization exercises this authority even in the absence of an explicit provision authorizing it on the basis of the necessity of this eligibility for the performance of its functions and tasks in accordance with the theory of implicit jurisdiction. This is without neglecting the rights resulting from the legal capacity of contracting and owning real estate and movable properties, as well as the right to litigate the international organization’s transactions with other legal figures
International organizations also enjoy a set of immunities and privileges in the face of member states, which are necessary in order to be able to effectively exercise their competencies and functions without any influence that might emanate from states on their independent will, so that the international organization enjoys judicial immunity according to which the organization and its employees are exempt from being subject to the local judiciary And the national legislation of states, in addition to the sanctity of buildings owned by the international organization, and the necessity of treating the messages of international organizations similar to the messages of diplomatic missions, which means that no censorship is imposed on them.
The effects of the international organization’s enjoyment of legal personality are not limited to those rights and privileges, but also include its submission to legal responsibility in accordance with the same rules established by general international law regarding State responsibility, unless there is an agreement to the contrary. This responsibility may be contractual as a result of the organization’s breach of the terms of the contract concluded between it and other legal figures in the event that it refuses to implement the obligation resulting from a concluded contract or has executed it in a manner contrary to the terms of the contract. Also, this liability may be negligent in the event of damage caused by the organization by mistake, and the practical application prevails over the recognition of the responsibility of the organization in the event of damage attributed to it, even if it is not due to a specific error, which is called risk theory