Die Völkerrechtspersönlichkeit Internationaler Organisationen

The present article deals with the doctrin of international organisations possessing objective international personality. This doctrin was established by the ICJ, with regard to the United Nations, in the famous Reparation for Injuries case. According to traditional legal thinking, the standpoint taken by the ICJ is an exception, due to the particular function of the UN with regard to the maintenance of international peace and security. Other international organisations are thought to possess international personality only vis-à-vis their member states and those third parties which have recognized them, recognition thereby being of a constitutive character. The rationale behind this is the pacta tertiis rule embodied in Article 34 of the Vienna Convention on the Law of Treaties: According to the traditionalist view, the founding instrument of an international organisation is, for third states, res inter alios acta and therefore not binding upon them. The present article tries to demonstrate that this argument is dogmatically not stringent. While it is true that third states are not bound by the founding treaty itself, the creation of an international organisation has factual consequences which are capable of being recognised in a declaratory manner. What is more, the assumption of an international organisation possessing »objective« international personality has, for third countries, only indirect effects which do not come into the realm of the pacta tertiis rule: As for treaty-based claims, the creation of an international organisation has no impact on existing treaty regimes. With regard to new treaties, it is the third state's own decision whether or not to contract with the international organisation, thereby recognising its international legal personality. As for tort claims, third states which have not yet recognized an international organisation are affected by the assumption of the organisation's objective personality only in the sense that they have to do with a new claimant or respondent. However, such indirect effects are also produced by other treaties, e.g. merger or cession treaties. Therefore, it cannot be accepted that third states have a legitimate expectation of entering into relations with a particular tortfeasor. The article continues scrutinising international practice. No conclusive evidence is found to the effect that recognition of international organisations must be deemed to be constitutive in character. Finally, arguments are presented which demonstrate that there is an actual need for accepting international organisations' objective personality. In this regard, it is submitted that as soon as an international organisation has come into existence effectively, international law must address this new entity because and insofar as it might act independently from its member states. Furthermore, so many international organisations have been founded in the past decades that their endowment with legal personality separate from the member states appears to be accepted under customary law. Therefore, time is ripe for generally accepting the objective international personality held by international organisations.