CYIL 2014

MARTIN FAIX CYIL 5 ȍ2014Ȏ of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.” 35 First of all, the Opinion provides some guidance on terminology which is being used in relation to the international legal status of international organisations, such as legal personality, subjectivity, legal capacity and competence . Although different views have been presented in the legal literature as to the meaning and scope of these terms, in my understanding a subject of international law is an entity possessing rights and duties stemming directly from international law. The notion of international legal personality describes rather the ability to possess such rights and duties, and the ability to participate in international legal relations , i.e. to exercise powers on the international plane. 36 As to the distinction between legal personality and legal capacity , I rely on words of Wessel : the first concerns a quality , the second is an asset , which describes what the organisation is potentially entitled to do. 37 Thus legal capacity refers to specific capacities, such as treaty-making capacity or capacity to bring international claims. It has been argued that international legal personality is nothing “but a descriptive notion: useful to describe a state of affairs, but normatively empty, as neither rights nor obligations flow automatically from a grant of personality” . 38 It can be agreed that its existence as such does not in itself say anything about the existence of human rights obligations of international organisations. 39 However, it is their international legal personality, which is related to the question of the capacity of international organisations to enter into international agreements, to accept international obligations and consequently also to violate them – including in the area of human rights.

35 Reparations for Injuries Suffered in the Service of the United Nations , Advisory Opinion,. I.C.J. Reports 1949 , pp. 178-179. 36 Similarly NAERT, Frederik. International law aspects of the EU’s security and defence policy, with a particular focus on the law of armed conflict and human rights . Antwerp: Intersentia, 2010, p. 265. For the ability to exercise its own rights under international law the German doctrine uses the term völkerrechtliche Handlungsfähigkeit , for the ability to possess rights and duties under international law Völkerrechtsfähigkeit . Cf. SCHMALENBACH, Kirsten. Die Haftung Internationaler Organisationen . Frankfurt am Main : Peter Lang, 2004. p. 51 et seq .; BOTHE, Michael. Supra note 30, p. 305 et seq . 37 WESSEL, Ramses A. The European Union’s foreign and security policy. The Hague: Kluwer Law International, 1999, p. 245. 38 KLABBERS, Jan. Introduction to International Institutional Law . Supra note 27, p. 56. 39 In this sense LARSEN, Kjetil Mujezinović. The human rights treaty obligations of peacekeepers . Supra note 9, p. 89.

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