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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.