The two world wars of the 20th Century, coupled with rapid technological advances driven by the World Wars and the Cold War, provided an impetus towards the development of international organizations and increased globalization. The result was a proliferation of both international law and enforcement actions. Historically, military means were the primary enforcement tool, and this proliferation moved conflict resolution off the battlefield and into the courtroom and embassy.
International organizations are characterized by a legal existence endowed with a level of autonomy ceded by the Member States to the collective organization, a limited area of influence, and a restricted span of action.
The earliest international organizations, such as the Universal Postal Union (1875), were predominantly oriented around trade and everyday governmental operations such as coordinating postal operations. The first “modern” international organization of size and scope was the League of Nations, founded in 1919 after the First World War. The League ultimately proved to be a failure, as the powers ceded to it were limited, and its ability to enforce its decrees was nearly non-existent. Additionally, the United States – an emerging world power at the time – was not a member.
Following the Second World War and the establishment of the United Nations, the international community began to establish multiple international institutions, and the member states ceded significant power to them. These organizations, comprising a veritable alphabet soup of acronyms, such as the WTO, OAS, OAU, NATO, UNESCO, and others, are characterized by a relatively standard structure of a permanent secretariat and staff, an assembly of member representatives, and the ability to exercise the ceded powers largely independent of the Member States.
Over the last 70 years, international courts have established criteria for determining whether these organizations have a separate international legal personality or are legally disregarded as international actors. The preeminent case law on point was promulgated by the International Court of Justice in the 1949 Advisory Opinion in Reparations for Injuries Suffered in the Service of the United Nations. The ICJ established a two-part test for determining the status of an international actor. The first test is whether the Member States, in setting up the organization and ceding the designated powers and enforcement abilities, intended to give it the ability to “effectively discharge” the functions as an autonomous body separate from the Member States. The second test examines whether this intention is manifest in reality. In the words of the ICJ, it is necessary to show that the organization is “in fact exercising and enjoying the functions and rights which can only be explained based on the possession of a large measure of international personality and the capacity to operate on an international plane.” (Reparations for Injuries Suffered in the Service of the United Nations, ICJ at 179, 1949) This definition is often cited in international law cases in testing for jurisdiction. Once this two-part test is deemed to have been met, the international organization is deemed to possess the rights and obligations as provided for in international custom, including:
- The right to enter into agreements with member-States
- The right to sovereign immunity from the jurisdiction of State courts for acts and activities performed by the Organization
- The right to protection for the organization’s agents acting in the territory of a third State in an official capacity as an international civil servant
- The right to bring an international claim in international courts
Thus, the two-part Reparations test serves as a significant legal issue that parties must establish unless stipulated to, which will significantly impact the jurisdiction and outcome of any international case or controversy involving an international organization.