The Legal Capacity of Intergovernmental Organizations and States

The legal capacity of IGOs and States is vastly different. The international status of the State is defined by three key points: sovereignty, independence, and equality. Sovereignty means that the State is independent and free to resolve its internal affairs how it sees fit. No interference in the affairs of the State is permitted. At the same time, the State cannot use its territorial or other rights to harm other nations as was Stated in the Corfu Channel case in 1949 (International Court of Justice 1949). Independence means that no outside power can control the State or threaten it with the use of power (Resolution 2625). Equality means that every State holds similar rights in the global arena. These three concepts are central to the international right, as States are its primary subjects. That means that protecting sovereignty status and equality of States is the key point of international law.

IGOs are vastly legally different. They are not “superstates”. According to the ICJ advisory opinion from 1949 they act as organizations based entirely on the agreements of States, who founded them (Reparations for Injuries Suffered in the Service of the United Nations 177). Their powers and jurisdiction are set by the parties which constitute the organization. Their authority is also limited to the States, who signed the agreement creating the IGO. The legal capacity of such an organization only concerns the States forming it. It has no power over the third parties. IGO enjoys no sovereignty or independence and acts entirely on will and consent of the States within it.

The State is the primary subject of the international law, central to it. IGOs are secondary subjects, and it is the responsibility of the States constituting the IGO to answer for its actions on the international level. Some IGOs, like the UN, can be considered the actors of international law, as they serve to enforce it within their jurisdiction.

State immunities

A part of State’s sovereignty is its immunity before foreign domestic court decisions. A State cannot be subject to the will of other States, as all States are equally sovereign – such is the central principle of international law (Kingsbury 599).

Originally the concept was first ruled out, in the Schooner Exchange v. McFaddon case in the US in 1812 (Damrosch 851). Since then the international law sought to balance it. At first, the immunity of States was considered absolute, meaning the State could not be judged by foreign domestic courts, no matter the acts carried out. With the development of global relations and globalization, however, the principle started to erode, moving from the absolute immunity to restrictive or relative immunity. That kind of immunity does not protect States from prosecution for an act which can be considered economic or commercial in nature. That shows the erosion of the sovereignty of States under the pressing needs of upholding the international law and human rights, in the environment where the States are interacting ever more closely.

The most recent development in that field was the German v. Italy case, in which Italy denied Germany its immunity on the basis of humanitarian crimes committed during the Second World War. The acts described in the case were committed with Germany acting as a State and not as an economic entity, so the immunity should have been preserved. Court of Appeal of Florence, however, reversed that judgment on the basis that the actions carried out by Germany constituted a humanitarian crime. The final decision was controversial. It was ruled that the question of immunity is procedural in nature and is separate from the necessity of compensation to the victims of atrocities(Judgment, Jurisdictional Immunities of States (Germany v. Italy: Greece intervening) par. 59). Some saw that decision as an end of State immunity since the original decision of a domestic court was carried out, but most consider it a conservative move, aimed to delay resolving this complex issue.

Works Cited

Damrosch, Lori Fisler. International Law Cases and Materials: Cases and Materials (American Casebook Series). Eagan, MN: West Publishing, 2001. Print.

International Court of Justice. Corfu Channel Case Volume 1 – Application –Brittish Memorial and Annexes. Hague, Netherlands: International court of Justice. 1949. Print.

International court of Justice. Judgment, Jurisdictional Immunities of States (Germany v. Italy: Greece intervening.) Hague, Netherlands: International court of Justice, 2012. Print.

International Court of Justice. Reparations for Injuries Suffered in the Service of the United Nations. Hague, Netherlands: International court of Justice. 1949. Print.

Kingsbury, Benedict. “Sovereignty and Inequality.” European Journal of International Law 9 (1998): 599-625.

United Nations. Resolution 2625. 1970. Web.

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