The meaning of ‘Juridical Personality’ in the Transitional Committee Report

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Date produced: 29/11/2011

1.      Is “juridical personality” as referred to in the text below a recognized term used in English?

2.      What is its meaning and effect in this context ?

3.      How, if at all, does it differ from “legal personality”?

4.      Are there any implications in the use of this term or the fact that the Fund has such personality that flow from one or the other for the “direct access” issue? 

Para. 7 under 2.2 (p. 7) of the Transitional Committee recommendations to the COP reads (emphasis added ):

“2.2 Legal status

7. In order to operate effectively internationally, the Fund will possess juridical personality and will have such legal capacity as is necessary for the exercise of its functions and the protection of its interests.”

Under international law, a legal person is ‘an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims.’[1] At the least since the International Courts of Justice’s advisory opinion in the Reparations for Injuries case [2], international organisations have been recognised as being capable of being international legal persons. The Court’s opinion also makes it clear that an international organisation can enjoy international legal personality without it having that status expressly conferred upon it (i.e. in its constituent instrument). Unlike States, however, international organisations do not have plenary competence under international law. What rights and duties they have depend upon the capacities conferred upon them and functions they undertake.

 The English term ‘legal person’ is usually translated as ‘personnalité juridique’ in French and ‘personalidad jurídica’ in Spanish [3], which provides that everyone shall have the right to recognition everywhere as a person before the law. Insofar as the term ‘juridical person’ is generally current in English it tends to be used for persons which owe their existence entirely to the operation of the law (for example companies), in distinction to natural persons (not all of whom historically have enjoyed legal personality in all legal systems).

 However, the term ‘juridical personality’ does appear in a number of international instruments. Article 104 of the Charter of the United Nations merely provides that: ‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’ Here the reference is to legal personality under the national laws of the UN member States.

 However, Article 1 of the Convention on the Privileges and Immunities of the United Nations states that:

 The United Nations shall possess juridical personality. It shall have the capacity:

(a) to contract;

(b) to acquire and dispose of immovable and movable property;

(c) to institute legal proceedings.

 The Convention can be seen as implementing Article 105 of the Charter, to which it makes specific reference in its preamble. Consequently, the list in Article 1 only confirms that what is referred to is legal capacity under national, not international, law (the entering into contracts and the acquisition and disposal of property being issues generally dealt with under national, not international law). The issue of the United Nations’ international legal personality had to wait until the International Court of Justice’s Reparation for Injuries advisory opinion to be definitely determined.

 Two relevant examples of the use of the term in the international environmental law context are in Decision VI/16 of the Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, and in Resolutions 6.9 and 7.13 of the Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals.

 Decision VI/16 covers the ‘[j]uridical personality, privileges and immunities’ of the Multilateral Fund for the Implementation of the Montreal Protocol and was intended to ‘clarify the nature and legal status of the Fund as a body under international law’ [italics added]. The Decision, in relevant part, provided:

 Juridical personality: The Multilateral Fund shall enjoy such legal capacity as is necessary for the exercise of its functions and the protection of its interests, in particular the capacity to enter into contracts, to acquire and dispose of movable and immovable property and to institute legal proceedings in defence of its interests.  [Italics in original]

 It might be thought that there is a certain ambiguity in the Decision. Whereas the chapeau seems to advert to legal personality under international law, the body of the Decision itself seems to refer to legal capacity under national law. However, there is no contradiction in an international organisation having legal personality under both international and national law (indeed, when international organisations operate in States which take a dualist approach to international law, it is essential).

 Resolution 6.9 of the Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals was entitled the ‘Juridical Personality of, and the Headquarters Agreement for, the Convention Secretariat’. By it, the COP sought to ‘clarify the nature and legal status of the Convention Secretariat as a body’. In particular, under the heading ‘juridical personality’ the COP decided that:

 The Convention Secretariat should possess in the host country such legal capacity as is necessary for the effective discharge of its functions under the Convention, in particular to contract, to acquire and dispose of movable and immovable property and to institute legal proceedings.

 The reference would consequently seem to be to legal personality under national law, specifically the national law of the host State (Germany).

 Pursuant to Resolution 6.9, a headquarters agreement was negotiated and concluded between the Convention Secretariat, the United Nations and Germany, which as welcomed by the COP in Resolution 7.13, ‘Headquarters Agreement for, and Juridical Personality of, the Convention Secretariat’. According to its preamble, Resolution 7.13 was motivated by a desire ‘to clarify the international juridical personality of the Convention Secretariat’ [italics added]. The text of the Decision then welcomed and endorsed the headquarters agreement but simply noted ‘the current situation regarding the Secretariat’s international juridical personality’ and deferred further consideration of the matter. It appears that whether the Secretariat enjoyed, or should enjoy, international juridical personality remained unclear.

 The following conclusions can therefore be drawn:

 (a)    The term ‘juridical personality’ can be seen, in the present context, as synonymous with the term ‘legal personality’.

 (b)   However, it does not necessarily imply international legal personality, as opposed to legal capacity under one or more systems of national law. As regards the proposals for the Green Climate Fund, the phrase ‘[i]n order to operate effectively internationally’ might seem to suggest the intention is to confer international legal personality, but that intention (if it exists) is not made express.

 (c)    In any case, the implications of an international organisation enjoying legal personality vary according to the capacities conferred upon the organisation and the functions it exercises, as international organisations do not enjoy plenary competence at the international level.

 (d)   In consequence, therefore, an answer cannot be given in the abstract on what the possession of legal personality would mean on the ‘direct access’ issue. In this context, the proposal that the Green Climate Fund shall enjoy ‘such legal capacity as is necessary for the exercise of its functions and the protection of its interests’ simply begs the question.

[1] Brownlie, Principles of Public International Law, 6th ed: 2003, p. 57

[2] ICJ Reports (1949), p. 179

[3] see, e.g., Article 16, International Convention on Civil and Political Rights, 999 UNTS 171, 1966