Abstract
The making of treaties is one of the oldest and most characteristic exercises of independence or sovereignty on the part of States. The PCIJ has stated that “the right of entering into international engagements is an attribute of State sovereignty.”1 Or in the words of Oppenheim, “[a] State possesses the treaty-making power only so far as it is sovereign.”2 In the case of normal and fully independent States, the only limit placed upon the effectiveness of the exercise of this capacity is the necessity of compliance with the rules prescribed by international law for the validity of treaties.3
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There has been continued controversy in Russian literature on the point of whether international organizations are subjects of international law. According to Triska and Slusser, the various points of view have crystallized essentially into two theories opposing each other, one represented by Professor Modzhorian and the other by the Chief of the Treaty and Legal Division of the Ministry of Foreign Affairs, Tunkin (supported by Professors Levin and Bobrov). The Theory, Law, and Policy of Soviet Treaties 50 (1962). [The following references to Soviet literatures are cited from id. 50-52.] Professor Modzhorian maintained that when certain international organs and organizations have the right to conclude certain international treaties — as has the UN Security Council concerning the contribution by members of “armed forces, assistance, and facilities, including right of passage” under Article 43 of the Charter — such treaties generate rights and obligations not to the Security Council or the UN but to the member States, who in Article 24 “confer on the Security Council the primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” Neither the Security Council nor the UN could then be considered subjects of international law, even if they conclude certain treaties; they are solely collective representatives of the true subjects of international law, the member States, who have entrusted them with their representation in the interest of preservation of peace. Sub”ekty mezhdunarodnogo prava 39 (Moscow 1958). If the UN is not viewed as a subject of international law, then of course none of the lesser organizations of any kind can be so considered. If some of them are permitted to enter into international treaties, it is because their members, the sovereign States, gave them limited, clearly defined rights in the international treaties delineating their activities. Id. 39-40. Tunkin (and Levin and Bobrov), on the other hand, although agreeing with Modzhorian that the UN does not possess “an inherent sovereign will,” which only States possess, argue that the UN is, nevertheless, a subject of international law, though a nontypical one, limited (by the Charter), secondary and “unique.” They view the UN as having an international legal personality, though this personality is restricted by the Charter, and claim that this international legal personality is a necessary attribute of and prerequisite for international legal relationships such as international treaties, which the UN must undertake and carry out in order to fulfill its obligations in the name of the members of the UN. This legal personality makes the UN a concrete treaty partner. To exclude the UN, an integral collective organization of sovereign States, from international legal relations would mean the destruction of international relations. The organization cannot be replaced by individual members acting separately. The UN must be viewed as a legally competent subject of international law within the limits laid down by the Charter. Within these limits, which endow the organization with an adequate scope for its activities, the organization may deal freely with all the problems that confront it. As a consequence, the UN acquires rights and responsibilities under the treaties that it concludes just as any other subject of international Law. Tunkin, Osnovy sovremennogo mezhdunarodnogo prava 17-19 (Moscow 1956)
Bobrov, O pravovoi prirode Organizatsii Ob”edinennykh Natsii, 2 Soviet Yb. Int’l L. 229, 234–238 (1959); Levin, Osnovnye problemy sovremennogo mezhdunarodnogo prava 80-86 (Moscow 1958). Although Triska and Slusser concluded that “[t]his latter argument appears to represent the prevalent Soviet view on the subject at the present time,” The Theory, Law and Policy of Soviet Treaties 52 (1962), yet in a standard textbook on international law, published by the Institute of State and Law of the Soviet Academy of Sciences, it is stated that “[i]n modern bourgeois legal writings, a number of scholars (Jessup, Lauterpacht, Scelle, etc.) favour the extension of the range of subjects of International Law to include international organizations and even physical persons. But this contradicts the very essence of International Law as inter-State law, whose purpose is to regulate the relations between States on the basis of their sovereign equality.” Kozhevnikov (ed.), International Law 89 (Ogden transl. 1961). [No year of publication is listed in this book. In Professor Baxter’s bookreview on the book, it was listed as 1961 publication, 56 Am. J. Int’l L. 1131 (1962); but in El-Erian’s first report on Relations between States and Inter-governmental Organizations, it was listed as 1959 publication, UN Doc. A/GN.4/161, at 16 n. 36 (1963).] More specifically, in Chapter VI of the last mentioned book entitled “International Treaties,” an international treaty is defined as “a formal expressed agreement between two or more States regarding the establishment, amendment or termination of their reciprocal rights and obligations.” Id. 247. Thus, international organizations seem to be precluded from becoming parties to international treaties. As to the treaties concluded by international organizations, the book concludes that they “express in the ultimate analysis the delegation of the rights of States themselves as subjects of International Law.” Ibid. Despite the doctrinal controversies in the Soviet literatures, it is interesting to note that the Statute for the Council for Mutual Economic Aid (to which the Soviet Union and other socialist countries are parties), done on December 14, 1959 (effective on April 13, 1960), provided in Article 11 that “[t]he Council may establish and maintain relations with the economic organizations of the United Nations and other international organizations. The nature and form of such relations shall be determined by the Council in agreement with the relevant international organizations.” 1 Peaslee, International Governmental Organizations 332 (2d ed. 1961). Moreover, in 1959 the Soviet Union concluded an agreement with the IAEA on making available of special fissionable materials to the Agency. 339 U.N.T.S. 341.
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Chiu, H. (1966). The Basis of the Treaty-Making Capacity of International Organizations. In: The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties so Concluded. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0911-4_3
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