ASSIGNMENT II [25 MARKS]

Article 104of the UNCharter provides the UNwith the "capacityas may benecessary" to execute itsfunctions and fulfillits purpose withinthe territory ofeach member state.

Critically analyzethe above statementand discuss the chartergap that thereparations case fills inclear terms.

1.1.0. Introduction

An entity which has international legal personality can be a subject of international law and then can be a regular member of international society. In international society, international legal relations are generally formed by treaties. Thus, from the legal point of view, the treaty-making power is one of the essential elements of international legal personality. In principle, only sovereign States have been qualified as entities which have full international legal personality.

personality means an entity is a subject of international law and is "capable of possessing international rights and duties and has the capacity to maintain its rights by bringing international claims.

2.0.0.Capacity

Capability of a subject of the law of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. A State's passive and active legal capacity begins with its birth. An international organization's passive and active legal capacities depend on its establishment.

2.1.0 . Legal Capacity of international organisations

Legal capacity is the ability to make a binding agreement, sue another person and make other decisions of a legal nature. Under international law, states and other subjects of international law have rights and duties. These rights can be claimed when need arises.

Ng'andu F (2007)^[1] asserts that an international organisation of States has legal capacity under international law if it satisfies three essential elements:

1. It must be a permanent association of state members with established objectives and administrative organs The League of Nations and the UN satisfy this prerequisite because its member states intended for them to function indefinitely.
2. An international organisation must possess some power that is distinct from the sovereign power of its state member e.g. organs of the EU can order a member state to act, over the State's objection, in matters defined by the Union's constitutive intemational treaties.
3. The organisation's powers must be exercisable on an international level rather than solely under the national legal system of its members states.

Just like states international organisations have legal personality.Public international organisation possess a legal personality or capacity to exercise certain "governmental" power in a manner like those of their individual state member. When those states yield the requisite degree of sovereignty to the organisation it has truly international power

The capacity to engage in conduct otherwise reserved to States. For example, ability to concluded treaties with other organisations or individual states, and to require member states to act, or refrain from acting, in a particular way.^[2]

researchgate.net (2011)^[3] adds that, the issue of legal personality of international organizations is quite specific and, in many ways, it has differences with the legal personality of the sovereign states. But through its actions the international organizations express their personality at the national level as well as at international level. Legal status of international organizations in national law is an issue that each state regulates by the norms of its legal system. International organizations have legal personality if they could possess certain rights and obligations in accordance with international law and if there is autonomy in their operations.

When an entity being a State or International organisations has legal capacity, the following are true⁴:

• Ability to enter into contracts
• Ability to enter acquire and dispose of immovable and movable property
• Ability to enter institute legal proceedings in their own names
• Ability to enter into treaty relations with other entities possessing international
• Possess legal personality
• Ability to enter espouse international claims, and Ability to enter sail vessels under their flag.

2.2.0 . Importance of legal personality for international organisations like the UN

Possession of personality by international organisations may produce certain common core features in the sense of rights principally, privileges organisation for its illegal acts. However, the extent of the personality of a particular organisation depends on its constituent document.^[4]International organizations possess international legal personality^[5] under international law and can exercise their functions with international legal personality^[6]. In this respect, it is deemed an entity that is a "subject of international law" or an "international legal person"^[7] it is able to be a party to treaties, present claims against other international persons, possess other international rights and duties.

3.0.0. Functions of the United Nations

The united Nations has quite several functions which it should be able to carry out effectively. International law allows the organization to do all the underlisted functions. We discuss these functions below:

3.1.0 . Maintenance of international peace

The main function of the United Nations is to preserve international peace and security. Chapter 6 of the Charter^[8] provides for the pacific settlement of disputes, through the intervention of the Security Council, by means such as negotiation, mediation, arbitration, and judicial decisions.

3.2.0 . Economic welfare and cooperation

The General Assembly, ECOSOC, the Secretariat, and many of the subsidiary organs and specialized agencies are responsible for promoting economic welfare and cooperation in areas such as postwar reconstruction, technical assistance, and trade and development.

3.3.0 . Financial economic development

The World Bank is also primarily responsible for financing economic development. In 1956 the International Finance Corporation was created as an arm of the World Bank specifically to stimulate private investment flows. The corporation has the authority to make direct loans to private enterprises without government guarantees and is allowed to make loans for other than fixed returns. In 1960 the International Development Association ( IDA) was established to make loans to less-developed countries on terms that were more flexible than bank loans.

3.4.0 . Trade and development

After the massive decolonization of the 1950s and early 1960s, less-developed countries became much more numerous, organized, and powerful in the General Assembly, and they began to create organs to address the problems of development and diversification in developing economies.

3.5.0 . Social Welfare and cooperation

The United Nations is concerned with issues of human rights, including the rights of women and children, refugee resettlement, and narcotics control. Some of its greatest successes have been in the area of improving the health and welfare of the world's population. In the 1990s, despite severe strains on the resources of UN development programs and agencies resulting from massive refugee movements and humanitarian crises, the UN increased its emphasis on social development.

4.0.0 . The reparation case

When this Diplomat was killed, the United Nations sort reparation for the death experienced. The International Criminal Court was tasked to provide an advisory opinion on the matter. The advisory opinion had three elements namely: a) Can the UN bring an international claim for damages suffered by the UN itself; b) Can the agents of the UN get damages for injuries suffered by the UN agents; c) can non-members be made to account for damages caused to the UN and its members

The Conclusion that was arrived at was that the UN had legal personality and for it to carry out its functions it needed this personality even against nonmembers. For the UN to carry out its functions, the possession of legal personality was indispensable. Legal personality is cardinal for an international organisation to operate, without it institutions and groups cannot operate, for they need to be able to maintain and enforce claims. In municipal law individuals, limited companies and public corporations are recognised as each possessing a distinct legal personality, the terms of which are circumscribed by the relevant legislation.

Without personality an organization would not be able to appear in its own right in legal proceedings, whether at the international or non-international level. There would also not be a single international person as such having the capacity in its own right to have rights, obligations and powers, whether implied or expressed, both at the international level and at the non international level.^[9]

International organisations have now been accepted as possessing rights and duties of their own and a distinctive legal personality.^[10]

The rights and obligation of a state are comprehensive, however for the UN, rights and obligations are contained in the UN Charter.

4.0.0 . Conclusion

The international organisations exists for the purpose they were created. For an international organization to carry out its mandate, it should have legal personality. In addition, it should be able to bring claims against those that offends it. The United Nations like any other International organization has legal personality and can bring claims against nations for crimes against it or its employees. In the Reparation case, the ICJ concluded that without personality an organization would not be able to appear in its own right in legal proceedings, whether at the international or non-international level.

[1] Ng'andu F (2007). International law II. Lusaka: ZAOU

[2] ibid

[3] researchgate.net (2011).Legal personality of international organizations. Retrieved form:

https://www.researchgate.net/ LEGAL_PERSONALITY_OF_INTERNATIONAL_ORGANIZATIONS4 Supra note 1

[4] Supra note 1

[5] Leibniz G. W (1693). Codex Iuris Gentium diplomaticus

[6] Amerasinghe C.F. (2005). Principles of the institutional law of international organizations (2nd revised edition),

Cambridge: Cambridge University Press

[7] Alvarez J.E. (2005), International Organizations as Lawmakers, Oxford: Oxford University Press

[8] Chapter 6 of the UN Charter- Article 33 to 38

[9] Amerasinghe C. F. (2005) Principles of the Institutional Law of International Organizations. Cambridge.

Cambridge: University Press

[10] Malcolm N. S (2003). International Law. Cambridge: Cambridge University