Article 4 of the ICC Statute deals with two main matters: the status of the ICC as subject of international law and the scope and extent of the ICC’s powers. The question to be discussed with regard to each of these two matters is to what extent the will of States Parties to the Statute can establish an entity endowed with international personality and circumscribe its powers.
The ICC’s antecedents— the Nuremberg and Tokyo Tribunals, the ICTY, and the ICTR—do not furnish a precedent in terms of international personality Commentators are almost unanimous in characterizing the Nuremberg Tribunal as a common organ of the four powers that established it.1 The Tokyo Tribunal References(p. 204) can also be considered as a common organ of the States that established it.2 Being common organs of States, these Tribunals did not possess international legal personality. Therefore, all their international activities were attributed to the States that established them.
As for the ICTY and ICTR,3 they do not possess personality because their status as subsidiary organs of the United Nations Security Council precludes it.4 Although international practice shows that some subsidiary organs of international organizations, of the United Nations in particular, conclude agreements with third countries,5 this does not imply that these organs are international legal persons.6 Rather, it is submitted that they conclude agreements in the name of the organization to which they belong.7 As regards the practice of the ICTY and the ICTR, the ICTY Headquarters Agreement was concluded (on 27 May 1994) between the Kingdom of Netherlands, on the one side, and the United Nations, on the other. The ICTY and the ICTR also entered into agreements with third countries concerning the execution of prison sentences. Since the agreements—References(p. 205) whose nature as international treaties can be questioned8—were signed, on behalf of the Tribunals, by the Registrar of each Tribunal, acting as representative of the United Nations Secretary-General, it is clear that they were actually concluded by the United Nations with the various States concerned.
As for the second main question raised by Article 4, the limits of the powers of the ICC, the Rome Statute confers on the Court the power to exercise, on the conditions established therein, criminal jurisdiction over individuals. This is a matter that touches upon the very core of States’ sovereignty. The ICC Statute, in restricting the scope of powers of the ICC, expresses the will of Member States to avoid any extension of the powers and functions of the Court which could impinge on their sovereignty. In this regard, the question is whether such a will of States Parties can exclude, and, if so, to what extent, the application of those theories (implied powers and inherent powers doctrines) which are usually referred to in order to extend powers and functions of international organizations.
The application of the inherent and implied powers doctrines was discussed at the ICTY in the Blaškić case9 in relation to the ICTY’s power to take enforcement measures against States. The Appeals Chamber concluded on the basis of two considerations that the ICTY does not possess such a power: first, the will of the draftsmen of the Statute, who clearly did not intend to vest the Tribunal with this power, and second, the character of the power, which could not be considered ‘inherent’ to the Tribunal’s functions.
These two factors will be considered when discussing the extent and the limits of the ICC’s powers.
II. General Remarks on the Question of International Legal Personality of Entities Established by Treaties
The question whether international legal personality can derive from the will expressed by the Contracting Parties10 in a treaty establishing a certain entity has References(p. 206) been mostly discussed within the framework of the more general question of whether and under what conditions international organizations can be subjects of international law.
The reasoning, it is submitted, can be followed here irrespective of whether the ICC is characterized as an international organization or not.11 What is relevant for the debate is the Court’s status as an international subject, and not its nature as an international organization.12
According to some authors, the basis of the international legal personality of international organizations is to be found in a rule of customary international law bestowing personality upon entities possessing certain characteristics and meeting the requirement of effectivity.13 This is referred to sometimes as an ‘objective test’.
Other commentators consider, rather, that the international legal personality of international organizations derives from the will of States Parties.14 Whenever the treaty contains a provision bestowing international personality upon the entity, References(p. 207) this entity becomes a subject of international law. In the absence of such a provision, the will of Member States to create an international legal person can be inferred from other provisions of the treaty, such as those providing for treaty-making power or immunity.15
Even the well-known ICJ 1949 Advisory Opinion on Reparations16 does not seem to offer an indisputable test, since it is often invoked by representatives of the two schools of thought in support of their opposite theses. Thus, for instance, the Court seems to support the objective test and to reject the theory based on the will of the Parties when it states: ‘The Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate on the international plane.’17 While elsewhere in the Opinion, it is held that ‘[the Organization] could not carry out the intention of its founders if it was devoid of international personality’18 (emphasis added).
If one takes the view that the will of Member States cannot create a person of international law having a status erga omnes,19 since treaties have binding force only inter partes, whereas personality is necessarily an erga omnes situation or quality, it follows that a treaty provision cannot create an international legal person.20 It is also submitted that the formal assignment of functions to be performed at international level cannot be the basis for international legal personality either, since personality depends on the effective exercise of those functions. ‘The issue of (international) legal personality would inevitably fall to be determined by the test of effective autonomy and independence. Sovereignty and independence would not be acquired automatically as a result of self qualification … it is necessary to ascertain whether the position of the body on the international community is References(p. 208) effectively that which it is claimed to be. One of the fundamental indications of the effective position of the body is the attitude of … states as a whole.’21
III. Legal Significance of Article 4
If one adheres to the theory whereby international legal personality cannot be based exclusively on a treaty, one must conclude that the assertion of international personality made in Article 4 of the ICC Statute is insufficient per se to create a subject of international law.
This obviously does not mean that Article 4 is deprived of all legal significance. The will of States Parties, although not constitutive of personality, is an important element in the process of acquisition of international legal personality by the entity established by treaty. States Parties to the Statute are, on the basis of this provision, legally bound to behave as if the ICC were a subject of international law, which means recognizing the Court’s independence and autonomy in international relations.
It seems clear that this obligation, especially if undertaken by a large number of States, has important consequences as far as international personality is concerned. The behaviour of States Parties, which must be consistent with the obligations undertaken by ratifying the Statute, could not but increase the effectiveness of the ICC and probably also influence third States’ attitudes towards the Court. The latter is a telling element, since what ultimately reveals the existence of a subject of international law is third States’ practice towards this entity, which must attest that they interact with it in a position of equality.22 In this perspective, the number of ratifications of the ICC Statute (if it follows the large number of signatures) will be very significant for the ICC’s acquisition of personality.
Besides Article 4, there are other Statute provisions that should be taken into consideration when discussing the international legal personality of the ICC: those conferring treaty-making powers and those granting immunity to the Court.
References(p. 209) The same reasoning which was followed above for Article 4 applies to provisions endowing the Court with treaty-making powers. The mere conferral of such a power on the Court is not enough to establish its legal personality. What counts is whether the Court exercises the treaty-making powers in full autonomy.
Article 4 and the provisions on treaty-making powers mean, in legal terms, that States Parties are compelled to recognize the binding effect of the agreements entered into by the ICC with other international subjects and are consequently barred from subsequently contesting the content of those agreements or from interfering with their application.
In order to evaluate whether the Statute establishes the conditions for the Court to act as a subject of international law, that is to be independent from the will of States, it is necessary to pay greater attention to the conditions for exercising the treaty-making power than to the mere recognition of such a power.
The treaty-making powers of the Court are provided in Articles 2, 3, 54(3)(d), and 87(5). The former two refer, respectively, to the conclusion of an agreement with the United Nations, and of a headquarters agreement with the Host State.
These provisions stipulate that the agreements are to be approved by the Assembly of States Parties and then concluded by the President of the Court on the Court’s behalf. The requirement of approval by the Assembly of States Parties is rather curious, since it seems to limit the independence and autonomy of the Court.23 If an agreement requires the approval of States Parties, this means that the final decision is taken by the latter and not by the Court. Thus, either one says that these provisions do not actually found a treaty-making power of the Court24 or, which seems preferable, that these provisions compel States to act in the Assembly of States Parties consistently with what they affirmed in Article 4 and thus respect the decision of the Court (which means that they could not enter into the merits of the agreement, but could, on the contrary, only formally endorse it).
As regards the other two instances of agreement with third States, these are provided for in Article 54(3)(d) (agreements to be concluded by the Prosecutor to References(p. 210) facilitate the cooperation of a State)25 and Article 87(5) (agreements of cooperation by third States with the Court). It is not clear who is authorized to negotiate and conclude these agreements, but one can presume that, at least as far as the second category is concerned, it is the President of the Court. The fact that no mention is made of the Assembly of State Parties seems to exclude any intervention by this body. The same applies to Article 54(3)(d).26 The conditions of autonomy, appear, therefore, wholly satisfied.
Article 48 compels Member States to grant immunity to the ICC.27 The granting of immunity cannot be conceived as evidence of international legal personality but it is rather the consequence, for States Parties to the Statute, of the obligation undertaken by them of recognizing the Court’s personality. One could even submit that the duty of States Parties to grant the ICC immunity would have followed from Article 4 even in the absence of Article 48.
The same reasoning obviously cannot apply to third States. Since the Statute only binds the Contracting Parties, the granting of immunity to the Court in third States’ legal systems would be the most important evidence of the ICC’s international legal personality.
In the case of infringement by a third State of the obligation to cooperate, the Court may inform the Assembly of States Parties or (where the Security Council referred the matter to the Court) the United Nations Security Council (Article 87(5)(b) ), which seems to leave the ICC a discretionary power to decide whether or not to react. Since it lacks the material means to enforce third States responsibility,28 it may have recourse to those means put at its disposal by Member States and the United Nations Security Council according to Article 87(5).
This provision, together with the fact that the Assembly of States Parties and the United Nations do not possess an autonomous capacity to respond to the infringement of the agreement by a third State, seems to express a willingness on the part of Member States to recognize the autonomous position of the Court.
If the ICC will demonstrate that it autonomously and effectively acts in the plane of international relations, that is, if in the last analysis, practice and the behaviour References(p. 211) of third States attest that the Court is in fact an international legal person, there will be two important consequences.
The most evident consequence of the acquisition by the ICC of international legal personality is the imputability to the Court of those acts, in particular agreements, which are relevant on the international plane. The Court will, therefore, be responsible, towards the other Parties of the agreements, for any infringements of the obligations undertaken on that basis.
As a second consequence, the Court, when acquiring international personality, will possess those powers which can be considered ‘inherent’ to this status, that is the powers which allow the entity to manifest itself as subject of international law and to enter into relations with other international law persons. This issue will be dealt with, infra, when discussing the extent of the ICC’s powers.
As a final observation, it should be noted that the Court has been conceived by some commentators as a common organ of States Parties.29 In other words, the Court was considered an ‘extension’ of national jurisdictions, that is an organ performing ‘internal state activities’. This seems to be the assumption at the basis of the German proposal of conferring to the ICC universal jurisdiction over the core crimes covered by the Statute. The rationale of such a proposal was that, since under general international law States may exercise universal jurisdiction over those crimes, ‘there is no reason why the ICC … should not be in the very same position to exercise universal jurisdiction for genocide, crimes against humanity and war crimes in the same manner as the Contracting Parties themselves.’30 It was, in other words, assumed that, through the Court, States Parties could do collectively what they are allowed to do singly (uti singuli).31 This idea of the Court as a ‘prolongation’ of national jurisdiction was, on the other hand, rejected by some States.32 One could even surmise that some of them (like the United States) rejected this hypothesis precisely in order to avoid any attempt to construe the powers of the ICC as being the same as those of national jurisdictions.
As is well known, States Parties to the Statute decided to establish an International Criminal Court and to confer on it the power to judge individuals for certain crimes (crimina juris gentium), submitting the exercise of those powers to the conditions they consider appropriate and convenient. They did, in other terms, what they are allowed to do under general international law: establish an entity and (p. 212) endow it with any of the powers (thus even jurisdictional powers) they themselves possess.
The possible acquisition by the Court of international legal personality will not prevent the Court from exercising those specifically granted powers. Nor will it prevent the States Parties to the constituent treaty from modifying, in the future, the conditions for exercising those powers. They could, thus, by amending the Statute, bestow universal jurisdiction upon the Court. There is not, in other words, any incompatibility between the Court possessing international legal personality (presuming that it will acquire such international legal status) and the Court exercising jurisdiction on the basis of the principle of universal jurisdiction.
Since the right to prosecute individuals suspected of having committed crimina juris gentium is recognized by general international law, one could argue that, when the Court will affirm itself as a subject of international law, the same customary rule would apply to it, and therefore, the Court could exercise universal jurisdiction even in the absence of an express provision in the Statute.
This approach should, however, be rejected. The capacity of entities which find their origin in a treaty is more limited compared to the full capacity which is enjoyed by States.33 It has not, in fact, been demonstrated that an entity endowed with international personality but which is structurally different from States is subject to the same customary rules applying to the latter. This is particularly the case when these rules concern the jus punendi (the right to punish) which appears one of the most characteristic features of States.
V. Powers of the ICC
A. Territorial Extension of the ICC Jurisdiction
According to Article 12(2) of the Rome Statute, the Court can exercise its jurisdiction over the crimes enumerated in Article 5 only if the State which has a special link with the crime (nationality of the alleged perpetrator or locus commissi delicti) is a Party to the Statute. However, the prerequisite of the existence of a link should not be interpreted as a limitation on the powers of the Court. In other words, once it is established that the Court has jurisdiction over a certain crime, it can exercise its powers not only on the territory of the Member State concerned but also on the territory of all the other Member States. Thus, for example, if State A is the State of nationality of a person accused of one of the crimes listed in Article 5 and this State is Party to the Rome Statute, the ICC has jurisdiction over that person, and can exercise its functions on the territory of State A. The Court, however, can also exercise its functions and powers on the territory of State B, Party to the Statute, though this State has no ‘jurisdictional link’ with the crime. This would occur, if, for instance, a witness is a national or resident of State B and is summoned to appear before the Court.
References(p. 215) By contrast, any extension of the powers of the Court as regards third States must be based on a strict consensual basis. The reference to agreements concluded with third States thus appears to be an application of the well-known principle of international law pacta tertiis.40
B. Powers ‘as provided’ in the Statute
Referring again to the provisions of the Rome Statute, the second paragraph of Article 4 restricts the powers and functions of the Court to those expressly mentioned.
As far as the question of limitation of powers is concerned, it is clear that Contracting Parties can determine the extent of the powers of the international organization they establish. It is general practice for the constituent treaty to determine the range of powers conferred on the entity allowing it to exercise its functions and purposes as set out in the treaty. The will of States Parties thus plays a fundamental role in establishing the limits within which personality, once it is established by practice, as discussed above, can be exercised.
However, the application of the theory of implied powers, with a view to extending those powers beyond what is explicitly established, seems to make the will of States Parties only one element, although certainly a weighty one, in determining the scope of the organization’s legal capacity. As the ICJ clearly stated in Reparations: ‘Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’ (emphasis added).
In the case of the ICC, it seems that in Article 4(2) Member States expressed a clear will: to limit the powers of the Court to those expressly conferred in the Statute. This seems to exclude any interpretation of the provisions of this agreement which would result in an extension of the Court’s powers beyond those ‘provided’ in the Statute.
One might, however, distinguish between the inherent and implied powers doctrine. The notion of inherent powers, often applied41 with reference to international organizations, as distinct from that of implied powers, indicates powers enabling an entity to manifest its status as a legal person entering into relations References(p. 216) with other subjects of international law.42 The implied powers doctrine extends the powers of international organizations which are necessary to implement functions already conferred in the constituent instrument.
The ICJ made this distinction in its 1949 Opinion on Reparations even if the Court did not explicitly refer to the former notion. In its Opinion, the ICJ construed the power of the United Nations to bring an international claim as deriving from the international legal personality of the organization.43 Such a power was then extended to the damage suffered by its agent, through the application of the theory of implied powers.
It is submitted that a limitation such as that contained in Article 4 of the ICC Statute cannot apply to those powers defined as inherent but excludes only the application of the implied powers doctrine.
Thus, if the Court will acquire international legal personality—and here lies the real relevance and interest of the possession of international legal personality by the Court44—it could, on the basis of the doctrine of inherent powers, bring a claim in case of violation of its rights or of infringement of an agreement with a third State. The Court could also, for instance, conclude an agreement with a third State concerning its immunity. Such a power would be grounded on the provision recognizing immunity to the Court, but also on the fact that immunity is a qualifying aspect of international personality.
Reference could also be made to the notion of inherent powers as applied to jurisdictional organs, in particular to international tribunals, to indicate those powers the organ exercises qua judicial body. If the judicial body has international legal personality, it would possess two sets of ‘inherent’ powers, those inherent to its status of legal person and those inherent to its status of judicial body.45 Since the References(p. 217) theory of inherent powers of a judicial body is a way to extend the powers conferred on it by its constitutive instrument, it should then be asked whether the reference made in Article 4 could be interpreted as barring the Court from expanding its jurisdictional powers.
Powers of a judicial body can certainly be limited by the will of States Parties to the constituent treaty; it is, however submitted that the Court could extend its powers as judicial body if they are necessary for the administration of justice and provided that they do not translate into new obligations imposed on States Parties. In other words, one should take into account the fact that the ICC could have recourse to ‘the inherent competence of a judicial body … to regulate its own procedure in the event of silence in the written rules, so as to assure the exercise of such jurisdiction as it has, and to fulfil itself, properly and effectively, as a court of law’, since ‘[w]ithout that residual competence, no court can function completely’.46
1 The Nuremberg Tribunal is considered a common organ by H. Lauterpacht (ed.), Oppenheim’s International Law, Vol. II (1955) 581; G. Sperduti, ‘L’Individu et le droit international’, 2 Rec. des cours (1956) 729, in particular 783. Contra: M. ST. Korowicz, ‘The Problem of International Personality of Individuals’, 50 AJIL (1956) 533, at 551, affirming the international nature of the Nuremberg Tribunal. However, according to the Tribunal itself: ‘the Signatories Powers (in creating the Tribunal) have done together what any one of them might have done singly’. See 41 AJIL (1947) 48. The four powers exercised a condominium over the territory of the former German Reich. They could exercise judicial, legislative, and executive powers through the Control Council. However, the London Agreement was signed by the four powers and not by an act of the Control Council. This latter endorsed the terms of the London Agreement by Control Council Proclamation No.1 and Control Council Law No. 10 (see 42 AJIL (1947) 49 and 780).
2 The Tokyo Tribunal was established by a Proclamation of General McArthur, acting as Supreme Commander of the Allied Powers and acting as their agent. For this reason, the Tribunal was not considered a tribunal of the USA. See Koki Hirota v. Douglas McArthur, cited in Lauterpacht, supra note 1, at 581 note 2.
3 The two Tribunals were established by the Security Council of the United Nations by, respectively, SC Res. 827 (1993) of 25 May 1993 and SC Res. 955 (1994) of 8 November 1994.
4 See the conclusions drawn by the Tribunal itself in the Tadić case. Prosecutor v. D. Tadić. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-94-1-AR 72. See also the reasoning followed by the ICJ in the Opinion on the Effect of Awards of Compensation made by the UN Administrative Tribunal, ICJ Reports (1954) 47. We do not intend to discuss in this context the question of the conformity of the establishment of those Tribunals to the United Nations Charter. For the different theories, see A. Pellet, ‘Le Tribunal Criminel International pour l’ex Yugoslavie: Poudre aux yeux ou avancée decisive?’, 98 RGDIP (1994) 7; J. C. O’Brian, ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, 87 AJIL (1993) 639.
5 See I. Morgenstern, Legal Problems of International Organizations (1986) 23.
6 ‘Legal capacity of subsidiary organs … to act on the international or national plane follows from their status as organs of the United Nations, the internationally recognised legal personality of the United Nations.’ See A. Jaenicke, ‘Article 7’, in B. Simma (ed.), The Charter of the United Nations (1994) 195. See also D. Sarooshi, ‘The Legal Framework Governing UN Subsidiary Organs’, 67 BYIL (1996) 412, at 414 note 2. For a different approach, see J. Dutheil de la Rochère, ‘Article 7’, in J. P. Cot and A. Pellet (eds.), La Charte des Nations Unies (1985) 212, at 223 and W. Dale, ‘U.N.R.W.A.—A Subsidiary Organ of the United Nations’, ICLQ (1974) 576, at 591, referring to a judgment of an Egyptian Tribunal which inferred that UNRWA possessed international legal personality on the basis of its having concluded an international agreement with the Egyptian government. Provisions declaring legal personality of organs of an international organization, without further specification, should be interpreted as referring to legal personality in domestic legal systems. See e.g. Art. 266 of the EC Treaty establishing legal personality of the European Investment Bank.
7 According to Jaenicke, the provisions authorizing subsidiary organs to conclude agreements with third States are not intended to provide the organs with international legal personality, their aim being rather that of determining the scope of powers conferred. Jaenicke, supra note 6.
8 They ‘can be understood as implementation legislation in the broader sense’. I. Josipovic, ‘Implementing Legislation for the Application of the Law on the International Criminal Tribunal for the Former Yugoslavia and Criteria for its Evaluation’, 1 YIHL (1998) 35, at 41. See for other examples the ‘Correspondents’ Reports’ in the same volume, at 519. Even if one does not share this view, the conclusions, as regards international legal personality, are the same, since these agreements are concluded by the ICTY as organ of the United Nations.
9 The Prosecutor v. Blaškić, Case IT-95-14-AR108 bis, Judgment of 18 July 1997 and the Judgment on the Request of the Republic of Croatia for review of the Decision of Trial Chamber II of 18 July 1997, rendered on 29 October 1997.
10 Art. 4 of the Rome Statute is a rather uncommon, although not isolated, example of a treaty provision declaring the international legal personality of the entity established by the treaty. The most well-known cases are Art. 210 of the European Economic Community Treaty and Art. 6 of the EEAC Treaty. Identical provisions can be found in the Agreement establishing the African Development Bank (Art. 10), the Treaty setting up the International Fund for Agricultural Development (Art. 10), and the Agreement founding the OPEC Fund (Art. 1). These examples are cited by C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996) 85 note 46 and G. Arangio-Ruiz, ‘Soggettività nel diritto internazionale’, 14 Digesto delle Discipline Pubblicistiche (1999) 299.
11 The question of the international legal status of an entity performing jurisdictional functions was discussed in particular by Italian scholars in the first half of last century. The international legal personality of international tribunals was denied by Morelli and Perassi. G. Morelli, Nozioni di diritto internazionale (1967) 237; T. Perassi, Lezioni di diritto internazionale (1936) 136. See also R. Quadri, Diritto internazionale pubblico (1968) 182. Contra: G. Balladore Palleri, Diritto internazionale pubblico (1962) 214. In foreign literature, see K. Strupp, ‘Les Régles générales du droit de la paix’, 1 Rec. des cours (1934) 261, at 533 who characterized the Permanent Court of International Justice as a subject of international law. The Statute of the PCIJ was not part of the Covenant of the League of Nations but was an autonomous international instrument.
12 Part of the doctrine seems to consider the ICC as an international organization. See M. L. Padelletti, ‘Il sistema di raccolta delle prove nel progetto di Statuto delia Corte penale internazionale’, Cooperazione tra Stati e giustizia penale internazionale (1999) 159, at 161. W. Rückert, ‘Article 4’, O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) 89.
13 See F. Seyersted, ‘The Law between International Organizations and Private Parties’, 3 Rec. des cours (1967) 426. M. Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’, 44 BYIL (1970) 111. See also Arangio-Ruiz, supra note 10, at 337, where he affirms that international legal personality of any subject can derive only from general international law. See also at 338 when he considers as a fundamental element of international personality of the UN (but this consideration seems also applicable to any other international organization) its effective independence.
14 For the theory whereby provisions affirming international legal personality create personality, see P. Daillier and A. Pellet, Droit international public (1992) 565; R. L. Bindschedler, ‘International Organizations: General Aspects’, 2 EPIL (1995) 119; G. Tunkin, ‘The Legal Nature of the United Nations’, 3 Rec des cours (1966) 119; D. Feldman, ‘International Personality’, 2 Rec. des cours (1985) 359.
15 In certain cases, however, the absence of this provision is interpreted as proof of the will of the contracting parties not to confer personality on the entity. See references in Tizzano, ‘La personalità internazionale dell’Unione Europea’, 2–3 Il diritto dell’Unione Europea (1998) 377, note 4 at 379.
16 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports (1949) 174.
19 Unless one admits the existence of a rule of general international law deriving international legal personality from the will of the States Parties to a treaty establishing the entity. G. Balladore Pallieri, Diritto internazionale (1960) 230. For a criticism of this theory, see G. Arangio-Ruiz, ‘Stati e altri enti (Soggettività internazionale)’, 18 Novissimo Digesto italiano (1971) 132, at 210.
20 Recognition has been conceived both as a unilateral and as a bilateral act. In both hypotheses, the theory of recognition as constitutive of legal personality leads to a relative notion of personality. One reaches the same conclusion even if the agreement establishing the organization is conceived—as regards international legal personality—as a ‘group’ of unilateral acts of recognition of personality made by the States Contracting Parties. See U. Villani, ‘Riconoscimento (diritto internazionale)’, 40 Enciclopedia del diritto (1989) 638. See Arangio-Ruiz, supra note 19, at 209, where he affirms that personality is not conceivable as a Contractual phenomenon . ‘It is not clear—he continues—how one can consider that the agreement creates personality of organization when it is considered unsuitable to create personality of a State.’ See also H. Lauterpacht, ‘The Development of the Law of the International Organizations by the Decisions of International Tribunals’, 4 Rec. des cours (1976) 381.
21 Bacchelli v. Comune di Bologna, 77 ILR (1988) 621.
22 For instance, what seems to prove the international personality of the International Tribunal for the Law of the Sea established by the United Nations Convention on the Law of the Sea, entered into force on 16 November 1994—more than the invitation on 17 December 1996 by the UN General Assembly to participate as an observer in the work of this organ (an invitation which in the history of the UN has also been extended to entities whose personality was disputed, as for example the OLP)—is the Agreement on Cooperation and Relationship concluded by the Tribunal with the United Nations on December 1997. On the Law of the Sea Tribunal, see T. Treves, ‘The Law of the Sea “System” of Institutions’, Max Planck Yearbook of United Nations Law (1998) 325, and J. Akl, ‘The Legal Status, Privileges and Immunities of the International Tribunal for the Law of the Sea’, ibid., 340.
23 One should incidentally note the formulation of the article suggesting not an active but rather a passive position of the Court. Art. 2 reads in fact that the Court ‘shall be brought’ into relationship with the United Nations.
24 It could be submitted that the Rome Statute establishes an entity whose organs are the Assembly of States Parties, the Court, the Bureau and other subsidiary bodies (Art. 112(3)(a) and 112(4) ). In this hypothesis, Arts. 2 and 3 could be read as setting up a procedure of conclusion of agreements by this entity. This supposition seems, however, excluded by a literal and systematic interpretation of the Statute: the organs of the Court are listed in Art. 34, while the Assembly is established in Art. 112; when reference is made to the Court it seems clear that the provisions refer only to the Court as judicial body. The Assembly of States Parties should then be conceived of as an organ separate from the Court, expressing the will of Member States.
25 It is not specified that this is a third State, but it is submitted that this general reference could indicate State Parties and third States as well. As regards the object of the agreement, it is presumed that this concerns questions of direct responsibilities of the Prosecutor.
26 In the case of Arts. 87(5) and 45(3)(d), it is the Court which shall determine the content and conditions of a cooperation which concerns its jurisdictional activity.
27 Generally speaking, denial of immunity could have important consequences for international organizations. Their functions could be seriously jeopardized, even blocked altogether, if a third State refused to grant immunity. The same could apply to the Court, although in practical terms, it does not seem that the exercise of its jurisdictional functions could be seriously blocked by denial of immunity to the Court by a third State.
28 Even if it will acquire international legal personality, the Court does not have the means to enforce its rights, as is the case for many international organizations.
29 G. Palmisano, ‘La nuova Corte Penale Internazionale e il problema degli Stati terzi’, 1 Rivista della cooperazione giuridica internazionale (1999) 25; P. Picone, ‘Corte Penale internazionale e crimini internazionali degli Stati’, in F. Lattanzi (ed.), Cooperazione tra Stati e giustizia penale internazionale (1999) 63.
30 See UN Doc. A/AC.249/1998/DP.2 (23 March 1998). See also S. Williams, Art. 12, in Triffterer (ed.), supra note 12, at 152.
31 See supra note 1, as regards the Nuremberg Tribunal.
32 UN Doc. A/CN.4/452, 22 and 26.
33 See Advisory Opinion of the ICJ on the Interpretation of the Agreement of 25 of May between WHO and Egypt, ECJ Reports (1980) 155.
34 P.-M. Dupuy, ‘Article 104’, in Cot and Pellet (eds.), supra note 6, at 1381.
35 The presence of provisions recognizing internal legal personality does not seem to be limited to international organizations, or entities enjoying international legal personality. In this respect, it should be noted that organs of international organizations may enjoy internal personality as a device enabling them to act in full and complete autonomy (to rent premises, employ personnel). On the compatibility between the status of organ and internal legal personality, see also I. Seidl-Hohenveldern, ‘The Legal Personality of International and Supranational Organizations’, in Collected Essays on International Investments and on International Organizations (1998) 3, at 32. It has been submitted that States Members of entities having international legal personality are obliged in the absence of an express provision in the establishing treaty—to recognize internal legal personality on the part of such an entity. ‘Lorsqu’une organization interétatique est dotée de la personnalité juridique internationale, sa capacité juridique dans les ordres internes n’est que le reflet, la conséquence nécessaire et inéluctable, de sa qualité de sujet du droit international.’ C. Dominicé, ‘L’Immunité de juridiction et d’exécution des organization internationales’, 4 Rec. des cours (1984) 149, at 165. This statement is certainly correct when referring to States as subjects of international law, but one can express some doubts as to the applicability of this parallelism for international organizations. If there existed a rule of customary international law granting internal personality to international organizations, it is not clear why even treaties declaring the international legal personality of the entity contain a provision laying down the obligation for States Parties to recognize internal personality on the part of the organization.
36 Many treaties establishing international organizations specify the content of such capacity. See e.g. Art. IX(2) of the IMF and Art. VII(2) of the IBRD. These organizations are recognized to possess the capacity to ‘contract, acquire and dispose of immovable and movable property, institute legal proceedings’. For certain writers, these are inherent attributes of internal legal personality. See C. Dominicé, ‘Observations sur la personnalité juridique de droit interne des organizations internationales’, Liber Amicorum Professor I. Seidl-Hohenveldern (1998) 85; see also Amerasinghe, supra note 10, at 77.
37 It seems that the observation made by Seidl-Hohenveldern as regards international organizations applies to the Court: ‘However, any activity of the organization whether jure imperii and jure gestionis must be in a reasonable close connection with the aims for which it was founded’, supra note 35, at 28.
38 Questions which concern the financial autonomy or the representation of the Court should not be regulated by the norms of Member States which apply to legal persons in general. See B. Conforti, ‘Le imprese internazionali’, in Rivista di diritto internazionale privato e processuale (1970) 1. See also F. A. Mann, ‘International Corporations’, BYIL (1967) 145, at 165: ‘It is the totality of the constitution, of its terms, intentions, purposes, and functions that has to be looked at to ascertain the Corporation’s capacity.’
39 ‘Capacity could arise by reference to an entity’s status under the domestic laws of its member States’. Arab Monetary Fund v. Hashim, 84 ILR  405, at 408.
40 The same would also have been true if the Court had been endowed with jurisdiction without the existence of a link. In this case even in the presence of universal jurisdiction, the exercise of the powers and functions of the Court (as, for instance, the calling of witnesses) would in any case have been limited to the State Parties to the Statute.
41 See Rama-Montaldo, supra note 13, at 124 ff.; Amerasinghe, supra note 10. For a critique, see Tunkin, supra note 14, at 20.
42 H. Kelsen, for instance, considers that the United Nations, as an international legal person, may have the right of active and passive legation (Kelsen, The Law of the United Nations (1957) 335).
43 As the Court argued: ‘in the international sphere, has the Organization such a nature as involves the capacity to bring an international claim?’ And further, ‘the Court had come to the conclusion that the Organization is an international person … what it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims’ (emphasis added). Reparation, supra note 16.
44 International legal personality when declared in the Treaty, as in the present case, could be read also as the expression of a political will: it could be submitted that by adding the provision on the ICC’s international legal personality, the Contracting Parties wished to lay emphasis on the autonomy of the Court vis-à-vis the States Parties to the Statute.
45 See for instance the dissenting opinion of Judge El-Kosheri, in Question of interpretation and application of the 1991 Montreal Convention arising from the aerial incident at Lockerbie (request for provisional measures), ICJ Reports (1992) at 105. Inherent powers are not identical for all jurisdictional organs. There are different elements which influence their extent. These are (i) the basis of their jurisdiction, which could be an agreement among States, as it is the case for the ICC, or in more general terms consent of States (as for the ECJ); (ii) their status (i.e. that of international tribunals or subsidiary organ); the scope of their jurisdiction (over individuals or over States). On this question, see D. Saaroshi, ‘The Powers of the United Nations International Criminal Tribunals’, Max Planck Yearbook of United Nations Law (1998) 141.
46 Dissenting opinion of Judge Shahabuddeen, Kanyabashi v. The Prosecutor, ICTR-96-15-A. He continues affirming that ‘Trial chambers shall ensure … that proceedings are conducted in accordance with the rules of procedure and evidence … But, where “the rules procedure and evidence” do not provide, can it be argued that nothing in that provision of the Statute was intended to denude a trial chamber of that residual competence if it could be exercised consistently with the requirement for trials to be fair and expeditious? That, indeed, that residual competence was impliedly granted to the Tribunal by the Statute when it empowered the tribunal to hold trials?’ (emphasis added).