Does the Secretariat of the Arctic Council have an international legal personality?
International legal personality is a troubled concept in international law with regard to international organisations. Uncertainties arise regarding the status of entities, like the Secretariat of the Arctic Council.
Whether an entity enjoys international legal personality or not is the decisive factor for its standing in international law. It determines whether an entity can act in the international realm, has rights or can have obligations imposed on it – in general, whether an entity can be considered as such (in the international context) and as what exactly. As important as it is, the concept of international legal personality is equally controversial. There is heated debate about this concept within the realm of international organisations and what it entails. Regardless of this, its application is not always black and white either. It is widely agreed that the Arctic Council (hereafter ‘Council’), for example, does not enjoy an international legal personality. In the case of the Secretariat of the Arctic Council (henceforth ‘Secretariat’), however, it is debateable whether the same can be said. This blog post will address this controversy and present some arguments for and against the conferral of an international legal personality on the Secretariat.
Generally, international legal personality is the quality of being an ‘international person’, which itself is defined as ‘a subject of international law’ that is ‘capable of possessing international rights and duties’ and that ’has capacity to maintain its rights by bringing international claims’ (Reparation for Injuries, 179). Although there is a substantial doctrinal debate concerning the basis of international legal personality, the currently prevailing opinion states that this ‘status is given to them, either explicitly or, if there is no constitutional attribution of this quality, implicitly’ (as found by the ICJ in Reparation for Injuries, introducing the ‘doctrine of implied powers’). The entity ‘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’ (Reparation for Injuries, 182).
The Council itself is an ’intergovernmental forum for the promotion of cooperation in the Arctic’. It consists of the ‘eight States [that] have territories within the Arctic and thus carry the role of stewards of the region’ and can issue decisions and statements for which it requires consensus (Website of the Council). The fact that the Council does not refer to itself as an international organisation but an ‘intergovernmental forum’ indicates, among other things, the lack of an international legal personality of the Council.
At the seventh Council conference in 2011, it was decided to establish a standing Secretariat in Norway no later than 2013 to strengthen the Council’s work (Nuuk Declaration, 2). The Secretariat is hence based on an external agreement and not on the Ottawa Declaration that initially established the Council. This external document contains no explicit elaborations concerning the international legal personality of the Secretariat, nor does the Council explicitly mention such personality anywhere else. Other agreements between any of the member States that confer such a personality upon the Secretariat do not exist either. Therefore, the first alternative (explicit attribution) discussed by the ICJ does not exist and the existence of any implicit attributions must be discussed.
Further details as to the scope of the Secretariat’s work were later determined by the deputy ministers of the States involved. This includes, for example, the Terms of Reference of the Arctic Council Secretariat (henceforth ‘Terms of Reference’). Its Article 6(1) in fact addresses legal personality, but merely on a domestic level with regard to Norway. In a reverse conclusion, it could thus be assumed that a legal personality on an international level was also considered and discussed, but not desired and therefore actively not included. An implicit international legal personality would, therefore, contradict the intention of the drafters of the Terms of Reference and must hence be denied.
In 2013, the Secretariat, however, concluded a Host Country Agreement with Norway. The fact that such an agreement is possible, shows that there is an acceptance of a certain international legal personality endowed on the Secretariat by either the international community or at least Norway bilaterally, as similarly with Austria and the Organization for Security and Co-operation in Europe, for example. The agreement could not have been concluded without the recognition of an international legal personality, as the Secretariat would otherwise legally not exist as an ‘international person’. The Host Country Agreement could thus be taken as an indicator that to some extent international legal personality has implicitly been granted. Specifically so, as concluding such an agreement can be seen as ‘essential to the performance of its duties’ (Reparation for Injuries, 182). The Secretariat is placed in a position where it is expected to perform a function that cannot be carried out properly without the necessary international legal status. Inasmuch, the conclusion of the agreement can also indicate that the Secretariat, too, must have seen a certain need for or rather considered itself to have such a legal status, at least bilaterally with Norway – especially considering the existence of Article 6(1) of the Terms of Reference.
The assumption that international legal personality is not conferred upon the Secretariat at all cannot stand without the controversy that the Secretariat nevertheless concluded a Host Country Agreement with Norway. This contradictory situation can only be explained through Norway’s bilateral recognition of the Secretariat’s international legal personality thus endowing limited international legal personality on the Secretariat.
In conclusion, although the Council is not endowed with an international legal personality, the same cannot be said without hesitation for the Secretariat. Arguments can be put forward both for and against this assumption, as illustrated in this blog post. Due to Norway’s bilateral recognition, it can be assumed that the Secretariat – at least to some extent – has international legal personality. The question posed here can thus hesitantly be answered in the affirmative. Whether other participating States (bilaterally) recognise its international legal personality and in what context remains to be seen. The Secretariat and its legal status hence require close observation in the future. Especially considering what it would mean if a secretariat had international legal personality, but the overarching body did not – would that even be possible?
This blog post builds on an assignment for the seminar on the legal status of international organisations of the course ‘Law & Practice of International Organizations’, taught by Dr Hilde Woker.