¹ The principle of international law enunciated by Huber in the Island of Palmas Arbitration is that the “same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law”: Island of Palmas Arbitration case (United States v. Holland) Annual Digest, 1927–28, Case No. 70.

² This definition is a composite effort from different authors because, as Bowett notes, “no generally accepted definition of the public international union has ever been reached” : Bowett, D.W., The Law of International Institutions 5 (3d ed. 1975).Google Scholar See Sorenson, M., ed., Manual of Public International Law 68 (1968).CrossRefGoogle Scholar

³ Bowett, op. cit. supra note 2, at 299 : “such personality had been claimed by writers for organisations like the International Commission for the Cape Spartel Lighthouse… and the European Commission of the Danube.” This statement clearly indicated that pre-1945 international organizations did not generally contain a statement as to their international personality in their constituent documents, but that the claim of an international personality for these particular international organizations was asserted under the doctrine.

⁴ Kunz, J.L., “Privileges and Immunities of International Organizations,” 41 Am. J. Int’l L. 828, 854 (1947).CrossRefGoogle Scholar However, Schwarzenberger et al. wrote that “even before the advent of comprehensive international institutions, such as the League of Nations and the United Nations, a limited international personality was occasionally granted to administrative international institutions, such as international river commissions”: Schwarzenberger, G. and Brown, E.D., A Manual of International Law 63 (1976).Google Scholar

⁵ Brownlie, I., Principles of Public International Law 56 et seq. and 520 et seq.; (1966)Google Scholar; Schermers, H.G., International Institutional Law, Vol. 2, at 627 (1972)Google Scholar; Sorenson, op. cit. supra note 2, at 68; Bowett, op. cit. supra note 2, at 302.

⁶ The heading “international commissions” was commonplace prior to World War II, which is generally regarded as the watershed of the development of the international law of international organizations. Even in 1948, Lauterpacht still referred to such entities as commissions: “many permanent commissions in existence which have been instituted by neighbouring States for local purposes, as for example ... the International Joint Commission....” : Oppenheim, , International Law, Vol. 1, at 774–75 (7th ed. Lauterpacht, 1948).Google Scholar

⁷ Bowett, op. cit. supra note 2, at 5–8.

⁸ Eagleton, C., International Government 161 (3d ed. 1957).Google Scholar

⁹ Memorandum of the Minister of Justice on Proposed Treaty between Great Britain and the United States Regarding Waters between the United States and Canada, May 27, 1909, Laurier Papers, 1909, Vol. 565, No. 153256–62.

¹⁰ Gibbons Papers, Vol. 8, Letterbook No. 1, at 822, Letter from Gibbons to Root, April 1, 1910.

¹¹ W.H. Taft Papers, Presidential Series No. 2, file 516, Letter from Tawney to C. D. Norton, Secretary to the President, March 14, 1911.

¹² Governor General’s Papers, No. 268, Vol. 6(b), Despatch from Bryce to Sir Edward Grey and the Duke of Connaught (confidential), January 19, 1912.

¹³ Scott, J.B., “Boundary Waters Treaty between the United States and Canada,” 4 Am. J. Int’l L. 668–75 (1910)Google Scholar; “The International Joint Commission between the United States and Canada,” 6 Am. J. Int’l L. 191–97 (1912).

¹⁴ Letter of January 20, 1917, from Hearst to Magrath, I.J.C. Files.

¹⁵ Letter from King to Magrath, July 21, 1923: King Papers, Vol. 90, No. 76373–75.

¹⁶ Memorandum of Secretary of State on Conference re Trail Smelter, March 27, 1931 : Decimal File 1930-39, Department of State, National Archives, 711.4215 Air Pollution 1400.

¹⁷ Memorandum from John Read, Legal Counsel to the Under Secretary of State, December 29, 1939: Department of External Affairs, File 2492–D–40.

¹⁸ Speech by the Hon. B. Claxton, Canadian Delegate at the Paris Peace Conference, September 19, 1946.

¹⁹ Schermers, op. cit. supra note 5, at 7.

²⁰ See Seyersted, 34 Nor TIR 48-55 (1964), cited in Schermers, op. cit. supra note 5, at 8.

²¹ Schermers, op. cit. supra note 5, at 46.

²² Report of the I.L.C. GA 17th session, Official Records Supplement No. 9 (A/5209), at 7, commentary to Art. 3, para. 3.

²³ Bowett, op. cit. supra note 2, at 6.

²⁴ Bishop, infra note 34 : “It is primarily the international organizations created by multilateral action of several or many states which have international personality separate from the member states; but it is possible that in fact such bodies as… the International Joint Commission … do have international legal rights and duties, international capacity, separate and distinct from that of their members.”

²⁵ A. J. Peaslee, International Institutional Law, foreword to first and second editions.

²⁶ Schermers, op. cit. supra note 5, at 10.

²⁷ Schwarzenberger and Brown, op. cit. supra note 4, at 211.

²⁸ Cohen, M., “The United Nations Secretariat: Some Constitutional and Administrative Developments,” 49 Am. J. Int’l L. 295, 296 (1955).CrossRefGoogle Scholar

²⁹ Schermers, op. cit. supra note 5, at 387.

³⁰ Section 6(2) of the International Boundary Waters Treaty Act provides that the staff of the Canadian Section “may be employed under the provisions of the Civil Service Act.” In 1911, the international civil servant was unknown. Notwithstanding the permissive wording of this Section, the method of employment and the funding of salaries until the early 1950’s clearly indicated that from the very beginning the Commission was not to serve as an agency or department of government.

³¹ Greig, D.W., International Law 92 (1976)Google Scholar; Schwarzenberger and Brown, op. cit. supra note 4, at 42; O’Connell, , International Law, Vol. 1, at 109.Google Scholar

³² D. W. Greig, op. cit. supra note 31, at 110. See Schermers, op. cit. supra note 5, at 627: “Although the meaning of international personality is still controversial. . . .”

³³ Brownlie, op. cit. supra note 5, at 520.

³⁴ Friedmann, W., Lissitzyn, O., and Pugh, R.C., International Legal Materials 213 (1969).Google Scholar For the same theme, see Bishop, W.W., “General Course of Public International Law,” 115 Recueil des Cours, 151, 266 (1965 — II).Google Scholar

³⁵ Schermers, op. cit., supra note 5, at 627; Rama-Montaldo, M., “International Legal Personality and Implied Powers of International Organizations,” 44 B.Y.B.I.L. 124 (1970).Google Scholar A minority viewpoint linked to Seyersted recognizes the international personality of an international organization once the existence of certain prerequisites has been confirmed. International law ascribes personality to an organization if it fulfils certain conditions. In analyzing the specific prerequisites found by the Court in the Reparation for Injuries case, Rama-Montaldo noted certain specific elements which may be found in common with other international organizations : (1) an entity equipped with organs, (2) having special tasks, and (3) the position of the members in relation to the organization, which was to a certain extent detached from its members, was defined. These “special tasks or functions” were not specifically defined; “a vast range of activities“ was indicated. While members of the majority viewpoint would no doubt equate these preconditions with their indicia of personality expressed in the constituent document, Rama-Montaldo rejects this linkage: “The personality could not be implied from the functions; its foundation was not a by-product of functional necessity but a logical relationship between certain presuppositions and certain legal effects.” But among the presuppositions — perhaps the prime one — was an entity having “special tasks,” which Rama-Montaldo equated with functions on the international plane. Thus, if the entity was entrusted with certain functions, among other preconditions, it followed that the entity possessed international personality. Under the majority position such a result was presumed, a rebuttable presumption; under the minority viewpoint, the result followed, an irrebutable presumption. But how certain are the objective criteria necessary for the success of the minority’s position? It is submitted that the dominant trend in the writings of jurists is reflected in the school of thought as expressed by Bowett, Brownlie, and others.

See Seyersted, Objective International Personality of International Organizations 46 et seq. (1963), cited in Rama-Montaldo, and in particular see pages 112, 125.

³⁶ Schwarzenberger and Brown, op. cit. supra note 4, at 63 ; Schermers, op. cit. supra note 5, at 627.

³⁷ Schwarzenberger and Brown, op. cit. supra note 4, at 56. This is in accord with Rama-Montaldo’s summary of state practice to the effect that: “Unquestionably, practice shows that in implementing their purposes international organizations carry out many activities and exercise many rights for which there is no express provision in their constituent documents” op. cit. supra note 35, at 122.

³⁸ Bowett, op. cit. supra note 2, at 302 : “… whilst specific acknowledgment of the possession of international personality is extremely rare, it is permissible to assume that most organizations… will, so far as they are endowed with functions on the international plane, possess some measure of international personality. . . .”

³⁹ The I.C.J, in the Reparation for Injuries case, [1949] I.C.J. 174, held that “the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice” (page 180) (emphasis added).

⁴⁰ Bowett, op. cit. supra note 2, at 302.

⁴¹ Greig, op. cit. supra note 31, at 112.

⁴² Ibid., 110.

⁴³ Bowett, op. cit. supra note 2, at 305.

⁴⁴ Treaty Relating to Boundary Waters and Questions Arising along the Boundary between the United States and Canada, signed at Washington, January 11, 1909, 36 Stat. 2448; TS 548; III Redmond 2607.

^44a But governments have rejected the Commission’s position that it is for the Commission to determine that works in boundary waters do not “materially” affect levels and flows under Article 3 of the Treaty. See the Commission’s letter to governments of January 20, 1976, in 1976 Annual Report at 43, and government response, July 20, 1976, infra note 54. But see Detter, I., Law Making by International Organizations 26 et seq. (Stockholm, 1965)Google Scholar for arguments in support of the Commission’s right to interpret the treaty.

⁴⁵ John E. Read, Memorandum of September 22, 1944, Commission File 43–9–1.

⁴⁶ H.C. Deb. (Can.), 1964–65, Vol. XI, at 11686 (February 24, 1965).

⁴⁷ Letter from Martin to Cowan, April 7, 1965.

⁴⁸ Letter from Heeney to J. Miquelon, Q.C., May 12, 1966.

⁴⁹ Letter from Heeney to Sharp, May 2, 1969.

⁵⁰ Letter from J. S. Hodgson, Director, P.C.O., to MacCallum, J.L., Assistant to the Chairman and Legal Adviser, I.J.C., September 10, 1968.Google Scholar

⁵¹ Letter from Heeney to McGill, A.S., Senior Departmental Advisor, Office of the Secretary of State for External Affairs, July 17, 1969.Google Scholar

⁵² Brief submitted by the United States government to the Commission, September 25, 1974.

⁵³ Letter from Jamieson to Chance, Secretary of the Canadian Section of the Commission, February 21, 1977.

⁵⁴ Letters from Acting Under Secretary of State for External Affairs to Chance, Secretary of the Canadian Section, July 20, 1976.

⁵⁵ Letter from Towe to Chance, Secretary of the Canadian Section of the Commission, July 20, 1976; letter from W. H. Montgomery, Director, Legal Advisory Services, to S. Wex, Acting Legal Advisor, I.J.C., January 6, 1978.

⁵⁶ Edison Sault Electric Company v. U.S., U.S. Court of Claims, March 23, 1977.

⁵⁷ Letter from H. Davis, Assistant Chief of Protocol, to Bullard, Secretary, U.S. Section of the Commission, July 12, 1977.

⁵⁸ The minority position is to attach a precise category of rights and duties arising from the fact of international personality, and thus “to be enjoyed by every organization constituting an international person irrespective, in principle, of the particular provisions of the constitution. The provisions… may be useful indicators of the personality but they do not determine its content.” Seyersted is again cited as the principal proponent of what has been labelled the material approach: see Rama-Montaldo, op. cit. supra note 35, at 116–22.

⁵⁹ Reparation for Injuries case, [1949] I.C.J. Rep. 174, 182.

⁶⁰ Ibid. The implied power doctrine is not universally accepted as there is occasional support for the delegated power theory, i.e., the content of international personality resides only in those rights expressly granted and enunciated in the constituent instrument. But this approach has been extended by Hackworth, a leading proponent of the delegated power doctrine, when he stated in his dissenting opinion in the Reparation for Injuries case that “implied powers flow from a grant of express powers, and are limited to those that are ’necessary’ to the exercise of powers expressly granted” (ibid., 198). This position is still at variance with the theoretical explanation offered above, namely, that implied powers may flow from the very functions themselves, even in the absence of a grant of express powers.

⁶¹ Croswell, C.M., Protection of International Personnel Abroad: Law and Practice Affecting the Privileges and Immunities of International Organizations, chap. II (1952).Google Scholar

⁶² Bowett, op. cit. supra note 2, at 302.

⁶³ Bowett, ibid., 310.

⁶⁴ Brownlie, op. cit. supra note 5, at 523.

⁶⁵ Ibid., 533.

⁶⁶ Reparation for Injuries case, [1949] I.C.J. Rep. 198.

⁶⁷ Bowett, op. cit. supra note 2, at 314.

⁶⁸ Supra (page 5, Exec. Order 9972).

⁶⁹ International Joint Commission Immunity Order, SOR/76–401, June 24, 1976; P.C. 1976-1579, June 23, 1976; Canada Gazette Part II, Vol. 110, No. 13, July 14, 1976.

⁷⁰ Burnell v. The International Joint Commission, [1977] IF.C. 269. This decision, rejecting the claim against the Commission, was based upon the non-recognition of the Commission’s separate personality, but the day after the hearing of this case, prior to the judgment itself, the government of Canada issued the International Joint Commission Immunity Order, granting immunity from suit to the Commission.

⁷¹ [1949] I.C.J. Rep. 198.

⁷² The United States Supreme Court has defined comity as “neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other”: Hilton v. Guyot 159 U.S. 113, 163–64 (1895).

⁷³ Schermers, op. cit. supra note 5, at 627.

⁷⁴ Friedmann, op. cit. supra note 34, at 213.

⁷⁵ Schwarzenberger and Brown, op. cit. supra note 4, at 64.

⁷⁶ Ibid., 212.

⁷⁷ Peaslee, op. cit. supra note 25, Vol. 1, at 87.

⁷⁸ Brownlie, op. cit. supra note 5, at 57 and 521.

⁷⁹ Schermers has argued that even where the international organization does not possess a separate international personality, it is entitled to immunity from suit, saying that “even without such express provision [of immunity] national courts may grant immunity on the ground that international organizations are composed of sovereign states, each of which is immune from local jurisdiction. . . .” : op. cit. supra note 3, at 639. This approach was the basis of the U.S. court decision in the 1925 Pan American Union case, which held this entity to be an organization partaking of the same sovereign status as that of the members of the organization. See Penfield, W.S., “The Legal Status of the Pan American Union,” 20 Am. J. Int’l L. 257 (1926).CrossRefGoogle Scholar This view is more consistent with the agency approach whereby the so-called “international organization” is in reality the agent of both states. But as a justification for entitlement to immunities it is suspect because its “agency” status would be on the international plane only. States A and В create C, an “international organization,” which is juridically separate from A and В and is the “agent” of A and В in the international forum only. Domestically, C has no agency status of the government of A or B. Thus, no part of A’s sovereignty travels with C for the purpose of providing immunity from a suit in В against C. It is submitted that, contrary to Schermers’ justification for a claim of immunity, a “joint agent” on the international plane requires a grant of immunity as it exists as a separate personality under domestic law.