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personnel for the forces. 141 The de facto acquisition of in- organizational and operational aspects to the law of the
ternational capacity by nonsovereign organizations has state in which the corporation ischartered or has its head-
resulted in widespread acknowledgment of the extension quarters. 153 Because these entities are to some extent
of international legal personality to such entities. 142 governed by international agreements, and because they
c. Generally, international organizations have treaty- perform transnational public functions, they may be
making capacity only insofar as this power is necessary in regarded as having international personality.
order to effite clearly defined purposes of the organ- b. Private corporations. (1) As a result of the increased
ization. 143 The agreements concluded by an international participation by governments in business and commercial
organization may be governed by a municipal law system, ventures and due to the increased participation by private
but they are more often governed by international law. 144 corporations in the economic development plans of many
d. The mere fact that states have created an interna- newly emerged states, there are a growing number of
tional organization is insufficient to establish its interna- transactions and projects involving governments on the
tional personality. It may be merely a mechanism by one side and foreign private corporations on the other. 154
which the states carry out their interstate relations, in Private corporations also are becoming involved in
which case it would have no independent role and thus no publicly important international ventures. 155
need for international personality. 145 On the other hand, (2) International law does not govern the contrac-
if the organization has the capacity for independent action tual relations between a private corporation and a foreign
in carrying out its purposes, it may then be said to have in- state in transactions of this kind unless the parties so in-
ternational legal personality. 146 A further criterion is the tend. 156 But the parties, expressly or by implication, may
extent to which the organization operates autonomously select public international law, rather than any national
rather than under the control of its members. 147 AC- system of law, to govern the transaction. 157 For that
cordingly, it would seem that the proper approach toward reason, and also because private corporations may per-
determining the existence of international legal per- form transnational public or quasi-public functions, such
sonality is a functional one centering on the capacities corporations may be regarded as having a measure of in-
necessary for adequate performance by the international ternational personality. 158
organization of the responsibilities that states have confer- (3) In addition, there is a growing number of ar-
red upon it. 148 bitrations arising from transactions of this kind; these
3-19. Corporations. a. Intergovernmental corporations decisions form the basis of a developing public interna-
and consortiums. Many international corporations and tional commercial law. 159 It should be noted, however,
consortiums, public in purpose, but private or mixed that for most purposes international law treats private cor-
public and private in legal form, have been organized porations as nationals of a particular state. 160 Like in-
since World War 11. 149 They exist for the fulfillment of dividuals, corporations in most instances must rely on
certain joint purposes of the participating governments or their governments to protect them from unredressed in-
of governments and private enterprises. 150 Their reach jury by foreign states and do not have access to interna-
generally extends to matters that are beyond the scope of tional legal proceedings to protect their rights. 161
any one state or of any corporation created by one 3-20. Individuals. a. It has been historically true, and it
state. 151 These transnational organizations are governed remains true today, that international law is made by
in the first instance by the international agreement pur- states or by international bodies deriving their authority
suant to which they are established. 152 If the venture from states. Thus states, not individuals, are the creators
takes the form of a corporation, it will be subject in its of international legal norms. 162 These norms, however,

141. See Friedmann, supra note 20, at 213. 153. Id.
142. See, e.g., 1 Whiteman, supra note 16, at 38-58; P. Jessup, A 154. Id. at 215.
Modern Law of Nations 8-9, 15-19 (1949). 155. Id. at 216.
143. See Friedmann, supra note 20, at 212. 156. McNair, The General Principles of Law Recognized by Civilized
144. Id. Nations, [I9571 Brit. Y.B. Int'l L. 1.
145. Id. at 213. 157. See W. Friedmann, The Changing Structure of International
146. Id. Law 221-231 (1964).
147. Id. 158. Friedmann, supra note 20, at 216.
148. Id.; 1 O'Connell, supra note 140, at 109. 159. Id. For an example of this kind of arbitration, see Sapphire-
149. Friedmann, supra note 20, at 213. Examples of such transna- N.I.O.C.Arbitration, 13 Int7 & Comp. L.Q. 987 (1964).
tional organizations include the European Company for Financing Rail- 160. See McNair, The National Character and Status of Corpora-
way Equipment (Eurofma), established by a 1955 agreement among 16 tions, [1923-241 Brit. Y. B. In17 L. 44.
European states for the purpose of standardizing and improving the con- 161. See Friedmann, supra note 20, at 217.
struction and performance of railway rolling stock; and, in the field of 162. It may, of course, be argued that states operate by virtue of the
river navigation, the International Moselle Company formed by France, will of individuals and that the individual is thus the ultimate source of
Luxembourg, and the Federal Republic of Germany in 1956. authority. Although this view accords with modem theories 04 repre- 1
150. Friedmann, supra note 20, at 213-15. sentative government, the international state system is firmly
151. Id. at 214.
entrenched in both the theory and practice of public international law.
l52. Id.
See, e.g., Jessup, A Modern Law of Nations 17-18 (1948).