¹ We shall use throughout this text the abbreviations “IGO” for “inter-governmental organizations” and “NGO” for (international) non-governmental organizations.

² International Non-governmental Organizations and Economic Entities, Layden, Sijthoff, 1963, quoted below as: “LL …”

³ The Legal Character of the BIS, in (1930) 24 Am. J.I.L. 665.

⁴ The only voice of doubt, in this respect, was apparently that of Wilhelm Kaufmann;see his paper “Die modernen nicht-staatlichen Verbände und Kongresse und das internationale Recht”, in (1908) 2 Zeitschr. für Völkerrecht und Bundesstaatsrecht. Breslau.

⁵ Mainly the reports to the Institut de Droit International by Bar, in 1912, Politis in 1923, and Mme Bastid in 1950, but prominently Lazar Kopelmanas' report to the Comité d'Etudes sur le statut juridique des ONG, 1949 (mimeo.).

⁶ Inded, according to the classification of activities, by the Union of International Associations, Brussels—in its Yearbook of Intern. Organizations, now in its 11th biennial edition—international economic entities are not included, which means that there is no handy list of such entities within the student's reach.

⁷ Cf. Thévenaz, Henri: “L'Entreprise en droit international”, in (1963) 28Google ScholarMémoires de l'Université de Neuchâtel, 226 et seq.; the reference is to Emile James and Walline.

⁸ Prominent among them are Maritime Conferences; cf. UIA Yearbook, Ch. 10;particular attention is due in this connexion to IATA: cf. LL, 339 et seq.

⁹ Kaiser, J., “Nichtstaatliche Organisationen” in Strupp-Schlochauer's Wörterbuch des Völkerrechts; Mosler, H. in (1962) 22Zeitschr. f. ausl. öff. Recht und Völkerrecht 1.Google Scholar

¹⁰ LL, 247–322.

¹¹ For a recent collection of instances, see Friedmann, W. G. and Kalmanoff, G.:Joint International Business Ventures, Columbia Univ. Press, 1961Google Scholar; for the interwar period, see this writer's Capitalismo mondiale e cartelli tedeschi tra le due guerreGoogle Scholar, Einaudi, Torino, 1959.Google Scholar

¹² See M^o Govare's Report to the 43rd ILA Conference, Brussels (272 of printed volume) and Prof. Niboyet's Report on “International Companies”: ILA Report,45th Conference, Lucerne, 1952, p. 63. A less sophisticated but practical approach is that of B. Dutoit: “Par Société internationale on peut entendre simplement une société, anonyme le plus souvent, formée par la coopération de deux ou plusieurs compagnies (ou gouvernements) … La note internationale de ces sociétés se réduit aux participants sans toucher la société elle-même, immatriculée dans le registre d'un Etat donné où elle a son siège et au droit duquel elle reste soumise ….L'expression 'société internationale' désigne également une véritable société inter nationale dont le status supra-national la soustrairait à l'empire des différentes lois nationales pour la soumettre à un droit international”. (La Collaboration entre compagnies aériennes; ses formes juridiques, Lausanne, 1957, p. 20); but see Thévenaz, loc. cit.

¹³ The instances quoted in this connexion are usually the Suez Canal Cy., the WagonLits Cy., the Flota Mercantil Grancolombiana, Lloyd's Register of Shipping; cf. LL,248 et seq.

¹⁴ Ibid., 279 et seq.

¹⁵ According to the Treaties of Rome, the European Investment Bank works on such “units of account” (“monnaie de compte”: “Rechnungswährung”) which is of the same content of gold as the USA $; the BIS works on “gold francs”; cf. Lambert, Baron, in Agence Economique et Financière, 1963.Google Scholar

¹⁶ See this writer's papers: “Les sociétés (économiques) internationales”, in (1959)Wirtschaft und Recht 259 et seq., and “La società a carattere internationale,suo statuto nel diritto internazionale pubblicco”, in (1961) Rivista di diritto Europeo397 et seq.

¹⁷ See Annex to this paper and the footnotes to it.

¹⁸ Of these 14 States, ten belong to the “Part I” group of countries as established within the International Development Association for purposes of capital raising, with a possible addition of Switzerland, as against two (or potentially three) countries classified in IDA's “Part II”; like Switzerland, Portugal does not belong to the IDA community, or to its classification.

¹⁹ “Whereas the Powers signatory to The Hague Agreements … have adopted a Plan which contemplates the founding by … of an international bank to be called BIS…and whereas the central banks and the banking groups including Messrs. J. P. Morgan have undertaken to found the said Bank and have guaranteed or arranged for the guarantees of the subscription of its authorized capital…and whereas the Swiss Federal Government has entered into a treaty with…whereby the said Federal Government has agreed to grant the present Constituent Charter…”.

²⁰ Points (3) and (4) relate to the procedure for amending the Statutes, (5) provides that these Statutes “shall be valid and operative notwithstanding any inconsistency therewith in the provisions of any present or future Swiss law”, points (6) to (10)relate to the Bank's privileges and immunities.

²¹ In fact, on July 30, 1936, one further Protocol was signed by 16 governments(including States which are not parties to the basic instruments of 1930) on the Bank's immunities.

²² L.O.N. Conference for the Reduction and Limitation of Armaments; Air Com mission: “Objective Study on the Internationalization of Civil Aviation”; Conf.D/C/A.9, last section, infra.

²³ See particularly statements by Fisch (Germany) ; L.O.N. Commission for Communica tion and Transit: Report of the Air Transport Cooperation Committee; C. 467,M. 237, 1932, VIII (Conf. D/C/A.15).

²⁴ L.O.N. Conference for the Reduction and Limitation of Armament: “Memorandum relating to the French Delegation's Proposals on the Internationalization of Civil Air Transport,” Conf. D. 115. Publications: IX. Disarmament, 1938, IX. 42.

²⁵ Later, in a less rigid framework of a scientific paper, a group of French experts, the majority of whom held no political office, drew up proposals for the establishment of an “International Aeronautical Union” and an “International Air Transport Cy.” with an initial capital of 50 million francs, to be subscribed by the signatory Governments.

²⁶ Dutoit, loc. cit. sub n. 10.

²⁷ See Cooper, J. C.: Summary and Background Material on Int. Ownership and Operation of World Air Transport Services, Princeton Univ. Press.Google Scholar

²⁸ Cf. the Plan Bonnefous for the establishment of an Haute Autorité Européenne des Transports and the more commercialized projects for the creation of companies,partly with operational functions (European Air Union), partly for purposes of financing, along lines of “equipment trusts”; see on this below.

²⁹ LL, 342 et seq.

³⁰ It concerns the economic exploitation of the fleets of carriers, ground installations and industries, the legal enabling of the business—all that being international rather than regional. Indeed, in October, 1959, five airlines operating the Boeing 707 (Air France, BOAC, PAA, QANTAS and TWA) established their own pool for spare parts,engines, ground and maintenance equipment at about thirty stations spread over the whole world. With the addition of Sabena, Air India, Lufthansa, Aer Lingus and Pakistan Airways this network was extended in October, 1960, to comprise 53 stations.A similar arrangement was concluded by the six airlines which operate the DC-8, and involves 25 stations (PAA, KLM, SAS, JAL, Alitalia and Swissair).

³¹ LL, 324 et seq. A “Protocole additionnel” to the Convention provides for the pri vileges and immunities to be enjoyed by EUROFIMA in Switzerland. Furthermore,a “Protocole de signature” contained several mutually agreed definitions of concepts used in the foregoing document. The fourth document contains the Statutes. It may be noted (for the purpose of visibly underlining the bi-level construction) that while the Swiss Government is the depository of all diplomatic instruments, the General Direction of the Swiss Federal Railways is the depository of the EUROFIMA Statutes.

³² Decided upon at the EEC Conference at Messina, cf. doc. 271/MAE/CIG.

³³ In German: Intern, Gesellschaft der Eisenbahnen für Kühltransporte. The founding groups are the railway administrations of Belgium, Denmark, France, Germany, Italy,the Netherlands, Switzerland, the U.K. Acceding members: Greece, Luxembourg,Spain, Turkey. Its 121 shares (later 210), each of B. fres 50,000, are assigned to Denmark, Italy, the Netherlands, Switzerland, France, Belgium and Germany at a rate of 16 each (later 23), Greece 4 (6), Spain and Turkey 2 (4), Luxembourg 1 (2). There are agency relations with Austria and five Communist countries (Bul garia, Rumania, Czechoslovakia; Hungary and Yugoslavia are now shareholders with 4 (6) shares respectively). Loans have been floated in four countries. At present, the correspondents in Germany, France and Spain are the functional subsidiaries TRANSTHERMOS, STEF (Sté française de transports et entrepôts frigorifiques) and TRANSFESA.

³⁴ On this aspect see LL, 266 et seq. and the same in loc. cit. sub. 11.

³⁵ “Quelques problèmes relatifs aux accords internationaux complexes”, in (1966) 93 Journal du Droit International (“Clunet”).

³⁶ Two-thirds of a century have elapsed since Triepel (Völkerrecht und Landesrecht, 1899, French translation by Brunet, 1920: Droit international et Droit interne) suggested what has become a most useful means to deal with international treaty law, the distinction between Vertrag und Vereinbarung,—which became traité-contrat and traité-loi (Scelle). However, the philosophic background of Triepel'sbook is so different from what is accepted today as to deprive this part of his treatise of all its practical importance.

³⁷ Cf. LL: Part D (Railway Transports, 323 et seq.; Maritime Conferences, 327 et. seq. Air Transports, 339) and Sections XXI (Institutional Agencies, 233 et seq.) and XXXVI (Arbitration as a function, 370 et seq.)

³⁸ LL, 248 et seq.

³⁹ LL, 250 et seq.; Guldenberg, T., “Intern. Concessions, a Problem of Intern. Economic Law” in (1955) Acta Scandinavica 16et seq.Google Scholar

⁴⁰ LL, 252 et seq.

⁴¹ LL, 279 et seq. and Capitalismo mondiale e cartelli tedeschi, etc.—passim.

⁴² 298 UN. Treaty Series.

⁴³ See n. 15 supra. Participations: Belgium 86,500,000 units, Germany and France each 300,000,000 units, Italy 240,000,000 units, Luxembourg 2,000,000, the Netherlands 71,500,000 units.

⁴⁴ Art. 205: “Any European State may apply to become a member of the Community”. Art. 206, moreover, provides that “the Community may conclude with a third country, a union of States or an international organization agreement creating an association embodying reciprocal rights and obligations, joint actions and special procedures”.

⁴⁵ SENA, a Franco-Belgian corporation at Choos (Ardennes), and two German corpo rations, the Kraftwerke RWE Bayern-Werke, G.m.b.H. and Kraftwerke Lingen, G.m.b.H.

⁴⁶ Five agreements have been made with the Battelle Institute of Geneva, one with the Georgetown University (Washington, D.C.), one each with NHD Research Inc.(Newport-Beach, Calif.), with the Gesellschaft für Kernenergieverwertung in Schiff bau und Schiffahrt (GKSS), with the Reactor Centrum Nederland, with Fiat, and with Ansaldo, Italy.

⁴⁷ Its capital, originally of 28,950,000 “units” ($), was increased to 35,750,000 “units”in 1964, so that the shares are now spread as follows: Germany and France each 128.5, Belgium 102, Sweden 54, the Netherlands 49.5, Switzerland 47, Italy 44,Denmark 32.5, Austria 30, Norway 28.5, Turkey 16, Portugal 6. According to the Convention (December 20, 1957) shares can be held by governments, autonomous public-law entities (France, Portugal, Italy) or incorporated companies, such as Sweden's A/B Atomenergi. Some countries have ceded some shares to private cor porations: France 22 shares to the Cie St. Gobain, Germany 19 shares to 17 enter prises, Belgium, Italy, Switzerland; cf. Huet, loc. cit. p. 519; V Annuaire Européen, 302.

⁴⁸ The Union has made an attempt to “weigh” membership. It admits the public electricity authority in each country to be represented by one delegate, and not more than three electricity producing and transporting enterprises (which are or shall be internationally linked). Thus Italy, France, Germany and Switzerland are represented by six delegates, Austria and Belgium by five, the Netherlands by four, Luxembourg by three representatives.

A parallel problem results from the situation on the market of gas. The discovery of exportable quantities in the Netherlands and probably under the bed of the North Sea, has led OECD to study this problem too. The industry is highly integrated and depends on conditions in the field of coke (steel) production and oil refining.

⁴⁹ Text in UN docs E/CN.12/423/Add.I, p. 29 et seq.; for follow up see Resol. 38 (CCE) of February 23, 1957, 5/CN.4/431, p. 48.

⁵⁰ While in 1952 trade between these countries stood at $8,300,000 only, it reached $ 66 million in 1963. The basic arrangement was expanded on December 14, 1962 (“San Salvador Charter”) to include political, economic, educational, defence, and other councils.

⁵¹ The founder States were Belgium, Denmark, West Germany, France, Greece, Italy, the Netherlands, Norway, Sweden, Switzerland and the United Kingdom. Austria and Spain acceded later. Yugoslavia first joined and then withdrew—later to join two other countries with observer status, Poland and Turkey.

⁵² To indicate the extent of its economic impact, a few figures have to be quoted. During its first decade, the Organization invested over $ 100 million (450,000,000 Sw. fres.). In 1964 it proposed to invest 44 million Sw. frcs, and spend 65 million in fees etc. and 21 million for overhead expenses.

⁵³ A contract to this effect was signed in May, 1964, by the EURATOM Commission (in its own name and on behalf of the said three partners) with the American Commission.

⁵⁴ Thus, the Swiss NGA (Nationale Gesellschaft zur Federung der industriellen Atom technik) made a consultation agreement with the French Commissariat à l'Energie atomique in 1962, and similar agreements with the U.K. Atomic Energy Authority and the (Swedish) Aktiebolaget Atomenergi in 1963.

⁵⁵ Oppenheim, L., Der Tunnel unter dem Aermelkanal und das Völkerrecht, in:(1908) 2Google ScholarZeitschr. Für Völkerrecht und Bundesstaatsrecht 1 et seq.—At that time already, plans to that effect had been under study for some thirty years by two national companies, the principal shareholders of which were the British Rail ways Board and the Société Nationale des Chemins-de-Fer français. Several years ago, the plan was taken up again by a group led by the Suez Canal Cy.—a joint holding of the British Treasury and a group of French financiers—joined by the said century old study groups, and by Technical Studies, Inc., New York. A small participation, for the suitable representation of road interests, is held by the Paris branch of the International Road Federation. Since the group's first meeting, the Presidency has been held by the French Ambassador Massigli, assisted by Sir Ivone Kirkpatrick and, after his death, by Lord Harcourt (of Morgan, Grenfell and Cy.)who is at the same time a leader of the bankers' committee; the other banks in terested being Erlanger, Samuel, Rothschild, the Banque de l'Union Parisienne, the Compagnie Financière de Suez, Morgan-Stanley, and Dillon, Read and Cy.

^55a An interesting problem arises with the plans to use Danish territory—the island of Saltholm—as an “Inter-Scandinavian” central airport, with proper connexions with Copenhagen, Malmö and Oslo, by tunnel, bridge or air bus. There are problems of a technical and a financial nature to be settled.

⁵⁶ On his part, Professor Adam deplores the fact that Eurofima had been placed on a private law basis, which he considers to be the source of many “complexités”, which “tient sans doute du fait qu'on a préféré se placer sur le terrain de droit international privé, au lieu de se mettre sur le plan de droit international public, en choisissant évidemment un tout autre mécanisme”: Annuaire, loc. cit. 79.

⁵⁷ The latest stages of this search for status are set out in studies undertaken within the framework of the International Law Association, and point in the direction of “denationality”. As a result of the practically unlimited power to choose the most propitious place of incorporation, M° Govare reached the conclusion “L'absence du siège social étant impossible, il faundra convenir que le lieu du siège ne confère aucune nationalité et n'entraine aucune attribution de juridiction”: Memorandum to the ILA Brussels Conference, 1948, envisaging the United Nations as prospective registrar; cf. ILA Report, 270; cf. this writer's paper cit. sub n. 61 below.

^57a Again, the BIS is the instance. For reasons of vast international scope—the definitive settlement of the German reparations problem—the United States had to take a prominent part in the arrangement and an important part of the bonds had to be floated in that country. Moreover, some U.S. banks had to intervene in the establishment of BIS, in a manner as similar as possible to the participation of Central Banks of the other participants. Now could the U.S. participate in a bank having a definite international status? In pursuit of this approach, the BIS was given “Swiss” status, and a private American bank joined the consortium.

⁵⁸ See this writer's paper in “Clunet” (n. 35 supra), p. S.VI.

^58a Jessup, P. C.: Transnational Law (particularly Ch. III)Google Scholar; LL—passim.

⁵⁹ Adam, Annuaire, loc. cit. 83.

⁶⁰ This system would hardly be practicable were it not established on the assumption that Switzerland had tacitly “accepted” a “mandate” to this effect and that it was within her policy to produce a workable compromise within her own legislation between the two categories of corporate entities which obtain corporate existence within her law—the autonomous and the international. This is an agreed elaboration of the technique of “dédoublement fonctionnel”. Cf. P. Reuter: “Même lorsque les accords renvoient à un droit national, celui-ci ne s'applique pas à titre originaire avec les caractères qu'il possède lorsqu'il est l'expression de la souveraineté d'un Etat”. (Institutions internationales—Paris, 1955. R's reference is to IBRD- and ESSC-loan agreements and to Adam: “Les accords de prêt de BIRD”, in (1951) 1 Revue Générale de droit int. public.

⁶¹ There is to this the paradox that if an international corporation were to acquire access to privileges and immunities otherwise than by inter-governmental agreement to this effect, this same arrangement would revive the problem of international cartels and of their public, international control. But there can be no progress in this direction so long as there is not even that minimum of corporation initiative for the shield of an “international public corporation” as would result from the enactment of the European draft convention to this effect.

^61a See this writer's paper: “NGOs, their Regime and Privileges,” in (1961) Internationales Recht und Diplomatie 53–63.

⁶² Those who have given some thought to the problem of international control over economic entities exercising international services and/or economic power (i.e.cartels and trusts), have come to suggest an interpolation of judical authorities in a sense substantially identical to municipal tribunals as registrars of corporations. A suggestion to this effect was made as far back as 1944 by Dr. C. M. Schmitthoff:“… it would be evident that every international institution registered therein, would enjoy corporate status in the countries of all signatories to the convention. The registration of an international body would set at rest all doubts concerning its status in law. Registration would be open both to corporations created by international agreement and to national corporations the constitution of which is protected by international convention. A special division of the Register would be reserved for the voluntary registration of international cartels”: “The Intern.Corporations” in (1944) 30 Transactions of the Grotius Society 181.

⁶³ This is a matter related to what is said in n. 60, supra. As things stand, the door was kept open for “flags of convenience”. The activities connected therewith were important enough to show that the doctrine of responsibility for damage has to be confronted with another doctrine of responsibility for incorporation; LL, 280et seq. There definitely exists a “register policy (cf. Oppikofer, U.: Der Schutz der schweizerischen Auslandsinvestitionen, Zürich, 1958)Google Scholar and there must, therefore,also exist a “register responsibility”.

⁶⁴ Out of a fairly complete list of international arbitrations between private entities and governments,—covering one hundred years, 1859–1958—out of 38 disputes, all but two or three exceptions relate to matters arising out of concessions or the provisions of international plants; LL, 355 et seq.

^64a Lena Goldfields Cy., Ltd. v. U.S.S.R. 1930: cf. Annual Digest, 1929–30. Additional data in U.K. Memorial of October 10, 1951, in the Anglo-Iranian Oil Cy. before the Intern. Court of Justice, Pleadings, etc., p. 119, n.

⁶⁵ This relates specifically to rubber and tin, but the matter should be considered in the framework of contemporary inter-governmental commodity agreements, including the manner in which buffer-stocks of wheat were handled in the U.S. and Canada. See Hexner, E.: Intern. Cartels, Chapel Hill, 1946Google Scholar; also Wilkinson, H. F.: Etudes des initiatives intern, en vue de la stabilisation des marchés des produits de base, Genève, 1959.Google Scholar

⁶⁶ International Court of Justice: Liechtenstein v. Guatemala, 1952.

⁶⁷ Before the same Court: case relating to the Constitution of the Maritime Safety

^67a See two papers by this writer: “Vom Wasserweg zur internationalen Gcmeinschajt” (in (1956) 53 Friedens-Warte 225 et seq.; and “International Waterway—the Organizational Standard of the Enunciative Regime,” in (1956) Revue de Droit Int. 48 et seq.

⁶⁸ LL, 324.

⁶⁹ LL, 339.

⁷⁰ Dutoit, loc. cit.

⁷¹ Hexner, loc. cit. 242; but compare the various industrial cartel pools, such as steel, incandescent lamps, fertilizers, etc.

⁷² Partners: QANTAS, the Aerial Services of Australia, New Zealand, Queensland and the Northern Territories; cf. Dutoit, loc. cit.

⁷³ Hexner, loc. cit. 285.

⁷⁴ LL, 342 et seq.

⁷⁵ Agreement of August 14, 1945; cf. Adam, loc. cit. 94, 126, 132, 190.

⁷⁶ Agreement of February 4, 1947: 116, UN. TS. 1951, p. 227; Adam, loc. cit. 190,terminated by agr. of August 31, 1949, text in 116 UN. TS., 273 et seq.

⁷⁷ Agreement of February 4, 1947: 130 UN. TS. 1952; Adam, loc. cit. 190.

⁷⁸ July 4, 1949; Adam, loc. cit. 223.

⁷⁹ Cf. Annex 29 to the Franco-German treaty of October 27, 1956, on the settlement of the Saar problem; cf. I. Seidl-Hohenveldern, in (1959) Journal of Business Law 127–28.

⁸⁰ Franco-Italian Agreement of March 14, 1953, concerning the road tunnel under Mont Blanc. Two concessionnaires have been created: in Italy the Sta italiana per azioni per il Traforo del Monte Bianco, in France the Sté concessionnaire française pour la construction du Tunnel routier sous le Mont Blanc, Paris.

⁸¹ Text in French Journal Officiel, January 3 and May 15, 1960; cf. Calon, , in “Clunet”, 1960, p. 708.Google Scholar

⁸² Text of Agreement and Statutes in International Legal Materials, March, 1964,Washington, American Society of Intern. Law.

⁸³ 76 Stat. 419 (1962), 47 U.S.C, paras. 701–44 (1964) which authorized the creation of a private corporation to develop the American segment of a global satellite communications network; Agreement establishing interim arrangements for a global commercial communications satellite system, Washington, August 20, 1964: TIAS 5646; also Special Agreement of the same date. Cf. Papers by Herman Schwartz in 79 Hvd. L.R., and Levin, in 113 U. Pa. L.R. 315.

⁸⁴ After the German Bk f. Gemeinwirtschaft had decided on joining the earlier Genossenschaftsbank, Basle, in contributing over 25% of the new capital, a re organization of the latter as Aktien-Gesellschaft was effected. The other share holders are national federations of consumer cooperatives (Denmark, Norway, Fin land, Iceland, the Netherlands and France), several great local cooperatives, several banks of the cooperative sector (Frankfurt/Main, Vienna, Basle, Tel Aviv, Man chester, Amsterdam, Copenhagen, Oslo), and from the United States, the Bank of America and two subsidiaries of the Nationwide Mutual Insurance Cy.