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Legal Personality Notes

Public International Law (Brunel University London)

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Legal Personality

A subject of International Law

 A subject of international law can be defined as an entity capable of possessing
international rights and duties and having capacity to protect its rights by bringing
international claims.
 Traditionally, the only subject of international were sovereign states.
 The perception of who is a subject of IL has been challenged, as the growing body og
HRL has led to to the vreation of international rights and duties for individuals and
other non-state actors.
 Globalisation, privatisation and feminism and the fragmentation of IL have
emphasised the impact and importance of non-sstate actor in the making and
working of international law i.e customary law.
 Higgins critiques the doctrine of ‘subjects’ extensively, stating we have been held
captive by it and concludes it has no relevance to reality and serves no functional
purpose, and proposed to replace ‘subjects’ with the term ‘participants’ in IL.
 Irrespective of the confusion and controversies surrounding this doctrine , the
categories of international legal persons recognised under IL have been broadened.
 However, with the development of international law, legal entities other than states
have been granted recognition as subjects of IL.
 These are:
o Entities which can potentially become states (e.g. de facto regimes.
Insurgents and belligerents, and national liberation movements which
represent peoples entitles to exercise their right to self-determination)
o Entities with state-like qualities such as the Holy See and the Order of Malta
o IGOs within which states are co-operating at an international level
o Individuals
 Main capacities of subjects of IL:
o To make claims before (international) tribunals;
o To be subject to some/all obligations under international law;
o Power to make binding international agreements;
o To enjoy (some) immunities from criminal jurisdiction of other domestic
courts.
 Subjects of international law, other than states and state-like personalities have been
accorded partial personality, meaning the extent of their rights, obligations and
capacity is controlled by states.
 The distinction between full and partial legal personality has been confirmed by the
ICJ in the Reparation for Injuries Suffered in the Service of the United Nations
(Advisory Opinion), ‘subjects of law in any legal system are not necessarily identical in
their nature or extent of their rights’.
 Controversial candidates for subjects of IL, include; NGOs, MNCs and indigenous
people.

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 ICJ in LaGrand opened the door for NGOs and MNCs to be recognised as subjects of
IL, Special Rapporteur Giorgio Gaja stated that the ICJ’s recognition of individuals as
subjects of IL may lead courts to assert the legal personality even to NGOs. It would
be difficult to understand why individuals may acquire rights and obligations under IL
when the same could not occur with any IO, so long as it is distinct from its members.
 Non state actors such as private armies, international criminal gangs and terrorist
organisations, despite their impact, for political reasons are unlikely to become
subjects of IL.

Legal Personality
 Legal personality is NOT absolute, – relative (i.e. sliding scale).
 Types of legal personality:
o Original personality
o Derived personality
 On derived personality, the ICJ in the Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons [W.H.O. case] (1996) said:
o International organisations are subjects of international law which do not,
unlike states, possess a general competence. International organisations …
are invested by states which create them with powers, the limits of which are
a function of the common interests whose promotion those states entrust
them.
 In order to achieve legal personality, the state must satisfy certain criteria. The
accepted definition of what constitutes the criteria for statehood is laid down in
Article 1(1) of the 1933 Montevideo Convention on Rights and Duties of States
which provides a state as a person of IL should possess the following qualifications:
o A permanent population
o A defined territory
o Government
o Capacity to enter into relations with other states
 The existence of these simultaneously create a sovereign entity possessing
international personality. However, the absence of them over time, does not
necessarily deprive a State of its international personality.
 The traditional view of once an entity satisfies the criteria then become a state,
regardless of other factors such as legality, origin or compliance HRL and other rules
of international law, arguably has been challenged by the development of IL.
 Additional criteria beyond Montevideo may have become relevant to the
establishment of a state, state practice shows that statehood need not necessarily be
equated with effectiveness and that conditions unrelated to effectiveness may be
relevant to the determination of legal personality.
 The principle of effectiveness is at the root of the Montevideo criteria, thus the
development of Jus Cogens and its relevance to all aspects of IL including the
creation of states, created additional criterion.

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 This has become closely linked with the principle of self-determination, if people are
entitled to exercise their right to self-determination, they can use force to break away
from their existing state.
Permanent Population
 This criterion refers to a stable community
 No prescribed minimum number of people required – UN ‘Special Committee of
Twenty-Four’ Picarin Island has population of 90 and is decreasing but affirmed the
right of self-determination.
 Migration is allowed – Kenya-Ethiopia borders contain nomadic tribes that have
transient natures
 Homogenous population not required; determination of nationality is one of the
attributes of state
A Defined Territory
 This criterion refers to physical existence and a fixed territory
 Complete certainty over territory is not required; India/ Pakistan/ China border
dispute over Kasmir and Jammu has not deprived them of statehood.
 A state under threat or with a neighbour encroaching on territory does not affect
statehood
 Size does not affect statehood – Monaco 1.5 sq Km, Russia 17 million sq km
Government
 Government must maintain some degree of order and stability
 Capable of controlling the affairs of the ‘state’ in the international community.
 Must be effective within defined territory and exercise control over permanent
population.
 Government does not need to be entirely dominant – Somali government controls
fraction of the territory of Somalia; statehood unaffected.
 If government ceases to be effective, statehood is retained – Syria since 2012 (civil
war).
Capacity to enter into Relations with other States/Independence
 In theory: independence, i.e. not under (in)direct control of another state.
 In practice: Factual autonomy (above) unrealistic (e.g. former Soviet republics).
 Therefore ‘legal independence’ is preferable meaning (Island of Palmas Arbitration
(1928) affirmed independence), rather than factual autonomy (e.g. Hong Kong)
(contrast e.g. former Czechoslovakia).
 As long as the state has not abandoned its independence to another state, nor is
subject to the intermediary of any other states, such state is a direct subject of IL.
 EU member states are still seen as independent.
Attaining Capacity

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 An entity is not considered a sate if they are in breach of the following three norms
of IL:
o The prohibition against aggression and against the acquisition of territory by
force;
o The right to self-determination;
o The prohibition against racial discrimination and apartheid.
 If capable of claiming self-determination:
o Cannot infringe (ICJ’s Palestinian Wall Advisory Opinion (2004))
 Federal context (e.g. Republics of Soviet Union; Yugoslavia)
 Non-federal context (e.g. Eritrea from Ethiopia)
o Rights of ‘Peoples’ -v- Rights of ‘Ethnic groups’
o Beyond colonial type situations? ICJ has decline to comment (see Advisory
Opinion on the Accordance with international law of the unilateral
declaration of independence in respect of Kosovo (2008))
 This is illustrated by the case of Manchukuo, a puppet state created by Japan
subsequent to the 1931 invasion of Manchuria. The League of Nations decided not to
recognise them as a state.
 Cyprus v. Turkey – TRNC was not recognised as a state due to their dependence on
Turkey administration, not the fact that it was an illegal entity from an IL standpoint.
 In contrast, if an entity created in violation of one of the three principles of IL
becomes genuinely independent, then the issue of illegality of origin arises.
 The case of Bangladesh in 1971 is an example, although it was created in breach of
the prohibition of the use of force, was entitled to exercise the right to self-
determination.
 Sometimes, when the international community react to other states conduct,
pragmatism overrules international legal principles!
Recognition
 Sometimes later recognition of statehood may ‘cure’ a defect in an otherwise
imperfect statehood claim when:
o Not meeting Montevideo criteria; or
o Achieved unlawfully.
 Recognition should not cure (a) population (b) territory of (c) government criteria
[factual prerequisites], only (d) ‘legal independence’.
o e.g. Republic of Kosovo (see ICJ’s Advisory Opinion on the Accordance with
international law of the unilateral declaration of independence in respect of
Kosovo (2008))

Extinction of Statehood

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 Loss of a criteria (e.g. ineffective government in Syria and Somalia; loss of territory by
use of force in Palestine and Kuwait).
 Usually governments cease to exist, rather than states (e.g. Cambodia since 1979).
 Lawfully ceasing to exist by:
o Voluntarily submitting to sovereignty of another state;
o Merger of two states (e.g. UAE; unification of West and East Germany;
unification of North and South Yemen) (flawed EG failed attempt of UAR;
unification of North and South Vietnam).
Other Territorial Entities
 Treaty creations – Artificial territorial entities (e.g. Berlin post WWII – state of
Germany was never dismantled, but it was divided into four and controlled by inter-
Allies government.
 Territorial entities as agencies of states – Autonomous local administration /
Condominium
o In condominium two or more states exercise joint sovereignty over the same
territory and its inhabitants, the territory under condominium has no
international personality.
o E.g. New Herbides – the Anglo-French condominium of the New Herbides
constituted in 1906.
 Territories per se – Historically: Protectorates (no longer exist but refer to states or
territories which have been placed under the protection of a powerful states) – E.g.
the Palestinian Authority: acknowledged as having many capacities of statehood, as
noted in the ICJ’s Palestinian Wall Advisory Opinion. – E.g. Republic of Kosovo: not
universally recognised but:
o operating with a defined territory;
o having a measure of international personality
International Organisations
 Not full legal personality for all purposes (see W.H.O. case)
 ICJ confirmed that the UN had international legal personality in the Reparations Case
(1949) - in order to discharge its functions effectively.
o Confirmed again in ICJ’s Advisory Opinion on the Applicability of Article VI of
the Convention on the Privileges and Immunities of the United Nations
(1989); and
o ECtHR Grand Chamber’s Behrami v France (2007)
 Others include the OAS, AU, the European Communities and specialised agencies of
the UN. – E.g. Many UN organs may request Advisory Opinions from the ICJ.
Individuals
 Personal obligations on individuals, separate from those of a state.
 Historically - some criminal acts were considered hostis humani generis (e.g. piracy)
 Since WWII – temporary war crimes tribunals RE:

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o War crimes
o Crimes against peace
o Crimes against humanity
 Since 2002 - Permanent International Criminal Court (ICC)
 Human rights (e.g. ICCPR; ECHR)
o As rule of jus cogens?

Corporations
 Normally governed by national law
 In some circumstances governed by international law
o E.g. Texaco v Libya (1977); the Convention on the Settlement of Investment
Disputes 1964

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