Analysing whether ISIS in an international personality requires an in depth understanding and

differentiating of the terms international personality, international legal personality and

statehood. The former two terms are generally used widely, but wrongly interchangeably in
academic circles. The concept of international personal was discussed massively in the
Reparation for Injuries Case1. The court holds that international personality would mean that it
is a subject of international law, capable of possessing international rights and duties and that it
has a capacity to maintain rights by international claim. This definition has, but, widely been
criticised for several factors, circularity in the definition being the most prominent one among
them2. That apart, it seems the distinction between the three aforementioned categories have not
been taken into consideration, or rather confused version of the same has been provided, by
fusing the concepts of international personality and international legal personality. The
judgement fails to realise the distinction between being a subject of international law and
capacity to possess legal rights and duties 3. Most importantly, the court mandates the presence of
the character of juris standi or the concept of right to sue and be sued for being recognised an

1 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949]
ICJ Rep 174.

2 Brownlie, I. , General Course on Public International Law, Recueil des Cours, Collected
Courses for the Hague Academy of International Law, Vol 225, [1995] 51.

3 Anna Meijknecht, Towards International Personality: The position of Minorities and

Indigenous

People

in

International

Law,

(2001)

http://books.google.co.in/books/about/Towards_Internatinal_Personality
id=b3NnYzUWxtoCredir_esc=y.

27,

available

at
.html?

international person, which can be seen, is flawed, in the present scenario. A look into working of
Holy See in the international legal system will substantiate this claim. The Holy See is
considered an international personality as it is a subject of international law, and have the
capacity to possess legal rights and duties4. Nevertheless, The Vatican City has to sue on its
behalf and it does not have the power to sue on its own. Hence from the above discussion it can
be concluded that what most intrinsically distinguishes the international personality from
international legal personality is the concept of right to sue. If right to sue were to be mandated
for being an international person, by extrapolation, it can be seen that NGOs and other
international organs too cannot be considered international persons, as they require someone to
sue them on their behalf, which is wrong reasoning.
International personality can be said to be anything that has a factual existence 5 and a capacity to
posses certain legal duties and rights existing, whether practised actually or not 6, whereas
international legal personality could be anything which a subject of international law, having
rights and duties that are conferred by law and having the right to sue and be sued 7. The factual

4 Lateran Treaty, 1929.

5 Greco-Bulgerian Communities, PCIJ, Ser B, No. 17, 1930, 21. Legal identity can be
determined of entitites whose status is not clear in international law, but whose existence in the
international arena can be called a matter of fact.

6 Supra note 3.

7 Malcolm N. Shaw, International Law, (6th ed 2008), 195.

existence of ISIS is acknowledged all through the world and need not be proved any further 8. It
has a large area occupied under it and a sufficient population it governs and is an insurgent
group, this in itself proves its factual existence. The existence of duties and the recognition of the
same by states throughout the globe can be seen in the use of counterinsurgent practises and
policy decisions, sanctions and other moves against ISIS on various grounds including human
rights violations and self defence. It can be inferred from such moves that the world community
understands ISIS has a duty to not violate human rights, which they are violating. This shows the
capacity of ISIS to possess legal duties and the international recognition of the same. Thus, by
drawing a distinction as to being a subject of international law [possessing right to sue and rights
and duties conferred by law], which an international legal person is and capacity to possess rights
and duties, a distinction can be drawn between the two. ISIS might not be a legal subject, but it
possesses the capacity to have a legal right and duty and has some factual existence. Hence it is
an international person, though not an international legal person since it lacks the right to sue and
be sued and also because though it has a capacity to possess duties, it is not conferred by law.

8 www.bbc.com/news/world-middle-east-35695648