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CONCEPT OF LEGAL PERSONALITY IN INTERNATIONAL LAW

Submitted By:

RAHUL GUPTA

Roll No 47, B.A. LL.B. (Hons.) (REGULAR)

Faculty of law

Jamia Millia Islamia

April 2019

Under the guidance of

Dr. NOOR JAHAN MOMIN

Assistant Professor

Faculty of Law,

Jamia Millia Islamia

New Delhi, 110025

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CERTIFICATE

The project entitled CONCEPT OF LEGAL PERSONALITY IN INTERNATIONAL


LAW submitted to Faculty of Law, Jamia Millia Islamia for PUBLIC INTERNATIONAL LAW as
a part of internal assessment is based on my original work carried out under the guidance of
Dr. NOOR JAHAN MOMIN the research work has not been submitted elsewhere for award of
any degree.

The material borrowed from other sources and incorporated in research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable plagiarism if any
detectecd later on.

Signature of the candidate:

Date:

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Introduction

Legal personality is a concept present in international law. It is principally employed to


distinguish between those social entities relevant to the international legal system and those
excluded from it. There is almost universal agreement that states are international persons.
But it is unresolved whether and according to what criteria entities other than states –
individuals, international and non-governmental organizations, private corporations – can
become international persons and what consequences such international legal status entails.
In this sense, it still holds true that, as the International Court of Justice put it in Reparation
for Injuries, international personality is a concept ‘giving rise to controversy’1. In the
beginning of the 18th century sovereign states alone were considered to have international
legal personality and therefore the only entities with capacity to have rights and obligations
under international law. As such, states were (and still are to a large extent) the omnipotent
creators of international law which in turn primarily concerned states and their conduct
internationally. Individuals, International Organizations (IOs) and other non-state actors
(NSAs) were of no concern to international law as they were devoid of international legal
personality, which is a prerequisite for the capacity to have international rights and/or
obligations. With globalization however, international law and international relations
expanded rapidly with increasing complexities: new technology made the world smaller and
more interconnected, new global threats emerged that could not be fought unless with state
cooperation, new players emerged at the international forum such as various IOs and NSAs.
International law was greatly influenced by this development and shifts in international
relations whereby states were no longer the only players on the international arena and thus
not the only subjects of international law any longer.

In a landmark case of 1949 the International Court of Justice (ICJ) found that IOs, in that case
the United Nations (UN), could indeed have international legal personality and thus have
rights and obligations under international law. The ICJ claimed that international legal
personality of the UN was derived from the UN Charter and the organization's given mandate
and functions, for without it the UN could not perform those tasks it was required to by the
UN Charter.

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Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), 1949 ICJ Reports 174,
at 178.

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International liability of individuals has subsequently been confirmed on numerous accounts
by various courts such as the United Nations International Criminal Tribunal for the former
Yugoslavia and Rwanda, especially established by the UN Security Council to prosecute
persons responsible for war crimes, crimes against humanity and genocide under international
law.

The procedure for holding individuals internationally responsible for international crimes was
finally made permanent with the establishment of the International Criminal Court (ICC),
governed by the Rome Statute which entered into force in 2002. The Courts mandate is to
prosecute individuals under international law for crimes such as genocide, war crimes and
crimes against humanity. Currently there are total of 121 state parties to the Rome Statute.

THE EVOLUTION OF INTERNATIONAL LEGAL PERSONALITY

States were subjects of international law with international legal personality and other entities
were not, unless either states specifically conferred personality on them (through some
discernable legal principle, a municipal law statute, or an international law instrument such as
a treaty), or states by acquiescence accepted their personality. 2 The evolution of international
legal personality for non state entities has focused principally on international organizations,
specialized agencies, regional organizations, and human beings.

Global International Organizations.

International legal personality for non state entities began with the evolution of the
international organization out of multilateral diplomacy.3 The first form of structured, multi-
state cooperation was the practice of states to hold ad hoc multi-state conferences in
situations where bilateral diplomacy proved inadequate. For example, the Peace of
Westphalia itself was the product of such an international conference as was the Congress of
Vienna in 1815. Parallel to the system of ad hoc conferences, administrative public
international unions developed to address specific human needs. These public international
unions were, more or less, continuing associations of states organized through a permanent
administrative or deliberative organ of some kind to carry out the purposes of the union. They

2
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 58 (4th ed. 1990); JAMES CRAWFORD, THE
CREATION OF STATES IN INTERNATIONAL LAW (Clarendon Press 1979).
3
, DEREK W. BOwE'r, THE LAW OF INTERNATIONAL INSTITUTIONS (1982)

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were created by states through multilateral treaties. The public unions were primarily
functional, nonpolitical, entities and included the international river commissions, the postal,
telegraphic and railway unions, and the metric, copyright and sugar unions. Interestingly,
some of these state-created unions, like the Metric Union and the International Labor
Organization (ILO), were established to augment, replace or institutionalize private unions,
which had been formed by private individuals or corporations located in more than one state
to address their private international interests.5 The significance of the public administrative
unions for purposes of the source of international legal personality is threefold. First, the legal
personality of the public unions, to the extent it existed, emanated from states. Second, the
relinquishment of sovereignty by states that this entailed was at times extraordinary. Third,
the public unions demonstrated an ability of states generally to adapt to international needs
and to meaningfully respond to the concerns originally raised by private nongovernmental
international actors about specific pressing problems of international scope

Specialized Agencies.

Certain global international organizations have evolved with limited functional competence
and with a direct and special relationship with the General Assembly and the Economic and
Social Council (ECOSOC) of the United Nations. These intergovernmental organizations are
"specialized agencies", which are "brought into relationship with the United Nations" and
which have "wide international responsibilities" in "economic, social, cultural, educational,
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health and related fields." The specialized agencies include the Food and Agricultural
Organization(FAO), the General Agreement on Tariffs and Trade(GATT), the International Bank for
Reconstruction and Development(LBRD), the International Civil Aviation Organization(ICAO), the
International Development Association(IDA), the International Finance Corporation(IFC), the
International Fund for Agricultural Development(IFAD), the International Labor Organization(ILO),
the International Monetary Fund(IMF), the International Maritime Organization(IMO), the
International Telecommunications Union(ITU), the Multilateral Investment Guarantee
Agency(MIGA), the United Nations Educational, Scientific and Cultural Organization(UNESCO), the
United Nations Industrial Development Organization(UNIDO), the Universal Postal Union(UPU), the
World Health Organization(WHO), the World Intellectual Property Organization(WIPO), and the
World Meteorological Organization(WMO).5

4
Articles 57 and 63 of the U.N. Charter
5
XXXII UN Monthly Chron.(No. 2), June 1995, Backcover

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Regional International Organization

Regional international organizations are organizations created by states that share a common,
geographic or policy, bond. Regional international organizations have been in existence since
the beginning of this century.20 Originally, they were created for security reasons but more
recently they have embraced political and economic purposes as well. Regional international
organizations inielude the Arab League, the Association of South East Asian Nations
(ASEAN), the British Commonwealth, the Commonwealth of Independent States (CIS), the
Conference on Security and Cooperation in Europe (CSCE), the Council of Europe, the
European Commission (EC), the European Union (EU), The South American Common
Market (MERCOSUR), the North American Free Trade Association (NAFTA), the North
Atlantic Treaty Organization (NATO), the Organization of African Unity (OAU), the
Organization of American States (OAS), the Organization for Economic Cooperation and
Development (OECD), and the defunct South East Asia Treaty Organization (SEATO) and
the Warsaw Pact. Generally, the same international legal personality considerations that
apply to global international organizations apply also to regional organizations. That is, the
international legal personality of these varied regional organizations is, like international
organizations, grounded in the international legal instruments agreed to by the states that
create them and in the implied powers exercised and functions carried out by those
organizations.

Human Beings.
Historically individuals and groups of individuals, for the most part, were treated as objects of
international law without international legal personality.' That is, international law did not
acknowledge that human beings as such had international law rights. International law rights
existed in states (the subjects of international law) in their relations with other states. Humans,
individually and collectively, generally had no direct international legal personality in the
absence of some cognizable and specific legal capacity accepted by the general practice of
states or established by treaty. The evolution of generic international legal personality for
humans, more or less, has divided into three substantive stages that have been termed the
human rights "generations." The first generation of human rights is least controversial and
comprises civil and political rights.6 The second generation of human rights is comprised of

6
Covenant on Civil and Political Rights, adopted 1966, entered into force 1976, 999 U.N.T.S. 171.

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economic, social and cultural rights.7The third, and most controversial, generation of human
rights addresses collective or solidarity rights which include, among others, claims of human
rights to develop, to peace, and to a healthy and safe environment.

CONCLUSION.

The 20th Century has seen the rise and expansion of non state international legal
personalities. International and regional organizations, specialized agencies of the U.N. and
human beings have all had international legal personality conferred on them directly or
indirectly by states. That conferral has been accomplished mainly through treaties concluded
by states. In recent decades, a growing number of new international political identities have
emerged as participants in the international political, social, and economic process. These
include nongovernmental organizations, multinational corporations and to some extent,
subnational governments. An important question for international law in the 21st Century is
whether these new political identities should have international legal personality (in the sense
of having international law rights and duties including the capacity to directly assert those
rights and duties in international law fora) and if so, from which source? That is, should these
new international political identities be required to look to states for the source of their
international legal personality as other non state entities have had to do in the past? Or should
these new political identities be able to claim international legal personality in their own right
with, or without, the permission of states? The answers to these questions will have profound
implications for the configuration and operation of the international law making process in
the decades ahead and the role of the world's populations in that process. This is a time in
history when an increasing number of global issues are the object of international debate and
decision and when states are becoming more representative and more responsive to their
populations than ever before. That responsive representation ought not to be curtailed in
international law by marginalizing the state's role in determining international legal
personality. If states continue to demonstrate an ability to respond adequately to the
international needs of their populations, it is perhaps advisable not to adopt an approach to
the source of international legal personality that stifles representative government's role at the
international law level.

7
Covenant of Economic, Social and Cultural Rights, adopted 1966, entered into force 1976, 999 U.N.T.S. 171.