#14977 - Subjects - Public International Law

A. INTERNATIONAL LEGAL PERSONALITY AND INTERNATIONAL LEGAL PERSONS

1. INTERNATIONAL LEGAL PERSONALITY

Legal personality refers to the quality of possessing rights and obligations under a legal system.

International personality is not an absolute concept: it operates as if on a sliding scale with various subjects of international law having various capacities for particular purposes.

There is a distinction between objective and qualified personality.

• In the former case, the entity has a wide range of international rights and duties and it will be entitled to be accepted as an international person by any other international person with which it is conducting relations – objective legal personality operates erga omnes. The creation of objective international personality will require the action of a substantial element of the international community (Reparations for Injuries)

• Qualified personality binds only the consenting subject – any legal person may accept that another entity possesses personality in relation to itself and that determination will operate only in personam

A ‘state’ will have objective legal personality. All states, by virtue of the principle of sovereign equality, will enjoy the same degree of international legal personality. Other subjects, such as international organisations and individuals, will have qualified personality - personality in such measure and for such purposes as is necessary for the achievement of their roles within the international legal system.

(i) States

(ii) International organizations

(iii) Individuals

Individuals have a very limited capacity to participate in the international relations.

States used to regard individuals as objects without international legal rights and duties, who constituted only the subject-matter of intended legal regulation. Only states, and possibly international organisations, are subjects of the law.

However, the human being is the ultimate concern of international law and this was clearly manifest in the Natural Law origins of classical international law. Modern practice demonstrates that individuals are increasingly recognised as participants and subjects of international law. A wide range of treaties have provided for individuals to have rights directly and have enabled individuals to have direct access to international courts and tribunals.

Individuals as subjects of international criminal law:

E.g. Rome Statute of the International Criminal Court (1998):

.

Individuals as subjects of international human rights law:

Universal system for the protection of human rights: Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966) and International Covenant on Economic, Social and Cultural Rights (1966)

Regional systems for the protection of human rights: European Convention on Human Rights (1950), American Convention on Human Rights (1969) and African Charter on Human and Peoples’ Rights (1981)

• Right to access international courts occasionally envisaged for individuals:

International investment law provides investors with the possibility to pursue investment protection claims directly in international arbitration. Diverse institutional arrangements exist for such claims arising from the violation of bilateral investment treaties. However, only nationals of States Parties benefit from bilateral investment treaties.

Article 2(a) of the ILC’s 2011 Draft Articles on the Responsibility of International Organizations provides: ‘international organization’ means an organization established by treaty or other instrument governed by international law and possessing its own international legal personality.

International organizations may possess international legal personality and incur international responsibility. The extent of personality in international law depends on its constitutional status, its actual powers and practice. In Nuclear Weapons, the ICJ held that ‘international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of speciality’ - they are invested with powers by the States. The limits of those powers are a function of the common interests whose promotion those States entrust to them.

In Reparation for Injuries, the Court was asked to advise on the capacity of the UN to bring an international claim for injury to its personnel on the lines of diplomatic protection, and in respect of injury to the UN caused by the harm to its agents. But UN Charter not explicitly allowed to make such a claim. The Charter did not contain any explicit provision on the international legal personality of the UN, but the Court drew on the implications of the instrument as a whole, noting that, if the UN was to fulfill its tasks, ‘the attribution of international personality was indispensable’.

Q1 In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsiblede jureorde factogovernment with a view to obtaining the reparation due in respect of the damage caused(a)to the United Nations,(b) to the victim or to persons entitled through him?

• With respect to questions I(a)and I(b),the Court established a distinction according to whether the responsible State is a Member or not of the United Nations. The Court unanimously answered question I(a)in the affirmative. On question I(b)the Court was of opinion by 11 votes against 4 that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations

• UN is recognized and thus can bring a claim for compensation towards even non-Member states (ie Q1(a)) as the 50 states in UN recognize UN as possessing “objective international personality”

Q2 In the event of an affirmative reply on point I(b),how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?

• The Court was of opinion by 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.

Why was the UN viewed as having an international personality? -> The Court analysed the Charter and identified textual elements implying that the UN was intended to possess such personality, noting, inter alia, the defined position of Members in relation to the UN and the requirement that they assist it (Article 2(5)); the obligation to comply with and enforce decisions of the Security Council (Art 25); the grant of legal capacity, privileges and immunities to the UN in the territory of its Members (Arts 104 and 105).

• Ie all these as evidence that the UN exists as a separate legal entity

These indicated that the Organization is exercising functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. Thus, the court held that where a State is responsible for an injury to an agent of the United Nations in the performance of his duties, the UN has the capacity to bring an international claim against the responsible government with a view to obtaining the reparation due in respect of the damage caused to the United Nations, as well as to the victim. The UN can only do so by basing its claim upon a breach of obligations due to itself.

1. THE CRITERIA FOR STATEHOOD IN INTERNATIONAL LAW

The traditional starting point for analysis has been Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States:

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