Introduction
In any legal system, certain entities are recognised as having rights and obligations. In international law, this status is known as "international legal personality". An entity possessing international legal personality is a "subject" of international law, capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims (Kaczorowska-Ireland, 2020). For a long time, the dominant view was that only states could be subjects of international law. However, the international legal order has evolved significantly, especially since the mid-twentieth century. This essay will explain the concept of international legal personality by outlining the traditional state-centric model before examining the expansion of legal personality to include international organisations and, to a more limited extent, individuals. It will be shown that while states remain the primary subjects of international law, the concept of legal personality is now more accurately understood as a spectrum, with different actors possessing different degrees of rights and duties on the international plane.
The Traditional Subjects: States
Historically, international law was understood simply as the law that governed relations between sovereign states. Following the Peace of Westphalia in 1648, which established the principle of state sovereignty, states were considered the sole actors and exclusive subjects of international law (Shaw, 2017). All rights and duties, such as the right to make treaties or the duty not to interfere in another state’s internal affairs, were held by states alone. Individuals and other entities were merely "objects" of international law; their treatment was a matter of a state’s domestic jurisdiction unless their own state chose to take up their case on the international level through the process of diplomatic protection.
The traditional legal criteria for statehood are most famously set out in Article 1 of the Montevideo Convention on the Rights and Duties of States (1933). According to this article, a state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.
These criteria form the basis of what is known as the "declaratory" theory of recognition, which suggests that an entity is a state if it meets these factual criteria, and recognition by other states merely acknowledges this fact rather than creates it (Shaw, 2017). Once an entity achieves statehood, it acquires full international legal personality. This brings with it the full range of rights and duties under international law, including sovereignty, legal equality with other states, the capacity to make treaties and join international organisations, and the ability to bring a claim before an international tribunal like the International Court of Justice (ICJ). States possess "original" personality, meaning it is inherent in their nature as states and not granted by any other body (Kaczorowska-Ireland, 2020). For centuries, this model was sufficient, but the changing nature of international relations in the twentieth century necessitated a re-evaluation.
The Expansion of Personality: International Organisations
The most significant development in challenging the state-centric view of legal personality came with the rise of international organisations. The creation of bodies like the League of Nations and, more importantly, the United Nations (UN) after the Second World War raised the question of whether such organisations, created by states, could themselves possess personality separate from their members. This question was decisively answered by the ICJ in its landmark Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations (1949).
The case arose after a UN mediator, Count Bernadotte, was assassinated while on an official mission in Jerusalem. The UN General Assembly asked the ICJ whether the UN had the capacity to bring an international claim against the responsible government to obtain reparation for damage caused to both the UN and the victim. The Court found that it did. It reasoned that the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights. The ICJ stated that to achieve the purposes for which it was created, such as the maintenance of international peace and security, the UN "must be endowed with international personality" (Reparation for Injuries, p. 179).
Crucially, the Court determined that the UN's personality was "objective", meaning it was opposable to all states, not just the members of the UN. However, it also made clear that this did not mean the UN was a "super-state". Its legal personality and its rights and duties are not the same as those of a state. Instead, the UN possesses "functional" personality; its rights and duties are limited by the functions given to it by its founding members in its constituent document, the UN Charter. This case established a new category of international subject. Since then, it has been accepted that many other international organisations, such as the World Trade Organisation or the European Union, also possess a degree of international legal personality appropriate to their specific functions. Their personality is "derived", as it is granted to them by their member states.
The Developing Status of Other Actors
The door opened by the Reparations case has led to further debate about the status of other non-state actors, most notably individuals. As noted earlier, individuals were traditionally seen as objects of international law. However, two major developments in the twentieth century have granted individuals a limited form of international legal personality.
First, the development of international criminal law has imposed duties directly upon individuals. The Nuremberg and Tokyo tribunals held individual Nazi and Japanese leaders criminally responsible for crimes against peace, war crimes, and crimes against humanity. The tribunals rejected the argument that the defendants were acting on behalf of the state, establishing that international law could impose duties directly on individuals, for which they could be held personally accountable (Shaw, 2017). This principle is now firmly embedded in international law, most prominently through the Rome Statute of the International Criminal Court.
Second, the growth of international human rights law has conferred rights directly on individuals. Treaties such as the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) grant rights to individuals that are binding on states. Moreover, some regimes, such as the ECHR, grant individuals procedural capacity to bring claims against states before an international body (in this case, the European Court of Human Rights). This ability to enforce one's own rights on the international stage is a key indicator of legal personality, even if it is limited to a specific context.
Other actors also exist in a grey area. Transnational corporations (TNCs), for example, wield immense economic power and often enter into international contracts with states. Under thousands of bilateral investment treaties, they can be granted the right to bring claims against host states before international arbitration tribunals, suggesting a form of functional personality in the sphere of international economic law. However, their status remains contentious, and they generally lack the broader rights and duties of states or major international organisations.
Conclusion
In conclusion, the concept of "international legal personality" has undergone a fundamental transformation. The traditional model, which recognised only states as subjects of international law, is no longer an accurate description of the modern international legal system. While states, with their original and full personality, remain the primary and most important actors, they are no longer the only ones. The landmark Reparations for Injuries advisory opinion confirmed that international organisations created by states could possess a separate, functional legal personality necessary to perform their roles. Furthermore, developments in international human rights and criminal law have given individuals a limited but significant status as bearers of international rights and duties. International legal personality is therefore not an absolute, all-or-nothing concept. It is a flexible doctrine, reflecting a more pluralistic international community where different entities possess varying degrees of legal status according to the functions they perform and the rights and duties conferred upon them by the international legal order.
References
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 174.
Kaczorowska-Ireland, A. (2020) Public International Law. 6th edn. Routledge.
Montevideo Convention on the Rights and Duties of States (1933) 165 LNTS 19.
Shaw, M.N. (2017) International Law. 8th edn. Cambridge University Press.
