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The Concept of Legal Personality under International Law

Essay 2013 10 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

Leseprobe

Public international law is that system of law which is primarily concerned with the relations between states.”[1] The system is composed of subjects enjoying legal personality to a greater of lesser extent. “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[2] though some authors question “whether the doctrine of subjects serves a useful purpose any longe r”.[3] Traditionally, it was a state that was a sole subject of international law. However “it is accepted today that the subject extends to rights and duties pertaining to international organisations[4], companies[5] and individuals [6] ”.[7]

It is widely accepted that recognised and independent states enjoy unlimited legal personality. There are four requirements for statehood: a permanent population[8] ; a territory[9] ; government[10] ; and capacity to enter into relations with the other states.[11] The recognition of a state is an important factor that would indicate an existence of legal personality but is not conclusive[12]. It seems that most of the state-like entities could be classified as subjects of international law, however it is rather unlikely for a widely unrecognised state to be described as such. In case of an extinction of a state[13], a new one coming into existence on its place would either continue its predecessor personality[14] or acquire a new one[15].

In case of federate states, the central government is normally responsible for conducting international relations but in some federations a component state is allowed to enter into relations with foreign states.[16] Diminutive states, such as Monaco, despite their very small populations, “have been recognised as possessing full international personality”.[17] What is more, Sui Generis entity of The Holly See enjoys the observer status in the United Nations including all the rights of full membership except voting and putting forward candidates[18], it also concludes bilateral agreements with other states such as concordats[19]. Similarly, the Italian judiciary[20] has recognised the Sovereign Military Hospitaller Order of Malta as a sovereign entity.[21] On the other hand, territories under condominium, such as Gulf of Fonseca,[22] are not subjects of international law.[23]

‘The State of Palestine’ is denied a status of a state as it is not in control of any piece of land.[24] However, liberation movements, such as the Palestine Liberation Organisation, enjoy certain degree of legal personality,[25] which has been acknowledged by the Court[26] as well as the UN[27] which has been granted the PLO status of an observer.[28] It seems that the principle of self-determination legitimises not only such movements but also some insurgent groups.[29]

The number of International Governmental Organisations has grown rapidly since the World War Two. These bodies are created by states and endowed with certain autonomy in order to realise common goals.[30] It has been ruled by the International Court of Justice that an IGO could possess legal personality[31]. According to the objective approach,[32] legal personality can be inferred where certain requirements satisfied.[33] Once legal personality of an IGO has been established, it enjoys certain rights and privileges[34] as well as, as in the case of International Tin Council,[35] might be held liable for the non-fulfilment of its obligation.[36] Although, international organisation are created on the basis of treaties,[37] it is an accepted approach that the personality of such organisation is “objective and opposable to non-members”.[38]

The key factor distinguishing international intergovernmental organisations, such as the UN ... from international non-governmental organisations, such as Amnesty International ... is that the former are composed predominantly of states (and other intergovernmental organisations) whilst the latter are composed of private entities though they operate in more than one country.”[39] Various NGOs have contributed to the creation of international law, especially in the fields of human rights and environmental protection.[40] Following the resolution of 1968,[41] the UN Economic and Social Council is allowed to confer a consultative status upon such NGOs.[42] The International Committee of the Red Cross is probably the most prestigious NGO. In the case of Prosecutor v Simic[43] the ICRC was recognised by the International Criminal Tribunal for the former Yugoslavia as possessing international personality similar to the one enjoyed by the United Nations[44]. Its importance has also been acknowledged in the Geneva Conventions 1949[45] whereby states are obliged to cooperate with ICRC during a potential conflict.[46] What is more, under some treaties[47], NGOs are empowered to provide information to international bodies where a state refuses to do so.[48] On the other hand, it seems that within the international legal order, acting as lobbyists and pressure groups remain their main role. Some authors argue that even though some organisations could even bring proceedings against a state before national courts,[49] apart from the ICRC, no other NGO “is recognised as a subject of international law”. [50] This might be the case primarily because NGOs’ actions are under the control of states as main actors in the international law.[51]

[...]


[1] O’Brien J. International Law (Cavendish Publishing Limited, London 2001) at 1

[2] Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 176

[3] Parlett K. ‘The individual and structural change in the international legal system’ (2012) Cambridge Journal of International and Comparative Law, Volume 1/Issue 3 at pp. 60-80

[4] Repatriations for injuries suffered in the service of the United Nations (1949) ICJ 174; 16 ILR 318

[5] E.g. Texaco Overseas Petroleum Company v The Libyan Arab Republic 53 ILR [1977] 389

[6] E.g. Prosecutor v Furundzija 38 ILM 317 [1999] Case No IT-95-17/1-T

[7] O’Brien J. International Law (Cavendish Publishing Limited, London 2001) at 1

[8] E.g. ‘nomadic tribes without any settled territorial links will not be sufficient’ (Western Sahara (Advisory Opinion) [1975] ICJ 3 found in O’Brien J. International Law (Cavendish Publishing Limited, London 2001) at 140)

[9] A territory does not have to be precisely defined, it also might be a subject of dispute between states: e.g. Israel (found O’Brien J. International Law (Cavendish Publishing Limited, London 2001) at 140)

[10] However, Somalia lacked the Government in the 90s, yet it did not cede to be a state perhaps due to the presumption of a continuity of a state which implied that there would be a Somali Government at some point in the future (Evans M. International Law (Oxford University Press, Oxford 2006) at 239)

[11] Montevideo Convention on the Rights and Duties of States, Article 1(1), 1933

[12] Taiwan, describing itself as Republic of China, which satisfies all criteria for statehood and maintains relations with other states as well as is a party to various international agreements could be described as enjoying partial legal personality although not recognised as a separate state. (Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 201)

[13] An extinction of a state might never be a consequence of a use of illegal force but rather a result of merger and incorporation or dissolution. (Shaw M. International Law (Cambridge University Press, Cambrigde 2003) at 186)

[14] E.g. Russian Federation possesses the legal personality of the former Soviet Union (e.g. the chair in the UN Security Council)

[15] For instance, after the break-up of the Socialist Federal Republic of Yugoslavia in the early 90s, Serbia and Montenegro was obliged to apply for seat in the United Nation General Assembly even though it named itself the Federal Republic of Yugoslavia. (Security Council Resolution 777 1992 cited in Dixon M. & McCorquodale R. Cases and Material on International Law (Blackstone Press Limited, London 2000) at 140)

[16] This could be illustrated by the fact that Ukrainian SSR and Byelorussian SSR were funding members of the United Nations in 1945 along with the USSR although at the time both constituted integral parts of the Soviet Union. This required some limited degree of legal personality. (Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 192)

[17] Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 179

[18] General Assembly Resolution 58/314 2004

[19] E.g. Concordat between the Holy See and Portugal 2004

[20] Scarfo v Sovereign Order of Malta [1957] 24 ILR 1 Tribunal of Rome

[21] Dixon M. & McCorquodale R. Cases and Material on International Law (Blackstone Press Limited, London 2000) at 159

[22] Case Concerning Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua Intervening) [1992] ICJ

[23] op. cit. n 17

[24] O’Brien J. International Law (Cavendish Publishing Limited, London 2001) at 140

[25] Additional Protocol I 1977 to the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949

[26] Arafat and Salah RDI, 69 [1986] Italian Corte di Cassazione

[27] General Assembly Resolution 3237 (XXIX) 1974

[28] Cassese A. International Law (Oxford University Press, Oxford 2001) at 76

[29] Limited legal personality may be acquired by some insurgent groups which have been granted recognition of belligerency by the state they are fighting against which results in the conflict being governed by the laws of war such as the Hague Conventions of 1899 and 1907 (International Cassese A. International Law (Oxford University Press, Oxford 2001) at 67)

[30] Advisory Opinion on Legality of the Use of a State of Nuclear Weapons in Armed Conflict ICJ Reports [1996] cited in Cassese A. International Law (Oxford University Press, Oxford 2001) at 70

[31] op. cit. n 4

[32] Whereas the inductive approach stipulates that legal personality might be implied from powers vested in the organisation but it will possess personality only if the founding stated wished so. (Evans M. International Law (Oxford University Press, Oxford 2006) at 282)

[33] It must be permanent association of states designed to attain certain objectives, possessing administrative organs and exercising power that is distinctive from power of its member states, whereas its competence must be exercisable on an international level and not confined to national systems of its member states only (Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 204)

[34] It has right to conclude international agreements with non-member states, right to immunity from jurisdiction of state courts, right to protection for its agents and servants in third states when acting in their official capacity as well as right to bring international claims. (Cassese A. International Law (Oxford University Press, Oxford 2001) at 74)

[35] Re International Tin Council [1988] 3 All ER 257 (CA)

[36] Evans M. International Law (Oxford University Press, Oxford 2006) at 283

[37] Treaties bind only parties to them (Vienna Convention on the Law of the Treaties 1969, Article 34)

[38] Evans M. International Law (Oxford University Press, Oxford 2006) at 284

[39] Evans M. International Law (Oxford University Press, Oxford 2006) at 279

[40] The Council of Europe recognises ‘that interna­tional non‑governmental organisations carry out work of value to the international community’ therefore established ‘rules laying down the conditions for recognition of the legal personality of these organisations in order to facilitate their activities at European level’. (European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, CETS No.: 124, preamble)

[41] Economic and Social Council Resolution 1296 (XLIV) 1968

[42] Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 215

[43] The Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric [1999] Case No. IT-95-9-PT

[44] op. cit. n 42

[45] Convention relative to the Treatment of Prisoners of War, Article 81

[46] Evans M. International Law (Oxford University Press, Oxford 2006) at 324

[47] E.g. Convention on the Right of the Child, Article 45

[48] Evans M. International Law (Oxford University Press, Oxford 2006) at 325

[49] Greenpeace Inc (USA) v The State of France, 946 F.Supp. 773 [1996]

[50] Kaczorowska A. Public International Law (Routledge, Abingdon 2010) at 216

[51] Evans M. International Law (Oxford University Press, Oxford 2006) at 326

Details

Seiten
10
Jahr
2013
ISBN (eBook)
9783668411296
ISBN (Buch)
9783668411302
Dateigröße
1 MB
Sprache
Englisch
Katalognummer
v354924
Institution / Hochschule
University of Wales, Aberystwyth
Note
65
Schlagworte
concept legal personality international

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Titel: The Concept of Legal Personality under International Law