International Legal Personality

International legal personality refers to the entities or legal persons that can have rights and
obligations under international law.

States

A State has the following characteristics:

• a permanent population;
• a defined territory;
• a government; and
• the capacity to enter into relations with other States.

Some writers also argue that a State must be fully independent and be recognized as a State by other States. The international legal system is a horizontal system dominated by States which are, in principle, considered sovereign and equal. International law is predominately made and implemented by States. Only States can have sovereignty over territory. Only States can become members of the United Nations and other international organizations. Only States have access to the International Court of Justice.

International Organizations

International Organizations are established by States through international agreements and their powers are limited to those conferred on them in their constituent document. International organizations have a limited degree of international personality, especially vis-à-vis member States. They can enter into international agreements and their representatives have certain privileges and immunities. The constituent document may also provide that member States area legally bound to comply with decisions on particular matters.

The powers of the United Nations are set out in the United Nations Charter of 1945. The main
political organ is the General Assembly and its authority on most matters (such as human rights
and economic and social issues) is limited to discussing issues and making recommendations.
The Security Council has the authority to make decisions that are binding on all member States
when it is performing its primary responsibility of maintaining international peace and security.
The main UN judicial organ is International Court of Justice (ICJ), which has the power to make
binding decisions on questions of international law that have been referred to it by States or give advisory opinions to the U.N.

Nationality of individuals, companies, etc.

Individuals are generally not regarded as legal persons under international law. Their link to State is through the concept of nationality, which may or may not require citizenship. Nationality is the status of being treated as a national of a State for particular purposes. Each State has wide discretion to determine who is a national. The most common methods of acquiring nationality at birth are through one or both parents and/or by the place of birth. Nationality can also be acquired by adoption and naturalization.

Companies, ships, aircraft and space craft are usually considered as having the nationality of the State in whose territory they are registered. This is important because in many circumstances States may have international obligations to regulate the conduct of their nationals, especially if they are carrying out act activities outside their territory.

Under the principle of nationality of claims, if a national of State A is injured by State B through
internationally unlawful conduct, State A may make a claim against State B on behalf of its injured national. This is known as the doctrine of diplomatic protection.

Other Basic Elements of International Law

Sovereignty of States over Territory

Sovereignty is the exclusive right to exercise supreme political authority over a defined territory
(land, airspace and certain maritime areas such as the territorial sea) and the people within that
territory. No other State can have formal political authority within that State. Learn more about Sovereignty of States over Territory here.

Sources of international law (International Obligations)

It is generally accepted that the sources of international law are listed in the Article 38(1) of the
Statute of the International Court of Justice. Learn more about sources of international law (International Obligations) here.

Jurisdiction of States

This section covers mainly the Principles of Jurisdiction, and Immunities from Jurisdiction.

Principles Governing relations between States

The general principles governing friendly relations between States are set out in UN General
Assembly Resolution 2625. It states that the progressive development and codification of the
seven principles below would secure their more effective application within the international
community and would promote the realization of the purposes of the United Nations. Learn more about the principles governing relations between States here.

The Role of International Court of Justice (ICJ)

The International Court of Justice is the chief judicial organ of the United Nations. All members of the UN are automatically parties to the Statute of the International Court of Justice. The jurisdiction of the ICJ in “contentious disputes” between States is subject to the principle of consent. It can obtain jurisdiction in three ways. Learn more about the International Court of Justice roles here.

International Legal Personality History

M.N.S. Sellers (2006; International Legal Personality. In: Republican Principles in International Law. Palgrave Macmillan, London) wrote:

“One frequently mentioned right, guaranteed by the Universal Declaration, is the right to legal personality. Everyone has the right everywhere to recognition as a person before the law. Many legal systems also recognize some non-human “persons” as legal persons under law. International law usually views states as “persons” in this sense, which raises the question which other collectives deserve to receive a similar status, and whether any real persons should ever be denied full legal personality in any circumstances at all” (On these questions, see International Legal Personality, symposium in lus Gentium, volume 11 (2005); James E. Hickey (ed.) International Legal Personality, The Hofstra Law and Policy Symposium, volume 2 (1997)).

He later follows: “International legal personality” applies to those entities which international law regards as if they had independent personality. States are the paradigmatic example of this. Modern international law developed primarily through viewing states as if they were individuals, and elaborating the “natural law” which ought to apply between them (see for example, Emmerich de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle, Appliqués à la conduite et aux affaires des Nations et des Souverains. A. Droz. Neuchâtel and London, 1758).
The metaphor of legal “personality” has always been and remains at the foundation of the international legal system. Hugo Grotius wrote of a great society of states maintained for the mutual advantage of all.

Christian Wolff described nations as “personae morales,” (Christian Wolff, Jus Gentium methodo scientifka pertractatum. Frankfurt and Leipzig. 1764. Praefatio) associated in a great “civitas maxima,” just as individual persons unite into their own particular polities. Vattel understood nations or states to be moral persons, with their own will and understanding, as well as rights and obligations. “Because nations are made up of men who are by nature free and independent … their nations or sovereign states must in turn be regarded as free persons living together in a state of nature.” The moral authority of the state derives from the natural rights and freedom of
the citizens it represents. This justification of the power of states in international law, by derivation from the people that they represent, provides the primary basis for all treaty law, including the United Nations Charter, which presumes to speak on behalf of “We the peoples of the United Nations.”

Further Reading

• W.M. Geldart, Legal Personality. Clarendon Press, Oxford. 1924.
• Jeremy Bentham, Introduction to the Principles of Morals and Legislation. 2nd edn. E. Wilson and W. Pickering. London, 1823.II.256.
• Percy E. Corbett, The Growth of World Law. Princeton University Press, Princeton, 1971, p. 34, 177–178.
• Henry Wheaton, Elements of International Law, Dana, Richard Henry Jr. (ed.) Little Brown. Boston, 1866.I.14 [23] p. Ian Brownlie, Principles of Public International Law. 6th edn, Clarendon Press. Oxford, 2003. pp. 648–650.