Recognition of Juridical Persons in International Law
Juridical persons (or persona ficta) are entities, other than natural persons, that have sufficient existence in the eyes of the law to function legally, sue and be sued, and make decisions through agents. Examples are business entities (including associations and corporations) and governmental and intergovernmental organizations. Juridical persons are subject to the in personam jurisdiction of a municipal court in much the same way that individuals are. Thus, legal entities created within a state are nationals of that state-they are called “domestic entities” -and they may sue or be sued there. Foreign entities, however, are amenable to the jurisdiction of another state’s municipal courts only if:
- they are recognized in law as juridical persons and
- they give their consent.
Governments and intergovernmental organizations, accordingly, must be formally recognized (see the Case “Arab Monetary Fund v. Hashim and Others”), while other foreign entities (including business firms) must be created as juridical persons by recognized governments.
The “Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others (Union of India and Others, Claimants)”case explores the requirement of recognition.
SUBJECTS OF INTERNATIONAL LAW
States have traditionally been recognized as the sole subjects of INTERNATIONAL LAW, but this position has been undermined to a certain extent by recognition of international organizations and individuals as subjects possessing limited capacity. This is the recurring theme of questions in this area of the law.
Overview of this section:
- The State as an International Person
- Non-self-governing territories
- International Organizations
The State as an International Person
Legal criteria of Statehood
Article 1 of the Montevideo Convention on Rights and Duties of States 1933 provides: ‘The state as a person of international law should possess the following qualifications:
- a permanent population;
- a defined territory;
- government; and
- capacity to enter into relations with other States.’
The Montevideo Convention has traditionally been accepted as reflecting generally the requirements of statehood under customary international law.
The requirement of ‘permanent population’ means a stable community. There is no minimum population requirement: Nauru, for example, has a population of fewer than 10,000 inhabitants. The fact that an element of the population is nomadic will not of itself affect the existence of a State.
There is no limit to the size of a State’s territory. The Vatican City comprises a mere 100 acres. There is no requirement that the frontiers of the State be fully defined and undisputed, either at the time it comes into being or subsequently. The State of Israel was admitted to the United Nations in 1949, though the final delimitation of its boundaries had not yet been settled. What matters is the effective establishment of a political community.
In order for a territory to be considered as a State, it must have a government of its own and not be subject to the control of another State. However, once it has been established, the absence of governmental authority does not affect the existing State’s right to be considered as a State.
Capacity to enter into relations with other states
This is the requirement of independence of States. In order to conduct relations with other States, a State must be legally independent from the authority of any other State.
These comprise territories, protectorates, trusteeship territories, principalities and various colonies which have restricted powers of control over their foreign relations.
Under the traditional rules of international law colonies were not regarded as possessing international personality. The exercise of their international relations was under the effective control of the Colonial Power. It is now recognized that the emergence of the principle of self-determination overrides any plea of domestic jurisdiction and may give colonial territories a measure of international personality.
In the 19th century it was the practice of certain European States to create ‘protectorates’ over certain primitive areas of Africa and Asia by entering into treaties of protection with the local rulers. While the local ruler retained control of his territory’s internal affairs, foreign relations were placed exclusively in the hands of protecting power. Once the protecting power was removed the protectorate would become a State in its own right.
The Mandate System was established under the Covenant of the League of Nations to provide for the administration of: ‘These colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by people not yet able to stand by themselves under the strenuous conditions of the modern world’.
When the UN replaced the League of Nations after World War II the system of mandates was replaced by a trusteeship system. The object of the system is to proceed peaceably to self-government under the guarantee of international supervision.
In practice Liberation Movements and other belligerent insurgent bodies within a State may enter into legal relations and conclude valid internationally recognized agreements with States and other insurgent bodies.
It is the federal State which has exclusive competence in foreign affairs while the constituent member States concern themselves solely with internal domestic affairs. Consequently, only the federal State is regarded as a State under international law.
An international organization is an organization set up by agreement between two or more States. They range from organizations of universal membership and general competence (the UN), to regional organizations with specialized functions (the NATO). When States create an international organization they set it up for specific purposes and in this respect legal personality must be treated as being relative to those purposes.
Usually the question about its possessing an international personality can only be answered by examining its functions and powers expressly conferred by, or to be implied from, its constitution. Relevant factors may include:
Status under municipal law
Many treaties setting up international organization provide for the enjoyment of legal personality under the municipal laws of its member states.
Treaty making power
Under Art. 43 of the UN Charter, the UN is empowered to make certain treaties with member States.
If international personality is conferred on the organization then by signing the constitution of the organization its members will have effectively recognized the independent international status of the organization.
Individuals per se do not exercise international rights unless conferred expressly by treaty. The most relevant instruments: the European Convention on Human Rights 1950, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966
At the same time, INTERNATIONAL LAW imposes duties directly on individuals:
- The duty to refrain from acts of piracy which is defined as a crime humani generis;
- The duty to refrain from committing crimes against peace, crimes against humanity, war crimes and genocide;
- Hijacking and associated acts are now considered to be crimes of quasi-universal jurisdiction as created by convention.
Refugees and stateless persons conventions
Arbitration: Examples of Refusal of Recognition and Enforcement
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Arbitration: Examples of Recognition and Enforcement
References and Further Reading
About the Author/s and Reviewer/s
Mentioned in these Entries
Arbitration: Examples of Recognition and Enforcement, Arbitration: Examples of Refusal of Recognition and Enforcement, Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Refugees and stateless persons conventions.