Legal Personality as a Fundamental Concept of International Law

Abstract

Legal personality is generally understood as the capability to be - in traditional anthropomorphic terms - ‘the bearer of legal rights and obligations’. Legal personality is a structuring tool in legal systems, not least that of international law, as it indicates who are the participants. This paper considers the concept of ‘legal personality’ in two different roles, which are mutually constitutive. The concept works as an epistemic tool in theoretical reflections on the workings of international law, while at the same time it denotes a doctrinal category within the system of international law. Both functions are taken into account, with a concomitant shifting between levels of analysis, and a look also at the actual candidates for international legal personality which over time have emerged in different political contexts. The paper discusses a sequence of moments in the development of the form and use of the concept that seem especially significant. These are, with a loose indication of time periods: legal personality as a sign for legal existence (17th century) (part 2); the external aspect of legal personality and its structuring effect (18th century) (part 3); legal personality as the flipside of the reified state (19th century) (part 4); contestation of anthropomorphic conceptualisation of legal personality, and challenge of the closed doctrinal category of international legal persons (Interbellum) (part 5); legal personality turning from a constitutive to a declaratory legal statement (UN era) (part 6); and the potential impact on the legal personality concept of post-subject and post-human lines of thought (from the 1990s) (part 7). While the paper thus gives a diachronical account of the concept of ILP, the identified moments in its development are also continuing and co-existing aspects of the concept. For example, while it is true that an intense concern for the state as the sole legal person in international law came to the fore in the second half of the 19th century, the central position of the state is also an important element in the contemporary discourse on international legal personality.