Concept Of International Legal Personality Research Articles

International Legal Personality of Transnational Corporations – Any Chance for the Theoretical Shift with Respect to a Legally Binding Instrument on Human Rights and TNCs?

Summary Multinational enterprises or transnational corporations are big and influential actors on international scene. Their economic activities might have unfortunately a negative impact on human rights or environment. Current international law does not have any concrete and satisfactory answer to such situation of lacking direct substantial human rights obligations with respect to transnational corporations and corresponding procedural mechanism. Often, this situation is substantiated by missing or unclear concept of international legal personality of those entities. The present article presents international legal personality of transnational corporations from the perspective of the Legally biding instrument on human rights and TNCs drafted by inter-governmental working group. After portraying general features of international legal personality, the author tends to conciliate basic theoretical concept with the TNCs situation. Then the author presents a deep analysis of the Legally binding instrument and comes to the conclusions of maturing international legal personality of transnational corporations.

The nature of the international legal personality of the Order of Malta

The article provides a theoretical analysis of historical roots and the nature of international legal personality of the Order of Malta. The Order was established in 1048 to provide medical support to the wounded and sick pilgrim in the Holy Land. In the following years, the Order became military functions and participated in the Crusades. Power over territory and population was never the main mission of the Order. In the author’s opinion, the Order of Malta was rather a platform for cooperation of knights from different countries. However, in 16th–18th centuries, in the time of the development of the concept of international legal personality, the Order of Malta has a territorial sovereignty over Malta and the neighbourhood islands. It became a status of subject of international law at the same time as states. A question regarding sovereignty of the Order of Malta and of its status as a subject of international law arises after the occupation of Malta by the Army of Napoleon in 1798 and the decision of the Vienna congress concerning Malta in 1814. The article justifies a crucial role of the constitutive theory of recognition for the continuation of the international legal personality of the Order of Malta after the loss of territory. The author also provides an overview of the Orden’s governance framework, laws and international treaties. In light of current debates about the necessity of constitutional reforms in the Order of Malta, the nature of the Order’s international legal personality represents a great academic and practical interest.

The Prospects for the Recognition of the International Legal Personality of Artificial Intelligence

This research aims to identify the prospects for recognizing the international legal personality of artificial intelligence, taking into account the practice of international organizations. The article describes a new idea based on the research of the existing practice of international organizations and the application of the author’s concept of international legal personality of legal entities, enabling the identification of the main directions of recognizing the international legal personality of artificial intelligence. Using the problematic-theoretical, formal-legal, logical, systemic-structural methods and methods of synthesis, analysis, and comparison, the author revealed two solutions to the problem of recognizing the international legal personality of artificial intelligence. The first way to resolve the problem is that states may grant the legal entity rights to artificial intelligence, gradually developing an international custom. The second way is that states may conclude that artificial intelligence will be granted a legal entity’s rights or sui generis by participating in discussions organized by various international organizations. The results of the study can be used for international unification.

Podmiotowość prawnomiędzynarodowa korporacji międzynarodowych wyzwaniem dla systemu ochrony inwestycji zagranicznych

This paper analyzes two issues: the current state of international investment law as to the question of the subjectivity of transnational corporations and whether this question contributes to changes in the system of protection of foreign investments. Transnational corporations have already some relevant attributes of the subjects of international law, although all we can say is that their international legal personality is incomplete, functional, relative and not independent. International legal personality of transnational corporations cannot be presumed and if it is for the purpose of assigning liability for infringements of the rules of jus cogens, this will not prejudge the subjectivity in the fi eld of the use of international investment law. If international legal subjectivity of a transnational corporation has been decided upon, the future of the already existing norms of international law regarding the protection of investments (including diplomatic protection, BIT provisions and multilateral international agreements) is not clear. In this system, the rights and obligations of states and transnational corporations are not balanced as this area of international law favours investors (and thus also transnational corporations). States and local communities are neither entitled to claim damages from the investor when such damages are caused by an investment or if they arise from violations of the vital interests of the local community, nor may they bring counterclaims against the complaint to arbitration tribunals. Common goals for the whole international community, for which the concept of international legal personality of transnational corporations could be developed, have not as yet been precisely articulated. Unlike it is the case of liability for the international law of jus cogens, there are no strong axiological reasons to develop this concept in international investment law.

The International Court of Justice and the Individual

This chapter studies the relationship between the ICJ and ‘the individual’ in a broad sense, including both human beings and private companies. It argues that there is a gap between, on one hand, the most famous dicta by the ICJ and its predecessor, the PCIJ, about the concept of international legal personality, and, on the other hand, the Court’s interpretation and application of treaty provisions that govern individuals directly. Indeed, the Court seems to have consistently invoked a more progressive view of the international legal personality of non-State entities, including individuals and private companies, than it is given – and has taken – credit for. As the chapter illustrates, how-ever, the Court’s favourable approach to ‘individual rights’ under international law has not prompt-ed it to be particularly accommodating towards ‘human rights’. Although there has unquestionably been a development in the way in which the ICJ takes account of human rights, its practice above all indicates that does not strive to be a court of human rights, but emphatically a court of international law.

Global Constitutionalism and the International Legal Personality of the Individual

It is a widespread notion, perhaps even a truism, among international legal scholars that international law went from a pre-World War II ‘States-only’ framework to the recognition of the international legal personality of individuals during the second half of the 20th century. This changed role of the individual and other non-State actors in the international legal system is a common starting point for discussions among scholars engaging with global constitutionalism. International law, so the popular narrative goes, has developed from ‘the law between States’ to ‘the law within States’, and with this development follows a constitutionalization of the international legal system. The present article challenges the basic premise of this account. It argues that the ‘States-only’ conception of international legal personality is mistakenly treated as though it provides an accurate depiction of the historical role played by individuals in positive international law, when in fact it was never more than a scholarly invention of 19th century orthodox positivists. Rather, the question of individual rights and duties under international law has always been empirical in the sense that it depends exclusively on the content international legal norms. The article illustrates how this disconnect between theory and practice leads international constitutionalist scholars to exaggerate the impact of the increased number of international legal norms governing individuals on the overall structure of the international legal system as well as on its relationship with national legal systems.

Global Constitutionalism and the International Legal Personality of the Individual

It is a widespread notion, perhaps even a truism, among international legal scholars that international law went from a pre-World War II ‘States-only’ framework to the recognition of the international legal personality of individuals during the second half of the 20th century. This changed role of the individual and other non-State actors in the international legal system is a common starting point for discussions among scholars engaging with global constitutionalism. International law, so the popular narrative goes, has developed from ‘the law between States’ to ‘the law within States’, and with this development follows a constitutionalization of the international legal system. The present article challenges the basic premise of this account. It argues that the ‘States-only’ conception of international legal personality is mistakenly treated as though it provides an accurate depiction of the historical role played by individuals in positive international law, when in fact it was never more than a scholarly invention of 19th century orthodox positivists. Rather, the question of individual rights and duties under international law has always been empirical in the sense that it depends exclusively on the content of international legal norms. The article illustrates how this disconnect between theory and practice leads international constitutionalist scholars to exaggerate the impact of the increased number of international legal norms governing individuals on the overall structure of the international legal system as well as on its relationship with national legal systems.

Why International Lawyers Would Be Better Off Without the Concept of Personality

This paper argues that an unwarranted bias against the international legal personality of non-State entities has been passed down through generations of international lawyers since the 19th century and continues to influence the interpretation and application of contemporary norms across the board in the international legal system. Contrary to conventional wisdom, international law did not apply to States alone until World War II, only to transform during the second half of the 20th century so as to include non-State actors as its subjects. Rather, positive law developments since the 18th century consistently corroborate the notion articulated by Hans Kelsen that the international legal personality of an entity – be it a State, an armed opposition group, or an individual – is solely contingent upon interpretation of international norms. In other words, the answer to the question of the international legal rights and obligations of any entity is, and always was, strictly empirical. Yet, the ‘States-only’ conception of international legal personality is seemingly so ingrained in the minds of many contemporary international lawyers that they inadvertently rely on it when faced with concrete treaty provisions directed at non-State entities. The paper presents two manifestations of this phenomenon: 1) the general perception that EU law is ‘a new legal order’; and 2) the widespread notion that armed opposition groups are only bound by common article 3 of the Geneva Conventions and Additional Protocol II to the extent that these norms reflect customary international law. Similar examples of the ‘States only’ conception’s continued impact may be found in other subfields such as international criminal law, international human rights law, and international investment law. Against this background, the paper questions not only the way in which students worldwide are taught about international legal personality, but the overall value of this concept in international law.

Persons and Things in International Law and “Law of Humanity”

Drawing from Roberto Esposito's recent work on persons and things, this Article studies recent attempts to rethink international legal personality. Esposito's work resurrects the claim that personhood operates like a mask, splitting the legal and philosophical world into persons and things. International law differs from domestic law in that international legal personality has traditionally been the prerogative of states, not of (rational) individuals. Yet, this has not completely dismantled the persons/things logic, because the exclusive legal personality of states has continuously threatened to reduce individuals into things in the eyes of international law. It is perhaps for this reason that international legal theorists have long sought to extend international legal personality to individuals and other non-state actors. This Article addresses the most recent attempt, namely an attempt to shift international law towards a law of humanity. Without taking a stance on whether this project is a good idea or not, this Article raises some doubts about whether the concept of international legal personality can help in fulfilling the project's aim, namely to help increase human freedom and wellbeing. This is especially relevant because, regardless of whether legal personality is attributed primarily to the state or the individual, we still remain—according to Esposito—within a theoretical framework in which the dispositif of person necessarily excludes some forms of life in protecting or empowering others.

A Ghost in the Ivory Tower: Positivism and International Legal Regulation of Armed Opposition Groups

Why do scholars, who generally acknowledge the international legal personality of non-State entities, still question the bindingness of the law of non-international armed conflict on insurgents? This article examines the relationship between the two dominant positivist conceptions of international legal personality and the rights and obligations of insurgents as a matter of positive international law. First, the article illustrates that the evolution of the law of non-international armed conflict corroborates Hans Kelsen’s idea that the international legal personality of an entity, be it a State, an armed opposition group, or an individual, is solely contingent upon interpretation of international norms. Second, it shows that the traditional perception of States as exclusive subjects of international law – though never reflected in positive norms governing non-international armed conflict – continues to influence the current debate on the theoretical underpinnings for binding insurgents. The orthodox ‘States-only’ conception of international legal personality is seemingly so ingrained in the minds of contemporary international lawyers that they inadvertently rely on it when faced with international legal regulation of non-State entities. Finally, the article addresses the implications of these findings for the overall question of international legal obligations of non-State actors.

Mission of the Order of Malta as a Subject of International Law in the 21st Century

The Order of Malta became a subject of international law with the emergence of classical international law in the 16th century and the concept of international legal personality and since that period has always been recognised as such. However, the form of its existence has undergone a number of transformations. Today, the Order of Malta constitutes a unique subject and the nature of its international legal personality represents a great scientific and practical interest. The author is of the opinion that both theories of recognition which exist in the doctrine of international law, i.e. the declarative and constitutive theories, apply to the status of the Order of Malta. This paper analyses the nature of international legal personality and the mission of the Order of Malta as a subject of international law in the 21st century. Special attention is paid to the Constitution, the Government and the judicial system of the Order of Malta, as well as cooperation between the Order and the Russian Federation.

The Influence of the Concept of International Legal Personality in the Drafting of the Statute of the Permanent Court of International Justice

The Influence of the Concept of International Legal Personality in the Drafting of the Statute of the Permanent Court of International Justice

The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law

The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law

Arab Organization For Industrialization, Arab British Helicopter Company and Arab Rapublic of Egypt v. Westland Helicopters Ltd, United Arab Emirates, Kingdom of Saudi Arabia and State of Qatar

International organizations — Personality — Concept of international legal personality — Organization's legal status not dependent upon law of State in which it has its seat — Limited nature of personality — Whether member States of organization liable for obligations incurred by organization — Constituent instruments of organization — Inference to be drawn from silence of constituent instruments regarding liability of members — Arbitration clause in contract concluded by organization — Whether binding upon member States State immunity — Jurisdictional immunity — Arbitration proceedings — Proceedings instituted against member State in respect of obligations of international organization — Whether State immune — Whether constitution of organization amounting to waiver of immunity — The law of Switzerland

Maclaine Watson & Co. Ltd. v. International Tin Council

International organizations — Personality — Concept of international legal personality — Rights of organization against members — Whether justiciable in a municipal court — Whether creditor entitled to the appointment of a receiver by way of equitable execution over assets of organization — Assets of organization said to include right of organization to be indemnified by its members — Sixth International Tin Agreement, 1982 — International Tin Council-United Kingdom Headquarters Agreement, 1972 — International Tin Council (Immunities and Privileges) Order 1972Relationship between international law and municipal law — Treaties — Application — By municipal courts — Whether rights and duties of parties to treaty establishing international organization justiciable in the courts of a State party to the treaty — The law of England