International Legal Personality

by

Eric Loefflad

• LAST MODIFIED: 24 July 2024
• DOI: 10.1093/obo/9780199796953-0259

Introduction

Broadly speaking, “legal personality” is the ability of an entity to assert rights and incur duties within a given regime of law. Through this legal endowment, “persons” are actionably distinguished from “things.” Arguably, any order that falls within the category of “legal system” must possess some mechanism for determining which entities can or cannot claim the status of “legal person.” This issue of determination is particularly complicated within the domain of public international law for two important reasons. First of all, there is the matter of how, on a global scale, formulations of legal personality are boundlessly diverse in their manifestations, yet international law, the one legal regime that is universal in its global applicability, is not at all representative of this diversity. This raises a host of questions as to why and how international law came to validate certain formulations of legal personality at the expense of others, and whether it could be reimagined as more inclusive of the world’s diverse traditions in this regard. Secondly, and in an intimately related capacity, there is the matter of how international legal personality should be theorized in relation to international law’s distinct subjects and hierarchies among them. While debates on legal personality in other legal systems largely turn on comparing the “legal person” to the human individual (i.e., the “natural person”) as a typically assumed holder of legal rights and obligations, under international law, only the “full subject” in the form of the sovereign state can be said to possess incontestable international legal personality. However, this state-centrism does not remove consideration of the individual from the baseline theory of international legal personality. After all, the nature of the sovereign state within the international order as it was both comparable to the individual in a domestic order and derived its personality from being a collective amalgam of individuals was among the most important discourse within the classical law of nature and nations. As such, articulating international legal personality can be viewed as a grand exercise in “double analogy” in it that entails analogizing states with non-states and states with individuals. Because of these complexities, the question of international legal personality exists at the forefront of some of the most conception-defying debates on international law. Even a bibliographic outline of this topic must make difficult theoretical choices.

International Legal Personality—General Approaches

As detailed by the authors of Menon 1992, Johns 2010 and Worster 2016, international legal personality can take on numerous forms of which the sovereign state is only one. Yet, as Barberis 1983 has shown, when considering how the sovereign state is the only “full subject” of international law, the extension of international legal personality to other subjects raises a host of novel questions in relation to international law’s default presumptions. As the work of Cavaglieri 1925 and Cosnard 2005 makes clear, the question of international legal personality is thus deeply connected to the broader issue of what is, or can be, a subject of international law. A prominent factor here is how the state’s possession of the quality of sovereignty tremendously influences the specific type of legal personality that the state possesses. As Heller 2019 demonstrated, a state is thus not simply a “legal person” but a “sovereign person.” Aufricht 1943 confronts this by showing that, as an international legal matter, the personality of the state is more than just the personality of a collective/corporate legal subject. As a connected matter, contributions in Barbour and Pavlich 2011 and Smith 2022 have detailed numerous philosophical questions on sovereignty’s inherently mystified character and its variation according to diverse perspectives.

• Aufricht, Hans. “Personality in International Law.” American Political Science Review 37.2 (1943): 217–243.

  DOI: 10.2307/1949384

  One of the first English-language studies to deal rigorously and directly with various aspects of the modern conception of international legal personality at a time of fundamental change within the international system. Included in Johns 2010.

• Barberis, Julio A. “Nouvelles Questions Conçernant la Personnalité Juridique Internationale.” RCADI 179 (1983): 145–304.

  A detailed assessment of emerging questions of international legal personality in a late Cold War timeframe that anticipated many of the debates on this issue that only gained prominence in the post–Cold War era.

• Barbour, Charles, and George Pavlich, eds. After Sovereignty: On the Question of Political Beginnings. Abingdon, UK: Routledge, 2011.

  A collection of numerous insightful contributions that strive to identify the mystified characteristics of sovereignty by critically interrogating the discourses of “post-sovereignty” that were prolific in the 1990s and early twenty-first century.

• Cavaglieri, Arrigo. “I soggetti del diritto internazionale.” Rivista di diritto internazionale 20 (1925): 18–32, 169–187.

  An analysis of the question of subjecthood/subjectivity under international law articulated at a time when these seemingly settled matters underwent a great deal of upheaval in the aftermath of the First World War.

• Cosnard, Michel. “Rapport Introductif.” In Colloque du Mans: Le Sujet en Droit International Société Française pour le Droit International. Edited by Société Française pour le Droit International, 13–53. Paris: Editions A. Pedone, 2005.

  A detailed report on the questions surrounding the subjects of international law that confronts, among other things, the barriers of a sufficiently comprehensive definition of “international law” that would enable this task of subject identification.

• Heller, Hermann. Sovereignty: A Contribution to the Theory of Public of International Law. Edited by David Dyzenhaus. Oxford: Oxford University Press, 2019.

  A highly innovative theory of sovereignty that provides an underexplored alternative to the author’s more famous contemporaries in the form of Hans Kelsen and Carl Schmitt. This work contains an important chapter on the idea of the “sovereign person” at pp. 96–123. With an introduction by David Dyzenhaus. Originally published 1927.

• Johns, Fleur, ed. International Legal Personality. Abingdon, UK: Routledge, 2010.

  A compilation of key texts on various facets of international legal personality (many of which are included in this bibliography).

• Menon, P. R. “The Legal Personality of International Organizations.” Sri Lanka Journal of International Law 4 (1992): 79–98.

  A helpful general overview of the legal personality of international organizations and how these conceptualizations fit within an international legal order where the state is presumed to be the only “full” subject.

• Smith, Christopher, ed. Sovereignty: A Global Perspective. Oxford: Oxford University Press, 2022.

  A collection of accounts from various perspectives on how sovereignty, despite its central force as a world-ordering institution, is highly diverse in the locations it manifests in and the subject matter it attaches to.

• Worster, William Thomas. “Relative Legal Personality of Non-State Actors.” Brooklyn Journal of International Law 42.1 (2016): 207–274.

  An articulation of international legal personality beyond the state as “relative” to the state. Contains informative overviews of the international legal personality of international organizations, peoples entitled to self-determination, non-state groups in internal armed conflict, private organizations, religious organizations, and individuals.