International Legal Personality

Fleur Johns

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754628286
• eBook ISBN: 9781351562232
• Topic: Histoire
• Subtopic: Jurisprudence

Who or what is entitled to act on the international plane? Where should responsibility for violations of international law lie? What sort of entities are capable of possessing international legal rights? What is the status of individuals, minority groups, non-governmental bodies, international organisations and animals in the international legal order and how has their status shifted over time? International Legal Personality contains fourteen articles that address these and related questions. In historical and contemporary writings, international lawyers grapple with the nature of legal identity, and confront global distributions of authority and responsibility, as they explore who or what is a 'person' in the international legal order. These essays document the emergence of an international legal order increasingly conceived in terms of patterns and probabilities, rather than as the stagecraft of a small company of permanent players.

Part I
Personhood and Personality in International Law

[1]

The Concept of Legal Personality

Jan Klabbers

University of Helsinki

I. INTRODUCTION

International lawyers are occasionally confronted with discussions revolving around the notion of legal personality. Such discussions took place, for instance, when the U.N. contemplated, after a U.N. appointed mediator had been killed in the Middle East in the late 1940s, whether it could start proceedings against a non-member state.¹ The issue also arose in the mid 1980s when the status of the International Tin Council, which had gone bankrupt, forced English courts to decide the extent to which the Member States of the Council should bear responsibility for the Council’s financial sense of adventure.² In the early 1990s, an English court voiced concern about the status of the Arab Monetary Fund, whose managing director had taken off with quite a few of the Funds’ monies.³ Also, the E.U. was created at Maastricht as an entity, scheduled to have serious and intense activities on the international scene, without any explicit grant of international or domestic legal personality.⁴ The International Law Commission currently aims to develop rules on the responsibility of international organizations under international law, and its rapporteur suggests that personality functions are a precondition.⁵

As the I.L.C. rapporteur’s approach to the topic of the international responsibility of international organizations suggests, the debates surrounding those incidents usually have one central theme: international legal personality is thought to be a conditio sine qua non for the possibility of acting within a given legal situation. Personality is considered to be a threshold, which must be crossed. Without legal personality, those entities do not exist in law. Accordingly, they can neither perform the sort of legal acts that would be recognized by that legal system nor be held responsible under international law.⁶ Without international legal personality, the U.N. is unable to start proceedings under international law against a State. Also, without international legal personality, the E.U. is not capable of concluding treaties or performing other international legal acts. Without personality under English law, or personality recognized under English law, the Arab Monetary Fund is unable to sue its former managing director.

Some might take offense to this extremely general position. One may readily concede that a certain measure of personality is required before a would-be litigant has standing to sue; however, this devolves from rules on standing (and standing circumstances are usually granted only sparingly), rather than from personality as such.⁷ Exemplified by the possibility that other acts are perfectly possible, one does not need legal personality to conclude treaties, to make unilateral promises, to perform acts of recognition, to impose conditions on others, or indeed, to violate international law.⁸

What, then, does legal personality signify, if it does not constitute a threshold condition for performing legal acts? What is the point of legal personality if it seemingly has no discernible practical ramifications, and if one can perform various legal acts without it? This paper contends that a plea for personality, and the consequent acceptance thereof, has more to do with political recognition of relations between actors and those relations’ relevancies, than with anything else.⁹ First to be discussed are the ambivalences inherent in the idea of legal personality, and the idea of personality as a threshold for action within a legal system.

II. AN AMBIVALENT CONCEPT

While personality may constitute one of the greater puzzles occupying legal thought, its immediate function is reasonably obvious. As Kelsen has noted, with characteristic swagger, the law cannot just think in terms of rights and duties, but also needs to be able to point to someone or something possessing those rights and duties: “[t]here must exist something that ‘has’ the duty or the right.”¹⁰

The question then arises: how does the law point out which entities can “have” rights or duties, and under what conditions? The ambivalence of the concept of personality manifests itself. On the one hand, the law may be expected to stimulate a sense of certainty by instilling in its subjects an awareness of (when they organize themselves in a certain way, reach a certain age, or are of sound mind) entitlement of rights and duties of their own. Thus, a six-year old may be a subject of the law, but does not usually have her own legal personality just yet.¹¹ By the same token, a person with a serious mental handicap may not everywhere be regarded as a legal person, though undoubtedly a natural person. The same might have been said about slaves at one time.

Something similar would apply to groups of human beings working together in one form or another. It may be very useful for groups to know that, once they organize themselves as a nonprofit organization with certain specified internal procedures, they may qualify as a foundation in the eyes of the law and be subject to all of the consequences this entails. Similarly, larger sums of money are available to certain types of corporations as long as the investment projects are managed in accordance with the conditions the law sets for personal liabilities. A local soccer club may enjoy using balls and practice fields as property owned by itself, rather than by its members in the aggregate, if it takes on a certain form.

Yet the law cannot envisage every type of situation, impairment, or form of association (in the generic sense) between human beings. The law might simply be reluctant to attach personality to some associations for reasons wholly unconnected to their activities. The non-personality of the English village is a case in point¹² as was, according to some, the reluctance to grant international legal personality to the European Union.¹³ Thus, there will inevitably be gaps; forms of human association will arise which do not fit into one of the pre-conceived categories of the law. The explanation for this state of affairs seems to be reasonably obvious: people tend not to follow blueprints when organizing their lives together, and the demand for certainty will often be countered by a demand for flexibility.

The law must answer to both demands simultaneously, and will inevitably develop ways, means, or institutions to accommodate these twin demands. The legendary Maitland opined that, in English law, the quintessential English legal institution of the trust takes this intermediate position.¹⁴ It is capable of being attached to all possible forms of human association, but even this seems insufficient. The recognition of the courts of England on the capacity of suing a trade union in the early 20th century¹⁵ (which inspired some of Maitland’s writing on the topic), would be difficult to explain if it were to treat a trade union as a trust.¹⁶

Since it is such a puzzling concept, it comes as no surprise that the concept of personality has inspired a variety of theories. Two contending theories of personality appear most prevalent.¹⁷ Von Savigny is said to have modernized the classic idea of personality into a fictional idea.¹⁸ According to his model, the legal person is distinct from the natural person, and lacks any innate personality. The legal person has no will, no mind, and no ability to act, except to the extent that the law imputes such will and ability to the legal person in question.¹⁹ This theory proves difficult to reconcile, as much of the law works on the premise of mental and practical abilities. Contract is said to rest on intent; we willfully do certain things and refrain from others. Criminal acts usually presuppose mens rea.²⁰ As Maitland scathingly retorted on the artificiality of this notion:

It seems seriously questionable whether a permanently organized group, for example a trade union, which has property held for it by trustees, should be suffered to escape liability for what would generally be called “its” unlawful acts and commands by the technical plea that “it” has no existence “in the eye of the law.”²¹

The contending theory, mainly developed by Gierke, is one popularized by Maitland himself: the realist theory.²² Under this theory, an entity possesses a real existence, including its own will, distinct from that of other members. He would constitute, indeed, a real person. Not surprisingly, the main drawbacks mirror that of the fictional theory: how does one ultimately distinguish the will of the entity from that of its members? And: is it artificial to impute a real will to an entity that exists only as a legal person, but not as one of flesh and blood, heart and soul?²³

This foreshadows a second ambivalence in the notion of personality, most visibly in the work of Kelsen; that is, the separation of legal persons completely from the human beings that compose them, and assimilating the two. On the one hand, much of the concept of personality seems to owe its raison d’etre to the creation of a corporate veil. Should a corporation buy a house, the house belongs to that corporation, rather than its individual members. Even though members may come and go, and shareholders may buy and sell, the constant factor is the corporation itself. Hence, the law places a premium on positing a distinction between the entity and the human beings composing it, for only this can guarantee some measure of continuity.²⁴

On the other hand, the law will, given the right circumstances, ignore the dichotomy of its own creation. Under some circumstances the corporate veil may, perhaps even must, be pierced emblematically.²⁵ This suggests that, whatever the legal niceties, the behavior of human beings is what matters, and not the legal persons in abstraction.²⁶ No clearer formula has ever been devised than that of the Nuremberg Tribunal, which states that...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Personhood and Personality in International Law
• Part II States, Peoples and Cities
• Part III Individuals
• Part IV International Organizations
• Part V Non-Humans and Non-State Actors
• Part VI Possibilities
• Name Index