International Legal Personality as a Theoretical Construct

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Order ◽  
Theoretical Construct ◽  
Legal Personality ◽  
International Legal Order ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
The Way

Chapter 2 identifies and explains the four theoretical conceptions of international legal personality, which will be tested against historical and existing norms of positive international law in Chapters 3–8. With particular focus on the role attributed to the individual as the ultimate subject of international law, the examination will concentrate on selected scholars’ conclusions on the criteria for, and the consequences of acquiring, international legal personality. Moreover, it will address the way in which proponents of the various conceptions perceive the relationship between the international legal order and national legal order(s) and the role of the concept of international legal personality in that regard. Given that a primary aim of the book is to ascertain the position of the individual as a matter of international lex lata, particular attention is given to the two main conceptions of international legal personality, which both claim to be positivist.

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

scholarly journals Evolution of Individual Status in International Law

2018 ◽  
Vol 11 (4) ◽  
pp. 116
Author(s):  
Sayel Mofleh Momani ◽  
Maher Saleh Al-Jubouri ◽  
Noor Akef Al-Dabbas
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Status ◽  
Legal Person ◽  
Legal Personality ◽  
The Status ◽  
International Legal Order ◽  
The Individual ◽  
The Right ◽  
The Relationship

Each legal system has individuals who are addressed with its rules and that the legal rules of the legal system are designed to regulate the relationship between these individuals, and one individual can have legal personality in more than one legal system. The legal personality of these individuals is highlighted by the relationship between them and the legal system in which arranges for them rights and impose obligations on them. The rights and duties of a legal person are not the same; they vary from person to person within the same legal system, and vary from one legal system to another. With regard to the international legal order, it has its own international legal persons, foremost among them States. As for the individual, his legal status under general international law is still not clearly defined and is a subject of controversy among the jurists and interpreters of international law. We will present the position of international jurisprudence on the status of the individual in the first demand, the rules of international law that address individuals directly in a second demand, and the right to submit complaints and claims at the international level in a third demand.

scholarly journals INTERNATIONAL LEGAL ORDER: CURRENT DEVELOPMENTS OF LEGAL PHENOMENA (THEORETICAL ASPECTS)

2017 ◽  
pp. 79-87
Author(s):  
I. Zabara
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal Order ◽  
First Line ◽  
International Legal Order ◽  
Regional Order ◽  
Key Issues ◽  
National Transformation ◽  
The Relationship

The article deals with the theoretical aspects of the key issues of international legal order. The author describes the phenomenon of international legal order based on conceptual views of representatives of modern Ukrainian school of international law. The author examines and summarizes the international legal doctrinal views which define and determine the formation of modern international legal order. The author identifies several fundamental areas of international legal order. The first line shows the sectoral focus of research. The author notes that in this line of questions explored the legal basis of international legal order in certain areas of international law; conceptual aspects of formation of international legal order in a particular area of international law; the relationship between the principles of international law and the principles of international legal order; the role of international law and its subjects in the development of international law in certain areas. Within this framework have been identified and studied the principles of international legal order in the spatial (space, sea) branches of international law, and in some areas the actual activities of international law. The second trend reflects the regional focus of research of international legal order. The author notes that within the area studied questions of general principles of formation and development of regional order; especially the formation and development of some regional order; regional impact of law enforcement on the national transformation of individual states. Within this framework singled out themes, covering the European legal order, Asian international legal order, African legal order, American legal order and other types of international legal order.

7. International Organizations

2020 ◽  
pp. 140-155
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Legal Personality ◽  
Different Types ◽  
International Legal Order ◽  
International Legal Personality ◽  
Over Time

This chapter discusses the international legal personality of international organizations, illustrating the origins of the phenomenon, the evolution of such organizations over time, and the different types of organization. It goes on to consider the source and scope of their status and powers within the international legal order, inter alia, by focusing on the principle of speciality (or conferral) and the theory of implied powers. The chapter then deals with the problem of the recognition of immunities of international organizations and their personnel, as well as with the debate surrounding the rules which relate to their responsibility under international law.

scholarly journals Multinational (Transnational) Companies as Subjects of Public International Law // Multinacionalne (transnacionalne) kompanije kao subjekti međunarodnog javnog prava

2017 ◽  
Vol 7 (7) ◽  
pp. 110
Author(s):  
Boris Krivokapić
Keyword(s):  
International Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Multinational Companies ◽  
Legal Capacity ◽  
Legal Personality ◽  
Transnational Companies ◽  
The One ◽  
International Legal Personality

The paper deals with international legal status of multinational (transnational) companies. The first part gives an overview of this entities and the specifics of their role in the modern world.In the second part, the author deals with the elements of international legal personality of multinational (transnational) companies. Such as international legal regulation of the position of these entities, their specific rights and obligations under international law, international responsibility, process subjectivity before certain international judicial bodies and the special relationship (partnership) with international organizations. It should be added that not only that international law acknowledges their existence, but also multinational companies themselves at least in part influence the development of that law.In the concluding remarks the author notes that multinational (transnational) companies do not have all the elements of a full international personality, the one that is inherent to states. However, even if not complete their personality is beyond doubt. Although between them, depending on the case, there are major differences, there is no dispute that, from the perspective of international law, at least some multinational companies have the legal capacity (the ability to be the holder of a larger or smaller circle of rights and obligations established by international law), legal capacity (the ability to conclude international agreements, create international custom, etc.), tort capacity (the ability to provide for the legal bears responsibility for violating the norms of international law), process capability (active and passive legitimacy before some international courts), etc. In all likelihood, along with the expected further strengthening of the economic, but also political and every other power and role of the companies themselves, their international personality will also become more and more developed, At one point this will require global (universal) agreement which would precisely define rights, but, in particular, the duties and responsibilities of these entities.

4. International law and municipal law

2019 ◽  
pp. 78-102
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Common Source ◽  
National Regulation ◽  
Legal Rules ◽  
International Legal Order ◽  
Municipal Law ◽  
State Relations ◽  
The Relationship

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.

Carl Schmitt’s Critique of Kant

2012 ◽  
Vol 40 (6) ◽  
pp. 688-713 ◽  
Author(s):  
Seyla Benhabib
Keyword(s):  
World War I ◽  
International Law ◽  
International Norms ◽  
Legal Order ◽  
World War ◽  
Top Down ◽  
The Earth ◽  
International Legal Order ◽  
The Relationship

Carl Schmitt’s critique of liberalism has gained increasing influence in the last few decades. This article focuses on Schmitt’s analysis of international law in The Nomos of the Earth, in order to uncover the reasons for his appeal as a critic not only of liberalism but of American hegemonic aspirations as well. Schmitt saw the international legal order that developed after World War I, and particularly the “criminalization of aggressive war,” as a smokescreen to hide U.S. aspirations to world dominance. By focusing on Schmitt’s critique of Kant’s concept of the “unjust enemy,” the article shows the limits of Schmitt’s views and concludes that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be at times, this needs to be interpreted as one of mediation and not domination.

Part 2 The United Nations: What it is, 9 Powers

2017 ◽  
Author(s):  
Higgins Dame Rosalyn, DBE, QC ◽  
Webb Philippa ◽  
Akande Dapo ◽  
Sivakumaran Sandesh ◽  
Sloan James
Keyword(s):  
United Nations ◽  
International Law ◽  
Legal Entity ◽  
Legal Personality ◽  
Substantive Content ◽  
Domestic Jurisdiction ◽  
The United Nations ◽  
International Legal Personality ◽  
The Relationship ◽  
Domestic Law

This chapter examines the powers or competences of the United Nations as a separate legal entity. Its possession of legal personality, its specialized agencies, and some of the separate legal entities in the UN family are concepts that are related but distinct from the powers of these bodies. The possession of international legal personality means that these bodies have their own rights and duties, and powers vested in them in their own right. However, the possession of legal personality does not define the particular powers of the organization, nor does it mean that they have plenary competence under international law or in municipal legal systems. The chapter discusses the relationship to legal personality; nature and scope; purposes and principles of the organization; division of competence between principal organs and subsidiary organs; domestic jurisdiction limitation of Article 2(7); substantive content of powers internationally and in domestic law; consequences of ultra vires acts.

INTERNATIONAL LAW IN THE TURKISH LEGAL ORDER: TRANSNATIONAL JUDICIAL DIALOGUE AND THE TURKISH CONSTITUTIONAL COURT

2017 ◽  
Vol 26 (1) ◽  
pp. 41-62
Author(s):  
Ikboljon Qoraboyev ◽  
Emre Turkut
Keyword(s):  
International Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Political Forces ◽  
Turkish Literature ◽  
Contemporary Writing ◽  
Domestic Power ◽  
The Relationship

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

Paul Ricoeur and International Law: Beyond ‘The End of the Subject’. Towards a Reconceptualization of International Legal Personality

2007 ◽  
Vol 20 (1) ◽  
pp. 25-64 ◽  
Author(s):  
JANNE E. NIJMAN
Keyword(s):  
International Law ◽  
International Institutions ◽  
The Other ◽  
Legal Personality ◽  
Legal Subject ◽  
The Subject ◽  
The One ◽  
The Individual ◽  
International Legal Personality ◽  
Normative Aspect

The enquiry into international legal personality in the following article is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described and explained, in order to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international) legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law.

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