scholarly journals The Individual in International Law: ‘Object’ versus ‘Subject

2019 ◽  
Vol 8 (1) ◽  
pp. 132
Author(s):  
Solomon E. Salako
Keyword(s):  
International Law ◽  
Criminal Liability ◽  
Vienna Convention ◽  
International Human Rights Law ◽  
Legal Personality ◽  
Investment Protection ◽  
The Status ◽  
Municipal Law ◽  
The Individual ◽  
International Legal Personality

There is uncertainty about the status of the individual in international law. The traditional positivist doctrine of international law is that States are the sole subjects of international law and that the individual is the object. The contemporary approach is that the individual is an original subject of international law and the owner of international individual rights. This approach relies for its justification on areas of international law such as investment protection treaties, intellectual property treaties, international human rights law, individual criminal liability in international law and Vienna Convention on Consular Relations where the individual has been brought into contact with international law. The objects of this article are: (i) to assess critically the various areas where the individual has been brought into contact with international law with a view to showing that the individual is not a full subject of international law; and (ii) to show that insofar as the individual possesses a limited locus standi in international law and a limited array of rights, that is, limited legal capacity, the proffered existence of an international legal personality of the individual is not only superfluous but also confuses international legal personality which involves the capacity to perform legal acts in the international sphere with legal personality in municipal law.

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.

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.

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.

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.

Another Brick in the Wall

2017 ◽  
Vol 14 (2) ◽  
pp. 414-429 ◽  
Author(s):  
Jasna Arsić-Đapo
Keyword(s):  
International Law ◽  
International Organization ◽  
Legal Personality ◽  
The Status ◽  
The Republic ◽  
International Legal Personality ◽  
Political Decisions

The origins of the osce began as a political conference established by the 1975 Helsinki Accords, rather than a treaty-based international organization. Through political decisions it has evolved in a fragmented way, structurally and legally, which has resulted in a decades-long debate over its international legal personality and its status as an ‘fully-fledged’ international organization. In that light, the June 2017 Arrangement between the osce and the Republic of Poland on the Status of the osce in the Republic of Poland, as well as the 2017 Agreement between the Republic of Austria and the osce regarding the Headquarters of the osce , which were concluded as treaties, demonstrate recognition, by those two states, of the osce as a subject of international law with treaty-making capacity. This suggests that the osce may be acquiring international legal personality much in the same way as states achieve statehood—element by element and recognition state by state.

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

2017 ◽  
Vol 18 (5) ◽  
pp. 1163-1182 ◽  
Author(s):  
Ukri Soirila
Keyword(s):  
International Law ◽  
Recent Work ◽  
Theoretical Framework ◽  
The State ◽  
Human Freedom ◽  
Recent Attempt ◽  
Legal Personality ◽  
The Individual ◽  
International Legal Personality ◽  
Domestic Law

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.

Book Reviews

2019 ◽  
Vol 61 (1) ◽  
pp. 575-605
Keyword(s):  
International Law ◽  
Legal Framework ◽  
Council Of Europe ◽  
Legal Personality ◽  
Oxford University ◽  
International Criminal Tribunals ◽  
The Individual ◽  
International Legal Personality ◽  
Oxford University Press

Edward Chukwuemeke Okeke: Jurisdictional Immunities of States and International Organizations, Oxford University Press, Oxford 2018 (Review by Jürgen Bröhmer) Benoit Mayer: The International Law on Climate Change, Cambridge University Press, Cambridge 2018 (Review by Kati Kulovesi) Henri Decoeur: Confronting the Shadow State: An International Law Perspective on State Organized Crime, Oxford University Press, Oxford 2018 (Review by Andreas Schloenhardt) Leonardo Borlini: Il Consiglio di sicurezza e gli individui (The Security Council and Individuals), Giuffrè Editore, Milan 2018 (Review by Robert Kolb) Birgit Spiesshofer: Responsible Enterprise: The Emergence of a Global Economic Order, C. H.Beck/Hart/Nomos, München/Oxford/Baden-Baden 2018 (Review by Stefan Hobe) Astrid Kjeldgaard-Pedersen: The International Legal Personality of the Individual, Oxford University Press, Oxford 2018 (Review by Tom Sparks) James Harrison: Saving the Oceans Through Law: The International Legal Framework for the Protection of Marine Environment, Oxford University Press, Oxford 2017 (Review by Bleuenn Gaëlle Guilloux) Paolo Lobba and Triestino Mariniello (eds.): Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals, Brill Nijhoff, Leiden/Boston 2017 (Review by Sarah Imani) Stefanie Schmahl and Marten Breuer (eds.): The Council of Europe – Its Law and Policies. Oxford University Press, Oxford 2017 (Review by Thomas Hoppe)

Evaluative Framework: Legal Personality under International Law

2017 ◽  
Author(s):  
Katharine Fortin
Keyword(s):  
International Law ◽  
Armed Groups ◽  
Historical Account ◽  
Legal Personality ◽  
International Legal Personality

This chapter presents and explains the evaluative framework that the study employs when analysing armed groups and legal personality. In doing so, the chapter provides a short historical account of the manner in which international legal personality has been understood and theorized and explains how the evaluative framework will be utilized in the subsequent chapters.

Conclusion

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
International Norms ◽  
Individual Rights ◽  
A Posteriori ◽  
Legal Personality ◽  
International Legal Personality

Chapter 9 reiterates and reflects on the overall conclusions of the previous chapters: (1) that positive international law has consistently supported Kelsen’s ‘a posteriori’ conception of international legal personality; (2) that, consequently, the international legal personality of any entity is solely a matter of (presumption-free) interpretation of international norms; and (3) that we must abandon both the widespread presumption against direct individual rights and obligations (in accordance with the ‘modified States-only’ conception of international legal personality) and the use of the orthodox ‘States-only’ conception of international legal personality as means to distinguish between international law and national law.

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