International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2014 Issue
 

General Principles of International Law

 

International Legal Personality

Carolyn A. Dubay

By: Carolyn A. Dubay, Associate Editor, International Judicial Monitor and Assistant Professor of Law, Charlotte Law School

In June 2014, the United States Supreme Court in Burwell v. Hobby Lobby Stores decided that closely held, for-profit corporations are “persons” entitled to pursue religious freedom claims in American courts.  Beyond the controversy in the United States about the scope and implications of the Hobby Lobby decision, the issue of what entities are considered “juridical persons” has been a subject of much debate in international law for a very long time.  In the parlance of international law, whether an entity or person has rights and obligations under international law depends on whether they have recognized “international legal personality.”  This inquiry is far more complicated than similar decisions at the domestic level, where legislatures and courts interpreting the law can decide the subjects of domestic legal protections.   This is precisely what happened in Hobby Lobby, where the Supreme Court found that closely held, for-profit corporations were among the subjects of the federal Religious Freedom Restoration Act, which allows “persons” to raise religious objections to compliance with generally applicable federal laws.   This ruling gives such corporations “legal personality” or “juridical personhood” for purposes of the Religious Freedom Restoration Act. 

As in the domestic context, in international law, “legal personality” depends on defining the “subjects” of international law – that is, those persons or entities who gain rights and accept obligations in the international legal framework.   The notion of the proper subjects of international law has evolved over the centuries along the same trajectory as the concept of international law itself.  Because international law historically governed the rights of obligations of states alone (international law being a product of state-to-state negotiation on rules to govern their interaction in the world), only states possessed international legal personality. This quasi-democratic notion rested on the view that states as sovereigns consented to be governed by and to abide by international legal obligations, and therefore they were the subjects of international law.  

In the 20th century, the concept of legal personality in the international context changed with the development of international governmental organizations in the UN system.   Indeed, the concept of who confers international legal personality has also changed with the creation of international courts and tribunals. For example, in the 1949 Reparations Case, the International Court of Justice (ICJ) held that the United Nations, as an international organization, possessed an international legal personality, and with that, also had rights and duties arising under international law, such as the capacity to bring an international claim before a tribunal.  In reaching this conclusion, because the text of the UN Charter did not affirmatively address this issue, the ICJ found that giving the UN international legal personality was critical to fullfilling the mandate of the international community.  The ICJ also recognized the evolving nature of international legal personality: 

  

The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.

In the same time frame, as international organizations were deemed to be capable of possessing international legal personality, the Nuremberg and Tokyo war crimes tribunals established after World War II also recognized that individuals can be the subjects of international law, and thus have international legal personality.   When the Rome Statute entered into force in 2002 and brought to life the International Criminal Court, the scope of international legal personality expanded again to reach indivduals guilty of violations of international criminal law (such as prohibitions on genocide and crimes against humanity).  

At the same time as individuals gained international legal personality to be prosecuted for violations of international criminal law, they also gained juridical capcity to petition international tributionals for relief from violations of international law.  Traditionally, the government where the individual held nationality would alone assert such rights, such as through initiating a proceeding at the International Court of Justice.  For example, in the ICJ‘s Avena decision, in a case initiated by Mexico, the World Court found that the United States had violated the rights of a number of Mexican nationals under the Vienna Convention on Consular Relations.  With the advent of international tribunals that accept indivdiual petitions, such as the European Court of Human Rights, individuals have steadily been gaining international legal personality in a number of international contexts.

An emerging and debated issue in international law is whether corporations possess international legal personality.  As the United States grapples with recent Supreme Court decisions giving legal personality to corporations to assert fundamental individual rights, the international community too is debating whether and to what extent multinational corporations are subjects of international law to be held accountable for breach of international obligations, or entitled to assert rights individually.   For now, the answer seems to relate back to the ICJ’s admonition in the Reparations Case that the recognition of international legal personality is “influenced by the requirements of international life.”  With the emergence of the global marketplace and the importance of international trade to development, the demands of international life will surely influence the contours of this debate in the future.

For a fuller exploration of international legal personality, see Roland Portmann, Legal Personality in International Law (Cambridge Studies in International and Comparative Law, November 2013).

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with assistance from the American Society of International Law.

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