UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis
SOURCE MATERIALS
 Shaw, M International Law 5th Edition (2002) Cambridge University Press, Chapter 5
 Harris, DJ Cases & Materials on International Law 5th Edition (1998) Sweet &
Maxwell, Chapter 4.
 Dixon & Mc Corquodale R (2003). Cases and Materials on International Law, 4 ed
Chapter 5.
CASES
 Reparation for Injuries Suffered in the Service of the UN Case (Advisory Opinion, ICJ
Reports, 1949) (Harris p. 132)
 Legality of the Threat or use of Nuclear Weapons Opinion (WHO advisory Opinion)
ICJ Report 1996 66 (Dixon p 143)
 R v Bow Street Metropolitan Stipendiary Magistrate & others, ex parte Pinochet
Ugarte (no. 3) (Dixon p148)
TREATIES/CONVENTIONS & RESOLUTIONS
 1933 Montevideo Convention on the Rights & Duties of States art 1 (Dixon p133)
 1950 European Convention for the Protection of Human Rights & Fundamental
Freedoms art 25 (Dixon p146)
 1966 International Covenant on Civil & Political Rights - Optional protocol art 1 & 2
(Dixon p 147)
 1998 Rome Statute of the International Criminal Court (Dixon p 150)
LECTURE OUTLINE
1.
What is International Legal Personality?
 In all domestic legal systems, before an individual / an entity of any sort (company/trust
etc) can sue or be sued it needs to be recognised as a ‘legal person’ possessing capacity
to enjoy rights and be subject to certain duties
 Legal personality deals with concepts such as status, capacity & competence – Can an
entity enter into legal relations? Can an entity possess rights & obligations? Can an
entity interact on the international plane? And so on…
 Under international law there are precise rules which determine the capacity of the
entity in question
 Legal personality under international law requires participation plus some form of
community acceptance (inferred from practice)
 Once an entity is clothed with legal personality under international law it will then
enjoy:
o Capacity to make treaties
o Capacity to make claims for breaches of international law
o The right to claim privileges & immunities under international law
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UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis
There is a wide range of participants in contemporary international law: states,
international organisations (like the UN) regional organisations (like the EU) NGOs
(like Amnesty International), and public companies, private companies & individuals.
 Not all of these entities will constitute legal persons under international law.
 Some areas of international law (eg human rights/ international economic law) have
been instrumental in encouraging increased participation and personality in
international law
2.
States
 It is a fact that international law is still predominantly made and implemented by states.
o Only states may be members of the United Nations,
o Only states are entitled to call upon the UN Security Council if there is a threat to
world peace and security,
o Only states may appear before the International Court of Justice in contentious
proceedings.
o The largest number of treaties are created by states,
o International laws and rules have their genesis in the consent of states.
 This state-centric nature of international law is a product of its history. We saw under
our brief discussion of the development of international law that with the collapse of
feudalism, the Renaissance and the Reformation resulted in the emergence of 'states'
that existed separately from the individuals in them and running them. The emergence
of the state as a distinct territorial entity allowed for the creation of international law in
the traditional sense: a law between nations.
 Moreover, this emergence of independent states brought with it state sovereignty. Due
to the strong feeling of nationalism among the peoples of different states, the idea arose
that what went on in the state was the sole business of that state, and that the state was
master of its own territory and people. In other words, within the border of any state,
the state was sovereign.
 Furthermore, the idea that international law arose from the consent of states became
settled. This classical notion that international law emanates from the will of states was
best expressed in the Lotus Case (France v Turkey) 1927 PCIL Rep Ser A no 10 where
the Court stated that:
'The rules of international law binding upon states...emanate from their own free
will as expressed in conventions or by usages generally accepted as expressing
principles of law.'
 International law has traditionally been state-centric in its nature, so much so, that a
leading international lawyer once wrote that '[s]tates only and exclusively are the
subjects of international law'1
 In order to be clothed with ‘statehood’ (and thus entitled to all the benefits of full legal
personality) various requirements must be met.
1933 Montevideo Convention on the Rights & Duties of States2 art 1:

1
2
Oppenheim International Law 1905
This is a treaty that was concluded by a number of South American States.
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UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis
A permanent population (no matter how large/small);
A defined territory (not necessarily settled boundaries);
Government (or central authority) and
Capacity to enter into relations with other states (most important
requirement – shows true independence and recognition by other states); see
in particular here the problem of the TBVC states during the apartheid era.
 Read further in Shaw p177-189 for a discussion of these criteria or Dixon & Mc
Corquordale p 135-137; see also Dugard, pp 86-88.
 What are we to make of territorial entities like Quebec (in Canada) the Gaza Strip
& West bank area (in the Middle East), Montenegro (In Yugoslavia) – these areas
claim autonomy but do they have separate international legal personality akin to
that of a real state?
 International law is still state-centric in its design, make-up and organisation, but it is
under pressure to show sensitivity to other players such as international organisations
and individuals.
3.
Individuals
 Because states arose as separate entities, international law was preoccupied with rules
of co-operation between these states in the fields of trade, war, and diplomacy. Little
attention was paid to the individuals who were plying their trade and dying in these
wars.
 Largely due to the world's horror at the events of the World Wars, the international
community of states resolved to improve the lot of individuals. A large number of
international human rights instruments were drawn up and as a result, the individual is
becoming increasingly important as a participant (the term 'subject' might be too
strong) in international law.
 For an early history, see Lauterpacht's report on the status of the individual in
International Law, in Harris 140 – 142
 The flurry of human rights treaties that have emerged since WWII have provided for
individuals to have rights directly and have in some instances even enabled individuals
to have direct access to some international courts.
o ECHR art 25
o ICCPR Optional protocol art 1 & 2
 International law has also moved in the direction of providing for criminal
responsibility for international crimes committed by individuals (who might then be
tried by an international criminal tribunal such as the ICTY, ICTR, or the ICC)
o Pinochet case
 Read further in Shaw p 234 -241
 Notwithstanding the developments sketched above, it must be realised that the
international community is still primarily geared towards the international community
of states, represented by governments.
4.
International Organisations
o
o
o
o
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UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis
An international organisation is an organisation made up of states (or other
international organisations) rather than individuals.
 The organisation is created by way of a founding document (constitutive instrument)
and has the status of being a subject of international law.
 As the need for universal control and the needs of commerce became more pressing,
states opted to create organisations which could deal with various issues that were of
universal concern. International organisations were born which attempted to deal with
issues on which a number of states could agree: eg peace (UN), international labour
(ILO).
 On a regional level, similar regional organisations were created by states intent on
solving regional issues: eg the European Union.
 International organisations (eg Amnesty International, the World Bank, the
International Monetary Fund, the United Nations), all exert considerable influence on
the international stage.
 The most famous example of an organisation being accorded this status is that of the
UN.
 In the Reparation for Injuries Suffered in the Service of the UN Case, a UN official
(Count Benedito), while performing his official duties, was killed in Jerusalem by
Palestinian terrorists. Israel had been responsible for his safety while he performed
these duties, and the UN asked the ICJ whether the UN could take action against Israel
for its failure to comply with its duty of protecting UN diplomats. The question that the
Court had to answer therefore was whether the UN had objective personality on the
international plane such that it could bring the claim. It was held:
'The Court's opinion is that fifty states (those who participated in drafting the UN
Charter) representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into being
an entity possessing objective international personality, and not personality
recognised by them alone...'. Israel paid reparation to the UN.
 See Legality of the Threat or use of Nuclear Weapons Opinion (WHO advisory
Opinion of the ICJ) – what role does an organisation’s constitutive instrument play in
determining the extent of its legal personality?
5.
Other Entities?
 Holy See & Vatican city
o See Shaw p 218-219
 National liberation movements
o Their ability to claim international legal personality is tied to the question of
whether they may legitimately claim to be seeking self-determination (ie self-rule)
o Read further in Shaw p220-223
 International Public companies (eg INTELSAT)

,
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UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis


o Multinational in nature, often subject to an agreement for co-operation between
government and private enterprises
Transnational corporations
o Private business organizations with multi-national spread
o International law still seeking guidelines as to how to deal with these entities
International tribunals (ICC)
o See Rome Statute art 1 & 4
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UNIVERSITY OF KWAZULU-NATAL
FACULTY OF LAW
INTERNATIONAL LAW 2007(1)
TOPIC: INTERNATIONAL LEGAL PERSONALITY
Professor Max du Plessis
LEARNING OUTCOMES
What is International Legal Personality?
 Discuss why international legal personality is significant
 Explain what implications having/ not having legal personality might have for a given
entity
States
 Explain why states are still the predominant holders of international legal personality
 Discuss and apply the criteria for determining statehood as set out in the 1933
Montevideo Convention on the Rights & Duties of States Individuals
Individuals
 Discuss the recent developments in international law in so far as recognition of
individuals as having legal personality is concerned
International Organisations
 Explain how one established the legal personality of an international organization
 Discuss, using case law, how this practice has been applied by international courts
Other Entities
 Explain & discuss the position of other entities in so far as their international legal
personality is concerned
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