International Legal Personality

     International law is based on rules made by States for States. States are sovereign and equal in their relations and can therefore voluntarily create or accept to abide by legally binding rules, usually in the form of a treaty or convention. By signing and ratifying treaties, states willingly enter into legal, contractual relationships with other state parties to a particular treaty, which is binding and subject to reciprocal effects of non-compliance. That is, international legal personality gives an entity legal rights and duties which can be enforced before an international or municipal tribunal. The capacity of states to enter into such relationships with other states and to create legally binding rules for themselves is a result of states’ international legal personality, a privilege attributed to all sovereign states.

     States – defined again as possessing a permanent population, a defined territory, a government and, the capacity to enter into relations with other states – are international law in the sense that “international law” itself requires bilateral or multilateral engagement in rulemaking.¹ Martin Rochester declares, “…states – or, more precisely, their national governments and foreign policy establishments – exercise the most actual influence over what happens in world affairs.”² States possess a legal personality that can only be stripped if and when a higher government (i.e. a world government) supersedes its dominance. In conventional international law, States enter into written and explicit contracts – treaties – with one another with regard to a variety of issues affecting all participating parties. Treaties are founded upon consent of States and require each State to give a little to achieve a common goal. Mark Janis contends “…States by virtue of their sovereignty may authoritatively regulate not only their internal affairs, but also their international relations.”³ This concept is exclusive to States, setting it apart from other actors in the international system.

     While State engagement is generally consensual, they are obligated to not only uphold the means of treaties and/or agreements voluntarily entered, but also to abide by the broader set of customary international laws in existence. “Even though a State is not a party to a treaty, it may occasionally be bound by the treaty’s terms.”⁴ Rochester explains, “…obligation arises not out of higher principles but deliberate legislation (called “positive law”); once a rule of law is promulgated, everyone in the society is expected to abide by it, regardless of whether everyone approves of it.”⁵ Additionally, the Vienna Convention – a codification of existing law of treaties – “…constitutes a useful depository of international legal rules even for countries, like the United States, which are not yet parties to it.”⁶ Obligations of the state also include ensuring that results of treaties and/or agreements are implemented into their municipal law. Furthermore, states are “…obliged to refrain from acts which would defeat [a treaty’s] object or purpose.”⁷ It is easy to see that States are held to certain obligations to ensure the successful inner-workings for the international law system.

     To re-iterate, one of the most decisive criterion for statehood is the capacity to enter into international relations – this distinguishes it from non-national entities, or non-federal states. The legal personality of the State is the recognition that States are only entities in the international system that have (in and of themselves) the following:

• Law-making power,
• The legal ability to enter into treaties, bilateral and multilateral agreements,
• Declare war on other nations or can terminate wars with other nations.
• States can punish individuals and extradite them.

     The only way this legal personality could be removed is by having a higher power within the international system, such as a world government that would and could, supersede the State’s dominance within the international system. Clearly, there is no such centralized authority in the international realm. At the same time, while only sovereign States were considered to have international legal personality as early as the start of the 18th century, and the only entities with capacity to have rights and obligations under international law, the advent of globalization has expanded international law to include individuals, International Organizations (IOs) and other non-state actors (NSAs).⁸ Indeed, new players emerged onto the international area and alongside new technology and greater global threats; it became increasingly clear that state cooperation was necessary. Shifts in international relations greatly influenced the development of international law.

Statehood, Visualized – International Law Animation

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1. Mark W. Janis, International Law, (Wolters Kluwer), 2009
2. Martin Rochester, Between Peril and Promise: The Politics of International Law, (Sage), 2012
3. Janis, op cit, 2009
4. Ibid
5. Rochester, op cit, 2012
6. Janis, op cit, 2012
7. Ibid
8. International Legal Personality, Human Right Education Project, Icelandic Human Rights Centre,
   http://www.humanrights.is/.../international-legal-personality