Rent 9780521768450 | Legal Personality in International Law

Summary Table of Contents Author Biography

As one of the fundamental concepts of international law, legal personality is relevant in specialized fields as diverse as investment protection law, human rights law and the law of international institutions. Combining theory and practice, this analysis of legal personality speaks to generalists and specialists, scholars and practitioners.

"Several current international legal issues are related to the concept of legal personality, including the determination of international rights and duties of non-state actors a... MOREnd the legal capacities of transnational institutions. When addressing these issues, different understandings of legal personality are employed. These concepts consider different entities to be international persons, state different criteria for becoming one and attach different consequences to being one. Roland Portmann systematizes the different positions on international personality by spelling out the assumptions on which they rest and examining how they were substantiated in legal practice. He puts forward the argument that positions on international personality which strongly emphasize the role of states or effective actors rely on assumptions that have been discarded in present international law. The principal argument is that international law has to be conceived as an open system, wherein there is no presumption for or against certain entities enjoying international personality"--"Legal personality is a concept present in international law. It is principally employed to distinguish between those social entities relevant to the international legal system and those excluded from it. There is almost universal agreement that states are international persons"--

This analysis of legal personality in international law combines theory and practical material.

Several international legal issues are related to the concept of legal personality, including the determination of international rights and duties of non-state actors and the legal capacities of transnational institutions. When addressing these issues, different understandings of legal personality are employed. These concepts consider different entities to be international persons, state different criteria for becoming one and attach different consequences to being one. In this 2010 book, Roland Portmann systematizes the different positions on international personality by spelling out the assumptions on which they rest and examining how they were substantiated in legal practice. He puts forward the argument that positions on international personality which strongly emphasize the role of states or effective actors rely on assumptions that have been discarded in present international law. The principal argument is that international law has to be conceived as an open system, wherein there is no presumption for or against certain entities enjoying international personality.

Foreword	p. xiii
Acknowledgments	p. xv
Table of Cases	p. xvii
List of Abbreviations	p. xxiii
Introduction	p. 1
The concept of personality in international law	p. 5
Notion	p. 7
Conceptions	p. 13
Significance	p. 19
The conceptions of personality in international law: their origins and legal manifestations	... MOREp. 29
Early doctrine and practice	p. 31
Before Vattel: international law as an all-embracing web of laws	p. 32
Vattel: international law as an inter-state law	p. 35
After Vattel: pragmatic law-application, unresolved law-creation	p. 38
The states-only conception	p. 42
Basic propositions	p. 43
Origins of the basic propositions	p. 47
The problem of German (and Italian) statehood	p. 48
The state as a historical fact absorbing individuals	p. 52
Law as an expression of state will	p. 59
Main manifestations in legal practice	p. 64
The Mavrommatis-formula	p. 65
The Jurisdiction of the Courts of Danzig Advisory Opinion	p. 68
The Serbian Loans statement on state contracts	p. 73
The direct effect of European Community law	p. 77
The recognition conception	p. 80
Basic propositions	p. 80
Origins of the basic propositions	p. 84
Germany and Italy transformed	p. 86
The framework of the states-only conception confirmed	p. 90
Supplementation with a sociological perspective	p. 93
Main manifestations in legal practice	p. 99
The Reparation for Injuries Advisory Opinion	p. 99
The international legal status of the ICRC	p. 110
The Holy See and the Order of Malta as international persons	p. 115
The Texaco/Calasiatic v. Libya award	p. 119
The individualistic conception	p. 126
Basic propositions	p. 128
Origins of the basic propositions	p. 133
Interwar Europe	p. 134
The state as a functional entity shaped by individuals	p. 139
Constitutional principles as sources of law	p. 147
Main manifestations in legal practice	p. 154
The Nuremberg judgment and international criminal law	p. 154
Civil responsibility of private parties for ius cogens violations	p. 162
International human rights law in the ECHR	p. 167
The formal conception	p. 173
Basic propositions	p. 173
Origins of the basic propositions	p. 177
Devolution of empire and scientific method	p. 177
The normative view of the state	p. 183
Law as a formally complete system of positive norms	p. 191
Main manifestations in legal practice	p. 197
The ICJ's decision in LaGrand and individual treaty rights	p. 197
The effect of Article 42 ICSID Convention (Amco v. Indonesia)	p. 204
The actor conception	p. 208
Basic propositions	p. 210
Origins of the basic propositions	p. 213
American realism	p. 214
The rule-sceptic view of law	p. 217
The reconciliation of the normative and the actual	p. 223
Main manifestations in legal practice	p. 228
The Bank for International Settlements arbitration	p. 228
The International Tin Council cases and beyond	p. 233
The award in Sandline v. Papua New Guinea	p. 239
A framework for personality in international law	p. 243
Appraisal of the conceptions and their assumptions	p. 245
Recapitulation	p. 245
Evaluation	p. 248
The state: fact vs. legal status	p. 248
Individual freedom: inside vs. outside the state	p. 254
Particular vs. general international law	p. 257
Effective action vs. principled justification	p. 264
Conclusion	p. 268
An individualistic and formal frame of reference	p. 271
Basic principles	p. 271
Implications for particular legal issues	p. 277
Conclusion	p. 282
Bibliography	p. 284
Index	p. 311
Table of Contents provided by Ingram. All Rights Reserved.

Roland Portmann is a scientific collaborator at the Swiss Ministry of Foreign Affairs, Directorate of international Law, Berne, and a lecturer in Public International Law at the University of St Gallen, Switzerland.

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