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Astrid Kjeldgaard-pedersen - One of the best experts on this subject based on the ideXlab platform.
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Global Constitutionalism and the International Legal Personality of the Individual
Netherlands International Law Review, 2019Co-Authors: Astrid Kjeldgaard-pedersenAbstract:It is a widespread notion, perhaps even a truism, among international Legal scholars that international law went from a pre-World War II ‘States-only’ framework to the recognition of the international Legal Personality of individuals during the second half of the 20th century. This changed role of the individual and other non-State actors in the international Legal system is a common starting point for discussions among scholars engaging with global constitutionalism. International law, so the popular narrative goes, has developed from ‘the law between States’ to ‘the law within States’, and with this development follows a constitutionalization of the international Legal system. The present article challenges the basic premise of this account. It argues that the ‘States-only’ conception of international Legal Personality is mistakenly treated as though it provides an accurate depiction of the historical role played by individuals in positive international law, when in fact it was never more than a scholarly invention of 19th century orthodox positivists. Rather, the question of individual rights and duties under international law has always been empirical in the sense that it depends exclusively on the content of international Legal norms. The article illustrates how this disconnect between theory and practice leads international constitutionalist scholars to exaggerate the impact of the increased number of international Legal norms governing individuals on the overall structure of the international Legal system as well as on its relationship with national Legal systems.
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Oxford Scholarship Online - International Legal Personality as a Theoretical Construct
Oxford Scholarship Online, 2018Co-Authors: Astrid Kjeldgaard-pedersenAbstract: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.
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Oxford Scholarship Online - The Legal Personality of Individuals in International Economic Law
Oxford Scholarship Online, 2018Co-Authors: Astrid Kjeldgaard-pedersenAbstract:Under the umbrella of international economic law, Chapter 8 begins in Section 8.1 by examining the relationship between the concept of international Legal Personality and positive international norms pertaining to ‘State contracts’. Section 8.2 then studies the field of international investment law, which (unlike, for instance, international trade law) is characterized by a considerable degree of involvement of the individual investor. Section 8.3 goes on to discuss some pertinent aspects of EU law in relation to the international Legal Personality of individuals. EU law is not commonly regarded as a part of international (economic) law, but rather as ‘a new Legal order’ of its own. EU law is nevertheless included here as the point is to challenge the popular conception of EU law as separate from the international Legal system, and to illustrate that this notion rests, at least in part, on the orthodox ‘States-only’ conception of international Legal Personality.
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The International Legal Personality of the Individual
Oxford Scholarship Online, 2018Co-Authors: Astrid Kjeldgaard-pedersenAbstract: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.
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Oxford Scholarship Online - The Legal Personality of Individuals in International Criminal Law
Oxford Scholarship Online, 2018Co-Authors: Astrid Kjeldgaard-pedersenAbstract:No one seriously disputes that the individual is a subject of international criminal law. But it is much less certain whether international crimes a priori entail individual responsibility, which would be in line with the ‘individualistic’ conception of international Legal Personality, or whether the responsibility arises a posteriori consistent with the Kelsenian approach. Following a brief account of some historical antecedents, Chapter6 provides a detailed examination of the pivotal post-Second World War trials and the subsequent development of individual responsibility for international crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Moreover, the chapter shows that the common practice of categorizing criminal courts as either international, internationalized, or domestic according to the ‘involvement of the international community’ ultimately rests on the orthodox ‘States-only’ conception of international Legal Personality.
Hao Duy Phan - One of the best experts on this subject based on the ideXlab platform.
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The Association of Southeast Asian Nations: International Legal Personality and Its Treaty-Making Power
International Organizations Law Review, 2016Co-Authors: Hao Duy PhanAbstract:This article investigates how ASEAN acquires its international Legal Personality and exercises its treaty-making capacity. It, first, traces the evolution of ASEAN’s international Legal Personality and treaty-making practice in three successive periods in ASEAN’s pre-Charter development from 1967 until 2007. It then examines the formal conferral of ASEAN’s Legal Personality in 2007; analyses the content and implications of the 2011 Rules of Procedure for the Conclusion of International Agreements by ASEAN; and examines ASEAN’s treaty-making practice in the post-Charter era. It argues that ASEAN had a limited international Legal Personality and treaty-making capacity even prior to the adoption of the ASEAN Charter in 2007. While the Charter represents a critical juncture in ASEAN’s Legal evolution, ASEAN’s exercise of its international Legal Personality and treaty-making capacity since then remains limited due to many institutional and procedural constraints.
Catherine Quidenus - One of the best experts on this subject based on the ideXlab platform.
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Consolidating the International Legal Personality of the osce: A Headquarters Agreement with Austria
International Organizations Law Review, 2017Co-Authors: Helmut Tichy, Catherine QuidenusAbstract:On 14 June 2017, a Headquarters Agreement between Austria and the Organization for Security and Co-operation in Europe (‘ OSCE ’) was signed. This is remarkable in that the OSCE , unlike other international organisations, lacks a generally acknowledged international Legal status. This View from Practice charts the history of the multilateral efforts to grant a clear Legal status to the OSCE , the recognition by Austria that it considers the OSCE as having obtained international Legal Personality on the basis of customary international law by offering to conclude a Headquarters Agreement, and the contents of this Agreement.
Rashid Matkurbanov Joldasbayevich - One of the best experts on this subject based on the ideXlab platform.
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historical aspects of the development of the institution of Legal Personality of citizens of the republic of uzbekistan
International Journal of Research, 2019Co-Authors: Rashid Matkurbanov JoldasbayevichAbstract:This article deals with the issues related to historical aspects of the development of the institution of Legal Personality of citizens of the Republic of Uzbekistan under Muslim and Roman law in pre-revolutionary, Soviet, as well as present periods of development.
Jean D'aspremont - One of the best experts on this subject based on the ideXlab platform.
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Abuse of the Legal Personality of International Organizations and the Responsibility of Member States
International Organizations Law Review, 2007Co-Authors: Jean D'aspremontAbstract:It is classically contended that when an international organization endowed with international Legal Personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international Legal Personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international Legal Personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the Legal Personality of an international organization, which can bolster the contemporary move away from international institutionalism.
