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11 - An individualistic and formal frame of reference

Published online by Cambridge University Press:  05 October 2010

Roland Portmann
Roland Portmann
Affiliation:
Swiss Ministry of Foreign Affairs and Universität St Gallen, Switzerland
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Summary

A frame of reference for personality in international law must combine principles of the individualistic and the formal conceptions. The two are historically and intellectually closely related and converge in their criticism of traditional views of statehood, the role of individuals, and the sources of law. However, their concrete focus varies. The individualistic conception is almost exclusively concerned with the role of individuals and of fundamental legal principles in international law, thereby neglecting to provide an overall framework for international personality. The formal conception, on the other hand, offers a complete analysis of personality in the international legal order based on a meta-legal basic norm, but fails to take true account of the now accepted category of peremptory principles. A combination of the two conceptions can temper their respective shortcomings. Accordingly, the general approach of the formal conception has to be grounded in fundamental legal principles. These call for special considerations with regard to their personal scope.

Such a framework does not state which entities actually are international persons. This is a matter to be established in the concrete circumstances of a legal issue. What the frame of reference offers are basic principles according to which this task can consistently be fulfilled in a variety of legal situations. Hence, depending on the context, very different entities have international legal status.

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Legal Personality in International Law , pp. 271 - 281
Publisher: Cambridge University Press
Print publication year: 2010

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References

LaGrand Case (Germany v. United States), Judgment, 2001 ICJ Reports 466, para. 77
Prosecutor v. Simic et al. (Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness), ICTY Trial Chamber 27 July 1999, esp. para. 46
Prosecutor v. Furundzija (Judgment), ICTY Trial Chamber Case IT-95-17/1-T, 10 December 1998, para. 155
Al-Adsani v. United Kingdom (Grand Chamber, Judgment), ECHR Reports 2001-XI, paras 59–61.
Prosecutor v. Tadic (Jurisdiction), ICTY Trial Chamber Case IT-94-1, 10 August 1995, para. 70
Kadic v. Karadzic II (US Court of Appeals, Second Circuit, 1995), 104 ILR 135, at 153.
Presbyterian Church of Sudan v. Talisman Energy, Inc. (US District Court for the Southern District of New York, 2003), 244 F.Supp.2d 289, at 319.
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ 26 February 2007, paras 170–9
Reparation for Injuries suffered in the service of the United Nations (Advisory Opinion), 1949 ICJ Reports 174, at 177)
LaGrand Case (Germany v. United States), Judgment, 2001 ICJ Reports 466, para. 77
Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 ICJ Reports 12, para. 40
Jurisdiction of the Courts of Danzig (Advisory Opinion), 1928 PCIJ Series B No. 15, at 17–18.
Contra: Maclaine Watson & Company Limited v. Council and Commission of the European Communities (Advocate-General's Opinion), 1990 ECR I-01797, paras 134–6.
Reparation for Injuries suffered in the service of the United Nations (Advisory Opinion), 1949 ICJ Reports 174, esp. at 177.
Maclaine Watson & Co Ltd v. Department of Trade and Industry; J. H. Rayner (Mincing Lane) v. Department of Trade and Industry and Others (England, Court of Appeal, 1988), 80 ILR 49, at 109 (Kerr, LJ).
Prosecutor v. Simic et al. (Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness), ICTY Trial Chamber 27 July 1999, esp. para. 46
Presbyterian Church of Sudan v. Talisman Energy, Inc. (US District Court for the Southern District of New York, 2003), 244 F.Supp.2d 289, at 319.
Kadic v. Karadzic II (US Court of Appeals, Second Circuit, 1995) (Chief Judge Newman), 104 ILR 135, at 153.
Case Concerning the Payments of Various Serbian Loans Issued in France (Judgment), 1929 PCIJ Series A No. 20, at 41–2.
Contra: Sandline International Inc. v. Papua New Guinea (Interim Award, 1998), 117 ILR 552, para. 10.1.
Contra: Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Award on the Merits, Sole Arbitrator Dupuy, 1977), 53 ILR 422, paras 47–8.
Amco Asia Corporation and Others v. The Republic of Indonesia (Resubmitted Case: Award on the Merits, 1990), 1 ICSID Reports 569, para. 40.

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