A Primer on International Legal Personality

An entity has international legal personality when it acquires rights and obligations under international law, combined with ‘some form of community acceptance.’1 Entities that possess international legal personality are diverse,2 and the nature of the personality varies according to the type of entity concerned.3 Some entities, chiefly sovereign states, automatically acquire rights, obligations and international legal personality upon coming into being,4 while other entities will not have personality until rights and obligations are conferred upon them. The former type of international legal personality is known as ‘objective personality’, and because it entitles an entity to be accepted by all other international persons it can be difficult to obtain.5 The latter kind, known as ‘qualified personality’, is easier to obtain, but other international states are not bound to recognise an entity as having it.6

Sovereign States

The sovereign state is the fundamental entity and primary subject of public international law.7 Because states automatically acquire rights, obligations and international legal personality upon their creation, identifying an entity as a state will affect its position within the international legal order.8 The customary international law definition of a state was accurately codified in the 1933 Montevideo Convention,9 which provides that:

The state as a person of international law should possess the following qualifications:

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with the other states.10

This formal definition may be applied less strictly in pursuance of self-determination or where an entity is overwhelmingly recognised as a state by the international community.11

As Nauru, Tuvalu and the Vatican City demonstrate, there is no lower limit to the size of the population or the territory of a state.12 The territory of the state does not need to be accurately defined or settled, so long as the government of the entity undeniably controls recognisable territory.13 The International Committee of Jurists indicated in 1930 that the requirement of government involves a central authority strong enough to assert itself over the territory without foreign assistance.14 However, state practice indicates that such a level of stability will not apply to an already established state undergoing civil war or experiencing a collapse of law and order, as in Somalia and other so-called ‘failed states’.15 In some cases, such as that of the states that emerged following the dissolution of the former Yugoslavia, statehood will be achieved without total control of the territory claimed, so long as there is widespread recognition within the international community (evidenced, for example, by United Nations membership) or a firm basis of government (even if not wholly effective).16

The polity must also have the capacity to enter into legal relations with other states. This is analogous to independence17 — the quality of not having any authority other than international law above the state.18 Independence must be formal (that is, legal),19 and mere influence of one state upon the affairs of another will not breach this condition.20 However, there is some argument that independence must be actual (that is, factual), and the international community will generally not tolerate sham states that are established for an improper purpose or that are satellite or puppet states incapable of resisting the authority of another state.21 Temporary administration by an external entity will not affect the sovereignty of a state provided that this administration is with the general approval of the international community.22

State-Like Entities

Many entities have a limited form of international legal personality as a result of their state-like features. Mandated territories, for example, are administered by another state according to the terms of the mandate and, while the administering state can direct the affairs of the territory, breach of the administering state’s obligations will terminate the mandate.23 Mandates in the past have no transferred sovereignty to the administering state, with the mandated territory maintaining a distinct international legal personality of its own.24 A condominium territory, where two or more states exercise sovereignty over a territory in accordance with a treaty, does not have a distinct personality of its own, but its government exercises jointly-delegated authority.25

Although it is not widely recognised as a state of its own, Taiwan possesses the formal attributes of a state and has acquired sufficient personality to engage with and participate in international organisations.26 On the other hand, the Turkish Republic of Northern Cyprus only has international legal personality in respect of its relations with Turkey because the international community does not recognise it as a legitimate state.27 The international community instead recognises Northern Cyprus as an administered territory within Cyprus that is effectively a Turkish dependency.28 Western Sahara lacks a government capable of asserting itself over the territory, Kosovo lacks sufficient recognition, and Palestine lacks definite territory, but all three have a degree of qualified international legal personality within the context of bilateral or multilateral agreements and international organisations.29 The European Union has qualified but undisputed international legal personality by virtue of the Treaty on European Union, which explicitly confers personality upon it,30 though it is not a state in its own right.

By contrast to these territory-based entities, there are a number of entities that possess or claim to possess international legal personality without occupying or possessing territory.31 National liberation movements often have a degree of international legal personality as a consequences of their involvement in decolonisation and the transformation of former colonial possessions into independent states, though the nature of this personality is controversial and unsettled.32

Corporations, Individuals and Organisations

Corporations constituted by agreement between states may possess qualified international personality if they are non-reliant on the laws of one state, as might transnational corporations insofar as international agreements regulate them by conferring legal rights and obligations that transcend domestic law.33 An example is investor-state dispute settlement provisions in treaties, which allow investor corporations to take direct action against a state under the terms of the relevant treaty. Individuals may possess qualified international legal personality where treaties endow them with standing to bring actions directly under the treaty,34 a situation most commonly encountered in international human rights law.35 International organisations may also have the power to enter into relations with states to the extent that they can conclude treaties with those states: these organisations definitely have international legal personality.36

Conclusion

Although all states inherently enjoy international legal personality, a number of non-state entities with varying characteristics are capable of assuming some kind of international legal personality. When a state recognises an entity as having international legal personality, it demonstrates a willingness to conduct relations with that entity under international law. Malcolm Shaw argues that ‘international personality … centres not so much upon the capacity of the entity … to possess international rights and duties, as upon the actual attribution of rights and/or duties on the international plane.’37


  1. Malcolm N Shaw, International Law (Cambridge University Press, 7th ed, 2014) 143, 192–3. 

  2. Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1939] ICJ Rep 174, 178. 

  3. Daniel Patrick O’Connell, International Law (Stevens, 2nd ed, 1970) 80–82. 

  4. David Harris, Cases and Materials on International Law (Sweet & Maxwell, 7th ed, 2012) 96. 

  5. Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1939] ICJ Rep 174, 185; Shaw, above n 1, 190. 

  6. Shaw, above n 1, 190. 

  7. Ibid 143, 191. 

  8. Harris, above n 4, 96. 

  9. Harris, above n 4, 92; Shaw, above n 1, 144. 

  10. Convention on the Rights and Duties of States, signed 12 July 1933, 165 LNTS 19 (entered into force 26 December 1934) art I. 

  11. Shaw, above n 1, 149–51. 

  12. Harris, above n 4, 92. 

  13. See, eg, Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11, 15. 

  14. Åland Islands (Advisory Opinion) [1920] LNOJ Spec Supp No 3, 3. 

  15. Harris, above n 4, 93–4; Shaw, above n 1, 147. 

  16. Shaw, above n 1, 146–7. 

  17. Harris, above n 4, 98; Shaw, above n 1, 147. 

  18. See, eg, Austro-German Customs Union (Advisory Opinion) [1931] PCIJ (ser A/B) No 41, 55–8. 

  19. Ibid 41. 

  20. French Indemnity of 1831 (1831) 5 Moore Int Arb 4447, 4472. 

  21. Policies of Apartheid of the Government of South Africa: the So-Called Independent Transkei and other Batustans, GA Res 31/6A, UN GAOR 31st sess, 42nd plen mtg, Supp No 39, UN Doc A/RES/31/6A (26 October 1976); Hersch Lauterpacht, Recognition in International Law (Cambridge University Press, 1948) 26–39; Harris, above n 4, 100–1. 

  22. Shaw, above n 1, 166–9. 

  23. See, eg, Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16. 

  24. Harris, above n 4, 192. 

  25. Shaw, above n 1, 165–6. 

  26. Shaw, above n 1, 170; Harris, above n 4, 96. 

  27. SC Res 541, UN SCOR 38th sess, 2500th mtg, UN Doc S/RES/541 (18 November 1983); SC Res 544, UN SCOR 38th sess, 2500th mtg, UN Doc S/RES/544 (15 December 1983); Cyprus v Turkey [2001] IV Eur Court HR 1, 21. 

  28. Shaw, above n 1, 171. 

  29. Ibid 172. 

  30. Treaty on European Union, opened for signature 7 February 1992, [2012] OJ C 326/01 (entered into force 1 November 1993) art 47. 

  31. See, eg, Shaw, above n 1, 178–9. 

  32. Ibid 180. 

  33. Ibid 181–3. 

  34. See, eg, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953); Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Convention on the Elimination of all Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 

  35. Shaw, above n 1, 188. 

  36. Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174; Shaw, above n 1, 189-90. 

  37. Shaw, above n 1, 192.