Vol. 16 No. 3 (March, 2006) pp.242-245
THE CONCEPT OF INTERNATIONAL LEGAL PERSONALITY: AN INQUIRY INTO THE HISTORY AND THEORY OF INTERNATIONAL LAW, by Janne Elisabeth Nijman. The Hague: T.M.C. Asser Press, 2004. 512pp. Hardback. Ł70.00/$120.00. ISBN: 9067041831.
Reviewed by: Joseph Masciulli, Assistant Professor of Political Science, St. Thomas University, Fredericton, N.B., Canada. Email: jmasciul [at] stthomasu.ca
Janne E. Nijman has written a comprehensive theoretical and historical study of the concept of international legal personality (ILP), engaging the foundational ideas of philosophers from the 17th century to the present. The author’s guiding question is: Have we come to the end of the concept of ILP as a foundational element of international law, or merely to the end of the Westphalian state-centric view of ILP? The author’s goal is not primarily to debate, casuistically, which other actors in addition to states should rightly be accorded international legal personality today—though she does agree that, practically, inclusiveness should be the norm.
After a general introduction (Chapter 1), Nijman develops the historical evolution of the concept of ILP (Chapters 2, 3, and 4) and stresses its marginalization in contemporary legal scholarship (Chapter 5). She concludes that the concept of ILP—properly understood not as a “mask” but rather as “vocal chords”—can be a foundational element of international law even today (Chapter 6).
Nijman stresses that the preliminary discussions of every international law textbook deal with the concept of ILP and show the latter’s current conceptual relevance, but the treatments are practical and pragmatic. The assumed background consists of the guidelines for ILP inclusion provided by the International Court of Justice REPARATIONS (1949) case: “The subjects of law in any legal system are not necessarily identical in their nature or the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life” (p.4).
That is, the international legal system determines what entities have ILP and the pragmatic and functional scope of that status. There is, however, “not much theoretical discussion… [about ILP’s] source or foundation and thus the question of which is the most original international legal person [is] no longer really addressed” (p.455). This conventional role for ILP merely keeps it trapped in the dilemma of positivism or naturalism. Does ILP first have to be recognized by the community of states to exist, or is ILP an indication of inherent rights and duties of states grounded in the rights and duties of individuals they represent?
Nijman argues that we can transcend this dilemma in a naturalist direction and advances the evaluative theory that the legal concept of ILP, interpreted according to naturalism, should be [*243] situated at the crossroads of the political, moral, and the legal realms, and should be the linchpin of the meta-legal and legal realms (p.13). On the basis of the natural law notion of humans as social beings, “a third concept emerges [between realism and cosmopolitanism], namely, although the state is the international legal person who acts, it does so representing its citizens. The ILP which enables it to act is derived from [the inherent natural rights and duties of] its citizens” (p.458).
The factual situation to which Nijman refers is a moral-political world in transition from its Westphalian (voluntarist, state-centric) and Cold-War (balance of power) pillars toward a new world order. She aspires to be one of the creators of this new order of universal community short of world federalism. This potential new order is threatened, she says, by “the underestimation of the value of healthy community life in its various forms, coupled with the underestimation of the normative value of the human need to belong” (p.459). The “real advancement or conceptual redefinition of ILP” requires that we “return to our rich heritage of natural law approaches” for which “the source of law may be found in ethics and morality”—an “anti-voluntarist position, which would at the same time attempt to avoid pure idealism by taking the hermeneutics of the self as a valuable starting point” (p.445).
Using the metaphor of the “mask” for the legal persona characteristic of the Westphalian sovereign legal system (persona understood originally as “the mask” of actors in Greek plays), Nijman insightfully suggests that we have witnessed an overall development from Leibniz to Franck and Chinkin, Ricoeur and Arendt: from a masked ball in which states’ internal structures were sealed off from their international personality as sovereign entities, to a partially unmasked ball in which states’ internal pluralism and international organization were revealed and given international personality. This process “from [state] Mask to [participatory] Vocal Chords” (p.448) is yet to be completed by an explicit re-conceptualization of ILP from its subliminal presence in our consciousness as a concept of legitimate participation (pp.456-457).
Nijman’s neo-Grotian theory of ILP, then, rests on the premise of “man’s rational and social nature” and rejects not only positivism, but also the liberal individualist perspective that views individuals as isolated and only creating societies out of self-interest (p.458). Tending more to inspirational advocacy than skeptical argument, Nijman concludes (though her objective is not to engage in practical debate [p.3]), that ILP should be attributed to nonstate actors as inclusively as possible and restrictions placed on the ILP of badly constituted states. Properly understood, the concept of ILP can serve as an intermediary between universal, abstract morality, on the one hand, and power politics, on the other hand. A well-functioning state, she argues, should have full international legal personality, but derived from its participating citizens (pp.468-469).
Her overall theory of ILP can be summarized as follows: [*244]
It is suggested here that we re-conceive ILP by using it to express that the natural right to be a person is an international right which finds its correlative duty or responsibility vested in the international community. As such it is the duty of the international community to guarantee humanity’s humanity, i.e., to protect the individual human being [possessing dignity and the right to have rights] from exclusion. The de-capacitating and silencing of the human subject is against the law of nations and is sanctioned by the international community in pursuance of its responsibility to respond adequately and appropriately to protect the human person (p. 473, the last paragraph of the book).
In our globalized world, this duty to protect (Nijman cites the United Nations’ Report on this theme [p.472]) in the first place is the state’s, but should a state fail, collapse, or fall victim to civil war or the oppression of minorities, the ILP of that state should be withdrawn or returned to the people [communal individuals] it was supposed to represent. For “the individual as a member of humanity has the natural right to be a person and must thereby be considered the first and original international legal person [since] … the institutionalized international community has the correlative responsibility to protect this natural right. The well-functioning state has full ILP, but only derived from its citizens” (p.468).
Overall, this reviewer is ambivalent about Nijman’s outstanding achievement in this marvelous book about the history and theory of ILP (though it is somewhat repetitive at times). For “ought implies can,” and the institutionalized international community simply does not have the capability to protect communal persons globally whenever and wherever they are threatened. In the realm of power politics, the United States, China, Russia, and India – and regional major powers in Africa and elsewhere – refuse to give a significant supranational capability to the United Nations Security Council or other branches of the organization, except rarely and when it suits their interests. Moreover, in addition to these states’ refusal to take off their “masks,” some of the new “voices” recognized pragmatically as subjects of international law today are playing and will play an ambiguous role. For there is also a negative, non-democratic dimension to the roles of NGOs, MNCs, and (some of the) individuals being recognized as subjects of international law today.
In conclusion, Nijman’s utopian idealism points the way to a world in which “justice [has been reconciled] with the reality of power” through a concept of ILP that guarantees a natural right to political participation, including “the right to live in a world governed by just institutions,” embodied in an international law situated “half way between morality and politics” (p.472). But we are not yet living in a (relatively) just world order and will not get closer to achieving that goal, unless those who are committed to it respond more creatively to power politics in all of its forms. The author considers her position to be “a third way” between realism and cosmopolitanism. However, after reading the entire book, the reader may well conclude, as does this reviewer, that Nijman’s position is an [*245] uncompromisingly consistent utopian, idealistic natural law version of cosmopolitanism that grants very little to realism and neo-realism on the theoretical foundations of international legal personality.
REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (Advisory Opinion), 1949, ICJ Reports.
© Copyright 2006 by the author, Joseph Masciulli.