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II. Comment on the following

1. A constitution is the arrangement of magistracies in a state. (Aristotle).

2. If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. (Thomas Jefferson).

3. Every actual State is corrupt. Good men must not obey laws too well. (Ralph Waldo Emerson).

4. The state comes into existence for the sake of life and continues to exist for the sake of good life. (Aristotle).

Reading

I. Read the text. Legal personality in international law11

Introduction

Legal personality is a controversial concept of international law. But it is, of course, not a concept confined to the international legal system. It represents one of the pillars of municipal law as well. […] The private law of persons therefore establishes which entities are legally relevant for a specific municipal legal system.

In international law, it also has to be determined which entities have rights and duties and act in legally relevant ways. The notion of legal personality is traditionally employed to this end, and accordingly called international personality. […] However, two peculiarities distinguish personality in international law from that in municipal law.

The first peculiarity often stated is that international personality not only denotes the quality of having rights and duties as well as certain capacities under the law, but that it also includes the competence to create the law.' This association of international personality with law-creation is an effect of there being no centralized legislator in the international legal system as opposed to municipal private law where the creation of only beneficiaries of rights actually held by their home state. A similar problem arises in the context of international human rights law when it is asserted that individuals actually are the holders of international rights without being international persons, a view which might have repercussions for the secondary obligation. In addition to these different readings of general developments in international law, there is often no agreement on the interpretation of specific pronouncements by international courts thought to be related to international personality. For example, it is disputed whether the ICJ’s affirmation of individual rights (in addition to state rights) outside the human rights context in the LaGrand and Avetia judgments implies international personality of the individual or, as has been suggested, by analogy even of other nonstate entities. Another well-known, though somewhat aged, example is the PCIJ’s opinion in Jurisdiction of the Courts of Danzig with its rather inconclusive reasoning on direct treaty rights of individuals.’ Not surprisingly, the opinion has been interpreted controversially and has been used to foster different theoretical positions on international personality.’ And even when international personality was more directly addressed, as was of course the case in Reparation for Injuries with regard to international organizations, interpretations of the criteria to be fulfilled for an international organization to become an international person differed widely. Thus, case law and practice are constantly taken into account in the debate on international personality, but their interpretation is strongly related to differing theoretical positions. Consequently, there is often no consensus on the implications of these practical developments.

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