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This chapter explores religious freedom in the context of both the general freedom of association and the specific right in some States of religious association. It then examines the legal categories of religious organization across the States of Europe, particularly those with legal personality — the terminology employed for their designation, their recognition, their regulation, and their public and private law status. It considers the conferral of legal personality on religious organizations by means of, variously, the enactment of legislation, the conclusion of covenants, and the registration of religious organizations. The chapter ends with a section on the exercise of legal personality, and the benefits which this brings. National laws on the legal position of religious organizations necessitate a high degree of cooperation between States and religion in this field but this area of law raises serious questions about equality of treatment between different religious traditions.

This chapter examines the actors engaged in constructing international law as a set of rules. It argues that states remain at the heart of global governance by exercising jurisdictional power in a partitioned and relatively coordinated way within a global state-centred system in which non-state actors constantly shape states' behaviour. The whole of such interaction denotes what is called the ‘international community’. The chapter first explores the meaning of global governance, public and private authority, and international community. Then, it discusses states and a variety of non-state players. Finally, it explores the concept of international legal personality, concluding that it is often used as a tool for manipulation to favour one or another ‘deserving’ player.

Informal lawmaking is characterized by an involvement of non-traditional actors. This chapter analyses actor informality by looking at two key forms: ‘international agencies’ and ‘harmonization networks’. International agencies are international bodies that are based on a decision by an international governmental organization. Harmonization networks are international networks of national public regulatory authorities that are in the business of harmonizing their rules or setting standards or other norms. The purpose of the chapter is to define the status of bodies involved in informal international lawmaking (IN-LAW) and to argue why clarity about legal status is important in relation to the question of accountability.

The Holy See claims a dual personality in international law, as the government of the Vatican and separately as the government of the Catholic Church. This creates a situation where it can avail itself of the privileges of statehood, but may choose when it complies with a state’s obligations. The chapter advances a new argument, that of a Holy See-Vatican construct, with a single international personality grounded in two sources: international custom (religious legitimacy) and the Lateran Treaty (resemblance of statehood). In settling the personality question and clarifying the rights and obligations of the actor, the chapter relies on legal positivism, the examination of diplomatic practice, and jurisprudential analysis. By exploring the obligations of the Holy See-Vatican under human rights law in relation to clerical child sexual abuse, it illustrates that these obligations are not different in nature from those of other states, whereas their extraterritorial applicability is more relevant.

Reading Herman Melville’s “Benito Cereno” alongside American slave law, Dred Scott v. Sandford, The State of Missouri v. Celia, and the Civil Rights Cases (1883), this chapter addresses the substantive social and legal implications of legal recognition for black Americans. Engaging Hannnah Arendt, Giorgio Agamben, and Gerald Neuman, this chapter offers a detailed account of the concept of sanctuary and the anomic legal status of black Americans, and demonstrates how the denial of legal subjectivity and political recognition rendered blacks excessive to the law and vulnerable to assault. Slavery survives within the constitutive makeup of American legal and political culture as the interface through which rights became contingent on political membership and on the acknowledgement of an individual’s legal personality. “Benito Cereno” provides both a rubric for reading the relation of the law to the black body that continues to inform our legal culture, and insight into the way in which race simultaneously informed U.S. empire and home. Focusing specifically on Haiti, and the implications of her revolution for both U.S. race relations and imperial ambitions during the 19^th century, this chapter opens up the question of legal recognition from a study of individuals to relations among nation-state powers.

Corporate legal personality entails the conferment of rights (and duties) under municipal law on companies as if they were human beings. It also signifies a distinction between the rights (and duties) of the company and those of other persons, including shareholders, the pre-eminent group of corporate constituents. A study of the European Court of Human Rights' stance on corporate legal personality, as found in Strasbourg case law, is an indispensable part of this book's exploration of private business enterprise within the European Convention on Human Rights (ECHR) system and demonstrates doctrinal peculiarities of the Court's handling of difficult questions of treaty interpretation in the field of corporate litigation. The nature of Strasbourg adjudication means that the Court rarely expounds on matters of theory, whether of pertinence to corporate issues or not. In addition, it is conceivable that questions of corporate theory – understood here as conceptions of the nature, composition, and purpose of the limited liability company – lack the social and legal urgency in Europe today that would require specific handling by a court of human rights.

This chapter provides a preliminary study of the international law issues in determining the legal consequences for United Nations member states of the non-fulfilment by international organisations of their obligations towards third parties. When the question of such non-fulfilment of obligations is litigated before domestic courts, various considerations of domestic law come into play. The necessary starting point in determining the legal consequences for member states of the non-fulfilment by international organisations of their obligations towards third parties is the concept of personality. It may simply be said that, if an international organisation has no distinct legal personality, it cannot itself be legally liable for obligations even if incurred in its name; and it is likely that the liability will rather be that of the member states. This preliminary report endeavours to address all of these closely interrelated issues, by reference to judicial and arbitral decisions, treaties and state practice, learned writings, and what we may term argument of principle.

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.

This chapter presents and explains the evaluative framework that the study employs when analysing armed groups and legal personality. In doing so, the chapter provides a short historical account of the manner in which international legal personality has been understood and theorized and explains how the evaluative framework will be utilized in the subsequent chapters.

One of the most important contributions of the international legal doctrine along the last six decades has been the rescue of the individual as subject of the law of nations. Such contribution is of historical significance. The individual's presence and participation has been growing in the international legal order. The international legal personality of individuals has been asserted before organs of international supervision of his rights, and his international legal capacity has consolidated before international legal tribunals (e.g., European and Inter-American Courts) of human rights. The individuals’ legal subjectivity is beyond question in contemporary international law.

This chapter deals with the concept of international legal personality (ILP) within the context of the overall theme of this book, the (changing) perception of state sovereignty in modern international law. It argues that if we proceed along the historic line of evolution, and continue to rethink sovereignty as well as the structure of international law, in particular with regard to increasing the legitimacy of international law, rethinking cautiously the concept of ILP is an appropriate line of action. It concludes that the concept of ILP is the conceptual missing link between international law and democratic participation.

This chapter examines the jurisprudence of the UK courts on international organizations. First, it discusses the approach of the UK courts to the justiciability of claims involving treaties and international law, often as they relate to an international organization, with the consequence that claims are frequently brought indirectly against the UK government rather than directly against an international organization. It then goes on to consider the treatment by the UK courts of substantive legal issues relating to international organizations, specifically issues of legal personality, privileges and immunities, and responsibility.

This chapter focuses on the various forms of protectorate, both because this was the most common ‘category’ of dependent entity, and because the experience derived from it still helps to illustrate the general problems of analysis and classification. A perennial problem in the law and practice of territorial status has been the various types of dependent entities. Precisely because of their dependence, many of these did not qualify as States under the criteria used to determine statehood. Nonetheless, they appeared to possess a legal personality distinct from any other State, including the ‘dominant’ State. The existence of such ‘dependent States’ seemed to 19th-century writers strange and anachronistic, an anomaly even. A legal puzzle, they were at least useful in providing a contrast with ‘full-sovereign’ States.

This chapter provides a historical account of the manner in which the legal personality of armed groups was conceived and treated prior to the drafting of the 1949 Geneva Conventions. Conducting a detailed review of the law of belligerency and the legal framework of insurgency, the chapter demonstrates the different ways in which armed groups could acquire obligations under international law under these frameworks. During the course of this examination, the chapter pays particular attention to the relevance of territory, special agreements, State consent, and the armed group’s functionality. It concludes by analysing its findings against the evaluative framework set out in Chapter 3.

This chapter first sets out the book's purpose, which is to analyse, by looking at the actual case-law in certain jurisdictions, whether ‘judicial conversations’ on the topic of the personality and privileges and immunities of international organizations do really take place across national borders and, if so, how they are structured. The discussions then turn to the domestic legal personality of international organizations; and the privileges and immunities of international organizations.

This chapter focuses on the legal apprehension of personality, immunities, and privileges of international organizations in the French legal order, considering not only the case-law but also the position taken by the various public authorities. It shows that French case-law has been influenced in recent years by some decisions of the European Court of Human Rights (ECtHR). However, the tax authorities, followed by the courts, have adopted some solutions in tax treatment which differ considerably from the practice of most other states. The position of the different administrations is not unified and the Quai d'Orsay — the French Ministry of Foreign Affairs — has in some cases positions based on international law and diplomatic considerations which are not necessarily shared by other sectors of the administration. The chapter begins by examining the sources of law applicable to the status of international organizations in France.

The legal status of international organizations matters because issues of their jurisdictional immunity would not arise, a priori, if they did not have both international personality and legal personality. This chapter addresses the legal status of international organizations under both international and national laws, examining their international and legal personalities that enable them to participate in international and national life. To carry out their functions, international organizations must have the requisite legal status, which also has a bearing on their jurisdictional immunity. The chapter also includes a discussion of the difference between international personality and legal personality.

This chapter examines the reasons behind the trust's popularity in business and commerce. Although the trust is neither a legal entity nor an economic firm, it is widely used in structuring transactions and investment funds. This chapter observes that the trustee's duty of care encourages prudence and conservatism. Also, the duty of impartiality, which is not a feature of corporations, ensures that different classes of investors are treated fairly. But both duties can arguably be replicated in corporations so they are not truly unique to trusts. Rather, this chapter argues that it is the trust's lack of legal personality and lack of intra-firm transfers that make it uniquely suitable for certain commercial transactions. The weak liability protection for the trustee means that it is only suitable for conducting relatively simple activities, such as holding property.

This chapter begins with a brief overview of Italian case-law on international organizations with a view to outlining its current state. It illustrates some exceptional cases of explicit judicial dialogue arising from that case-law, while a separate analysis is devoted to a possible implicit form of trans-judicial cross-fertilization disclosed by the Italian decisions endorsing the theory of the availability of alternative remedies as a condition for the immunity of international organizations. The discussion then turns to certain significant Italian court misinterpretations vis-à-vis the problem of the legal personality of international organizations, for the purpose of clarifying that a transnational legal methodology would have prompted correct solutions.