By: Carolyn A. Dubay, Associate
Editor, International Judicial Monitor and Assistant Professor of Law,
Charlotte Law School
In June 2014, the United States Supreme Court in Burwell
v. Hobby Lobby Stores decided that closely held, for-profit corporations
are “persons” entitled to pursue religious freedom claims in American courts. Beyond
the controversy in the United States about the scope and implications of the Hobby
Lobby decision, the issue of what entities are considered “juridical
persons” has been a subject of much debate in international law for a very long
time. In the parlance of international law, whether an entity or person has
rights and obligations under international law depends on whether they have
recognized “international legal personality.” This inquiry is far more
complicated than similar decisions at the domestic level, where legislatures
and courts interpreting the law can decide the subjects of domestic legal
protections. This is precisely what happened in Hobby Lobby, where the
Supreme Court found that closely held, for-profit corporations were among the
subjects of the federal Religious Freedom Restoration Act, which allows
“persons” to raise religious objections to compliance with generally applicable
federal laws. This ruling gives such corporations “legal personality” or
“juridical personhood” for purposes of the Religious Freedom Restoration Act.
As in the domestic context, in international law, “legal
personality” depends on defining the “subjects” of international law – that is,
those persons or entities who gain rights and accept obligations in the
international legal framework. The notion of the proper subjects of
international law has evolved over the centuries along the same trajectory as
the concept of international law itself. Because international law
historically governed the rights of obligations of states alone (international
law being a product of state-to-state negotiation on rules to govern their interaction
in the world), only states possessed international legal personality. This
quasi-democratic notion rested on the view that states as sovereigns consented
to be governed by and to abide by international legal obligations, and
therefore they were the subjects of international law.
In the 20th century, the concept of legal
personality in the international context changed with the development of
international governmental organizations in the UN system. Indeed, the
concept of who confers international legal personality has also changed with
the creation of international courts and tribunals. For example, in the 1949 Reparations
Case, the International Court of Justice (ICJ) held that the United
Nations, as an international organization, possessed an international legal
personality, and with that, also had rights and duties arising under
international law, such as the capacity to bring an international claim before
a tribunal. In reaching this conclusion, because the text of the UN Charter
did not affirmatively address this issue, the ICJ found that giving the UN
international legal personality was critical to fullfilling the mandate of the
international community. The ICJ also recognized the evolving nature of
international legal personality: