International Legal Persona

Discussion

Liad Orgad:

"Under the current structure of international law, individuals exist as legal persons only through a status conferred to them by a state. Individuals are citizens or residents of some state; an international legal status of a “human being” is non-existent. True, international law speaks in universal terms of international human rights law, even natural rights, but it makes them largely dependent on citizenship and territorial sovereignty, as if a person only legally exists through a state—a feudalist approach (Benhabib, 2005).

This state of affairs raises three issues.

First, human rights: an estimate of 1.1 billion people, 15 percent of the world population, lacks an official identification (World Bank, 2017). Without a national identification, one cannot have access to basic services and participate in modern life; one lacks, as coined by Hannah Arendt, the “right to have rights”. For refugees and displaced persons, having no national identity can lead to detention and deportation. But even people with a national ID may wish to have a universal ID that allows them to choose an identity free of state limitations (think of national restrictions on gender identity, sexual orientation, and names). The legal source for an international legal personality can be found in Article 6 of the Universal Declaration of Human Rights, according to which “Everyone has the right to recognition everywhere as a person before the law” (also Article 16, ICCPR).

The second issue is lack of self-governance. Existing citizenship regimes are based on Westphalian sovereignty under which citizens govern their life indirectly—through the state (Peters, 2016). This means that the status of citizenship perpetuates the monopoly of the state to control the exercise of individual rights. On the national level, the exercise of rights is connected with the status of citizenship (though less today than in the past; Spiro, 2008); on the transnational level, following the development of a standard travel document, the passport, the exercise of freedom of movement outside the state has become connected with citizenship (perhaps more so today than in the 18th and 19th centuries; Dehm, 2018). It also means that the participation of individuals in international law-making, even in decisions that directly affect them, is only realised through state representatives and depends a great deal on who is included in the boundaries of the demos. Minorities that have minimal political influence or no citizenship rights remain unheard in international decision-making, and so are people who are ineligible to vote in national elections due to electoral law restrictions (Shaw, 2017) and citizens in authoritarian regimes. The actual influence of individuals in the creation of international law is infinitesimally small.

The third issue is unequal representation. Since the 17th century, the Westphalian concept of sovereignty has been based upon two fundamental ideas that have marched together—nation-states and territories (Walker, 2017)—accompanied by a third idea, equality: the notion that sovereign states are equal. The Peace of Westphalia ended the medieval hierarchical system of power among rulers—though not among humans—and replaced it with a system of territorial sovereignty and sovereign equality of states (this idea is recognised today in Article 2(1) to the UN Charter). Unlike sovereign states, individuals do not have an equal voice in international affairs. International law is organised on a “one-state, one-vote” basis—a system that creates disparities in individual voting power. Citizens of San Marino (33,000 people) have the same voting power in the UN as citizens of India (1.2 billion). The disparity in individual voting power in governance of global issues (e.g., global warming and the environment) undermines the equal value of citizenship under international law."

(https://globalcit.eu/cloud-communities-the-dawn-of-global-citizenship/)