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International law has originated and evolved as a law made by the sovereign states and meant to be applied to sovereign states. The position until the beginning of the 18th century was that the States were the only entities that even had international legal personality. In essence, this meant that only States were capable of accepting obligations to other States and enforcing their rights against them. If we look at it very closely, even today states enjoy the most complete form of international personality recognised by international law. And it is this original legal personality which has led to the derivation of other legal personality, if they have any, under international law.
We must confess that increased globalisation and trade along with changing social attitudes have had a marked effect on international law. In 1949, the International Court of Justice recognised that international organisations too could have international personality. This was a new and unknown concept at that time. Subsequently, the ICJ reasoned that international organisations such as the UN were created by States to perform certain important functions. It was therefore necessary for these organisations to be able to further their objectives that they have the degree of legal personality required for this purpose. As already stated, these organisations draw their personality from the original personality of their member States. But in theory, this ought not to have any effect on the sovereignty of States, which still enjoys the highest form of personality under international law. Moreover, the fact is that States now face the challenge that they may be subjected to legal proceedings by these organisations if they fail to abide by their obligations towards them.
Under ordinary circumstances, multinational companies and individuals do not enjoy the status as “personality” under international law. However, it has to be noted that many domestic jurisdictions interpret the doctrine of State immunity in a very restrictive manner. In essence, this means that States can no longer plead immunity when there is a challenge against them before a domestic court, in another jurisdiction, in cases involving a commercial transaction between a State and company or individual.
Also, in case of international organisations, as well as individuals and multinational companies, States have the power to protect their own rights and to ensure that the organisations perform their proper functions by resorting to legal action. Therefore, it is safe to say that although international organisations have emerged with legal personality, the influence of States on international law has not weakened considerably.
In the context of international law, individuals present a more complex entity than international organisation. The rationale that individuals could be legally responsible for breaches of international law came into being after the Tokyo and Nuremberg Tribunals following World War II. Subsequent to that, they also became the recipient of rights under international law. In accordance with changing perspectives, human rights treaties now obligate States to protect their own citizens. A number of these treaties also incorporate individual complaint mechanisms whereby individuals can file complaints against their States, to administrative bodies created by these treaties. Although we have a long way to go and still a step away from proper legal personality, this power has helped to lift the veil of sovereign immunity that formerly cloaked the relations of States and their citizens. Hence, it can be concluded that sovereign immunity no longer enjoys the status it did earlier.
Case Analysis of Royal Brunei Airlines v Tan, an important Equity and Trusts law case on breach of trust and liability for dishonest assistance.
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