Legal Personality in International Migration: the Personological Aspect

Abstract

The article examines the legal nature and content of legal subjectivity of international migrants using the cutting-edge methodology of international legal personology. The relevance of the research topic is the need to apply the personology methodology to the study of the personal component of the international legal system, especially in the context of Russian aggression which poses a threat to the lives of Ukrainian refugees. The purpose of the article is to determine the legal nature and content of international migration legal personality of a person using the latest methodology of international legal personology. The methodological basis of the study is an interdisciplinary and comprehensive approach which made it possible to formulate the conceptual framework of international migration legal personality of a person with due regard for the modern doctrine and practice of international law. The work uses a number of general theoretical and special scientific methods: objectivity; dialectical; historical and legal; formal and logical; special legal; systemic and structural; comparative legal; sociological; the person-centered method was developed by the author specifically for the study of the problems of the subject of law in general and the subject of international law in particular. It posits that the 1948 mistranslation of the traditional legal concept of “legal personality” (person before the law) as “legal subjectivity” in Article 6 of the Universal Declaration of Human Rights has had negative methodological consequences for domestic studies of personative legal reality. In their research, the scholars typically focused on the legal status, rights and duties of the legal subject rather than legal personality per se. The study of specific qualitative traits of legal personality (such as personative capacity, under the umbrella term of “legal capacity”, or negative capacity, in the narrow framework of criminal capacity) has been fragmentary, sporadic, and categorically vague. Only when legal personology cohered as an academic approach did it became possible to use an adequate person-centric methodology to study the personative element of any legal system. A personological analysis of the traditional concept of “legal capacity” identified three aspects: 1) normative: the capacity of a social actor to bear a legal status, possess rights and duties (normative capacity before the law); 2) personative: the capacity of a social actor to be a subject of law, a legal personality, a bearer of a personative legal form of a physical, legal or sovereign person (personative capacity before the law); 3) communicative: the capacity of a social actor to take part in legal communications, to be a party of legal relations (communicative capacity before the law). Further personological study of international migration law found that a person bears all the features of an international legal personality that possesses the corresponding sectoral personative capacity and active capacity at the universal, regional, and particular level. Meanwhile, a significant number of environmental (climate), anthropogenic and political migrants remain outside the purview of international legal regulation at the universal level, where they are conventionally referred to by the rather restrictive term “refugee”. At the regional and especially at the bilateral level, there is a risk that the generally recognised rights and fundamental freedoms of forced migrants during accelerated readmission, which underscores the necessity of academic scrutiny of this relatively new institution of international migration law.