Abstract

The concept of legal capacity, taken in its three traditional limbs (capacity to hold rights, capacity to act, procedural capacity), translates into the language of private (international) law three key ideas of human rights law: respectively, human dignity, self-determination of the individual and the concern for the effective protection of a person’s rights (especially where, as it is normally the case in the field of private law, such protection requires the initiative of the individual in question). The paper analyses art. 9 of the resolution of the Institut de Droit International on Human Rights and Private International Law, regarding legal capacity, in light of the discussion that resulted in the final text (less elaborate than the text that was initially proposed). The focus of the provision is on the policies that private international rules relating to capacity must reflect, such as, notably, the concern for the ‘portability’ of capacity (and the legal entitlements that build on it) across borders. Instead, art. 9 of the resolution deliberately fails to provide strict indications as regards the techniques that the said rules should embody for those purposes. The paper examines some techniques, as applied in different legal systems, and their relevance to the realisation of the relevant human rights policies