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10 - Appraisal of the conceptions and their assumptions

Published online by Cambridge University Press:  05 October 2010

Roland Portmann
Affiliation:
Swiss Ministry of Foreign Affairs and Universität St Gallen, Switzerland
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Summary

This section starts with a short summary. Afterwards, the assumptions informing the different conceptions of international personality are related to the respective positions in present international law.

Recapitulation

It has been argued in the preceding analysis that assumptions about the nature of statehood and the role of individuals therein as well as about the sources of international law primarily inform the conceptions of international personality. In practice, these different assumptions have been substantiated by stating (expressly or by implication) different presumptions concerning which social entities are international persons and, in some instances, by attaching certain legal consequences to this status. It is convenient to encapsulate these insights in the following table presenting the conceptions with respect to their founders, original assumptions, main practical manifestations and the presumptions as well as consequences substantiated in the latter.

For now, the relevant column is the one enunciating the original assumptions that underlie the conceptions of international personality. As the table indicates, these assumptions differ in several respects. The four most pertinent differences concern

  1. (1) the nature and the powers of the state,

  2. (2) the relationship between statehood and individual freedom,

  3. (3) the role of legal sources not derived from state will, and

  4. (4) the relationship between the actual and the normative as a matter of international law.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), 1971 ICJ Reports 16.
Reparation for Injuries suffered in the service of the United Nations (Advisory Opinion), 1949 ICJ Reports 174, at 180.
Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase (Merits), 1970 ICJ Reports 3.
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 1969 ICJ Reports 3.
Fisheries Case (United Kingdom v. Norway), Judgment, 1951 ICJ Reports 116, at 130–1 (by clear implication).
Case Concerning the Continental Shelf (Libya v. Malta), Judgment, 1985 ICJ Reports 13, 229, esp. para. 25, although with somewhat different results.
Asylum Case (Colombia v. Peru), Judgment, 1950 ICJ Reports 266, at 276–8
Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States), Judgment, 1952 ICJ Reports 176, at 199–200.
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, 1993 ICJ Reports 325, 407, para. 100 (at 440).
Prosecutor v. Furundzija (Judgment), ICTY Trial Chamber Case IT-95-17/1-T, 10 December 1998, paras 153–7
Al-Adsani v. United Kingdom (Grand Chamber, Judgment), ECHR Reports 2001-XI, paras 60–1
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 ICJ Reports 226, para
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment, 1986 ICJ Reports 14, para. 190
Corfu Channel Case (United Kingdom v. Albania), Judgment, 1949 ICJ Reports 4, at 22
Case of the SS Lotus (Judgment), 1927 PCIJ Series A No. 10, at 28.
North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 1969 ICJ Reports 3, para. 77.
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment, 1986 ICJ Reports 14, para. 207.

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