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6 - The recognition conception

Published online by Cambridge University Press:  05 October 2010

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

The recognition conception is a modification of the states-only conception. Whereas it still stipulates the primacy of the state in international law, it accepts that states can recognize other entities as international persons. The origins of this conception lie mainly in the works of Karl Strupp, Arrigo Cavaglieri and Georg Schwarzenberger, all of them paying strict attention to what they perceived as state practice regarding personality. This conception has been widely accepted in doctrine ever since and there might be some merit to the view that it represents the dominant conception of international personality today. One of its most important legal manifestations, though with certain ambiguous aspects, is the Reparation for Injuries Advisory Opinion of the ICJ dealing with the personality of the United Nations. The creation of international organizations in general and the legal issues related to it, as well as the partly direct role of individuals in investment law treaties, can be regarded as manifestations of this conception.

Basic propositions

According to this conception, states are the ‘normal’ persons of international law but are free to recognize other entities as international legal persons:

Es ist nicht zutreffend, wenn viele, z.B. Anzilotti, Corso 69, aus dem Begriffe des Völkerrechts … die alleinige Völkerrechtssubjektivität der Staaten herleiten. Denn derselbe Gemeinwille der Staaten, der bislang die Staaten (aber auch als kriegsführende Partei anerkannte Insurgenten!) als Rechtssubjekte anerkannt hat, kann jederzeit auch anderen Subjekten Persönlichkeit im Rechtssinne verleihen. […]

Type
Chapter
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Legal Personality in International Law , pp. 80 - 125
Publisher: Cambridge University Press
Print publication year: 2010

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References

Certain Questions relating to Settlers of German Origin in the Territory ceded by Germany to Poland (Advisory Opinion), 1923 PCIJ Series B No. 6, at 25
Questions concerning Acquisition of Polish Nationality (Advisory Opinion), 1923 PCIJ Series B No. 7, at 16.
Island of Palmas Arbitration Case (Sole Arbitrator Huber), 4 Annual Digest of Public International Law Cases (ILR) 3 (1928), at 104–6
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), 1949 ICJ Reports 174, at 179
Case Concerning the Payments of Various Serbian Loans Issued in France (Judgment), 1929 PCIJ Series A No. 20, at 41.
Designation of the Workers' Delegate for the Netherlands at the Third Session of the International Labour Conference (Advisory Opinion), 1922 PCIJ Series B No. 1, esp. at 22–3
Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture (Advisory Opinion), 1922 PCIJ Series B No. 2, esp. at 23
Competence of the ILO to Examine Proposal for the Organization and Development of the Methods of Agricultural Production (Advisory Opinion), 1922 PCIJ Series B No. 3, esp. at 54–5
Status of Eastern Carelia (Advisory Opinion), 1923 Series B No. 5, at 27–8
Questions concerning the Acquisition of Polish Nationality (Advisory Opinion), 1923 PCIJ Series B No. 7, at 12–13
Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory Opinion), 1926 PCIJ Series B No. 13, at 18.
Jurisdiction of the European Commission of the Danube between Galatz and Braila (Advisory Opinion), 1927 PCIJ Series B No. 14, at 63–4
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), 1980 ICJ Reports 73, at 89–90 (para. 37).
Legality of the Use of Nuclear Weapons by a State in Armed Conflict (Advisory Opinion), 1996 ICJ Reports 66, at 78 (para. 25).
Certain Expenses of the United Nations (Advisory Opinion), 1962 ICJ Reports 151, at 167
Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion), 1999 ICJ Reports 62, at 88–9 (para. 66)
Maclaine Watson & Co. Ltd v. International Tin Council (House of Lords 1989), 29 ILM 670, esp. at 672–5 (Lord Templeman).
Legality of Use of Force cases (Preliminary Objections, Judgment), 2004 ICJ Reports (various pages).
Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Award on the Merits, Sole Arbitrator Dupuy, 1977), 53 ILR 422, paras 44–8.
The Holy See v. Starbright Sales Enterprises Inc. (Philippines Supreme Court, 1994), 102 ILR 163, at 169–70.
Ministry of Finance v. Association of Italian Knights of the Order of Malta (Italy, Court of Cassation, 1978), 65 ILR 320, at 323
Nanni and Others v. Pace and the Sovereign Order of Malta (Italy, Court of Cassation, 1935), 8 Annual Digest and Reports of Public International Law Cases (ILR) 2, at 4–6.
Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Award on the Merits, Sole Arbitrator Dupuy, 1977), 53 ILR 422, paras 46–8 (pp. 457–9)
Texaco/Calasiatic v. Libya (Preliminary Award on Jurisdiction, Sole Arbitrator Dupuy, 1975), 53 ILR 389.
Case Concerning the Payments of Various Serbian Loans Issued in France (Judgment), 1929 PCIJ Series A No. 20, at 41
Revere Copper and Brass, Inc. v. Overseas Private Investment Corporation (Award, 1978), 56 ILR 258, at 271–2
CAA and Vivendi Universal v. Argentina (Decision on Annulment, 2002), 6 ICSID Reports 340, paras 96–8.

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