Conceptions

The picture emerges that the concept of personality is present in international law but there are different substantial views on it. Five main positions can be distinguished:

1. States-only: The first position reserves international personality exclusively to states. There are no conditions for international personality other than having acquired statehood. The corollaries of personality are synonymous with those of being a state. This position is today very rarely, if at all, explicitly advocated. But it is important in historical context and is at times still relevant for legal issues today.

2. Recognition: The second position conceives of states as the original or primary persons of international law. However, other entities can also acquire international personality, often called derivative or secondary international persons. The mechanism through which this is possible is explicit or implicit recognition by states. Being an international person in principle entails certain fundamental international rights, duties and capacities analogous to those of states.

3. Individualistic: The third position states a presumption for the individual as an international person in the field of so-called fundamental norms of international law. In addition, states and various other entities can be international persons if there are international norms addressing them. The consequence of personality is international responsibility. Individuals become internationally responsible for violations of fundamental international norms irrespective of whether they act in a public or private function.

4. Formal: The fourth position declares international law an open system. There is no presumption as to whom is a legal person. International personality becomes a posteriori concept: every entity is an international person that according to general principles of interpretation is the addressee of the norms of international law. Basically, there are no consequences attached to being an international person.

5. Actor: The fifth position, rejecting the concept of international personality as traditionally understood, stipulates a presumption that all effective actors of international relations are relevant for the international legal system. The specific rights and duties held by particular actors are determined in an international decision-making process in which the actors themselves participate depending on their effective power.

These five positions are those mainly invoked in international legal argument, that is, in doctrinal debates and in international practice. As presented here, they are condensed into what may be called ‘ideal types’. It follows that there are various modifications of these positions present in international legal reasoning. In general, however, such modifications will share - although often without explicit reference - a common basis with the pure forms as presented in this book. Thus, by examining the ‘ideal types’, there will also be new insights into the original assumptions on which the modified positions rest. Of course, these five positions to a certain extent represent different stages in the history of international law. However, notwithstanding their different historical origins, they all form part of the body of international legal argument applied today and as such are relevant in contemporary doctrine and practice.