The Theory of Derivative Legal Personality and the Advisory Opinion of the International Court of Justice on the Status of the United Nations of 1949

Contemporary doctrine and practice of international law remain subject-centred: the answer to the question of the subjects of international law still serves as an explanation of what international law is and to whom it is accessible. Another constant of the system is its state-centrism, whereby sovereign States retain a privileged position as the creators and primary appliers of law. The departure from pure statism during the beginning of the twentieth century, nevertheless did not bring about any radical change. The derivative personality theory (the so-called recognition theory), which replaced the statism, not only maintained the monopoly of the State within the international legal system but, in a certain sense, reinforced it by recognising the State as a social necessity and as the exclusive creator of any new subjects of international law (international legal persons). Despite the alternative approaches to personality, the recognition theory proved to be a convenient tool for proponents of the exclusiveness of States under international law and prevails today. Relying on the methodology of critical genealogy and on a case-study of the 1949 Advisory Opinion of the International Court of Justice on Reparation for Injuries Suffered in the Service of the United Nations, the historical and philosophical origins of the derivative personality theory are traced. The theory is shown to represent, on the one hand, a revisionist and, on the other, a reactionary and restorative approach in the broader context of the sociological renewal of law. Ultimately, in light of the critique of analytical jurisprudence and its focus on the mechanics of legal regulation, the tautological nature of personality — defined through legal rights and obligations — is demonstrated.