General notes:
- Cases are highlighted in yellow and are explained in the notes (also mentioned in the
working group notes)
- At the end of each working group, you can view which case law and articles are
important (you need to know) for each week.
IEL – International Law – Subjects of International Law, week 1
What is law?
- Domestically, law exists as a hierarchical legal system with officials
- Highly institutionalized systems (legislatures, governmental bodies, courts, etc.)
- Public institutions adopt, modify, enforce, interpret, apply the law
- Public law (constitutional, administrative, criminal, etc.) and private law (civil,
commercial, etc.)
What is public international law?
- Law made by States to regulate their interactions with each other
- Public international law regulates primarily the conduct of States
o Made by the states for themselves
o (Almost) a contractual system à States come together and agree on certain
things without establishing a higher authority (compromise)
- International law is largely a horizontal legal order
o Does not recognize much of a higher authority à if it does so, states agree
beforehand.
- A largely self-help normative order
- Decentralized system
What public international law is NOT
- Private international law: the body of rules that regulates relations between persons
and entities in different States
- European Law: usually refers to the body of law developed within the EU (part 2 of
this course)
Trunk and Branches
- Trunk:
• Subjects of international law (week 1)
• Sources of international law (week 2)
• Jurisdiction and immunities (week 3)
• State responsibility (week 4)
- Some branches:
• international human rights law (week 6)
• international environmental law
• international criminal law
• jus ad bellum and jus in bello
• international economic law
When it all began
- “Classic” international law begins in the 15th century in Meddieval Europe
, - Divided into multiple communities, Europe developed a large set of legal instruments
related to trade, diplomatic relations, maritime navigation, etc.
- Jus naturale and jus gentium
• Idea of natural law: Something which is inherent in human natures. It is very
important to the development of international law. The law of nature does not
require authority, because it is there due to human nature, not authority. There
are a few legal principles that bind all states.
Father of international law
- Hugo Grotius (1583–1645) developed the idea that the law may not be only given by
nature, but also man-made
- Grotius refined the concept of just war
• When two states are in war, no one can actually decide who is just and unjust
• Going to war is “fine” as long as you have a reason for it, because how else
can you decide who’s in the wrong (as there is no higher authority)
• War was a means of resolving conflict / disputes.
- The principle of freedom of high seas; high seas as common property of humankind
• Also, father of principle of high seas
Peace of Westphalia
- The shift from legal pluralism (before Peace of Westphalia) to legal monism (“who
controls the land, controls the faith”)
- Sovereign States become the dominant form of a political community
• States are still the primary form of the political community and subjects of
international law.
- International law gets shaped as law between sovereign States
18th–19th centuries: the era of coexistence
- International law’s prime goal is to secure the co-existence between sovereign States
- States have sovereign equality: no State may interfere or intervene into affairs of
another State or exercise jurisdiction over another State
- International law as explicitly horizontal legal order; no higher authority than a State
- The only ultimate source of international law is the will of sovereign States
• No higher source than the will of the sovereign States
From coexistence to cooperation
- After World War II, and especially after 1991, international law gets increasingly
institutionalised
- Globalisation made States more codependent, and individuals – more mobile
- Increasing complexity of global challenges necessitates collaboration
- International law is no longer only about coexistence, it is also about cooperation
- The fundamental principle: Since the law of nations is based on the common consent
of individual States, and not of individual human beings, States solely and exclusively
are subjects of international law – Lassa Openheim (1858–1919)
• It stays the same!
What are “subjects of international law”
- Subjects of law are bearers of rights and duties in a particular legal system
- To be a subject of law is to have a legal personality
, - In international law, there is no one formal criteria for those who have the
international legal personality
International legal personality
- International Court of Justice, Reparation for Injuries, Advisory opinion (1949)
- An entity has international personality if it is:
• “[…] capable of possessing international rights and duties, and has the
capacity to maintain its rights by bringing international claims.”
• “[…] the subjects of law in any legal system are not necessarily identical in
their nature or in the extent of their rights.”
Subjects of international law
1. States
- Primary subjects!
- Whether something is a State defines the scope of its rights and obligations under
international law
- Possess full international legal personality
- Rights: State sovereignty should be respected
- Obligations: States should respect other states’ sovereignty
- How do we know what is a State? à MONTEVIDEO criteria
• Art. 1 Montevideo Convention: Requirements of statehood
• It is in fact customary international law (CIL – see week 2), which has been
codified into the Convention (treaty)
• 1. A permanent population:
o The number of people is irrelevant; it can be as large as in China
(∼1.4 billion) or as tiny as in San Marino (∼34 thousand). So, no
quantitative requirement. People need to live there.
o The population does not have to be ethnically homogenous. Whether
or not nomadic tribes suffice for the fulfilment of this criteria is
unclear (ICJ, Western Sahara Advisory Opinion, ❡ 152) à ICJ: “
Nomadic people possessed rights, including some rights relating to
the lands through which they migrated”
, • 2. A defined territory:
o The size does not matter: Russia with ∼17 million km2 is more than
100 000 times bigger than Liechtenstein with its 160 km2 .
o Precise boundaries are not a requirement; territorial disputes are
quite common. As long as there is a “core set” territory. It is fine.
Eg., Israel is considered a State (since 1948) despite the dispute with
the borders with Egypt, Syria and Palestine
o What legal consequences can there be for a gradual loss of an entire
territory is unclear.
• 3. A government
o The form of government is not important (the Netherlands is a
monarchy, while India is a republic); political regime is inessential
(Germany is democracy, while Russia is an autocracy)
o Effectiveness: for a State to establish itself it must be capable of
controlling its territory. à Independent government: able to retain
law and order / Effective government that independently exercises
power and control over its territory and people.
o The requirement of effectiveness exhausts itself at the time of
establishment of a State.
§ For a state to establish itself, it should be capable of
controlling its own territory.
§ Effectiveness of a government is assessed when the
territory becomes a state à if the government becomes
ineffective after the state has become such, statehood is
not taken away from it: If statehood would be taken
away every time the government becomes ineffective,
states would often lose their statehood and the whole
system would be ineffective. Once statehood is
acquired, it cannot be given away!
• 4. Capacity to enter into relations with other States
o The requirement of legal independence, which does not relate to
various factual restrictions on what a state can do.
§ The entity must have the ability to act without legal
interference from other states.
o This criterion allows to differentiate States from other territorially
effective authorities (province of Groningen, Texas, Greenland,
Scotland).
Recognition of States
- It is contentious (very political) and a difficult area in international law.
- 2 theories: Declaratory and Constitutive.
- Declaratory:
- It does not recognize statehood as such. Recognition is not a requirement for a state to
exist à Art. 1 Montevideo
- Recognitions is merely a practical, political act.
- Recognition is just an acknowledgement of the existence of a state à Existence of an
already constituted statehood because the Montevideo criteria are fulfilled.
- Constitutive:
• Recognition is performative.
- Cases are highlighted in yellow and are explained in the notes (also mentioned in the
working group notes)
- At the end of each working group, you can view which case law and articles are
important (you need to know) for each week.
IEL – International Law – Subjects of International Law, week 1
What is law?
- Domestically, law exists as a hierarchical legal system with officials
- Highly institutionalized systems (legislatures, governmental bodies, courts, etc.)
- Public institutions adopt, modify, enforce, interpret, apply the law
- Public law (constitutional, administrative, criminal, etc.) and private law (civil,
commercial, etc.)
What is public international law?
- Law made by States to regulate their interactions with each other
- Public international law regulates primarily the conduct of States
o Made by the states for themselves
o (Almost) a contractual system à States come together and agree on certain
things without establishing a higher authority (compromise)
- International law is largely a horizontal legal order
o Does not recognize much of a higher authority à if it does so, states agree
beforehand.
- A largely self-help normative order
- Decentralized system
What public international law is NOT
- Private international law: the body of rules that regulates relations between persons
and entities in different States
- European Law: usually refers to the body of law developed within the EU (part 2 of
this course)
Trunk and Branches
- Trunk:
• Subjects of international law (week 1)
• Sources of international law (week 2)
• Jurisdiction and immunities (week 3)
• State responsibility (week 4)
- Some branches:
• international human rights law (week 6)
• international environmental law
• international criminal law
• jus ad bellum and jus in bello
• international economic law
When it all began
- “Classic” international law begins in the 15th century in Meddieval Europe
, - Divided into multiple communities, Europe developed a large set of legal instruments
related to trade, diplomatic relations, maritime navigation, etc.
- Jus naturale and jus gentium
• Idea of natural law: Something which is inherent in human natures. It is very
important to the development of international law. The law of nature does not
require authority, because it is there due to human nature, not authority. There
are a few legal principles that bind all states.
Father of international law
- Hugo Grotius (1583–1645) developed the idea that the law may not be only given by
nature, but also man-made
- Grotius refined the concept of just war
• When two states are in war, no one can actually decide who is just and unjust
• Going to war is “fine” as long as you have a reason for it, because how else
can you decide who’s in the wrong (as there is no higher authority)
• War was a means of resolving conflict / disputes.
- The principle of freedom of high seas; high seas as common property of humankind
• Also, father of principle of high seas
Peace of Westphalia
- The shift from legal pluralism (before Peace of Westphalia) to legal monism (“who
controls the land, controls the faith”)
- Sovereign States become the dominant form of a political community
• States are still the primary form of the political community and subjects of
international law.
- International law gets shaped as law between sovereign States
18th–19th centuries: the era of coexistence
- International law’s prime goal is to secure the co-existence between sovereign States
- States have sovereign equality: no State may interfere or intervene into affairs of
another State or exercise jurisdiction over another State
- International law as explicitly horizontal legal order; no higher authority than a State
- The only ultimate source of international law is the will of sovereign States
• No higher source than the will of the sovereign States
From coexistence to cooperation
- After World War II, and especially after 1991, international law gets increasingly
institutionalised
- Globalisation made States more codependent, and individuals – more mobile
- Increasing complexity of global challenges necessitates collaboration
- International law is no longer only about coexistence, it is also about cooperation
- The fundamental principle: Since the law of nations is based on the common consent
of individual States, and not of individual human beings, States solely and exclusively
are subjects of international law – Lassa Openheim (1858–1919)
• It stays the same!
What are “subjects of international law”
- Subjects of law are bearers of rights and duties in a particular legal system
- To be a subject of law is to have a legal personality
, - In international law, there is no one formal criteria for those who have the
international legal personality
International legal personality
- International Court of Justice, Reparation for Injuries, Advisory opinion (1949)
- An entity has international personality if it is:
• “[…] capable of possessing international rights and duties, and has the
capacity to maintain its rights by bringing international claims.”
• “[…] the subjects of law in any legal system are not necessarily identical in
their nature or in the extent of their rights.”
Subjects of international law
1. States
- Primary subjects!
- Whether something is a State defines the scope of its rights and obligations under
international law
- Possess full international legal personality
- Rights: State sovereignty should be respected
- Obligations: States should respect other states’ sovereignty
- How do we know what is a State? à MONTEVIDEO criteria
• Art. 1 Montevideo Convention: Requirements of statehood
• It is in fact customary international law (CIL – see week 2), which has been
codified into the Convention (treaty)
• 1. A permanent population:
o The number of people is irrelevant; it can be as large as in China
(∼1.4 billion) or as tiny as in San Marino (∼34 thousand). So, no
quantitative requirement. People need to live there.
o The population does not have to be ethnically homogenous. Whether
or not nomadic tribes suffice for the fulfilment of this criteria is
unclear (ICJ, Western Sahara Advisory Opinion, ❡ 152) à ICJ: “
Nomadic people possessed rights, including some rights relating to
the lands through which they migrated”
, • 2. A defined territory:
o The size does not matter: Russia with ∼17 million km2 is more than
100 000 times bigger than Liechtenstein with its 160 km2 .
o Precise boundaries are not a requirement; territorial disputes are
quite common. As long as there is a “core set” territory. It is fine.
Eg., Israel is considered a State (since 1948) despite the dispute with
the borders with Egypt, Syria and Palestine
o What legal consequences can there be for a gradual loss of an entire
territory is unclear.
• 3. A government
o The form of government is not important (the Netherlands is a
monarchy, while India is a republic); political regime is inessential
(Germany is democracy, while Russia is an autocracy)
o Effectiveness: for a State to establish itself it must be capable of
controlling its territory. à Independent government: able to retain
law and order / Effective government that independently exercises
power and control over its territory and people.
o The requirement of effectiveness exhausts itself at the time of
establishment of a State.
§ For a state to establish itself, it should be capable of
controlling its own territory.
§ Effectiveness of a government is assessed when the
territory becomes a state à if the government becomes
ineffective after the state has become such, statehood is
not taken away from it: If statehood would be taken
away every time the government becomes ineffective,
states would often lose their statehood and the whole
system would be ineffective. Once statehood is
acquired, it cannot be given away!
• 4. Capacity to enter into relations with other States
o The requirement of legal independence, which does not relate to
various factual restrictions on what a state can do.
§ The entity must have the ability to act without legal
interference from other states.
o This criterion allows to differentiate States from other territorially
effective authorities (province of Groningen, Texas, Greenland,
Scotland).
Recognition of States
- It is contentious (very political) and a difficult area in international law.
- 2 theories: Declaratory and Constitutive.
- Declaratory:
- It does not recognize statehood as such. Recognition is not a requirement for a state to
exist à Art. 1 Montevideo
- Recognitions is merely a practical, political act.
- Recognition is just an acknowledgement of the existence of a state à Existence of an
already constituted statehood because the Montevideo criteria are fulfilled.
- Constitutive:
• Recognition is performative.
