I.

The Subjects of International Law

The subjects of international law possess legal personality, granting them the capacity to
hold rights, bear obligations, and engage in legal action within the international arena.

meaning they have rights, duties, and the capacity to bring claims under international law.

A. States: The Principal Subjects

States are the primary and most significant subjects of international law.

• Commencement of Existence (Statehood Criteria)

According to the Montevideo Convention of 1933, an entity must meet four

constitutive elements to be considered a state

1. Permanent Population: A people sufficient in number to maintain the

community's permanent existence and held together by a common bond of
law. There is no minimum population required.
2. Defined Territory: A definite territory over which the entity exercises
permanent sovereignty. Acquisition of territory more precisely means the
acquisition of sovereignty over that area.
3. Government: An institution or aggregate of institutions that independently
makes and carries out rules of action for the society. International law does
not prescribe the form a government must take.
4. Sovereignty (Capacity to Enter into Relations with other States): This
denotes independence from outside control and the capacity to establish
relations with other states.

Some scholars added

Diplomatic Recognition
Degree of Civilization

• Recognition of States

The nature of diplomatic recognition is viewed through two theories

oDeclaratory Theory: The widely accepted view. Recognition is merely

"declaratory"; it accepts the existence of an already existing state, and the
state's legal existence depends on meeting the four objective criteria of
statehood.
o Constitutive Theory: Recognition is seen as essential, as it constitutes the
state and confers upon it legal personality.
• Fundamental Rights of States
 States possess core rights inherent to their sovereignty

1. Independence: The right to exercise the functions of a state within its

territory, including jurisdiction over its territory and population.
2. Equality: The right to equality in legal rights, such as equal voting
entitlement in the UN.
3. Peaceful Co-Existence: Involves mutual respect for territorial integrity,
mutual non-aggression, and non-interference in internal affairs.

B. Other Subjects

Other entities possess international legal personality, albeit often limited by the instrument
that created them

• International Organizations (IOs): Created by a treaty among states (not private

persons, like NGOs). They are granted privileges and immunities not based on
sovereignty, but on the need for the effective exercise of their functions. The UN
Charter contains the "international constitutional supremacy clause" (Art. 103),
mandating that member obligations under the Charter prevail over other
agreements.
• Insurgents and Liberation Movements: They gain limited international personality.
Insurgents are recognized as having belligerent status and treaty-making capacity.
National Liberation Movements are organized groups fighting for self-
determination against colonial domination, and their goal is to control a definite
territory.
• Individuals: Once considered mere "objects" of international law, individuals are
now recognized as having limited rights and obligations. They are subject to
international rules on crimes (genocide, war crimes) 21. They can also pursue
remedies for human rights violations via mechanisms like the Optional Protocols
of the ICCPR and ICESCR.

II. State Territory and Maritime Zones

Territory encompasses a state’s land, maritime areas, airspace, and outer space.

A. Modes of Acquiring Territory

These are the legal mechanisms by which a state can acquire sovereignty over a territory

1. Discovery and Occupation: Applies to terra nullius (territory belonging to no state)

or abandoned territory. Simple discovery is insufficient; it must be coupled with
effective control.
2. Prescription: The transfer of sovereignty resulting from the open encroachment by
one sovereign over another's territory for a prolonged period of time without protest
from the original sovereign. It requires effective control and acquiescence.
 3. Cession: Acquisition of territory by a treaty.
4. Conquest and Subjugation: This mode is now prohibited under international law.
No territorial acquisition resulting from the threat or use of force shall be recognized
as legal.
5. Accretion and Avulsion: Acquisition by natural operation, such as the gradual
buildup of land (Accretion) or the sudden increase of territory (Avulsion).

B. Control over Airspace and Outer Space

• Airspace: Every State has complete and exclusive sovereignty over the airspace
above its territory. State aircraft (military/police) cannot fly over another State's
territory without authorization. Scheduled international air services (civil aviation)
require special permission, but non-scheduled flights typically have the right of
non-traffic transit and stops.
• Outer Space: Outer space is designated as the province of all mankind and is not
subject to national appropriation by claims of sovereignty. It must be used
exclusively for peaceful purposes.

C. Law of the Sea (UNCLOS III)

The United Nations Convention on the Law of the Sea (UNCLOS III) defines maritime
zones, all of which are measured from a State's baselines.
 Maritime Zone Extent and Basis Coastal State's Rights and Sovereignty
Internal Waters Waters landwards from Full sovereignty (same as land); there is
the baselines (e.g., rivers, no right of innocent passage.
lakes, bays).
Territorial Sea Extends up to 12 nautical The coastal state exercises sovereignty
miles (nm) from the over the sea, seabed, and airspace,
baselines. subject only to the right of innocent
passage for foreign vessels.
Contiguous Extends up to 24 nm from Coastal State may exercise control to
Zone the baselines (12 nm prevent and punish infringement of its
beyond the territorial sea). customs, fiscal, immigration, or sanitary
laws committed within its territory or
territorial sea.
Exclusive Extends up to 200 nm Coastal state has sovereign rights for the
Economic beyond the baseline. purpose of exploring, exploiting,
Zone (EEZ) conserving, and managing the natural
resources.
Continental Seabed and subsoil of the Coastal state has the exclusive right to
Shelf submarine areas adjacent explore and exploit its natural resources.
to the coastal state,
outside the territorial sea.
High Seas All parts of the sea not Subject to the six freedoms, including
included in any State's freedom of navigation, overflight, and
territorial sea or internal fishing.
waters.

III. State Jurisdiction and Immunity

A. Principles Governing Jurisdiction

Jurisdiction is the authority of a state to affect legal interests and is divided into legislative
(prescribing norms), executive (enforcing norms), and judicial (adjudicating) functions.
International law primarily focuses on criminal jurisdiction

1. Territoriality Principle: The most fundamental principle. A state has power to

prescribe, adjudicate, and enforce rules for conduct that occurs within its territory.

Effects Doctrine: Extends jurisdiction over acts outside the territory that
have effects within it. This includes the Objective Territorial Principle (crime
commenced outside, completed inside).
Subjective territoriality – crime begins inside, ends outside
Objective territoriality – crime begins outside, ends inside
 2. Nationality Principle: Every state has jurisdiction over its nationals even when
those nationals are outside the state. For diplomatic protection, a state must
demonstrate a reasonable connection or effective link with that person (Doctrine
of effective nationality link).
3. Protective Principle: A state may exercise jurisdiction over conduct outside its
territory that threatens its security (e.g., plotting to overthrow the government or
forging its currency).
4. Universality Principle: Authorizes all states to punish certain acts that are
universally dangerous to the international community, regardless of the location of
the act or the nationality of the parties. These acts include Genocide, Crimes
against Humanity, and War Crimes.
5. Passive Personality Principle: A state may apply law to an act committed outside
its territory by a non-national where the victim was its national. It is increasingly
accepted for organized attacks, such as terrorism or the assassination of a state’s
diplomatic representatives.

B. Immunity from Jurisdiction

Immunity serves as an exception to the rule of state jurisdiction.

• State Immunity (Sovereign Immunity): Based on the principle Par in parem non
habet imperium (Equals do not have authority over one another). Immunity applies
to governmental functions (jure imperii), but states often waive it or are not immune
for proprietary/commercial functions (jure gestionis).
• Immunity of State Representatives: Governed by the VCDR (for diplomatic agents,
concerned with political relations) and the VCCR (for consular officers, concerned
with administrative/economic issues).
• Act of State Doctrine: Requires the forum court to exercise restraint in adjudicating
disputes relating to legislative or other governmental acts which a foreign State
has performed within its territorial limits.

To simply put Immunity from Jurisdiction

A. State Immunity
• General rule: State cannot be sued without its consent.
• Applies to acts jure imperii (governmental).
• Does NOT apply to commercial acts (jure gestionis).
B. Diplomatic Immunity (VCDR)
• Diplomats are inviolable.
• Immunity from criminal jurisdiction.
• Limited civil immunity.
C. Consular Immunity (VCCR)
• More limited than diplomats.
• Immunity only for official acts.
IV. State Responsibility

This doctrine addresses when a state can be held responsible for an internationally
wrongful act, particularly for the ill-treatment of aliens (denial of justice)

A. The Internationally Wrongful Act

Every internationally wrongful act of a State entails the international responsibility of that
State.

Elements: An act or omission constitutes an internationally wrongful act when it:

1. Is attributable to the State under international law.

2. Constitutes a breach of an international obligation of the State.

Characterization: The nature of an act as internationally wrongful is governed by

international law and is not affected if the act is characterized as lawful by internal
law.

B. Attribution to the State

An act is attributable to the State if it is performed by:

• Any State organ (legislative, executive, judicial) acting in that capacity.

• An entity empowered to exercise elements of governmental authority.
• A person or group acting under the State's direction or control.
• An organ or entity that exceeded its authority or contravened instructions (acts
ultra vires).
• An insurrectional movement that becomes the new government.

C. Protection and Reparation

• Protection of Aliens: The injury to an alien national abroad is legally considered an

injury to the individual’s state of nationality. The widely accepted standard of
protection is the minimum international standard of humane protection.
• Preliminary Objections: A state can defeat a claim of denial of justice if the injured
individual failed to meet two requirements
1. Nationality Link: The injured party lacks a nationality link to the protecting
state.
2. Exhaustion of National Remedies: The individual failed to pursue and
exhaust all available legal remedies within the offending state's national
court system.
• Reparation: The responsible State must make full reparation for the injury caused
(material or moral damage). The State cannot rely on its internal law to justify its
failure to comply with this obligation.
• Calvo Clause: This contractual stipulation, which attempted to waive a private
party's right to seek diplomatic protection from their home government, was
rejected. The right to seek redress is a sovereign prerogative of a state, which a
private individual cannot waive.