Who Makes the Rules? Summary & Study Notes

🌍 Introduction: What is International Law?

International law is the body of rules regulating relations among sovereign States, and increasingly other actors. It covers a wide range of subjects — from state creation, territorial rules, and the use of force, to trade, intellectual property, human rights, climate change and access to vaccines. Unlike most national legal systems, international law lacks a centralized legislature or executive and relies on decentralized norm-creation and enforcement mechanisms.

🏛️ Historical Foundations and Evolution

The roots of international legal thought date back to the Roman ius gentium and natural law traditions, continuing through the Middle Ages (overlapping authorities such as the Holy Roman Empire and the Church) and the rise of lex mercatoria and maritime custom. Colonial expansion reshaped relationships among polities. The 1648 Peace of Westphalia consolidated the modern idea of the nation-State, sovereignty, and equality among States.

From the 19th century onward the positivist turn placed State consent at the center of legal obligation. The 20th century saw institutional innovations: the League of Nations and later the United Nations (with the UN Charter introducing the ban on the use of force, self-determination, and collective security mechanisms). Regional organizations, notably the European Union, developed sophisticated supranational features.

🧾 Subjects and Actors of International Law

A subject of international law is an entity capable of holding rights and duties under international law and of bringing international claims. Historically only States were full subjects; today other entities can possess international legal personality to varying degrees.

Key categories:

• States: primary subjects with the fullest international legal personality.
• International organizations (e.g. UN, EU): created by treaty, possessing legal personality limited to their functions and competences.
• Individuals and NGOs: rights and duties increasingly recognized (notably via human rights treaties and international criminal law). NGOs lack full personality but are influential actors in law-making, monitoring and as amici before courts.

🇺🇳 Statehood: Montevideo Criteria and Controversies

The classic test for statehood (Montevideo Convention) lists four elements: permanent population, defined territory, government, and capacity to enter into relations with other States. Effectiveness of government is important but need not mean full territorial control everywhere.

Two main debates:

• Recognition: Constitutive theory holds recognition by other States creates statehood; declaratory theory holds statehood depends on objective criteria, with recognition having practical effects. Modern practice tends to be declaratory.
• Illegally created entities: The principle ex injuria jus non oritur (no legal rights arise from wrongful acts) complicates outcomes, but practice shows exceptions can arise.

✊ Self-determination and Secession

Self-determination grants peoples the right to determine their political status. Distinctions:

• Internal self-determination: autonomy within an existing State.
• External self-determination: may lead to statehood, historically most clearly applied to peoples under colonial domination.

Contemporary doctrine generally permits remedial secession only in extreme cases (e.g., systemic denial of internal self-determination such as apartheid). The ICJ Kosovo advisory opinion stated international law does not prohibit declarations of independence but did not establish a general right to secede.

🧩 Territorial Acquisition, Succession and Extinction

Ways territory may change hands: cession (agreement/purchase), accretion (natural change), occupation (terra nullius), prescription (long, acquiesced possession). Forceful acquisition does not produce lawful title.

On State succession: the clean slate rule usually leaves new States unbound by predecessor treaties, with important exceptions (e.g., uti possidetis for borders, and human rights/humanitarian obligations often carried forward). Extinction (merger, dismemberment) is rare.

🌐 International Organizations

Intergovernmental organizations (IGOs) are created by States by treaty to perform functions States cannot or will not perform alone. They have a distinct legal personality limited to their mandate, can conclude treaties, and may adopt binding internal rules for members within assigned competences. The EU is an example with advanced supranational features.

👤 Individuals, NGOs and Non-State Actors

Individuals now hold rights under treaties and customary international law (notably human rights). They may also bear obligations (e.g., international criminal law). NGOs typically lack legal personality but influence norm-making, monitor compliance, assist in treaty negotiations, and participate as amici curiae.

⚖️ The Concept of Jurisdiction

Jurisdiction is the authority of a State to regulate, enforce, and adjudicate. International law limits jurisdiction: a State generally may not exercise its power in another State’s territory except where permissive rules allow it.

Three forms of jurisdiction:

• Jurisdiction to prescribe: make rules regulating conduct.
• Jurisdiction to enforce: impose compliance or physical measures (arrest, extradition).
• Jurisdiction to adjudicate: domestic courts’ authority to hear and decide cases.

Key cases: Island of Palmas (sovereignty as exclusive exercise of state functions), Lotus (limits on extraterritorial exercise of power absent permissive rule).

🧭 Jurisdiction to Prescribe: Connecting Factors

States require a connecting factor to justify prescriptive jurisdiction. Common bases:

• Territoriality: objective (act completed on territory) and subjective (act initiated on territory) principles; includes land, airspace and contiguous maritime zones as applicable.
• Nationality: States may regulate their nationals’ conduct abroad (active personality) and sometimes protect nationals harmed abroad (passive personality), subject to concerns such as the Nottebohm principle of genuine link.
• Protective principle: jurisdiction to protect vital State interests (e.g., counterfeiting, threats to security).
• Universal jurisdiction: allows prosecution without a link to the forum State for grave crimes (e.g., piracy, genocide, certain international crimes), subject to procedural and diplomatic complexities.

Overlapping jurisdictions are common; States must navigate concurrent claims to prescribe.

🛡️ Jurisdiction to Enforce and Adjudicate

Enforcement (e.g., arrest, extradition) is constrained by territorial sovereignty and consent (extradition treaties, Status of Forces Agreements). States generally cannot enforce laws in another State’s territory without consent.

Adjudicative jurisdiction concerns whether domestic courts can hear a case. Conflicts of jurisdiction are resolved by choice-of-law rules, forum non conveniens doctrines, or international agreements. International courts and tribunals offer alternative fora for interstate and certain individual claims.

🧪 Application: The Border-Corpse Case (Jurisdictional Issues)

Facts: a corpse found in a house straddling a border raises a jurisdictional question about which State’s authorities may investigate and prosecute.

Legal analysis pointers:

• Potential bases for jurisdiction: territorial jurisdiction of the State where the body was found (objective territorial link), nationality of the suspect (active personality), passive personality if victim’s nationality is relevant, and protective or other bases if applicable.
• If the suspect has French nationality, that may give France jurisdiction to prescribe or prosecute its national for crimes committed abroad under its criminal law (active personality), and France might request extradition or prosecute domestically depending on national law and extradition treaties.
• Practical resolution typically depends on: precise determination of the location (which State’s territory), bilateral cooperation (police, prosecutors), applicable extradition or mutual legal assistance treaties, and procedural rules on which forum is most appropriate.

⚖️ Key Cases and Doctrines to Remember

• Montevideo Convention (statehood elements)
• Island of Palmas (effective display of sovereignty)
• Lotus (permissive principle on extraterritoriality)
• Nottebohm (genuine link in nationality)
• ICJ Reparations for Injuries Advisory Opinion (legal personality and capacities of international organizations)
• ICJ Kosovo Advisory Opinion (declaration of independence and limits on secession doctrine)

These notes capture the main themes: how international law developed, who counts as an actor, how States are constituted and interact, and how jurisdiction operates in a decentralized legal order.