PHILIP C.

JESSUP MOOT 2015

BASIC PUBLIC INTERNATIONAL LAW REVIEWER

PUBLIC INTERNATIONAL LAW - deals with the
conduct of States and international organizations,
their relations with each other and, in certain
circumstances, their relations with persons, natural or
juridical. (American Third Restatement)
PRIVATE INTERNATIONAL LAW (Conflict of
Laws) –body of rules of the domestic law of a State
that is applicable when a legal issue contains a
foreign element, and it has to be decided whether a
domestic rule should apply foreign law or relinquish
jurisdiction to a foreign court. (Aust, Handbook on
International Law, 2010, p.1)

CONCEPTS IN INTERNATIONAL LAW

A. OBLIGATIONS ERGA B. JUS COGENS - a norm C. EX AEQUO ET BONO -

OMNES- literally means ‘towards
all; those which seek to protect and
promote basic values and common
interests of all states.
They refer to those obligations of a
State towards the international
community as a whole which are ‘the
concern of all States’ and for whose
protection all States have a ‘legal
interest’ (Barcelona Traction Case
(Belgium v Spain) ICJ Rep 1970 3
[Feb 5]).
accepted and recognized by the
international community of
states as a rule from which no
derogation is permitted and can
be modified only by a
subsequent norm having the
same character e.g. unlawful use
of force, genocide, slave trading
and piracy(Article 53,Vienna
Convention on the Law of
Treaties).
Three groups of jus cogens
norms:
1) maxims of International Law
which protect the foundations of
law, peace and humanity in the
international order and
2) protection of humanity,
especially of the most essential
human rights
literally means "according to the
right and good" or "from equity
and conscience".
Article 38(2) of the Statute of
the International Court of
Justice provides that the list of
sources in Article 38(1) shall not
prejudice the power of the court
to decide cases ex aequo bono,
but only et where the parties
agree thereto.
As illustrated in the North Sea
Continental Shelf Cases (ICJ
Reports, 1969), the ICJ resorted to
principles concerning the
formulations of just and equitable
principles concerning the dispute
over a certain continental shelf, when
the court opined no treaty or custom
bound the state-parties to the dispute.

INTERNATION LAW & NATIONAL LAW

International Law Municipal Law

Law of coordination (consent) Law of subordination (issued by political superior)

Regulates relation of states and other

Regulates relations of individuals among
international persons
themselves or with their own states

Consists mainly of statutory enactments, and to a

Derived principally from treaties, international
lesser extent executive orders and judicial
customs and general principles of law
pronouncements

Redressed thru local administrative and judicial

Resolved thru state-to-state transactions
processes

Collective responsibility because it attaches Breach of which entails individual responsibility

directly to the state and not to its nationals
 SOURCES
Art. 38 Statute of the International Court of Justice
provides that:
The Court, whose function is to decide in accordance
with international law such disputes as are submitted
to it, shall apply:
a. International conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
b. International custom, as evidence of a general
practice accepted as law;
Elements:
1) State Practice,
2) Opinio Juris
(S.S. Lotus [France. v. Turkey], 1927 P.C.I.J. (ser. A)
No. 10, Sept. 7, 1927)
c. General principles of law recognized by civilized
nations;
 Concepts from domestic law if they can be
applied to relations between States, and by this
means, have developed international law by
filling gaps and strengthening weak points.
(Aust, Handbook on International Law, 2010,
p.8)
e.g. pacta sunt servanda, res judicata, due
process, estoppel, prescription
d. Judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law.
TREATY
An international agreement concluded between states
in written form and governed by international law
whether embodied in a single instrument or in two or
more related instruments (Art. 2, Vienna Convention
on the Law of Treaties, 1969).
Requisites: (PAW-LR)
Highly-qualified publicists - writers whose
main value depends on the extent to which the
books and articles cited are works of scholarship,
that is to say, based on thorough research into
what the law is said to be (lex lata) rather than
comparing the views of other writers as to what
they think the law ought to be (lex ferenda).
(Aust, Handbook on International Law, 2010, p.
 e.g. Hugo Grotius, Vaughan Lowe,
Lawrence Oppenheim, Hersch Lauterpact,
Hans Kelsen, Ian Brownlie, Malcolm N.
Shaw
NOTE: “Reference to the “teachings of the most
highly qualified publicists” is not limited to
individual publicists or writers, but also includes
entities such as the International Law Commission
(ILC) which was established by the UN to
encourage the progressive development of
international law and its codification (UN Charter,
Art 12(1)(a))
Stare Decisis – ICJ is not bound by the doctrine of
stare decisis. The decisions of the Court have no
binding force except between the parties and in
respect of that particular case (ICJ Stature, Article
59). Nonetheless, the Court does look to prior
holdings as being highly persuasive (Sarmiento,
Public International Law Bar Reviewer,p. 32)
1. Entered into by parties having treaty-making
capacity;
2. Through their authorized organs or
representatives;
3. Without attendance of duress, fraud, mistake or
other vices of consent;
4. Lawful subject matter and object; and
5. Ratification in accordance with their respective 1. Original
constitutional processes. signatories
2. Other states
Steps in the Treaty-Making Process: (NSRER) allowed, by terms of the treaty, to sign it later
1. Negotiation – Discussion of the provisions of the (accession)
proposed treaty, undertaken by the  Pacta Tertiis Nec Nocent Nec Prosunt – a
representatives of the contracting parties who are State is not bound to act in accordance with
provided with as full powers or pleins pouvoirs. a treaty if it is not a party to a treaty, except
if that treaty codifies customary
international law
2. Signature – Primarily intended as a means of Exceptions: (EVEN)
authenticating the instrument and symbolizing the 1. Treaty is merely an expression of
good faith of the contracting parties. customary international law
2. By virtue of the most favored nation
Note: Signature DOES NOT create an clause
obligation to ratify. 3. Treaty expressly extends its benefits to
3. Ratification – Act by which the state formally non-signatories
accepts the provisions of a treaty concluded by its 4. Treaty is necessary for the maintenance
representative. of international peace

4. Exchange of instruments of ratification Reservation – a unilateral statement, made by a state

when signing, ratifying, accepting, approving or
5. Registration with UN. acceding to a treaty, whereby it purports to exclude
or modify the legal effect of certain provisions of the
treaty in their application to the state. The state
Binding Effects of Treaty making the reservation remains a party to a treaty,
General Rule: Only the following contracting parties provided that the reservation is compatible with the
are bound: object and purpose of the treaty. (Page 12, Treaty
Handbook – United Nations Publication, 2012)

When is error a valid ground for the invalidation of a State’s consent to be bound by a treaty?
Art 48, VCLT. The error must relate to a fact or situation which was assumed by that State to exist at the
time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. However,
if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that
State on notice of a possible error, then it cannot invoke error as a ground for invalidating the consent.

Treaties International conventions are generally referred to as treaties.

Treaties are written agreements between States that are governed by international law. Treaties are referred to by
different names, including agreements, conventions, covenants, protocols and exchanges of notes. If States want to
enter into a written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of
Understanding and provide that it is not governed by international law. Treaties can be bilateral, multilateral,
regional and global.

The law of treaties is now set out in the 1969 Vienna Convention on the Law of Treaties which contains the basic
principles of treaty law, the procedures for how treaties becoming binding and enter into force, the consequences of
a breach of treaty, and principles for interpreting treaties. The basic principle underlying the law of treaties is pacta
sunt servanda which means every treaty in force is binding upon the parties to it and must be performed by them in
good faith. The other important principle is that treaties are binding only on States parties. They are not binding on
third States without their consent. However, it may be possible for some or even most of the 4 provisions of a
multilateral, regional or global treaty to become binding on all States as rules of customary international law.

There are now global conventions covering most major topics of international law. They are usually adopted at an
international conference and opened for signature. Treaties are sometimes referred to by the place and year of
adoption, e.g. the 1969 Vienna Convention. If a State becomes a signatory to such a treaty, it is not bound by the
treaty, but it undertakes an obligation to refrain from acts which would defeat the object and purpose of the treaty.

A State expresses its consent to be bound by the provisions of a treaty when it deposits an instrument of accession or
ratification to the official depository of the treaty. If a State is a signatory to an international convention it sends an
instrument of ratification. If a State is not a signatory to an international convention but decides to become a party, it
sends an instrument of accession. The legal effect of the two documents is the same.

A treaty usually enters into force after a certain number of States have expressed their consent to be bound through
accession or ratification. Once a State has expressed its consent to be bound and the treaty is in force, it is referred to
as a party to the treaty. The general rule is that a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. The
preparatory work of the treaty and the circumstances of its conclusion, often called the travaux preparatoires, are a
supplementary means of interpretation in the event of ambiguity.

CUSTOMARY INTERNATIONAL LAW

Customary International Law- consists of rules of
law derived from the consistent conduct of States
acting out of the belief that the law required them to
act that way
ICJ has been constant in stating that a customary rule
requires the presence of the two elements the two (2)
elements: (S.S. Lotus [France. v. Turkey], 1927
P.C.I.J. (ser. A) No. 10, Sept. 7, 1927)
1) State Practice (Objective)- there must first
be evidence of substantial uniformity of
practice by a substantial number of States
(Aust, Handbook on International Law
2010,p. 6 ).
 (e.g. prohibition against genocide, torture,
2) Opinion juris sive necessitates- this is the
psychological factor, the belief by a state
that behaved in a certain way that it was
under a legal obligation to act that way;
states will behave a certain way because
they are convinced it is binding upon them
to do so. (Shaw, International Law 2008, p.
84)
Note: No particular duration is required.
However, a passage of time will be part of
evidence of generality and consistency of
the practice ( Case Concerning the
Continental Shelf (Libyan Arab Jamahiriya
v Malta) (Judgment) [1985] ICJ Reports 13
at 29).
slavery, crimes against humanity

NOTE:
When does State practice constitute custom? How is opinio juris demonstrated?

In the North Sea Continental Shelf cases, the ICJ said
that: "Although the passage of only a short period of
time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international
law on the basis of what was originally a purely
conventional rule, an indispensable requirement
would be that within the period in question, short
though it might be, State practice x x x should have
been both EXTENSIVE and VIRTUALLY
UNIFORM."
There has never been agreement on the ICJ with
respect to how opinio juris is to be demonstrated.
Some eminent jurists, such as Sir Hersch
Lauterpacht, have suggested that a consistent practice
of states should give rise to the presumption that such
a practice was engaged in out of a sense of legal
obligation and if that presumption is challenged, the
burden would fall on the challenger to prove
otherwise

International custom – or customary law – is evidence of a general practice accepted as law through a constant and
virtually uniform usage among States over a period of time. Rules of customary international law bind all States.

The State alleging the existence of a rule of customary law has the burden of proving its existence by showing a
consistent and virtually uniform practice among States, including those States specially affected by the rule or
having the greatest interest in the matter. For example, to examine the practice of States on military uses of outer
space, one would look in particular at the practice of States that have activities in space.

Most ICJ cases also require that the States who engage in the alleged customary practice do so out of a sense of legal
obligation or opinio juris rather than out of comity or for political reasons. In theory, opinio juris is a serious
obstacle to establishing a rule as custom because it is extremely difficult to find evidence of the reason why a State
followed a particular practice. In practice, however, if a particular practice or usage is widespread, and there is no
contrary State practice proven by the other side, the Court often finds the existence of a rule of customary law. It
sometimes seems to assume that opinio juris was satisfied, and it sometimes fails to mention it.

Therefore, it would appear that finding consistent State practice, especially among the States with the most interest
in the issue, with minimal or no State practice to the contrary, is most important. Undisputed examples of rules of
customary law are (a) giving foreign diplomats criminal immunity; (b) treating foreign diplomatic premises as
inviolable; (c) recognizing the right of innocent passage of foreign ships in the territorial sea; (d) recognizing the
exclusive jurisdiction of the flag State on the high seas; (5) ordering military authorities to respect the territorial
boundaries of neighboring States; and (6) protecting non-combatants such as civilians and sick or wounded soldiers
during international armed conflict..

GENERAL PRINICPLES

These are legal precepts found in major national legal

systems but never before used in an international
court. Where there is a gap in international law the
judges have some ability to fill it rather than simply
announcing that the case cannot be decided because
no international law currently exists on the topic.
Examples include the principle of estoppel, the
concept of limitation (prescription), and the principle
that it is the party asserting the fact that bears the
burden of proving it.
Some are derived from the natured the international
legal system, e.g. the legal equality of states and the
prohibition against states operating on another's
territory.
Note: Significance of GA Resolutions?
Resolutions that receive overwhelming support are
treated as evidence of the practice of states and, as
such, may themselves reflect custom.

SUBSIDIARY MEANS

Subsidiary means are not sources of law, instead they are subsidiary means or evidence that can be used to prove the
existence of a rule of custom or a general principle of law.

Article 38 lists only two subsidiary means - the teaching (writings) of the most highly qualified publicists
(international law scholars) and judicial decisions.

Judicial Decisions of National Court

National court decisions play a distinctive dual role in the doctrine of sources: as evidence of State practice, relevant
to the interpretation of treaties and the formation of custom (where domestic judgments play a role in law creation),
and as a subsidiary means of determining the existence and content of international law (where domestic judgments
can be characterized as law enforcement).

First, national court decisions on matters of international law are evidence of the practice of the forum State. A
domestic court decision on international law amounts to State practice, though the weight attributed to it may
depend on the court’s hierarchical status. National court decisions must also be weighed against State practice
generated by other branches of government. Where a court decision coincides with or does not contradict the views
of the legislature and executive, it will represent strong evidence of State practice. Where inconsistencies emerge,
the conflicting practice must be weighed, considering factors such as which branch of government has authority
over the matter.
National court decisions, as evidence of State practice, are relevant to the interpretation of treaties and the existence
of custom under articles 38(1)(a) and (b) of the ICJ Statute. Court decisions by treaty parties amount to subsequent
practice that provides evidence of how those States understand their treaty obligations, which shall be taken into
account in treaty interpretation when it evidences general agreement about interpretation.22 Although opinion is
divided over exactly which acts and statements count for State practice and opinio juris in the formation of custom,
there is general agreement that national court decisions are evidence of one or other element or both elements.
Custom may also be relevant to treaty interpretation

Second, national court decisions may provide a subsidiary means for the determination of international law under
article 38(1)(d) of the ICJ Statute. Article 38(1) distinguishes between three sources (treaties, custom and general
principles) and two subsidiary means of determining the law (judicial decisions and academic writings). In theory,
the subsidiary nature of the latter is intended to reflect the positivist notion that States, and only States, make
international law. The decisions and writings of non-state actors, such as judges and academics, provide important
evidence of the content of international law without being sources per se.

This duality of national court decisions—representing evidence of State practice and a subsidiary means of
determining international law—is unique in the doctrine of sources. Other practice by States, such as executive
statements, military manuals and diplomatic correspondence, provide evidence of State practice only.

Judicial decisions of international courts provide a subsidiary means of determining international

law only. National court decisions alone have the potential to wear both hats and thus their value is
often considered to be mixed, with Brownlie noting that: Some decisions provide indirect
evidence of the practice of the state of the forum on the questions involved; others involve a free
investigation of the point of law and consideration of available sources, and may result in a careful
exposition of the law However, the value of these decisions varies considerably, and many present
a narrow national outlook or rest on a very inadequate use of the sources.

Writings of highly qualified publicists do not include law student articles or notes or doctoral theses.

Cite/Research the following authors based on topic:

1. General Principles of International Law: Bin Cheng; Lauterpacht/Oppenheim

2. General International Law: Ian Brownlie; Anthony Aust, Bernard Shaw, Reinhard Zimmerman
3. General Criminal Law: Antonin Cassesse, Lee
4. Customary International Law: Brownlie; Cassesse; Shaw; Crawford
5. Article on State Responsibility: James Crawford
6. Creation of States: Crawford
7. Evidence in International Law: Amerisinghe
8. UN Charter: Bruno Simma
9. Use of Force: Myres McDougal, Cassesse
10. International Economic Law: Michael Reisman
11. Arbitration: Michael Reisman,
12. Human Rights:

Resolutions of the UN General Assembly or resolutions adopted at major international conferences are only
recommendations and are not legally binding. However, in some cases, although not specifically listed in article 38,
they may be subsidiary means for determining custom. If the resolution purports to declare a set of legal principles
governing a particular area, if it is worded in norm creating language, and if is adopted without any negative votes,
it can be evidence of rules of custom, especially if States have in practice acted in compliance with its terms.
Examples of UN General Assembly Resolutions which have been treated as strong evidence of rules of customary
international law include the following:

• GAR 217A Universal Declaration of Human Rights (1948)

• GAR 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Sovereignty (1965) [Declaration on NonIntervention]
 • GAR 2625 Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations (1970) [Declaration on
Friendly Relations] 6
• GAR 3314 Resolution on the Definition of Aggression

Some of these resolutions have also been treated as subsequent agreement or practice of States on how the
principles and provisions of the UN Charter should be interpreted.

In addition, Article 38 fails to take into account the norm-creating effect of modern global conventions.
Once the international community has spent several years drafting a major international convention, States often
begin in practice to refer to that convention when a problem arises which is governed by the convention - in effect
treating the rules in the Convention as customary. Furthermore, if the Convention becomes universally accepted the
provisions in the Convention may become very strong evidence of the rules of custom, especially if States which are
not parties have also acted in conformity with the Convention. Examples of such conventions would be the 1959
Vienna Convention on Diplomatic Relations and the 1969 Vienna Convention on the Law of Treaties.

SUBJECTS

A. STATE – It is an entity that has a defined
territory and permanent population, under the
control of its own government, and engages in,
or has the capacity to engage in, formal relations
with other such entities (Art. 1, Montevideo
Convention)
Elements:
1. Permanent Population
2. Defined Territory
3. Government
4. Capacity to enter into relations with other
States (Art. 1, Montevideo Convention).
Territory
As a requirement under the Montevideo
Convention, a state must have reasonably
stable political community and this must be
in control of a certain area. The existence of
fully defined frontiers is not required and
that what matters is the effective
establishment of a political community
(Brownlie, 2008).
IMPORTANT CONCEPT:
Delimitation – the process of determining
the land or maritime boundaries of a State,
including that of any continental shelf or
exclusive economic zone, and is generally
done by means of geographical coordinates
of latitude and longitude (Aust, Handbook
on International Law, 2010).
B. UNITED NATIONS
An international organization created at San
Francisco Conference held in the US from April 25 to
June 26, 1945. UN succeeded the League of Nations
and is governed by a charter that came into force on
October 24, 1945.
Principal Purposes of UN:
1. Maintain international peace and security;
2. Develop friendly relations among nations;
3. Achieve international cooperation: and
4. Center for harmonizing actions of nations
for attainment of these common goals.
5.
The UN Charter
 Technically a treaty which parties must
respect under the doctrine of pacta sunt
servanda
 Consists of 111 articles besides the
Preamble and concluding provisions
Principal Organs of the United Nations
1. General Assembly – central organ where all
members are represented. The General Assembly
is not a legislative body; it can only recommend.
Functions of the General Assembly: (SBCDE)
a. Supervisory – receives and considers reports
from other organs of the United Nations.
b. Budgetary – controls the finances of the
United Nations.
c. Constituent – participates in the amendment
of the UN Charter.
d. Deliberative – discusses principles
regarding maintenance of international
peace and security.
e. Elective – elects non-permanent members of
the Security Council, some members of the
Trusteeship Council and all members of the
Economic and Social Council.

2. Security Council – organ responsible for the
maintenance of peace and security; undertakes
preventive and enforcement actions.
3. Economic and Social Council – serves as the
central forum for discussing international
economic and social issues, and for formulating
policy recommendations addressed to Member
States and the United Nations system.
It exerts efforts towards higher standards of
living, solutions of international economic,
social, health and related problems, facilitating
international cultural and educational
cooperation, universal respect for and
observance of human rights and fundamental
freedoms.
4. Trusteeship Council – organ charged with the
administration of the International Trusteeship
System (idle council);
5. INTERNATIONAL COURT OF JUSTICE –
principal judicial organ of UN; World Court
governed by the Statute which is annexed to and
made part of the UN Charter;
The Court’s role is to settle, in accordance with
international law, disputes of legal nature,
submitted to it by States and to give advisory
opinions on legal questions referred to it by
authorized United Nations organs and
specialized agencies.
It is assisted by a Registry, its administrative
organ, and uses English and French as its official
languages.
Membership
 15 members, who are elected by absolute
majority vote in both the General Assembly
and the Security Council. These organs vote
simultaneously but separately.
 No two of them may be nationals of the
same state, and in the event that more than
one national of the same state obtain the
required majority, only the eldest shall be
considered elected.
 Judges must be of high moral character, and
possess the qualifications required in their
respective countries for appointment to their
highest judicial offices, or are jurisconsults
of recognized competence in international
law
 Members of the Court have a term of nine
(9) years, and may be re-elected.
 Should a judge die or resign during his or
her term of office, a special election is held
as soon as possible to choose a judge to fill
the unexpired part of the term.
 Once elected, a Member of the Court is a
delegate neither of the government of his
own country nor that of any other state.
 No judge can be removed unless, in a
unanimous opinion of the other members, he
has ceased to fulfill the required conditions.
 A Member of the Court, when engaged on
the business of the Court, enjoys privileges
and immunities comparable with those of
the head of a diplomatic mission.
 The Court shall elect its President and Vice
President, who shall serve for three years
and may be re-elected. All questions are
decided by majority of the judges present,
the quorum being nine when the full Court
is sitting.
Jurisdiction
a. Interpretation of treaty;
b. Question of international law;
c. Existence of fact constituting a breach of
international obligation;
d. Nature or extent of the reparation to be
made for the breach of an international
obligation; and
e. To render advisory opinions
Contentious Cases – ONLY States (Members of
the UN and other States which have become
parties to the Statute of the Court or which have
accepted his jurisdiction under certain
conditions) may be parties to such cases.
The Court is competent to entertain a dispute
only if the States concerned have accepted or
recognized its jurisdiction in one or more of the
following ways:
1. By
entering into a special agreement to submit
the dispute to the Court
2. By
virtue of a jurisdictional clause, when they
are parties to a treaty concerning a provision
whereby in the event of a dispute of a given
type or disagreement over the interpretation
of the treaty, one of them may refer the
dispute to the Court
 3. Through
reciprocal effect of declarations made by
them under the Statute whereby each has
accepted the jurisdiction of the Court as
compulsory in the event of a dispute with
another State having made a similar
declaration.
 No State can therefore be a party to
proceedings before the Court unless it
has in some manner or other consented
thereto.
Advisory Proceedings – are open solely to the
five organs of the United Nations, and to the 16
specialized agencies of the United Nations.
 The General Assembly and Security Council
may request advisory opinions on “any
legal question”. Other United Nations
organs and specialized agencies which have
been authorized to seek advisory opinions
can only do so with respect to “legal
NATIONALITY
Nationality –is a legal bond having as its basis a
social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the
existence of reciprocal rights and duties. It may be
said to constitute the juridical expression of the fact
that the individual upon whom it is conferred, either
directly by the law or as a result of an act of the
authorities, is in fact more closely connected with the
population of the State conferring nationality than
with that of any other State. (Nottebohm Case,
Liechtenstein v. Guatemala, April 6, 1955)
Citizenship – has a more exclusive meaning in that it
applies only to certain members of the state accorded
more privileges than the rest of the people who owe it
allegiance. Its significance is municipal, not international.
Rules in Determination of Nationality:
The 1930 Hague Convention on Conflict of Nationality
provides for the following rules in determining a person’s
nationality:
STATE RESPONSIBILITY
Concept of State Responsibility – The laws of state
responsibility are the principles governing when and
how a state is held responsible for a breach of an
international obligation.
questions arising within the scope of their
activities.”
 It is of the essence of such opinions that
they are advisory, unlike the Court’s
judgments, they have NO binding effect.
 The requesting organ, agency or
organization remains free to give effect to
the opinion, or not to do so.
 However, certain instruments and
regulations can provide beforehand that an
advisory opinion by the Court shall have a
binding force.
Limitations on Jurisdiction under its statute:
 Only states may be parties in cases before it
 Consent of the parties needed for the court
to acquire jurisdiction over a case
(a) It is for each State to determine under its own rules
who are its nationals. This law shall be recognized by
other States in so far as it is consistent with international
conventions, international custom, and the principles of
law generally recognized with regard to nationality;
(Article 1)
(b) Any question as to whether a person possesses the
nationality of a particular State shall be determined in
accordance with the law of that State. (Article 2)
Acquisition of Nationality:
(1) birth,
(2) naturalization,
(3) repatriation,
(4) subjugation, and
(5) cession
Loss of Nationality:
(1) release
(2) deprivation
(3) renunciation,
(4) substitution
Internationally Wrongful Act – an act or omission
of a state that violates a rule of customary law, or
ignores an obligation of a treaty it has concluded.
(Draft Articles on State Responsibility, Article 19)

Elements of an Internationally Wrongful Act:
1. Act that is attributable to the state under
international law;
2. Must constitute a breach of international
obligation by a state.
(Art. 2, Responsibility of States for Internationally
Wrongful Acts).
Attribution- it is a legal construct whereby an
internationally unlawful conduct of a State organ
acting in that capacity is regarded as the conduct of
the State itself, making that State responsible for it as
an internationally wrongful act. A State is
internationally responsible for its own acts or
omissions, but as an abstract entity it can physically
act only through individuals or groups of individuals
performing “acts of the State” on its behalf
(Differences Relating to Immunity from Legal
Processes of a Special Rapporteur of the Commission
of Human Rights [38 ILM 873,1999]).
Conducts Attributable to the State:
1. The conduct of any of its organs, whether
exercising legislative, executive, judicial or any other
functions (Art 4)
2. The conduct of a person or entity which is
empowered by law of that State to exercise
governmental authority provided the person or entity
is acting in that capacity in that particular instance
(Art. 5)
3. The conduct of a person or group of persons that
is in fact acting on the instructions of, or under the
direction or control of, that State in carrying out the
conduct. (Art. 8)
4. The conduct of a person or group of persons that is
in fact exercising governmental authority in the
absence or default of the official authorities and in
circumstances such as to call for the exercise of that
authority (Art 9)
5. The conduct of an insurrectional movement which
becomes the new Government of a State (Art 10[1])
6. The conduct of a movement, insurrectional or
other, which succeeds in establishing a new State in
part of the territory of a pre-existing State or in a
territory under its administration, shall be considered
an act of the new State (Art 10[2])
7. Conduct which the State acknowledges and adopts
as its own (Art. 11)
(Chapter 2, of the Responsibility of States for
Internationally Wrongful Acts)
Conditions Required for the Enforcement of the
Doctrine of State Responsibility
1. The injured subject must first exhaust all
local remedies, except:
a. No remedies to exhaust (laws are
intrinsically defective)
b. Courts are corrupt
c. No adequate machinery
d. Involves acts of states not subject to judicial
review

SOVEREIGNTY OF STATES OVER TERRITORY

Sovereignty is the exclusive right to exercise supreme political authority over a defined territory (land, airspace and
certain maritime areas such as the territorial sea) and the people within that territory. No other State can have formal
political authority within that State. Therefore, sovereignty is closely associated with the concept of political
independence.

Classical international law developed doctrines by which States could make a valid claim of sovereignty over
territory. The doctrines included discovery and occupation and prescription. During the period of Western colonial
expansion new territories and islands were subject to claims of sovereignty by discovery and occupation.

Sovereignty could also be transferred to another State by conquest (use of force) or by cession where the sovereignty
over the territory would be ceded by treaty from one State to another. 3 Since a State has sovereignty over its
territory, the entry into its territory by the armed forces of another State without consent is a prima facie breach of
international law. Among the attributes of sovereignty is the right to exclude foreigners from entering the territory,
which is traditionally referred to as the right to exclude aliens.

Since a State has sovereignty within its territorial sea (with some exceptions such as the right of innocent passage), it
has the exclusive authority to exercise police power within its territory sea. For example, if foreign ships are
attacked by “pirates” in the territorial sea of a State, the only State that can exercise police power and arrest the
pirates in territorial sea is the coastal State.