𝙸𝚗𝚝𝚎𝚛𝚗𝚊𝚝𝚒𝚘𝚗𝚊𝚕 𝙻𝚊𝚠 𝙼𝚒𝚍𝚝𝚎𝚛𝚖 👩🏽‍⚖️

Sarah Hrdy

Political communities require common rules:

• prohibitions, permissions and standards of conduct that make collective life possible

• can exist without written codes or state court

Simmel theory of dyad → triad

when a recognised third party appears to mediate or decide a dispute, a form of authority emerges

Historical examples of exchange networks

• violence and warfare

• Obsidian found at Olorgesailie and Sibilo School Road illustrates the existence of long-distance contacts and exchange networks between groups

In what centuries did the “state” become consolidated

sixteenth and nineteenth centuries

law of peoples

• ius gentium

• different meanings, in relation to war, peace and relations between peoples

Jeremy Bentham

• Introduced the expression international law

• It reflected a deeper debate about the foundations of international law:

  • Natural law: rules valid by justice and reason, even without consent.

  • Positivism: rules binding only because States accept them.

international law

• Definition: the body of rules binding States in their relations.

• Two branches:

  • Public international law: regulates relations between States (treaties, borders, law of the sea, use of force).

  • Private international law (conflict of laws): domestic disputes with a foreign element (contracts, family, commercial litigation).

Natural law tradition

• law rooted in justice and reason; valid beyond consent

Positivism

• law based on practice and consent of States; binding because accepted, not because “just.”

• dominated in 19th century

• today there is more of a tension of natural and positivism because of human rights and climate intervention

arguments for the state and “law”

• Hobbes: no sovereign → States remain in a “state of nature.”

• Austin: law = sovereign commands → IL is only “positive morality.”

• Hart: IL has primary rules but few secondary rules → a “primitive system.”

Examples of Secondary rules in INTL

• Vienna Convention on the Law of Treaties (1969) → how treaties are made, interpreted, terminated.

• International Courts and Tribunals (e.g. the ICJ, WTO panels, ICC): institutions with rules of adjudication, clarifying and applying law in disputes.

• ILC Articles on State Responsibility (2001) → when wrongful acts occur, and consequences.

realist critique of the state

• Morgenthau, Kissinger → States follow power/interest

reality of the state

• States rely on international law in their daily practice — they invoke it in negotiations, argue cases before international courts, and domestic courts and administrative bodies apply it

Reasons for compliance

• Interest: cooperation is necessary for trade, stability, alliances.

• Reciprocity: “I comply if you do.”

• Reputation: compliance builds trust; breaches undermine it.

• Pressure: diplomatic protests, countermeasures, and collective action under the UN Charter (arts. 41–42).

Henkin’s dictum

“Almost all nations observe almost all principles of international law almost all of the time.”

Sovereignty

States are independent and formally equal. Sovereignty is both shield and sword: it protects against interference, but also entails responsibilities

Consent

a central basis of international obligation, especially in treaties and customary law

Sources (ICJ Statute, art. 38)

treaties, custom, general principles; subsidiary sources include judicial decisions and scholarship

Institutions

ICJ, ICC, WTO, regional courts (e.g. ECtHR) interpret and apply the law, resolve disputes and promote consistency

The Structural Elements of International Law

• Consent, Sovereignty, Sources, Insitutions

• like pillars

Ethics

about what is good or just (e.g. abolition of slavery, human dignity). Inspires IL, but not binding until accepted as law

Politics

about power and interests. Example: Ukraine — the prohibition of aggression is clear, but enforcement blocked by Security Council vetoes.

Lotus (PCIJ 1927)

sovereignty = freedom unless a rule prohibits; restrictions not presumed (iuris tantum presumption)

Wimbledon (PCIJ 1923)

binding oneself by treaty is an act of sovereignty, not its loss

Pacta sunt servanda (VCLT 1969, art. 26)

agreements must be kept. Cornerstone principle → sovereignty expressed through binding commitments

How International Law differs from Domestic Law

• Decentralization

• Consent

• Reciprocity

• Self-help

Decentralization

• Domestic law: centralized → parliament makes laws, courts interpret them, police enforce them

• International law: decentralized → no world legislature, no compulsory court for all disputes, no global police; lawmaking and enforcement are horizontal (between States).

Consent

• Domestic law: binds individuals automatically, whether they consent or not (e.g. you must pay taxes once the law is passed).

• International law: binds States only if they accept obligations (through treaties or custom)

Reciprocity

• Domestic law: applies equally to everyone; your rights don’t vanish if your neighbour breaks the law.

• International law: compliance often rests on reciprocity: States comply because they expect others to do the same. Breaches usually invite:

  • Retorsion: unfriendly but lawful acts (e.g. cutting aid, trade restrictions).

  • Countermeasures: normally unlawful acts that become lawful as proportionate responses to a prior breach (ILC 2001, arts. 49–54).

Self-help

• Domestic law: only the State enforces rules; individuals cannot punish others themselves.

• International law: in the absence of a higher authority, States themselves react when rules are broken.

• Strict limit: the use of force is prohibited, except in self-defence (UN Charter, art. 51) or when authorized by the Security Council.

International law is…

positive law, created by States and binding because States accept it

Without international law, the international system would lack the basic structures of order and cooperation. In particular:

• Trade and investment

• Diplomacy

• Human rights and minority protection

• The use of force and weapons of mass destruction

• Global problems and shared spaces (oceans, climate, cyberspace, outer space)

• Legal argument itself matters: common rules give States shared standards for justification, criticism, negotiation and adjudication, even when those rules are breached.

Rule (Hart/Dworkin)

• A determinate prescription of conduct that provides an “all-ornothing” answer

• If the conditions stipulated by a rule are satisfied and the rule is valid, it attaches a specific legal consequence that must be accepted; if not, it has no application. Validity depends on a recognized source (treaty, custom, etc.).

Principle (Dworkin/Alexy)

• A normative standard that expresses a value or reason, pointing in a certain direction but not mandating a single determinate outcome

• Even when the conditions for its application are satisfied, it does not automatically produce legal consequences; rather, it must be balanced against other principles and considered to the greatest extent possible

Act/Decision: (Hart)

• An institutional act under a rule of adjudication: an international court or tribunal applies rules and principles to settle a dispute.

• A decision is not itself a rule, though it may shape future law (precedent).

Rule + Principle

• Rule = a determinate prescription regulating conduct that operates in an “all-ornothing” fashion, attaching a specific consequence when its conditions are met.

• Principle = a normative standard expressing a value or reason, guiding interpretation and balancing, but not mandating a single determinate outcome.

• Decision = institutional act applying both.

Primary Rules

• Definition: Rules that directly regulate conduct.

• Examples:

  • UN Charter Art. 2(4): States must not use force (negative obligation).

  • ICESCR Art. 13(2)(a): States must provide free primary education (positive obligation).

  • ICCPR Art. 19(2): Individuals may express opinions (positive permission).

Secondary Rules

• Definition: Rules about how primary rules work.

• Function: they do not regulate behaviour directly, but organize the legal system.

• Types:

  • Rule of recognition: how to identify valid law.

  • Example: ICJ Statute Art. 38 lists treaties, custom, general principles.

  • Rule of change: how to create, amend, or repeal rules.

  • Example: Vienna Convention rules on amendment and termination of treaties.

  • Rule of adjudication: how to determine violations and resolve disputes.

  • Example: jurisdiction of the ICJ or ICC.

Hittite treaties (2nd millennium BCE)

• earliest surviving border treaty

• Military obligations

• Extradition

• Commerce

• Religious guarantees

• Detailed clauses defining obligations, exceptions and consequences of  breach.

Egypt–Hittite Peace Treaty (1259 BCE)

• Shows idea of permanent peace existed thousands of years earlier. Ancient Greece (5th–4th c. BCE)

• City-states concluded peace treaties and alliances.

• Examples:

o Truces during Olympic Games.

o Prisoner exchanges.

Use of arbitration in disputes

• Treaties with Persia → early demonstration of cross-cultural diplomacy. Rome

• Concluded foedera (treaties) with allies and conquered peoples.

• Developed jus gentium (“law of peoples”):

o Applied to foreigners and Romans alike.

o Provided model for later European “law of nations.”

Lesson (Ancient Period)

• Long before modern States: rulers knew power alone was not enough

• Coexistence required rules → obligations that others were expected to respect

• Borders, alliances, asylum, commerce, extradition: all core themes of international law already present.

The Middle Ages (5th–15th c.) to the Peace of Westphalia (1648) Key idea

• International law existed in the Middle Ages, but in a very different form.

• Political order = fragmented, overlapping, tied to religion and empire.

• Sovereignty (as we currently understand it) did not exist yet.

Fragmentation of power

• Medieval Europe = highly fragmented.

• Kings shared power with barons and feudal lords → each commanded armies

• Externally, rulers owed allegiance to Pope and Holy Roman Emperor. • Result: still no single, unified concept of sovereign independence.

Overlapping legal orders Medival Times

• Feudal law.

• Local custom

• Canon law (Church law)

• Natural justice

Gratian’s Decretum (1140)

• First systematic codification of canon law.

  
  

• Functioned as a kind of “Constitution of Christendom.”

  
  

• Provided rules valid across kingdoms.

Peace of Westphalia (1648)

• • Turning point: ended the Thirty Years’ War (Catholic vs. Protestant conflict).

• Outcomes:

  
  

• Recognition of Protestant states → independence from the Church.

  o Holy Roman Empire: ≈300 principalities, duchies, bishoprics, free cities

  recognized → right to make alliances (with limits).

  o France, Sweden, Netherlands emerged as major powers.

  o Switzerland and Netherlands confirmed as independent.

  o Sharp decline of papal and imperial authority.

  o Relations among states increasingly based on legal equality.

Why Westphalia matters

• • Did not “invent” sovereignty, but consolidated the shift:

  o From overlapping authorities → to independent, equal states.

  o From religion-based hierarchy → to secular balance of powers.

  • Birth of the modern state system.

Treaty of Utrecht (1713)

• Ended the War of the Spanish Succession.

  
  

• Spain ceded territories.

  
  

• France accepted limits on expansion.

  
  

• Britain gained Gibraltar + colonies.

  
  

• Preserved the European balance.

Treaty of Paris 1763

• Ended the Seven Years’ War.

  
  

• France lost Canada and part of India.

  
  

• Britain became leading colonial power.

French Revolution (1789)

• Liberty, equality, rights of peoples.

• Denied rulers’ right to treat territory/population as dynastic property.

• Declaration of the Rights of Man and Citizen (1789):

o Article 1: “Men are born and remain free and equal in rights.”

o Article 2: purpose of political association = secure natural rights (liberty,

property, security, resistance to oppression).

• Impact: legitimacy shifted from monarchs to peoples.

• Introduced individual rights + popular sovereignty into international debate.

Napoleonic Wars (1792–1815)

• French armies redrew European map.

• Balance of power shattered.

• Liberation ideals → turned into domination.

• By 1815, Europe exhausted.

• Congress of Vienna (1815): restored order, balance after Napoleon.

• Marked the end of the classical era → opened a new 19th-century system: balance of

power managed through congresses and great-power consultation.

The Congress System (1815–1822)

• Early, more formal phase of great-power consultation.

• • Innovation: a series of periodic congresses to consult and manage crises, not simply

  to end wars.

  • Great Powers: Austria, Prussia, Russia, Britain; France reintegrated in 1818.

Key Congresses

• Aix-la-Chapelle (1818):

  o Occupation of France ended.

  o France readmitted as a Great Power.

  o → Former enemy reintegrated to preserve stability.

• Troppau (1820) / Laibach (1821):

  o Austria, Prussia and Russia defended intervention against revolutionary

  movements.

  o Austria intervened in Naples.

  o Britain opposed systematic interference in domestic affairs.

  o → Peacekeeping or protection of monarchy?

• Verona (1822):

  o Intervention in Spain became the central dispute.

  o France invaded Spain in 1823 to restore Ferdinand VII’s absolute rule.

  o Britain opposed the interventionist approach.

  o → Periodic congress diplomacy came to an end

From Congress System to the Broader Concert of Europe

• Congress System: early, more formal phase of the broader Concert practice.

• After 1822 → great-power consultation became more flexible and ad hoc.

• Concert = habit of consultation among Great Powers during major crises.

• Methods:

o ad hoc conferences;

o shifting alliances;

o continuous diplomacy.

The Concert in Action

• Crimean War (1853–1856):

o Britain + France joined the Ottoman Empire to check Russian expansion.

o Treaty of Paris (1856): Black Sea neutralized.

o → Balance-of-power logic: Russian expansion checked.

• Congress of Berlin (1878):

o Great Powers revised the settlement imposed after Russia’s victory over the

Ottomans.

o Serbia, Romania, Montenegro → independence.

o Bulgaria → autonomous principality under Ottoman suzerainty.

o → Balance restored, tensions deferred.

Hague Peace Conferences (1899, 1907)

1. Participation widened beyond Europe (United States, Mexico, China, Japan,

Persia, Siam; by 1907, also a much broader Latin American presence, including

Argentina and Brazil).

2. Developed common rules on warfare and peaceful settlement of disputes.

3. Strengthened international arbitration and international law-making.

74. Participation expanded from 26 States in 1899 to 44 in 1907 → A major step

toward a broader, increasingly global international legal order.

5. But internationalization had clear limits: much of the world remained under

colonial rule or outside the circle of fully recognized sovereign States (most of

Africa and significant parts of Asia) → Internationalization was expanding, but

not on equal terms.

Unequal treaties in china

• First Opium War (1839–42) → Treaty of Nanking (1842):

o Hong Kong ceded;

o five treaty ports opened;

o indemnity imposed.

• Further agreements → consular jurisdiction (foreign nationals subject to their own

consular courts in important civil and criminal matters).

→ Formal sovereignty, but heavily constrained autonomy

Ottoman Empire: Capitulations

• Capitulations: privileges concerning commerce, taxation and consular jurisdiction.

• Originally: sovereign concessions granted by a powerful Ottoman Empire.

• Later: increasingly treated by European powers as entrenched rights.

• By the 19th century: they had become instruments of legal inequality

Africa: Colonial Expansion and Partition

• European-African diplomacy and treaty-making existed before partition.

• Late 19th century → treaties increasingly used to claim:

o protectorates;

o territory;

o spheres of influence.

Berlin Conference (1884–85)

Ethiopia

• Treaty of Wuchale (1889): Italian and Amharic versions differed.

• Italy claimed protectorate → Ethiopia rejected.

• Battle of Adwa (1896): Ethiopia defeated Italy and preserved independence.

→ Sovereignty defended through law + resistance

Slavery Convention (1926):

international commitment toward abolition

(“progressively and as soon as possible”).

Key idea: International law became increasingly global, but not on equal terms

→ Formal equality for some; hierarchy and subordination for others.

→ Central legacy: the tension between universality and hierarchy.

Independence

• 1776: United States declared independence after war with Britain.

• 1810–1825: Spanish colonies (Venezuela, Argentina, Chile, Mexico, Peru, etc.) gained

independence.

• 1822: Brazil separated from Portugal.

• Problem: how could these new States defend independence against return of European

powers?

Arbitration: innovation from the America

Alabama Claims (1872):

o Britain paid compensation to US for Confederate ships built in British yards (CSS

Alabama).

o First major dispute between great powers resolved by arbitration, not war.

o Precedent: peaceful arbitration possible even among great powers.

• Significance: paved way for Hague Peace Conferences (1899, 1907) and modern

arbitration.

The Drago Doctrine (1902)

• Response to Venezuela blockade.

  
  

• Proposed by Argentine Foreign Minister Luis María Drago.

  
  

• Principle: A State’s public debt does not justify armed intervention or occupation of

  its territory.

• Status: not binding law, but influential as a normative claim.

  
  

• United States did not accept Drago’s position, but later supported a narrower limit on the use of armed force, subject to arbitration.

Lessons (Americas)

• Americas were not just receivers of European law.

• They contributed:

o Monroe Doctrine (1823).

o Drago Doctrine (1902).

o Arbitration (Alabama Claims, 1872).

• Tried to protect sovereignty, resist empire, and innovate legal practice.

• But contradictions:

o The United States opposed European intervention while expanding its own

power in the hemisphere.

o Latin American States defended sovereignty and non-intervention, yet

remained vulnerable to coercion by stronger powers.

• International law in the Americas: a history of independence, legal innovation, and

persistent tension.

The Great War (1914–1918

• Catastrophic conflict: more than 10 million dead.

  
  

• Empires collapsed (Austro-Hungarian, Ottoman, Russian, German).

  
  

• Borders redrawn across Europe and the Middle East.

  
  

• Raised urgent question: could international law prevent such devastation again?

Treaty of Versailles (1919)

• Article 231 (War Guilt Clause): placed sole responsibility on Germany.

  
  

• Germany lost:

  o 1/3 of its territory.

  o Colonies.

  o Required to pay reparations.

  • Versailles was not just a peace settlement → first attempt at “global constitutional

  design.”

  • Law to remake the world, not just Europe

Russian Revolution (1917)

• Bolsheviks challenged foundations of international law.

• Declared old “bourgeois” treaties not binding.

• Published Allies’ secret treaties to expose imperialism.

• Later moderated stance → accepted trade and diplomatic relations.

Collective security (Arts. 10–16)

o War declared illegitimate as a tool of policy.

o Members committed to peaceful dispute settlement, arbitration, and collective

action against aggressors.

o Weakness: unanimity required → even aggressors could block action (veto).

Mandates system (Art. 22)

o Former colonies of defeated powers placed under international supervision.

o Categories:

▪ Class A: “almost ready” for independence (Iraq, Syria, Lebanon,

Palestine).

▪ Class B: under stricter control (Tanganyika, Cameroon, Togo).

▪ Class C: treated as integral parts of mandatory states (Namibia, New

Guinea, Pacific islands).

Failures in practice

• Japan in Manchuria (1931): League condemned but did not act → Japan withdrew

  (1933).

  
  

• Italy invades Ethiopia (1935–36): League sanctions omitted oil and failed to stop the

  conquest.

  
  

• Spanish Civil War (1936–39): The League condemned the bombing of open towns

  (1937), but the Non-Intervention Committee failed to stop foreign intervention.

  
  

• Japan invaded China (1937): verbal protests, no action.

  
  

• Soviet invasion of Finland (1939): USSR expelled, but WWII began weeks later.

Birth of the United Nations

• Atlantic Charter (1941): Roosevelt + Churchill promised no territorial expansion, self-

determination, disarmament, collective security.

• Became blueprint for postwar order.

• Dumbarton Oaks (1944): draft of UN Charter.

• San Francisco (1945): 51 states signed Charter (26 June).

• Entered into force: 24 October 1945.

Expansion of international law

• Cold War → Security Council often paralysed by veto.

• Collective security rarely worked.

• But law expanded into new domains:

o Investment law: ICSID Convention (1965). Investors could sue states directly.

o Trade law: WTO (1995), binding dispute settlement.

o Criminal law: Rome Statute (1998), ICC for genocide, crimes against humanity,

war crimes.

o Environmental law: Kyoto Protocol (1998), Paris Agreement (2015).

The core 7 Principles: UN Declaration on Friendly relations (1970)

• Sovereign Equality of States

• Non-Intervention in Domestic Affairs

• International Cooperation

• Peaceful Settlement of Disputes

• Prohibition of the Threat or Use of Force

• Self-Determination of Peoples

• Fulfilment in Good Faith of International Obligations (pacta sunt servanda

Sovereign Equality of States

• UN Charter, Art. 2(1): UN is based on the sovereign equality of all its Members.

  
  

• Meaning: States have equal legal status. Each UN Member has one vote in the General

  Assembly (Art. 18), and every State has the capacity to conclude treaties (Vienna

  Convention on the Law of Treaties, Art. 6).

  
  

• Significance: It provides a formal basis for negotiations among States with unequal

  power and resources.

Non-Intervention in Domestic Affairs

• UN Charter, Art. 2(7): limits UN intervention in matters essentially within a State’s

  domestic jurisdiction, without prejudice to enforcement measures under Chapter VII.

  
  

• Inter-State principle: Resolution 2625 states that no State may intervene in matters

  another State is entitled to decide freely.

• ICJ (Nicaragua v. United States, 1986): U.S. support for armed opposition violated

  the principle because it sought to coerce Nicaragua over its political choices.

  
  

• Current challenge: The key issue is whether they coerce a State in a matter it is

  entitled to decide freely

International Cooperation

• • UN Charter: Articles 1(3), 55 and 56 make international cooperation a UN purpose and

  commit Member States to take joint and separate action with the Organization.

• Resolution 2625: affirms a duty of States to cooperate across political, economic and

  social differences, including to promote peace, development, general welfare and

  respect for human rights.

• Legal weight: The Charter sets broad commitments; specific treaty regimes establish more detailed obligations in areas such as public health, climate and trade.

• Key idea: Sovereignty and cooperation are compatible: States cooperate under

  international law to address shared problems.

Peaceful Settlement of Disputes

• UN Charter: Art. 2(3) + Art. 33.

• States must resolve disputes by peaceful means: negotiation, inquiry, mediation,

  conciliation, arbitration, judicial settlement.

• Freedom of choice: A State cannot be forced into adjudication without its consent.

• Key point: Prohibits resorting to violence to settle disputes.

Prohibition of the Threat or Use of Force

• UN Charter: Art. 2(4) → a cornerstone of the system.

• Recognised as jus cogens: a peremptory, non-derogable norm overriding treaties

  (VCLT 1969, Art. 53).

Exceptions:

o Self-defence after an armed attack (Art. 51 UN Charter).

o Security Council authorisation for collective measures (Chapter VII).

• Core idea remains: no aggression, no conquest, no unilateral use of force.

Self-Determination of Peoples

• UN Charter: Arts 1(2), 55; reaffirmed in Resolution 2625.

• Historic role: legal foundation of decolonisation, enabling colonised peoples to choose their future as political communities.

• Territorial integrity: A claim to secede must be considered in light of the existing

• Key point: The right to self-determination is established; a general right to unilateral secession outside decolonisation is not

Fulfilment in Good Faith of International Obligations (pacta sunt servanda)

• UN Charter: Art. 2(2); VCLT 1969: Art. 26; reaffirmed in Resolution 2625.

• Importance: The “glue” of the system — without it, treaties and rules would be empty words.

• Was an essential basis for consent

• Cannot be invoked for boundary treaties or to evade jus cogens obligations.

A subject

• any entity recognized as having capacity to:

• hold rights

• bear duties

• participate in legal processes at the international level

The State — Classical Answer

• For centuries, only States were subjects of international law

• From the Peace of Westphalia (1648) to the 19th century: o law of nations = law among sovereign States

• States concluded treaties, waged wars, exchanged ambassadors

• Sovereignty → Even today, the State remains the primary and central subject

International Organizations

• Created by States through treaties to perform common functions

• Have distinct international legal personality

• Can:

  • conclude treaties

  • bring claims

  • bear rights and obligations

  • Personality is functional — limited to what is necessary for duties

  • Examples: UN, EU, WHO, WTO. → Governed by the principle of speciality — powers limited to founding treaties.

National Liberation Movements

• Gained international recognition during decolonization (1960s–70s) as representatives of peoples entitled to self-determination

• Acquired limited international legal personality, enabling certain movements to participate in international organizations, negotiate and conclude agreements

Armed Groups and De Facto Authorities

• Non-State actors controlling territory and exercising governmental functions

• Not recognized as lawful governments but bound by international humanitarian law (IHL)

• Humanitarian obligations apply to non-State armed groups regardless of their legal recognition or political legitimacy.

Special Historical Entities

• Unique entities recognized for historical or functional reasons:

  • Holy See (Vatican City): sovereign since 1929, observer at UN, concludes concordats.

  • Sovereign Order of Malta: no territory, diplomatic relations with ~100 States, observer at UN → Recognition grounded in historical continuity and humanitarian role

Individuals

• After WWII → direct rights and duties emerged.

• Rights + Duties

• Duties: Individual criminal responsibility for genocide, war crimes, crimes against humanity; Nuremberg and Tokyo Tribunals (1945–46) → “Crimes are committed by men, not abstract entities”

Companies and Business Entities

• Historically powerful (e.g., East India Companies)

• Modern corporations have functional but limited international status.

• Rights: may bring claims directly against States

• Duties: Expected to respect human rights and environmental norms. Due diligence across global supply chains. → Companies can sue, be sued, and be regulated internationally — hybrid actors with growing relevance.

international legal personality

• the state

• meaning it can → possess rights and obligations, act on the international stage, and be responsible for internationally wrongful acts.

The Montevideo Convention (1933) defines 4 essential elements of statehood:

1. Defined territory (borders may be disputed).

2. Permanent population.

3. Government exercising effective authority.

4. Capacity to conduct foreign relations.

•When these four conditions are met → an entity may qualify as a State under international law.

• Recognition by other States confirms, but does not constitute, that status.

Theories of Statehood

• Declaratory theory: statehood exists once the Montevideo conditions are met; recognition only acknowledges it.

• Constitutive theory: a State exists only when recognized by others.

Statehood Examples

• South Sudan (2011) — independence, widespread recognition and UN membership → undisputed statehood.

• Palestine — widely recognized; UN non-member observer State; party to the Rome Statute → contested statehood.

• Kosovo (2008)—ICJ (2010): declaration of independence did not violate international law → contested statehood and recognition.

• Taiwan — effective self-government, but limited diplomatic recognition → statehood contested despite effective control.

• Catalonia (2017) — unilateral declaration without effective independence or international recognition → no separate statehood.

Article 4 — Conduct of State Organs

• The conduct of any State organ is considered an act of the State:

• whether legislative, executive, judicial, military, or local. o even if it violates domestic law.

• Once an organ acts in an official capacity, the act is attributed to the State.

Article 5 — Entities Exercising Governmental Authority

• Conduct of entities empowered by law to exercise public authority is also attributable to the State

• Applies even if they are not formal organs

Article 7 — Ultra Vires Acts

• Acts of a State organ that exceed authority or violate instructions (ultra vires) remain attributable to the State if performed in an official capacity. → Even unlawful or unauthorized acts can engage State responsibility.

Article 8 — Instructions, Direction or Control

• private conduct under State instructions, direction or control

• Effective control (ICJ): control over the specific operation in which the wrongful conduct occurs.

• Nicaragua v. United States (1986)

Article 11 — Acknowledgement and Adoption

• initially private conduct subsequently adopted by the State

• Case: Tehran Hostages (ICJ, 1980): Iran adopted the continuing occupation of the US Embassy and detention of its staff.

• A State can make initially private conduct its own through subsequent adoption.