Probleem 1
International law: It is traditionally defined as the system oflaw that regulates the interrelationship of
sovereign states and their rights and duties to one another. Public international law is not the same
as 'private international law, which consists of national laws dealing with conflicts of law and
establishes rules for the treatment of cases that involve a foreign element.' Like all law, international
law reflects the society to which it applies. So as international society becomes ever more specialized
and intertwined, so does international law.
the manner in which international law is applied in . . . . national legal systems by the legislature and
national courts. National implementation and crete application of international law is a constitutional
issue that varies from con. b . h l . . h h d . a state to state. Most presentations egin ~ e ana ys1s ~1t t
e t~o 111erent approaches that have dominated legal theory: monism and dualism. Monism holds
that internat· . . 1onal law and national law essentially form a single legal order or a set of mutually .
inter- twined legal orders that are presumed to be coherent. The monist approach therefore also
holds that international law can be applied directly in the national legal system of states and that the
international norm prevails in the case of conflict. The best known exponent of monism was Hans
Kelsen (1881-1973), who argued that international law and national law form a single legal system
because they both derive their validit from the same ultimate source, the Grundnorm. 38 Dualism,
on the other hand, hold: that international law and national law are two separate legal systems that
operate independently. While international law primarily regulates the relationship between states,
national law governs the relationship between citizens or the citizens and the state. Following a
dualistic approach, neither of the two legal systems creates rules for the other, and if international
law is applied domestically it is because it is 'translated' into the national legal system, in most cases
through the adoption of national legislation. In practice, though, neither monism nor dualism can
explain the many ways in which international law is applied by national legislatures and courts.
What is a state according to international law? Henrikse, A. (2017); International Law - Chapter
4.2.2
State: the legal entity under international law. Government: the representative of the state that is
entitled to act on the state’s behalf Traditionally, the doctrinal debate about the effects of
recognition of states has been dominated by two competing approaches: Declaratory view According
to a declaratory view, the creation of states is first and foremost a matter of law and the fulfilment of
legal criteria. As soon as an entity meets a number of requirements, it will enjoy the rights and duties
of a state in international law. Contemporary international law is based on the declaratory approach.
Constitutive view In contrast to the declaratory view, the constitutive view holds that recognition by
other states is a precondition for statehood. Unless an entity that appears to bear all the hallmarks of
a ‘state’ is recognized as such by other states, it is not a state for the purposes of international law.
Henrikse, A. (2017); International Law - Chapter 4.2.3 The 1933 Montevideo Convention on the Right
and Duties of States contains the most authoritative and accepted criteria for statehood. The list of
criteria is clearly based on notions of effectiveness. According to the Convention’s article 1, a ‘state’
must possess the following: 1) A permanent population Requires that someone has made the
territory their home. It is not a requirement that the population in question has a certain size. 2) A
defined territory The entity’s boundaries need not be precisely demarcated and settled. As long as
the authorities control a consistent area of undisputed territory, an entity is likely to fulfil the
requirement of defined territory. ↬ See the North Sea continental shelf case. 3) The existence of a
government Before a territorial entity with a population can be considered a state, it must have
someone who can exercise control over the territory and ensure its compliance with international
obligations. It is not a requirement under the Montevideo Convention that a government is
International law: It is traditionally defined as the system oflaw that regulates the interrelationship of
sovereign states and their rights and duties to one another. Public international law is not the same
as 'private international law, which consists of national laws dealing with conflicts of law and
establishes rules for the treatment of cases that involve a foreign element.' Like all law, international
law reflects the society to which it applies. So as international society becomes ever more specialized
and intertwined, so does international law.
the manner in which international law is applied in . . . . national legal systems by the legislature and
national courts. National implementation and crete application of international law is a constitutional
issue that varies from con. b . h l . . h h d . a state to state. Most presentations egin ~ e ana ys1s ~1t t
e t~o 111erent approaches that have dominated legal theory: monism and dualism. Monism holds
that internat· . . 1onal law and national law essentially form a single legal order or a set of mutually .
inter- twined legal orders that are presumed to be coherent. The monist approach therefore also
holds that international law can be applied directly in the national legal system of states and that the
international norm prevails in the case of conflict. The best known exponent of monism was Hans
Kelsen (1881-1973), who argued that international law and national law form a single legal system
because they both derive their validit from the same ultimate source, the Grundnorm. 38 Dualism,
on the other hand, hold: that international law and national law are two separate legal systems that
operate independently. While international law primarily regulates the relationship between states,
national law governs the relationship between citizens or the citizens and the state. Following a
dualistic approach, neither of the two legal systems creates rules for the other, and if international
law is applied domestically it is because it is 'translated' into the national legal system, in most cases
through the adoption of national legislation. In practice, though, neither monism nor dualism can
explain the many ways in which international law is applied by national legislatures and courts.
What is a state according to international law? Henrikse, A. (2017); International Law - Chapter
4.2.2
State: the legal entity under international law. Government: the representative of the state that is
entitled to act on the state’s behalf Traditionally, the doctrinal debate about the effects of
recognition of states has been dominated by two competing approaches: Declaratory view According
to a declaratory view, the creation of states is first and foremost a matter of law and the fulfilment of
legal criteria. As soon as an entity meets a number of requirements, it will enjoy the rights and duties
of a state in international law. Contemporary international law is based on the declaratory approach.
Constitutive view In contrast to the declaratory view, the constitutive view holds that recognition by
other states is a precondition for statehood. Unless an entity that appears to bear all the hallmarks of
a ‘state’ is recognized as such by other states, it is not a state for the purposes of international law.
Henrikse, A. (2017); International Law - Chapter 4.2.3 The 1933 Montevideo Convention on the Right
and Duties of States contains the most authoritative and accepted criteria for statehood. The list of
criteria is clearly based on notions of effectiveness. According to the Convention’s article 1, a ‘state’
must possess the following: 1) A permanent population Requires that someone has made the
territory their home. It is not a requirement that the population in question has a certain size. 2) A
defined territory The entity’s boundaries need not be precisely demarcated and settled. As long as
the authorities control a consistent area of undisputed territory, an entity is likely to fulfil the
requirement of defined territory. ↬ See the North Sea continental shelf case. 3) The existence of a
government Before a territorial entity with a population can be considered a state, it must have
someone who can exercise control over the territory and ensure its compliance with international
obligations. It is not a requirement under the Montevideo Convention that a government is
