EU/INTERNATIONAL LAW PROBLEM 1
Literature:
- Henriksen, International Law, par. 4.2
Case Law:
- Unilateral declaration of independence by Kosovo
Learning objectives:
1. What is self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is secession lawful under international law?
4. In which way is succession of the rights and duties of the new states arranged?
Henriksen, International Law
4.2.2 Recognition
State: the legal entity under international law
Government: the representative of the state to act on the state’s behalf
- There are greater practical effects associated with a lack of recognition of a state than
a government
Traditionally, the doctrinal debate about the effects of recognition of states has been
dominated by two competing approaches:
The declaratory view: the creation of states is primarily a matter of law and the
fulfillment of legal criteria. The most important criteria is effectiveness.
Constitutive view: recognition is a precondition for statehood so unless an entity that
appears to bear the hallmarks of a ‘state’ is recognized as such by other states, it is
not a state in international law. It is a highly problematic approach due to the issue of
relativism; quantity and its absolute existence is seemingly impossible because it
would only exist in relation to the recognition by other states.
Contemporary international law is based on the declaratory approach. According to article 3
of the 1933 Montevideo Convention, the ‘political existence of the State is independent of
recognition by other States’. Three points must be noted;
- Statehood seems to have been denied to entities that would otherwise seem to fulfil
the formal criteria based on the principle that legal rights cannot arise from wrongful
conduct (ex iniuria ius non oritur);
- Acts of recognition have evidentiary value in the sense that they reflect the fact that
other states accept that an entity fulfils the conditions of statehood
- Recognition is also important because it is often a precondition for the establishment
of bilateral relations. So, while a lack of recognition will not invalidate statehood, it
may have important practical consequences for the non-recognized state - such as
not being able to initiate diplomatic representations and treaty relations. However, in
, this regard, it is worth noting that states are not obliged to have diplomatic relations
with each other.
4.2.3 The Montevideo criteria
The 1933 Montevideo Convention on the Rights and Duties of States contains the most
authoritative and accepted criteria/requirements for statehood. Under article 1, a ‘state’
possesses:
1. a permanent population: someone must live on the territory without any further
criteria regarding size.
2. a defined territory: no minimum size; as long as the authorities control a consistent
area of undisputed territory.
3. a government: only criteria is that there is a form of authority over the territory; not
necessarily the entire territory.
4. a capacity to enter into relations with other states: Statehood requires an ability to
act without legal interference from other states.
It is often the lack of legal independence that prevents an otherwise ‘state- like’ entity
from qualifying as a state.
4.2.4 illegality in the creation of the state
An entity may be denied statehood if it has been created in fragrant violation of basic norms
and international law, potentially of a jus cogens (dwingend recht) nature.
Practice seems to confirm the principle of ex injuria jus non oritur.
1. The creation of Rhodesia in violation of the local population’s right to self-
determination
2. The Turkisch Republic of Northern Cyprus which was established through the
unlawful use of force
the result may be different is the unlawful force is used in order to advance the realization
of the right to self-determination of the population Bangladesh/India/Pakistan
4.2.5 the right to self determination
The right to self-determination = all people have a right to freely determine their political
status and pursue their economic, social and cultural development
The most controversial aspect concerns the extent to which it gives a section of a population
a right to secede from an existing state and create a new state in the absence of acceptance
by the government of the mother-state.
The relationship between the right to self-determination and statehood emerged in relation
to Kosovo’s 2018 decision to declare its independence from Serbia. While the ICJ in
Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo had the opportunity to state its position on whether Kosovo was entitled to
secede, it only stated that there are ‘radically different views’ on whether the right to self-
determination offers a right to secession for other peoples than those in ‘non-self-governing
Literature:
- Henriksen, International Law, par. 4.2
Case Law:
- Unilateral declaration of independence by Kosovo
Learning objectives:
1. What is self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is secession lawful under international law?
4. In which way is succession of the rights and duties of the new states arranged?
Henriksen, International Law
4.2.2 Recognition
State: the legal entity under international law
Government: the representative of the state to act on the state’s behalf
- There are greater practical effects associated with a lack of recognition of a state than
a government
Traditionally, the doctrinal debate about the effects of recognition of states has been
dominated by two competing approaches:
The declaratory view: the creation of states is primarily a matter of law and the
fulfillment of legal criteria. The most important criteria is effectiveness.
Constitutive view: recognition is a precondition for statehood so unless an entity that
appears to bear the hallmarks of a ‘state’ is recognized as such by other states, it is
not a state in international law. It is a highly problematic approach due to the issue of
relativism; quantity and its absolute existence is seemingly impossible because it
would only exist in relation to the recognition by other states.
Contemporary international law is based on the declaratory approach. According to article 3
of the 1933 Montevideo Convention, the ‘political existence of the State is independent of
recognition by other States’. Three points must be noted;
- Statehood seems to have been denied to entities that would otherwise seem to fulfil
the formal criteria based on the principle that legal rights cannot arise from wrongful
conduct (ex iniuria ius non oritur);
- Acts of recognition have evidentiary value in the sense that they reflect the fact that
other states accept that an entity fulfils the conditions of statehood
- Recognition is also important because it is often a precondition for the establishment
of bilateral relations. So, while a lack of recognition will not invalidate statehood, it
may have important practical consequences for the non-recognized state - such as
not being able to initiate diplomatic representations and treaty relations. However, in
, this regard, it is worth noting that states are not obliged to have diplomatic relations
with each other.
4.2.3 The Montevideo criteria
The 1933 Montevideo Convention on the Rights and Duties of States contains the most
authoritative and accepted criteria/requirements for statehood. Under article 1, a ‘state’
possesses:
1. a permanent population: someone must live on the territory without any further
criteria regarding size.
2. a defined territory: no minimum size; as long as the authorities control a consistent
area of undisputed territory.
3. a government: only criteria is that there is a form of authority over the territory; not
necessarily the entire territory.
4. a capacity to enter into relations with other states: Statehood requires an ability to
act without legal interference from other states.
It is often the lack of legal independence that prevents an otherwise ‘state- like’ entity
from qualifying as a state.
4.2.4 illegality in the creation of the state
An entity may be denied statehood if it has been created in fragrant violation of basic norms
and international law, potentially of a jus cogens (dwingend recht) nature.
Practice seems to confirm the principle of ex injuria jus non oritur.
1. The creation of Rhodesia in violation of the local population’s right to self-
determination
2. The Turkisch Republic of Northern Cyprus which was established through the
unlawful use of force
the result may be different is the unlawful force is used in order to advance the realization
of the right to self-determination of the population Bangladesh/India/Pakistan
4.2.5 the right to self determination
The right to self-determination = all people have a right to freely determine their political
status and pursue their economic, social and cultural development
The most controversial aspect concerns the extent to which it gives a section of a population
a right to secede from an existing state and create a new state in the absence of acceptance
by the government of the mother-state.
The relationship between the right to self-determination and statehood emerged in relation
to Kosovo’s 2018 decision to declare its independence from Serbia. While the ICJ in
Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo had the opportunity to state its position on whether Kosovo was entitled to
secede, it only stated that there are ‘radically different views’ on whether the right to self-
determination offers a right to secession for other peoples than those in ‘non-self-governing
