International and EU law
Problem 1
International law = 1) rules that govern relationships between states 2)
nowadays: it’s more
Subjects of international law = those to whom the international legal system
gives the capacity to hold rights, powers and/or obligations.
-> legal personality is relative (Reparations for Injuries): legal subjects aren’t
necessarily identical in their nature or in the extent of their rights, and their
nature depends upon the needs contempof the community.
The principle features of international legal personality include:
1) The capacity to bring claims in respect of breaches of international law
2) The capacity to conclude treaties
3) The enjoyment of privileges and immunities from the exercise of national
jurisdiction
States have all these capacities, other actors only possess the rights and
obligations given to them -> non-state actors derive their legal personality
from states. (Unilateral Declaration of independence by Kosovo, par. 116-
117: not uncommon for Security Council (= verantwoordelijkheid is
handhaven van internationale veiligheid en vrede) to make demands on
actors other than states and international institutions)
Introduction: states are the most important international legal actors and are the
only actors that can create international law. In 20th century an emergence of a
large number of new states.
Recognition: the state is a legal entity and the government represents and acts
on behalf of the state. When a government isn’t recognized, that doesn’t mean
the state isn’t recognized. Two approaches on the effects of recognition:
Declaratory view = a state is such when it fulfils the Montevideo criteria ->
the important criterion is essentially the entity’s effectiveness (leading
view)
Constitutive view = a state is such once recognized by other states of the
international community (positivism)
Contemporary international law is generally based on the declaratory approach,
several points must be noted:
1. Ex injuria jus non oritur = legal rights cannot arise from wrongful conduct,
this sometimes leads to a denial of statehood to entities that fulfil the
formal criteria
2. Rejecting constitutive view doesn’t mean that acts of recognition are
entirely irrelevant -> they reflect that other states believe that an entity
fulfils the conditions for statehood.
3. Recognition has practical importance in interstate relations, because it is a
precondition for the establishment of bilateral relations.
1
,The Montevideo criteria: art. 1 of the Montevideo Convention 1993, a state
possesses -> to have statehood (status van onafhankelijke staat): (video
PowerPoint)
1) A permanent population = someone lives on the territory. the population
doesn’t have to be of a certain size -> important: a certain amount of
individuals that respond to the command and legal system introduced by the
government
2) A defined territory = authorities control a consistent area of undisputed
(algemeen erkend) territory -> we need a certain definition of the territory,
but some level of uncertainty of the exact boundaries is acceptable.
North sea continental shelf
3) A government = someone (an authority) must exercise control over the
territory and be able to run its affairs and ensure that it can comply with
international obligations.
The government doesn’t have to be able to exercise its authority
throughout the entire territory.
It is considered the internal dimension of sovereignty: it is important
that you have a certain level of internal entity that is able to impose
certain commands, and that these commands are responded by the
population.
International law does not impose a certain form of government ->
important!!, the government just has to be able to exercise its authority
over the territory
The requirement of effective government is relevant when a state has
been established
4) A capacity to enter into relations with other states legal independence is
important: statehood requires ability to act without legal interference from
other states = external dimension of sovereignty.
All these criteria rest on the principle of effectiveness -> the control and
authority from the government needs to be effective, the relations need to
be effective
Illegality in the creation of a state: an entity that fulfils the Montevideo criteria
may be denied statehood because it has been created in violation of basic norms
of international law.
Principle ex injuria jus non oritur : legal rights cannot arise from the wrongful
conduct (onrechtmatig gedrag), examples:
Rhodesia: violation of the local population’s right of self-determination
Turkish Republic of Northen Cyprus: established through the unlawful use
of force
However, state practice is not entirely consistent with the ex injuria jus non oritur
principle -> Bangladesh: also establish through the unlawful use of force. (the
case here was that unlawful force was used to advance the realization of the right
to self-determination of the population)
1. What is the (internal and external) right to self-determination
(zelfbeschikkingsrecht van volken)? And what are the conditions thereof?
2
,Self-determination = the right of all people to freely determine their political
status and pursue their economic, social and cultural development, found in art.
1 of the UN Charter. ICJ stated that the right to self-determination is an essential
principle of international law that has an erga omnes character = towards all,
universally applicable to everyone
The right to self-determination is limited by the principle of territorial integrity
states (principe dat stelt dat de grenzen van staten niet gewijzigd mogen
worden) -> there’s a trade-off between the rights of people to have their own
state vs the maintenance of international peace and stability.
History: the right to self-determination only emerged as a fundamental principle
of international law at the decolonization process after the end of WW2. Question:
how can people have the right to self-determination an yet countries have a right
to have their borders respected? -> in effect two distinct forms of self-
determination now emerged.
The right to self-determination is divided into internal and external self-
determination:
1) Internal (autonomy), departure point of this right -> normally the right tot
self-determination is fulfilled by this internal self-determination. People
pursue their political, economic, social and cultural development within the
framework of an existing state. Does not confer a the option of seceding!
Example: Friesland -> substate entity enjoy a certain level of
autonomy, they have their own subgovernment and they contribute to
define the general direction of the politics of the entire state.
2) External (statehood), in extreme cases -> includes the option of seceding.
This arises only in the most extreme cases. The option to become a
separate entity from the mother state -> exercise autonomy to become a
higher level.
According to the court: colonial people and people who are subject to
alien subjugation, domination or exploitation (extreme oppression) have
a right to external self-determination that may entitle them to create
their own independent state.
o Under colonial rule -> independent states
o Alien subjugation: territories under foreign military occupation
o Exception: extreme oppression -> remedial secession =
additional right to secede in exceptional circumstances: not
widely accepted
Example: Friesland becomes separate of the Netherlands.
International stability and predictability is in favour of keeping the territorial
integrity of a mother-state and requiring people to pursue their right to self-
determination within their existing state.
Two points must be made:
1) An affirmed right to external self-determination doesn’t have to lead to a
claim for secession and the creation of a new independent state. People
with a right to statehood may decide that their interest are best served by
remaining with an existing state -> example: Greenland and Denmark.
3
, 2) A mother-state can always consent to the secession of part of its territory
whereby the seceding entity can seek to create an independent state.
Does the principle provide a claim for all peoples to secede (afscheiden) and
become an independent state? No: the right to self-determination isn’t the right
to secede from an existing state. -> great debate among scholars:
- Pacific (= all scholars tend to agree) claim for people under colonial rule
and alien (foreign) subjugation -> they can claim external self-
determination
- Debated whether it also supports secession for other peoples: doctrine and
case-law seems to be open to the possibility of remedial secession only in
extreme cases of denial from meaningful exercise of internal self-
determination
-> example: South-African apartheid -> ruled by a white elite, black people
weren’t represented in the government, they couldn’t determine their own
destiny or political status. -> in these extreme cases of denial from
meaningful exercise of internal self-determination, then remedial secession
is possible.
4
Problem 1
International law = 1) rules that govern relationships between states 2)
nowadays: it’s more
Subjects of international law = those to whom the international legal system
gives the capacity to hold rights, powers and/or obligations.
-> legal personality is relative (Reparations for Injuries): legal subjects aren’t
necessarily identical in their nature or in the extent of their rights, and their
nature depends upon the needs contempof the community.
The principle features of international legal personality include:
1) The capacity to bring claims in respect of breaches of international law
2) The capacity to conclude treaties
3) The enjoyment of privileges and immunities from the exercise of national
jurisdiction
States have all these capacities, other actors only possess the rights and
obligations given to them -> non-state actors derive their legal personality
from states. (Unilateral Declaration of independence by Kosovo, par. 116-
117: not uncommon for Security Council (= verantwoordelijkheid is
handhaven van internationale veiligheid en vrede) to make demands on
actors other than states and international institutions)
Introduction: states are the most important international legal actors and are the
only actors that can create international law. In 20th century an emergence of a
large number of new states.
Recognition: the state is a legal entity and the government represents and acts
on behalf of the state. When a government isn’t recognized, that doesn’t mean
the state isn’t recognized. Two approaches on the effects of recognition:
Declaratory view = a state is such when it fulfils the Montevideo criteria ->
the important criterion is essentially the entity’s effectiveness (leading
view)
Constitutive view = a state is such once recognized by other states of the
international community (positivism)
Contemporary international law is generally based on the declaratory approach,
several points must be noted:
1. Ex injuria jus non oritur = legal rights cannot arise from wrongful conduct,
this sometimes leads to a denial of statehood to entities that fulfil the
formal criteria
2. Rejecting constitutive view doesn’t mean that acts of recognition are
entirely irrelevant -> they reflect that other states believe that an entity
fulfils the conditions for statehood.
3. Recognition has practical importance in interstate relations, because it is a
precondition for the establishment of bilateral relations.
1
,The Montevideo criteria: art. 1 of the Montevideo Convention 1993, a state
possesses -> to have statehood (status van onafhankelijke staat): (video
PowerPoint)
1) A permanent population = someone lives on the territory. the population
doesn’t have to be of a certain size -> important: a certain amount of
individuals that respond to the command and legal system introduced by the
government
2) A defined territory = authorities control a consistent area of undisputed
(algemeen erkend) territory -> we need a certain definition of the territory,
but some level of uncertainty of the exact boundaries is acceptable.
North sea continental shelf
3) A government = someone (an authority) must exercise control over the
territory and be able to run its affairs and ensure that it can comply with
international obligations.
The government doesn’t have to be able to exercise its authority
throughout the entire territory.
It is considered the internal dimension of sovereignty: it is important
that you have a certain level of internal entity that is able to impose
certain commands, and that these commands are responded by the
population.
International law does not impose a certain form of government ->
important!!, the government just has to be able to exercise its authority
over the territory
The requirement of effective government is relevant when a state has
been established
4) A capacity to enter into relations with other states legal independence is
important: statehood requires ability to act without legal interference from
other states = external dimension of sovereignty.
All these criteria rest on the principle of effectiveness -> the control and
authority from the government needs to be effective, the relations need to
be effective
Illegality in the creation of a state: an entity that fulfils the Montevideo criteria
may be denied statehood because it has been created in violation of basic norms
of international law.
Principle ex injuria jus non oritur : legal rights cannot arise from the wrongful
conduct (onrechtmatig gedrag), examples:
Rhodesia: violation of the local population’s right of self-determination
Turkish Republic of Northen Cyprus: established through the unlawful use
of force
However, state practice is not entirely consistent with the ex injuria jus non oritur
principle -> Bangladesh: also establish through the unlawful use of force. (the
case here was that unlawful force was used to advance the realization of the right
to self-determination of the population)
1. What is the (internal and external) right to self-determination
(zelfbeschikkingsrecht van volken)? And what are the conditions thereof?
2
,Self-determination = the right of all people to freely determine their political
status and pursue their economic, social and cultural development, found in art.
1 of the UN Charter. ICJ stated that the right to self-determination is an essential
principle of international law that has an erga omnes character = towards all,
universally applicable to everyone
The right to self-determination is limited by the principle of territorial integrity
states (principe dat stelt dat de grenzen van staten niet gewijzigd mogen
worden) -> there’s a trade-off between the rights of people to have their own
state vs the maintenance of international peace and stability.
History: the right to self-determination only emerged as a fundamental principle
of international law at the decolonization process after the end of WW2. Question:
how can people have the right to self-determination an yet countries have a right
to have their borders respected? -> in effect two distinct forms of self-
determination now emerged.
The right to self-determination is divided into internal and external self-
determination:
1) Internal (autonomy), departure point of this right -> normally the right tot
self-determination is fulfilled by this internal self-determination. People
pursue their political, economic, social and cultural development within the
framework of an existing state. Does not confer a the option of seceding!
Example: Friesland -> substate entity enjoy a certain level of
autonomy, they have their own subgovernment and they contribute to
define the general direction of the politics of the entire state.
2) External (statehood), in extreme cases -> includes the option of seceding.
This arises only in the most extreme cases. The option to become a
separate entity from the mother state -> exercise autonomy to become a
higher level.
According to the court: colonial people and people who are subject to
alien subjugation, domination or exploitation (extreme oppression) have
a right to external self-determination that may entitle them to create
their own independent state.
o Under colonial rule -> independent states
o Alien subjugation: territories under foreign military occupation
o Exception: extreme oppression -> remedial secession =
additional right to secede in exceptional circumstances: not
widely accepted
Example: Friesland becomes separate of the Netherlands.
International stability and predictability is in favour of keeping the territorial
integrity of a mother-state and requiring people to pursue their right to self-
determination within their existing state.
Two points must be made:
1) An affirmed right to external self-determination doesn’t have to lead to a
claim for secession and the creation of a new independent state. People
with a right to statehood may decide that their interest are best served by
remaining with an existing state -> example: Greenland and Denmark.
3
, 2) A mother-state can always consent to the secession of part of its territory
whereby the seceding entity can seek to create an independent state.
Does the principle provide a claim for all peoples to secede (afscheiden) and
become an independent state? No: the right to self-determination isn’t the right
to secede from an existing state. -> great debate among scholars:
- Pacific (= all scholars tend to agree) claim for people under colonial rule
and alien (foreign) subjugation -> they can claim external self-
determination
- Debated whether it also supports secession for other peoples: doctrine and
case-law seems to be open to the possibility of remedial secession only in
extreme cases of denial from meaningful exercise of internal self-
determination
-> example: South-African apartheid -> ruled by a white elite, black people
weren’t represented in the government, they couldn’t determine their own
destiny or political status. -> in these extreme cases of denial from
meaningful exercise of internal self-determination, then remedial secession
is possible.
4
