Aantekeningen International and European Law
Week 1 webcasts
Introduction and history
What is international law?
- Traditionally, a system regulating the relationships among sovereign States. Yet other
actors might have rights and duties under international law.
- Substance-wise, it covers a significant array of issues, ranging from the creation of
States to the regulation of trade in goods among countries, to the protection of
intellectual property, climate change and access to vaccine
- Very different from national legal systems: no centralized legislative or executive
bodies, absence of mandatory dispute settlement procedures, decentralized system
of norm creation and enforcement
A long way to the current international legal system
- Roman Empire: the notion of ius gentium as a set of rules dictated derived from
‘natural reason’ common to all peoples. Natural law as such stems from assumptions
about the nature of man and society and as such has universal value.
- Middle Ages: coexistence of different normative levels and ‘communities’. The
‘international’ society was composed of a transnational network of diverse entities
and individuals. Overlapping layer: Holy Roman Empire and the Catholic Church.
Emergence of lex mercatoria and maritime custom (relationship among merchants in
the middle ages)
- Emergence of colonialism: voyages of discovery, Western European reigns
subjugating native Indian populations, ius nature was used as a justification for
subjugating “uncivilized” populations
- 17th/18th century: first emergence of modern international law applying to
international relations -> 1648 Peace of Westphalia, end of the war of thirty years in
Europe and consolidation of ‘nation States’, State sovereignty and the principle of
equality among States
From the 19th century to the present
- The positivist turn (instead of ius natura: natural law) in international law: the
primary source of law is State will, hence State consent to be bound to an
international obligation (states decide the rules in their own state)
- Ravaging colonialism and partition of Africa (Berlin Conference)
- Creation of the League of Nations (1919): maintaining world peace after WW 1 ->
towards peaceful dispute settlement and establishment of the PCIJ (Permanent Court
of International Justice)
- Replacement of the League of Nations with the UN -> major introductions of the UN
Charter: outright ban on use of force; principle of self-determination of peoples
(against colonialism); equality of States; collective effort in maintaining peace and
security via UNSC (United Nations Security Council)
- UNGA (General Assembly of the United Nations) started the decolonization
processes
- Emergence of multiple regional organizations -> most advanced example: the
European Union (cooperation needed to prevent another war)
, - While originally international law was mainly concerned with the horizontal
relationship among States (coexistence), increasingly (especially after the founding of
the United Nations) vertical and transnational issues, for example the way states
treat their citizens, are taking center stage (law of cooperation: states decide to take
issues which were typically considered as domestic and bring them to the
international level through international agreements or customary international law)
Subjects and “actors” in international law
Who or what is a “subject” of international law?
- A subject of international law can be defined as an entity capable of holding
international rights and duties and having capacity to protect its rights by bringing
international claims for an international tribunal. (international legal personality as a
relative concept: different subjects have different rights and duties but this does not
remove their international legal personality)
- Traditionally the only subjects were States
- Now also other entities such as:
o Entities which can potentially become States (de facto regimes)
o International Governmental Organisations such as the UN*
o Individuals and NGOs (rights through international human rights law / duties
through international criminal law)
- *Reparation for Injuries Suffered in the Service of the United Nations – Advisory
Opinion ‘subjects of law in any legal system are not necessarily identical in their
nature or in the extent of their rights’.
States Montevideo criteria (art. 1):
- Permanent population (number of people that responds to the commands and legal
systems introduced by the government)
- Defined territory*
- Government (effective authority over territory, ‘internal’ dimension of sovereignty:
an internal entity which can impose certain demands and the population will respond
to these commands), international law does not impose a certain form of
government (democracy, dictatorship)
- A capacity to enter into relations with other states (independence and non-
interference: legal independence to interact with other equals without being under
the legal constraints of another state ‘external’ dimension of sovereignty)
o Example: Scotland, has a permanent population, a defined territory and a
government but is under the legal constraints of the United Kingdom
- *North Sea Continental Shelf para. 46:
o “The appurtenance of a given area, considered as an entity, in no way governs
the precise delimitation of its boundaries, any more than uncertainty as to
boundaries can affect territorial rights. There is […] no rule that the land
frontiers of a State must be fully delimited and defined....”
o While we need a certain definition of the territory, but there can be some
uncertainty regarding the exact boundaries of the state
Criteria depend on effectiveness, the authority of the government needs to be effective over
the territory, the same as the capacity to enter into relations with other states
Montevideo criteria say nothing about the form of government (if a democracy is needed)
,Controversial matters around statehood
- Does recognition by other states play any role?
o Constitutive view -> a State is such once recognized by other States of the
international community
o Declaratory view -> a State is such when it fulfils the criteria (as set out
above), recognition only has practical consequences (leading view)
- Practical consequences recognition: if states decide not to recognise a certain state
as a state, that state will not be able to enter international agreements or relations
o Recognition can accelerate the process of statehood
- What about ‘illegally’ created entities?
o Ex injuria jus non oritur – no legal rights can arise from wrongful conduct
If an entity aspires to become a state and violates a peremptory or an
imperative norm of international law (for example self-determination
or forceful occupation of territory), then this prevents that entity from
becoming a state
o Yet.. Think of Bangladesh: ex injuria ius non-oritur not always applied
consistently in practice
The relationship between self-determination and statehood
- Self-determination: the right of all peoples to freely determine their political status
(and economic, social and cultural development) (see art. 1 UN Charter and art. 1,
1966 ICCPR: International Covenant on Civil and Political Rights)
- Traditionally divided into ‘internal’ self-determination (exercise autonomy within the
framework of a mother State) and ‘external’ self-determination (statehood)
o Example: internal provinces of The Netherlands, they have their own
subgovernment and they contribute to define the general direction of the
politics and the political life of the entire state, people vote for these
governments so they can exercise their right to self-determination to
determine their political status and economic, social and cultural
development, The Netherlands give these subgovernments a certain level of
autonomy and make sure that the people of the provinces are represented
nationally and that they can contribute to define the general political, social,
economic and cultural life of the entire state
o External self-determination (a higher level)
People who are under colonial rule or alien/foreign subjugation can
claim external self-determination, but does this also apply to other
people? (in cases where there is extreme denial for some people
within the population of a state to meaningfully exercise self-
determination (oppression), then remedial secession (a separation
that offers a remedy to extreme suffering) is somewhat admitted
under international law)
- Yet, does the principle provide a claim for all peoples to secede and become an
independent State? -> great debate among scholars:
o Pacific claim for people under colonial rule and alien (i.e. foreign)
subjugation
o 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 of South-African apartheid
o Difficult balance of the right of people to have their own state vs the
maintenance of international peace and stability
- As long as people can freely exercise their internal autonomy, then they don’t have a
valid claim to secede from their mother state (territorial integrity is then more
important than a claim to statehood)
- * ICJ Kosovo Advisory Opinion: international law does not preclude declarations of
independence but the Court made no determination as to the right to secede
The “vicissitudes” (events) of statehood:
- Acquisition of new territory (does not affect the statehood of an entity):
o Cession: purchase or ‘swap’ of territory
A state cannot exercise more rights than the ones that were exercised
by the previous sovereign
There might be valid claims over that territory in behalf of third states
(e.g., an agreement in relation to the exploitation of a certain portion
of the territory), these have to be respected
o Accretion: gradually created by nature (n.b. NO artificial accretion) / does not
equal erosion and avulsion
Artificial accretion is not sufficient for territory, for a valid claim of
sovereignty over the territory acquired
o Occupation: effective control over ‘terra nullius’ (land that is legally deemed
to be unoccupied or uninhabited), this can lead to a valid title (no previous
sovereign state)
o Prescription: acquisition of territory because of effective control with the
consent of the sovereign state
o Forceful territorial acquisition: NO title to territory (no legal rights can arise
from wrongful conduct)
o Island of Palmas: ‘the continuous and peaceful display of territorial
sovereignty is as good as title’
- State succession:
o What happens when a State is replaced with another? -> continuation of the
previously existing State or brand-new entity? (e.g., the Sovjet Union was
replaced with Russia)
o In terms of treaties -> clean slate approach: the new State is not considered
bound by the treaties concluded by its predecessor but for uti possidetis juris
in relation to geographical boundaries and human rights & humanitarian
treaties (these will stay the same)
- Extinction: almost impossible to happen involuntarily -> dismemberment (Yugoslavia
for example became a set of very scattered new states, not one state is considered as
a successor of former Yugoslavia) or merger (for example East-Germany and West-
Germany merged into Germany)
Week 1 webcasts
Introduction and history
What is international law?
- Traditionally, a system regulating the relationships among sovereign States. Yet other
actors might have rights and duties under international law.
- Substance-wise, it covers a significant array of issues, ranging from the creation of
States to the regulation of trade in goods among countries, to the protection of
intellectual property, climate change and access to vaccine
- Very different from national legal systems: no centralized legislative or executive
bodies, absence of mandatory dispute settlement procedures, decentralized system
of norm creation and enforcement
A long way to the current international legal system
- Roman Empire: the notion of ius gentium as a set of rules dictated derived from
‘natural reason’ common to all peoples. Natural law as such stems from assumptions
about the nature of man and society and as such has universal value.
- Middle Ages: coexistence of different normative levels and ‘communities’. The
‘international’ society was composed of a transnational network of diverse entities
and individuals. Overlapping layer: Holy Roman Empire and the Catholic Church.
Emergence of lex mercatoria and maritime custom (relationship among merchants in
the middle ages)
- Emergence of colonialism: voyages of discovery, Western European reigns
subjugating native Indian populations, ius nature was used as a justification for
subjugating “uncivilized” populations
- 17th/18th century: first emergence of modern international law applying to
international relations -> 1648 Peace of Westphalia, end of the war of thirty years in
Europe and consolidation of ‘nation States’, State sovereignty and the principle of
equality among States
From the 19th century to the present
- The positivist turn (instead of ius natura: natural law) in international law: the
primary source of law is State will, hence State consent to be bound to an
international obligation (states decide the rules in their own state)
- Ravaging colonialism and partition of Africa (Berlin Conference)
- Creation of the League of Nations (1919): maintaining world peace after WW 1 ->
towards peaceful dispute settlement and establishment of the PCIJ (Permanent Court
of International Justice)
- Replacement of the League of Nations with the UN -> major introductions of the UN
Charter: outright ban on use of force; principle of self-determination of peoples
(against colonialism); equality of States; collective effort in maintaining peace and
security via UNSC (United Nations Security Council)
- UNGA (General Assembly of the United Nations) started the decolonization
processes
- Emergence of multiple regional organizations -> most advanced example: the
European Union (cooperation needed to prevent another war)
, - While originally international law was mainly concerned with the horizontal
relationship among States (coexistence), increasingly (especially after the founding of
the United Nations) vertical and transnational issues, for example the way states
treat their citizens, are taking center stage (law of cooperation: states decide to take
issues which were typically considered as domestic and bring them to the
international level through international agreements or customary international law)
Subjects and “actors” in international law
Who or what is a “subject” of international law?
- A subject of international law can be defined as an entity capable of holding
international rights and duties and having capacity to protect its rights by bringing
international claims for an international tribunal. (international legal personality as a
relative concept: different subjects have different rights and duties but this does not
remove their international legal personality)
- Traditionally the only subjects were States
- Now also other entities such as:
o Entities which can potentially become States (de facto regimes)
o International Governmental Organisations such as the UN*
o Individuals and NGOs (rights through international human rights law / duties
through international criminal law)
- *Reparation for Injuries Suffered in the Service of the United Nations – Advisory
Opinion ‘subjects of law in any legal system are not necessarily identical in their
nature or in the extent of their rights’.
States Montevideo criteria (art. 1):
- Permanent population (number of people that responds to the commands and legal
systems introduced by the government)
- Defined territory*
- Government (effective authority over territory, ‘internal’ dimension of sovereignty:
an internal entity which can impose certain demands and the population will respond
to these commands), international law does not impose a certain form of
government (democracy, dictatorship)
- A capacity to enter into relations with other states (independence and non-
interference: legal independence to interact with other equals without being under
the legal constraints of another state ‘external’ dimension of sovereignty)
o Example: Scotland, has a permanent population, a defined territory and a
government but is under the legal constraints of the United Kingdom
- *North Sea Continental Shelf para. 46:
o “The appurtenance of a given area, considered as an entity, in no way governs
the precise delimitation of its boundaries, any more than uncertainty as to
boundaries can affect territorial rights. There is […] no rule that the land
frontiers of a State must be fully delimited and defined....”
o While we need a certain definition of the territory, but there can be some
uncertainty regarding the exact boundaries of the state
Criteria depend on effectiveness, the authority of the government needs to be effective over
the territory, the same as the capacity to enter into relations with other states
Montevideo criteria say nothing about the form of government (if a democracy is needed)
,Controversial matters around statehood
- Does recognition by other states play any role?
o Constitutive view -> a State is such once recognized by other States of the
international community
o Declaratory view -> a State is such when it fulfils the criteria (as set out
above), recognition only has practical consequences (leading view)
- Practical consequences recognition: if states decide not to recognise a certain state
as a state, that state will not be able to enter international agreements or relations
o Recognition can accelerate the process of statehood
- What about ‘illegally’ created entities?
o Ex injuria jus non oritur – no legal rights can arise from wrongful conduct
If an entity aspires to become a state and violates a peremptory or an
imperative norm of international law (for example self-determination
or forceful occupation of territory), then this prevents that entity from
becoming a state
o Yet.. Think of Bangladesh: ex injuria ius non-oritur not always applied
consistently in practice
The relationship between self-determination and statehood
- Self-determination: the right of all peoples to freely determine their political status
(and economic, social and cultural development) (see art. 1 UN Charter and art. 1,
1966 ICCPR: International Covenant on Civil and Political Rights)
- Traditionally divided into ‘internal’ self-determination (exercise autonomy within the
framework of a mother State) and ‘external’ self-determination (statehood)
o Example: internal provinces of The Netherlands, they have their own
subgovernment and they contribute to define the general direction of the
politics and the political life of the entire state, people vote for these
governments so they can exercise their right to self-determination to
determine their political status and economic, social and cultural
development, The Netherlands give these subgovernments a certain level of
autonomy and make sure that the people of the provinces are represented
nationally and that they can contribute to define the general political, social,
economic and cultural life of the entire state
o External self-determination (a higher level)
People who are under colonial rule or alien/foreign subjugation can
claim external self-determination, but does this also apply to other
people? (in cases where there is extreme denial for some people
within the population of a state to meaningfully exercise self-
determination (oppression), then remedial secession (a separation
that offers a remedy to extreme suffering) is somewhat admitted
under international law)
- Yet, does the principle provide a claim for all peoples to secede and become an
independent State? -> great debate among scholars:
o Pacific claim for people under colonial rule and alien (i.e. foreign)
subjugation
o 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 of South-African apartheid
o Difficult balance of the right of people to have their own state vs the
maintenance of international peace and stability
- As long as people can freely exercise their internal autonomy, then they don’t have a
valid claim to secede from their mother state (territorial integrity is then more
important than a claim to statehood)
- * ICJ Kosovo Advisory Opinion: international law does not preclude declarations of
independence but the Court made no determination as to the right to secede
The “vicissitudes” (events) of statehood:
- Acquisition of new territory (does not affect the statehood of an entity):
o Cession: purchase or ‘swap’ of territory
A state cannot exercise more rights than the ones that were exercised
by the previous sovereign
There might be valid claims over that territory in behalf of third states
(e.g., an agreement in relation to the exploitation of a certain portion
of the territory), these have to be respected
o Accretion: gradually created by nature (n.b. NO artificial accretion) / does not
equal erosion and avulsion
Artificial accretion is not sufficient for territory, for a valid claim of
sovereignty over the territory acquired
o Occupation: effective control over ‘terra nullius’ (land that is legally deemed
to be unoccupied or uninhabited), this can lead to a valid title (no previous
sovereign state)
o Prescription: acquisition of territory because of effective control with the
consent of the sovereign state
o Forceful territorial acquisition: NO title to territory (no legal rights can arise
from wrongful conduct)
o Island of Palmas: ‘the continuous and peaceful display of territorial
sovereignty is as good as title’
- State succession:
o What happens when a State is replaced with another? -> continuation of the
previously existing State or brand-new entity? (e.g., the Sovjet Union was
replaced with Russia)
o In terms of treaties -> clean slate approach: the new State is not considered
bound by the treaties concluded by its predecessor but for uti possidetis juris
in relation to geographical boundaries and human rights & humanitarian
treaties (these will stay the same)
- Extinction: almost impossible to happen involuntarily -> dismemberment (Yugoslavia
for example became a set of very scattered new states, not one state is considered as
a successor of former Yugoslavia) or merger (for example East-Germany and West-
Germany merged into Germany)
