Hoorcolleges
Week 1 - Subjects and actors
Public International Law
First international law was to regulate relationships between states, but nowadays it is mostly about more than two
states. International law covers a wide range of issues. There are no legislate or executive bodies.
History
In the Roman Empire there was the notion of ius gentium, it was a set of rules common to all people. In the Middle Ages
there were a lot of new cultures, which interacted among each other, so they had to make rules. These rules were called
lex mercatoria and maritime custom. Further, in the colonial period the Western European reigns had to be justified. Later
in the 17th and 18th century the fist modern international law emerged, where with the 1648 Peace of Westphalia, the
State sovereignty and the principle of equality among states was introduced. But from the 19th century on international
law changed to how we know now. States choose to bound to international rules, which caused the start of the UN for
example. The states came together to discuss solutions to their problems instead of going to war.
Subjects
A subject of international law can be defined as an entity capable of holding international rights and duties, this is a
relative concept. The subjects have increased during time, subjects are now not only states, but also entities that may
become states, international governmental organizations, individuals and NGO’s.
States
To be recognized as a state, entities must meet the Montevideo criteria (art. 1):
- Permanent population
- Defined territory
- A government
- A capacity to enter into relations with other states
Does recognition play any role in the matters of statehood?
- Constitutive view = a State is such once recognized by other States of the international community. This is the
leading view.
- Declaratory view = a state is such when it fulfils the criteria, recognition only had practical consequences.
If an illegally created entity wants to become a state, this is not possible because of ex injuria jus non oritur = no
legal rights can arise from wrongful conduct. However, this is not always the case (for example Bangladesh).
Self-determination is the right to freely determine political status. This can be divided into internal delf-
determination, exercise autonomy within the framework of a mother State, and external self-determination, the
declaration of an independent state. Internal self-determination is always allowed, but external self-
determination only under certain conditions, such as:
- Colonial rule
- In extreme cases of denial form meaningful exercise of internal self-determination (remedial secession)
- With acceptance of the mother state
The events of Statehood
- Acquisition of new territory:
a. Cession: purchase or swap territory
b. Accretion: gradually created by nature
c. Occupation: effective control over ‘terra nullius’
d. Prescription: acquisition of territory with the consent of the sovereign state
e. Forceful territorial acquisition: no title to territory
- State succession:
a. Clean slate approach = the new state is not considered bound by the treaties concluded by its
predecessor, with an exception for the territorial boundaries (uti possidetis juris) and human rights &
treaties.
- Extinction: almost impossible to happen involuntarily -> dismemberment or merger
, International Organizations
Intergovernmental organizations are created by states via treaties to perform a function states alone can’t do or
don’t want to do. Their international legal personality is limited to the function they are asked to perform by their
mandate. The entity functions as an independent entity and is able to conclude international agreements and
adopt rules which member states will comply with, according to the competences that states assigned to the
organization.
Individuals
Rights are made for individuals by states via treaties and customary international law. It contains obligations as
imposed upon them by states. Groups of individuals are also seen as a subject. First individuals were seen as an
object of international law, but because international law brings individuals rights and duties, individuals are now
seen as subjects of international law.
NGO’s (non-intergovernmental organizations)
NGOs are not a subject of international law but can influence the international legal system because they are
advocating for international law or policy, therefor they can be seen as actors of international law. Some NGOs
are also present during negotiations of treaties. Also, NGO’s monitor sate compliance with international rules.
Jurisdiction
Important cases are Island of Palmas (1928) and Lotus (1927). The function of a state is to rule over a certain territory. This
means that states have the:
- Jurisdiction to Prescribe = to regulate conduct
- Jurisdiction to Enforce = to impose compliance with laws
- Jurisdiction to Adjudicate = the right of domestic courts to hear cases referred to them
Jurisdiction to prescribe
Jurisdiction can take place within the territorial boundaries of a state but can also go brought.
- Objective territoriality = offence completed on the territory
- Subjective territorially = initiated or planned on the territory
Sates decide who they consider to be their nationals, however there must be a genuine connection.
- Active personality = when someone commits the crime himself.
- Passive personality = the person is a victim of someone else’s behavior, who is not connected to the state.
Protective Jurisdiction = threat to a vital State interest
Universal Jurisdiction = no direct link between the state and the offence
European Union Law
History
There were a lot of wars in the past, mostly about who was being the most powerful. Churchill proposed in 1946 a United
States of Europe. This resulted in The Schuman Plan, which focused on coal, steel deposits in Germany. Schuman
presented a plan to stop the spiral of revenge in Europe by taking away the titles of losers and winners. In the Schuman
Declaration on the 9th of May 1950 the European Union was found. Firstly, the Union was mainly to arrange the trade of
coal and steel by a higher authority. However, Europe will not be made at once, but requires ‘de-facto-solidarity’. This
means that member states will have to create small things that the citizens can benefit from. For example, to see each
other as equal human beings, so trading would be easier. In 1951 the European Coal and Steel Community was found, the
first real form of the European Union. Then in 1952 the European Defense Community and the European Political
Community were created. These failed in 1954, because it is impossible to get states on the same page. However,
Schuman’s idea was to communicate with the citizens, not the states, because only then creating a Union is possible. With
the Treaty of Rome, the common marked was found, an extension of the Coal and Steel Community, in which all goods
and services were tradable all over Europe. ‘Europe’ is the higher authority of this market, and by this Europe can connect
with the citizens.
Crucial conditions of creating a Union:
- Existence of rights conferred upon individuals
- Protection of rights conferred upon individuals
, Union institutions
Dutch national system: EU system:
The Council of the EU is composed by Union citizens who vote for their National Parliament, who then elects a National
Government, who then sends someone to the Council of the EU. The European Parliament is directly chosen by Union
citizens.
European Parliament
Composition:
Problem of degressive proportionality = there is no system of one vote weights equally
- For example: Malta had one Member per 68.833 citizens, while France has one Member per 874.514 citizens.
- But there is no good alternative, the principle of equality of citizens and states must always be taken in
consideration.
Powers:
- Legislate and budgetary functions
- Voting on all COM legislative initiatives
- Request the COM to submit legislative proposals
- Political control
a. Committee of Inquiry
b. Motion of censure against Commission as a body
c. European Ombudsman
The Council of the EU
Composition Council:
- Representatives at ministerial level
- Presidency: group of 3 member states for a period of 18 months made on equal rotation. Except for the
foreign affairs, this is composed of High Representatives, which are in the CORPER (Committee of Permanent
Representatives). The High Representatives is the representative of the member state.
Powers:
- Legislative and budgetary functions
- Voting on all COM legislative initiatives
- Request the COM to submit legislative proposals
- Conclusion of international agreements
- Taking decisions for defining and implanting the CSFP in the light of the guidelines of the European Council.
Qualified majority = 55% of MS (15/27) and 65% of the population of the EU
European Commission
Composition:
- President of the Commission
a. EC puts forward to the EP a candidate, taking account of the elections of the EP
b. European Parliament elects by majority
- College of Commissioners
a. Old: 28 Commissioners (1 per MS)
b. New: Representing 2/3 of MS (18)
Week 1 - Subjects and actors
Public International Law
First international law was to regulate relationships between states, but nowadays it is mostly about more than two
states. International law covers a wide range of issues. There are no legislate or executive bodies.
History
In the Roman Empire there was the notion of ius gentium, it was a set of rules common to all people. In the Middle Ages
there were a lot of new cultures, which interacted among each other, so they had to make rules. These rules were called
lex mercatoria and maritime custom. Further, in the colonial period the Western European reigns had to be justified. Later
in the 17th and 18th century the fist modern international law emerged, where with the 1648 Peace of Westphalia, the
State sovereignty and the principle of equality among states was introduced. But from the 19th century on international
law changed to how we know now. States choose to bound to international rules, which caused the start of the UN for
example. The states came together to discuss solutions to their problems instead of going to war.
Subjects
A subject of international law can be defined as an entity capable of holding international rights and duties, this is a
relative concept. The subjects have increased during time, subjects are now not only states, but also entities that may
become states, international governmental organizations, individuals and NGO’s.
States
To be recognized as a state, entities must meet the Montevideo criteria (art. 1):
- Permanent population
- Defined territory
- A government
- A capacity to enter into relations with other states
Does recognition play any role in the matters of statehood?
- Constitutive view = a State is such once recognized by other States of the international community. This is the
leading view.
- Declaratory view = a state is such when it fulfils the criteria, recognition only had practical consequences.
If an illegally created entity wants to become a state, this is not possible because of ex injuria jus non oritur = no
legal rights can arise from wrongful conduct. However, this is not always the case (for example Bangladesh).
Self-determination is the right to freely determine political status. This can be divided into internal delf-
determination, exercise autonomy within the framework of a mother State, and external self-determination, the
declaration of an independent state. Internal self-determination is always allowed, but external self-
determination only under certain conditions, such as:
- Colonial rule
- In extreme cases of denial form meaningful exercise of internal self-determination (remedial secession)
- With acceptance of the mother state
The events of Statehood
- Acquisition of new territory:
a. Cession: purchase or swap territory
b. Accretion: gradually created by nature
c. Occupation: effective control over ‘terra nullius’
d. Prescription: acquisition of territory with the consent of the sovereign state
e. Forceful territorial acquisition: no title to territory
- State succession:
a. Clean slate approach = the new state is not considered bound by the treaties concluded by its
predecessor, with an exception for the territorial boundaries (uti possidetis juris) and human rights &
treaties.
- Extinction: almost impossible to happen involuntarily -> dismemberment or merger
, International Organizations
Intergovernmental organizations are created by states via treaties to perform a function states alone can’t do or
don’t want to do. Their international legal personality is limited to the function they are asked to perform by their
mandate. The entity functions as an independent entity and is able to conclude international agreements and
adopt rules which member states will comply with, according to the competences that states assigned to the
organization.
Individuals
Rights are made for individuals by states via treaties and customary international law. It contains obligations as
imposed upon them by states. Groups of individuals are also seen as a subject. First individuals were seen as an
object of international law, but because international law brings individuals rights and duties, individuals are now
seen as subjects of international law.
NGO’s (non-intergovernmental organizations)
NGOs are not a subject of international law but can influence the international legal system because they are
advocating for international law or policy, therefor they can be seen as actors of international law. Some NGOs
are also present during negotiations of treaties. Also, NGO’s monitor sate compliance with international rules.
Jurisdiction
Important cases are Island of Palmas (1928) and Lotus (1927). The function of a state is to rule over a certain territory. This
means that states have the:
- Jurisdiction to Prescribe = to regulate conduct
- Jurisdiction to Enforce = to impose compliance with laws
- Jurisdiction to Adjudicate = the right of domestic courts to hear cases referred to them
Jurisdiction to prescribe
Jurisdiction can take place within the territorial boundaries of a state but can also go brought.
- Objective territoriality = offence completed on the territory
- Subjective territorially = initiated or planned on the territory
Sates decide who they consider to be their nationals, however there must be a genuine connection.
- Active personality = when someone commits the crime himself.
- Passive personality = the person is a victim of someone else’s behavior, who is not connected to the state.
Protective Jurisdiction = threat to a vital State interest
Universal Jurisdiction = no direct link between the state and the offence
European Union Law
History
There were a lot of wars in the past, mostly about who was being the most powerful. Churchill proposed in 1946 a United
States of Europe. This resulted in The Schuman Plan, which focused on coal, steel deposits in Germany. Schuman
presented a plan to stop the spiral of revenge in Europe by taking away the titles of losers and winners. In the Schuman
Declaration on the 9th of May 1950 the European Union was found. Firstly, the Union was mainly to arrange the trade of
coal and steel by a higher authority. However, Europe will not be made at once, but requires ‘de-facto-solidarity’. This
means that member states will have to create small things that the citizens can benefit from. For example, to see each
other as equal human beings, so trading would be easier. In 1951 the European Coal and Steel Community was found, the
first real form of the European Union. Then in 1952 the European Defense Community and the European Political
Community were created. These failed in 1954, because it is impossible to get states on the same page. However,
Schuman’s idea was to communicate with the citizens, not the states, because only then creating a Union is possible. With
the Treaty of Rome, the common marked was found, an extension of the Coal and Steel Community, in which all goods
and services were tradable all over Europe. ‘Europe’ is the higher authority of this market, and by this Europe can connect
with the citizens.
Crucial conditions of creating a Union:
- Existence of rights conferred upon individuals
- Protection of rights conferred upon individuals
, Union institutions
Dutch national system: EU system:
The Council of the EU is composed by Union citizens who vote for their National Parliament, who then elects a National
Government, who then sends someone to the Council of the EU. The European Parliament is directly chosen by Union
citizens.
European Parliament
Composition:
Problem of degressive proportionality = there is no system of one vote weights equally
- For example: Malta had one Member per 68.833 citizens, while France has one Member per 874.514 citizens.
- But there is no good alternative, the principle of equality of citizens and states must always be taken in
consideration.
Powers:
- Legislate and budgetary functions
- Voting on all COM legislative initiatives
- Request the COM to submit legislative proposals
- Political control
a. Committee of Inquiry
b. Motion of censure against Commission as a body
c. European Ombudsman
The Council of the EU
Composition Council:
- Representatives at ministerial level
- Presidency: group of 3 member states for a period of 18 months made on equal rotation. Except for the
foreign affairs, this is composed of High Representatives, which are in the CORPER (Committee of Permanent
Representatives). The High Representatives is the representative of the member state.
Powers:
- Legislative and budgetary functions
- Voting on all COM legislative initiatives
- Request the COM to submit legislative proposals
- Conclusion of international agreements
- Taking decisions for defining and implanting the CSFP in the light of the guidelines of the European Council.
Qualified majority = 55% of MS (15/27) and 65% of the population of the EU
European Commission
Composition:
- President of the Commission
a. EC puts forward to the EP a candidate, taking account of the elections of the EP
b. European Parliament elects by majority
- College of Commissioners
a. Old: 28 Commissioners (1 per MS)
b. New: Representing 2/3 of MS (18)
