SUMMARY
INTERNATIONA
L AND
EUROPEAN
LAW
, Summary international and European law
Problem 1 till 4 : INTERNATIONAL LAW
Problem 1 – State
Learning Goal 1: What is a State and how can you get a new state?
State = legal entity under international law
- Recognition a state more important
- Recognition a government (difference = a government acts on behalf of the state)
2 approaches
1. Declaratory view: matter of law and legal criteria, as soon as you have enough criteria you are
a state (Montevideo criteria)
2. The constitutive view: recognition by other states is precondition for statehood
a. Issue of the relativism inherent in the constitutive position: a state has to believe itself
that is souverein absolute existence would not be possible
b. Question of quantity: how many states must recognize it?
Montevideo criteria
1. A permanent population: someone has made the territory their home (no limit)
2. A defined territory: the boundaries don’t need to be very precisely marked but it needs to be
clear that there is a territory occupied.
3. A government: someone who can exercise control over the territory and ensure its
compliance with international obligations. The government needs to be effective.
4. A capacity to enter into relations with other states
When is a government effective?
Those situations where the entity attempts to secede (voortkomen) from within an
existing state structure (example Friesland)
Instances where the claim to statehood floes from a grant of independence to the
territory by a former sovereign (example Colony)
Point of critic: conditions are freely formulated, much space for interpretation
The issue of illegality in the creation of a state
- Ex injuria jus non oritur principle: unjust acts cannot create law
- The principle is Jus cogens nature: (dwingend recht) applicable for everyone you need to
follow it
The acquisition of new territory
1. Occupation: a state can obtain land when it was never under the authority of any other state.
(bezetten)
terra nullius (nobody’s land) = you can occupy
res communis (area that is not subject to the legal title of any state (high sea) = you can’t
occupy, belongs to everyone
2. cession: state can buy territory from another state (kopen)
cannot obtain more rights
respect the rights of the third states (neighbour countries)
3. accretion: where new land is gradually created naturally (gekregen)
avulsion : gain territory
erosion: lose territory
4. prescription: derived from the existence of a form of implied consent on the part of the state
whose rights are being displaced by the acquiring state (gratis in overeenstemming)
element of consult: must be peaceful and must rest on effective possession
island of Palmas
CASE STUDY : Island of Palmas
INTERNATIONA
L AND
EUROPEAN
LAW
, Summary international and European law
Problem 1 till 4 : INTERNATIONAL LAW
Problem 1 – State
Learning Goal 1: What is a State and how can you get a new state?
State = legal entity under international law
- Recognition a state more important
- Recognition a government (difference = a government acts on behalf of the state)
2 approaches
1. Declaratory view: matter of law and legal criteria, as soon as you have enough criteria you are
a state (Montevideo criteria)
2. The constitutive view: recognition by other states is precondition for statehood
a. Issue of the relativism inherent in the constitutive position: a state has to believe itself
that is souverein absolute existence would not be possible
b. Question of quantity: how many states must recognize it?
Montevideo criteria
1. A permanent population: someone has made the territory their home (no limit)
2. A defined territory: the boundaries don’t need to be very precisely marked but it needs to be
clear that there is a territory occupied.
3. A government: someone who can exercise control over the territory and ensure its
compliance with international obligations. The government needs to be effective.
4. A capacity to enter into relations with other states
When is a government effective?
Those situations where the entity attempts to secede (voortkomen) from within an
existing state structure (example Friesland)
Instances where the claim to statehood floes from a grant of independence to the
territory by a former sovereign (example Colony)
Point of critic: conditions are freely formulated, much space for interpretation
The issue of illegality in the creation of a state
- Ex injuria jus non oritur principle: unjust acts cannot create law
- The principle is Jus cogens nature: (dwingend recht) applicable for everyone you need to
follow it
The acquisition of new territory
1. Occupation: a state can obtain land when it was never under the authority of any other state.
(bezetten)
terra nullius (nobody’s land) = you can occupy
res communis (area that is not subject to the legal title of any state (high sea) = you can’t
occupy, belongs to everyone
2. cession: state can buy territory from another state (kopen)
cannot obtain more rights
respect the rights of the third states (neighbour countries)
3. accretion: where new land is gradually created naturally (gekregen)
avulsion : gain territory
erosion: lose territory
4. prescription: derived from the existence of a form of implied consent on the part of the state
whose rights are being displaced by the acquiring state (gratis in overeenstemming)
element of consult: must be peaceful and must rest on effective possession
island of Palmas
CASE STUDY : Island of Palmas
