24.03.2025
Problem 1 Declaring Independence
L1. What is (internal and external) self-determination and what are the conditions
thereof?
The declaratory view
A State is such when it fulfills the Montevideo criteria, recognition only had practical consequences (leading view). Holds that the
creation of states is primarily a matter of law and the fulfilment of legal criteria. Thus, when an entity satisfies certain predetermined
requirements it is a state in international law. Here, the important criterion is essentially the entity’s effectiveness.
Constitutive view
A State is such once recognized by other States of the international community. 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.
The emergence of the constitutive view was tied to the rise of positivism and the pre-eminence of state consent in the 19th century. It
subsequently served as a useful tool for the established (primarily Western) states to deny ‘non-civilized’ nations inclusion in the
society of nations.
Constitutive approach:
- Problematic
- Issue of relativism
- Quantity = how many states must recognize to become a state.
The right to self-determination stipulates that all peoples have a right to freely determine their political status and pursue their
economic, social and cultural development. This is considered an essential principle of international law and has an erga omnes
(Applicable towards all) character, meaning it is owed to the international community as a whole. Traditionally, the right to
self-determination is divided into ‘internal’ and ‘external’ aspects.
Internal Self-Determination (Autonomy):
● Definition: Internal self-determination is normally fulfilled by autonomy, whereby a people pursue their political, economic,
social and cultural development within the framework of an existing state. An example provided in the sources is Friesland.
● Conditions: The right is typically exercised within the existing state structure, allowing for a degree of self-governance and
participation in the political processes of the state.
External Self-Determination (Statehood):
● Definition: External self-determination carries the option of seceding from an existing state to create a new independent
state.
● Conditions: The conditions under which external self-determination, potentially leading to secession, can be invoked are
highly debated and considered to arise only in the most extreme cases.
○ It is undisputed that colonial peoples under imperial rule and other people who find themselves subject to
alien subjugation, domination, or exploitation have a right to external self-determination that may entitle them to
create their own independent state. This was a key aspect of the decolonization process.
○ There is debate regarding whether a right to secede also exists, as a last resort, for other peoples who are blocked
from the meaningful exercise of their right to self-determination internally within a state. This is sometimes referred to
as ‘remedial secession’. Accepting such a right requires truly exceptional circumstances, such as extreme
oppression and the almost total denial of meaningful internal self-determination. The doctrine and case law appear to
be open to this possibility in such extreme cases, with South African apartheid being given as an example.
○ International stability generally favours maintaining the territorial integrity of a ‘mother-state’, requiring people to
pursue their right to self-determination within their existing state. This is also reflected in the ‘safeguard clause’ in the
1970 GA Declaration on Friendly Relations, which states that there can be no question of remedial secession in a
state where the government represents the whole of the people or peoples within its territory on a basis of equality
and without discrimination.
The Montevideo criteria are the most authoritative and accepted requirements for statehood in international law, as outlined in Article
1 of the 1933 Montevideo Convention on the Rights and Duties of States. According to the sources, a 'state' possesses the
following qualifications under these criteria:
● A permanent population: This simply means that some people live on the territory, and the population does not have to be of
a certain size. The requirement is that the population must be ‘permanent’, raising a question about whether a nomadic
population would suffice.
● A defined territory: A state must have a specific geographical area. No minimum or maximum.
● A government: There must be some form of political organisation that governs the population and territory. International law
on statehood is indifferent to the form of government.
● A capacity to enter into relations with other states: This refers to the ability of the entity to act independently on the
international plane. In practice, recognition by other states is also seen as a relevant qualification in this regard.
,Erga Omnes
The right to self determination is an essential principle of international law and hasan Erga Omnes character. This means that the rights
and obligations count for everyone.
L2. Is a declaration of independence lawful under international law
Issue:
The central issue before the International Court of Justice (ICJ) was: "Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international law?". This question was posed by the
General Assembly of the United Nations.
Rule:
● General International Law on Declarations of Independence: The Court noted that state practice during the 18th, 19th,
and early 20th centuries did not suggest that declarations of independence were contrary to international law. Furthermore,
while the right to self-determination developed in the latter half of the 20th century, granting a right to independence for
peoples of non-self-governing territories and those under alien subjugation, domination, and exploitation, the practice of states
does not indicate a general prohibition on declarations of independence outside this context.
● The Principle of Territorial Integrity: The Court acknowledged that territorial integrity is an important principle enshrined in
the UN Charter, particularly Article 2(4), and reiterated in General Assembly resolution 2625 (XXV). However, the Court found
that the scope of this principle is confined to the sphere of relations between States and does not address the issue of
whether a part of a State's population may declare independence.
● Security Council Resolution 1244 (1999): This resolution, adopted under Chapter VII of the UN Charter, established an
interim international civil and security presence in Kosovo (UNMIK and KFOR) and laid down a framework for the
administration of Kosovo pending a final settlement. The Court examined whether this resolution contained a prohibition on
the declaration of independence.
● The UNMIK Constitutional Framework: Promulgated under the authority derived from Security Council resolution 1244
(1999), this framework defined the responsibilities between the Special Representative of the Secretary-General and the
Provisional Institutions of Self-Government of Kosovo. The Court considered whether the declaration of independence
violated this framework.
Application:
● Regarding general international law, the Court concluded that it contains no applicable prohibition of declarations of
independence. The historical practice of states and the development of the right to self-determination did not establish a rule
prohibiting such declarations outside specific contexts of decolonisation or severe oppression, which the Court did not find it
necessary to determine in the case of Kosovo.
● Concerning the principle of territorial integrity, the Court determined that this principle governs relations between states
and does not address whether a declaration of independence by a part of a state's population is prohibited by international
law. The Security Council resolutions condemning specific declarations of independence were found to be related to unlawful
use of force or other serious violations of international law, which were not cited by the Security Council in the context of
Kosovo.
● In relation to Security Council Resolution 1244 (1999), the Court interpreted the resolution as establishing a temporary,
exceptional legal régime aimed at the stabilisation of Kosovo and the development of provisional self-governing institutions
pending a political settlement. The Court found that the resolution did not explicitly prohibit the declaration of
independence. Furthermore, the Court determined that the authors of the declaration acted in their capacity as
representatives of the people of Kosovo outside the framework of the interim administration established by Resolution
1244 (1999), and the resolution primarily addressed obligations and authorizations for UN member states and UN organs.
● Regarding the UNMIK Constitutional Framework, the Court concluded that since the declaration of independence was
made by individuals acting as representatives of the people of Kosovo outside the structure of the Provisional Institutions of
Self-Government, they were not bound by the powers and responsibilities outlined in the Constitutional Framework.
Therefore, the declaration did not violate this framework.
● Par. 82: The population of Kosovo has the right to create an independent State either as a manifestation of a right to
self-determination or pursuant to what they described as a right of ‘remedial secession in the face of the situation in Kosovo.
Whether the international law of self-determination confers upon part of the population of an existing state a right to separate
from that state is, however, a subject on which radically different views were expressed by those taking part in the
proceedings and expressing a position on the question. Similar differences existed regarding whether international law
provides for a right of remedial secession and, if so, in what circumstances, and whether these were actually present in
Kosovo.
● Par. 83:The Court considers that it is not necessary to resolve these questions in the present case. Only The Court’s opinion
on whether or not the declaration of independence is in accordance with international law has been requested. The extent of
self-determination and the existence of remedial secession are issues beyond the scope of this question. The Court needs to
determine whether the declaration of independence violated international law.
● Par. 84: The Court considers that general international law contains no applicable prohibition of declarations of independence
(internal self-determination). It concludes that this declaration of independence did not violate general international law
Conclusion:
The International Court of Justice concluded that the unilateral declaration of independence of Kosovo adopted on 17 February
2008 did not violate international law. This conclusion was reached because general international law contains no prohibition on
declarations of independence, the principle of territorial integrity applies to relations between states, Security Council Resolution 1244
(1999) did not explicitly prohibit such a declaration and the authors acted outside the scope of the UNMIK Constitutional Framework.
,L3. Is secession lawful under international law?
Right to External Self-Determination and Secession
A people may have the right to external self-determination, allowing for the option of secession, in specific cases:
● Colonial peoples under imperial rule (decolonization).
● Peoples under alien subjugation, domination, or exploitation.
An additional right to secede, known as remedial secession, may exist in cases of:
1. Extreme oppression.
2. The denial of meaningful internal self-determination.
However, remedial secession requires exceptional circumstances and cannot occur if a government represents all people equally
and without discrimination.
Secession is only lawful when you have the external right to self-determination.
A mother-state can also consent to secession (e.g., Scotland-UK).
Secession vs. Declaration of Independence
● Declaration of independence: A formal statement of intent to secede.
● Secession: The actual process of withdrawing from a state to form a new independent entity.
International law favors territorial integrity and encourages people to pursue self-determination within the existing state. However,
an affirmed right to self-determination does not always result in secession, as some groups may choose to remain within the existing
state.
Acquisition of Territory
1. Cession: Territory can be purchased from or swapped with another state.
2. Accretion: Nature can create (permanent) further territory. For example, volcanic eruption can create accumulation of
territory.
a. Avulsion: Sudden or violent changes to territory as a result of natural disasters, like storms.The boundaries will not
move in case of avulsion, only in case of accretion.
3. Occupation: A state can obtain title to territory that has never been the subject of any state (terra nullius) (this can’t happen
anymore, because newly discovered land will be part of the high seas)
4. Prescription: Prescription means that territory is acquired via exerting effective control over that portion of territory. This must
be done with the consent of the sovereign State.
L4. In which way is succession of the rights and duties of the new States
arranged?
State Succession
Definition:
State succession refers to the replacement of one state by another in the responsibility for the international relations of a territory. This
occurs in various circumstances, such as the dissolution of states, secession, or mergers.
When a new territorial entity emerges, it is first necessary to determine whether it is a continuation of a pre-existing state or a new
and separate entity. For example:
● Continuation: Russia assumed the legal identity of the Soviet Union, including its UN Security Council seat.
● New State: When Yugoslavia dissolved, Serbia and Montenegro were not recognized as its legal continuation.
Rules on Succession to Treaties
International law generally follows the clean slate approach, meaning a newly emerging state is not automatically bound by treaties
signed by its predecessor. Instead, it is free to decide whether to become a party to such agreements.
However, there are key exceptions to the clean slate approach:
1. Uti Possidetis Juris – This principle states that geographical boundaries established by treaties remain in force, even if
they do not align with new ethnic, tribal, religious, or political affiliations. This helps maintain international stability.
2. Human Rights & Humanitarian Law Obligations – Some argue that fundamental human rights obligations automatically
transfer to a new state. The UN Human Rights Committee has stated that rights under the International Covenant on Civil
, and Political Rights (ICCPR) continue to apply. Similarly, the Appeals Chamber of the International Criminal Tribunal for
the former Yugoslavia (ICTY) ruled that fundamental humanitarian conventions remain in force despite state succession.
Practical Considerations in State Succession
State succession also affects:
● Membership in international organizations: Some states retain membership (e.g., Russia as the continuation of the
USSR), while others do not (e.g., Serbia and Montenegro after Yugoslavia’s dissolution).
● Nationality: Determining the citizenship of individuals in the new state.
● State property, archives, and debts: The 1983 Vienna Convention on Succession of States in Respect of State Property,
Archives, and Debts (not widely ratified) outlines how these should be divided.
Often, succession issues are resolved through bilateral treaties between the old and new states.
International Conventions on State Succession
Two main international conventions address state succession:
1. 1978 Vienna Convention on Succession of States in Respect of Treaties (in force) – Establishes rules on whether a new
state inherits its predecessor’s treaties.
2. 1983 Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (not widely ratified)
– Addresses the transfer of assets and liabilities from the predecessor state.
Problem 1 Declaring Independence
L1. What is (internal and external) self-determination and what are the conditions
thereof?
The declaratory view
A State is such when it fulfills the Montevideo criteria, recognition only had practical consequences (leading view). Holds that the
creation of states is primarily a matter of law and the fulfilment of legal criteria. Thus, when an entity satisfies certain predetermined
requirements it is a state in international law. Here, the important criterion is essentially the entity’s effectiveness.
Constitutive view
A State is such once recognized by other States of the international community. 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.
The emergence of the constitutive view was tied to the rise of positivism and the pre-eminence of state consent in the 19th century. It
subsequently served as a useful tool for the established (primarily Western) states to deny ‘non-civilized’ nations inclusion in the
society of nations.
Constitutive approach:
- Problematic
- Issue of relativism
- Quantity = how many states must recognize to become a state.
The right to self-determination stipulates that all peoples have a right to freely determine their political status and pursue their
economic, social and cultural development. This is considered an essential principle of international law and has an erga omnes
(Applicable towards all) character, meaning it is owed to the international community as a whole. Traditionally, the right to
self-determination is divided into ‘internal’ and ‘external’ aspects.
Internal Self-Determination (Autonomy):
● Definition: Internal self-determination is normally fulfilled by autonomy, whereby a people pursue their political, economic,
social and cultural development within the framework of an existing state. An example provided in the sources is Friesland.
● Conditions: The right is typically exercised within the existing state structure, allowing for a degree of self-governance and
participation in the political processes of the state.
External Self-Determination (Statehood):
● Definition: External self-determination carries the option of seceding from an existing state to create a new independent
state.
● Conditions: The conditions under which external self-determination, potentially leading to secession, can be invoked are
highly debated and considered to arise only in the most extreme cases.
○ It is undisputed that colonial peoples under imperial rule and other people who find themselves subject to
alien subjugation, domination, or exploitation have a right to external self-determination that may entitle them to
create their own independent state. This was a key aspect of the decolonization process.
○ There is debate regarding whether a right to secede also exists, as a last resort, for other peoples who are blocked
from the meaningful exercise of their right to self-determination internally within a state. This is sometimes referred to
as ‘remedial secession’. Accepting such a right requires truly exceptional circumstances, such as extreme
oppression and the almost total denial of meaningful internal self-determination. The doctrine and case law appear to
be open to this possibility in such extreme cases, with South African apartheid being given as an example.
○ International stability generally favours maintaining the territorial integrity of a ‘mother-state’, requiring people to
pursue their right to self-determination within their existing state. This is also reflected in the ‘safeguard clause’ in the
1970 GA Declaration on Friendly Relations, which states that there can be no question of remedial secession in a
state where the government represents the whole of the people or peoples within its territory on a basis of equality
and without discrimination.
The Montevideo criteria are the most authoritative and accepted requirements for statehood in international law, as outlined in Article
1 of the 1933 Montevideo Convention on the Rights and Duties of States. According to the sources, a 'state' possesses the
following qualifications under these criteria:
● A permanent population: This simply means that some people live on the territory, and the population does not have to be of
a certain size. The requirement is that the population must be ‘permanent’, raising a question about whether a nomadic
population would suffice.
● A defined territory: A state must have a specific geographical area. No minimum or maximum.
● A government: There must be some form of political organisation that governs the population and territory. International law
on statehood is indifferent to the form of government.
● A capacity to enter into relations with other states: This refers to the ability of the entity to act independently on the
international plane. In practice, recognition by other states is also seen as a relevant qualification in this regard.
,Erga Omnes
The right to self determination is an essential principle of international law and hasan Erga Omnes character. This means that the rights
and obligations count for everyone.
L2. Is a declaration of independence lawful under international law
Issue:
The central issue before the International Court of Justice (ICJ) was: "Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international law?". This question was posed by the
General Assembly of the United Nations.
Rule:
● General International Law on Declarations of Independence: The Court noted that state practice during the 18th, 19th,
and early 20th centuries did not suggest that declarations of independence were contrary to international law. Furthermore,
while the right to self-determination developed in the latter half of the 20th century, granting a right to independence for
peoples of non-self-governing territories and those under alien subjugation, domination, and exploitation, the practice of states
does not indicate a general prohibition on declarations of independence outside this context.
● The Principle of Territorial Integrity: The Court acknowledged that territorial integrity is an important principle enshrined in
the UN Charter, particularly Article 2(4), and reiterated in General Assembly resolution 2625 (XXV). However, the Court found
that the scope of this principle is confined to the sphere of relations between States and does not address the issue of
whether a part of a State's population may declare independence.
● Security Council Resolution 1244 (1999): This resolution, adopted under Chapter VII of the UN Charter, established an
interim international civil and security presence in Kosovo (UNMIK and KFOR) and laid down a framework for the
administration of Kosovo pending a final settlement. The Court examined whether this resolution contained a prohibition on
the declaration of independence.
● The UNMIK Constitutional Framework: Promulgated under the authority derived from Security Council resolution 1244
(1999), this framework defined the responsibilities between the Special Representative of the Secretary-General and the
Provisional Institutions of Self-Government of Kosovo. The Court considered whether the declaration of independence
violated this framework.
Application:
● Regarding general international law, the Court concluded that it contains no applicable prohibition of declarations of
independence. The historical practice of states and the development of the right to self-determination did not establish a rule
prohibiting such declarations outside specific contexts of decolonisation or severe oppression, which the Court did not find it
necessary to determine in the case of Kosovo.
● Concerning the principle of territorial integrity, the Court determined that this principle governs relations between states
and does not address whether a declaration of independence by a part of a state's population is prohibited by international
law. The Security Council resolutions condemning specific declarations of independence were found to be related to unlawful
use of force or other serious violations of international law, which were not cited by the Security Council in the context of
Kosovo.
● In relation to Security Council Resolution 1244 (1999), the Court interpreted the resolution as establishing a temporary,
exceptional legal régime aimed at the stabilisation of Kosovo and the development of provisional self-governing institutions
pending a political settlement. The Court found that the resolution did not explicitly prohibit the declaration of
independence. Furthermore, the Court determined that the authors of the declaration acted in their capacity as
representatives of the people of Kosovo outside the framework of the interim administration established by Resolution
1244 (1999), and the resolution primarily addressed obligations and authorizations for UN member states and UN organs.
● Regarding the UNMIK Constitutional Framework, the Court concluded that since the declaration of independence was
made by individuals acting as representatives of the people of Kosovo outside the structure of the Provisional Institutions of
Self-Government, they were not bound by the powers and responsibilities outlined in the Constitutional Framework.
Therefore, the declaration did not violate this framework.
● Par. 82: The population of Kosovo has the right to create an independent State either as a manifestation of a right to
self-determination or pursuant to what they described as a right of ‘remedial secession in the face of the situation in Kosovo.
Whether the international law of self-determination confers upon part of the population of an existing state a right to separate
from that state is, however, a subject on which radically different views were expressed by those taking part in the
proceedings and expressing a position on the question. Similar differences existed regarding whether international law
provides for a right of remedial secession and, if so, in what circumstances, and whether these were actually present in
Kosovo.
● Par. 83:The Court considers that it is not necessary to resolve these questions in the present case. Only The Court’s opinion
on whether or not the declaration of independence is in accordance with international law has been requested. The extent of
self-determination and the existence of remedial secession are issues beyond the scope of this question. The Court needs to
determine whether the declaration of independence violated international law.
● Par. 84: The Court considers that general international law contains no applicable prohibition of declarations of independence
(internal self-determination). It concludes that this declaration of independence did not violate general international law
Conclusion:
The International Court of Justice concluded that the unilateral declaration of independence of Kosovo adopted on 17 February
2008 did not violate international law. This conclusion was reached because general international law contains no prohibition on
declarations of independence, the principle of territorial integrity applies to relations between states, Security Council Resolution 1244
(1999) did not explicitly prohibit such a declaration and the authors acted outside the scope of the UNMIK Constitutional Framework.
,L3. Is secession lawful under international law?
Right to External Self-Determination and Secession
A people may have the right to external self-determination, allowing for the option of secession, in specific cases:
● Colonial peoples under imperial rule (decolonization).
● Peoples under alien subjugation, domination, or exploitation.
An additional right to secede, known as remedial secession, may exist in cases of:
1. Extreme oppression.
2. The denial of meaningful internal self-determination.
However, remedial secession requires exceptional circumstances and cannot occur if a government represents all people equally
and without discrimination.
Secession is only lawful when you have the external right to self-determination.
A mother-state can also consent to secession (e.g., Scotland-UK).
Secession vs. Declaration of Independence
● Declaration of independence: A formal statement of intent to secede.
● Secession: The actual process of withdrawing from a state to form a new independent entity.
International law favors territorial integrity and encourages people to pursue self-determination within the existing state. However,
an affirmed right to self-determination does not always result in secession, as some groups may choose to remain within the existing
state.
Acquisition of Territory
1. Cession: Territory can be purchased from or swapped with another state.
2. Accretion: Nature can create (permanent) further territory. For example, volcanic eruption can create accumulation of
territory.
a. Avulsion: Sudden or violent changes to territory as a result of natural disasters, like storms.The boundaries will not
move in case of avulsion, only in case of accretion.
3. Occupation: A state can obtain title to territory that has never been the subject of any state (terra nullius) (this can’t happen
anymore, because newly discovered land will be part of the high seas)
4. Prescription: Prescription means that territory is acquired via exerting effective control over that portion of territory. This must
be done with the consent of the sovereign State.
L4. In which way is succession of the rights and duties of the new States
arranged?
State Succession
Definition:
State succession refers to the replacement of one state by another in the responsibility for the international relations of a territory. This
occurs in various circumstances, such as the dissolution of states, secession, or mergers.
When a new territorial entity emerges, it is first necessary to determine whether it is a continuation of a pre-existing state or a new
and separate entity. For example:
● Continuation: Russia assumed the legal identity of the Soviet Union, including its UN Security Council seat.
● New State: When Yugoslavia dissolved, Serbia and Montenegro were not recognized as its legal continuation.
Rules on Succession to Treaties
International law generally follows the clean slate approach, meaning a newly emerging state is not automatically bound by treaties
signed by its predecessor. Instead, it is free to decide whether to become a party to such agreements.
However, there are key exceptions to the clean slate approach:
1. Uti Possidetis Juris – This principle states that geographical boundaries established by treaties remain in force, even if
they do not align with new ethnic, tribal, religious, or political affiliations. This helps maintain international stability.
2. Human Rights & Humanitarian Law Obligations – Some argue that fundamental human rights obligations automatically
transfer to a new state. The UN Human Rights Committee has stated that rights under the International Covenant on Civil
, and Political Rights (ICCPR) continue to apply. Similarly, the Appeals Chamber of the International Criminal Tribunal for
the former Yugoslavia (ICTY) ruled that fundamental humanitarian conventions remain in force despite state succession.
Practical Considerations in State Succession
State succession also affects:
● Membership in international organizations: Some states retain membership (e.g., Russia as the continuation of the
USSR), while others do not (e.g., Serbia and Montenegro after Yugoslavia’s dissolution).
● Nationality: Determining the citizenship of individuals in the new state.
● State property, archives, and debts: The 1983 Vienna Convention on Succession of States in Respect of State Property,
Archives, and Debts (not widely ratified) outlines how these should be divided.
Often, succession issues are resolved through bilateral treaties between the old and new states.
International Conventions on State Succession
Two main international conventions address state succession:
1. 1978 Vienna Convention on Succession of States in Respect of Treaties (in force) – Establishes rules on whether a new
state inherits its predecessor’s treaties.
2. 1983 Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (not widely ratified)
– Addresses the transfer of assets and liabilities from the predecessor state.
