Werkgroep 1:
1. What is (internal and external) self-determination and what
are the conditions thereof?
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 kan gevonden worden in article 1 of the UN
Charter/article 1 in the UN Convenants on Human Rights. The most
controversial (omstreden) aspect of the right to self-determination
concerns the extent to which it gives a section of a population a right to
secede (scheiden) from an existing state and create a new state in the
absence of acceptance (zonder toestemming) by the government of the
‘mother-state’.
The Court made a distinction between:
Internal self-determination: Right to self-determination is normally
fulfilled by internal self-determination -autonomy- whereby a people
pursue their political, economic, social and cultural development
within the framework of an existing state.
External self-determination: A right to external self-determination -
with the option of seceding (afscheiding)- arises only in the most
extreme of cases.
It is extremely doubtful whether people who are not colonized or subject to
alien subjugation (vreemde onderwerping) or domination can claim a right
to external self-determination. Such people must exercise their right to
self-determination within an existing state.
2. Is a declaration of independence lawful under international
law?
It is crucial to initially differentiate between recognizing a state and
recognizing a government. Given that the state is the legal entity while the
government merely represents and acts on behalf of the state. The lack of
recognition of a state has more consequences than the lack of recognition
of a government.
Traditionally, the doctrinal debate about the effects of recognition is
dominated by two competing approaches:
- The declaratory 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. (Dus, het belangrijke criterium is de
effectiviteit van de entiteit). Contemporary (hedendaagse)
international law is generally based on the declaratory approach.
- The constitutive view: Recognition (erkenning) is a precondition for
statehood (staatsvorming). If an entity that seems to have the
characteristics of a 'state' is not acknowledged as such by other
states, it is not considered a state in international law. In practice,
the constitutive approach is highly problematic. First, there is the
issue of relativism. If a state only exists in relation to recognizing
states, its absolute existence (absolute bestaansrecht) is seemingly
not possible. Another difficulty is quantity. If recognition is indeed
required, how many states must recognize an entity for it to become
a state?
, Several points must be noted:
- The principle that legal rights cannot arise from wrongful conduct
(onrechtmatig gedrag) sometimes leads to a denial (ontzeggen) of
statehood to entities that fulfil the formal criteria.
- Rejecting the constitutive theory does not mean that acts of
recognition are entirely irrelevant. Such acts have evidentiary value
because they reflect that other states believe that an entity fulfils
the conditions for statehood.
- Recognition is its practical importance in interstate relations. Often,
recognition is a precondition for bilateral relations. A state is free to
set stricter conditions for recognizing an emerging (opkomende)
state and starting bilateral relations than those outlined in the
Montevideo Convention.
Montevideo Convention, according to Article 1, a 'state' must have: The
criteria are based on the concept of effectiveness:
1. A permanent population; someone lives in their territory.
2. A defined territory; there is no minimum size, and entity's
boundaries need not be precisely demarcated(afgebakend) and
settled.
3. A government; The type of government is irrelevant, and it is not
necessary for it to be democratically elected or to govern according
to the wishes of the population. It's important to mention that the
government doesn't need to be capable of exercising its authority
over the entire territory. The necessity for an effective government
becomes irrelevant once a state has been established (opgericht).
4. A capacity to enter into relations with other states; the ability to act
without legal interference from other states.
Rechter Anzilotti: The concept of independence has nothing to do with a
state’s subordination (ondergeschiktheid) to international law or with the
numerous and constantly increasing states of de facto dependence that
characterize the relationship of one country to other countries. As long as
restrictions (beperkingen) do not place the state under the legal authority
of another state, the former remains an independent state, regardless of
how extensive (uitgebreid) and burdensome (belastend) those obligations
may be. Temporary interference (inmenging) with the independence and
capacity of an established (gevestigde) state to engage in relations with
other states does not change its statehood.
In some cases, an entity that seems to meet the Montevideo requirements
is rejected by other states, making it hard to argue that it qualifies as a
state. While, state practice is not entirely consistent, an entity may seem
to be denied statehood if it has been established (opgericht) in violation
(schending) of fundamental norms of international law, potentially of a jus
cogens nature. Thus, practice appears to uphold the principle of ex injuria
jus non oritur, stating that no legal rights can arise from wrongful conduct.
3. Is secession lawful under international law?
A state can acquire title to new territory in a few ways:
1. What is (internal and external) self-determination and what
are the conditions thereof?
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 kan gevonden worden in article 1 of the UN
Charter/article 1 in the UN Convenants on Human Rights. The most
controversial (omstreden) aspect of the right to self-determination
concerns the extent to which it gives a section of a population a right to
secede (scheiden) from an existing state and create a new state in the
absence of acceptance (zonder toestemming) by the government of the
‘mother-state’.
The Court made a distinction between:
Internal self-determination: Right to self-determination is normally
fulfilled by internal self-determination -autonomy- whereby a people
pursue their political, economic, social and cultural development
within the framework of an existing state.
External self-determination: A right to external self-determination -
with the option of seceding (afscheiding)- arises only in the most
extreme of cases.
It is extremely doubtful whether people who are not colonized or subject to
alien subjugation (vreemde onderwerping) or domination can claim a right
to external self-determination. Such people must exercise their right to
self-determination within an existing state.
2. Is a declaration of independence lawful under international
law?
It is crucial to initially differentiate between recognizing a state and
recognizing a government. Given that the state is the legal entity while the
government merely represents and acts on behalf of the state. The lack of
recognition of a state has more consequences than the lack of recognition
of a government.
Traditionally, the doctrinal debate about the effects of recognition is
dominated by two competing approaches:
- The declaratory 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. (Dus, het belangrijke criterium is de
effectiviteit van de entiteit). Contemporary (hedendaagse)
international law is generally based on the declaratory approach.
- The constitutive view: Recognition (erkenning) is a precondition for
statehood (staatsvorming). If an entity that seems to have the
characteristics of a 'state' is not acknowledged as such by other
states, it is not considered a state in international law. In practice,
the constitutive approach is highly problematic. First, there is the
issue of relativism. If a state only exists in relation to recognizing
states, its absolute existence (absolute bestaansrecht) is seemingly
not possible. Another difficulty is quantity. If recognition is indeed
required, how many states must recognize an entity for it to become
a state?
, Several points must be noted:
- The principle that legal rights cannot arise from wrongful conduct
(onrechtmatig gedrag) sometimes leads to a denial (ontzeggen) of
statehood to entities that fulfil the formal criteria.
- Rejecting the constitutive theory does not mean that acts of
recognition are entirely irrelevant. Such acts have evidentiary value
because they reflect that other states believe that an entity fulfils
the conditions for statehood.
- Recognition is its practical importance in interstate relations. Often,
recognition is a precondition for bilateral relations. A state is free to
set stricter conditions for recognizing an emerging (opkomende)
state and starting bilateral relations than those outlined in the
Montevideo Convention.
Montevideo Convention, according to Article 1, a 'state' must have: The
criteria are based on the concept of effectiveness:
1. A permanent population; someone lives in their territory.
2. A defined territory; there is no minimum size, and entity's
boundaries need not be precisely demarcated(afgebakend) and
settled.
3. A government; The type of government is irrelevant, and it is not
necessary for it to be democratically elected or to govern according
to the wishes of the population. It's important to mention that the
government doesn't need to be capable of exercising its authority
over the entire territory. The necessity for an effective government
becomes irrelevant once a state has been established (opgericht).
4. A capacity to enter into relations with other states; the ability to act
without legal interference from other states.
Rechter Anzilotti: The concept of independence has nothing to do with a
state’s subordination (ondergeschiktheid) to international law or with the
numerous and constantly increasing states of de facto dependence that
characterize the relationship of one country to other countries. As long as
restrictions (beperkingen) do not place the state under the legal authority
of another state, the former remains an independent state, regardless of
how extensive (uitgebreid) and burdensome (belastend) those obligations
may be. Temporary interference (inmenging) with the independence and
capacity of an established (gevestigde) state to engage in relations with
other states does not change its statehood.
In some cases, an entity that seems to meet the Montevideo requirements
is rejected by other states, making it hard to argue that it qualifies as a
state. While, state practice is not entirely consistent, an entity may seem
to be denied statehood if it has been established (opgericht) in violation
(schending) of fundamental norms of international law, potentially of a jus
cogens nature. Thus, practice appears to uphold the principle of ex injuria
jus non oritur, stating that no legal rights can arise from wrongful conduct.
3. Is secession lawful under international law?
A state can acquire title to new territory in a few ways:
