WERKGROEP 2 9 FEB
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. This right emerged as
a fundamental principle of international law during the decolonization process at the end of the
second world war. The most controversial aspect of this right concerns the extent to which it
gives a section of a population a right to secede from an existing state and create a new state in
the absence of acceptance by the government of the ‘mother state’. The most authoritative
statement on the law remains an advisory opinion from 1998 from the Canadian Supreme Court;
the Court distinguished between an ‘internal’ and an ‘external’ right to self-determination.
• Internal self-determination = people pursue their political, economic, social and cultural
development within a framework of an existing state. The right to self-determination is normally
ful lled by this principle. = autonomy.
• External self-determination = arises only in the most extreme of cases. Colonial peoples and
others who are victims of foreign subjugation, domination or exploitation have the right to
external self-determination that can also give them the right to establish their own independent
state.
➡Some argue for the existence of an additional right to secede for those in cases of extreme
oppression and the almost total denial of meaningful internal self-determination; also known
as remedial secession. However, accepting such a right requires exceptional circumstances.
They found that this right is normally ful lled by internal self-determination (autonomy) whereby a
people pursue their political, economic, social and cultural development within a framework of an
existing state. A right to external self-determination (with the option of seceding) arises ‘only in the
most extreme of cases’. It is very doubtful whether a people who are neither colonized nor subject
to alien subjugation, domination or exploitation, can claim the right to external self-determination
and thus be entitled to secede. International stability speaks clearly in favor of keeping the
territorial integrity of a mother-state intact and requiring people to pursue their right to self-
determination within their existing state.
Two nal points:
• An a rmed right to external self-determination need not lead to a claim for secession and the
creation of a new independent state. A people with a right to statehood may decide that their
interests are best served by remaining within an existing state.
• A mother-state can always consent to the secession of part of its territory whereby the seceding
entity can seek to create an independent state.
Is a declaration of independence lawful under international law?
While an entity may ful ll the Montevideo criteria, it can still be denied statehood if it has been
created in a agrant violation of basic norms of international law, potentially of a jus cogens
nature. Practice thus seems to con rm the principle of ex injuria jus non oritur, whereby no legal
rights can arise from wrongful conduct. However, unlawful force in the creation of a state may not
always be an insurmountable obstacle to achieving statehood. While a territorial entity created
through the use of legal force in violation of the right to self-determination of the population of the
territory is unlikely to be accepted as a state, the result may be di erent if the unlawful force is
used in order to advance the realization of the right to self-determination of the population.
Is secession lawful under international law?
It is important to initially distinguish between recognition of a state and recognition of a
government. Since the state is the legal entity and the government merely represents and acts on
behalf of the state, there are greater practical e ects associates with a lack of recognition of a
state than a government. Traditionally, de doctrinal debate about the e ects of recognition is
dominated by two competing approaches:
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, 1. Declaratory view: holds that the creation of states is primarily a matter of law ad the
ful llment of legal criteria > thus, when an entity satis es certain predetermined requirements
it is a state in international law. The important criterion here is essentially the entity’s
e ectiveness. Contemporary international law is generally based on the declaratory approach.
2. Constitutive view: 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. In practice, this view is highly problematic.
• Issue of relativism: if a state only exists in relation to recognizing states, its absolute
existence is seemingly not possible.
• Issue of quantity: if recognition is indeed required, how many states must recognize an entity
before it becomes a ‘state’?
Several points must be noted:
• The principle that legal rights cannot arise from wrongful conduct (ex injuria jus non oritur)
sometimes leads to a denial of statehood to entities that ful ll the formal criteria.
• Rejecting the constitutive theory does not mean that acts of recognition are entirely irrelevant.
such acts have evidentiary value because they re ect that other states believe that an entity
ful lls the conditions for statehood.
• Nothing precludes a state from conditioning its recognition of an emerging state and the
initiation of bilateral relations on conditions that are stricter than those found in the Montevideo
Convention.
Montevideo criteria
1933: the Montevideo Convention contains the most authoritative and accepted criteria/
requirements for statehood. A state posesses:
1. A permanent population
2. A de ned territory
3. A government
4. A capacity to enter into relations with other states
The criteria are founded on notions of e ectiveness.
State secession = when a part of an existing state breaks away from the mother-state, to form a
new and separate state.
State succession = about who takes over the rights and obligations of a state when sovereignty
changes.
While an entity may ful ll the Montevideo criteria, it can still be denied statehood if it has been
created in a agrant violation of basic norms of international law, potentially of a jus cogens
nature. Practice thus seems to con rm the principle of ex injuria jus non oritur, whereby no legal
rights can arise from wrongful conduct. However, unlawful force in the creation of a state may not
always be an insurmountable obstacle to achieving statehood. While a territorial entity created
through the use of legal force in violation of the right to self-determination of the population of the
territory is unlikely to be accepted as a state, the result may be di erent if the unlawful force is
used in order to advance the realization of the right to self-determination of the population.
In which way is the succession of rights and duties of (new) states arranged?
In international law, state succession means ‘the replacement of one state by another in the
responsibility for the international relations of territory’. Changes of statehood always raise
important legal questions, including concerning the status of existing treaties, membership of
international organizations and nationality. The practical manner in which succession is dealt with
varies from case to case and often the old and new states will settle the most important issues in
a bilateral treaty. Whenever a new territorial entity arises, it is initially necessary to determine
whether the entity should be regarded as a continuation of a pre-existing state or as a new and
separate entity.
As a starting point, International law seems to adopt a so-called clean-slate approach to answer
these questions. This approach means that the new state is a new entity, and as such it is not
considered bound by the treaties concluded by its predecessor. Thus; the successor state is free
fffi fi fl fi fi ff fl fi fi ff
,to become a party or not to treaties concluded by its predecessor. However, there are a few
exceptions to this principle. These exceptions are guided by the principle of stability and
predictability, and by elementary considerations of humanity:
1. Uti possidetis juris (UPJ): a principle of customary international law according to which treaty
created geographical boundaries remain in force, whether or not the boundaries coincide with
new ethnic, tribal, religious, or political borders.
2. Obligations under human rights and humanitarian law conventions: if a state breaks up
and stops existing, the clean slate approach would mean that the population of the breakaway
territory would not be protected by such conventions until the successor state decides to
become a party to the treaties. According to the UN Human Rights Committee, protection
under the UN Covenant on Civil and Political Rights continues, despite change in the
government of the state party, including secession in more than one state or succession to
states.
Unilateral declaration of independence by Kosovo
• Kosovo was an entity within Serbia and previously within Yugoslavia. Unlike the rest of Serbia,
the inhabitants of Kosovo are mainly of Albanian descent. These ethnically di erences have
been the cause of many con icts in the region. In 2008, Kosovo was declared independent from
Serbia by the Parliament of Pristina, this was a step closer for Kosovo to become a democratic
multi-ethnic state after a long history of bloody con icts.
• Some felt that Kosovo did not deserve this independence, and that not every country can
declare itself independent. Therefore, the United Nations General Assembly requested for an
advisory opinion referred to the International Court of Justice regarding the 2008 Kosovo
declaration of independence.
• Is the unilateral declaration of independence of Kosovo in accordance with international
law?
• The Court considered that in this present case, it is not necessary to resolve the debates on the
range of the right to self-determination and on whether or not there is a right to ‘remedial
secession’. Indeed, the general assembly had only asked the Court for an opinion on the
question of whether the declaration of independence is in accordance with international law or
not. To answer this question, the Court need only determine whether the declaration of
independence violated general international law or the lex specialis.
• The court considers that general international law contains no applicable prohibition of
declarations of independence.
fl fl ff
, WERKGROEP 3 16 FEB
What are the sources of public international law?
International does not have a centralized legal system, which makes it a very complicated
network type of structure and makes it more di cult to identify which rules apply in international
law. The typical place to look when questioning what the sources of international law are, is in
art. 38 of the ICJ Statute. This article gives the following list:
• Conventions (e.g. treaties and agreements)
• International customary law
• General principles of international law
• Judicial decisions and teachings
International law generally is considered a horizontal legal system; so there is not really a
hierarchy in any form, so all of the sources are at the same level.
What is customary international law?
International customary law (= soort van gewoonterecht)
= a set of behaviors that is adopted by states with a certain consistency. At some point, this
becomes not only a set of practices, but also things that must be done. So, the behaviors
transform from behavior that is consistent in a certain way to behavior that must be adopted,
because states believe that this is legally binding. Customary law is non-written. We also call it the
general rules of international law, because there rules are not as detailed as treaty law.
Customary law binds all states, unless a state persistently objects, including a state that has not
taken part in the formation of the practice such as a newly emerged state. However, customary
law can also develop regionally between a particular group of states.
There are two criteria for identifying a rule as part of customary international law:
1) Objective element
The behavior of states has traditionally been a very important aspect of the interaction among
states. Before a speci c pattern of behavior becomes legally binding, it requires consistent
repetition of a particular behavior for a considerable period of time and requires that states have
behaved in a certain general manner. This behavior can be one of three types:
• Physical practice: conduct of military operations, seizure of foreign vessels etc
• Public verbal practice: diplomatic statements, press releases, o cial manuals etc
• Legal practice: resolutions and declarations by international organizations
State practice can be divided into 3 elements:
1. Consistency: the states practice needs to be reasonable uniform. It is important that there is
general consistency of the core of that conduct, which means that light deviations are allowed
in identifying and recognizing state practice.
➡Nicaragua case: it is not to be expected that states act with complete consistency, as long
as the conduct is generally consistent with the rule, and the inconsistent conduct is treated
as a breach of the rule, rather than an indicator of the recognition of a new rule, the conduct
may su ce. Thus, minor departures from a collective uniformity may be acceptable; settled
practice.
2. Duration: normally, a practice establishes itself gradually over rather long periods of time,
often through years of repeated behavior.
➡North Sea continental shelf cases: the ICJ stated in this case that the passage of only a
short period of time is not necessarily a bar to the formation of a new rule of customary law.
There are examples of instant custom based on practice that has been displayed by states
repeatedly, but in a very short period of time. Thus, consistency and representation are of
greater importance than mere duration.
3. Generality: includes the question of how widespread participation in practice must be. While
unanimity is not required, practice should include the majority of states and perhaps even
more.
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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. This right emerged as
a fundamental principle of international law during the decolonization process at the end of the
second world war. The most controversial aspect of this right concerns the extent to which it
gives a section of a population a right to secede from an existing state and create a new state in
the absence of acceptance by the government of the ‘mother state’. The most authoritative
statement on the law remains an advisory opinion from 1998 from the Canadian Supreme Court;
the Court distinguished between an ‘internal’ and an ‘external’ right to self-determination.
• Internal self-determination = people pursue their political, economic, social and cultural
development within a framework of an existing state. The right to self-determination is normally
ful lled by this principle. = autonomy.
• External self-determination = arises only in the most extreme of cases. Colonial peoples and
others who are victims of foreign subjugation, domination or exploitation have the right to
external self-determination that can also give them the right to establish their own independent
state.
➡Some argue for the existence of an additional right to secede for those in cases of extreme
oppression and the almost total denial of meaningful internal self-determination; also known
as remedial secession. However, accepting such a right requires exceptional circumstances.
They found that this right is normally ful lled by internal self-determination (autonomy) whereby a
people pursue their political, economic, social and cultural development within a framework of an
existing state. A right to external self-determination (with the option of seceding) arises ‘only in the
most extreme of cases’. It is very doubtful whether a people who are neither colonized nor subject
to alien subjugation, domination or exploitation, can claim the right to external self-determination
and thus be entitled to secede. International stability speaks clearly in favor of keeping the
territorial integrity of a mother-state intact and requiring people to pursue their right to self-
determination within their existing state.
Two nal points:
• An a rmed right to external self-determination need not lead to a claim for secession and the
creation of a new independent state. A people with a right to statehood may decide that their
interests are best served by remaining within an existing state.
• A mother-state can always consent to the secession of part of its territory whereby the seceding
entity can seek to create an independent state.
Is a declaration of independence lawful under international law?
While an entity may ful ll the Montevideo criteria, it can still be denied statehood if it has been
created in a agrant violation of basic norms of international law, potentially of a jus cogens
nature. Practice thus seems to con rm the principle of ex injuria jus non oritur, whereby no legal
rights can arise from wrongful conduct. However, unlawful force in the creation of a state may not
always be an insurmountable obstacle to achieving statehood. While a territorial entity created
through the use of legal force in violation of the right to self-determination of the population of the
territory is unlikely to be accepted as a state, the result may be di erent if the unlawful force is
used in order to advance the realization of the right to self-determination of the population.
Is secession lawful under international law?
It is important to initially distinguish between recognition of a state and recognition of a
government. Since the state is the legal entity and the government merely represents and acts on
behalf of the state, there are greater practical e ects associates with a lack of recognition of a
state than a government. Traditionally, de doctrinal debate about the e ects of recognition is
dominated by two competing approaches:
fi ffi
fi fl fi fi fi ff ff ff
, 1. Declaratory view: holds that the creation of states is primarily a matter of law ad the
ful llment of legal criteria > thus, when an entity satis es certain predetermined requirements
it is a state in international law. The important criterion here is essentially the entity’s
e ectiveness. Contemporary international law is generally based on the declaratory approach.
2. Constitutive view: 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. In practice, this view is highly problematic.
• Issue of relativism: if a state only exists in relation to recognizing states, its absolute
existence is seemingly not possible.
• Issue of quantity: if recognition is indeed required, how many states must recognize an entity
before it becomes a ‘state’?
Several points must be noted:
• The principle that legal rights cannot arise from wrongful conduct (ex injuria jus non oritur)
sometimes leads to a denial of statehood to entities that ful ll the formal criteria.
• Rejecting the constitutive theory does not mean that acts of recognition are entirely irrelevant.
such acts have evidentiary value because they re ect that other states believe that an entity
ful lls the conditions for statehood.
• Nothing precludes a state from conditioning its recognition of an emerging state and the
initiation of bilateral relations on conditions that are stricter than those found in the Montevideo
Convention.
Montevideo criteria
1933: the Montevideo Convention contains the most authoritative and accepted criteria/
requirements for statehood. A state posesses:
1. A permanent population
2. A de ned territory
3. A government
4. A capacity to enter into relations with other states
The criteria are founded on notions of e ectiveness.
State secession = when a part of an existing state breaks away from the mother-state, to form a
new and separate state.
State succession = about who takes over the rights and obligations of a state when sovereignty
changes.
While an entity may ful ll the Montevideo criteria, it can still be denied statehood if it has been
created in a agrant violation of basic norms of international law, potentially of a jus cogens
nature. Practice thus seems to con rm the principle of ex injuria jus non oritur, whereby no legal
rights can arise from wrongful conduct. However, unlawful force in the creation of a state may not
always be an insurmountable obstacle to achieving statehood. While a territorial entity created
through the use of legal force in violation of the right to self-determination of the population of the
territory is unlikely to be accepted as a state, the result may be di erent if the unlawful force is
used in order to advance the realization of the right to self-determination of the population.
In which way is the succession of rights and duties of (new) states arranged?
In international law, state succession means ‘the replacement of one state by another in the
responsibility for the international relations of territory’. Changes of statehood always raise
important legal questions, including concerning the status of existing treaties, membership of
international organizations and nationality. The practical manner in which succession is dealt with
varies from case to case and often the old and new states will settle the most important issues in
a bilateral treaty. Whenever a new territorial entity arises, it is initially necessary to determine
whether the entity should be regarded as a continuation of a pre-existing state or as a new and
separate entity.
As a starting point, International law seems to adopt a so-called clean-slate approach to answer
these questions. This approach means that the new state is a new entity, and as such it is not
considered bound by the treaties concluded by its predecessor. Thus; the successor state is free
fffi fi fl fi fi ff fl fi fi ff
,to become a party or not to treaties concluded by its predecessor. However, there are a few
exceptions to this principle. These exceptions are guided by the principle of stability and
predictability, and by elementary considerations of humanity:
1. Uti possidetis juris (UPJ): a principle of customary international law according to which treaty
created geographical boundaries remain in force, whether or not the boundaries coincide with
new ethnic, tribal, religious, or political borders.
2. Obligations under human rights and humanitarian law conventions: if a state breaks up
and stops existing, the clean slate approach would mean that the population of the breakaway
territory would not be protected by such conventions until the successor state decides to
become a party to the treaties. According to the UN Human Rights Committee, protection
under the UN Covenant on Civil and Political Rights continues, despite change in the
government of the state party, including secession in more than one state or succession to
states.
Unilateral declaration of independence by Kosovo
• Kosovo was an entity within Serbia and previously within Yugoslavia. Unlike the rest of Serbia,
the inhabitants of Kosovo are mainly of Albanian descent. These ethnically di erences have
been the cause of many con icts in the region. In 2008, Kosovo was declared independent from
Serbia by the Parliament of Pristina, this was a step closer for Kosovo to become a democratic
multi-ethnic state after a long history of bloody con icts.
• Some felt that Kosovo did not deserve this independence, and that not every country can
declare itself independent. Therefore, the United Nations General Assembly requested for an
advisory opinion referred to the International Court of Justice regarding the 2008 Kosovo
declaration of independence.
• Is the unilateral declaration of independence of Kosovo in accordance with international
law?
• The Court considered that in this present case, it is not necessary to resolve the debates on the
range of the right to self-determination and on whether or not there is a right to ‘remedial
secession’. Indeed, the general assembly had only asked the Court for an opinion on the
question of whether the declaration of independence is in accordance with international law or
not. To answer this question, the Court need only determine whether the declaration of
independence violated general international law or the lex specialis.
• The court considers that general international law contains no applicable prohibition of
declarations of independence.
fl fl ff
, WERKGROEP 3 16 FEB
What are the sources of public international law?
International does not have a centralized legal system, which makes it a very complicated
network type of structure and makes it more di cult to identify which rules apply in international
law. The typical place to look when questioning what the sources of international law are, is in
art. 38 of the ICJ Statute. This article gives the following list:
• Conventions (e.g. treaties and agreements)
• International customary law
• General principles of international law
• Judicial decisions and teachings
International law generally is considered a horizontal legal system; so there is not really a
hierarchy in any form, so all of the sources are at the same level.
What is customary international law?
International customary law (= soort van gewoonterecht)
= a set of behaviors that is adopted by states with a certain consistency. At some point, this
becomes not only a set of practices, but also things that must be done. So, the behaviors
transform from behavior that is consistent in a certain way to behavior that must be adopted,
because states believe that this is legally binding. Customary law is non-written. We also call it the
general rules of international law, because there rules are not as detailed as treaty law.
Customary law binds all states, unless a state persistently objects, including a state that has not
taken part in the formation of the practice such as a newly emerged state. However, customary
law can also develop regionally between a particular group of states.
There are two criteria for identifying a rule as part of customary international law:
1) Objective element
The behavior of states has traditionally been a very important aspect of the interaction among
states. Before a speci c pattern of behavior becomes legally binding, it requires consistent
repetition of a particular behavior for a considerable period of time and requires that states have
behaved in a certain general manner. This behavior can be one of three types:
• Physical practice: conduct of military operations, seizure of foreign vessels etc
• Public verbal practice: diplomatic statements, press releases, o cial manuals etc
• Legal practice: resolutions and declarations by international organizations
State practice can be divided into 3 elements:
1. Consistency: the states practice needs to be reasonable uniform. It is important that there is
general consistency of the core of that conduct, which means that light deviations are allowed
in identifying and recognizing state practice.
➡Nicaragua case: it is not to be expected that states act with complete consistency, as long
as the conduct is generally consistent with the rule, and the inconsistent conduct is treated
as a breach of the rule, rather than an indicator of the recognition of a new rule, the conduct
may su ce. Thus, minor departures from a collective uniformity may be acceptable; settled
practice.
2. Duration: normally, a practice establishes itself gradually over rather long periods of time,
often through years of repeated behavior.
➡North Sea continental shelf cases: the ICJ stated in this case that the passage of only a
short period of time is not necessarily a bar to the formation of a new rule of customary law.
There are examples of instant custom based on practice that has been displayed by states
repeatedly, but in a very short period of time. Thus, consistency and representation are of
greater importance than mere duration.
3. Generality: includes the question of how widespread participation in practice must be. While
unanimity is not required, practice should include the majority of states and perhaps even
more.
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