Aantekeningen + werkgroepuitwerkingen week 3 Public International Law

CLASS 3 – SUBJECTS OF INTERNATIONAL LAW

Overview Literature:
Henriksen,
- Chapter 4
- Chapter 9 (p. 177–183)
Cases:
- ICJ, Reparations for Injuries Advisory Opinion;
- ICJ, Kosovo Advisory Opinion
Other materials:
- The Montevideo Convention on the Rights and Duties of States;
- Knowledge clips class 3;
- BBC news article ‘Kosovo: why is trouble flaring up between Serbs and the
Albanian-led government?’ - The Charter of the United Nations

Learning objectives: At the end of this class, students:
- Name the subjects of international law;
- Explain how subjects of international law can be determined;
- Are able to apply the Montevideo criteria for statehood;
- Explain the difference between the declarative theory and the constitutive
theory;
- Name and describe the ways in which territory can be obtained;
- Explain what an international organisation is;
- Understand the outcome of the ICJ Kosovo Advisory Opinion;
- Understand the outcome of the ICJ Reparation for Injuries Advisory Opinion.
- Know the main organs of the United Nations and understand their respective
basic functions, competences and decision-making procedures.

, Notes
Subjects are states, international organisations, individuals.
Important to know whether it is a state to determine its right and obligations.

Statehood
Montevideo Convention, article 1 criteria:
- Permanent population: no size requirement, as long as core component
- Defined territory: no size requirement but should be consistent and
undisputed territory, uncertain border does not matter
- Government: government must be effective (but not a particular type of
government), need not exercise jurisdiction throughout entire territory
- Capacity to enter into relations with other states: focus on legal capacity, the
ability act without interference

Recognised theories
Declaratory: apply Montevideo criteria, no consequences from non-recognition
(objective view)
Constitutive: must be recognized by other states. Be a member of the UN, then
you are recognized as a state. (subjective view)

IRAC method  issue, rule, application, conclusion
Step 1: What is the issue?
Step 2: What are the rules?
Step 3: Apply the rules to the issue
Step 4: Draw a conclusion, logical follow up of application

If one of the Montevideo criteria is not met, the territory cannot be considered a
state.

Advantage declaratory theory: clearer cut, easier to be a state, takes out the
politics, objective theory.
When recognition is necessary, you bring politics into the question.

International organisations
ICJ Reparation for Injuries Advisory Opinion
- Can the UN bring a claim against a state?
Does the UN have capacity to bring a claim
 Does the UN have international personality? Yes to be able to fulfil its functions
and purposes
Explicit purpose: purposes that are mentioned in the treaty
Implicit purpose: everything that is not mentioned in the treaty but is essential to
the performance of its duties. Actions necessary to fulfil purposes.
Duty of the UN: sending diplomats to discuss, but they have to be protected
- Is the UN a legal person under international law?
 UN was exercising and enjoying functions and rights
 UN Members entrust functions and duties, give competence to UN
 UN has international legal personality
 However, the ICJ did not equate the UN to States

- International organisations are created by states, which are their members
- International organisations are usually created by a treaty (constitutive
treaty). Examples are the UN Charter and the Constitution of the WHO
- International organisations are established in order to realise a common goal
for which they are endowed. One of the purposes for which the UN was