WEEK 1: Statehood & The Right to Self Determination
Concept: Statehood
Relevant law:
● Montevideo Convention Art 1 (Criteria)
○ A permanent population:
■ Permanence: does not exclude nomadic groups
● Western Sahara case: ICJ recognized the nomadic Sarahwi population
despite their seasonal movements into Morocco etc
■ Size: does not matter (e.g. Vatican City)
■ Nationality: does not matter that all/majority of people in the territory have the
same nationality.
○ A defined territory:
■ Land/not sea: Natural land (artificial land is not considered a state)
■ Defined: defined territory but defined borders are not required
■ Size: micro-states may also be admitted
■ Population: does not need to live on the territory
○ Government:
■ Exercise of governmental authority over the territory.
■ Stable and effective control
■ Form and nature: In principle, CIL does not impose requirements on types of
governance e.g. monarchy, or democracy…
○ Capacity to enter into international relations:
■ Such a capacity derives from the independence of a state i.e. not in direct or
indirect control of another state.
■ Not simply a formal criterion but also a substantive one.
● Montevideo Convention Art 3 (Recognition by other states)
○ Not included in the criteria
○ Theories:
■ Constitutive theory: Recognition is constitutive of statehood
● States decide who are states
● Problematic: international law is not a democracy, all states are sovereign
and thus recognition is not binding upon whether other states recognize a
state or not.
● Schrodinger’s cat thought experiment:
○ Application: if 100 states recognize a state but the remaining 93
don't recognize the state then the conclusion of whether a state is
a state or not is inconclusive.
■ Declaratory theory: recognition is not a requirement
● Dominant theory.
● Art 3 of the Montevideo Convention states that a state’s existence is
independent of recognition.
Nature of Montevideo Criteria:
, ● Intended to be seen in terms of the creation of a state (an entity becoming a state), does not need
to be fulfilled by an existing state i.e. continuation of existence.
○ E.g. Somalia
■ Clan dominated → although Somalia has been without an official government for
a long period of time, it is still seen as a state in the legal sense.
Concept: self-determination
Relevant law:
● Art 1(2) UN Charter: Right to self-determination
● Art 2(4) UN Charter: Territorial integrity
● Art 1 ICESCR & Art 1 ICCPR: “all people have the right to self-determination…”
● UNGA Res 1514: Self determination in the context of colonial independence:
○ Alien subjugation
○ Domination
○ Exploitation
● UNGA Res 2625:
○ Protection of territorial integrity
○ Self determination in the context of:
■ Alien subjugation
■ Domination
■ Exploitation
■ AND denial of fundamental human rights
○ Reflects CIL
● Quebec case:
○ Para 126: Distinguishes internal & external self determination
○ Seen as a source of international law but not binding upon other states (only Canada)
● Kosovo case:
○ Para 79:
■ Declarations of independence are not contrary to international law
○ ICJ did not recognize the right to unilateral secession but did not declare it prohibited
either.
Distinguishing internal & external self determination:
● Internal self-determination:
○ Allowing different groups of people the equal right to participate in the internal politics
of a state without discrimination.
○ Internal self-determination is to be implemented internally, without entitling the people to
its own, independent state.
● External self determination:
○ Establishment of a sovereign and independent state (Quebec case p126)
○ The principle of self determination would enable a people to separate from a state only in
exceptional circumstances.
○ This right has only been bestowed on 2 classes of people (Quebec case p131-134):
■ Those under colonial rule
, ■ Those under foreign occupation
○ UNGA Res 2625 also adds: denial of fundamental human rights.
Remedial secession:
● However a 3rd circumstance has been described (Quebec case p131-134):
○ When a people is blocked from the meaningful exercise of its right to self-determination
internally → it is entitled as a last resort by secession (remedial secession).
Territorial integrity:
● Outside the above contexts, external self determination is not allowed.
● UNGA Res 2625 → highlights the principle of territorial integrity.
Answer structure:
● Outline relevant law for right to self determination
○ Art 1(2) UN Charter: Right to self-determination
○ Art 1 ICESCR & Art 1 ICCPR: “all people have the right to self-determination…”
● Distinguish between internal and external self-determination.
● In what situations does external self-determination arise?
○ UNGA Res 1514: Self determination in the context of colonial independence:
■ Alien subjugation
■ Domination
■ Exploitation
○ UNGA Res 2625: Self determination in the context of:
■ Alien subjugation
■ Domination
■ Exploitation
■ AND denial of fundamental human rights
○ Quebec case:
■ Those under Colonial rule
■ Those under foreign occupation
■ 3rd circumstance as a last resort - Remedial secession: When a people is blocked
from the meaningful exercise of its right to self-determination internally → it is
entitled as a last resort by secession (remedial secession).
● An expression of the will to the right to self determination must be expressed through a
declaration of independence:
○ Western Sahara case
■ Para 55:
● “The application of the right of self-determination requires a free and
genuine expression of the will of the peoples concerned”
● Is remedial secession allowed?
○ Maybe:
■ Kosovo:
● Para 79:
, ○ Notes that unilateral declarations of independence in themselves
are not prohibited.
● Para 80:
○ Does not recognise the right to remedial secession but does not
prohibit it either.
○ No:
■ UNGA Res 2625:
● Principle of territorial integrity cannot be violated.
WEEK 2: Sources of international law
Topic: Sources of international law
Relevant law:
● Art 38(1) ICJ Statute
Nature of art 38(1) ICJ statute:
● No such hierarchy between the 3 primary sources (treaties, custom and general principles) but
they do take precedence over subsidiary means (judicial decisions + opinions of scholars)
● If a conflict emerges between applicable legal rules - resolved on the basis of lex specialis and les
posterior.
Concept: Treaties
Relevant law:
● VCLT
Nature of VCLT:
● 116 Ratifications (not the most widely ratified)
● VCLT reflects CIL
● Art 2(1)(a): Definition of a treaty
○ “‘Treaty’ means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation”.
○ Thus the requirements are:
■ International agreement
■ Between states
■ In written form
■ Governed by international law
● Art 7: Negotiation
● Art 11: Consent to be bound
○ Prerequisite for entry into force
○ However, even when a state consents to a treaty does not mean it is immediately binding
○ Usually becomes binding when a treaty is signed & then expressed consent to be bound
through ratification.
Concept: Statehood
Relevant law:
● Montevideo Convention Art 1 (Criteria)
○ A permanent population:
■ Permanence: does not exclude nomadic groups
● Western Sahara case: ICJ recognized the nomadic Sarahwi population
despite their seasonal movements into Morocco etc
■ Size: does not matter (e.g. Vatican City)
■ Nationality: does not matter that all/majority of people in the territory have the
same nationality.
○ A defined territory:
■ Land/not sea: Natural land (artificial land is not considered a state)
■ Defined: defined territory but defined borders are not required
■ Size: micro-states may also be admitted
■ Population: does not need to live on the territory
○ Government:
■ Exercise of governmental authority over the territory.
■ Stable and effective control
■ Form and nature: In principle, CIL does not impose requirements on types of
governance e.g. monarchy, or democracy…
○ Capacity to enter into international relations:
■ Such a capacity derives from the independence of a state i.e. not in direct or
indirect control of another state.
■ Not simply a formal criterion but also a substantive one.
● Montevideo Convention Art 3 (Recognition by other states)
○ Not included in the criteria
○ Theories:
■ Constitutive theory: Recognition is constitutive of statehood
● States decide who are states
● Problematic: international law is not a democracy, all states are sovereign
and thus recognition is not binding upon whether other states recognize a
state or not.
● Schrodinger’s cat thought experiment:
○ Application: if 100 states recognize a state but the remaining 93
don't recognize the state then the conclusion of whether a state is
a state or not is inconclusive.
■ Declaratory theory: recognition is not a requirement
● Dominant theory.
● Art 3 of the Montevideo Convention states that a state’s existence is
independent of recognition.
Nature of Montevideo Criteria:
, ● Intended to be seen in terms of the creation of a state (an entity becoming a state), does not need
to be fulfilled by an existing state i.e. continuation of existence.
○ E.g. Somalia
■ Clan dominated → although Somalia has been without an official government for
a long period of time, it is still seen as a state in the legal sense.
Concept: self-determination
Relevant law:
● Art 1(2) UN Charter: Right to self-determination
● Art 2(4) UN Charter: Territorial integrity
● Art 1 ICESCR & Art 1 ICCPR: “all people have the right to self-determination…”
● UNGA Res 1514: Self determination in the context of colonial independence:
○ Alien subjugation
○ Domination
○ Exploitation
● UNGA Res 2625:
○ Protection of territorial integrity
○ Self determination in the context of:
■ Alien subjugation
■ Domination
■ Exploitation
■ AND denial of fundamental human rights
○ Reflects CIL
● Quebec case:
○ Para 126: Distinguishes internal & external self determination
○ Seen as a source of international law but not binding upon other states (only Canada)
● Kosovo case:
○ Para 79:
■ Declarations of independence are not contrary to international law
○ ICJ did not recognize the right to unilateral secession but did not declare it prohibited
either.
Distinguishing internal & external self determination:
● Internal self-determination:
○ Allowing different groups of people the equal right to participate in the internal politics
of a state without discrimination.
○ Internal self-determination is to be implemented internally, without entitling the people to
its own, independent state.
● External self determination:
○ Establishment of a sovereign and independent state (Quebec case p126)
○ The principle of self determination would enable a people to separate from a state only in
exceptional circumstances.
○ This right has only been bestowed on 2 classes of people (Quebec case p131-134):
■ Those under colonial rule
, ■ Those under foreign occupation
○ UNGA Res 2625 also adds: denial of fundamental human rights.
Remedial secession:
● However a 3rd circumstance has been described (Quebec case p131-134):
○ When a people is blocked from the meaningful exercise of its right to self-determination
internally → it is entitled as a last resort by secession (remedial secession).
Territorial integrity:
● Outside the above contexts, external self determination is not allowed.
● UNGA Res 2625 → highlights the principle of territorial integrity.
Answer structure:
● Outline relevant law for right to self determination
○ Art 1(2) UN Charter: Right to self-determination
○ Art 1 ICESCR & Art 1 ICCPR: “all people have the right to self-determination…”
● Distinguish between internal and external self-determination.
● In what situations does external self-determination arise?
○ UNGA Res 1514: Self determination in the context of colonial independence:
■ Alien subjugation
■ Domination
■ Exploitation
○ UNGA Res 2625: Self determination in the context of:
■ Alien subjugation
■ Domination
■ Exploitation
■ AND denial of fundamental human rights
○ Quebec case:
■ Those under Colonial rule
■ Those under foreign occupation
■ 3rd circumstance as a last resort - Remedial secession: When a people is blocked
from the meaningful exercise of its right to self-determination internally → it is
entitled as a last resort by secession (remedial secession).
● An expression of the will to the right to self determination must be expressed through a
declaration of independence:
○ Western Sahara case
■ Para 55:
● “The application of the right of self-determination requires a free and
genuine expression of the will of the peoples concerned”
● Is remedial secession allowed?
○ Maybe:
■ Kosovo:
● Para 79:
, ○ Notes that unilateral declarations of independence in themselves
are not prohibited.
● Para 80:
○ Does not recognise the right to remedial secession but does not
prohibit it either.
○ No:
■ UNGA Res 2625:
● Principle of territorial integrity cannot be violated.
WEEK 2: Sources of international law
Topic: Sources of international law
Relevant law:
● Art 38(1) ICJ Statute
Nature of art 38(1) ICJ statute:
● No such hierarchy between the 3 primary sources (treaties, custom and general principles) but
they do take precedence over subsidiary means (judicial decisions + opinions of scholars)
● If a conflict emerges between applicable legal rules - resolved on the basis of lex specialis and les
posterior.
Concept: Treaties
Relevant law:
● VCLT
Nature of VCLT:
● 116 Ratifications (not the most widely ratified)
● VCLT reflects CIL
● Art 2(1)(a): Definition of a treaty
○ “‘Treaty’ means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation”.
○ Thus the requirements are:
■ International agreement
■ Between states
■ In written form
■ Governed by international law
● Art 7: Negotiation
● Art 11: Consent to be bound
○ Prerequisite for entry into force
○ However, even when a state consents to a treaty does not mean it is immediately binding
○ Usually becomes binding when a treaty is signed & then expressed consent to be bound
through ratification.
