Probleem 1
Learning subjects
- How is a state formed
- Monte video criteria (a critique point of your own on these criteria)
- How does a state acquire territory
- The successions and obligations of a new formed country
- Blogs (separate the different views of the authors)
Study
- International law (Hendriksen): Chapter 1 (§1.3) and Chapter 4
- Case Law: North sea continental shelf and Island of Palmas
- Blogs 1 – 4
Foundation and structure of International Law (Chapter 1.3)
International law serves as a supplement to national law as a residual legal system o
scope of which cannot be determined by the inadequacy of national law. International
law comes in whenever a lawyer encounters an issue of importance to more than
one state. It answers questions that cannot be found in the national law.
The two ways in which an issue becomes of interest to more than one state define
the substantive structures of international law
- Two or more states are likely to have a colliding interest in the substance of
the issue. Here the mere fact that international society is composed of a
multitude of sovereign states that have different interests is sufficient to make
the issue international.
- When the involved states have agreed in a treaty to turn the issue (that
otherwise have been dealt with by national law) into one of an international
character. A matter may become international due to its content or its form
When is international law applicable → Legal subjectivity (personality)
- The capacity to perform legal acts, like concluding a treaty
- The enjoyment of privileges and immunities from the exercise of national
jurisdiction
- Being subject to international obligations and being liable when these
obligations are breached
- The ability to bring claims to response to breaches of international law
States posses al features above and have legal subjectivity, non-state actors receive
their rights and obligations and thus their obligations from states.
, L1: How is a state formed
The issue of recognition
The primary reason for the existing uncertainties about when an entity qualifies as a
‘state’ is due to diverging opinions about what role is played by other states in the
recognition of emerging states.
It is important to note the distinction, often blurred between the recognition of a state
and that of a government
- The state is the legal entity under international law
- The government is the representative of the state that is entitled to act on the
states behalf
Recognition of a state is more important that the recognition of a government
The debate about the effects of recognition of states has been dominated by two
competing approaches
1. Declaratory view: the creation of states is first and foremost a matter of law
and legal criteria, if they fulfill the predetermined requirements they can be
named as a state
2. Constitutive view: recognition by other states is a precondition (voorwaarde)
for statehood, so unless an entity that appears to bear all the hallmarks of a
'state' is recognized as such by other states, it is not a state for the purpose of
international law. Established states can easily deny ‘non-civilized’ nations
inclusion.
The constitutive approach to recognition is highly problematic.
1. If a state only exist in relation to another state, that has recognized its
existence, it could seem that absolute existence is not possible.
2. Another difficulty relates to the question of quantity (aantal landen). If
recognition is indeed required before an entity becomes a state, how many
states must recognize it and is the recognition from one state more important
than from the other.
Contemporary law (hedendaagse wetgeving) is based on the declaratory approach
Two points must be noted, however
1. In a very limited number of cases, statehood seems to have been denied to
entities that would otherwise seem to fulfil the formal criteria on the basis of
the principle that legal rights cannot arise from wrongful conduct (onrechtmatig
gedrag) (ex injuria jus non oritur)
2. General rejection of the constitutive theory does not mean that acts of
recognition are entirely irrelevant. Acts of recognition have evidentiary value in
Learning subjects
- How is a state formed
- Monte video criteria (a critique point of your own on these criteria)
- How does a state acquire territory
- The successions and obligations of a new formed country
- Blogs (separate the different views of the authors)
Study
- International law (Hendriksen): Chapter 1 (§1.3) and Chapter 4
- Case Law: North sea continental shelf and Island of Palmas
- Blogs 1 – 4
Foundation and structure of International Law (Chapter 1.3)
International law serves as a supplement to national law as a residual legal system o
scope of which cannot be determined by the inadequacy of national law. International
law comes in whenever a lawyer encounters an issue of importance to more than
one state. It answers questions that cannot be found in the national law.
The two ways in which an issue becomes of interest to more than one state define
the substantive structures of international law
- Two or more states are likely to have a colliding interest in the substance of
the issue. Here the mere fact that international society is composed of a
multitude of sovereign states that have different interests is sufficient to make
the issue international.
- When the involved states have agreed in a treaty to turn the issue (that
otherwise have been dealt with by national law) into one of an international
character. A matter may become international due to its content or its form
When is international law applicable → Legal subjectivity (personality)
- The capacity to perform legal acts, like concluding a treaty
- The enjoyment of privileges and immunities from the exercise of national
jurisdiction
- Being subject to international obligations and being liable when these
obligations are breached
- The ability to bring claims to response to breaches of international law
States posses al features above and have legal subjectivity, non-state actors receive
their rights and obligations and thus their obligations from states.
, L1: How is a state formed
The issue of recognition
The primary reason for the existing uncertainties about when an entity qualifies as a
‘state’ is due to diverging opinions about what role is played by other states in the
recognition of emerging states.
It is important to note the distinction, often blurred between the recognition of a state
and that of a government
- The state is the legal entity under international law
- The government is the representative of the state that is entitled to act on the
states behalf
Recognition of a state is more important that the recognition of a government
The debate about the effects of recognition of states has been dominated by two
competing approaches
1. Declaratory view: the creation of states is first and foremost a matter of law
and legal criteria, if they fulfill the predetermined requirements they can be
named as a state
2. Constitutive view: recognition by other states is a precondition (voorwaarde)
for statehood, so unless an entity that appears to bear all the hallmarks of a
'state' is recognized as such by other states, it is not a state for the purpose of
international law. Established states can easily deny ‘non-civilized’ nations
inclusion.
The constitutive approach to recognition is highly problematic.
1. If a state only exist in relation to another state, that has recognized its
existence, it could seem that absolute existence is not possible.
2. Another difficulty relates to the question of quantity (aantal landen). If
recognition is indeed required before an entity becomes a state, how many
states must recognize it and is the recognition from one state more important
than from the other.
Contemporary law (hedendaagse wetgeving) is based on the declaratory approach
Two points must be noted, however
1. In a very limited number of cases, statehood seems to have been denied to
entities that would otherwise seem to fulfil the formal criteria on the basis of
the principle that legal rights cannot arise from wrongful conduct (onrechtmatig
gedrag) (ex injuria jus non oritur)
2. General rejection of the constitutive theory does not mean that acts of
recognition are entirely irrelevant. Acts of recognition have evidentiary value in
