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Probleem 1Bronnen:
- Hendriksen – International law – Chapter 4: par. 2.5 and 2.7
- Appendix International Law Cases (Independence of Kosovo)
1. What is self-determination (= zelfbeschikking) and what are the conditions thereof?
The right to self-determination stipulates (= bepaalt) that people have a right to freely determine their political
status and pursue their economic, social and cultural development. But before 1945 it did not emerge as a
fundamental principle of international law until the decolonization process after the end of the Second World War.
This principle is found in for example in article 1 of the UN Charter and resolutions from the General Assembly (=
Algemene vergadering).
In the East Timor case the International Court of Justice (ICJ) stated that the right to self-determination is an
essential principle of international law that has an erga omnes character. This means that the rights and duties apply
to everyone.
The most controversial aspect of the right to self-determination concerns the extent to which it gives a section of a
population a right to separate from an existing state without permission from the government of the mother-state.
In the 1960s and 1970s, former colonies successfully separate and became an independent state. But later the
relationship between the right to self-determination and statehood resurfaced. The ICJ decided that Kosovo was
entitled to secede in accordance with International Law of the Unilateral Declaration of Independence in respect of
Kosovo, the Court refrained from doing so. It limited itself to stating that there are 'radically different views' on
whether the right to self-determination offers a right to secession for other people than those in nonself-governing
territories and peoples view to foreign subjugation (= onderwerping), domination and exploitation, but that
international law does not preclude (= uitsluiten) Kosovo from issuing a declaration of independence.
2. Is a declaration of independence lawful (= wettig/rechtmatig) under international law?
A number of participants in the present proceedings have claimed that the population of Kosovo has the right to
create an independent State either as:
1. A manifestation of a right to self-determination The International law of the right of self-determination
confers upon (= verleent) part of the population of an existing State the right to separate from that State.
But as the Court had noted, that issue is beyond the scope of the question posed (= gevraagd) by the
General Assembly. To answer that question, the Court needs to determine whether the declaration of
independence was violated (= schending).
a. Either in general international law (The Court considers that general international law contains no
applicable prohibition (= verbod) of declarations of independence) or
b. The lex specialis created by Security Council resolution 1244 (= Veiligheidsraad).
2. Pursuant (= overeenkomstig) to what they described as a right of ‘remedial secession’ in the face of the
situation in Kosovo.
3. Is secession (=afscheiding) lawful under international law?
The right to self-determination of a nation is normally fulfilled by internal self-determination - autonomy - according
to which a nation pursue their political, economic, social and cultural development within the framework (= kader)
of an existing state. A right to external self-determination (option of seceding) arises only in the most extreme of
cases. According to the Court, it is undisputed (= onbetwist) that
- Colonial people under imperial rule and;
- Other people who find themselves subject to foreign subjugation, domination or exploitation, have a right to
external create their own state.
With the regard to the claim that a right also exists, as a last resort, for other nations who are blocked from
meaningful exercise of their right to self-determination internally within a state, the Court noted that international
,law is unclear on this point. So, it is doubtful whether these nations can claim a right to secede. International
stability speaks in favor of keeping the territorial integrity of a mother-state intact and requiring people to pursue
their right. The safeguard clause (in Declaration on Friendly Relations) stipulates that there can be no question of
remedial secession in a state where the government represents the whole of the people within its territory on a
basis of equality and without discrimination.
An affirmed right to external self-determination does not always lead to a claim for secession. A nation with a right
to statehood may decide that their interests are presently best served by remaining within an existing state. And
international law does not prevent (= beletten) a mother-state from consenting (= instemmen) to the secession of
part of its territory.
4. In which way is the succession (= opvolging) of rights and duties of (new) states arranged?
The practical manner in which succession is dealt with varies from case to case and in many instances the old and
the new states will settle the most important issues in a bilateral treaty. But whenever a new territorial entity
emerges (= ontstaat) it is necessary to determine if the entity should be considered as a continuation of a pre-
existing state or as a new and separate entity. Issues of state succession also arise when two states merge (=
samenvoegen) and form a single state.
The rules about succession are complex and depend on the subject matter at hand. International law seems to adopt
a so-called 'clean slate' approach, which means that the emerging state is not considered bound by the treaties (=
verdragen) and agreements concluded by its predecessor (= voorganger). The emerging state is free to become or
not to become a party to treaties entered into by the predecessor state.
There are a few exceptions:
The principle of uti possidetis juris according to which geographical boundaries created by treaties remain in force
regardless of whether or not the boundaires coincide with (new) ethnic, tribal, religious or political affiliations. Uti
possidetis implies that a new state is delimited by the already existing boundaries (dus bestaande grenzen).
Predictability and stability would we greatly jeopardized (= in gevaar gebracht) if territorial boundaires were subject
to negotiation whenever a state changed its legal status.
In Frontier Dispute (=geschil), the ICJ applied the uti possidetis principle to an old colonial border and noted its
‘exceptional importance for the African continent’. The principle has also been applied in non-colonial settings and
to the drawing of internal boundaries. In Territorial Dispute, the ICJ noted that a boundary agreed upon in a treaty,
‘achieves a permanence (= duurzaamheid) which the treaty itself does not necessarily enjoy. The treaty can cease (=
ophouden) to be in force without in any way affecting the continuance (= voortzetting) of the boundary.
A second exception to the clean-slate approach concerns obligations (= verplichtingen) under human rights and
humanitarian law conventions. If a state disintegrates and ceases to exist, the clean-slate approach would mean that
the population of the seceding territory are not protected by such conventions until they decides to become a party.
According to the UN Human Rights Committee, protection under the UN Covenant on Civil and Political Rights
continues ‘notwithstanding (= ondanks) change in government of the State party, including dismemberment in more
than one State or Sate succession’. In Genocide case, two of the ICJ judges concluded that the Genocide Convention
‘does not to come to an end with the dismemberment of the original State, as it transcends the concept of State
sovereignty’. And the Appeals Chamber for the ICTY concluded that there is ‘automatic State succession to
multilateral humanitarian treaties in the broad sense (> treaties of universal character which express fundamental
human rights’, and that state succession did not impact obligations arising from fundamental humanitarian
conventions).
,Probleem 2
Bronnen:
- Robbert Schütze – An Introduction to European Law
1. How is the European Parliament composed and how are its members elected?
The European Parliament is mentioned and explained in art. 13 and 14 TEU and Part VI, Title I, Chapter 1, section 1
of the TFEU (art. 223-234).
At first the Parliament didn’t have much power, but after the 1970’s its power increased, and the Parliament is now
making Union laws with the Council. The Parliament is directly elected by the European citizens (art. 10(2) TEU). At
first the European parliamentarians were national parliamentarians. This formation method brought the Parliament
close to an ‘’assembly’’. This first method already breached the classic international law logic in two ways: the sizes
of the delegations were not equal and there was a plan to have direct elections someday. Eventually it took two
decades to adapt the Union’s 1976 ‘’Election Act’’, which stated that the European Parliament would be directly
elected by European citizens (art. 14(2) TEU).
Composition
The European Parliament has a maximum size of 705 members. The European Council decides on the national
‘’quotas’’ for the representatives, but it has to be degressively proportional with a range spanning from six to ninety-
six seats. The national quotas constitute a compromise between the democratic principle and the federal principle.
The result of this compromise is that a degressively proportional system would be preferred above a purely
proportional system.
- Democratic principle = each citizen must have equal voting power
- Federal principle = based on the political existence of States
- Purely proportional system = the vote
- Degressively proportional system =
The elections take place every five years (art. 14(3) TEU) and must be conducted on the basis of proportional
representation (method of first-past-the-post). The elections must take place in accordance with principles common
to all Member States, but there is one common constitutional rule: every citizen of the Union residing in a Member
State of which he is not a national shall have the right to vote and to stand as a candidate in elections in the Member
State in which he resides, under the same conditions as nationals of that State (art. 22(2) TFEU). More rules are set
out by the 1976 Election Act.
2. How is the Council of the EU composed?
The European Council is mentioned and explained in art. 15 TEU and Part VI, Title I, Chapter 1, section 2 of the TFEU
(art. 223-234).
The Council has a legislative as well as executive functions. It can be seen as the central institution of the European
Union.
Composition (art. 16 TEU)
The Council shall consist of a representative of each Member State at ministerial level, who may commit the
government of the Member State in question and cast its vote. There are two Council configurations:
- The General Affairs Council = to ensure consistency in the work of different Council configurations
- The Foreign Affairs Council = to elaborate the Union’s external action on the basis of strategic guidelines laid
down by the European Council and ensure that the Union’s action is consistent
Each Member State has a Permanent Representative in the Committee of Permanent Representatives, which is also
called ‘’Coreper’’. The Corper also has two parts:
- Coreper I = represents the meetings of the deputies of the ambassadors and prepares the more technical
remainder.
- Coreper II = represents the meeting of ambassadors and prepares the first Council configurations, the more
important political decisions.
, Decision-making will take place in Brussels and the Commission will also attend these meetings. There are two
principal forms of voting:
- Unanimity voting = requires the consent of all national ministers, this is mostly done for sensitive political
questions (art. 31 TEU).
- Majority voting = requires the consent of more than half of the national ministers
o Simple majority = the Council shall act by majority of its component members (art. 238(1) TFEU).
o Qualified majority (art. 16(3) TEU) = there are weighted votes, which is to some extent digressively
proportional. However, the voting system also represents a system of symbolic compromises. Since
1 November 2014, a qualified majority defines at least 55% of the members of the Council and at
least 65% of the population of the Union. However, when a fourth of the States or states
representing a fifth of the Union population are oppose a decision, deliberations must continue.
3. How is the European Commission composed and how are its members selected, appointed or
elected?
The European Commission is mentioned and explained in art. 17 TEU and Part VI, Title I, Chapter 1, section 4 of the
TFEU (art. 223-234).
Composition (art. 17 TEU)
The Commission is located in the executive branch and consists of one national of each Member State. The
Commission has a term of office of five years and must be completely independent during this term. Breach of this
rule may lead to a Commissioner being ‘’compulsorily retired’’ (art. 245 TFEU). There are two stages during the
composition of the Commission.
1. The election of the President: the European Council will nominate a person to be President and the
Parliament must elect this President, if not, a new President will be nominated.
2. The election of Commissioners: in accord with the President, the Council will adopt a list of candidate
Commissioners. This list must be accepted by the Parliament too.
Each Commissioner is responsible for his own portfolio, but after the idea of ‘’Project Teams’’ some portfolios were
combined under the authority of a Vice-President to set policy priorities and to create more cohesion between
various ministerial portfolios.
The President is the ‘’Chief’’ Commissioner and the commission shall carry out the duties developed upon them by
the President under his authority (art. 248 TFEU). The Commission is typically named after its President. The
President has four tasks:
a. Lay down guidelines within which the Commission is to work
b. Decide on internal organization
c. Appoint Vice-Presidents
d. To represent the Commission
4. What are the main functions and powers of those three EU institutions?
The European Parliament (art. 14(1) TEU)
1. Legislative Powers: The Parliament may informally propose new legislation (art. 225 TFEU), but the
involvement of Parliament starts after the Commission submitted a proposal. Parliament cannot suggest
amendments but must take-or-leave the adoption of legislation by the Council. Sometimes, under the
‘’consultation procedure’’ the Parliament is not even entitled to do that (art. 289(1) TFEU).
2. Budgetary Powers: The Parliament is an equal partner, with the Council, in establishing the Unions annual
budget.
3. Supervisory Powers: The Parliament has the power to hold the executive to account this is done by:
a. Debate = Parliament is entitled to receive general report on activities of the Union from the
Commission (art. 249(2) TFEU), which it shall discuss in open session (art. 233 TFEU). The Council
has to report the Parliament after a meeting (art. 15(6)(d) TEU).
b. Question = the Commission shall reply orally or in writing to questions put to it by the Parliament or
by its members (art. 230 TFEU).
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