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Samenvatting OG uitwerking probleem 1 Introduction to International and EU law
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uitwerking van probleem 1 internationaal recht. wetsartikelen zijn geel gemarkeerd en arresten blauw.
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Learning objective 1: What is (internal and external) self-determination and what are the conditions thereof?
The right to self-determination refers to a right to freely determine their political status and pursue
their economic, social and cultural developments.
The first international court case concerning this principle was the Aaland Island case in 1920. Here
the court held that international law does not recognize the right of national group as such to secede
from the state of they are part by the expression of a wish. There, the right of self-determination was
not considered a right to secession. The first time that the principle was recognized in an official
international legal document was in art. 1 United Nations Charter 1945. The international treaties of
1966 provides a substantive definition of what is covered by the right to self-determination.
The CJEU made a distinction between internal and external self-determination in the Quebec case:
- Internal self-determination
A right of people to pursue political, economic, social and cultural development within the
framework of an existing state.
- External self-determination
Colonial people and others who are victims of foreign subjugation, domination or
exploitation have a right to create a new state.
Learning objective 2: Is secession lawful under international
law?
A right of external self-determination arises only in the most extreme of cases. Colonial people and
others who are victims of foreign subjugation, domination or exploitation have this right, that give
them the right to establish their own independent state. However, it is doubtful whether people that
are neither colonized nor subject to subjugation, domination or exploitation can claim this right and
secede. Remedial secession sought to apply the right to secessionist self-determination outside of
colonial contexts, in cases where territorial minority ethnic groups have faced structural
discrimination and severe violations of fundamental human rights.
Two final points must be made regarding the right to self-determination and statehood
1. A confirmed right to external self-determination need not lead to a claim to secession. A
people with the right to an independent state may decide that their interests are currently
best served by remaining within an existing state.
2. International law does not prevent a mother-state from consenting to the secession of part
of its territory.
In the Kosovo case, the question was if the unilateral declaration of independence by Kosovo was in
accordance with international law. The answer was that there is nothing that suggests that the act of
proclaiming a declaration is regarded as contrary to international law. The population of Kosovo has
the right to create an independent state either as a manifestation of a right to self-determination or
pursuant to a right of remedial secession in the face of the situation in Kosovo (82).
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