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International and European Union LawRosalie van Laar
Group 63
B1 Criminologie
1
,Problem 1
1. What is (internal and external) self-determination and what are the conditions thereof?
2. Is secession lawful under international law? LD3
The right to self-determination determines that all people have a right to freely determine their
political status and pursue their economic, social and cultural development. Since the
decolonization process after WWII, the right to self-determination became a fundamental
principle of international law.
Internal self-determination: autonomy: a people pursue their political, economic, social and
cultural development within the framework of an existing state – democracy.
External self-determination: in the most extreme cases a people separates itself from the
motherland. A right to external self-determination entitles a people to create their own
independent state.
o Only colonial people under imperial rule and other people who find themselves
subject to alien subjugation, domination or exploitation have a right to create their
own independent state, according to international law.
o You have a right to external self-determination when you cant express your internal
self-determination.
o When there is severe violation of rights, we call it remedial secession. It’s no longer
an internal conflict, but other states will help get the people out of the situation.
In terms of international stability, internal self-determination is the better option.
An affirmed right to external self-determination does not always mean that a people will
separate from their motherland. They can decide it is in their best interests to stay one country.
A mother-state can always consent to the separation of part of its territory.
3. Is a declaration of independence lawful under international law? LD2
Case Unilateral declaration of independence by Kosovo.
Issue- The territory of Kosovo has long been the subject of contention between Kosovo’s
Albanian and Serb populations. In September 1992, the republic of Kosova was declared a
sovereign and independent state. On 17 February 2008, the Provisional Institutions of Self-
Government of Kosovo declared independence from Serbia. Is the unilateral declaration of
independence by the Provisional Institutions of Self-Government of Kosovo in accordance
with international law?
Rule, application and conclusion- International law contained no prohibition of declarations
of independence, but there are no legal rules found about this so there won’t be any
consequences to the declaration. It doesn’t mean you can get your own state or you have the
right to external self-determination.
4. In which way is the succession (opvolging) of rights and duties of (new) states arranged?
State succession: the replacement of one state by another in the responsibility for the
international relations of territory.
International law adopts a clean slate approach whereby the emerging state is not bound by the
agreements concluded by its predecessor and is thus free to decide if it wants to become a
party to such agreements.
Certain exceptions to this clean slate approach exist, however:
The principle of uti possidetis juris states that geographical boundaries created by treaties
(verdragen) remain in force (regardless of whether the boundaries coincide with new ethic,
tribal, religious or political affiliations).
The population of a new territory is protected by humanitarian law conventions.
Webcasts week 1
2
,Subjects and actors of international law
What is international law?
International law traditionally, is a system regulating the relationships among sovereign
States. Yet other actors might have rights and duties under international law.
Substance-wise, it covers a significant array of issues, ranging from the creation of States to
the regulation of trade in goods among countries, to the protection of intellectual property,
climate change and access to vaccines.
It is a very different system from national legal systems: no centralized legislative or executive
bodies, absence of mandatory dispute settlement procedures, decentralized system of norm
creation and enforcement.
A long way to the current international legal system
Roman Empire: the notion of ius gentium as a set of rules dictated derived from natural reason
common to all peoples. Natural law as such stems from assumptions about the nature of man
and society and as such has universal value.
Middle Ages: coexistence of different normative levels and communities. The international
society was composed of a transnational network of diverse entities and individuals.
Overlapping layer: Holy Roman Empire and the Catholic Church. Emergence of lex
mercatoria and maritime custom.
Emergence of colonialism: Western European reigns subjugating native Indian populations.
17th/18th century: first emergence of modern international law applying to international
relations -> 1648 Peace of Westphalia/Vrede van Westfalen and consolidation of nation states,
state sovereignty and the principle of equality among states.
From the 19th century to present
The positivist turn in international law: the primary source of law in State will, hence State
consent to be bound to an international obligation.
Ravaging colonialism and partition of Africa
Creation of the League of Nations (1919): maintaining world peace -> towards peaceful
dispute settlement and establishment of the PCIJ.
Replacement of the League of Nations with the UN -> major introductions of the UN charter:
outright ban on use of force: principle of self-determination of peoples; equality of States;
collective effort in maintaining peace and security via UNSC.
UNGA started the decolonization processes.
Emergence of multiple regional organizations -> most advanced example: EU.
While originally international law was mainly concerned with the horizontal relationship
among States (coexistence), increasingly vertical and transnational issues are taking center
stage (cooperation).
Who or what is a subject of international law?
A subject of international law can be defined as an entity capable of holding international
rights and duties and having capacity to protect its rights by bringing international claims ->
international legal personality as a relative concept: the demands can differentiate per legal
personality.
Traditionally, the only subjects were states.
Now other entities such as:
o Entities which can potentially become States (de facto regimes)
3
, o International governmental organizations such as the UN
o Individuals and Non Governmental Organizations or NGOs (rights through
international human rights law/duties through international criminal law)
International law describes through four Montevideo criteria (art. 1) what a state is.
o Permanent population: a number of individuals is not required; but the individuals of
the state need to respond to the legal system introduced by the government of that
state.
o Defined territory: we need a definition of what the territory is, but some level of
uncertainty in regards of the precise boundaries can be settled.
No minimum size. As long as the authorities control a consistent area of
undisputed territory. The delineation (afbakening) does not need to de
definite.
o Government: authority that is able to use its effective control over the territory and the
population and ensure that it complies with its international obligations (internal
dimension of sovereignty: a state is free to exercise its authority within it’s territory
without the interference of any other state).
The form of government is not relevant as to what a state is. The government
does not need to be democratically elected in order for it to be a state.
The government does not necessarily need to be in a position where it can
exercise authority throughout the entire territory of the state. The requirement
of an effective state ceased to be relevant when a state has been established.
o Capacity to enter into relations with other states (external dimension of sovereignty).
Legal independence is important. Often entities are not states because they
lack legal independence.
Important note: effectiveness is extremely important in the criteria listed above.
Controversial matters around statehood
Does recognition (erkenning) play any role?
o Constitutive view: a state is such once recognized by other states of the international
community.
o Declaratory view: a state is such when it fulfills the criteria, recognition only has
practical consequences - leading view
What about ‘illegally’ created entities?
o Ex injuria jus non oritur: no legal rights can arise from wrongful conduct
(onrechtmatige daad).
o Yet, this principle isn’t always applied consistently in practice.
The relationship between self-determination and statehood
Does the principle provide a claim for all peoples to separate and become an independent
state?
o Pacific claim for people under colonial rule and alien subjugation (onderdrukking).
o Debated whether it also supports separation for other peoples: doctrine and case-law
seems to be open to the possibility of remedial separation only in extreme cases of
denial from meaningful exercise of internal self-determination – apartheid.
o Difficult balance of the right of people to have their own state vs the maintenance of
international peace and stability.
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