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Notes + working group effects week 3 Public International Law
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Notes and working group results from week 3 of the Public International Law course. The teacher's correction is in bold.
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Samenvattingen IIEL
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Aantekeningen + werkgroepuitwerkingen week 8 Public International Law
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Aantekeningen + werkgroepuitwerkingen week 1 Public International Law
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CLASS 3 – SUBJECTS OF INTERNATIONAL LAWOverview Literature:
Henriksen,
- Chapter 4
- Chapter 9 (p. 177–183)
Cases:
- ICJ, Reparations for Injuries Advisory Opinion;
- ICJ, Kosovo Advisory Opinion
Other materials:
- The Montevideo Convention on the Rights and Duties of States;
- Knowledge clips class 3;
- BBC news article ‘Kosovo: why is trouble flaring up between Serbs and the
Albanian-led government?’ - The Charter of the United Nations
Learning objectives: At the end of this class, students:
- Name the subjects of international law;
- Explain how subjects of international law can be determined;
- Are able to apply the Montevideo criteria for statehood;
- Explain the difference between the declarative theory and the constitutive
theory;
- Name and describe the ways in which territory can be obtained;
- Explain what an international organisation is;
- Understand the outcome of the ICJ Kosovo Advisory Opinion;
- Understand the outcome of the ICJ Reparation for Injuries Advisory Opinion.
- Know the main organs of the United Nations and understand their respective
basic functions, competences and decision-making procedures.
, Notes
Subjects are states, international organisations, individuals.
Important to know whether it is a state to determine its right and obligations.
Statehood
Montevideo Convention, article 1 criteria:
- Permanent population: no size requirement, as long as core component
- Defined territory: no size requirement but should be consistent and
undisputed territory, uncertain border does not matter
- Government: government must be effective (but not a particular type of
government), need not exercise jurisdiction throughout entire territory
- Capacity to enter into relations with other states: focus on legal capacity, the
ability act without interference
Recognised theories
Declaratory: apply Montevideo criteria, no consequences from non-recognition
(objective view)
Constitutive: must be recognized by other states. Be a member of the UN, then
you are recognized as a state. (subjective view)
IRAC method issue, rule, application, conclusion
Step 1: What is the issue?
Step 2: What are the rules?
Step 3: Apply the rules to the issue
Step 4: Draw a conclusion, logical follow up of application
If one of the Montevideo criteria is not met, the territory cannot be considered a
state.
Advantage declaratory theory: clearer cut, easier to be a state, takes out the
politics, objective theory.
When recognition is necessary, you bring politics into the question.
International organisations
ICJ Reparation for Injuries Advisory Opinion
- Can the UN bring a claim against a state?
Does the UN have capacity to bring a claim
Does the UN have international personality? Yes to be able to fulfil its functions
and purposes
Explicit purpose: purposes that are mentioned in the treaty
Implicit purpose: everything that is not mentioned in the treaty but is essential to
the performance of its duties. Actions necessary to fulfil purposes.
Duty of the UN: sending diplomats to discuss, but they have to be protected
- Is the UN a legal person under international law?
UN was exercising and enjoying functions and rights
UN Members entrust functions and duties, give competence to UN
UN has international legal personality
However, the ICJ did not equate the UN to States
- International organisations are created by states, which are their members
- International organisations are usually created by a treaty (constitutive
treaty). Examples are the UN Charter and the Constitution of the WHO
- International organisations are established in order to realise a common goal
for which they are endowed. One of the purposes for which the UN was
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