Introduction to International and European Union Law
Summary
Comprehensive summary of problems 1-8, including learning objectives, literature and case law per problem.
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Course
Introduction to International and European Union Law
Institution
Erasmus Universiteit Rotterdam (EUR)
A summary (including a clear step-by-step explanation of case law) of all problems 1-8 in this course. Indicated for each problem: learning objectives, literature and case law.
introduction to international and european union law
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Erasmus Universiteit Rotterdam (EUR)
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Introduction to International and European Union Law
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Problems
Problem 1
Learning objectives
1. What is a state according to international law?
A. What is a state
B. How does a (new) state emerge
C. In which way is the succession of rights and duties of (new) states arranged
2. Discuss the case of the Bougainville independence. Elaborate on if the Bougainvilleans have
the right to be independent.
Make a check list on how you would assess the problem of the case of the Bougainville
independence according to what they have read in the materials. And compare to the Blog
on the Bougainville.
Literature:
Henriksen chapter 1 & chapter 4
Blog EJILTALK
Case law
North Sea Continental Shelf Cases
Island of Palmas case
International legal system has arised in 1648 to ban war in Europa. The major European powers
sought to establish order and structure in Europe through compartmentalize territory and individuals
into sovereign states instead through empire and religion. The state became the primary source of
authority sense of allegiance (trouw) among citizens to their respective states of nationality.
Westphalia was a turning point: from war-torn to key building block of international law.
(Er was heel veel oorlog en behoefte aan regels en gelijke rechten voor elke staat.)
Natural law universal legal system
Positivism fragmented legal system and states are bound by different legal obligations
‘consensual theory’ = unless a state has consented to be bound by a rule, no international
legal obligation exists and the state remains entitled to act as it pleases.
The interwar period (after the First World War) successful establishment of the Permanent Court
of International Justice (PCI) in The Hague = forerunner to the present day International Court of
Justice (ICJ).
The period after the end of the Second World War the victorious states in that war reacted to
prosecute top German officials for international crimes before a war crime tribunal in Nuremberg.
the League of Nations was replaced by the United Nations (UN) which gave the Security Council
the competence to maintain international peace and security and if necessary to authorize forceful
measures. The UN is build on solid Westphalian principles: respect for the principle of equal rights of
peoples + sovereign equality of all its member states (Peace of Westphalia, 1648).
> the maintenance of peace and the conduct of war were a collective effort.
The UN Charter also established a General Assembly where all member states are represented.
Example: when the UN was created, almost one-third was dependent on colonial power. The
Assembly (1960) proclaimed that colonialism should be brought to an end.
Functions UN:
, created IMF to ensure exchange stability and to make resources available to states with
payment difficulties.
created GATT (now called World Trade Organization) to liberalize word trade by reducing
tariffs and other barriers to trade.
created the World Bank to provide loans to developing countries.
Now due to global transformations in economic power and the increasing competition, states
seem increasingly unable to reach agreement on ambitious collaborative efforts to create new legally
binding global agreements on important issues and instead opt for legally binding regional
agreements with like-minded states (ex: BRICS have set up a range of new financial institutions that
may be potential rivals to the traditional global institutions, such as IMF and the World Bank).
National law between citizens of a sovereign state or between the citizens and the state.
International law encounters an issue of interest to more than one state:
1. two or more states may have different interests in the substance of the issue.
2. the involved states have agreed in a treaty to turn the issue (that would otherwise have been
dealt with by national law) into one of an international character due to its content or
form.
> Bij content ga je naar international law of coexistence (1)
> Bij form ga je naar international law of cooperation (2)
> the international law of coexistence contains the answers required to separate the powers of
sovereign states.
> the international law of cooperation provides the legal answers to issues that have been turned
into matters of international concern pursuant to the adoption of a treaty.
> monism, dualism
CH4 Actors in the international legal system
‘legal subjectivity’ or ‘legal personality’ = who international law applies to. The subjects of
international law are those to whom the international legal system gives the capacity to hold rights,
powers and obligations.
Non-states (derive their legal personality from states)
States (only actors that can create international law)
International organizations (created by treaty)
Non-government organizations; NGO’s (private entities which don’t generally have
international legal personality)
Territorial entities other than states (created and managed by treaty)
Groups of individuals may also have legal personality (right to self-determination)
Private corporations
The state
States are the most important actor among international legal actors and they are the only actor that
can create international law.
1. Recognition
Primary reason for uncertainties about when an entity qualifies as a state: different opinions about
what role is played by other states in the recognition of an emerging state.
Distinction: recognition of a state and that of a government. (lack of recognition of a state is of
greater legal importance than the lack of recognition of a government)
State = the legal entity under international law.
Government = the representative of the state that is entitled to act on the state’s behalf.
,Two approaches:
Declaratory view = the creation of states is first and foremost a matter of law and the
fulfilment of legal criteria/requirements. The relevant criterion for acquiring statehood is that
of effectiveness. Contemporary international law is based on this approach.
Constitutive view = recognition by other states is a precondition for statehood. Problems:
o If a state only exists in relation to another state that has recognised its existence, it
would seem that absolute existence is impossible.
o How many states must recognize it? Is the recognition of some states more
important than that of other states?
Article 3 of the 1933 Montevideo Convention on the Rights and Duties of States: ‘political existence
of the State is independent of recognition by other States.’
o In some cases state seems to have been denied to entities that would otherwise seem to
fulfil the criteria on the basis of the principle that legal rights cannot arise from wrongful
conduct (ex injuria jus non oritur). ??? Blz 62
o Acts of recognition are not entirely irrelevant (for example UN membership provides very
strong evidence of statehood, even though it isn’t required).
o Recognition is also important because it is often a precondition for the establishment of
bilateral relations (diplomatic/treaty relations for example).
2. The Montevideo criteria and the requirements of effectiveness
Article 1 a state must possess the following:
A. A permanent population.
B. A defined territory.
C. A government.
D. A capacity to enter into relations with other states.
A permanent population:
The population doesn’t have to have a certain size.
A defined territory:
There isn’t a criterion for the required size of the territory.
The boundaries don’t need to be precisely demarcated and settled (example
Israel/Palestine).
Authorities control a consistent area of undisputed territory.
A government:
Entity in charge of running affairs and able to answer to the outside world.
A democratic government is not a requirement.
The government in question has to be effective.
Distinction: situations where the entity attempts to secede from within an existing state
structure, in which case secession will often be contested, and instances where the claim to
statehood flows from a grant of independence to the territory by a former sovereign. ? Blz 64
Criterion of effectiveness applied in second situation.
Requirement of effectiveness isn’t relevant anymore once a state has been established.
A capacity to enter into international relations with other states:
To be a state an entity must have the ability to act without legal interference from other
states. (examples of non-states because of this criterion: Scotland and Greenland lack of
legal independence)
, 3. The issue of illegality in the creation of a state
Exceptions to the Montevideo criteria:
Creation of a state in flagrant violation of basic norms of international law (potentially of ius cogens
nature). in violation of ex injuria jus non oritur (no legal rights can arise from wrongful conduct)
Violation of a population’s right of self-determination. (example: South Rhodesia daar
kwam een ‘witte’ entiteit aan de macht en ondanks deze voldeed aan de montevideo criteria
werd het afgewezen als een staat)
Creation of a state through unlawful use of force. (example: the Turkish Republic of Northern
Cyprus aan de macht gekomen door geweld)
o Exception: use of unlawful force in order to further the realization of the self
determination of a population (example: East Pakistan/Bangladesh onstaan van
onafhankelijke staat Bangladesh, omdat Pakistan menselijke rechten had
geschonden)
4. The right to self-determination
The right to self-determination = all peoples have a right to freely determine their political status and
pursue their economic, social and cultural development.
It emerged as a principle when the decolonization process took place at the end of WOII.
Self-determination could be translated into a right to statehood for people under colonial
rule.
Currently it is found in article 1 UN charter.
Distinction made by the Canadian Supreme Court:
Internal self-determination (normally fulfilled) internationale stabiliteit om ervoor te
zorgen dat de moederstaat intact blijft en dat mensen wel het recht hebben op
zelfbeschikking
o Autonomy
o Within the framework of an existing state.
External self-determination
o Arises in extreme cases dan mogen mensen zich afscheiden van de staat.
o Colonial people and others who may otherwise find themselves subject to alien
subjugation, domination or exploitation have a right to external self-determination
that may entitle them to create their own independent state. (the right, however,
does not have to materialize in an actual claim for statehood)
people who don’t meet these requirements cannot use this right, exceptions:
o Situation of extreme oppression
o Total denial of meaningful internal self-determination
Kanttekeningen external:
External self-determination need not to lead to a claim for secession (afscheiding vd staat).
People may prefer to remain part of the state.
International law does not prevent a ‘mother-state’ from consenting (toestemming geven) to
the secession of part of its territory.
When balancing justice and order, however, international law prioritizes order.
5. The acquisition (verkrijgen) of new territory
Cession (opzegging van gebied door een staat):
Purchasing territory from another state. (for example: Alaska)
The state that acquires the territory cannot obtain more rights to the territory than those
possessed by the ceding state.
The acquiring state must respect the potential rights of third states.
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