Problem 1
1. What is self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is a succession lawful under international law?
4. In which way is the succession of rights and duties of (new) states arranged?
Literature
Henriksen
- 4.2.5 & 4.2.7
Cases
- Kosovo
1. What is self-determination and what are the conditions thereof?
The right to self-determination stipulates that all peoples have a right to freely determine
their political status and pursue their economic, social and cultural development.
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.
There are two kinds of self-determination:
Internal self-determination -> according to which people pursue their political, economical,
social and cultural development within the framework of an existing state
External self-determination -> external self-determination arises only in “extreme cases”
Two final points:
- An affirmed right to external self-determination need not lead to a claim for secession
- The international law does not prevent a “mother-state” from consenting to the secession
of part of its territory
2. Is a declaration of independence lawful under international law?
Appendix: independence in respect of Kosovo:
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 or (2) pursuant to what they described as a right of ‘remedial
secession’ in the face of the situation in Kosovo.
The International law of the right of self-determination confers upon 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 by the General Assembly. To answer that
question, the Court need only determine whether the declaration of independence violated;
- either general international law or
- the lex specialis created by Security Council resolution 1244
,The Court considers that general international law contains no applicable prohibition of
declarations of independence.
Examples:
Rhodesia -> the creation of which violated the local population’s right of self-determination
- A white minority government issued a declaration of independence and all-though it
seemed too full-fill all the criteria of a state several organizations called upon all states to not
recognize the illegal racist minority regime.
Turkish Republic of Northern Cyprus (trnc) -> Which was created by unlawful use of force.
Expectation:
Creation of Bangladesh -> The difference between these two entities is manifested in the
human rights violations of now Bangladesh at the hand of Pakistan.
3. Is a secession lawful under international law?
Internal self-determination
- Belong to the country, but have their own autonomy
External self-determination
- Colonial people under imperial rule
- People who find themselves subject to alien subjugation, domination or exploitation
Exceptional:
- Remedial secession -> A last resort for people who are blocked from meaningful exercise
of their right to self-determination internally within a state, but the safeguard clause
stipulates that there can be no question of remedial secession when the government
represents the whole of people within its territory on a basis of equality
4. In which way is the succession 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
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 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 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 and agreements concluded by its
predecessor. 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 boundaries coincide with (new)
ethnic, tribal, religious or political affiliations. Uti possidetis implies that a new state is
delimited by the already existing boundaries. Predictability and stability, would we greatly
have jeopardized if territorial boundaries were subject to negotiation whenever a state
changed its legal status.
In Frontier Dispute, 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 which the treaty itself does not necessarily enjoy. The treaty can cease to be in
force without in any way affecting the continuance of the boundary.
A second exception to the clean-slate approach concerns obligations 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 decide to become a party.
According to the UN Human Rights Committee, protection under the UN Covenant on Civil
and Political Rights continues ‘notwithstanding 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).
Samenvattend:
Lawful?
- General international law
- Lex specialis
Right to external self-determination?
- People under imperial rule
- Alien subjugation (exploitation, domination)
- Remedial secession (achterstand op een deel van de bevolking)
Exceptions clean slate approach?
- Uti possidetis juris
- Human rights
,Problem 2
1. How is the European Parliament composed and how are its members selected?
2. How is the Council of the EU composed?
3. How is the European Commission composed and how are its members selected,
appointed or elected?
4. What are the main functions and powers of those three EU institutions?
Literature
Schütze
- Union Institutions
1. How is the European Parliament composed and how are its members selected?
The European Parliament has never been the Union’s first institution. It was an auxiliary
organ that had to assist the Council and Commission. The role of the European Parliament
increased from the 1970s. Today, it’s together with the Council a chamber of the Union
legislature. The European Parliament is the most democratic institution, because it’s directly
elected by the European citizens. It’s also the most supranational institution of the European
Union, because of the elective appointment.
(A) Formation: Electing Parliament
The European Treaties envisaged that its Parliament was to be composed of ‘representatives
of the people of the States’. European parliamentarians were thus delegated national
parliamentarians (not directly). This formation method brought Parliament close to an
(international) assembly. The classic international law logic had breached in two ways:
Sovereign equality (different sizes) and formed through elections (universal suffrage). The
transformation from an assembly to a directly elected Parliament took place in 1976
(election act) and ever since the first parliamentarians’ elections in 1979. Now they
characterize the European Parliament as being ‘composed of representatives of the Union’s
citizens.
The European Parliament shall be composed of representatives of the Unions’ citizens. There
is a minimum threshold of 6 members per Member State and not more than 96 members.
The maximum size is 751 members (included the president). The European Council decides
the actual size and composition. The distribution of seats must be degressively proportional
and that’s why the current European Parliament is now set at 705 members. This means a
compromise between the democratic principle (one person, one vote) and the federal
principle (political existence). The results were the rejection of a purely proportional
distribution.
The individual members are chosen through no specific uniform electoral. The elections only
have to be in accordance with principles common to all the Member States. If the citizens
are not an national, they also have the same rights to vote or to stand as a candidate.
,(B) Parliamentary Powers
When the 1951 ECSC Treaty set op the European Parliament, its function was to supervise. In
1957 EEC Treaty the European Parliament had to supervise and advice. Today, the Treaty on
European Union defines the power in article 14 TEU. There are four types of power:
legislative, budgetary, supervisory and elective.
Legislative Powers
This is the primary power of the European Parliament. In the recent past it has evolved into a
legislative powerhouse. Parliament may informally propose new legislation, but the task of
making legislative proposals lies by the Commission. The involvement of Parliament starts
after the Commission has submitted a proposal. Ordinary legislative is approved by both
institutions and special legislative cover various degrees of parliamentary participation.
Budgetary Powers
The Member States fixed the revenue since the Union and therefore they were seen as
legitimating the raising of revenue. The European Parliament’s budgetary power have not
focused on the income side but on the expenditure side. It has been described as the
‘reverse of those traditionally exercised by parliaments’.
Supervisory Powers
Supervisory Powers involve the power to debate, question and investigate. The power to
debate is that the Parliament receive the general report on the activities of the Union’ from
the Commission and the European Council have to present a rapport. The power to question
is formally for the Commission, but the Council and the European Council are willing to help.
The power to investigate is that the Parliament is entitled to set up temporary Committees
that can complement the standing committees. Finally, the European citizens have the right
to petition and there will also be elected an ‘ombudsman’ (receives complaints or send him
to a member of the European Parliament).
Elective Powers
Presidential is independent from the Parliament and parliamentary is the executive elected
by Parliament. The European constitutional sits somewhere in between. For a long time, the
executive was selected without parliamentary involvement but now a days it increases to be
involved in the appointment process. Article 17 TEU describes it. The appointment requires
consent: Parliament must elect the President of the Commission and it also must confirm the
Commission as a collective body (not each Commissioner). That’s why the Union’s
governmental system is characterized as a ‘semi-parliamentary democracy’. The Parliament
can vote on a motion of censure to the Commission. This blunt ‘nuclear option’ has never
been used. The Parliament has also been able to censure through a political agreement with
the Commission. If the Parliament expresses lack of confidence in an individual member the
President of the Commission will consider if he agrees. The Parliament is also involved by the
Court of Auditors, the European Bank and the European Ombudsman, but not by the judges
of the Court.
,2. How is the Council of ministers of the EU composed?
The EEC Treaty had originally charged the Council of Ministers with the task ‘to ensure that
the objectives set out in this Treaty are attained’. The Council had to be the central
institution. This has changed by the European Parliament and the European Council (the
European Council is composted of the heads of States or government of the Member
States). Today, the Council is best characterized as the ‘federal’ chamber, because in this
organ the national governments meet.
(A) Composition and Configuration
The European Union defines the Council as follow: 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. The ministers represent the interests of
his Member State. For each configuration a different national minister will be representing
his state. There are 10 different Council configurations. The Treaties only define the tasks of
the General Affairs (consistency in the work) and the Foreign Affairs Council (strategic
guidelines and consistency in the Union’s action).
(B) Internal Structure and Organs
The Committee of Permanent Representatives (Coreper) became permanent under the 1957
EEC Treaty. It’s the ambassador of a Member State and she is based in the Permanent
Representation of the European Union. Coreper II (more important, first four configurations)
represents the meeting of the ambassadors and Coreper I (technical remainder) represents
the meeting of their deputies. The function of Coreper is defined as responsible for
preparing the work of the Council. The Coreper has set up ‘working parties’ below it
(composed of national civil servants). By agreement (A item) it will be rubber-stamped by
the Council and where it fails to agree in advance (B item) it will be discussed in the Council.
The Coreper is not formally entitled to take decisions itself.
(C) Decision-Making and Voting
The Council will meet in Brussels to decide. The meetings are divided into two parts:
legislative activities (public meeting) and non-legislative activities. The Commission will
attend Council meetings. A majority of the members of the Council are required to enable
the Council to vote. There are two principal forms: unanimity voting (sensitive political
questions) and majority voting (constitutional norm). By majority voting there are two forms:
simple (majority of component members, this is rare) and qualified (constitutional). The
weight of votes was in the very beginning the system and was to some degressively
proportional. The voting system also represented a system of symbolic compromises,
because the four biggest Member States where all given the same number of votes. The old
decision-making in the Council demanded a triple majority until 1 November 2014: a
majority of the weighted votes had to be cast by a majority of the Member States
representing a majority of the Union population. After 2014 a new system of voting applies
that is set out in Article 16 TEU, that’s named new Lisbon voting. This system was designed
to replace the complex triple majority system with a simpler double majority. According to
the Ioannina Compromise the Council is doing all in its power when just one-fifth of the
population is representing the states to reach a solution.
,(D) Functions and Powers
The Council shall exercise legislative (first, it was the core, now a days it’s a co-legislator) and
budgetary functions. It shall carry out policymaking (European Council has overtaken and
now the Council is limited to specific policy choices that implement general ones) and
coordinating functions (open method of coordination) as laid down in the Treaties.
3. How is the European Commission composed and how are its members selected,
appointed or elected?
The Commission originally constituted the center of the European Coal and Steel
Community, where it was ‘to ensure that the objectives set out in Treaty attained. Now a
days it is marginalized by the Parliament and the Council. The Commission is today firmly
located in the executive branch. It partly acts like the Union’s ‘government’.
(A) Composition and Election
The Commission consists of one national from each Member State. They are chosen on the
ground of their general competence and European commitment form persons whose
independence is beyond doubt. The term of office is 5 years, during this term it must be
completely independent. Breach of the duty may lead to a Commissioner being compulsorily
retired. Originally the Commission was appointed, but now there is an election procedure
that consist of two stages: (1) The president (ideally the ‘lead candidate’ of the biggest
political party) will have been nominated by the European Council, then must be elected by
the European Parliament and if not there needs to be found a new candidate. Today’s
Commission President is Ursula von der Leyen. (2) The Council will adopt a list of candidate
Commissioners on the basis of suggestions made by the Member States. Then as a body to a
vote it’s subjected of consent by the European Parliament. The democratic legitimacy
derives partly from the Member State and partly from the European Parliament.
(B) The president and ‘Her’ College
The Commission President helps in the selection and the Members of the Commission shall
carry out the duties devolved upon them by the President under her authority. The
Commission is typically named after his President. The powers of the President are identified
in Article 17 TEU. First, she can lay down the political direction in the form of strategic
guidelines. Second, the president is entitled to decide on the internal organization. Third, the
President can appoint Vice-President from within the Commission. The fourth power is not
expressly mentioned in Article 17 TEU: The president shall represent the Commission. The
‘von der Leyen Commission’ had to divide the tasks of the European Union into 26 portfolios.
Each Commissioner is responsible for his portfolio and will be assisted by the Commissioner’s
own cabinet. There has been an idea of Project Groups.
(C) Functions and Powers
The Treaties provide a concise constitutional overview of its tasks in Article 17 TEU. There
are 6 different functions. The first 3 are core functions. First the Commission is tasked to
‘promote the general interests of the Union’ through initiatives (the Commission is given the
(almost) exclusive right to formally propose legislative bills, Union acts may only be adopted
on that basis, except when the Treaties provide otherwise). The second function is to ‘ensure
the application’ of the Treaties (adopting secondary legislation). The third function is to act
as guardian of the Union (oversee the application).
,The Court of Justice of the European Union
The Court of Justice of the European Union lies in Luxembourg. It’s not a real court, but an
institution that is composed of various courts. This generic roof includes the ‘Court of
Justice’, the ‘General Court’ and any ‘specialized courts. The Court’s task is to ‘ensure that
om the interpretation and application of the Treaties the law is observed’.
(A) Judicial Architecture: the European Court System
When the European Union was born, there was only a single court: the ‘Court of Justice’.
When the workload was rising the Member States agreed to create a second court: the
‘Court of First instance’. With the Lisabon Treaty, the Court has been renamed the ‘General
Court’. The General Court shall have jurisdiction to hear and determine actions or
proceedings brought against decisions of the specialized courts. The Union had for about a
decade one specialized court: the ‘Civil Service Tribunal’. It has recently been abolished. Now
there is an absence of any specialized court. There is a three-tiered system of courts (big to
small -> Court of Justice, General Court, Specialized Courts). The Court of Justice (most
important) consist of one judge (independent and a term of 6 years) per Member State. The
Court decides its own President and the division into chambers allows the Court to spread its
workload. The Court is often assisted by an Advocate General and their duty is to act
complete impartiality and independence. The Advocate General is thus neither advocate nor
general (academic amicus curiae -> friend of the court).
(B) Jurisdiction and Judicial Powers
The traditional role of courts in modern societies is to act as independent adjudicators
between competing interests. Their jurisdiction may be compulsory. Their jurisdiction is
limited and not inherent. This also stand in Article 19 TEU. The tasks are direct (before the
European Court) and indirect (preliminary preferences from national courts) actions. The
TFEU distinguishes enforcement actions by the Commission or a Member State, actions and
inactions of the Union institutions and (non-) contractual damages actions for the Union. The
Court of Justice can be characterized as a constitutional, administrative and an international
court as an industrial tribunal.
4. What are the main functions and powers of those three EU institutions?
European Parliament
Function: Constitutes - with the Council - a chamber of the Union legislature
Powers: Legislative Powers, Budgetary Powers, Supervisory Powers and Elective Powers
Council of Ministers
Function: The federal chamber within the Union legislature
Powers: Co-Legislature, Budgetary Functions, Specific Policy Choices that implement general
ones and Coordinating Functions
Commission
Function: It partly acts like the Union’s ‘government’
Powers: Promote the general interest of the Union, Ensure the application and Oversee the
application (3 most important)
,Court of Justice
Function: An institution that is composed of various courts
Powers: Act as independent adjudicators between competing interests
Importantly, the Union is not based on a strict separation of functions between its
institutions but follows a check and balance version of the separation-of-powers principles.
Various institutions share in the exercise of various of governments functions. This sharing
can clearly be seen with regard to the legislative function.
, Problem 3
1. If there is a collusion between Treaty law and customary international law, what
goes first?
2. How should Treaties be interpretated?
3. When is something considered customary international law?
Literature
Hendriksen
- 2.4 & 3.9
Cases
- Military and Paramilitary Activities in and against Nicaragua
- Legality of the threat of the use of nuclear weapons
- North Sea continental shelf case
- The case of the SS Lotus
1. If there is a collusion between Treaty law and customary international law, what goes
first?
When a treaty codifies customary international law, the parties to the treaty will be bound
by the treaty as well as customary international law while non-parties are only bound by the
latter. The ICJ confirmed the potential existence of such parallel obligations in Nicaragua,
where it stated that the use of force is regulated in both the UN Charter as well as in
customary international law and that the two norms retained a separate existence. It’s
possible that a treaty has a crystalizing effect whereby its content develops into customary
law. When a treaty contains elements of both codification of existing customary law and
progressive developments, non-parties are only bound by the former, but it’s possible that
for non-parties the latter become binding when state practice develops along the lines of the
progressive parts of the treaty.
If the content of a treaty-based and a custom-based obligation aren’t exactly identical, a
potential conflict can often be avoided through interpretation. But if that doesn’t work that
prevails the one with a peremptory/jos cogens character. The treaty normally prevails over
custom between the parties to the treaties. The situation is less clear when the customary
norm has developed subsequent to the inconsistent treaty-based rule. Then in many
instances the conflict will be solved by the principle of lex posterior, whereby that which is
later in time prevails or more pragmatic to let the subsequent customary norm modify the
content of the treaty-based rule. If there is a conflict between a norm of general and one of
a more detailed character, the lex specialis principle stipulates that the latter specials.
2. How should Treaties be interpretated?
The relevant principles of treaty interpretation are found in articles 31 and 32 of the VCLT,
which reflect customary international law. As always, it is the intention of the parties that is
the key. Article 31(1) articulates the general rule that a treaty shall be interpretated in good
faith in accordance with the ordinary meaning to be given to the term of the treaty in their
context and in the light of its object and purpose.
