Problem 1: Border demarcation
Learning objectives:
1) What is a state according to international law?
a) What is a state?
b) How do states acquire territory? OR 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.
a) 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
you have read in the materials. And compare to the Blog on the Bougainville.
Literature:
1) Hendriks Chapter 1 and 4;
2) Blog EJIL Talk;
3) Case law:
a) North Sea Continental Shelf Cases
b) Island of Palmas case
Chapter 1: Foundations and structure of international law
1.1 Introduction
Public international Deals with legal issues of concern to more than one state. It is traditionally defined as
a system of law that regulates the Inter relationship of sovereign States and their rights and duties to one
another.
- Like all law, international law reflects the society to which it applies. So as International society
becomes over more specialise and intertwined, so does international law.
1.2 A brief history of international law
1.2.1 Early modern international law
Europe in the late Middle Ages was characterized by both multiple levels of different allegiances and
rights and obligations as well as the universal political and religious forces of, respectively, the Holy
Roman Empire and the Catholic Church.
- It is however, not until the 17th and 18th centuries, that we begin to see the contours of a modern
international legal system. For one thing, a much clearer distinction was introduced between ius
naturale and ius gentium, and it in from the latter that international law as we know it would
subsequently develop as a distinct discipline. A leading figure in this period was Jesuit Suarez and
Hugo de Groot.
1.2.2 Peace of Westphalia
The international legal system that we recognize today is generally tied to the emergence and
consolidation of nation states in Europe. The ‘birth’ of the international state system is usually traced back
to the 1648 Peace of Westphalia that brought an end to the 30 years’ war that had ravaged continental
Europe.
- The idea of the Peace of Westphalia was to reduce the powers of transnational forces, like
empire and religion, and instead compartmentalize territory and individuals into sovereign states.
In turn, overtime, this established the state as the primary source of authority, paving the way for
an increasing sense of allegiance among citizens to their respective states of nationality.
,1.2.3 The 19th century and the era of positivism
The 19th century was dominated by a full-on assault on the idea that acts of state could be judged
according to whether or not he confirmed to transcendent ideas of fairness or divine will. In international
law, this was the era of ‘positivism’, the primary tenant of which was the only true source of law was state
will. Consequently, positivism attached primary importance to state consent, whether expressed explicitly
in the form of a treaty of implicitly by customary practices adhered to by states due to a belief that the
practise was legally binding.
- Positivism owed much of its appeal as a theory of international law to the emergence of formal
institutions of international law, for example the Telegraph Union.
1.2.4 The interwar period
The destruction and carnage of the WO-I dominated evens in the interwar period. The primary
development was the creation in 1919 of the League of Nations, an organization tasked with maintaining
world peace.
1.2.5 The period after the end of the WO-II
The period immediately after WO-II was a time of major achievements in international law. For one thing,
one of the ways in which the world reacted to the atrocities (gruweldaden) of the Nazi’s was to prosecute
international war heads. This led to the replacement of the League of Nations, by the UN, which was
entrusted with the maintenance of international peace and security.
1.2.6 The present
The Western-driven ‘liberal international legal order’ now shows sign of a break-up. In part, this is
because the international system had become more ‘multipolar’. The increasing international competition
means that major states seem increasingly unable to reach agreement on ambitious collaborative efforts
to create new legally binding global agreements on important contemporary issues and instead opt for
less ambitious non-binding global political agreements or legally binding regional agreements with like-
minded states.
1.3 The structures of international law
1.3.1 Introduction – a society of sovereign nation states
The international legal system consists of different structures of rules reflecting the historical evolution of
the law and the political order and configuration of the world. Since the 1648 Peace of Westphalia, the
centre of the international system has been the sovereign state, and international society is first and
foremost a society of individual national states.
- The conception of the state as a sovereign help explain the primary purpose of international law.
International law is best conceived from of the standpoint of national law and as a response to a
lawyer’s need for legal rules and principles to complement those found in national legal systems.
- Thus, whenever a lawyer encounters an issue of interest to more than one state, it is in
international law the legal answer is found. In essence then, international law can be seen as a
supplement to national law.
- However, only when an issue is of interest to more than one national sovereign will international
law enters the picture. The scope of international law is thereby determined by the inadequacy of
national law. The content of international law, and thus the answers to questions that cannot be
found in national law, on the other hand, must be found in international law.
The two ways, by scope and content, in which an issue becomes of interest to more than one state define
the two substantive structures of international law:
1) The international law of coexistence:
a) The first is where two of more states may have colliding interests in the substance of the issue.
Here, the mere fact that international society is composed of a multitude of sovereign states with
different interest is sufficient to make the issue international.
, b) The international law of coexistence contains the legal answers to questions that are inherently
of interest to more than one state and required to separate the powers of the sovereign states
and thereby upholds peaceful coexistence. Thus, it is here the lawyers find the classic topics of
international law where states may have colliding interests.
c) As a legal structure, the international law of coexistence is primarily horizontal in the sense that it
is mainly concerned with the manner in which sovereign states interact with and between each
other. It is less preoccupied with how sovereign authority is constituted or exercised in relation to
the citizens within the state.
d) It is also important to note that the international law of coexistence is similarly not concerned
with Whiting states closer together in some sort of international community. It merely seeks to
ensure that states can pursue their different and separate interests in a way that respects the
sovereignty and rights of other states. As a fundamental structure of international law, the
international law of coexistence is relatively stable and not subject to much change. There is
however an inherent vagueness to the content of this part of international law and easily
recognizable rules are rare. In fact, there has always been an element of law creation in a process
of resolving issues in which the interests of two or more states collide.
2) The international of cooperation:
a) The 2nd way in issue becomes of interest to more than one state is when he involved states have
agreed in a treaty to turn the issue into one of an international character. In practice, therefore, a
matter may become an issue for international law either due to its content or due to its form.
b) In the international law of cooperation lawyers tend to find illegal answers to issues that are not
inherently of interest in two or more states, but which have nevertheless been turned into
matters of international concern through the adoption of a treaty. The reason why the issues are
of an international character is because shreddies are international agreements governed by
international law.
c) As an international legal structure, the international law of cooperation is much younger than the
international law of coexistence.
d) Topics covered by the international law of cooperation include international human rights law,
but also the majority of international environmental law and international economic law. EU law
is a particularly good example of legal regime solidly situated in the international law of
cooperation.
e) Unlike the international law for existence, the international law of cooperation is optional in the
sense that states decide for themselves if they want to turn a matter previously dealt with by
national law, into a matter of international law.
1.4 The basis of international obligation
The question of why states are bound to observe international law has dominated international legal
theory for centuries.
- As the historical overview is illustrated, the theoretical debate has traditionally been dominated
by proponents of natural law and positivism. Whereas natural law derived the binding force of
international law from the claim that dictates of nature require certain behaviour of states,
positivism basis international obligation on the consent of states, the so-called consensual theory.
1.5 The relationship between international law and national law
There is a certain relationship between international law and national law:
1) First of all, international law asserts its own supremacy over national law.
a) A state cannot justify a breach of its international obligations by arguing that compliance would
be at variance with its national law. International law is not, however, generally preoccupied with
how state lives up to its international obligations and it usually leaves to each state to determine
how it will implement its international commitments.
2) A second point relates to the manner in which international law is applied in national legal systems by
the legislature and national courts. Hereby, the distinction between monism and dualism is
important.
, LO 1: What is a state according to international law?
Introduction:
The answer to the question of who international law actually applies to is often found in the concept of
legal subjectivity of legal personality. The subjects of international law are those to whom the
international legal system gives the capacity to hold rights, powers and obligations.
- Important, though, is that legal subjectivity and legal personality are relative.
The state
States are by far the most important international legal actors and the only actor that can create
international law. Thus, for an entity it is important to be a state, because only states can contribute to
the creating of international law and thus become a part of the international law system.
Becoming a state requires a company to fulfill a few criteria, the Montevideo criteria. However, not
recognizing a government is not the same as not recognizing a state.
- Traditionally, the doctrinal debate about the effects of recognition of states has been dominated
by two competing approaches.
i) The declaratory view;
(1) This view holds that the creation of sates is primarily a matter of law and the fulfillment
of a number of legal criteria. Thus, as soon as an entity can be said to satisfy a number of
predetermined requirements, it will be a state under international law.
(2) The Montevideo criteria can be considered as the best example of recognizing an entity
as a state.
(3) Contemporary international law is generally based on the declaratory approach.
(4) The relevant criterion for acquiring statehood here is effectiveness.
ii) The constitutive view:
(1) In contrast, the constitutive view holds that recognition by other states is a precondition
for statehood. So, unless an entity that appears to bear all the hallmarks of a ‘state’ is
recognized as such by other states, it does not qualify as a state under international law.
The Montevideo criteria
The 1933 Montevideo Convention on the Rights and Duties of States contains the most authoritative and
accepted criteria/requirements for statehood. According to the art. 1, a state must contain the following:
1) A permanent population;
a) This requirement simply means that someone has made the territory its home. The population is
question need not to have a certain size.
2) A defined territory;
a) This is no minimum size, and entities with tiny landmasses can fulfil the requirement. As long as
the authorities control a consistent area of undisputed territory, an entity is likely to fulfil the
requirement of a defined territory.
b) The North Sea Continental Shelf Case illustrates this criterion well. In this case, the ICJ states that
in order to meet the criterion of a defined territory, it is not necessary that the boundaries of the
entity are precisely demarcated.
3) A government;
a) Someone must exercise control over the territory and be able to run its affairs and ensure that it
can comply with its international obligations.
b) The form of the government is immaterial, and it is not a requirement that the government be
democratically elected of otherwise can be said to govern according to wishes of the population
of the territory. The decisive issue is its effectiveness is the government in question able to
exercise its authority over the territory.
c) Importantly, the requirement of a government ceases to be relevant once a state has been
established. Thus, the Montevideo criteria cease to be relevant at determine whether an entity
can be considered as a state; once the entity became a state, is decreases in relevance.
