lIIEL – PROBLEM 1 – INTERNATIONAL LAW
Learning objective 1: What is self-determination and what are the conditions thereof?
Relationship between self-determination (zelfbeschikking) and statehood (erkend zijn tot
staat) is one of the most debated issues in international law. 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, but it did not emerge as a fundamental
principle of international law until the decolonization process after the end of the Second
World War. The ICJ stated that the right to self-determination is an essential principle of
international law that has an erga omnes (aan iedereen) character.
The most controversial aspect of the right to self-determination concerns the extent to
which it gives a section of a population a right to secede from an existing state in the
absence of acceptance by the government of the ‘mother-state’
Recent example: Kosovo’s independence declaration to Serbia in 2008 the ICJ had the
right to decide whether Kosovo’s declaration was allowed, but they refrained from doing so.
It limited itself to stating that there are radically different views on whether the right to self-
determination offers a right to secession for other peoples than those in ‘non-self-governing’
territories and people subject to alien subjugation, domination and exploitation but that
international law does not
preclude (uitsluiten) Kosovo from issuing a declaration of independence.
Most authoritive example: advisory opinion from 1998 issued by the Canadian Supreme
Court whether Quebec was entitled to secede from Canada.
International law does not prevent a ‘mother-state’ from consenting to the secession of part
of its territory.
internal right to self-determination: the right is normally fulfilled by internal self-
determination – autonomy – according to which a people pursue their political, economic,
social and cultural development within the framework of an existing state. Think of Quebec,
Catalonia, etc.
the external right to self-determination: with the option of seceding, arises in only the
most extreme cases, in case of colonial ruling, exploitation, domination or other extreme
cases. Think of Bougainville.
However, an affirmed right to external self-determination need not lead to a claim for
secession. A people with a right to statehood may well decide that their interests as people
are presently best served by remaining within an existing state.
Codified in:
- article 1 of the UN Charter and resolutions from the General Assembly
- in the first part of article 1 in the 1966 UN Covenant on Human Rights
Learning objective 2: Is a declaration of independence lawful under international law?
Debates regarding the extent of the right of self-determination and the existence of
,any right of “remedial secession”, however, concern the right to separate from a State. 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 (1999).
For the reasons already given, the Court considers that general international law contains no
applicable prohibition of declarations of independence.
Learning objective 3: Is a seccesion lawful under international law?
Remedial secession: the additional right to secede for peoples in cases of extreme
oppression and the almost total denial of meaningful internal self-determination. Safeguard
clause: there can be no question of remedial secession in a state where the government
represents the whole of the people or peoples within its territory on a basis of equality and
without discrimination.
On the basis of these arguments, Catalonia could not secede from Spain; the referendum
was deemed to be invalid by the Spanish Constitutional Court
International stability speaks in favor for the territorial integrity.
Learning objective 4: In which way is the succession of rights and duties of (new) arranged
states arranged?
It is vital for the maintenance of international stability and predictability that international
society is able to manage the disappearance of old states or the emergence of new states in
a stable and predictable manner. As a concept under international law, ‘state succession’
concerns the replacement of 1 state by another and responsibility for the international
relations of territory. Governing successions is the most complicated and disputed in
international law.
Changes of statehood always raise important legal questions, including issues relating to the
existing treaties membership of international organizations and nationality. Mostly the old
and new states will settle the most important issues in a bilateral treaty. But whenever a
new territorial entity emerges, it is necessary to initially determine if the entity should be
considered as a continuation of a pre-existing state or as a new and separate entity (for
example the Soviet Union and Russia).
The rules on succession to treaties are complex and largely depend on the subject matter at
hand, but international law seems to adopt a so-called ‘clean slate’-approach according to
which the emerging state is not considered bound by the treaties and agreements concluded
by its predecessor. The successor state is free to become or not become a party to trees
entered into by the predecessor state. However, there are some exceptions:
1. The principle of uti possidetis juris according to which geographical boundaries
created by treaties remain in force regardless whether or not the boundaries
coincide with etnic, tribal, religious or political affliations.
2. Obligations under human rights and humanitarian law conventions. If a state
disintegrates and ceases to exist, as was the case with the former Yugoslavia, the
, clean-slate approach would mean that the population of the seceding territory
ceases to be protected by such conventions until the emerging state decides to
become a party.
IIEL – NBS 2 – EUROPEAN LAW
OBJECTIVE 1: HOW IS THE EU. PAR. COMPOSED AND HOW ARE ITS MEMBERS SELECTED?
The European treaties establish a number of European institutions to make, execute and
adjudicate European Law. The European institutions and their core tasks are defined in Title
III of the TEU. The central provision here is (art. 13 TEU).
The European parliament = the directly elected parliament (volksvertegenwoordiging) of the
European Union.
Before 1970, the parliament had a minimal role and was less important than the Council and
Commission. But today the European parliament and the European Council form the Union
legislature (wetgevende macht).
Elections & Member States
The parliament is now the most democratic institution, because it is directly elected by
European citizens.
Back in the 1970s, the parliament was supposed to be composed of the representatives of
the people of the States, but the parliament was not directly elected. European
parliamentarians were thus delegated national parliamentarians. Because of this formation
method the Parliament was looking more like a national assembly (bijeenkomst).
The treaties that established the Parliament had breached the international law logic in two
ways, so it is different from a national assembly:
1. The treaties abandoned the idea of a sovereign equality between the Member States,
by recognizing different sizes for national parliamentary delegations. So the member
state are not seen as completely equal
2. The treaties already envisaged that the European Parliament would eventually be
formed through ‘elections by direct universal suffrage in accordance with a uniform
procedure in all member states’.
The first parliamentary elections were in 1979. Since then the European Parliament is now
characterized as being ‘composed of representatives of the Union’s citizens’.
The maximum of the Parliament representatives is 750 + the president, so 751.
Representation of citizens are degressively proportional; there’s a minimum of 6 member
per Member State & a maximum of 96. This degressively proportional distribution depends
on 2 principles: the democratic principle (each citizen in the Union has equal voting power)
and the federal principle (insists on the political existence of the states). This system
protects the European Parliament from purely proportional distribution; some Member
States would have no seats at all.
However, there is downside: Luxembourg has 6 seats, which means citizens of Luxembourg
have 10 times more voting power than a citizen of France or Germany.
