Introduction to International and EU law – Blok 6:
Problem 1:
Learning objectives:
1. What is (internal and external) self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is secession lawful under international law?
4. In which way is the succession of rights and duties of (new) states arranged?
1+2+3:
The right to self-determination stipulates that all people have a right to freely determine their
political status and pursue their economic, social and cultural development.
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’.
In the decolonialization process in the 1960s and 1970s a large number of former colonies
successfully relied on the right to self-determination in order to acquire their own independent
states. A key document was the 1960 General Assembly Declaration on the Granting of
Independence to Colonial Countries and Peoples.
It has emerged in relation to Kosovo’s decision in 2008 to declare its independence from Serbia.
While the ICJ had the opportunity to state its position on whether Kosovo was entitled to secede in
Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, the court unfortunately 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 peoples subject to alien subjugation,
domination and exploitation’, but that international law does not preclude Kosovo form issuing a
declaration for independence.
Case: Unilateral declaration of independence by Kosovo (LO2)
In reference re Secession of Quebec (Canada), the Court distinguished between an internal and an
external right to self-determination. It found that the right to self-determination of a people is
normally fulfilled by internal self-determination -autonomy- according to which people pursue their
political, economic, social and cultural development within the framework of an existing state. A
right to external self-determination – with the option of seceding- on the other hand arises ‘only in
the most extreme of cases’.
International stability speaks in favour of keeping the territorial integrity of a ‘mother-state’ intact
and requiring people to pursue their right to self-determination within the existing state. The need
of stability and respect for existing territorial borders is reflected in the ‘safeguard clause’ that was
first introduced in the General Assembly’s in 1970 Declaration on Friendly Relations. The clause
stipulates that there can be no question of remedial secession in a state where the government
represent the whole of the people or peoples within its territory on a basis od equality and without
discrimination.
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,An affirmed right to external self-determination need not lead to claim for secession. A people with a
right to statehood may well decide that their interests as a people are presently best served by
remaining within an existing state.
International law does not prevent a ‘mother-state’ from consenting to the secession of part of its
territory.
4:
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 one state by another in the responsibility for the international relations of territory’.
Issues of state succession can arise in many circumstances and the legal regime governing
successions is among the most complicated and disputed in international law.
Changes of statehood always raise important legal questions, including issues relating to the status of
existing treaties, membership of international organizations and nationality. The practical manner in
which succession is dealt with varies from case to case and in many circumstances the old and the
new states 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.
The rules on succession to treaties are complex and largely depend on the subject matter at hand. As
a point of departure, however, international law seems to adopt a clean slate approach according to
which the emerging state is not considered bound by the treaties and agreements concluded by its
predecessor. Thus, the successor state is free to become or not to become a party to treaties entered
into by the predecessor state. There are, however, 2 exceptions:
The first concerns 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. Predictability and stability would be greatly jeopardized
if territorial boundaries were subject to negotiation whenever a state changed its legal status.
The second (possible) 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 ceases to be protected by such
conventions until the emerging state (maybe) decides to became 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 State succession’.
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,Problem 2:
Learning objectives:
1. What is customary international law?
2. What is the relationship between treaty and custom?/What if a treaty norm collides with a
customary international law rule?
3. How should a treaty be interpreted?
1:
To some extent all law begins with custom. The absence of an international ‘law-maker’ has made
custom a particularly important source of international law and many well-known legal principles and
rules are derived from common usage and interstate practise.
While the exact content of customary law may not be as detailed as treaty law, it is based on the
everyday interaction of states and therefore has the ability to adapt to changing circumstances.
But customary is controversial and has its theoretical complexities.
International customary law arises when a particular way of behaving is:
1. Followed as a general practice among states
2. Accepted by those states as legally binding.
Thus, there is both an objective element (state practice) and a subjective element (the belief
that the practice is legally binding).
One of the challenges is to identify the point in time when behaviour (the custom) ceases to be
optional and becomes legally required.
A customary rule binds all states (unless a state persistently objects) including a state that has not
taken part in the formation of the practice, such as a newly emerged state.
The ICJ stated that long continued practice between 2 states accepted by them as regulating their
relations, can form the basis of mutual rights and obligations between those states.
The objective element (state practice):
Before a specific pattern of state behaviour becomes legally binding, it must be ‘the way things are
done’. In most cases, this requires consistent repetition of a particular behaviour, meaning that for a
considerable period of time states have acted in a certain (identical) manner when confronted with
the same facts.
What counts as acts of a state? in theory all state acts (physical and verbal), but verbal acts
must be public and internal document and memoranda do not qualify as state practice.
Resolutions and declarations by international organizations constitute the sum of individual
acts by the participating states and may therefore also be relevant.
Conceptually, state practice can be divided into 3 elements:
1. Consistency
2. Duration
3. Generality
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, Consistency requires that practice be reasonably uniform.
As long as the conduct is generally consistent with the rule, and inconsistent conduct is by and large
treated as a breach of the rule rather than an indicator of the recognition of a new rule, the conduct
may suffice. Thus, minor departures form a collective uniformity may be acceptable (settled
practice).
As for duration, practice generally evolves slowly and gradually over time, often trough years of
repeated behaviour. But as the ICJ stated in the North Sea Continental Shelf Cases (see book), the
passage of only a short period of time is not necessarily, in itself, a bar to the formation of a new rule
of customary law. Consistency and generality are therefore usually considered to be of greater
importance than mere duration.
The most difficult element of the identification of practice relates to the generality of the practice
and the question of how widespread participation in the practice must be. While unanimity is not
required, practice should include the majority of states. In the North Sea Continental Shelf Cases (see
book), the ICJ stated that the practice by states whose interests are specially affected is particularly
relevant. The task is therefore not simply to determine how many states participate in a given
practice, but which states. A state may avoid being bound by an emerging customary rule by
persistently objecting to the practice. The law therefore protects a state from the imposition by a
majority of other states of new obligations upon it while simultaneously allowing that same majority
to progressively develop the law without having to wait for acceptance of it by every state involved.
Once a rule has become into existence, it can no longer be objected to. New states are also bound by
existing customary law. Lastly, the persistent objector rule does not apply to peremptory norms/jus
cogens.
The subjective element (opinion juris):
State practices, only creates a legally binding custom when it is accepted as law (opinion juris sive
necessitatis). The purpose of the subjective requirement is to differentiate between acts motivated
by a desire to honour (or create) a legal obligation and those that are not.
How does one ascertain what states believe to be the law?
States rarely explain why they act as they do. Also since practice has to start somewhere, it
seems odd to insist that a state that begins to depart from an existing custom acts in the
belief that the new behaviour is legally mandated.
The subjective element is important when a state acts contrary to an existing customary rule. While
breaches of an existing custom may lead to the formation of new custom, much will depend on the
justification offered. In Nicaragua, the ICJ noted that if a state defends its breach of a rule of
customary international law by appealing to exceptions or justifications contained within the rule
itself, its attitude will actually confirm and not weaken the rule. Indeed, even repeated breaches of
customary norms will not do away with the binding nature of the latter as long as opinion juris od
their normative status continues to exist.
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