Leerdoel 1: What is (internal and external) self-determination and what are the conditions thereof?
The right to self-determination: the right to freely determine the political status and to pursue the
economic, social and cultural development.
Internal: people pursue their political, economic, social and cultural development within the
framework of an existing state.
External: the option of seceding in the most extreme cases. Therefore the people have to be colonial
and subject to aliensubjugation, domination or exploitation.
Leerdoel 2: Is a declaration of independence lawful under international law?
Kosovo case: a declaration of independence is lawful under international law, because there are no rules
stating that it isn’t lawful.
Leerdoel 3: Is secession lawful under international law?
See the conditions for external self-determination.
Leerdoel 4: In which way is the succession of rights and duties of (new) states arranged?
Declaratory view: the leading view: the creation of states is a matter of law and the fulfilment of legal
criteria. The most important criterium is effectiveness.
Constitutive view: when a state is recognized as such by other states, it is a state.
Montevideo criteria: a state possesses:
Permanent population: someone has to live on the territory, doesn’t have to be a certain size.
Defined territory: there has to be a territory defined by authorities on a consistent area.
Government: someone must exercise control over the territory and be able to run the state and make
sure it’s able to fulfil its international obligations. The form doesn’t matter.
State succession: the replacement of one state by another in the responsibility for the international
relations.
Clean state approach: the emerging state isn’t bound by the agreements created by its predecessor
and is free to decide if it wants to become party to the agreements. Exceptions:
The principle of uti possidetis juris: the geographical boundaries that are created by treaties
remain in force, regardless of whether the boundaries coincide with ethnic, tribal, religious or
political affiliations.
Obligations under human rights and humanitarian law conventions.
Probleem 2
Leerdoel 1: What is customary international law?
Customary international law: binds all states and arises when the objective and subjective conditions are
fulfilled.
Objective condition: a general practice among states.
There has to be a consistent repetition of particular behaviour.
Act of a state:
Consistency: requires that practice is reasonably uniform.
Duration: not that relevant, but the practice holds on for a longer time.
Generality: practice should include the majority of states. Especially the states whose
interests are specially affected.
Subjective condition: the belief that the practice is legally binding> opinion juris.
Is looked at if there is a reason to believe that particular behaviour stems from non-legal
motivations.
Exception: a state isn’t bound when it persistently objects. Persistently objecting isn’t possible against
a peremptory norm.
Sources of international law: article 38 ICJ Statutes. This list isn’t exhausting.
, Leerdoel 2: What is the relationship between treaty and custom (or what if a treaty norm collides with a
customary international law rule? What if they coexist?)
When a treaty codifies customary international law, the parties to the treaty are bound by both, while non-
parties are only bound by customary international law. This is called a parallel obligation.
When treaty-based obligations are identical to obligations in customary law they complement and
reinforce each other. This is called the crystallizing effect.
Leerdoel 3: How should a treaty be interpreted?
Art. 31 VCLT: general rule: a treaty shall be interpreted in good faith.
Text: the starting point. When the wording is clear but its application would lead to an unreasonable
result, the other elements must be consulted.
Context (art. 31(2) VCLT): not only the meaning but also annexes, agreements and instruments should
be consulted.
Purpose.
Art. 31(3)(c) VCLT: the treaty must be considered in the wider context of international law.
Agreements subsequently formed to the treaty should also be consulted.
Art. 32 VCLT: the preparatory works to a treaty should be consulted to confirm the meaning from art. 31.
When the obligations in a treaty and customary law aren’t identical, there has to be interpretation:
When a treaty is law-creating it normally prevails over the customary law between the parties to the
treaty. This is called true interpretation.
Lex posterior: which is later in time prevails.
Lex specialis: the more specific one prevails.
Probleem 3
Leerdoel 1: How is the responsibility of states regulated in international law? Or under which conditions can a
state be held accountable under the ILC articles on responsibility of states for internationally wrongful conduct?
Article 2 ILC: wrongful conduct arises when a state breaches an international obligation.
The conduct is an act or an omission.
The conduct is attributable to the state under international law.
The conduct constitutes a breach of an international obligation of the state.
Article 12 ILC: an international obligation is breached by a state when an act of that state is not in
conformity with what is required of it by that obligation, regardless of its origin or character.
Article 3 ILC: a state cannot justify a breach of its international legal obligations by invoking its national
laws and a state must also comply with international obligations even if it requires breaching its national
laws.
The conduct must be attributable to a state (articles 4-11 ILC):
Article 4 ILC: attribution for acts performed by the state and its organs: all conduct of state organs is
considered an act of the state regardless of whether the organ in question exercises legislative,
executive, judicial or any other functions.
Article 5 ILC: attribution for acts performed by organs exercising governmental authority: conduct of
individuals and entities empowered to exercise governmental authority is attributable to the state
whenever they act in that capacity.
Act of governmental authority: the content of the powers granted as well as the way they are
given to an entity, the purposes for which they are to be exercised and the extent to which the
entity is accountable to government for their exercise.
Article 6 ILC: attribution for acts by organs on loan from another state: acts of the loaned organ are
attributed to the receiving state.
Article 7 ILC: attribution for acts ultra vires: a state remains responsible for conduct performed by its
organs and officials even if the organ or official stated contrary to orders and instructions or in excess
of authority.
Article 8 ILC: attribution for acts performed by private individuals: a state is only responsible for the
conduct of a person or a group of persons if they are in fact acting on the instructions of, or under the
direction or control of, that state in carrying out the conduct.
Effective control test: there has to be tested if the state has effective control over the individual or
group of persons.
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