INTRODUCTION AND HISTORY
What is ‘international law’?
Traditionally, a system regulating the relationships among sovereign states. Yet other actors
might have rights and duties under international law. Substance-wise, it covers a significant
array of issues.
≠ from national legal systems: no centralized legislative or executive bodies, absence of
mandatory dispute settlement procedures, decentralized system of norm creation and
enforcement.
A long way to the current international legal system
- Roman Empire: the nation of ius gentium as a set of rules dictated derived from
‘natural reason’ common to all peoples. Natural law as such sterns from assumptions
about the nature of man and society and as such has universal value.
- Middle Ages: coexistence of different normative levels and ‘communities’. The
‘international’ society was composed of a transnational network of diverse entities
and individuals. Overlapping layer: Holy Roman Empire and the Catholic Church,
Emergence of lex mercatoria and maritime custom.
- No states yet.
- Emergence of colonialism: Western European reigns subjugating native Indian
populations.
- 17th/18th century: first emergence of modern international law applying to international
relations 1648 Peace of Westphalia and consolidation of ‘nation States’, State
sovereignty and the principle of equality among States.
From the 19th century to the present
The positivist turn in international law: the primary source of law is State will, hence States
consent to be bound to an international obligation.
Ravaging colonialism and partition of Africa (Berlin Conference).
Creation of the League of Nations (1919): maintaining world peace towards peaceful
dispute settlement and establishment of the PCIJ.
Replacement of the League of Nations with the UN major introductions of the UN Charter:
outright ban on use of force; principle of self-determination of peoples; equality of States;
collective effort in maintaining peace and security via UNSC.
UNGA started the decolonization processes.
Emergence of multiple regional organizations most advanced example: the EU
While originally international law was mainly concerned with the horizontal relationship
among States (coexistence), increasingly vertical and transnational issues are taking center
stage (cooperation).
STATES
Who or what is a ‘subject’ of international law?
A subject of international law can be defined as an entity capable of holding international
rights and duties and having capacity to protect its rights by bringing international claims.
(international legal personality as a relative concept).
Traditionally the only subjects were States. Now there are other entities such as:
- Entities which can potentially become States (de facto regimes)
- International Governmental Organizations such as the UN*
- Individuals and NGOs (rights through international human rights law / duties through
international criminal law)
,*Reparation for Injuries Suffered in the Service of the United Nations - Advisory Opinion
‘subjects of law in any legal system are not necessarily identical in their nature or in the
extent of their rights’.
States
4 main criteria to describe a state Montevideo criteria
- Permanent population
- Defined territory North Sea Continental Shelf, para. 46.
- Government
o Authority over territory, ‘internal’ dimension of sovereignty
- A capacity to enter into relations with other states
o Independence and non-interference, ‘external’ dimension of sovereignty
All criteria rest on effectiveness.
Controversial matters around statehood
Does recognition play any role?
- Constitutive view: a State is such once recognized by other States of the international
community
- Declaratory view: a State is such when it fulfils the criteria (as set out above),
recognition only has practical consequences (leading view)
What about ‘illegally’ created entities?
- Ex injuria ius non oritur - no legal rights can arise from wrongful conduct
The ‘vicissitudes’ of Statehood
Acquisition of new territory:
- Cession: purchase or ‘swap’ of territory
- Accretion: gradually created by nature (n.b. NO artificial accretion; does not equal
erosion and avulsion)
- Occupation: effective control over ‘terra nullius’
- Prescription: acquisition of territory with the consent of the sovereign state
- Forceful territorial acquisition: NO title to territory, does not give a valid claim of
territory
Island of Palmas: ‘the continuous and peaceful display of territorial sovereignty is as good as
title’.
SELF-DETERMINATION
The right to self-determination: all peoples have a right to freely determine their political
status and pursue their economic, social and cultural development.
art. 1 UN Charter & art. 1 1966 ICCPR.
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’.
- Internal: exercise autonomy within the framework of a mother State
- External: statehood; separate entity.
It is very doubtful whether people who are neither colonized nor subject to alien subjugation,
domination or exploitation can claim a right to external self-determination and thus be entitled
to secede.
DECLARATION OF INDEPENDENCE
A declaration of independence does not directly mean you are independent, it’s only saying
that you want to be independent.
SECESSION (separation)
,An affirmed right to external self-determination need not lead to a claim for secession.
International law does not prevent a ‘mother-state’ from consenting to the secession of part
of its territory.
Lawful when colonized, alien subjugation, domination or exploitation.
Does the principle of self-determination provide a claim for all peoples to secede and
become an independent State? great debate among scholars:
- Pacific claim for people under colonial rule and alien (i.e. foreign) subjugation
- Debated whether it also supports secession for other peoples: doctrine and case-law
seems to be open to the possibility of remedial secession only in extreme cases of
denial from meaningful exercise of internal self-determination apartheid South-
Africa
- Difficult balance of the right of people to have their own state vs the maintenance of
international peace and stability.
While some argue for the existence of an additional right to secede for peoples in cases of
extreme oppression and the almost total denial of meaningful internal self-determination
(‘remedial secession’) accepting such a right requires truly exceptional circumstances.
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 for stability and respect for existing territorial borders is reflected in the so-called
‘safeguard clause’. The clause stipulates that there can be no question of remedial secession
in a state where the government represents the whole of the people within its territory on a
basis of equality and without discrimination.
STATE SUCCESSION
State succession concerns the replacement of one state by another in the responsibility for
the international relations of territory. 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.
‘Clean slate’ approach`; 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 to
become a party to treaties entered into by the predecessor state.
Exceptions (no use of clean slate approach):
- The principle of uti possidetis juris: 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.
o Mostly important when multiple states are involved.
- 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 become a party.
o Not legally binding
Extinction: almost impossible to happen involuntary dismemberment (Yugoslavia) or
merger (East- and West-Germany). They can also decide to split (Tjechoslovakia).
INTERNATIONAL ORGANIZATIONS AND INDIVIDUALS
International Organizations created by States via a treaty to perform a function states alone
do not want or are unable to perform. Their international legal personality is limited to the
function they are tasked to perform by their mandate.
- Distinct legal personality from that of Member State.
- Able to manifest its own ‘will’ distinct from that of MS and operate independently at an
international level.
, - Able to conclude international agreements and adopt (internal) rules which MS will
comply with, according to the competences States assigned to the organization (think
of the EU).
Individuals
- Rights as bestowed upon them by States via treaties and now also customary
international law (think of human right treaties, but not limited to these).
- Obligations as imposed them by States: international criminal law defining
international criminal responsibilities for certain acts of severe gravity.
- Also ‘groups’ of individuals have rights and duties.
Private corporations? debate about rights and duties; not hard mandatory yet
NGOs
Are these entities legal subjects with international legal personality? Not really. Yet, highly
influential in the international legal system.
- Advocating for international law or policy
- Present during negotiations of treaties thus contributing indirectly to law-making
- Monitoring state compliance with international rules
- Participation as non-party before international courts (amicus cariae) ( Green
Peace)
JURISDICTION
The concept of Jurisdiction
Island of Palmas ‘Sovereignty in the relations between States signifies independence.
Independence in regard to a portion of the glove is the right to exercise therein, to the
exclusion of any other State, the functions of a State’
Lotus ‘First and foremost restriction imposed by international law upon a State us that -
failing the existence of a permissive rule to the contrary - it may not exercise its power in any
form in the territory of another State.’
The various forms of jurisdiction
- To prescribe - i.e. regulate conduct
o Territorial jurisdiction: Jurisdiction over all acts and subjects within the spatial
sphere of the State territory
Objective territoriality, i.e. offence completed on the territory
Subjective territoriality, i.e. initiated or planned on the territory
o Nationality: States decide who they consider to be their nationals, however
see ‘genuine connection’ in the Nottebohm case
Active personality reflects active action of an individual
Passive personality a citizen is a victim of the conduct or
misbehavior of another individual that is not connected to the State
Allowed for very serious crimes
o Protective Jurisdiction: Threat to a vital State interest, i.e. falsification of
currency or passports
o Universal Jurisdiction: No direct link necessary between the State and the
offence
Aut dedere aut judicare = either extradite or prosecute
What about concurring or overlapping jurisdictions?
which one is the most important connecting factor (not always the case)
- To enforce - i.e. impose compliance with laws
o Right to (physically) impose compliance of domestic laws
Extradition, limits?
Status of Forces Agreement
- To adjudicate - i.e. right of domestic courts to hear cases referred to them
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