Dit is een samenvatting van het vak international and European law bachelor jaar 1. Het bevat een uitwerking van alle 8 de problemen inclusief hoorcolleges. De samenvattingen zijn bijgewerkt na de werkgroep en worden door medestudenten als zeer overzichtelijk beschouwd. Persoonlijk heb ik met deze ...
Summary international law block 6
Problem 1
Difficulties:
1. Prescription (fourth way of gaining new territory).
2. What is the difference between a declaration of independence and secession?
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 the rights and duties of new states
arranged?
4.2
What is the difference between the recognition of a state and the recognition
of a government? The government acts on behave and represents the state,
the state is the legal entitiy. So there are greater practical problems associated
with a lack of recognition of a state than a government. Example: the lack of
recognition of the Taleban as the Afghan government did not result in a lack of
recognition for the state Afghan.
The effects of recognition is dominated by two competing approaches: The
declaratory view and the constitution view.
o The declaratory view: the creation of states is primarily a matter of law
and the fulfilment of legal criteria (→ Strictly legal!). This means that
when an entity certain requirements satisfies it is a state in international
law. Most important is effectiveness.
o Constitute view: Here is recognition by other states a precondition for
an entity to become a state in international law. → The emergence
(verschijning) of this view was tied to the rise of positivism and the pre-
eminence of state consent in the 19th century. It served as a tool for the
established (primary western) states to deny ‘non-civilized’ nations.
What is wrong with the constitute view? First there is the issue of relativism, if
a state only exists in relation to recognizing states, its absolute existence is
seemingly not possible (someone can always deny you). 2) The problem of
quantity. If recognition is indeed required, how many states must recognize an
entity for it to become a state?
Contemporary international law is generally based on the declaratory
approach.
→ Rejecting constitute view does not mean that acts of recognition are entirely
irrelevant.
Ex injuria jus non oritur: the principle that legal rights cannot arise from
wrongful conduct.
What is the effect of ex injuria jus non oritur? It can sometimes lead to a denial
of statehood to entities that fulfil the formal criteria.
The Montevideo criteria (the most accepted criteria for statehood):
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,Under article 1 a state possesses:
1. A permanent population: someone lives on the territory.
2. A defined territory: it does not need to be precisely demarcated as long as the
authorities control a consistent area of undisputed territory.
3. A government.
4. A capacity to enter into relations with other states: legal independence is
necessary statehood requires an ability to act without legal interference from
other states.
A state can be illegal when:
Despite a state meeting al the Montevideo criteria a state can be denied statehood if
it has been created in flagrant violation of basic norms of international law.
Contradiction between two cases: Cyprus hasn’t been recognized except by
Turkey because the state was established through the unlawful use of force.
Bangladesh on the other hand has been recognized even though this state
was also created by the unlawful use of force.
Above shows that: A territorial entity created through the use of illegal force in
violation of the right to self-determination of the population of the territory is
unlikely to be accepted as a state. This may be different (Bangladesh) when
the unlawful force is used in order to advance the realization of the right to
self-determination of the population (So when the population was harmed and
then unlawful force is used it can become a legal state).
Learning object 1: What is (internal and external) self-determination, and what are the
conditions thereof?
Wat is self-determination. Self-determination stipulates (bepaalt) that all
people have a right to freely determine their political status and pursue their
economic, social and cultural development. The right is found in a number of
important instruments, including art. 1 of the UN.
The most controversial aspect of the right to self-determination concerns: the
possibility that it gives a section of a population to secede from an existing
state and create a new one in the absence of acceptance by the government
or ‘mother-state’.
Self-determination was one of the reasons why former colonies after world war 2
(1960’s and ‘70’s) became independent states.
There are two different kinds of the right to self-determination:
What is internal self-determination? People pursue their political, economic,
social and cultural development within the framework of an existing state.
(Example is Quebec). Also called remedial secession.
What is external self-determination? Only here there is the option of seceding.
And this arises only in the most extreme cases: people are subjected to
domination/exploitation. It must be the last resort.
What is the reason that we don’t want states to secede too much and remain with
their ‘mother-state’ as long that is possible?
• International stability speaks clearly in favour of keeping the territorial
integrity of a mother-state intact and requiring people to pursue their right to
self-determination within their existing state.
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, o This is also reflected in the safeguard clause whereby 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 of equality and without discrimination.
Example: Catalonia in Barcelona sought to arrange a local referendum on the
potential independence from Spain. The referendum was declared unlawful under the
Spain’s constitution. It is hard to see how the right to self-determination can support a
Colonian claim to secede from Spain, especially in the light of Catalonia’s widespread
internal self-determination within Spain.
Two final point about the above:
• An affirmed right to external self-determination need not lead to a claim for
secession and creation of a new independent state: A people (volk) with a
right to statehood may decide that their interest is best served by remaining
within an existing state. Example: Greenland accepted to become an integral
part of the Kingdom of Denmark.
• A mother-state can always consent to the secession of part of its territory
whereby the seceding entity can seek to create an independent state: an
example is Scotland. The British government had consented to the 2014
referendum and promised to allow Scotland to leave the UK if they so desired.
The people of Scotland decided not to seek formal independence. After the
Brexit the Scottish government requested the British government to hold
another independence referendum, but that request has been denied, the
referendum was a ‘once in a generation opportunity’.
End of learning object 1.
An issue related to conditions for the creation of new states is acquisition of
new territory. A state can require new territory in a number of ways:
1) The first one is purchasing territory from another state through cession.
Examples: US bought Alaska from Russia in 1867.
• A mutual transfer of territory can be an important element to a future peace
agreement for states: the acquiring state cannot obtain more right to the
territory than those possessed by the ceding (afstanddoende) state. The
acquiring must also respect the potential rights of third states.
2) The second way whereby a state can acquire new territory is by accretion
where new land is created by nature: sometimes new island is formed by
volcanic eruptions. Artificial islands or the like are not included ^.
• Erosion: is the opposite of accretion in this case land disappears by natural
forces.
• Avulsion: accretion does not cover sudden or violent changes in territory,
for example as a result of storms or natural disasters. Such changes are
instead referred to as avulsion. The distinction between accretion and
avulsion is relevant for alterations of rivers that form the territorial boundary
between two states. It is only when a change to the course of the river is
caused by accretion that it will move the boundary line between the two
states.
3) The third way is occupation (bezetting), this means that a state can obtain
title to territory that isn’t from anyone (no-man’s land).
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, When is a Title acquired through occupation? When a state exercises
effective control over a territory of no-man’s land and intends to obtain title.
Occupation has limited relevance today, but it was the basis for numerous
historical claims.
• Terra nullius: territory that has never been the subject of any state (no
man’s land).
• Res communis: this is different from above. It refers to an area that is not
subject to the legal title of any state, most notably the high seas.
While occupation is the means whereby a state acquires territory that does not
belong to anyone, it is through prescription that it obtains title to territory previously
under the sovereignty of another state.
4) The fourth way is prescription (verjaring?). Unlike occupation, the acquisition
of territory by prescription is derived from some form of implied consent from
the state whose rights are being displaced. The element of consent means
that the acts of the acquiring state must be peaceful and that sustained
protests and objections by the ‘old’ state will prevent prescription. (Dit is een
soort vrijwillige occupation er is hier sprake van cquisition of territory with the
consent of the sovereign state).
• Sometimes it’s difficult to see the difference between occupation ore
prescription: but the most important thing is that there is effective possession.
There is also the requirement that a state ‘display territorial sovereignty’, this means
that it must behave as a state in the disputed territory.
Island of Palmas: ‘the continuous and peaceful display of territorial sovereignty is as
good as title’
A few points about acquitting title to contested territory:
• Geographical contiguity/proximity is not in itself decisive, and it may be that a
contested island is not awarded to the state whose mainland is in closest
proximity.
• Resolving cases about disputed territory often requires the determination of a
so-called ‘critical date’: which is the moment when the potential rights of the
parties manifested themselves to such an extent that subsequent acts could
not alter the legal positions of the parties.
• When acquiring territory by prescription, an apparent display of sovereignty
will not prevail and secure a state’s title to territory if another state can prove
the existence of a pre-existing legal right to the territory, such as a treaty-
based title; and the conduct of the latter cannot be interpreted as
acquiescence in the establishment of a change in treaty title.
• A state can no longer obtain title through conquest (verovering) since 1945. So
while the displaced sovereign loses de facto possession of the territory, it does
not lose de jure possession.
Learning subject 2: Is a declaration of independence lawful under international law?
Independence in respect of Kosovo:
A number of participants in the present proceedings have claimed that the population
of Kosovo has the right to create an independent State either as (1) a manifestation
of a right to self-determination or (2) pursuant to what they described as a right of
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