Problem 1
International law: rules that govern relationships between states
Two different views on what a state is
• Declaratory view: Montevideo criteria:
-Permanent population
-Defined territory
-Government
-Capacity to enter into relations with other states
• Constitutional view: Montevideo criteria + recognition by other states
Right to self-determination (zelfbeschikking)
o Right to freely determine their political status and pursue their economic, social and cultural
development (art. 1 UN Charter)
o Erga omnes = applicable to everyone
o Internal: Right to freely determine their political status and pursue their economic, social and
cultural development
o External: in extreme situations, people have the right to create their own state
o History: decolonisation (Indonesia from the Netherlands); secession (afscheiding: Friesland
secedes from the Netherlands)
Declaration of independence lawfulness
-Kosovo Advisory Opinion!! → has Kosovo the right to remedial secession?
• Remedial secession = a part of a country feels like their rights have not been respected and so
they seek to establish their own state
-IcJ focuses on whether Kosovo’s declaration of independence was lawful → Par. 84: there is no
prohibition on declarations of independence → no violation of international law → everyone can
declare themselves independent
Secession lawful or not
-link to decolonisation history of self-determination: colonial people under imperial rule + people
who find themselves subject to alien subjugation (onderwerping), domination or exploitation have
the right to secede from mother country
• In extreme cases of oppression & absolute denial of internal self-determination
➔ When internal self-determination is not possible, people have an external right to create their
own state
, • Balance: rights of the people vs international stability
o International stability is also important, if everyone says that their rights are violated,
the world would be in a constant state of conflict
• Practice assignment about Donetsk and Luhansk
o Art. 1 UN Charter: those people have the right to self-determination (erga omnes
rule) → they’re only entitled to internal self-determination → extreme oppression
may lead to them being able to make use of external self-determination, leading to
remedial secession → Russia claims this, bus has no evidence that there is such a
high level of oppression that people cannot exercise their internal self-
determination → the people do not enjoy the right to external self-determination /
remedial secession
Succession of rights and duties of states
-Bilateral treaties: agreements between 2 states
-Multilateral treaties: agreements between 3 or more states
-Necessary to determine if the new territorial entity should be considered as a continuation of a pre-
existing state or as new separate entity
-Clean slate approach: a new state is not part of any of the contract that the old state signed
-Uti possedetis juris: geographical boundaries matter
o Predictability and stability would be greatly jeopardized (= in gevaar gebracht) if
territorial boundaries were subject to negotiation whenever a state changed its legal
status.
o Human Right conventions: ensure human rights in these countries, but it’s not
binding
, Problem 2 Sources of international law
• Sources of public international law
Art. 38 ICJ
-conventions → treaties, establishing rules expressly recognized by the contesting states
o Most direct and formal way for states to create right and obligations
o Legal basis of treaty-based obligations is state consent → a treaty can only create
legal obligations for the consenting states
-international custom, as evidence of a general practice accepted as law
-general principles of law recognized by civilized nations
-judicial decisions and scholarly contributions
• Customary international law
Absence of an international law-maker → many customary laws
-treaty law are more exact in content, but customary laws are based on the everyday interaction of
states and therefore has the ability to adapt to changing circumstances
Customary law arises when:
o Followed as a general practice among states
o Accepted by those as legally binding
➔ Objective element (state practice) and subjective element (the belief that the practice is
legally binding)
➔ Customary law bins all states, including states that has not taken part in the formation of
the practice
Objective element: state practice
-it must be ‘the way things are done’ → requires consistent repetition of a particular behaviour →
for a considerable period of time states have behaved in a certain (identical) manner with the same
circumstances
State practice: divided into 3 elements
• Consistency
-practice is reasonably uniform
-generally consistent, minor departures from a collective uniformity may be acceptable
-Nicaragua: slight devation is okay, a lot of deviation is seen as breaking the rule → p. 186: what
is consistency?
• Duration
-practice evolves slowly and gradually over time
-instant custom: international reactions on events, such as 9/11 → quickly developed
customary law
International law: rules that govern relationships between states
Two different views on what a state is
• Declaratory view: Montevideo criteria:
-Permanent population
-Defined territory
-Government
-Capacity to enter into relations with other states
• Constitutional view: Montevideo criteria + recognition by other states
Right to self-determination (zelfbeschikking)
o Right to freely determine their political status and pursue their economic, social and cultural
development (art. 1 UN Charter)
o Erga omnes = applicable to everyone
o Internal: Right to freely determine their political status and pursue their economic, social and
cultural development
o External: in extreme situations, people have the right to create their own state
o History: decolonisation (Indonesia from the Netherlands); secession (afscheiding: Friesland
secedes from the Netherlands)
Declaration of independence lawfulness
-Kosovo Advisory Opinion!! → has Kosovo the right to remedial secession?
• Remedial secession = a part of a country feels like their rights have not been respected and so
they seek to establish their own state
-IcJ focuses on whether Kosovo’s declaration of independence was lawful → Par. 84: there is no
prohibition on declarations of independence → no violation of international law → everyone can
declare themselves independent
Secession lawful or not
-link to decolonisation history of self-determination: colonial people under imperial rule + people
who find themselves subject to alien subjugation (onderwerping), domination or exploitation have
the right to secede from mother country
• In extreme cases of oppression & absolute denial of internal self-determination
➔ When internal self-determination is not possible, people have an external right to create their
own state
, • Balance: rights of the people vs international stability
o International stability is also important, if everyone says that their rights are violated,
the world would be in a constant state of conflict
• Practice assignment about Donetsk and Luhansk
o Art. 1 UN Charter: those people have the right to self-determination (erga omnes
rule) → they’re only entitled to internal self-determination → extreme oppression
may lead to them being able to make use of external self-determination, leading to
remedial secession → Russia claims this, bus has no evidence that there is such a
high level of oppression that people cannot exercise their internal self-
determination → the people do not enjoy the right to external self-determination /
remedial secession
Succession of rights and duties of states
-Bilateral treaties: agreements between 2 states
-Multilateral treaties: agreements between 3 or more states
-Necessary to determine if the new territorial entity should be considered as a continuation of a pre-
existing state or as new separate entity
-Clean slate approach: a new state is not part of any of the contract that the old state signed
-Uti possedetis juris: geographical boundaries matter
o Predictability and stability would be greatly jeopardized (= in gevaar gebracht) if
territorial boundaries were subject to negotiation whenever a state changed its legal
status.
o Human Right conventions: ensure human rights in these countries, but it’s not
binding
, Problem 2 Sources of international law
• Sources of public international law
Art. 38 ICJ
-conventions → treaties, establishing rules expressly recognized by the contesting states
o Most direct and formal way for states to create right and obligations
o Legal basis of treaty-based obligations is state consent → a treaty can only create
legal obligations for the consenting states
-international custom, as evidence of a general practice accepted as law
-general principles of law recognized by civilized nations
-judicial decisions and scholarly contributions
• Customary international law
Absence of an international law-maker → many customary laws
-treaty law are more exact in content, but customary laws are based on the everyday interaction of
states and therefore has the ability to adapt to changing circumstances
Customary law arises when:
o Followed as a general practice among states
o Accepted by those as legally binding
➔ Objective element (state practice) and subjective element (the belief that the practice is
legally binding)
➔ Customary law bins all states, including states that has not taken part in the formation of
the practice
Objective element: state practice
-it must be ‘the way things are done’ → requires consistent repetition of a particular behaviour →
for a considerable period of time states have behaved in a certain (identical) manner with the same
circumstances
State practice: divided into 3 elements
• Consistency
-practice is reasonably uniform
-generally consistent, minor departures from a collective uniformity may be acceptable
-Nicaragua: slight devation is okay, a lot of deviation is seen as breaking the rule → p. 186: what
is consistency?
• Duration
-practice evolves slowly and gradually over time
-instant custom: international reactions on events, such as 9/11 → quickly developed
customary law
