lOMoARcPSD|2567501
Internationaal en EU recht - Uitwerking open vragen
Criteria om een staat te zijn
The 1933 Montevideo Convention on the Right and Duties of States contains the most authoritative
and accepted criteria for statehood. According to the Convention article 1, a state must possess the
following:
1. A permanent population
2. A defined territory
3. A government
4. A capacity to enter into relations with other states
Hoe ontstaat een staat?
It is important to note the dis'nc'on between the recognition of a state and that of a government.
1. The state is the legal entity under international law eOects of lack of recognition are of greater
legal importance
2. The government is the representative of the state, and the government is entitled to act on the
state’s behalf.
Right to self-determination
1. Explaining the right to self-determination – which can be found in Art. 1 of the UN Charter and
common Art. 1 of ICCPR and ICESCR.
The right to self-determination stipulates that all peoples have a right to freely determine their
political status and pursue their economic, social and cultural development.
2. Explaining the distinction between internal and external self-determination.
Normally the right to self-determination is fulfilled by internal self-determination, which means
that people pursue their.
In Reference re Secession of Quebec, the Court made a dis'nc'on between internal and
external self-determination:
1. Internal self-determination: the right of self-determination of people is normally fulfIlled by
this sort, it means autonomy. People pursue their political, economic, social and cultural
development within the framework of an existing state.
2. External self-determination: This right only arises in the most extreme cases. Colonial
people and others who may otherwise Nnd themselves subject to alien subjugation, dominion
or exploitation have a right to external self-determination that may entitle them to create their
own independent state.
- Explaining self-determination in cases of extreme oppression.
messages.downloaded_by
, lOMoARcPSD|2567501
State succession
- State succession concerns ‘the replacement of one state by another in the responsibility for
the international relations of territory’.
- The rules on succession to treaties are complex and largely depend on the subject maSer at
hand. In most cases, the treaties closed by the pre-existing countries do not bind the new
emerging state. However, there are some exceptions to this clean slate approach:
1. The principle of u6 possidetis juris stresses that geographical boundaries created by treaties
remain in force regardless of whether or not the boundaries coincide with ethnic, tribal,
religious or political a Rliations. This is to guarantee predictability and stability.
2. If a state disintegrates and ceases to exist, the clean-slate approach means that the
population of the succeeding territory cases to be protected by human rights conventions until
the emerging state decides to become a party.
Kritiek op criteria
- The conditions are freely formulated, there is much space for interpretation. They do not
provide a clear deNni'on of statehood, because of their formula'on. However, the conditions
are numerously cited by states themselves. For example:
1. Population: there can be twisted whether the Catalonians are a “people”, arguments pro and
con, many perspectives are possible.
2. Condition government: the government doesn’t have to be democratically elected. This
condition doesn’t Nt in the modern, (western) world, for the protection of human rights, this
seems a rather signiFIcant condition. The meaning whether the government is eOec've can
vary: every situation is different: no clear condition.
messages.downloaded_by
, lOMoARcPSD|2567501
Wat is een verdrag?
A treaty is an international agreement governed by international law concluded by two or more
international subjects with treaty-making capacity.
Two treaties:
1. Bilateral: concluded by two states
2. Multilateral: between larger groups of states
It is important to note that not all legally binding agreements entered into by states will be treaties
governed by international law.
- Legally binding, art 34 VCLT
- Pacta sunt servanda, art 26 VCLT
-
Wanneer is een staat gebonden aan een verdrag?
- In order for a state to become legally bound by a treaty, it must consent to it.
- Art. 11 VCLT: fairly flexible in the way of consenting
- Today a definitive signature art. 15 VCLT also by accession, where a state consents to be
bound by a treaty, which it has already signed, in the following circumstances:
1. If the treaty provides for it
2. If it is otherwise established that the nego'a'ng par'es were agreed that it should be
possible
3. If all the parties have subsequently agreed that a state may express its consent by
such means
Voorbehoud - Hoe wordt een voorbehoud gemaakt
- Art 19 VCLT
The effect of reservations differs between bilateral treaties and multilateral treaties. Explain this
difference and the legal effects that may result from making reservations to a multilateral treaty. In
your answer, refer to relevant treaty provisions and / or case law. (7 points)
The doctrine of reservations is most relevant with regards to multilateral treaties. In case of a bilateral
treaty, the putting forward of a reservation by one of the parties can be understood as a proposal to
amend the treaty, leading to re-negotiations. The effects of a reservation on a multilateral treaty vary
depending on the reaction of the other states.
Article 20 VCLT provides for three situations:
1. A state accepts the reservation made by another state. The treaty will enter into force
between the parties without the reserved article or with the provision as amended by the
reservation.
2. If within twelve months a state does not react to a reservation, that state is then considered to
have accepted the proposed reservation. The treaty enters into force between the parties
without the reserved provision or with the provision as amended by the reservation. (article 20
(5));
3. A state can object to a reservation made by another state. In that case, despite the objection
the treaty will enter into force between the parties, but without the reserved provision, unless
the objecting state expresses an intention to the contrary;
messages.downloaded_by
Internationaal en EU recht - Uitwerking open vragen
Criteria om een staat te zijn
The 1933 Montevideo Convention on the Right and Duties of States contains the most authoritative
and accepted criteria for statehood. According to the Convention article 1, a state must possess the
following:
1. A permanent population
2. A defined territory
3. A government
4. A capacity to enter into relations with other states
Hoe ontstaat een staat?
It is important to note the dis'nc'on between the recognition of a state and that of a government.
1. The state is the legal entity under international law eOects of lack of recognition are of greater
legal importance
2. The government is the representative of the state, and the government is entitled to act on the
state’s behalf.
Right to self-determination
1. Explaining the right to self-determination – which can be found in Art. 1 of the UN Charter and
common Art. 1 of ICCPR and ICESCR.
The right to self-determination stipulates that all peoples have a right to freely determine their
political status and pursue their economic, social and cultural development.
2. Explaining the distinction between internal and external self-determination.
Normally the right to self-determination is fulfilled by internal self-determination, which means
that people pursue their.
In Reference re Secession of Quebec, the Court made a dis'nc'on between internal and
external self-determination:
1. Internal self-determination: the right of self-determination of people is normally fulfIlled by
this sort, it means autonomy. People pursue their political, economic, social and cultural
development within the framework of an existing state.
2. External self-determination: This right only arises in the most extreme cases. Colonial
people and others who may otherwise Nnd themselves subject to alien subjugation, dominion
or exploitation have a right to external self-determination that may entitle them to create their
own independent state.
- Explaining self-determination in cases of extreme oppression.
messages.downloaded_by
, lOMoARcPSD|2567501
State succession
- State succession concerns ‘the replacement of one state by another in the responsibility for
the international relations of territory’.
- The rules on succession to treaties are complex and largely depend on the subject maSer at
hand. In most cases, the treaties closed by the pre-existing countries do not bind the new
emerging state. However, there are some exceptions to this clean slate approach:
1. The principle of u6 possidetis juris stresses that geographical boundaries created by treaties
remain in force regardless of whether or not the boundaries coincide with ethnic, tribal,
religious or political a Rliations. This is to guarantee predictability and stability.
2. If a state disintegrates and ceases to exist, the clean-slate approach means that the
population of the succeeding territory cases to be protected by human rights conventions until
the emerging state decides to become a party.
Kritiek op criteria
- The conditions are freely formulated, there is much space for interpretation. They do not
provide a clear deNni'on of statehood, because of their formula'on. However, the conditions
are numerously cited by states themselves. For example:
1. Population: there can be twisted whether the Catalonians are a “people”, arguments pro and
con, many perspectives are possible.
2. Condition government: the government doesn’t have to be democratically elected. This
condition doesn’t Nt in the modern, (western) world, for the protection of human rights, this
seems a rather signiFIcant condition. The meaning whether the government is eOec've can
vary: every situation is different: no clear condition.
messages.downloaded_by
, lOMoARcPSD|2567501
Wat is een verdrag?
A treaty is an international agreement governed by international law concluded by two or more
international subjects with treaty-making capacity.
Two treaties:
1. Bilateral: concluded by two states
2. Multilateral: between larger groups of states
It is important to note that not all legally binding agreements entered into by states will be treaties
governed by international law.
- Legally binding, art 34 VCLT
- Pacta sunt servanda, art 26 VCLT
-
Wanneer is een staat gebonden aan een verdrag?
- In order for a state to become legally bound by a treaty, it must consent to it.
- Art. 11 VCLT: fairly flexible in the way of consenting
- Today a definitive signature art. 15 VCLT also by accession, where a state consents to be
bound by a treaty, which it has already signed, in the following circumstances:
1. If the treaty provides for it
2. If it is otherwise established that the nego'a'ng par'es were agreed that it should be
possible
3. If all the parties have subsequently agreed that a state may express its consent by
such means
Voorbehoud - Hoe wordt een voorbehoud gemaakt
- Art 19 VCLT
The effect of reservations differs between bilateral treaties and multilateral treaties. Explain this
difference and the legal effects that may result from making reservations to a multilateral treaty. In
your answer, refer to relevant treaty provisions and / or case law. (7 points)
The doctrine of reservations is most relevant with regards to multilateral treaties. In case of a bilateral
treaty, the putting forward of a reservation by one of the parties can be understood as a proposal to
amend the treaty, leading to re-negotiations. The effects of a reservation on a multilateral treaty vary
depending on the reaction of the other states.
Article 20 VCLT provides for three situations:
1. A state accepts the reservation made by another state. The treaty will enter into force
between the parties without the reserved article or with the provision as amended by the
reservation.
2. If within twelve months a state does not react to a reservation, that state is then considered to
have accepted the proposed reservation. The treaty enters into force between the parties
without the reserved provision or with the provision as amended by the reservation. (article 20
(5));
3. A state can object to a reservation made by another state. In that case, despite the objection
the treaty will enter into force between the parties, but without the reserved provision, unless
the objecting state expresses an intention to the contrary;
messages.downloaded_by
