Introduction to international and European law
Lecture 1
What is international law?
- Law made between states, reflects the society to which it applies
Subjects of International Law:
1. Concept of (legal) personality
2. Recognition of states
3. Recognition of Governments
4. Recognition of Peoples
5. Personality of International organizations
Concept of (legal) Personality
- ‘’personality’’ derives from the Latin root Persona
-> literally means a ‘’mask’’
-> social and legal life is performed through masks of personality
- personality represents the recognition of group or individual’s legitimate existence
-> which identities/groups do we recognize? How?
Different legal personalities
- the question of personality is often one of extent since different subjects may entertain different sets of
rights and obligations
- the challenge: the international legal system does not have a single authority which determines
personality
What is at Stake with Legal Personality?
- possesses international rights and duties under International Law
- obtains the capacity to engage in types of action, e.g. conclude treaties, enter an international
organization
Who is an international Legal Person?
The traditional view
- only sovereign states can be persons or subjects under International Law
- states only possess legitimated authority over peoples and territories
- states have a law-making monopoly which becomes the basis for, e.g. bilateral and multilateral
treaties, the commenced and termination of war, and the extradition and punishment of
individuals
The expanded view
-in light of international agreements or customary law, other entities are now capable of having
(a) international rights and duties and (b) a capacity to act
-> international organizations, supranational entities corporations and individuals
- concept of International Legal Personality is a relative concept, i.e. not all subject of
international Law have an identical nature of rights and obligations
State Recognition
When is an entity recognized as a ‘’state’’?
- the question is of recognition arises with profound political change and often difficult circumstances
What is at Stake with State Recognition?
- a state has sovereignty over its territory and general authority over its nationals
,- status as a legal person with capacity to own, acquire, and transfer property, pursue remedies, and
become a party to international organizations
- capacity (along with other states) to make international Law, by custom or through treaties
When Statehood? Triggering Events
- the entity of contested status seeks to:
-> enter an international body open to states alone., e.g. UN membership
-> become party to a multilateral treaty open to states only
- the particular collective decision to recognize does provide an indication that states believes the criteria
for statehood are satisfied
‘’Sovereignty over Territory’’
Sovereignty over ‘’territory’’ is more than control over ‘’land’’
1982: UN Convention on the Law of the Sea
- territorial sea can extend twelve nautical miles
- coastal state has rights resources in areas outside its territorial sea
- sovereignty extends to air space over territorial sea as well as to bed and sub-soil
1944: Chicago convention on Int’l Civil Aviation
- every contracting state has complete and exclusive sovereignty over the airspace above its
territory
Recognition Rules
What is a ‘’State’’?
Permanent population
- there must exist a population enjoying exclusive relations of nationality with the nascent state
- no threshold requirement for purposes of population
- what is a ‘’permanent population’’?
Liechentstein pop. 34000 joined UN in 1990
Vatican City, pop. 1200 treated as state but no member of UN
Antarctica considers not to have permanent population
Territory
- the ability to rightfully claim a territory as a domain of exclusive authority
- North Sea Continental Shelf Case (1969) -> no threshold requirement: distinction between
territory and its boundaries
- Island of Palmas Case (1928) -> arbitrator Huber: sovereignty signifies independence ‘’in regard
to a portion of the globe… the right to exercise therein, to the exclusion of any other state, the
function of a state’’
Government
- ‘’effective’’ governmental entities
- the government concerned must demonstrate an unrivalled possession and control of public
power
- Äland Islands Case (1920) -> “It is…difficult to say at what exact date the Finnish Republic, in the
legal sense of the term, actually became a definitely constituted sovereign State. This…did not
take place until…public authorities had become strong enough to assert themselves throughout
the territories of the State without the assistance of foreign troops.”
What is a state? Hard or soft criteria?
1991 EU Guidelines on the Recognition of New States in Eastern Europe and Soviet Union
- respect Rule of Law, Democracy & Human Rights, i.e. UN Charter, Helsinki Final Act and Paris Charter
- guarantees for rights of ethnic & national groups
- inviolability of all frontiers which can be changed only by peaceful means
, - disarmament and nuclear non-proliferation
- peaceful settlement of State succession and regional disputes
When? Theories of State Recognition
Declarative Theory: Existence of a state depends on the facts and whether the criteria of
statehood are satisfied
- a state may exist without being recognized by other states
Constitutive Theory: The act of recognition by other state confers international personality
1933 Montevideo Convention, Article 3: “The political existence of the state is independent of
recognition by other the states.”
The Recognition of Governments
When?
- recognition of a state is not the same as recognition of its government
- issue is relevant in cases of coup d’etat or revolution; where two rival governments might exist at the
same time
-> De Facto Government controlling the country vs. De Jure Government with legitimate claim to
authority but either in exile or controlling only part of the state
- recent cases: Libya, Mauritania, Haiti, Communist China
Theories of practice
Effective control test (Secretary-General’s 1950 Memorandum re China)
- “…which of these two governments in fact is in a position to employ the resources and direct
the people of the State in fulfillment of the obligations of membership.”
- “whether the new government exercises effective authority within the territory of the State and
is habitually obeyed by the bulk of the population.”
Legitimacy test (1991 Conference on Security and Cooperation in Europe)
- 17.2 “will support vigorously…in case of overthrow or attempted overthrow of a legitimately
elected government of a participating State by un democratic means, the legitimate organs of
that State upholding human rights, democracy and the rule of law…”
The Recognition of Peoples
Self-determination: ‘’black letter’’ principle in International Law
- 1945 UN Charter, article 1 (2)
-> ‘’to develop friendly relations among nations based on respect for the principle of equal right
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace’’
- The West Bank Barrier Opinion (2004)
-> ‘’every state had the duty to refrain from any forcible action which deprives peoples referred
to… of their right to self-determination’’
- the principle is recognized in treaty instruments: e.g. the two International Covenant on Human rights
- now further accepted as an element of customary law, argued to be a peremptory norm (jus cogens)
Self-determination: What does the principle mean?
- the concept of self-determination is both ambiguous in meaning and conflicts with other principle of IL -
> e.g. self-determination vs. territorial integrity under UN Charter
- does self-determination require full-fledged statehood?
- the rights of self-determination of ‘’peoples’’ does not make clear how the right applies outside the de-
colonization process
Self-determination: Secession of Quebec Reference
Lecture 1
What is international law?
- Law made between states, reflects the society to which it applies
Subjects of International Law:
1. Concept of (legal) personality
2. Recognition of states
3. Recognition of Governments
4. Recognition of Peoples
5. Personality of International organizations
Concept of (legal) Personality
- ‘’personality’’ derives from the Latin root Persona
-> literally means a ‘’mask’’
-> social and legal life is performed through masks of personality
- personality represents the recognition of group or individual’s legitimate existence
-> which identities/groups do we recognize? How?
Different legal personalities
- the question of personality is often one of extent since different subjects may entertain different sets of
rights and obligations
- the challenge: the international legal system does not have a single authority which determines
personality
What is at Stake with Legal Personality?
- possesses international rights and duties under International Law
- obtains the capacity to engage in types of action, e.g. conclude treaties, enter an international
organization
Who is an international Legal Person?
The traditional view
- only sovereign states can be persons or subjects under International Law
- states only possess legitimated authority over peoples and territories
- states have a law-making monopoly which becomes the basis for, e.g. bilateral and multilateral
treaties, the commenced and termination of war, and the extradition and punishment of
individuals
The expanded view
-in light of international agreements or customary law, other entities are now capable of having
(a) international rights and duties and (b) a capacity to act
-> international organizations, supranational entities corporations and individuals
- concept of International Legal Personality is a relative concept, i.e. not all subject of
international Law have an identical nature of rights and obligations
State Recognition
When is an entity recognized as a ‘’state’’?
- the question is of recognition arises with profound political change and often difficult circumstances
What is at Stake with State Recognition?
- a state has sovereignty over its territory and general authority over its nationals
,- status as a legal person with capacity to own, acquire, and transfer property, pursue remedies, and
become a party to international organizations
- capacity (along with other states) to make international Law, by custom or through treaties
When Statehood? Triggering Events
- the entity of contested status seeks to:
-> enter an international body open to states alone., e.g. UN membership
-> become party to a multilateral treaty open to states only
- the particular collective decision to recognize does provide an indication that states believes the criteria
for statehood are satisfied
‘’Sovereignty over Territory’’
Sovereignty over ‘’territory’’ is more than control over ‘’land’’
1982: UN Convention on the Law of the Sea
- territorial sea can extend twelve nautical miles
- coastal state has rights resources in areas outside its territorial sea
- sovereignty extends to air space over territorial sea as well as to bed and sub-soil
1944: Chicago convention on Int’l Civil Aviation
- every contracting state has complete and exclusive sovereignty over the airspace above its
territory
Recognition Rules
What is a ‘’State’’?
Permanent population
- there must exist a population enjoying exclusive relations of nationality with the nascent state
- no threshold requirement for purposes of population
- what is a ‘’permanent population’’?
Liechentstein pop. 34000 joined UN in 1990
Vatican City, pop. 1200 treated as state but no member of UN
Antarctica considers not to have permanent population
Territory
- the ability to rightfully claim a territory as a domain of exclusive authority
- North Sea Continental Shelf Case (1969) -> no threshold requirement: distinction between
territory and its boundaries
- Island of Palmas Case (1928) -> arbitrator Huber: sovereignty signifies independence ‘’in regard
to a portion of the globe… the right to exercise therein, to the exclusion of any other state, the
function of a state’’
Government
- ‘’effective’’ governmental entities
- the government concerned must demonstrate an unrivalled possession and control of public
power
- Äland Islands Case (1920) -> “It is…difficult to say at what exact date the Finnish Republic, in the
legal sense of the term, actually became a definitely constituted sovereign State. This…did not
take place until…public authorities had become strong enough to assert themselves throughout
the territories of the State without the assistance of foreign troops.”
What is a state? Hard or soft criteria?
1991 EU Guidelines on the Recognition of New States in Eastern Europe and Soviet Union
- respect Rule of Law, Democracy & Human Rights, i.e. UN Charter, Helsinki Final Act and Paris Charter
- guarantees for rights of ethnic & national groups
- inviolability of all frontiers which can be changed only by peaceful means
, - disarmament and nuclear non-proliferation
- peaceful settlement of State succession and regional disputes
When? Theories of State Recognition
Declarative Theory: Existence of a state depends on the facts and whether the criteria of
statehood are satisfied
- a state may exist without being recognized by other states
Constitutive Theory: The act of recognition by other state confers international personality
1933 Montevideo Convention, Article 3: “The political existence of the state is independent of
recognition by other the states.”
The Recognition of Governments
When?
- recognition of a state is not the same as recognition of its government
- issue is relevant in cases of coup d’etat or revolution; where two rival governments might exist at the
same time
-> De Facto Government controlling the country vs. De Jure Government with legitimate claim to
authority but either in exile or controlling only part of the state
- recent cases: Libya, Mauritania, Haiti, Communist China
Theories of practice
Effective control test (Secretary-General’s 1950 Memorandum re China)
- “…which of these two governments in fact is in a position to employ the resources and direct
the people of the State in fulfillment of the obligations of membership.”
- “whether the new government exercises effective authority within the territory of the State and
is habitually obeyed by the bulk of the population.”
Legitimacy test (1991 Conference on Security and Cooperation in Europe)
- 17.2 “will support vigorously…in case of overthrow or attempted overthrow of a legitimately
elected government of a participating State by un democratic means, the legitimate organs of
that State upholding human rights, democracy and the rule of law…”
The Recognition of Peoples
Self-determination: ‘’black letter’’ principle in International Law
- 1945 UN Charter, article 1 (2)
-> ‘’to develop friendly relations among nations based on respect for the principle of equal right
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace’’
- The West Bank Barrier Opinion (2004)
-> ‘’every state had the duty to refrain from any forcible action which deprives peoples referred
to… of their right to self-determination’’
- the principle is recognized in treaty instruments: e.g. the two International Covenant on Human rights
- now further accepted as an element of customary law, argued to be a peremptory norm (jus cogens)
Self-determination: What does the principle mean?
- the concept of self-determination is both ambiguous in meaning and conflicts with other principle of IL -
> e.g. self-determination vs. territorial integrity under UN Charter
- does self-determination require full-fledged statehood?
- the rights of self-determination of ‘’peoples’’ does not make clear how the right applies outside the de-
colonization process
Self-determination: Secession of Quebec Reference
