Public International Law PDF

Public international law General introduction ==================== The Versailles treaty was the first treaty written in English for a French treaty. Law reflect power : election,.... Plus, Law is a social phenomenon, so law will reflect things, law doesn't exist outside. This is the result between relationship that are deeply made of **imbalance** and **power**. When law exist, you can invoke the law to limit the exercise of power. International law is link with humanity history. Moreover, International law is there to write history in advance : The law try to write history in advance : for example, law for car accident tend to have a code and laws to resolve the problems after a car accident or when you don't stop at a red light. The law governs many relationship. International has dualist aspect. International law is also called **national laws** so the between nation. In roman times, there was roman law between roman citizens but there was law between roman citizen and not roman citizen (*ius gentium*). There are collectivities between different nation. The same legal order can be referred by different names. International law is used by everyone. Most importantly, to understand where we are, you need to understand where you came from. Peace treaty has existed for thousands of years but one peace treaty began to make a difference and it's the one whose made the end of the 30 war. In the peace treaty of Westphalia, a new understanding was brought by those treaties. The basis is a very rudimentary social model : *In order to live together let us live separately*. And that treaty establishes the equal egality of states. Which is still today the fundamental axiological foundation of international law : State are, says the international law, sovereign and equal. Equality, one next to each other. The treaty of Westphalia brought the idea that there is no higher authorities than equality. In Europe, we have a political authorities (those who are inherited by the roman empire) and then there is the pope as religious power. The treaty of West Vania recognized that each king in his own state could choose which religion. That treaty cut ties with the roman empire and the pope. So the social model is : individual state next to each other without anyone above them. The law is brought about that society by an agreement between the different state. Le droit public de l'Europe : constitutionnaly between European states. How : ----- Register on the MOOC platform You can print the document: but not write anything in it but you can put highlights + arrow+ cercle.... You can have to the exam a English dictionary. Print the readings material and the 19 pages on the MOOC. + the readings Title 1 : General introduction (next part) ========================================== The social model = equal sovereignty ------------------------------------ ### From Versailles onwards : Every states is sovereign. When you turn to the us Charter. The organization is based on the sovereignty of all the members. Only states may be members of the UN. The principle of nonintervention of the UN in the domestic affair of states. Every member state on the planet, member of the UN is equal and sovereign. There is no supreme authority between them except the UN security council acting under the chapter 7. This basic social center can be seen back. If you want social model invented in Europe will be projected to the rest of the world. European states has conquish the world thanks to the navigation technics known by European country. Through that capacity of going overseas, European went on another continent. The Europeans are conquering territory for themselves and projecting abroad their own understanding of international life between nation. When the USA (1^st^ European colony to declare independence), they want to establish themselves as a state. They want to manage their own affair by themselves as a sovereign states. Because of the secession of USA is successful, they are able to establish themselves as a new state. And start participating of the state live as equal until the 1960. ### From Westphalia to Versailles Napoleon threatened the Westphalian system. The French revolution wanted the social model back with an understanding of peace with the Vienna treaty based on equal sovereignty between nation. The return to equal sovereignty of various state. The social model is fragile to keep this social model, there is the treaty of Vienna congress some form of equilibrium of power. It is placed geographically. The wealth of nation derive from agriculture. Capitalism is a legal construct from the industrial time. Capitalism is an extreme powerful tool to accelerate time. Capitalism is a true legal tool which accelerate wealth. The bank trust you and bet that you'll refund her. This is the 90^th^ century , in order to build the factory that will produce income. Capitalism is the great tools of the 90^th^ century and invented in Europe and in the USA. This social model is developed in Europe. European state remain colonial powers overseas. European state conquer territory in the far east, in India and in Africa with the congress of berlin in 1885. **The berlin congress** put an equilibrium of the power of the European country. It is a division of space in Africa based on the idea of equal sovereignty. This model based on greed and expansion and rivalry collapses in 1914. In 1815, at the **Congress of Vienna**, the turmoil resulting from the French revolution and the Napoleonic wars was put to rest by an exercise of restoration at the domestic level and by the re- establishment of a **balance of powers**, balance of powers whereby one State alone was not sufficiently powerful to put in danger the peace of the continent. The 1WW, the first war at this large scale. It will be a total war with includes all the social classes. It's not a war where professional soldier dies but the civilian needed to participate so they all died, all the classes. It was a suicide. It created a collective trauma. And the older based on equal sovereignty has created a monster and a social collapse. Out of the 1WW. There will be the Bolshevik revolution in Russia. After 1WW, because of the collective trauma something new need to be constructed. We need a collective body made of state, to try to avoid the next war and keep the peace. This is the league of nation (société des nations). This is an American idea (President Wilson). Wilson has the idea that we need an international organizations to create a venue where state would constantly meet and discuss and where there will be a council. **After the war**, the peace was largely based on the famous **Fourteen Points** made public by the United States President Wilson in January 1918. It resulted in the **peace treaty of Versailles** and the other peace treaties concluded with the central powers in 1919. Germany became a republic. Germany had to pay war reparations. Germany lost all of its colonies: Alsace-Lorraine was restituted to France; the Austrian-Hungarian Empire and the Ottoman Empire were dismantled. On the ruins of the Austrian-Hungarian Empire, new States were created on the basis of the principle of nationalities, and Poland, which had disappeared as a State for 123 years, Poland was re-established. With the Versailles treaty in 1919, the pact of la société des nations will be a part of this treaty. The Versailles peace treaty will enter into force in nations and some nation will never join for example the USA. The big winner of the war will be USA. The league of nation is created but is very weak. The soviet union which was just born will have a long fight within Russia and will join the league of nation long after then expelled. The league of nation will be very weak to address the rise of fascism in Europe and the conquest by fascist Italy in Ethiopia. The all system was based on the idea that outlaw of war and disfails and notably fails when the nazi regime striking regime decided to invade Poland. And the 2WW begins. The promise of treaty of Versailles collapse. This treaty called treaty of peace will not fulfill the promise his contain and will push the collapse (Many people has died and the Germany need to pay). This is the promise of peace and on the same time this promise is made with the domination in Germany and the absentees of the painting because there is only white people. ### From Versailles onwards What was called then **\'the outlawry of war\'** was achieved by the treaty of Paris of 1928, which is also called the Briand-Kellogg Pact as it was a joint idea of the French and the American foreign affairs ministers. And they invited the rest of the world to be a part of that treaty. By the end of the decade, nearly all states of the world were a part of the treaty of Paris. The league of nation does not abolish war but domesticate war ad a political policy. This will be outlaw in 1928, USA in the course of 10 years all state that exist at the time, join the Paris treaty or made similar treaty. For centuries, war was the continuation of politics. War those treaties become an illegal means of doing politics. It is the result of the catastrophe of the 1WW and the hopes of the people to make the 1WW the last one. This is non-self-fulfilling and the 2WW begins in 1939 with the war of conquest by which the Germany and the URSS divide europe. the 2WW, during this war when the ally powers realize that they could win the war they started to think about the after war. And the new order will be translated by replacing the league nation government by the UN organizations (his names is drawn by the UN Charter) in this state has said that they will not conclude a peace treaty with Japan, Italy or Germany alone and will continue to find with the other. In 1943, there is this idea to fight the war together to prevail together. And there is the Casablanca declaration. And the international organization is called the UN because the nation are the same who pledged to stay together in the war. 2 weeks after the win against Germany, UN is made but the war between USA, GB, AUS and Japan is still on. The new world is invented, the new legal covenant that will made the state live together was made during the 2WW was still on in Japan. Somehow if you become of the UN you have a collective guaranty that you exist. Equal sovereignty = the right to exist as a state. War with Germany had ended on 8 May 1945, but war with Japan was still raging, only to end with the atomic bombs dropped on the cities of Hiroshima and Nagasaki on 6 and 9 August 1945. As I recalled earlier, the UN Charter continues to be based on the principle of equal sovereignty of States. Very quickly, the cold war comes and the original plan of cooperation through the UN will not work very well because there is this biological divide between the soviet union and his new state of the west. One of the great development that occurs at the UN because the UN and the words of the charter, during the cold war, is the decolonization. The independence of colonized people being an obligation. European nation which has controlled colonization nation must stop Decolonization is a big event in the history. The old colonies become state = social model = they request equal sovereignty. The social structures remain the same. Fundamentally, this historical change is a result of a legal organization. If you change the subject and multiply the subject the face of international community has changed. Because the actors, the states who has become an actor multiplied. the claim of people is to become a state. This is a great success during the cold war , the UN will take on board and with the end of the cold war that will increase 3 new issues : - Development - Human rights : it really become universal in the sense that this is the project. - the environmental concern : those 3 concerns are the forth front of the international organization. There is this era of cooperation that opens to address those common problems. those three new issues created a new sense of interdependence between the nations of the world, gave new dimensions to the notion of peace and security and directly challenged the paradigm of State sovereignty on which international law had so far been built and which international law had protected. The last decade of the XXth century saw the creation for instance of the World Trade Organization, of the Yugoslav and Rwandan International Criminal Tribunals, of the International Criminal Court, of the Organization for the Prohibition of Chemical Weapons, saw also the creation of the Kyoto protocol on climate change, it saw also the Rio Summit on sustainable development and the establishment of many peace-keeping operations around the world. There is no real at that time (1990). But then we had the collapse of that organization through the event in the USA in 2001 (11 September). The collective understanding of the law is challenged with the more and more authoritarist regime. The development of TV networks, of the Internet, telecommunications and social media, together with a growing air transport industry and the expansion of international trade, all that provided for a new era of globalization. True, the United States of America established itself as the only superpower, but it was largely seen as a benevolent superpower, a power which was positively engaged with the rest of the world and which strived with the rest of the world to improve it. All that suddenly came to an end with the terror attacks of 9/11 and, even more, with the invasion of Iraq in March 2003 by the US and UK forces. **Multilateralism came to a halt and was replaced by unilateralism**, sometimes clothed in so-called coalitions of the willing. Nevertheless, the rule are still there, the purposes of the international law id to name with legal language what is occurring so to delegitimize what is occurring. International law is essentially a language between state, It mediates their relation. When they breach the international law, the try to justify it. They sometimes very often lie. There are some other country contestate in the same language to contradict these pretention. International law is far from living up to their promises. The international law is the reflection of what states want the law to be. They still engages with that system. In order to illustrate that lawyer need to delegitimize the conduct of the state which are aberrant : - **The war in Israel** : the problem is that Israel does that at the expand of the rights of the Palestinian people who have the right to send determination because they were part of the ottoman empire and then with the peace treaty of 1919, the ottoman empire was desorb, modern turkey was establish and the rest of the territory became mandates. The British mandate over Palestine was a transitional situation. The Palestinian people so far hasn't been in a situation to fulfill their exercise of their right to send determination. In the power relationship between Israel and Palestinian people, we know who is winning military. The language of international law is used to transform that power relationship and Even before the war, international language was used to vacate by Palestinian to undermine and criticize and delegitimize the behavior by Israel. The 7^th\ of^ October 2023, the UN genial assembly has sent to the international court of justice a request for an advisionnary opinion basically about the continued illegal occupation by Israel and the modality of this occupation. The fact underlying question was "Is Israel conducting apartheid ? is it practicing racial discrimination ?" this becomes a request by the general assembly, there is a debate inside the international court of justice after proceedings. More than 14 states that come and speak before the opinion. The advisionnary opinion make some very concrete announcement through the use and application of international law. opinion : the Israel occupation is illegal. the court has the opinion that all states are under an obligation to not recognized this situation as lawful and can't help Israel. This opinion has been translated into a general assembly resolution that was adopted by the UN general assembly. This opinion will be translated into an agenda making recommendation for state. *erga omnes* obligation For Ukraine : that the same. International language is there to delegitimize the illegal occupation of territory. State invest huge amount effort to occur the language of international law in their way to be not criticize, to show that they are good pupil of international law and continue what they're doing so they know the power of international law and understand it. *Erga omnes* obligation : every country can ask the respect of this right or obligation. ### International law as common language Title 2 : setting the international law stage ============================================= Introduction ------------ There are different way to understand the word subject. The processes by which international law is created, the sources cannot be understood without understanding first who's making the international law. It's difficult not understand the law without knowing from where the law comes from. To understand international law, we need to understand the subject. Those identities who's making the international law. The primary subjects of international law are state which is an abstract identity. States are the creators of the international law. Grouping of states have no subjectivity in international law. State only were considered as the subject of international law. Sovereignty is the power over a certain territory. State have created new subject of international law in purposes of doing things in common. International law have further evolved because in the international stage protected by the instrument of international law, individual has become the object of protection through international treaties. So we have rights under international law. International law has addressed individual and these has also duties under international law because international criminal law has been created. It's nit fixed things as international subject. You can add corporation as subject too. Corporations also have duties under international law. #### §1: setting the stage Following the peace of Westphalia, and for about three hundred years, **States remain the only actors** of international relations and the only subjects of international law and this enduring reality is reflected in the adjective \"international\" which is used to characterize the relations and the law existing [outside] the internal and domestic context of every State. States were the founders and the Master of International Law. They created that legal order **for** them, its norms and rules were created **by** them and it was solely applicable **between** them. And legal doctrine affirmed for a long time that, by nature or by essence if you prefer, international law was necessarily **confined to the relations between States and was only applicable to them.** That it was impossible for international law to apply to any other entities than States. Reality proved that **this dogmatic view was wrong**. Indeed, as the need for more enduring cooperation between States grew, States began to establish between themselves **entities** that were legally **distinct** from them; entities that were designed to serve [certain specific purposes], like managing a river between riparian States or organizing the exchange of mail post over borders. States established international organizations and it was soon, although not that easily, conceded that those organizations **could** also have a [legal personality] under international law. Furthermore, after the terrible crimes and persecutions that took place during the Second World War, it was felt necessary to [limit through treaties] the way States **could exercise their sovereign powers** over individuals and groups by **protecting fundamental rights and freedoms.** International human rights were born, making clear that individuals could also be the bearers of rights under international law. And through the development of the [Nuremberg and Tokyo tribunals], international law was also used to **prosecute** and **convict** individuals. This proved that not only international law could confer **rights** to individuals, but that it could also **impose obligations** on them. There is therefore no inherent impossibility to use instruments governed by international law to create rights and obligations for **other subjects** that States. And in the last 30 or 40 years, **[corporations]** were afforded substantial and procedural rights under bilateral investment treaties, proving again that international law was [not inherently limited to the realm of States]. And of course, in addition to all those developments, the respect for international law, its development and improvement is a growing concern within what is called the [\"international civil society]{.smallcaps}\", which is made of hundreds of non-governmental organizations (NGO\'s) having all sorts of concerns, from the protection of the environment to women\'s rights. So, it is clear today that States are [not anymore the only entities concerned with international law] and that international law is no longer \"their\" thing. However, it is important at this point to make a few conceptual distinctions; #### §2 : personality under international law Here are the distinctions to be made: 1. First, one must distinguish between the **actors** of international relations and the **subjects** of international law. It could be [States], [international organizations] like the UN, the WTO or NATO, [big transnational corporations], [large NGO\'s] like Amnesty International or Medecins sans frontieres. It could be [individuals], like a religious leader, a charismatic prisoner and opponent, or a wealthy businessman running an important charity of his own in developing countries, it could be [terrorist groups], a rebellious movement fighting a civil war, or the [Nobel peace prize] committee, it could also be a [category of people] making together a distinct group having a bearing on international relations, like migrants etc. Any person, group or entity having some [bearing or impact] on international relations could be said to be an actor of such relations. All this is important, but as this course is about international law, what is of interest to us is the [category of the subjects] of international law. And being a **subject** of international law means something different than just having a bearing and impact on international relations. And here I need to make another conceptual distinction. This is because one can have a broad or a narrow understanding of what it means to have a legal personality. In that sense, one could say that individuals are now subjects of international law because they are conferred rights, and also obligations, under international law : [international human] rights protect individuals, while each of us is bound under international law not to commit certain grave crimes like genocide or war crimes. In that sense, we, as individuals, are subjects of international law. However, our legal personality is only **[passive]**: we do not create ourselves the rights and obligations bestowed upon us by international legal instruments. We do not master those instruments. Those instruments are mastered by other subjects, most notably States and international organizations, and because of this, those subjects that can be said to have an **[active personality]** under international law. This is the narrow definition of legal personality: having rights and/or obligations under international law is not sufficient, what matters is having the **legal capacity to participate in the creation of new rights and obligations**, at least before oneself, and to do that through legal instruments that are instruments of international law. The distinction between **[active]** and **[passive]** legal personality is not much different from the distinction between being a subject of regulation and an object of regulation \-- between **regulating** and **being regulated.** Of course, the distinction is dogmatic and sometimes things are a bit blurred: for instance, it is difficult to decide if the capacity to vindicate bestowed rights is an element of active or passive personality. Let me illustrate this : today, individuals and corporations [are not only conferred rights under human] right treaties or investment treaties, but they are [increasingly given access to redress mechanism], including sometimes courts and tribunals, that allow them to vindicate (faire valoir) those rights at the international level against the public authorities that failed to respect those protected rights. Does that make individuals or corporations active subjects of international law? Maybe, but it might be a bit confusing since neither individuals nor corporations have yet the capacity to make new rules of international law and they are unlikely to acquire such capacity soon. However, there is no need to decide on those dogmatic issues, and the distinction between **[active and passive]** legal personality has primarily an educational purpose \-- it helps us to classify and categorize. Nearly all of the examples I gave above, from States to members of terrorist groups, could be said to relate to actors of international relations having some legal personality \-- and this is because even terrorists have criminal obligations imposed unto them by international law. But those examples make also clear that even within the [two main categories of active or passive legal personality], legal personality can vary to a great extent. For instance, the active legal personality of international organizations is very different from the one of States and, moreover, it is not the same for each and every international organization. In other words, personality under international law comes in many forms and degrees once it is defined broadly as having rights or obligations under international Law. In an advisory opinion about the legal personality of the United Nations and its capacity to claim reparation for the injury resulting from the killing of one of his envoy, the International Court of Justice considered that: *\"The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life\".* That was in 1949 about the personality of an international organization. But the same reasons based on the \"needs of the community\", can explain the emergence of new categories of subjects of international law. [Subjectivity under the law stems from the social needs] at a certain time and it is not a unified category : the extent of the rights and the nature of the subject can vary considerably. States are the creators of international la w and have full personality, they have an active personality, they can create international law. In this introductory course, we\'ll concentrate on the two main subjects of international law having an **[active legal]** personality, i.e. : - States and international organizations. As they remain to a large extent the only makers of international law from a formal point of view, it is important to understand what those abstract legal entities are from the point of view of international law and how they come to existence. But make no mistake: concentrating our attention on States and international organizations does [not mean that they are the only subjects of international law]. It is just that addressing the issue of individuals as subjects of international human rights law goes far beyond the scope of this course, even if human rights are an essential field of international law today. States are the makers, the main makers of international law. They can create international law, the relationship between law is governed passively by the international law. International organizations will have some forms active international personality that correspond to the scope of activities of the organization. the legal personality is limited by the sphere of activities of the organization. they can have the possibility to conclude treaties about their sphere of activities. When it comes of corporation who have receive rights. Some individuals are shaping some events because they are a terrorist groups. 18 : 30 :.... ) they pull together the intention of millions individuals around the world. That's a new phenomenon. The NGO have great influence when it comes to thinking of international law. Without the human rights NGO we will not have the international criminal court. The state is this human organization which is supposed to organize social lives. The state is to balance the budget. That balancing exercise is only made by state, not by NGO. And they are not in charge of all aspect of social life. The responsibility are different between NGO and state but the NGO push the state to stay in the respect of international law. Maybe one day, those NGO will be endowed with a more active personality. The only who vote are the state but NGO can speak with the delegate of the countries. ### States #### §1 : introduction They are the prime subject of international law. #### §2 : the element of statehood States are central to international law. As we\'ve seen, international law was created **by** States, **for** them and it was primarily designed to apply **between** them. And States are said to be (active) **[subjects]** of international law. But what is a State as a legal subject under international law ? True, we all know intuitively what a State is. But have you ever met with a State? And while we would all agree that, say, Uruguay is a State, it is very likely that we would disagree on the statehood of some other entities, like Palestine, Kosovo or South Ossetia. And what about the so-called Islamic State? How can we say that an entity is a State within the meaning of International law? It is usually considered that 3 elements characterize a State : - a territory, - a population - an effective and independent government. Those three elements are notably to be found in the [1933 Montevideo Convention on the rights and duties of States]{.smallcaps}, a treaty concluded during the Seventh International Conference of American States. The Convention is said to **codify the criteria for Statehood and to codify the declarative theory of statehood**, something I\'ll come back to. The Montevideo Convention adds a [fourth] element, namely the : - *\"capacity to enter into relations with the other States\".* However, let us consider that this fourth element is somehow [included] in the notion of **[effective]** **[government]**; it is indeed the external aspect of an effective government. A quick word on each of those elements. 1. First, a **territory**: international law is obsessed with territory. There is no State without a territory, i.e. an area of land attached to the crust of this planet. This is because human beings live on the ground, not in the sea or in the air. And it must be a [natural] territory, not an artificial platform above the waves. Famous case : a rich German bought a platform in the north sea and declare himself to be the sovereign duke of the sealand. He made passport, coins,... and didn't want to pay taxes in Germany because he had a "land". But the court said that it was not a land because it was not a natural territory However, there is no need to have a territory with clear and undisputed borders all around. What matters is the control over a certain territory. Its size does not matter \-- there are huge States like Russia and micro-States like Monaco. If size of the territory does not matter, it nevertheless remains that, as some have said, international law is \"obsessed\" with territory. And it is true that many disputes have existed and still exist between States on issues of title to territory and border delimitations. In this course, it will be impossible to review all the principles and rules applicable to territorial issues, but some of them will be mentioned. This being said, it is important to realize that the **concept of State sovereignty** is intrinsically [linked] to **territory**, so much that \"territorial sovereignty\" is key to statehood. In 1928, in an arbitration between The Netherlands and the United States about the sovereignty over the Island of Palmas (also called Miangas and which is situated in the Pacific Ocean South of the Philippines and North of Indonesia), [Max Huber]{.smallcaps} acting as sole arbitrator in the case, famously wrote that: *\"Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State. Sovereignty in relation to territory is called \'territorial sovereignty\'.* *Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.\" sovereignty means to have exclusive authority on a territory. A difficult question is wherever when the state are going to disappear because the climate change. Will those state are going to exist as sate after their territory flood ? some says no because there will be no territory so the state will disappear. In the UN, they says that they are state now so we will be state forever. So there is no clear answer. But international law says no territory = no state but that traditional approach of international law can change.* 2. Second, a **population**: there is no State without a population, without [human beings] living on the territory of the State. Again, the size of the population does not matter, but it must not be an empty space, nor a space with wild animals only. And the population should live on the territory on a [permanent] basis \-- it can of course move around according to the seasons, but it must be there. It does not matter if the population has the nationality of the State or the nationality of several other States \-- that is another matter and it is [possible], even if it has never occurred, that a State decides [not to grant its nationality to anyone]. it doesn't matter if the population move. you must have a part of the territory which is occupied by humans. Every state in the world have law on nationality. But we can imagine a situation where the state have no national but just a population which have another nationality but that doesn't matter for international law. 3. Third, an **effective and independent government**. By this, what is required is that the population living on the territory be [socially organized, governed and represented] by authorities that can effectively enforce the international obligations of the State on the territory and the population. And those [authorities must be independent][^1^](#fn1){#fnref1.footnote-ref}. Traditionally, States are free under international law to choose whatever form and nature of government they prefer: a State may choose to be a [republic] or a [monarchy], to be a [federal State] or a very [centralized State], to be a [military dictatorship] or a [liberal democracy]. On that last point, international law is indeed traditionally indifferent to the nature of the political regime. Moreover, international law **prohibits** outside [interference] in what are called the Sacro-saint ***\"domestic affairs\"*** of States. This being said, more and more States agree in treaties to have a democratic form of government and to respect some fundamental political freedoms. Those treaties are mostly contracted at the **regional** rather than **universal** level. However, if such treaties have been concluded and are binding on the State concerned, it is not free anymore, under international law, to have an undemocratic government, while the way to govern its people is also curtailed by rules of international law. International law limit sovereignty in a way that authority can only use their authority on the population on their territory. There are limit to exercise sovereign power in the state. they have exclusive power on their territory but international law have influence on it. State often want to shut the curtain and protect their domestic affairs and the notion of domestic affair : what is reserved of full sovereignty of state without control of international law it is shrinking. The process by which those 3 elements meet at a certain moment in time and that a State comes to existence is essentially a [factual] process. Historically, States have established themselves qua States because they were able to do so, as a matter of [fact]. This may explain why territory, population and effective government are sometimes said to be \"**[constitutive]**\" elements of States. ![](media/image2.png)I submit that this is a misconception if by \"constitutive\" one considers that the State stops to exist as a State if one the three elements comes to be missing. In fact, this is not the case. The State survives and does not disappear if, notably, it lacks an effective government. For instance, Germany was left without any central government after the fall of the Third Reich, but it did not disappear as a State. Closer to us, Somalia did not stop being a State despite lacking an effective government for many years. Therefore, instead of considering those 3 elements as constitutive of States, it is better to view them as **[criteria for the identification of States]**. By this, I mean that they help to identify that what we have in front of us is indeed a State, rather than something else like a tribe or an international organization. Just like the shape of leaves helps us to identify that the tree in front of us is an oak and not a chestnut. **The act** by which existing States officially take notice of the existence of a new State, and admit it as one of their peers, is called ***[\"state recognition]\".*** It a very old institution of international law and it is a decision of fundamental importance. And this is because, if becoming a State is essentially a factual process, being a State on your own, without being admitted in the family of nations and considered as a State by the other States, is rather meaningless. The existence of a state is a result of history. That process is accompanied by the law. #### §3 : State recognition When a new entity pretends to be a State[^2^](#fn2){#fnref2.footnote-ref} because it meets the three criteria for statehood, other existing States [may decide to recognize it as a State]. **State recognition** can be used when a new State appears on the world stage. But if used, it can be used [only once] in relation to the entity concerned. State recognition is a single-bullet gun. State recognition[^3^](#fn3){#fnref3.footnote-ref} is a [discretionary act] in the sense that there is no obligation or duty to recognize a new State as a State. State recognition can be prohibited. It is discretionary also in the sense that it can be done whenever the State recognizing sees it fit. The State recognizing the new State may also condition its recognition on certain political concessions or commitments that the new State is called to do. State recognition is a discretionary act that is most often explicit and made public by an official declaration. Sometimes, the word \"recognition\" is not used and it tacitly results from other acts. However, one has to be extremely careful in that regard. For instance, contracting a treaty with a State does not necessarily mean nor imply **that the two States recognize each other**. The only act which necessarily entails tacit and mutual recognition is the **[establishment of diplomatic relations]**. In certain circumstances cannot recognized another state. there is no obligation to recognize. In 1975, Belgium propose to the UN to vote to recognize new state it was rejected. In the UN charter, the UN assembly admit to recognize new state and state kept the freedom to recognize new state. that discretion is limited where international law put an obligation not to recognize. It is a pollical choice. USA has recognized Panama after the secession because they had a agreement to recognize the independence of Panama in result to build the Panama canal. you can bargain. Today the recognition of state is not as wild and selfish. There is still political consideration that will be the leading of recognizing or not sometimes it is domestic consideration. For example : Spain does not recognize Kosovo because they're afraid that Catalonia will do the same and use the argument that Spain has recognize the Kosovo. Recognition can be - explicit : making a declaration or a press communicate or even a domestic legal act (AR in Belgium). - Implicitly/ tacitly : establishment of diplomatic relations Finally, State recognition remains fundamentally a **[unilateral act]** from one State vis-à-vis another State. Several States may of course decide to consult each other and proceed in a concerted way before each of them recognizes the new State. But this does not make State recognition a collective act and there is no collective body or organ entrusted with the power to recognize new States. Notably, when a State is admitted as member of the United Nations, it does not mean that all UN member States recognize that new member as a State. State recognition ***does not*** result from being admitted to the UN. Moreover, even voting in favor of the admission of a new Member State does not necessarily mean recognizing it as a State. Sometimes, diplomacy leads to some rather surreal situations. For instance, in November 2012, the UN General Assembly accorded what is called the \"***[non-Member Observer State status]***\" to Palestine, a status by which one does not become a member of the UN but which nevertheless requires to be a \"State\". When voting in favor of such status, many States declared that their vote did not mean that they recognize Palestine as a State \-- even if the status of non-member can only be afforded to **entities considered to be States**. Usually, State recognition is said to be ***[declaratory]***: it simply declares that the entity being recognized is a State, without having the effect of creating it as a factual entity or constituting its international legal personality. you're a state already and my declaration is only to made that clear. The recognition is constitutive of a relationship between the state and the new state. the existence of that state as a fact, is there an effective power there. Does it establish itself as a reality.... Those effectivity of the state will solidify by and through the way of the state. other state each for themselves have some form of control about the history of every new state. you'll succeed with your secession because other country recognize you so is in accord with you political project. Haut-Karabakh : Armenia vs Azerbaijan. disappear in 2023 because Azerbaijan took the territory by force. In other words, there State recognition has **[no specific legal effect and is therefore a political]**, rather than a juridical, act. However, such act has a great importance in international relations and it is never done lightly. Moreover, the more one State is recognized, the more it will enjoy some international effectivity, such effectivity enhancing the factual reality that the new State must be in order to be recognized. In other words, there can be sort of chicken and egg situation when the State being recognized is somehow frail: of course, in order to be recognized, the entity should be **[a new and already existing]** State, but being recognized will gradually **reinforce**, as a matter of fact, its **status** as a State. Recognition [will not] make statehood because the latter must precede, but it will nevertheless [consolidate] it. For that reason, it is difficult to escape the conclusion that recognition also entails ***[some constitutive effect]***. But, as I just said, recognition is not constitutive of the recognized State as a State. However, recognition is nevertheless constitutive in the sense that it establishes a relationship of State to State between the recognizing State and the recognized entity. A relationship that exists between them two and that is proper to them. If you see an **[entity being recognized as a State]** by some States, while other States refuse to recognize it as such, you may ask yourself: what is that entity at the end of the day? Is it a State or is it not? The answer to that question is: it depends. Sometimes, even the **[States who refuse to recognize an entity as a State will easily concede]** that it is, and very much so, a **[State]**. If that is the case, refusing to recognize is not a way to deny the factual existence of the entity as a State - a fact is a fact -, but it will be a way to deny its ***[political legitimacy.]*** For instance, Arab States who still refuse to recognize Israel today know very well that Israel is a State, and a mighty one, and it would be foolish not to see that fact. In other cases, when the factual existence of the State is more questionable, the constitutive dimension of recognition comes into play. As recognition establishes a relationship between the recognizing State and the entity being recognized as a State, statehood will exist for the purpose of that relationship. In such a case, and despite being primarily a factual and objective issue, statehood could therefore boil down to a relative issue based on subjective appraisals. This is puzzling and discomforting when it happens, but it is the price to be paid in a decentralized system of States where each of them is entrusted with the **[discretionary power to recognize]** (or not) new States. For the rest, time, and time only, will tell if the factual reality of statehood is consolidated or remains doubtful. #### §4 : concerted recognition Sometimes state recognition has been concert : some states decide collectively that they will recognize the state if he have some characteristic. Political objectives can be a criteria so a domestic objectives. When a State recognizes another State, it usually does so on its own, in full discretion. However, existing States may act in concert with each other and agree on certain **[political conditions]** that must be met by the new State(s) in order to benefit from their respective and individual recognition. This occurred in 1991, when the Member States of the (then) European Economic Community issued the following political \"Declaration\". It is quite a remarkable declaration because the criteria set out in order to gain recognition required from the new States to respect certain principles that were of the common interest of all States on the continent. ***Declaration on the \'Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union\' (16 December 1991)*** *In compliance with the European Council\'s request, Ministers have assessed developments in Eastern Europe and the Soviet Union with a view to elaborating an approach regarding relations with new states.* *In this connection they have adopted the following guidelines on the formal recognition of new states in Eastern Europe and in the Soviet Union:* *The Community and its Member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination.* *They affirm their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.* *Therefore, they adopt a common position on the process of recognition of these new States, which requires:* *- respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;* *- guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE;* *- respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;* *- acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability;* *- commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.* *The Community and its Member States will not recognize entities which are the result of aggression. They would take account of the effects of recognition on neighboring States. The commitment to these principles opens the way to recognition by the Community and its Member States and to the establishment of diplomatic relations. It could be laid down in agreements.* Robert Badinter commission needed to say if all the criteria of a state was in ex-soviet state so the state could recognize them. The admission int the UN is not a collective recognition. The way state recognition incrementally consolidate or not the factual existence of state and in a decentralized system displace an important role. #### §5 : obligation not to recognize State have the freedom to recognize as long as international law does not prohibit that. It's an invention by the American diplomacy. State recognition is a discretionary act. In 1931, Japan invaded Manchuria and establish a puppet state called Manchukuo. The reaction of the UN of this breach of peace was very weak and Manchukuo had been existing until the end of 2WW. In 1932, the U.S. State Secretary Henri L. Stimson addressed to Japan and to China diplomatic notes stressing that the United States **[would not]** recognize any territorial change brought as a result of such an illegal use of force by Japan. to limit the Japan's benefits. after 1928 with the treaty of Paris. In order to keep not to use force, the US came with the idea that the illegal use of force can't get through. War as an instrument of national policy had indeed been declared illegal under the Paris Treaty of 1928 (\"Briand-Kellogg Pact\") and the Japanese invasion was considered to be in flagrant breach of that new rule of international law. The **non-recognition policy of the U.S.** was called the **\"Stimson doctrine\"** (or the \"Hoover-Stimson doctrine\" since Henri L. Stimson was serving with the administration of U.S. President Hoover). The ***[Stimson doctrine]*** did not produce much change on the ground but, as a matter of principle, it reflected the idea according to **[which a lawful situation cannot derive from a grave breach of law]** (*Ex injuria jus non oritur*) and it served to uphold the legal character of the new prohibition established under the Briand-Kellogg Pact. used for Ukraine Such **[practice of non-recognition]** was followed by several States and repeated on various occasions, notably when the USSR annexed the three Baltic republics (Latvia, Lithuania and Estonia) in 1940. After the German occupation, those countries were incorporated in the Soviet Union and only recovered their independence in 1991 when the Soviet Union collapsed. From such practice of non-recognition, a customary rule of international law emerged. The obligation not to recognize illegal situations was notably set out by the International Court of Justice in **two different contexts**: 1. Context 1 : Namibia[^4^](#fn4){#fnref4.footnote-ref} had been a German colony. Under the Peace Treaty of Versailles (1919), Germany lost its colonies and the League of Nations established the Mandate system for their administration. South Africa was granted a Mandate over Southwest Africa[^5^](#fn5){#fnref5.footnote-ref} (Namibia). Under Article 22 of the [[Covenant of the League of Nations]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/Covenant_League_Nations.pdf), the Mandate system was governed by two principles of paramount importance: power having th e mandate must bring the people out the territory to send determination. - the principle of non-annexation - the principle according to which the well-being and development of the peoples concerned formed \"a sacred trust of civilization\". When the United Nations was established in 1945, a new Trusteeship system was put in place, but former Mandatory powers remained bound to fulfil their Mandate obligations and the UN took over the supervisory powers that were formerly exercised by the League of Nations. However, South Africa continued to be present in South West Africa and, four years later, the Security Council declared such presence to be illegal. The Security Council also declared that all acts by South Africa concerning Namibia after the termination of the Mandate were illegal and invalid [[(Resolution 276 (1970))]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/Resolution_276.pdf). South Africa did not comply. In 1971, the ICJ found that the UN Member States were \"under **obligation to recognize the illegality** of South Africa\'s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration.\" (ICJ, [*[Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)]*](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/ADV21061971.pdf), Advisory Opinion, 21 June 1971, *ICJ Reports*, para. 133, p. 58). 2. In June 2002, the Israeli government approved the first stage of the construction of a \"continuous fence\"[^6^](#fn6){#fnref6.footnote-ref} in the West Bank (including in and around East Jerusalem), allegedly to protect its citizens from terrorists attacks. Gravely concerned by the construction of such a wall in the Occupied Palestinian Territory, the United Nations General Assembly met in an emergency session and requested from the International Court of Justice an advisory opinion on the \"legal consequences arising from \[such\] construction\" . The Court found that the \"construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law\" and that Israel was under an obligation to cease the works, to dismantle the parts of the wall already built and to make reparation for all the damage caused by the construction of the wall. The **[Court]** also found that \"All States are under **an obligation not to recognize the illegal situation** resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction\" is seen as a way of channel the reaction of the states. There is an illegal situation and the may not recognize. The obligation not to recognize as lawful a situation created by a serious breach of a peremptory norm of general international law has been codified by the International Law Commission as a rule of customary international law (Article 41, paragraph 2, [[Articles on the Responsibility of States for Internationally Wrongful Acts - A/RES/56/83]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/Reading_Material.pdf) In 19 July, the ICJ was again requested by the UN general assembly to deliver an advisory opinion on policy and practices of Israel on the Palestinian territory. Many NGO consider that Israel was conducting a policy of apartheid. The ICJ hasn't said that but the underlying issue was that. And the court said that. Some state may be said to be in breach to the obligation not to recognize. The least you must do is to not accept the situation that arises. Hence, the discretionary power of States to recognize new States is not unfettered: it is limited by the obligation not to recognize situations resulting from serious breaches of fundamental rules of international law. As a result, States would breach such obligation if they were to recognize any new State created out of an illegal military operation or in disregard of other essential rules of international law. Furthermore, the obligation of non-recognition can be specifically imposed by the United Nations Security Council by a resolution which is binding on the UN Member States according to the conditions that will be set forth later in the course. The Security Council has notably imposed on the Member States a duty not to recognize as lawful (calls upon not to recognize): - The racist minority régime in Southern Rhodesia (now Zimbabwe), and considered its declaration of independence as having no legal validity ([[Resolutions 216 & 217 (1965)]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/S_RES_216_1965.pdf)); - The declaration of independence of the \"Turkish Republic of Northern Cyprus\" ([[Resolution 541 (1983)]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/S_RES_541_1983.pdf)); - The annexation of Kuwait by Iraq ([[Res. 662 (1990)]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/S_RES_662_1990.pdf)); By a non-binding resolution (see Week 4), the United Nations General Assembly also called upon member states \"not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol\" following its annexation by the Russian Federation in 2014. Likewise, following the massive invasion of Ukraine by the Russia Federation on 24 February 2022, the UN General Assembly met urgently and \"\[d\]eplore\[d\] in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter\", \"\[r\]eaffirming that no territorial acquisition resulting from the threat or use of force shall be recognized as legal\" ([[A/RES/ES-11/1]](https://documents.un.org/symbol-explorer?s=A/RES/ES-11/1&i=A/RES/ES-11/1_0582221)). In a later resolution, the General Assembly \"*Call\[ed\] upon* all States, international organizations and United Nations specialized agencies not to recognize any alteration by the Russian Federation of the status of any or all of the Donetsk, Kherson, Luhansk or Zaporizhzhia regions of Ukraine, and to refrain from any action or dealing that might be interpreted as recognizing any such altered status. In the same vein, the European Union and its 27 Member States recalled that \"no derogation to the prohibition of aggression is permissible and that, as a consequence, no State shall recognise as lawful the situation created by an act of aggression\" ([[Declaration of the European Union and its Member States on upholding and promoting respect for international law, including the principles of the Charter of the United Nations, 20 June 2022]](https://data.consilium.europa.eu/doc/document/ST-10470-2022-INIT/en/pdf)). In that sense, the obligation not to recognize limits the political freedom of States and helps to channel their reactions, bringing them together to reject illegality. ARSIWA : article on the responsibility of state for internationally wrongful act. Art. 41 of ARSIWA : obligation that peremptory ius cogens. §2 : there is reference because the situation is the result of a breach. #### §6: is unilateral secession prohibited ? If the emergence on the world stage of a new State results from a concerted and negotiated process with the mother-State, the rest of the world will usually feel reassured and will not contest such outcome. State recognition will easily be granted. For instance, South Sudan declared its independence in 2011 following an internationally monitored referendum that had been agreed after a lengthy and a bloody civil war. South Sudan was easily and quickly recognized as a State. However, throughout history, many new States came to exist as a result of [unilateral acts of secession]. The question often asked in that regard is to know whether international law prohibits unilateral secessions. And of course, if [unilateral secessions are illegal as such under international law], then the obligation not to recognize should apply and the new entity that aspires to be a State should not be recognized as a State. However, traditionally, international law has remained silent on the matter: while unilateral secession is usually **unconstitutional under domestic law**, international law **does not** provide for [any rule prohibiting] unilateral secession as such and as a matter of principle. In other words, **[per se secession is not prohibited under general international law.]** That may sound strange to you and you may think that, because international law protects the territorial integrity of States, and notably under ***[Article 2, paragraph 4, of the UN Charter]*** that we shall study later in the course, because of the rule protecting territorial integrity, you may think that unilateral secession is illegal, as it undoubtedly [alters territorial integrity]. However, as the International Court of Justice made clear in an advisory opinion about the conformity with international law of the unilateral declaration of independence in respect of Kosovo, as the Court made clear: \"the scope of the principle of territorial integrity is confined to **[the sphere of relations between States]**\". That is between already existing States. One must therefore understand that, at the very moment when secession occurs through a unilateral declaration of independence, the entity which is about to try to become a State is [not yet bound by the duty owed by States] vis-à-vis each other, the [duty to respect their respective territorial integrity]. Such duty becomes binding on the new State **once** it has become a State, just a second, as it were, after its declaration of independence - provided, of course, that the outcome of such declaration is successful and that a new State effectively results from it. This may sound fairly artificial and formal, but if international law were to radically prohibit secession, it would simply mean [that history is forever written in advance]: as the establishment of any new State would be contrary to international law and could not be recognized by other States, then the composition of the international community of States would be frozen forever. **The power of existing States** on their people **would be considerably reinforced** because the creation of any new State would need to be concerted, which would amount to giving to the mother-State an unlimited veto to the emergence of a new State on a portion of its territory. This may be the case as a matter of domestic law, but this is not the case as a matter of international law. So, while the **absence of a radical prohibition of unilateral secession** under international law might be an element of course of [instability] in international relations, it does make some sense and is actually not without some moral foundation. This does not mean however, that unilateral secession is always in conformity with international law. As the Court made clear in the same advisory opinion, there are indeed **[cases where the unilateral secession stems from other grave breaches of international law]**, like an **illegal use of force** by another State helping the secession, that was the case of the Turkish Republic of Northern Cyprus, or the **violation of the right of colonial people to self-determination**, that was the case of Southern Rhodesia, or **grave breaches, graves crimes resulting in an ethnic cleansing**, that was the case in relation to the declaration of independence of the Republika Srpska by the Bosnian Serbs during the war in Bosnia. In all those cases, unilateral secession is the result of grave breaches. In other words, secession would not have existed without those breaches. When Rhodesia declare their independence establishing a racist regime, it has been asked to not recognize they took power in breach of the right of the majority of the people living in south Rhodesia. Therefore, the unilateral secession constitutes an illegal situation to which the obligation not to recognize applies. This is precisely why the Security Council condemned as illegal the situations I just mentioned and requested from the UN Member States that they do not recognize such situations as such and the entities as States. But that practice by the Security Council does not create a rule prohibiting unilateral secessions as such When turkey has invaded a part of Cyprus, they made it a independent part of Cyprus. It has been here since a lot of time. When Irak invade Kuwait, Irak pretended to annex Kuwait and to keep it a separated state. In 1992, when in Bosnia the Serb minority proclaimed itself has the independent republica serska. The creation of the state here and pretention of statehood, the result could not be here without a breach of international law. In the situation of Ukraine, the UN security council /in 2014, Russia has invaded a part of Ukraine. Russia used force to annex part of territory of Ukraine and organizes a referendum there by which the local authorities declare independence and recognize by the Russian federation. And the next day, they signed a treaty of accession of the territory to the Russian federation. During the war that has started in 2002, the same scenario enforce of some other part of the territory. Russia has the right to veto in the UN council so a decision is not adopted. the decision is asked to the general assembly and they meet and adopted a resolution which is not binding but we calls the obligation of state not to recognize. the general assembly call upon all state not to recognize any alteration by the Russian federation of the status of territory in Ukraine. When the Baltic where annex in the soviet union, in the Est we didn't accept it. it has a cost to the population to not recognize the independence. International law says that state must behave in a way that it's not business as usual. limit political of the state. - How law resist some political decision. #### §7 : The Kosovo advisory opinion Kosovo declared independence on 17 February 2008. In response to that declaration of independence, some States recognized the Republic of Kosovo as an independent State. However, other States rejected the declaration, considering it illegal and illegitimate. Upon the suggestion of Serbia, the UN General Assembly adopted on 8 October 2008 Resolution 63/3 requesting an advisory opinion from the International Court of Justice on the following question: *"Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?\"* The Court delivered [[its opinion on 22 July 2010]](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/141-20100722-ADV-01-00-EN.pdf). The Court first turned its attention to the lawfulness of declarations of independence under general international law. The ICJ acknowledged the varied historical record of declarations of independence and argued: "79. During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and people's subjugation, domination and exploitation. \[...\] A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases. 80\. Several participants in the proceedings before the Court have contended that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity. The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that : "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." In General Assembly resolution 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations", which reflects customary international law (*Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986*, pp. 101-103, paras. 191-193), the General Assembly reiterated "\[t\]he principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State". This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that "\[t\]he participating States will respect the territorial integrity of each of the participating States" (Art. IV). Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.\" In some cases, the proclamation of independence by some entities, sometime secession is illegal. There is an obligation for other state not to recognize. In the world of today, because there is a prohibition to use force and to respect the integrity of state. If Catalonia declares independence and pretend to become a state does that amount the integrity of the territory of Spain ? yes. Does that obligation any new state becoming independent as a result of secession ? Is secession illegal under international law or not ? In 1999, some states decided to help the people of Kosovo, they bombarde Serbia to stop his military operation in Kosovo. this operation of the states is debatable. morally it makes sense. Serbia has accepted a cease fire and a withdraw in Kosovo following the bombarding of Serbia. resolution 1244 in 1999 : Serbia is out of Kosovo, UN arrive with a reglement for the people who live there. There hasn't been any recognition. it days that in Kosovo there was autonomous authorities when election b was made under the supervision on NATO. For more than 10 years, Kosovo didn't want to live under the rule of Serbia and there has been some people who has been selected under the election want independence. the UN recognizes that there is no way out, so the only solution is to let Kosovo proclaim independence Serbia is not okay with that. Serbia push the situation to the general assembly to make a pronouncement to the legality of the declaration of independence of Kosovo. The question fort the court : the declaration of independence was in fact by the provisional institutions of self-government or not ? it was made by a group of individual representing the people of Kosovo. The court will find that this declaration of independence by individual representing the people of Kosovo is not in breach of any rule of international law. Art. 2, §4 : the obligation to respect territorial integrity is a obligation binding on state and only state so when an entity make their independent they are not bound to the art. 2, §4, so the secession is not illegal. Within in a state, if there is a secession of a mother state , the secession is legal because they are not bind to the art. 2, §4 so the respect of the territory integrity of state because they are not state. #### §8 : when is unilateral secession right ? prolegomena It is not because unilateral secession is **[not]** prohibited as such under a rule of general international law, that any people, any region or any province around the world [would have a positive right] under international law to secede and to declare independence. There is indeed a difference between having a [right to do] something, and simply [having the possibility], the freedom to do it. And the absence of the right to do a certain thing does not mean that doing such thing would be prohibited. In the Kosovo advisory opinion, the International Court of Justice stressed that *\"it is entirely possible for a particular act such as a unilateral declaration of independence not to be in violation of international law without necessarily constituting the exercise of a right conferred by it.\"* However, certain peoples have been conferred a **[positive entitlement to become independent]**. Those peoples not only have the possibility to declare independence without breaching any rule of general international law, but they actually **[have the right]**, under international law, to do so. Such a right to become independent unquestionably exists today **[[in favour of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.]]{.smallcaps}** Before addressing this important normative development and turning to the scope, content and nature of the right of peoples to self-determination, it is worth recalling briefly how collective entities that are not States came to be granted some rights under international law, so as to acquire a certain international legal personnality. This first step stoned the way for later developments. The idea according to which some peoples could be endowed with the right to become independent States **stems from the practice of the Allied and Associated Powers during the First World War**. In the name of the \"***[principle of nationalities]***\" according to which [each people making a \"nation\" within the multinational Austrian-Hungarian Empire had the right to become a State], the Allied and Associated Powers recognized the Polish and Czechoslovak \"nations\" and considered them as co-belligerents during the war. And when the war came to an end, the peace treaties of 1919 dismantled the age-old multinational empire and replaced it by several new States. So, the idea that a group - a people, a nation - could be the bearer of a legitimate entitlement to become a State was already present in the early years of the XXth century. Furthermore, the Covenant of the League of Nations established - as recalled earlier - a **Mandate system** to look after the peoples of the former German colonies and some territories that were previously under Ottoman rule. Article 22 of the Covenant called those mandated peoples, *\"peoples not yet able to stand by themselves under the strenuous conditions of the modern world.\"* According to what was perceived as their degree of development, those peoples were administered under Mandates of A, B or C type. However, common to all those types of Mandates was the duty of the mandatory powers to look after the \"well-being and development\" of those \"peoples\" in the name of a \"sacred trust of civilization.\" So, there again, peoples were identified **as bearers of specific** rights and their territories were conferred an international status. #### §9 : when is unilateral secession a right ? self-determination of peoples In the covenant of the league of nation under the Versailles treaty, the covenant of league of nation is the first part of the treaty of Versailles. The Charter of the United Nations established a Trusteeship system in order to replace the Mandate system. Additionally, Article 73 of the UN Charter confirmed and expanded **[the concept of the sacred trust]** to all *\"territories whose peoples have not yet attained full measure of self-government\"* - in other words, the colonies of the victorious European powers. Furthermore, the UN Charter referred to the \"self-determination of peoples\" in Article 1, paragraph 2, and also in its Article 55. Which peoples were envisaged to **[have such self-determination right]** and what that right precisely meant was not very clear at the time the Charter was negotiated. However, because the drafters of the Charter included representatives of the United Kingdom and France, two powers with huge colonial empires at the end of the Second World War, it is unlikely that they envisaged to bestow their colonies with more benefits than the ones envisaged under Article 73. When referring to the \"**self-determination of peoples**\" in the context of the development of friendly relations among nations, the drafters of the UN Charter probably had in mind [the need to respect the fact that there were already deep political differences between Soviet-style democracies and liberal democracies.] Those provisions did not stabilize European colonies around the world. After the great sacrifices imposed on them by the war, peoples in the colonies were longing for freedom and self-government. India became independent in 1947, Ghana was one of the first African country to reach independence ten years later and, in the meantime, both in Asia and in Africa, bloody colonial conflicts arose, notably in Indochina and Algeria. The fight against colonialism, which was first and foremost a moral imperative and a life-long political struggle for many around the globe, gradually became a legal obligation. The landmark development in that legal evolution was, a short fifteen years after the UN Charter was concluded, the adoption by the **General Assembly of Resolution 1514 (XV) on 14 December 1960.** The resolution is entitled \"[Declaration on the Granting of Independence to Colonial Countries and Peoples]\". You will find the text of the Declaration in the next reading: in substance, it proclaimed the \"necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.\" Peoples living in non-self-governing territories and peoples subject to alien subjugation, domination and exploitation **[were granted]** the right to self-determination, i.e. [[the right to freely determine their political status, including attaining complete independence by becoming State]]{.smallcaps}s. Self-determination of peoples acquired a new, external dimension, to the benefit of a certain category of peoples. Having the right to become independent, the colonial peoples were thus granted a form of legal personality. The paradox of the right to self-determination bestowed upon those peoples is that its single use results in the birth of States. And once the State is born, the people somehow disappears, or at least has **[exhausted its right to self-determination]** by realizing it. Ten years after Resolution 1514, the General Assembly reaffirmed the right of peoples to self-determination in the \"Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States\". Interpreting the \"**[sacred trust of civilization]**\" under Article 22 of the League of Nations\' Covenant half a century later, the International Court of Justice concluded in its advisory opinion on the legal consequences of the continued presence of South Africa in Namibia that \"*the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned*\". The right of peoples to self-determination, understood as the [right of colonial peoples to secede from the colonial power and become an independent State brought about a revolutionary change] in the composition and the concerns of the international community. In 1950, there were 60 UN Member States. In 1961, after Resolution 1514 was adopted, there were 104. In 1970, 127. In other words, the international community of States more than doubled within 20 years and the number continued to increase. No doubt the **[outlawry of colonialism]** through the right of colonial peoples and peoples under alien domination to become independent is now a f**[undamental principle of international law.]** It might seem self-evident today, but one has nevertheless to measure the incredible change it brought : for many generations in Europe, colonialism had been considered a noble task and a life-long project. It was now radically prohibited and, today, it is simply unthinkable. On two occasions, the International Court of Justice made clear that the right of peoples to self-determination is now a right **[erga omnes]**. We shall see later in this course what it means for a right or an obligation to be erga omnes, but suffice it to say for the moment that **[it must be respected by all and it entails the right of all States to request its respect.]** In other words, if a colonial power were to refuse to grant independence to the people under its domination, it would [not only be a violation of international law] vis-a-vis the colonial people at stake, but also vis-à-vis all [the other States and peoples]. Both issue of the nation for Poland and Slovakia, carry the idea that maybe there is territorial control by some state but there is people under which has legitimate idea to become a state. #### §10 : resolution 1514 (XV) \"The General Assembly \[\...\] solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations. And to this end Declares that: 1\. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, [is contrary] to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2\. All peoples [have the right] to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. **3**. Inadequacy of political, economic, social or educational preparedness should [never serve] as a pretext for [delaying independence]. 4\. All armed action or repressive measures of all kinds directed against [dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence], and the integrity of their national territory shall be respected. 5\. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. 6\. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7\. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.\" That declaration in this resolution, will be considered a creating a -n obligation for the colonial power to give independence to the colonials without delay. It will be recalls in 1970, in the resolution 2625 : principles of international law governing relationship between state. Art. 22 will be understood as being implemented through the right of self-determination. That right to become independent will be considered as an obligation ERGA OMNES. Portugal VS Australia / Iran Palestinian people this right is still to achieve. East Timor case : Timor is one of the island of the archipelago algo next to India, Portugal kept his colonies a long time (la revolution des oeillets) when it became democratic, the first thing that the new democratic authority is to give independence to the Portuguese colonies. Indonesia invaded this territory just after their independence of the Portuguese colonies. The rest of the world refuses. #### §11 : the chagos archipelago advisory opinion Paragraph 6 of Resolution 1514 (XV) (\"*Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.*\") was at the heart of an Advisory Opinion delivered by the International Court of Justice on the [*[Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965]*](https://courses.edx.org/asset-v1:LouvainX+Louv5x+3T2024+type@asset+block/169-20190225-ADV-01-00-EN.pdf). legal to separate the chagos archepalgo to Mauritius. The Advisory opinion was delivered some 60 years after the groundbreaking Resolution was adopted by the UN General Assembly and it contains important findings on the legal character of that Resolution. The factual background to this important Advisory opinion was the following: The Republic of Mauritius and the Chagos Archipelago are both located in the Indian Ocean. The main island of Mauritius is located about 900 km east of Madagascar and the Chagos Archipelago is about 2,200 km north-east of Mauritius. The largest island of the Chagos Archipelago is Diego Garcia. Mauritius was occupied by the Dutch from 1638 to 1710. However, the first colonial administration of Mauritius was established in 1715 by France which named it *Ile de France*. In 1810, the British captured *Ile de France* and renamed it Mauritius. After the defeat of Napoleon in 1814, France ceded Mauritius and all its dependencies to the United Kingdom by the Treaty of Paris. Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius. In accordance with General Assembly resolution 66 (I) of 14 December 1946, the United Kingdom as the administering Power regularly transmitted information to the General Assembly under Article 73 (e) of the Charter of the United Nations concerning Mauritius as a non-self-governing territory. The British reports to the UN included information about the Chagos islands which were referred as dependencies of Mauritius. It was thus uncontroversial that the Chagos Archipelago was part of the British colony of Mauritius. In 1964, in the midst of the Cold War, the United States expressed an interest in establishing military facilities on the island of Diego Garcia. The same year, the United Kingdom also commenced talks with the Premier of the colony of Mauritius regarding the detachment of the Chagos Archipelago from Mauritius. Talks between representatives of the colony of Mauritius and the United Kingdom Government led to the conclusion on 23 September 1965 of an agreement at Lancaster House. under that agreement, the representatives of Mauritius agreed in principle to the detachment of the Chagos Archipelago in exchange for, among other things, a sum of £3 million and the return of the archipelago to Mauritius when the need for the military facilities on the islands disappeared. On 8 November 1965, the United Kingdom established a new colony known as the British Indian Ocean Territory ("BIOT") consisting of the Chagos Archipelago, detached from Mauritius, and the Aldabra, Farquhar and Desroches islands, detached from Seychelles. Immediately thereafter, the UN General Assembly expressed its concern over the the detachment of certain islands from the territory of Mauritius for the purpose of establishing a military base and invited the "administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity". The UN General Assembly also recalled paragraph 6 of Resolution 1514 (XV). In December 1966, the United Kingdom and the United States concluded an \"Agreement concerning the Availability for Defence Purposes of the British Indian Ocean Territory." On 12 March 1968, Mauritius became an independent State and on 26 April 1968 was admitted to membership in the United Nations. Between 1967 and 1973, the entire population of the Chagos Archipelago was either prevented from returning or forcibly removed and prevented from returning by the United Kingdom. The main forcible removal of Diego Garcia's population took place in July and September 1971. By virtue of an agreement concluded between Mauritius and the United Kingdom on 4 September 1972, Mauritius accepted payment of the sum of £650,000 in full and final discharge of the United Kingdom's undertaking given in 1965 to meet the cost of resettlement of persons displaced from the Chagos Archipelago. On 7 July 1982, an agreement was concluded between the Governments of Mauritius and the United Kingdom, for the payment by the United Kingdom of the sum of £4 million on an *ex gratia *basis, with no admission of liability on the part of the United Kingdom, in full and final settlement of all claims whatsoever. In 2017, the UN General Assembly addressed to the Court a request for an Advisory Opinion on the following issues (see Week 7 on Advisory opinion proceedings) : *"(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;*\ *(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?"* In order to pronounce on Question (a), i.e. whether the process of decolonization of Mauritius was lawfully completed having regard to international law, the Court explained that it must determine, first, the relevant period of time for the purpose of identifying the applicable rules of international law and, secondly, the content of that law. The Court determined that the relevant period of time was between 1965 (i.e. the separation of the Chagos) and 1968 (i.e. the independence of Mauritius). In order to determine the content of the law applicable to decolonization during that period of time, the Court began by recalling that, having made respect for the principle of equal rights and self-determination of peoples one of the purposes of the United Nations, the Charter included provisions that would enable non-self-governing territories ultimately to govern themselves. The Court noted that the adoption of resolution 1514 (XV) represented a defining moment in the consolidation of State practice on decolonization. In the Court\'s view, there is a clear relationship between this resolution and the process of decolonization following its adoption. The Court added that resolution 1514 (XV) has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption. It also has a normative character, in so far as it affirms that "\[a\]ll peoples have the right to self-determination". The Court further observed that the nature and scope of the right to self-determination of peoples, including respect for the national unity and territorial integrity of a State or country, were reiterated in the *Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations *(Resolution 2625 (XXV)). By recognizing the right to self-determination as one of the "basic principles of international law", the *Declaration *confirmed its normative character under customary international law. The Court recalled that the right to self-determination of the people concerned is defined by reference to the entirety of a non-self-governing territory. Both State practice and *opinio juris* at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination. The Court considered that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power. It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination. In the Court's view, the law on self-determination constitutes the applicable international law during the period under consideration, namely between 1965 and 1968. The Court then turned to the question of whether the detachment of the Chagos Archipelago from Mauritius was carried out in accordance with international law. In particular, the Court considered that this detachment was [not] based on the free and genuine expression of the will of the people concerned. Therefore, the Court concluded that, as a result of the Chagos Archipelago's unlawful detachment and its incorporation into a new colony, known as the BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968. Concerning Question (b), the Court considered that the continued administration by the United Kingdom of the Chagos Archipelago constituted an internationally wrongful act of an ongoing character that the UK had an obligation to bring to an end as rapidly as possible. The Court also concluded that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius. Since respect for the right to self-determination is an obligation *erga omnes*, all States have a legal interest in protecting that right. UK had the obligation to return the chagos to Mauritius. In 2019, the court said that the separation of chagos and Mauritius was illegal to the international law at that times. They needed to respect the territorial integrity of the state. When the chagos separate to the colony. In 1955, there was for colonials power, there was a obligation to decolonize as a unit and the colonial power couldn't separate a territory because it's a territory as one all people. An advisory opinion it is the legally articulate opinion of the world court and says what the law requires. UK had been by far the most powerful colonial power. The war in Ukraine and Brexit and the UK is very much try on the world scene to establish itself as sovereign state and gain sympathy to the world. And then UK turn to African country to help them to tell that Russia goes against international law but African said that they did the same. So UK prime minister began to have negotiation with Mauritius to give them back the chagos. And Thursday 3^rd^, there had been an agreement between Mauritius and UK, the sovereignty of Mauritius over the Chagos Archipelago is accepted and recognize. The OPT advisory Opinion In July 2024, the International Court of Justice returned to some of the main legal issues analysed in this unit, addressing once again the situation of Israel and Palestine (as you may recall, the Court had already addressed that situation in the Wall Advisory Opinion of 2004, although focusing on the discrete issue of the construction of a wall in the West Bank by Israel -- see [[here]](https://learning.edx.org/course/course-v1:LouvainX+Louv5x+3T2024/block-v1:LouvainX+Louv5x+3T2024+type@sequential+block@1fe9889a2ad84991b06c29cf7169326b/block-v1:LouvainX+Louv5x+3T2024+type@vertical+block@b27b66d937844ba8b4405230d28a358f).) Called by the United Nations General Assembly to render an advisory opinion on the broader issue of the "Legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem" ([[UNGA Res. 77/247]](https://www.un.org/unispal/wp-content/uploads/2023/01/A.RES_.77.247_301222.pdf)), the Court found, inter alia, that: - Israel's continued presence in the Occupied Palestinian Territories, some of the laws enacted throughout the occupation, its settlement policies, and other measures and practices aimed at the annexation of those territories, were in breach of several rules of international law, including Article 3 of the [[International Convention on the Elimination of All Forms of Racial Discrimination]](https://treaties.un.org/doc/Treaties/1969/03/19690312%2008-49%20AM/Ch_IV_2p.pdf). - Such policies and practices had notably resulted in a prolonged breach of the **right to self-determination** of the Palestinian people, and particularly its right to (i) territorial integrity and "an independent and sovereign State, over the entirety of the Occupied Palestinian Territory", (ii) preserve the integrity of its people against forcible displacement, (ii) "exer

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