Public International Law - UCLouvain PDF

Marie Hanin UCLouvain 2023-2024 PUBLIC INTERNATIONAL LAW Pierre d’Argent Introduction to the course Section I. Housekeeping Three...

Marie Hanin UCLouvain 2023-2024 PUBLIC INTERNATIONAL LAW Pierre d’Argent Introduction to the course Section I. Housekeeping Three words are important : hear, read, and think. Hear refers to the oral courses/lectures. Read refers to the MOOC and documents in general. Think refers to the exam. We must dedicate (a LOT of) time to this course. Large part of the course is contained in the MOOC: doing it is NECESSARY. This year, the lectures will be used to introduce us to the content of the MOOC. In the MOOC, we’ll see videos, readings. It is based on case law : international law is very much case law oriented. Cases are concrete. Those facts will be articulated under specific rules of international law. The MOOC is divided between eight weeks. Some weeks are heavier than others. Section II. Supports - Mooc !! 80% des étudiants qui font bien le MOOC réussissent l’exam !! - Course - Moodle - Manuals Section III. Teacher Introduction of the teacher. Section IV. Exam. Examen en anglais et réponse en anglais ! Cours 100% en anglais (Il faut étudier la matière en anglais !) Il faut une connaissance passive et active en anglais. On peut avoir un dico (usuel pas juridique) + reading material ! 1 Marie Hanin UCLouvain 2023-2024 Chapter I. Introducing International Law Section I. International law and humanity The difference between Public and Private international Law is that Public International Law is about the members of International Community and their relations. Questions like “What is a state?”, “What an international organisation?”, … We are also a subject of international Law. We have rights and obligations under International Law (ex: war crime). Sometimes, domestical Law have properties under international law with the treaties. We are also going to talk a lot about the International Court of Justice (ICJ). That is currently very busy about the conflict in Ukraine and the constant provocation by Poutine and his willing to annex more and more territory. Russia has found an excuse in the fact that Ukraine was committing genocide and so Russia was acting on behalf of International Law (BULLSHIT). There is also the question about China delivering weapons to Russia that is going to be a great change in International Law history!! The ICJ has took actions and asked Poutine to stop. It didn’t impress him BUT Ukraine has ground to claim reparation because Russia is abusing the convention by using “prevent genocide” as excuse to invade Ukraine. That situation is an example of fail of International Law! Section II. International law around us As much as our daily lives are constantly influenced and shaped by rules of domestic law that go most of the time unnoticed, they are also increasingly influenced and shaped by rules of international law. At a time of globalization, this does not come as a surprise: the more we interact with each other, the more we need common rules to sustain that interaction and make it predictable. Law mediates between us and offers us a common ground for action. And the complexity resulting from interaction calls for more law. But what is that law that transcends national settings? How does it come to existence? How can it be upheld? What can be done when it is not respected? And also: when you look around and see how much international law is at the same time hypocritically invoked and constantly disregarded by governments, is it really law? Is it possible to have international law as law, or are international relations actually governed by nothing else but power and might? Would international law offer the best illustration of the well- known thought of Blaise Pascal, who famously wrote that "Unable to make what is just strong, we made what is strong just"? And where is justice in this world? Is not justice the purpose of any law? Those are the kind of questions we are going to try to answer in this course. Or, at least, the course will help I hope you to have a more informed and articulate view on those fundamental questions that 2 Marie Hanin UCLouvain 2023-2024 I just raised and that will be looming large throughout the course despite the fact that, as I started by recalling, we are actually surrounded by international law all the time. Section III. International law and its various names PUBLIC international law is an opposition to PRIVATE international law. Private international law is the law applicable to the relations between individuals and corporations when those relations are international, that is when those relations are not entirely located in one State. For exemple, private international law is at issue for instance when a Frenchman marries an Argentinian lady in Moscow, they settle and buy a flat in South Korea, have kids in Australia and finally divorce in South Africa. Private international law is sometimes called "conflict of laws" because it is about resolving the conflict between the various domestic laws and jurisdictions that could potentially apply in a case and choosing the right one. Public international law, or to make it short, international law, is sometimes called the Law of Nations. In Roman times, Roman law was applicable between the citizens of Rome, while the law applicable between the Roman Republic (or the Roman Empire) and the tribes and kingdoms of the rest of the world , that law was called "ius gentium". Jus gentium was common to both the Romans and the rest of the world. It was said to be common to both because it was said to derived from reason and was close to natural law. Jus gentium was human, whereas Jus civile was specific to a people: the Roman people. Today, international law is still referred to as "le droit des gens" in French, or Völkerrecht in German or Volkerrecht in Dutch, which are all translations of the old "jus gentium". International law may still be called by its Roman name today, and treaties between kingdoms, cities and empires may have existed for thousands of years in fact, one of the oldest recorded treaty is the peace treaty of Kadesh which had been contracted around 1259 BC between the Hittites and the Egyptians. However, the intellectual and structural foundation of international law as we know it today is more recent. Section IV. A brief history of International Law : a foundational moment International Law is man made and is so the product of history. Law is a social discipline, having an historical knowledge of the law is fundamental. It is usually considered that modern international law was born in 1648 out the peace treaties of Osnabruck and Munster. By those two treaties, an end was put to the Thirty Years war that raged within what was still considered in Europe as the Holy Roman Empire. Those are the treaties that brought peace to Europe. They also put an end to the Eighty years war between catholic Spain and reformed Netherlands, with Spain finally recognizing the independence of the Dutch law countries and the lutherian religion. 3 Marie Hanin UCLouvain 2023-2024 The reason for what is called the "peace of Westphalia" to be used as the starting point of modern international law is that the paradigm underlying the peace treaties was the equal sovereignty of States on their respective territories and without a higher authority above them. European nations had fought against each other for over Thirty years, and none had really won the war, which was largely fought along religious lines. States and nations were exhausted, new nations had been born and the basic social model that was used to bring peace to Europe was very simple: in order to live together in peace, States would live separately, each of them being sovereign on its own territory and equal to one another. The two important notions are sovereignty and equality. That is a new thing in the history of humanity. As a result, two higher authorities that had shaped European history for centuries lost much of their influence: - on the temporal side, the Emperor of the Holy Roman Empire; - on the spiritual side, the Pope. That basic structure is still with us! She has been expended from Europe to the rest of the world. The legal bounds of hierarchy, allegiance and authority that existed between the Emperor and the Pope on the one hand, and the European princes and monarchs, on the other, those bounds were definitively replaced by a new understanding of the relations between the kings and princes. That new understanding is based on equal sovereignty. As a result, the legal order stemming from such paradigm is repugnant to any higher law imposed from above on the various States. The model of equal sovereignty is a model of a liberal legal order where each polity adopts for itself its own laws and eventually contracts with other equal entities to create obligations between them. But none of them has the authority to impose obligations on the other or to command that other entity. If one should mentally or graphically represent such legal order, it would be characterized by its horizontality, its flatness as opposed to the verticality of an imperial legal order based on the hierarchy between the various legal subjects. International law is horizontal and decentralized. This basic structure of international law has not much changed over the centuries and it is still very much with us today. Article 2, paragraph 1, of the United Nations Charter proclaims that "The Organization is based on the principle of the sovereign equality of all its Members", while paragraph 7 protects what is called the "domestic jurisdiction" of States from outside interference. What is quite extraordinary is that if the composition and the concerns of the international community have of course radically changed over the centuries, nothing has so far fundamentally replaced the Westphalian legal model based on equal sovereignty. 4 Marie Hanin UCLouvain 2023-2024 Section V. From Westphalia to Versailles Born in Europe, the public law of Europe established by the peace of Westphalia spread around the world to become the fundamental paradigm of international law. In 1776, thirteen American colonies of the British crown seceded from it to become independent States. They created between them constitutional bounds within the American Republic, but they did not intend to change the fundamental paradigm of international relations and law. Latin- American colonies of Spain and Portugal followed suit a few decades later, and again the basic social structure remained the same: equal sovereignty of States. 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. In 1885, at the Congress of Berlin, European States shared and apportioned between them the African continent, extending to their colonial domination the logic of balance of power between them. That was a moment of expansion. And then, in 1914, the balance of powers proved its limits, failed to keep peace and Europe collectively committed suicide : the Great War raged for four long years only to leave the continent on its knees, both materially and spiritually. Centuries of progress, science and industrial development were turned into a terrible war machine. It was a total war, and the first international war in which citizens of all social classes, not only professional soldiers, were called to fight and die. The war ended because of the late involvement of the United States of America in the war, which tilted the stand-off in favour of the Allied and Associated powers. Germany was finally defeated, together with the Austrian-Hungarian Empire and the Ottoman Empire. 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. Furthermore, and for the first time in human history, an international organization was set up for the purpose of maintaining international peace and security. That organization was called the "League of Nations" and its Covenant was the first part of the peace treaty of Versailles. 5 Marie Hanin UCLouvain 2023-2024 Versailles was a defining moment in history and that is why he chose a painting representing the ceremony of the signature of the peace treaty as the banner for this course. The painting is by William Orpen and it is to be seen at the Imperial War Museum in London. However, when you think of it, Versailles was a very ambivalent moment for international law: it was a peace treaty and it embodied the hope that international law, notably through the establishment of the League of Nations, that international law could bring peace to the world. And, as we know, that hope, that promise of international law, dramatically failed only 20 years later. After the rejection of the peace treaty by the US Congress and the isolation in which Western powers had kept the young Soviet Union since the revolution of 1917, the League of Nations was born as a very weak organisation and it proved incapable of reacting to the challenges posed by fascist Italy, Imperial Japan and Nazi Germany in the 1930’s. The Soviet Union was never invited in the treaty of Versailles because they already had their own peace treaty with Germany. Soviet Union was one day a part of the league of nation but they were kicked out when they started a war with Finland. Furthermore, and despite presenting itself as an instrument of peace and justice between nations, and the beginning of a new era, the treaty of Versailles was also an instrument of continued domination, therefore pointing to the deep ambivalence of international law: it was of course an instrument of domination over Germany, but look around the table: you only see faces of white men, except for an Indian Maharajah as obedient servant of the British empire. True, if you look at the whole painting through the link that you will found after this video, you'll also see the representative of Japan represented on the painting. But that's it. That was the world, and the world order, in 1919. Of course, today, the face and the concerns of the international community have dramatically changed. But the ambivalence of international law both as a promise of peace and justice, and an instrument of domination, that ambivalence remains. That is why Versailles is so appropriate to illustrate this course. Section VI. From Versailles onwards From a legal point of view, the inter-war period was marked by another turning point, which added to the League of Nations' rules limiting the freedom of States to resort to the use of force to settle their disputes. Rules however that did not completely outlaw war as an instrument of national policy. 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. 6 Marie Hanin UCLouvain 2023-2024 About ten years later, however, international law bitterly proved its limits again. Poland was invaded by Nazi Germany on 1st September 1939 and Eastern Poland was invaded two weeks later by the Soviet Union. The Second World War began. It ended with the total victory over Germany, its occupation and division, as well as the division of Europe. Detached from any peace treaty, the Charter of the United Nations was signed in San Francisco on 26 June 1945 with- as the first sentence of the preamble emphatically stresses - with the determination and the very noble ambition "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind". →The purpose of the united nation is to create conditions so that justice and respect for international law can be maintain! 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. Quickly after the second World War, the Cold War divided the great victorious powers and paralysed the United Nations to a large extent. However, during the late 1950's and throughout the 1960's, one major achievement of the UN was to foster the decolonization of Asia and Africa. A new principle of international law emerged and it radically changed the face and the agenda of the international community: it is the right of peoples to self-determination, understood as the right of European colonies to become independent. Changing the face and concerns of the international community, but keeping the horizontal structure based on equal sovereignty of States. But then again, and despite the revolutionary aspect of the right to self-determination, the basic structure of international law did not change: colonies wanted to become what their former masters were, they wanted to become States. The fundamental paradigm of international law remained the equal sovereignty of States. In many places around the world, the decolonization was a bloody and messy process. Not only because some colonial powers were fiercely reluctant to relinquish their domination, but also because it allowed for the East and the West to fight wars by proxy in order to try to attract within their respective spheres of influence the newly born States. And then came some years of detente during which Washington and Moscow tried to accommodate their deep differences and eventually also to limit their respective arsenals. With the liberation of Nelson Mandela in February 1990, with the reunification of Germany a few months later and with the collapse of the Soviet Union in 1991, the cold war gradually came to an end and it opened an intensive era of cooperation between States. 7 Marie Hanin UCLouvain 2023-2024 When Iraq invaded Kuwait in August 1990, the UN Security Council stood together and acted jointly, proving a new resolve and opening a new era for the revival of the UN and for the development of international law. That was a revival of the UN and decade of multilateralism. But international law was not only a matter of peace and security in the narrow sense of the world: three fundamental issues -development, human rights and the protection of the environment - 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. Just to name a few of institutions and a few instruments that are based on the fundamental idea that coexistence and cooperation between nations are best served and achieved through the development of international law, and at the same time that sovereignty must be transcended in order to adequately address common challenges. So, despite terrible failures like the genocide in Srebrenica and in Rwanda, the end of the XXth century was marked by a deep sense of multilateralism and common purpose. 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. But coalitions also proved to have limits and more problems arose. Coalitions come and go, while institutions are resilient and their international law instruments remain. It is of course to soon to tell and nobody can read in the future, but, despite its pitfalls and its limits, international law remains one if not the only viable tool that can provide legitimacy for action in the world and foster coexistence and cooperation between States. Coexistence and cooperation. That is what International law is fundamentally about. 8 Marie Hanin UCLouvain 2023-2024 Coexistence and cooperation may sound very modest purposes compared to a prophetic agenda of peace and justice in the world, but what a difference coexistence and cooperation make and how essential they are in the pursuit of those higher ideals. Section VII. International law as a common language Law is all about domesticate politics. Law reflects a certain balance about power. When law is abused this is not law anymore, this is enhancing your power. Law is the product of history and power but the purpose of the law is both express power and write the history in advance. Same thing with domestic law. The reality changes because you conform with the law and this is why law is normative. Self-restrain is essential. We aspire to a world that conforms with the law and by expecting that we create the reality of tomorrow. One of the main reasons why international law is an instrument of coexistence and cooperation between States is because it provides them with a common language. States speak the language of international law. States (and peoples within States) may have very different and diverging political discourses, cultural references, economic priorities and spiritual understandings of life -- however, one if not the only normative language that brings them together is international law. States will always try to justify their actions in light of international law. Maybe those justifications will not be correct and their actions will be in breach of international law -- either because the facts do not match the law they invoke, or because their interpretation, understanding, of the law is wrong. But no State ever says publicly: "I very well know that what I am doing is in contradiction with international law, but I could not care less". Of course, any State would use a more diplomatic language to say that. However, States never say things like that in substance and in public. They will always try to give reasons for their actions, and reasons that make sense under international law. One thing is to say that you consider what you do to be politically good and desirable (but that is obvious and the other States will respond they simply are of a different view); another thing is to say that, additionally, it is legitimate under international law. From that moment onwards, the other States will be able to react and respond to the legal argument presented in support of the action they oppose (or agree with). International law will serve as a mediating language, a professional language of justification, and political intentions and goals will need to be phrased, using the language of international law. In that sense, (international) law domesticates politics. Read the following speeches by President Obama and President Putin and see how they both rely on international legal arguments to enhance the legitimacy of their respective policy: - Remarks by the U.S. President in Address to European Youth, Palais des Beaux Arts, Brussels, Belgium, March 26, 2014. - A Plea for Caution From Russia, What Putin Has to Say to Americans About Syria, Vladimir Putin, September 11, 2013 in the New York Times. 9 Marie Hanin UCLouvain 2023-2024 Section VIII. Course and structure Teach the fundamentals of international law. It is not about all the rules and all the institutions of international law, but about its basic principles and rules, its structural elements which explain that it can be considered indeed as a legal order. Having acquired that basic knowledge, you'll find it easier to learn by yourself some specific fields of international law, like human rights, international humanitarian law, investment law, law of the sea, etc. Week 2 will set the stage where international law is played and developed. By this, I mean that we are going to survey the actors and the subjects of international law. International law, like any law, is about relations between subjects. And it is therefore crucial to understand who makes law and on whom it is binding. Week 3-4 : After having paid attention to the "who" question, we'll turn to the "what" question and we'll address the making of international law. What is international law means what are the processes by which rules of international law come to existence. And this is an important, more technical, part of the course, and it is usually referred to as the issue of the sources of international law. Week 5: Then, we shall turn to the "how" question: knowing who makes international law and what it is, we are going to see how it is applied. The application of international law, which requires to understand, among other things, how international law is interpreted, and what is required to comply with international legal obligations, including in domestic law. Week 6 will also be dedicated to the “how” question, but turning to another issue: what happens when international obligations are not respected? How is it possible to claim responsibility for breaches of international law? Week 7 will be about seeking justice through international courts and tribunals. The pacific settlement of disputes, most notably through arbitration and through the law and procedure of the International Court of Justice, will be studied. But international criminal justice is also an important part of today’s international law and we’ll say a few things about it and about the international criminal court, before turning to issues of immunities before domestic courts. Week 8 : Addressing the rules relating to international peace and security -- i.e. all matters of war and peace, notably the rules relating to the use of force in international relations, and the powers and actions of the United Nations Security Council. 10 Marie Hanin UCLouvain 2023-2024 Chapter II. Setting the International Law Stage. Section I. Introduction Sous-section I. Illustration through news All the civilians of Nagorni-Karabac that are fleeing Azerbaijan with no response of the international community. The world makes blind eyes on the faith of those poor people. Sous-section II. Setting the Stage As we know and as we said last week, international law was invented by States, for States. Historically speaking, modern international law is based on sovereign equality of States. States are the masters and founders of international law. For many years, and many centuries (basically up to the beginning of the 20th century), the doctrine of international law was very firm on the idea that public international law only applied and could only apply between States. They were the only subjects of public international law. This view is purely abstract and artificial. As a matter of facts, it is true that, for centuries (between the Peace of Westphalia (1648) and the beginning of the 20th century), it was only States that were the subjects of international law. States were the only players/actors of international relations. But of course, social needs defeated this doctrinal idea that only States could be subjects of international law. There was of course in the word “international” this idea that international law was intrinsically linked to States. As we just said, it was wrong. In the course of time, States found necessary to create other subjects of international law: they established international organizations. They gave them some of their powers and competences. Those organizations will greatly contribute in international life. We establish a body through a treaty. We entrusted that body, which is separated from States themselves, with specific tasks. For example : the Rhin river Commission, entrusted with the task of managing the river. States made sure that security of navigation was discussed and managed. In the course of time and with the development of technology, the need to manage together certain areas of social life between States occurred. For example : Universal Postal Union (UPU). We have a single postal territory throughout the planet. Since 1875, there is an obligation for each postal operator to pass over letters. This territory exists without taxes, without borders. This requires coordination between States and is done through international organizations. We have hundreds of such international organizations today. They became part of the international community. Last week, we also mentioned the World Health Organization (WHO), and we know how much it was at the fore front of the pandemic, trying to manage it. We are going to study a specific 11 Marie Hanin UCLouvain 2023-2024 international organization : United Nations, which is on top of all the others because it is entrusted with the very essential tasks of peace and security between nations. In the course of time, States didn’t remain the only subjects of international law. They created those international organizations. Also, in the course of time, we’ve seen that individuals, human beings were also progressively considered as subjects of international law. Individuals have rights under international law, like international human rights. International treaties give us specific rights that we can claim as individuals before domestic courts, and sometimes before international courts. For example : claims before the European Court of Human Rights. Sous-section III. Personality under International Law MOOC: Being subject of international law is different than just be an actor of international law. Being subject means having a legal personality under international law. Having personality means having rights and obligations. That said, human beings are subjects of international law. For example, ISIS was undoubtedly an actor of international relations. It played and still plays a role in international relations. Another example, the Pope also plays a role in international relations. Those are actors of international law AND international relations. There is a distinction also between active and passive personality. Legal personality can vary to a great extend because the active personality of a state and the active personality of an international organisation are very different. In this course we are going to concentrate on the international organisations and the states but it doesn’t mean that they are the only subjects of international law. Of course, individuals, human beings aren’t the creators of those rights. We haven’t signed the treaties creating those rights. It is States that have the international legal personality. They are the creators of treaties and, therefore, international law. As individuals, we benefit from this international law instruments. We aren’t simply ignored by international law: at least, we’re passively subjects of international law. We have rights under international law, and obligations (this is a novelty from 1945- 1947 and the Nuremberg trial). We have obligations directly standing from international law. It imposes us certain obligations not to commit certain crimes prohibited under international law. We cannot say “oh, I was free to commit genocide because my country isn’t a party to the Genocide Convention” or “I was free to commit war crimes or crimes against humanity because my country wasn’t party to any of these international law instruments”. We cannot say that we’re subjects of domestic law and that, in our domestic law, this wasn’t prohibited. We are submit to this law no matter what. We are subjects of international law for that purpose : of course, we aren’t identical to States and don’t create international law. But we have specific rights and obligations created by States but directly addressed to us. We aren’t allowed to breach international law as individuals. The same goes for corporations. 12 Marie Hanin UCLouvain 2023-2024 Today, as we know and as a big debate politically nowadays, corporations work through bilateral investment treaties. Corporations can sue States before arbitrary tribunals when States have allegedly expropriated those corporations or when States have allegedly breached certain obligations that are ought to the corporations through those treaties. So, today, international legal personality should be understood as very much inclusive, not limited to States, nor international organizations, and including individuals and corporations. Who knows: maybe tomorrow international legal personality will be destined upon things of the world ? Like common goods, nature, trees, mountains, rivers, and more. This is already something that is sometimes changing in certain domestic jurisdictions and States. But each international organization isn’t the same as another international organization. They have specific responsibilities. And the personalities of States, international organizations and individuals under international law aren’t the same in extent and scope. This is an important thing to remember. As the prof said, once we have the international legal personality, that personality can be divided between two categories: - Active legal personality : Those who have the power to make international law, who have the capacity to conclude treaties from a formal point of view, to influence the content of international law as such (and not only by the side by lobbying and putting pressure). Today and so far, this active legal personality is the privilege of States and international organizations. For international organizations, it is for their own concerns, the object that they are entrusted with. We’ll see that : they have a special and limited capacity under international law. - Passive legal personality : It is the personality of individuals, corporations, maybe NGOs in a certain extent. By passive legal personality, we simply mean the fact that international law is addressed to them. They can rely on international law, but they don’t create its content from a formal point of view. They don’t conclude treaties. As we can see, there is a variety of degrees in international legal personality. It flows, and it is not black or white. This question is fundamentally political. It is a matter of the needs of the international community, the society where those subjects (active or passive) are living. Illustration : International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion, 11 April 1949. 13 Marie Hanin UCLouvain 2023-2024 A famous case was decided by the International Court of Justice in 1949, case concerning the killing by Israel of a United Nations envoy, a Swedish diplomat. He was hired by the United Nations and sent as envoy to Palestine to try to bring peace between the future State of Israel and Palestinian people. He was ambushed and killed with a French colonel. The killing was the result of a terrorist operation conducted by extremist Zionists, group of Jews that were very forceful in the revendication of the right of the Jews to have their own country. Note that one of this group became Prime minister of Israel later. The question put to the Court was whether the United Nations had the right to request an operation to Israel. The subjects of law in any legal system aren’t necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout History, the development of international law has been influenced by the requirements of international life. So, in this case, the right, the nature,… of the United Nations towards Israel depends of the needs in international relations. This is where international relations and law meet. So, yes : international law is different from international relations. But the question of personality under international law very much depends on the needs of the community. By “community” we mean the international community. We see that it isn’t something set in stone and decided once and for all. It is evolving according to the needs of the community, the social needs. We must keep that in mind : law is a social phenomenon. Law is about regulating relations between subjects, and only about relations. Subjectivity under the law stems (découler) 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. We will concentrate on the two main subjects of international law having an active legal personality : 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. Concentrating our attention on States and international organizations does not mean that they are the only subjects of international law. 14 Marie Hanin UCLouvain 2023-2024 Section II. States Sous-section I. The elements of Statehood States are central in the international law. They have created it and it has been created for them. But what is a state under international law? The State is that public entity in which human beings are born and live throughout their life. Each State is distinct from each other. International law is difficult because international community is diverse. International community is diverse because we have many States. Those elements have been codified in a Convention in Montevideo in 1933. There are 3 elements that characterise a state: A territory, a population and an effective government. But we can also quote “the capacity to enter in relation with other states”, it can be considered as an extern effect of an effective government. This is those elements that distinguishes States from international organizations, … 1. Territory: States only exists at land (they can extend at sea) because human beings live on land. A territory is a portion of earth, of this planet. It leads to a question: states are going to be submerge with the climate change, are those states going to disappear? Illustration : The Sealand case There was a famous case before the German constitutional court for taxes in Germany about the territory of Sealand. It was about a rich German who decided to live on a platform in the North Sea, platform that was previously used during the Second World War. He said to Germany “go to hell, I’m not paying taxes to Germany anymore, I’m sovereign of Sealand, a State”. We could say that it is clever. But not so clever, according to the court seized. Why ? It is not a State and cannot be a State. To be a State, you need to be sovereign over a portion of the land mass, a NATURAL land mass on the planet. An artificial platform at sea isn’t land, it isn’t and cannot be a territory according to the meaning of international law. This land mass will be appropriated by the State to the exclusion of any other State. This is a fundamental idea about territorial sovereignty. It was set out by Max Huber, a Swiss jurist, in a famous case between United States and Philippines about the island of Palmas. We’ll come to that case later. About the territory, what matters is the control of this territory. Many disputes exist about tittle of a territory and the determination of boundaries. It is important the realise that the concept of state sovereignty is intrinsically linked to territory, so much that “territorial sovereignty” is key to statehood. Illustration : Island of Palmas case (United States v. Philippines) – First look In that case, territorial sovereignty was defined in terms of exclusion : you are sovereign because you are the only one to control that portion of territory and to exercise, on that portion of land 15 Marie Hanin UCLouvain 2023-2024 mass, the functions of the State. This is what sovereignty means : exclusive control over that portion of the land mass. That portion is to be considered as our territory because there are no other States exercising State functions over that territory but us. In 1928, in an arbitration between The Netherlands and the United States about the sovereignty over the Island of Palmas (also called Miangas, situated in the Pacific Ocean South of the Philippines and North of Indonesia), Max Huber acting as sole arbitrator in the case, famously wrote that: Max Hubert 2. Population: There is no state without population and the population must live on the ground. 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. For example : Antarctica, which is a land mass covered by snow, is a land. But there is no one living there. We’ll come back to its regime. As such, it defies criteria for Statehood. That huge continent isn’t populated by human beings. Of course, there are some scientists who go and live there for a certain period, but this isn’t a population (human beings living there, born there, having their own life there and dying there). Population may move around : there can be nomadic tribes. But they are there and there is a certain number of them. 3. An effective and independent government: Third, an effective and independent government. The population living on the territory must be socially organized. That effectively enforce the international obligations of the state on the territory and the population. That population living on that territory is governed by a public authority, which is set to be effective and independent. Again, that’s the idea of sovereignty : we are to the exclusion of anybody else. We are the only government, the only public authority exercising the functions of the State on that territory on the people living on that territory. By effective and independent, as we said, the Montevideo Convention includes the capacity to enter in international relations, but what matters in the point of view of international law is the capacity to make international law effective on that territory. We govern the territory for international law because we’re capable of implementing our international obligations on the territory. We do that as a public authority to the exclusion of any other public authority on that territory. 16 Marie Hanin UCLouvain 2023-2024 To be “independent”, they must not obey orders from outside and must act in an autonomous way. They are free to chose whatever form of government they want: a republic, a monarchy, a federal state, … International law prohibit outside interference in the “domestic affairs” of states. More and more states agree in treaties to have democratic form of government and to respect some fundamental political freedom. They are more contracted at a regional level than at a universal one. 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. Treaty limitations: The basic rule/principle is that once we have those three elements, we can say that we have a State. The State, because it is independent and sovereign according to international law, may govern itself as it wishes. There is no requirement under classical international law for the State to be democratic, or to be a good government, or to be corrupted, or to respect human rights. Things have however changed, and now we have treaties by which States bind themselves to be respectful of human rights, to be democratic. Those obligations are of course binding on the respective States. This is because they agreed with a treaty to limit their freedom to organize themselves as they wish. Without such treaties, it is difficult to say that we cannot be a State without a democratic government. If that were the rule in international law, we can imagine how screwed the world would be. We’ll come back to the question of freedom of States to govern themselves as they wish, without interference nor limitations by international law. Constitutive elements or criteria of identification? First, what is the difference between existence and identification ? If we say that those criteria are constitutive of the State, it means that if one element is missing, we do not have a State. If the government disappears and if that government is a constitutive element of the State, it will mean that the State also disappears. It is an essential element without which we have no State. A state does not disappear if one of those elements is missing (ex: Germany) so it is better to view them as a criteria for the identification of states. 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". Being a state without being recognized by the international community is meaningless. So, they are there to identify the State, and that is how it should be understood. The birth of State, how State comes to existence, is a factual matter, a factual process. This factual process takes place in the surrounding where States already exist. New States don’t come to existence in a vacuum : they come into existence like human beings, they are born into the society. There was a world before us, there will be a world after us. The same goes for States. Sous-section II. State recognition State recognition can be used when a new state emerge in the international community. But it can be used only ones in the relation with the entity concerned. Sometimes, the recognition is prohibited. 17 Marie Hanin UCLouvain 2023-2024 For example : Catalonia declared independence ; Kosovo declare independence ; the United States declared independence in 1776 from the British crown, which was a new thing for the rest of the world. The recognition is discretionary. State recognition is a discretionary act in the sense that there is no obligation or duty to recognize a new State as a State. 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 conditions or commitments that the new State is called to do. It’s a single political gun. Forms of recognition: it can be explicit or result from other acts (be implied). State recognition is a discretionary act that is most often explicit and made public by an official declaration. State recognition is also declaratory. Sometimes recognition results from other acts !! contracting a treaty with a state doesn’t mean that the 2 states recognize each other!! The only act the necessarily entails tacit and mutual recognition is the establishment of diplomatic relations. If you establish diplomatic relation it means you recognize each other because they only exist between states. State recognition is a unilateral act from one state to another. It happens that states consult each other but a recognition is never collective. Ex: If UN recognizes a state, it does not mean that all the states members of UN recognize that state. Sometimes it leads to unreal situations. Ex: 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. State recognition has no specific legal effect. When the state is being recognized it somehow frails BUT in order to be recognized the entity should be a new and already existing State BUT the recognition will gradually reinforce its status as a state. Recognition will not make statehood but it will reinforce it. If recognition also entails some constitutive effects in the sens that it establishes a constitutive relationship between recognizing state and recognized entity. That is consolidatinf of factual effectivity. The status of an entity recognized by some states and not others depends on the point of view and on the willing of recognizing states. Recognition can be a way to deny a political legitimacy. Ex: Some arabic states still refuses to recognize Israel as a State. A treaty does not implies recognition but it’s not easy to make political relations with an entity that is not a state. And of course, in a decentralized system, this issue of who is a new State is of paramount importance. Some States are very relaxed about secessions, while others are extremely nervous about secession. The question we shall turn to next is the following : to what extent that State prerogative to recognize has limits ? Are there certain circumstances where States are prohibited from recognizing new States or recognizing a factual situation as legal ? In other words, are there some situations where States have the obligation NOT to recognize ? Are there situations in which becoming a State is an entitlement, a right ? Not simply a fact, but a right under international law. 18 Marie Hanin UCLouvain 2023-2024 Illustration : The only collective States’ recognition in history : Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union” (16 December 1991) In the course of history, we have one example where States have acted together. Instead of each of them recognizing (for their own benefits) the new-born States, they put together their will and have made their recognition conditional on certain criteria. This is what is called the “concerted recognition”. In 1991, the 12 members of the European Economic community decided that they maybe should act together considering the events in the USSR, in the Balkans, in Czechoslovakia. They wanted to speak with a single voice to be heard. They didn’t want to do contradicting things. They sit down together and decide, on certain conditions, for all respective individuals’ recognition. So, it is not European Economic community recognizing those new States, it is the member States of the communities sitting together within the communities and agreeing among themselves that each of them will be entitled to recognize the new States coming from the collapse of USSR, Yugoslavia, Czechoslovakia, provided that certain conditions are met. They were sending jointly a signal to the new States. If they want to be States and be considered as States by the European Economic community, they must behave decently according to some criteria. These criteria are very generous, based on good purposes, a conception of public order in Europe : respect of human rights, respect of existing borders, limitation of nuclear weapons, etc. So those States of European Economic community acting together with a political declaration, they politically agreed among themselves to conditions to recognitions under certain criteria that would need to be met by New States in order, for them, to be individually recognized by each of the 12 States of the community. The specificity of that effort was also to put in place a procedure. We see how legal we are in Europe : we set a procedure to check whether those criteria set out in the guidelines were met or not. The procedure was called an “Arbitral Commission”. In fact, it wasn’t even an arbitral commission : it did not have to arbitrate between contesting States. It was an advisory body made up of presidents of several supreme courts’ judges. It was called the “Commission Badinter”, following the name of the Constitutional Council in France and former Minister of Justice, Robert Badinter. That commission had to certify whether those conditions were met or not by each of the new States. That sounds great on paper. The only problem that arose is the following : they were not so much joint in their effort. Germany felt the need to quickly recognize Croatia (before the Commission) for matter of security and borders. As a result, the other member States followed the suit and concerted recognition wasn’t that much concerted at the end of the day. But the effort to do that together was remarkable and is also quite telling that it failed to a certain intent. It brings us back to this fundamental tenet (principle) of international law which is sovereignty. It is in the hands of existing States to decide if new States exist or not. It is for each of the existing States to do so. That is an attribute of sovereignty. 19 Marie Hanin UCLouvain 2023-2024 Sous-section III. Obligation not to recognize. Are there certain situations in which States may not recognize what appears to be a State ? As in many cases, this question in international law finds an answer in the history in international. §I. The Stimson doctrine Illustration : Japan invasion of China – the Manchukuo State (1932) After the terrorist attack on the trainline by Chinese group against Japan citizens, Japan invaded the North Eastern part of China. Instead of simply annexing that territory as part of Japan, it puts in place a puppet regime that declared its independence from China, the so-called State of “Manchukuo”. Manchukuo was governed by a government made of Chinese people. Those persons were taking their orders from Tokyo, and the Japanese army was on the ground. That situation gave rise to huge international tensions, of course, and this situation proved that the League of Nations was extremely weak. Why ? This was a situation where one member State was invaded by another member State, and where this member State put in place a puppet regime and created a new State, Manchukuo. The League of Nations was unable to react to that. The United States, as we may remember, was the inventor of that League. Conceptually, it was an idea of President Wilson after the First World War. But the United States Congress always declined to ratify the Peace Treaty of Versailles. We remember that the first part of this treaty contained the League of Nations covenant. The United States weren’t therefore part of the covenant. That also explains why the League of Nations was such a weak international organization. Despite being outside the League of Nations, the United States nevertheless considered that such an event and the creation (in those conditions) of a new State couldn’t be accepted/recognized by the other States. The democratic secretary of State of the United States, Henry Stimson, made it the policy of the United States not to recognize Manchukuo, the so-called new State created because of an illegal use of force by Japan. The idea was that this illegal use of force couldn’t be admitted by the rest of the international community, by the other States. Therefore, Stimson said to the other governments that the United States won’t recognize the “fait accompli”, and they urge them to do the same to minimize and rebut the expansion policy of Japan in China. Stimson Doctrine → A lawfull situation cannot derive frome a grave breach of law. From that practice, an obligation not to recognize came into existence in customary international law. We don’t know yet really what is customary law : we’re going to talk about it when we’ll talk about sources of international law. But we realize that customs arise from some practice and from a specific legal opinion. We do it because we think that we must do it. We do not recognize because we think that we may not recognize. This gave rise to a new rule of international law, prohibiting the recognition of a new State or a situation that arises out of a grave beach of international law. 20 Marie Hanin UCLouvain 2023-2024 What must be understood is that this event happened in 1932 : it already was a grave breach of international law, an aggression. It was a new rule of international law not used with the covenant of the League of Nations, but with the Treaty of Paris (1928, the Pact Briand-Kellogg) between France and the United States by which the two States accepted not to resort to the use of force to settle their disputes. It is a very important treaty in the history of international law. It is the treaty by which war, as an instrument of foreign policy, was made illegal. And Japan joined that treaty on an identical Asian treaty. So, a new rule had come to existence by which States promise that they won’t use force to settle their dispute. They will relinquish war as an instrument of foreign policy. It may sound astonishing to us that this obligation under international law only came about 1928. Illustration : The obligation not to recognize in the USSR context – Baltic States This obligation has been appealed in international practice in 1940. After the beginning of the Second World War, the three Baltic States (Estonia, Lithuania, and Latvia) were annexed by the USSR and incorporated in its territory. Of course, these territories were invaded by Nazi Germany also and, at the end of the war in 1945, they were occupied and fully incorporated in the Soviet Republic. Between 1940 and 1991, the Western countries of Europe, the United States, and a few other countries around the world (including States in Latin America) refused to recognize the annexation of the Baltic States within the USSR. When the three Baltic States regained their independence in 1991 with the collapsing of USSR, we didn’t recognize those States once again. Why ? We remember that recognition is a single bullet gun : we welcomed the recovery of their independence. But for us, those three States continued to exist during that period. For more than 51 years, those States (which had been in fact “killed”, because they were completely incorporated in the USSR) were considered by the international community as remaining alive. Their sovereignty was sleeping. We see how the temporality of States is very different from the temporality of human beings. Between 1940 and the 1960s, they were still depending on their age: ambassadors from those three States were recognized as such, admitting them as parties. They were treated as ambassadors. The USSR protested, saying that they represent nothing. But the other States said the opposite. At the end of the day, it wasn’t wrong to treat them like ambassadors because, at some point, USSR collapsed, and these States regained their territorial sovereignty and effectivity. So, this practice of non-recognition exists in the practice of State and is based on this basic legal idea of “ex injuria jus non oritur”. From an illegal breach, something legal cannot arise. This practice was also being implied and recognized by the ICJ in two advisory opinions. Illustration : International Court of Justice (advisory opinion), Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 21 June 1971 The first one is an advisory opinion from 1971 concerning the continued occupation by South Africa of the territory of Namibia. Namibia was a German colony. The Treaty of Versailles imposed to Germany to relinquish all its colony. Germany had to get out of Africa, and Namibia 21 Marie Hanin UCLouvain 2023-2024 was one of those territories previously colonized (like Cameroon, Rwanda, Burundi, and other countries). Namibia was therefore put under the League of Nations mandate system. The League created a mandate system for the former German colonies. They were hanging over to the victorious powers. We remember that Belgium had a mandate on Rwanda and Burundi. The mandate of Namibia was given to South Africa. South Africa became a racist State, with the politics of apartheid. The white government would exercise racial discriminations against the black majority. This was then firmly condemned by the United Nations. We remember that the first United Nations human rights treaties concerned racial discriminations. Because South Africa had a racist government and because it exported its apartheid to Namibia, the United Nations concluded that South Africa didn’t deserve to be a mandatory power. There was a switch from the mandate system to a trust system with the United Nations, and of course the League of Nations disappeared in the meantime where the responsibilities of the League were taken over by the United Nations. The mandate was terminated by the United Nations. After that termination, the Security Council said that South Africa had to leave the territory of Namibia. South Africa refused. The Security Council turned to the International Court of Justice and requested the Court to give a legal opinion on the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970, resolution by which the presence of South Africa in Namibia was made illegal). The Court came with the idea that one of the legal consequences was an obligation for other States to recognize the illegality and the invalidity of South Africa presence in Namibia. The obligation not to recognize was therefore slightly different. It wasn’t an obligation not to recognize : The Court said that States have a positive obligation to recognize the illegality. Not recognizing is one thing, and recognizing the illegality is something different. The Court phrased a positive obligation instead of a negative obligation. We go a little further. Of course, it can be explained by the fact that, by the time of 1970, States had relations with South Africa concerning Namibia. The Court said that States had to stop those relations and recognize the illegality of South Africa presence in Namibia. This practice supposes the idea that certain situations because they are gravely in violation of international law, must be resisted/condemned and not recognized by other States. It is a sort of solidarity between States, a fundamental element of solidarity. Some egregious breaches cannot be accepted. Illustration : International Court of Justice (advisory opinion), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004 The same goes for the advisory opinion concerning the construction of a wall in the occupied Palestinian territory, delivered by the ICJ in 2004. In that case, the General Assembly requested from the Court to give a legal opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory. Then, the Court spoke the language of an obligation not to recognize the illegal situation. States have an obligation not to recognize. It means that, if they do recognize, they are in breach of 22 Marie Hanin UCLouvain 2023-2024 international law. Again, the underlined rule, which is breached by Israel in this case, is a fundamental norm of international law : the right of peoples to self-determination. In the case of South Africa, it was the expansion of a racist regime and, at the same time, a violation of the right to self-determination, a breach of what the Court interpreted to be the right of colonial peoples to self-determination. Those elements of practice gave rise to this obligation not to recognize situations that are gravely injurious and in breach of international law. International law has made it one of its fundamental laws. In several occasions, the Security Council of the United Nations ordered member States not to recognize certain situations. Of course, this is on support of a customary rule of non-recognition. When the Security Council takes a binding decision by which member States are obliged under United Nations law not to recognize, we can see that there is a sacred legal ground/act, a resolution of the United Nations Security Council. Once we have such a resolution, we don’t have to ask ourselves whether under customary international law, member States may or may not recognize. The resolution exists and is prohibiting recognition. We’ll see the powers of the Security Council later in the course. Illustration : Independence of Southern Rhodesia (Zimbabwe) from Great Britain (1965) The Council has done that concerning Southern Rhodesia (now Zimbabwe). It’s a situation where a British colony was taken over by the white minority. It declared its independence form the Brits and intended to do like South Africa : to put a racist regime. It happened during the Cold War, when the tensions were high between the East and the West. Nevertheless, USSR and the United States were able to agree. That declaration of independence was considered by the Security Council and could not be accepted. The British government was very much in favor of that resolution because they were hosted as a colonial power by a white minority and were prepared to decolonize (as it should normally have been done) by consulting all the people (the white minority AND the black majority). This declaration was condemned by two resolution of the United Nations Security Council : The Security Council said that no member State of the United Nations may recognize this situation. Illustration : Independence of Turkish Republic of Northern Cyprus (1974) The same went with the declaration of independence of the Turkish Republic of Northern Cyprus. This is a situation that happened in 1974, but this is still today a problem. The island of Cyprus is still divided. Why ? Turkey sent its troops in support of the Turkish minority in Cyprus. There was a short civil war, and the Turkish army intervened in support of the Turkish Northern part of the island. There is a buffer zone now between the two. We know that it is a member State of the United Nations, which is still not reunited. The only country in the world that recognizes the so-called Turkish Republic of Northern Cyprus is Turkey. That’s logic : they did the same that Japan has done. They invaded a country, took a bit of territory, and put in place a regime. The UN Security Council adopted a resolution obliging States not to recognize the declaration of independence. Why ? Because that declaration of independence flowed from an illegal act : the Turkish invasion. And we’ll turn to the question of the legality or illegality of unilateral secession. We have to pay attention to the facts. Illustration : Invasion of Kuwait by Iraq (1990) 23 Marie Hanin UCLouvain 2023-2024 Kuwait was invaded by Iraq on 7th August 1990. Iraq declared Kuwait the eleventh province of Iraq. It intended to annexe Kuwait as its own territory. Again, the United Nations Security Council told to the member States that it is illegal, and they may not recognize the situation. Illustration : Independence of Republika Srpska (1992) In 1992, there was a war in Bosnia (complicated situation). Bosnia Herzegovina was subject of a very nasty civil war and international war at the same time because there was interventions of Croatia and Serbia, two neighbors States. Serbia supported the creation of a so-called Republika Srpska, the Republic of the Serbs. They declared its independence from Bosnia Herzegovina, and not by Serbia. This declaration of independence was only possible because of grave crimes committed by the Serbs through ethnic cleansing and the genocide in Srebrenica. Again, the declaration of independence in that case is the result of grave breaches of international law. So, we have a body of practice that clearly establishes that rule. It has been codified by an instrument to which we’ll refer time and time again throughout the course : The Articles adopted by the International Law Commission (a body of experts in the United Nations codifying the words of international law) concerning the Responsibility of States for Internationally Wrongful Acts (ARSIWA). At its art 41 §2, we have that obligation not to recognize in case of grave breach of peremptory norm (ius cogens) of international law. Art 41 §2 Articles concerning the Responsibility of States for Internationally Wrongful Acts : “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation”. For now, let’s understand that, under the rules of States responsibility, there is an obligation not to recognize situations resulting of great breaches of fundamental norms of international law. If we breach that obligation, we’re responsible. This obligation is imposed to all States. Why ? Because the norms that have been breached are of fundamental importance for the international community. We see that, despite the fact that we’re in an international community in which each State is sovereign, there are certain situations in which States may not play the game according to their own interest. There are certain situations in which international law tells States that their politics are predetermined by rules of international law. States haven’t the choice to take the benefits for themselves of a gravely illegal situation. States cannot pursue their own interests when it flies in the face of fundamental norms of international law. And we see how international law puts a limit to the ideas of politicians, to politics. And this is what law is about : making politics more civilized. Some things cannot be done. This obligation is therefore fundamental. Sous-section V. Is unilateral secession prohibited? When a new state is recognized by the mother state it’s more often quickly accepted by the international community as a state. Example: South-Sudan. But throughout history, many new states came to exist as a result of unilateral acts of secession. 24 Marie Hanin UCLouvain 2023-2024 Is it always the case that declaring independence is a violation of international law? Is it not always the case that, when an entity declares independence from a State, it breaches the territorial sovereignty and integrity of that State? Isn’t it illegal to try to change the borders of a State? If that’s the case, then every declaration of independence entails a grave breach of international law and shouldn’t be recognized. Then new States may not exist. Is there a general prohibition under international law to declare independence? At the end, is unilateral secession prohibited? For example, when Catalonia declares its independence, it is for the purpose of taking away a part of Spain, changing the borders of Spain as a State. When we speak about unilateral secession, we immediately understand that, when secession is agreed by all parties, it is not an issue. (But about a unilateral act, international law remain silent while domestic law is most of the time against. ) For example : when Eritrea and Ethiopia decided, after years of fighting, that the best way to bring peace is to live separately (1948), they sit around the table and had a peace treaty. Eritrea, province of Ethiopia at this time, became an independent State. It is fine : this isn’t unilateral secession. Another example, likewise, another situation with a long and nasty war, the case of South Sudan, which is a new State. For decades, there also was a war in the southern part of Sudan. Finally, they agreed to live separately. This isn’t unilateral secession : it has been agreed. The same didn’t happen in Catalonia : Spain didn’t agree with its independence. The British parliament was really relaxed about Scottish independence and getting a referendum : Scotland got independent. Note that there are sensitivities all around the world. There are a few States in the world that are relaxed about secession. On the other hand, some States are extremely nervous about it (like Spain). We’ll now talk about those unilateral secessions, secessions that aren’t agreed between the “Mother State” (the State from which independence is made) and the new State. There was one legal opinion, and a situation : the situation of Kosovo. Kosovo declared its independence from Serbia after the war in Kosovo, after international presence there, and a United Nations resolution. Illustration : International Court of Justice (advisory opinion), Accordance with international law of the unilateral declaration of independence in respect Kosovo, 22 July 2010 Kosovo declared its independence from Serbia after a political process by which it was clearly impossible to reach an agreement between the parties. The Kosovars wanted independence and nothing less. The Serbs wanted territorial integrity and nothing else. They were ready to give some autonomy to Kosovo, but not that much. After years and years of negotiation, the United Nations envoy in Kosovo, a Finnish diplomat, said that there was no agreement possible. Then, Kosovo declared independence. The rest of the world was faced with a question : do they recognize or not Kosovo as a State ? Kosovo wasn’t the result of an ingregious breach of international law, like in the previous examples. On the contrary, Kosovars have been victims 25 Marie Hanin UCLouvain 2023-2024 of ethnical cleansing and crimes perpetrated by the Serbs. It was therefore a remedial secession. There was no other possibility and no going back in Serbia. The General Assembly of the United Nations brought to the International Court of Justice the question whether the secession through this unilateral declaration of independence of Kosovo was in conformity/accordance with international law or not. The main argument of Serbia was to say of course it is not, because it gravely breaches territorial sovereignty of Serbia. They want to take the province of Kosovo, which is in violation of international law according to art 2 §4 of the United Nations Charter, protecting territorial sovereignty of States. What was the answer of the Court ? The Court said that the territorial integrity of State was a duty between States. It is an obligation that is ought State to State. By definition, the declaration of independence has been done by something that isn’t a State yet. At that moment, how could it breach an obligation, the respect of which exists between States only ? The Court came with the conclusion that, under general international law, there is no general law prohibiting unilateral secession. When the proceedings before the International Court of Justice began, there was a famous professor of international law teaching at Cambridge, James Crawford. He spoke in the name of Australia and declared the independence of Southern Australia. Did he breach a rule of international law? Who are the people making those declarations ? It is representatives of the people. They aren’t the government of a State yet. When they do that declaration at that moment, they aren’t the government of a State, because the State doesn’t exist yet as such. It exists AFTER the declaration. When the declaration is only MADE, the people isn’t bound to respect territorial integrity of Serbia, precisely because territorial integrity is required from State to State. Art. 2, §4 of the Chart of the UN is an article that applies between EXISTING states! So, it does not concern independence. So secession is not prohibited in international law. In other words, a becoming state is not yet bound by the duty to respect their respective territorial integrity. Such duty becomes binding on the new state once it has become a state so after the declaration of independence if such a declaration is successful. Did Catalonia breach a rule of international law by declaring itself independent ? NO. Did they breach Spanish constitutional and criminal laws ? YES. We therefore have to distinguish. Of course, Spain will say it is illegal : it protects its own rules of domestic law. And it will be illegal under Spanish law. But it isn’t illegal under international law, as long as this declaration isn’t the result of grave breaches of international law (ethnical cleansing, crimes against humanity, illegal annexation, etc.). So, the Court came with that answer : there is no general prohibition to declare independence under international law. When we think about it, it’s quite a clever outcome : if there were rules of international law prohibiting parts of countries declaring independence, it would mean that, for the rest human history, that human history is written in advance. There would be no changes of political situation. It is still very hard to become a new State, and after the experiment of Catalonia, some other European regions will think twice before declaring independence. Catalan people always said that they want to become independent but remain in the European Union. And what did the European Union do? It 26 Marie Hanin UCLouvain 2023-2024 teams up with Spain. It is then pretty hard, as a region, to unilaterally declare independence when we’re in the European Union. For example : however, there would be no breach of international law if Flemish people declared itself independent. There would be a breach of Belgian constitutional and criminal laws, but that’s it. It does not mean that unilateral secession is always in conformity with international law! Sometimes, it stems from other grave breaches of international law like an illegal use of force by another state helping the secession. Example: Turkish republic with northern Cyprus. In this case, secession is the result of the breaches, secession would not have existed without those breaches. Therefore, it constitutes an illegal situation. Sous-section VI. When is unilateral secession a right ? – Prolegomena Are there situations where unilateral secession is profoundly legal, where the new State have the right to become a State ? It is clearly the question of the entitlement to become of State that we’re addressing here, and not the freedom of becoming a State. There’s a freedom to become a State for every collectivity provided that, because there is no general rule prohibiting that, without committing grave crimes. This absence of the right to do a certain thing does not mean that doing such thing would be prohibited. Right >< freedom to become a state. There is undoubtedly a right for people to self-determination in favor to… “Non-self-governing territories and people subject to alien subjugation, domination and exploitation.” §I. Historical perspective 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 WW1. During this event, we had the Austrian-Hungarian Empire, a huge empire and territory, with a lot of nationalities and minorities. The Western powers were the enemies of that Empire. It was in the 27 Marie Hanin UCLouvain 2023-2024 interests of these States to divide and rule. A great way to do politics is to divide and rule, create troubles. We recognize the peoples of Czechoslovakia and Poland. We recognize them as nations that were engaged in the war with us. Neither Czechoslovakia or Poland was independent : there were parts of that huge Empire, and also of the German Empire. Poland was divided between different countries at the time, and wasn’t independent for 123 years, until the Peace Treaty of Versailles. By recognizing those nations, as cobelligerents, we invited them at the table when the peace treaty was signed. They were nations fighting by the side of Western powers and may become States now. Somehow, these nations were promised to become States. And there were nationalist movements in those nations. People hoped to become a State, to be allowed to separate themselves from the central empires. This recognition was made in the name of “principle of nationalities” according to which each people making a “nation” had the right to become a state. And by the end of the war, the peace treaty of 1919 dismantled the empire and replaced it with several states. By designating nations/peoples having the right to become a State, we already create this idea according to which certain peoples are endowed/entrusted with a specific right to become independent. §II. Covenant of the League of Nations and mandate system In the Covenant of the League of Nations, as we explained, Germany had to give away its colonies. The German colonies were put under the mandate system created by the League. That mandate system was divided between Mandates A, B or C. In a very Eurocentric way, we considered that the peoples concerned were well-developed (A), more or less developed (B) or “savages” (C). The League of Nations would supervise those mandates. The mandatory powers will receive a mandate from the League and would act on the ground to the “benefit of the people”. This is the article 22 of the Covenant of the League, by which the mandate system was establish and by which the mandatory powers receiving the mandate of looking after the “well-being and development” of those “peoples” received the “sacred trust of civilization”. It was their duty to “increase the civilization”, or the “civilized character” of the peoples concerned. It was to the “benefit” of these peoples, in an extreme imperious way. Generations of Europeans have believed that and acted in good faith. This is called paternalism and colonialism. From a formal point of view, it wasn’t considered as colonialism, because of that idea of mandate. A power was entrusted with a duty. And again, the mandate system was based on the idea that those peoples from the old German colonies were an entity, having the “right to be civilized” by the mandatory powers. In the South-West Africa, in Namibia, the International Court of Justice will interpret the article 22 of the League Covenant (1970) and will say that the sacred trust of civilization meant that those 28 Marie Hanin UCLouvain 2023-2024 peoples had the right to become independent. The mandatory powers had the obligation to bring those peoples to independence. Before the Second World War, we already have some instances where you could identify nations/ peoples with a certain right to become a State. That, of course, was pronounced and reinforced through the United Nations. Sous-section VII. When is unilateral secession a right? – Self-determination of peoples Trusteeship system of the United Nations: In article 73 of the Charter, the United Nations establishes a trusteeship system, replacing the mandate system. Some territories that “aren’t able to govern themselves yet” would be put under a trust system. They are under an international system of surveillance. Art 73 Charter of the United Nations : “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well- being of the inhabitants of these territories, and, to this end : (...)”. Art 1 §2 Charter of the United Nations : “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. Art 55 Charter of the United Nations : “With a view to the creation of conditions of stability and well- being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote : (...)” Article 1 §2 and article 55 of the United Nations Charter also refer to the right of peoples to self- determination. What does that right of peoples to self-determination mean under those articles ? In 1945, probably because huge colonial empires were behind the Charter, those countries didn’t think nor accept that, by those words, the colonial peoples would have the right to become States. That was not very clear because the Charter was negotiated. 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. It did not stabilize european colonies around the world, of -ter the war, peoples in the colonies were longing for freedom and self-determination. 29 Marie Hanin UCLouvain 2023-2024 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 was a short 15 years after the conclusion of the UN Charter. §I. First interpretation of the self-determination of peoples Probably, self-determination of peoples was understood, just after the Second World War, as meaning that peoples had to be governed in a certain democratic way, and people had Nazi, Germany and its totalitarianism in mind. It was understood as, within the State, peoples have to be respected. People weren’t the thing of the State : you cannot kill your citizens like Nazi Germans did to Jews and other minorities. So, we had this idea that, within the State, people aren’t totally subjected to the authority of the State. The State has to govern in a certain way by which the people would be able to determine the politics domestically. §II. Another understanding of the self-determination of peoples But throughout the first 15 years of United Nations, those words were given a very different meaning by practice. The meaning was that the peoples endowed with the right to selfdetermination were colonial peoples, peoples under colonial rules and alien (foreign) subjugation. Those peoples, through UN practice, are being recognized as the bearers of a right : the right to become States. That was done through some United Nations General Assembly resolutions by which the General Assembly proclaimed the right of peoples to self-determination. In this way, 1960, politically and legally, is a turning point in history. The Resolution 1514 adopted in 1960, 15 years after the foundation of the United Nations, said that the maintenance of a colonial situation was considered illegal. The United Nations General Assembly proclaimed that peoples had the right to become independent. It is a resolution entitled “Declaration on the Granting of Independence Colonial Countries and Peoples”. It proclaims: We see immediately that the scope of self-determination is colonial peoples: “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. 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. Inadequacy of political, economic, social, or educational preparedness should never serve as a pretext for delaying independence. 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. 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. 30 Marie Hanin UCLouvain 2023-2024 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. 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 resolution accompanied a real transformation of the international community. That changed the face of international community but also her concerns. Colonialism was outlawed. Colonial powers had to accept that the peoples they have subjected to their authority had the right to become States, to self-determination. By self-determination, three possibilities were offered to the colonial peoples concerned: - Staying with the colonizers. For example: some French colonies declined independence. - Becoming an independent State. - Joining another State. For example: Northern part of Cameroon decided to join Nigeria. The right to declare independence is given to certain peoples, the colonial peoples, peoples under alien subjugation. 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. The General Assembly reaffirmed this quote in 1514 so 10 years later in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States". The interpretation of the article 22 of the League of Nations covenant made by the international Court of justice in 1970 says that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned". In the meantime, the number of independent States increased. Those new independent States were former colonies. Maintaining a colonial domination became illegal : there was an obligation for the colonial powers to give away their colonies and let peoples decide. The understanding of that principle by the colonial country brought a massive change in the international community. In 1650, there were 60 UN members, in 1961, there were 104 and in 1970, there were 127. That right is now a fundamental principle of international law. On two occasions, the international Court of justice made clear that the right to self-determination is now a right erga omnes. The respect of that obligation is hold by one state vas-à-vis of the other states. This means that there is an obligation, under international law, to offer the possibility, for the people, to self- determination. Illustration: The occupied Palestinian territory. The court confirmed the ri