International Law by Prof.

Pierre d’Argent
Week 2: Setting the International Law stage

INTRODUCTION .......................................................................................................................... 2
SETTING THE STAGE .............................................................................................................. 2
PERSONALITY UNDER INTERNATIONAL LAW ........................................................... 3
INTRODUCTION .......................................................................................................................... 6
THE ELEMENTS OF STATEHOOD ...................................................................................... 6
STATE RECOGNITION ............................................................................................................. 9
OBLIGATION NOT TO RECOGNIZE (PART 1) ......................................................... 12
OBLIGATION NOT TO RECOGNIZE (PART 2) ......................................................... 16
IS UNILATERAL SECESSION PROHIBITED? ............................................................ 16
THE KOSOVO ADVISORY OPINION .............................................................................. 19
WHEN IS UNILATERAL SECESSION A RIGHT? PROLEGOMENA................... 20
WHEN IS UNILATERAL SECESSION A RIGHT? SELF-DETERMINATION
OF PEOPLES ............................................................................................................................... 22
RESOLUTION 1514 (XV) ..................................................................................................... 25
THE VARIOUS MEANINGS OF THE RIGHT OF PEOPLES TO SELF-
DETERMINATION ..................................................................................................................... 26
STATE CONTINUITY AND STATE SUCCESSION .................................................... 28
NEW STATES AND BORDERS ........................................................................................... 29
INTRODUCTION ........................................................................................................................ 33
THE CONCEPT OF INTERNATIONAL ORGANIZATION ........................................ 33
ILC’S DRAFT ARTICLES ....................................................................................................... 36
LEGAL PERSONALITY ............................................................................................................ 37
TWO GOVERNING PRINCIPLES (PART 1) ................................................................. 41
TWO GOVERNING PRINCIPLES (PART 2) ................................................................. 43
THE UNITED NATIONS ......................................................................................................... 44
THE FOUNDATION OF THE UN ........................................................................................ 47
THE INTERNATIONAL COURT OF JUSTICE .............................................................. 47

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INTRODUCTION

Traditionally, international law applied only to States. As we saw last week, international law was the
“law of nations”. It is not surprising then that during the early stages of the development of
international law, only States were regarded as subjects of international law.
However, as Professor Pierre d’Argent explains in the video below, developments in the
contemporary world have expanded the category of subjects.

SETTING THE STAGE

Following the peace of Westphalia, and for about three hundred years, States remained the only
actors of international relations and also the only subjects of international law and this enduring
reality is reflected in the adjective "international" which is used to characterise the relations and the
law existing outside the internal and domestic context of every State.
States were the founders and the masters of international law.
They created that legal order for themselves, its norms and rules were created by them.
And those norms and rules were applicable among them, and among them only.
And legal doctrine affirmed for a long time that, by nature or by essence if you prefer, that by nature
international law was necessarily confined to the relations among States and was only applicable to
them.
It was said that it was impossible for international law to apply to any other entities than States.
Reality proved that this dogmatic view was wrong.
Indeed, as the need for more enduring cooperation among States grew, States began to establish
among themselves entities that were legally distinct from them; entities that were designed to serve
certain specific purposes, like managing a river between two riparian States or organizing the
exchange of mail post over borders.
States established international organizations and it was soon, although not that easily, it was
conceded that those organizations could also have a legal personality under international law.
Furthermore, after the terrible crimes and persecutions that took place during the Second World
War, it was felt necessary to limit through treaties the way States could exercise their sovereign
powers over individuals and groups by protecting fundamental rights and freedoms.
International human rights were born, making clear that individuals could also be the bearers of
rights under international law.

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And through the development of the Nuremberg and Tokyo tribunals, international law was also
used to prosecute and convict individuals.
This proved that not only could international law confer rights to individuals, but that it could also
impose obligations on them. There is therefore no inherent impossibility to use instruments
governed by international law to create rights and obligations for other subjects than States.
And in the last 30 or 40 years now, corporations were afforded substantial and procedural rights
under bilateral investment treaties, proving again that international law was not inherently limited to
the realm of States.
And of course, in addition to all those developments, the respect for international law, its
development and improvement is a growing concern for what is called the "international civil
society", which is made of hundreds of non-governmental organizations (NGO's) having all sorts of
concerns, from the protection of the environment to women's rights.
So, it is clear that today States are not anymore the only entities concerned with international law
and that international law is no longer "their" thing.
However, it is important at this point to make a few conceptual distinctions.
And let us see that in the next video.

PERSONALITY UNDER INTERNATIONAL LAW

Here are the distinctions to be made:

First, one must distinguish between the actors of international relations and the subjects of
international law.
The actors of international relations are all the entities and persons that, in one way or another,
appear on the international stage.
They interact in international relations.
It could be States, international organizations like the UN, the WTO or NATO, big transnational
corporations, large NGO's like Amnesty International or Medecins Sans Frontieres.
It could be individuals, like a religious leader, a charismatic prisoner and opponent, or a wealthy
businessman running an important charity of his own in developing countries, it could be terrorist
groups, a rebellious movement fighting a civil war, or the Nobel peace prize committee, it could also
be a category of people making together a distinct group having a bearing on international relations,
like migrants etc.
Any person, any group or entity having some bearing, some impact on international relations could
be said to be an actor of such relations.

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All this is of course important, but as this course is about international law, what is of interest to us is
the category of the subjects of international law.
And being a subject of international law means something different than just having a bearing and
impact on international relations.
Being a subject of international law means having a legal personality under international law -- in
contrast, even if often in addition, to being a subject of domestic law.
And here I need to make another conceptual distinction.
This is because one can have a broad or a narrow understanding of what it means to have a legal
personality.
Under the broad definition, having legal personality means having rights and/or obligations under
the relevant legal order.
In that sense, one could say that individuals are now subjects of international law because they are
conferred rights, and also obligations, under international law: international human rights protect
individuals, while each of us is bound under international law not to commit certain grave crimes like
genocide or war crimes.
In that sense, we, as individuals, are subjects of international law.
However, our legal personality is only passive:
we do not create by ourselves those rights and obligations that are bestowed upon us by
international legal instruments.
We do not master those instruments.
Those instruments are mastered by other subjects, most notably by States and international
organizations, and because of this, those latter subjects can be said to have an active personality
under international law.
This is the narrow definition of legal personality: having rights and/or obligations under international
law is not sufficient, what matters is having the legal capacity to participate in the creation of new
rights and new obligations, at least for oneself, and to do that through legal instruments that are
instruments of international law.
The distinction between active and passive legal personality is not much different from the
distinction between being a subject of regulation and an object of regulation -- between regulating
and being regulated.
Of course, the distinction is dogmatic and sometimes things are a bit blurred:
for instance, it is difficult to decide if the capacity to vindicate bestowed rights is an element of active
or passive personality.
Let me illustrate this: today, individuals and corporations are not only conferred rights under human
right treaties or investment treaties, but they are increasingly given access to redress mechanisms,

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including sometimes courts and tribunals, that allow them to vindicate those rights at the
international level against the public authorities that failed to respect those protected rights.
Does that make individuals or corporations active subjects of international law?
Maybe, but it might be a bit confusing to say that since neither individuals nor corporations have yet
the capacity to make new rules of international law and they are unlikely to acquire such capacity
soon.
However, there is no need to decide on those dogmatic issues, and the distinction between active
and passive legal personality has primarily an educational purpose -- it is there to help us to classify
and to categorize.
Nearly all of the examples I gave above, from States to members of terrorist groups, could be said to
relate to actors of international relations having some legal personality -- and this is because even
terrorists have criminal obligations imposed upon them by international law.
But those examples make also clear that even within the two main categories of active and passive
legal personality, legal personality can vary to a great extent.
For instance, the active legal personality of an international organization is very different from the
one of a State and, moreover, one personality of one organization is not the same of the personality
of another organization.
In other words, personality under international law comes in many forms and degrees once it is
defined broadly as having rights or obligations under international law.
In an advisory opinion about the legal personality of the United Nations and its capacity to claim
reparation for the injury resulting from the killing of one of its envoys, the International Court of
Justice considered that:
"The subjects of law in any legal system are not necessarily identical in their nature or in the extent
of their rights, and their nature depends upon the needs of the community.
Throughout its history, the development of international law has been influenced by the
requirements of international life".
That was in 1949 about the personality of an international organization.
But the same reasons based on the "needs of the community", can explain the emergence of new
categories of subjects of international law.
Subjectivity under the law stems from the social needs at a certain time and it is not a unified
category: the extent of the rights and the nature of the subject can vary considerably.
In this introductory course, we'll concentrate on the two main subjects of international law having an
active legal personality, that is States and international organizations.

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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 into existence.
But make no mistake: concentrating our attention on States and international organizations does not
mean that they are the only subjects of international law today.
It is just that addressing the issue of individuals, corporations or other non-state actors as subjects of
international human rights law goes far beyond the scope of this course, even if for instance human
rights is an essential field of international law today.
while international investment law is a growing field today.

INTRODUCTION

Historically, States were the first subjects of international law and they remain the most important
ones. International law has been invented by States, for States and it is largely made by them. It is
therefore important to start by inquiring into the establishment of statehood: what is a State within
the meaning of international law?

THE ELEMENTS OF STATEHOOD

States are central to international law.

As we've seen, international law was created by States, for them and it was primarily designed to
apply to them.
And States are said to be active subjects of international law. But what is a State as a legal subject
under international law?
True, we all know intuitively what a State is.
But have you ever met with a State?
And while we would all agree that, say, Uruguay is a State, it is very likely that we would disagree on
the statehood of some other entities, like Palestine, or Kosovo or South Ossetia.
And what about the so-called Islamic State today?
How can we tell that an entity is a State within the meaning of international law? It is usually
considered that 3 elements characterize a State: a territory, a population and an effective
government.

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Those three elements are notably recalled by the Montevideo Convention on the Rights and Duties
of States, a convention concluded during the Seventh International Conference of American States in
1933.
The Convention is said to codify the criteria for statehood and to codify also the declarative theory of
statehood, something I'll come back to.
The Montevideo Convention adds a fourth element, namely the "capacity to enter into relations with
the other States".
However, let us consider that this fourth element is somehow included in the notion of effective
government; it is indeed the external aspect of an effective government to be able to entertain
international relations.
A quick word on each of those elements.
First, territory: there is no State without a territory,that is an area of land attached to the crust of this
planet.
This is because we, human beings, live on the ground, not in the sea or in the air.

And it must be a natural territory, not an artificial platform above the waves.
However, there is no need to have a territory with clear and undisputed borders all around.
What matters is the control over a certain territory.
The size of the territory does not matter -- there are huge States like Russia and micro-States like
Monaco.
If size of the territory does not matter, it nevertheless remains that, as some have said, international
law is "obsessed" with territory.
And it is true that many disputes have existed and still exist today between States on issues of title to
territory and about border delimitations.
In this course, it will be just impossible to review all the principles and the rules applicable to
territorial issues, but some of them, you will see, will be mentioned.
This being said, it is important to realize that the concept of State sovereignty is intrinsically linked to
territory, so much that territorial sovereignty is key to statehood.
In 1928, in an arbitration between The Netherlands and the United States of America about the
sovereignty over the Island of Palmas (also called Miangas and which is situated in the Pacific Ocean
south of the Philippines and north of Indonesia), in that award Max Huber acting as sole arbitrator in
the case, famously wrote that:
"Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for
the inclusion of such portion in the territory of any particular State. Sovereignty in relation to
territory is called 'territorial sovereignty'. Sovereignty in the relations between States signifies

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independence. Independence in regard to a portion of the globe is the right to exercise therein, to
the exclusion of any other State, the functions of a State."
Second, a population: there is no State without a population, without human beings living on the
territory of the State.
Again, the size of the population does not matter, but it must not be an empty space, nor a space
with wild animals only.
And the population should live on the territory on a permanent basis -- it can of course move around
according to the seasons, but it must be there.

It does not matter if the population has the nationality of the State or nationalities of several other
States -- that is another matter and it is possible, even if it has never occurred, it is possible that a
State decides not to grant its nationality to anyone.
Third, an effective and independent government.
By this, what is required is that the population living on the territory be socially organized, governed
and represented by authorities that can effectively enforce the international obligations of the State
on the territory and the population.
And those authorities must be independent -- that is they must not obey orders from outside and
must act in an autonomous way.
Traditionally, States are free under international law to choose whatever form and nature of
government they prefer: a State may choose to be a republic or a monarchy, to be a federal State or
a very centralized State, it can also choose to be a military dictatorship or a liberal democracy under
traditional international law.
On that last point, international law is indeed traditionally indifferent to the nature of the political
regime of the State.
Moreover, international law prohibits outside interference in what are called the sacrosanct
"domestic affairs" of a State. This being said, more and more States agree in treaties to have a
democratic form of government and to respect some fundamental political freedoms.
Those treaties are mostly concluded at the regional rather than universal level.
However, if such treaties have been concluded and are binding on the State concerned, it is not free
anymore, under international law, to have an undemocratic government, while the way to govern its
people is also curtailed by rules of international law.
The process by which those 3 elements meet at a certain moment in time and that a State comes
into existence, that process is essentially a factual process -- historically, States have established
themselves as States because they were able to do so, as a matter of fact.

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This may explain why territory, population, effective and independent government are sometimes
said to be "constitutive" elements of States.
However, I submit that this is a misconception if by "constitutive" one considers that the State ceases
to exist as a State if one of the three elements comes to be missing.
In fact, this is not the case.
The State survives and does not disappear if, notably, it lacks an effective government.
For instance, Germany was left without any central government after the fall of the Third Reich, but
it did not disappear as a State.
Closer to us, Somalia did not stop being a State despite lacking an effective government for many
years.
Therefore, instead of considering those three elements as constitutive of States, it is a better view to
see them as criteria for the identification of States.
By this, I mean that they help to identify that what we have in front of us is indeed a State, rather
than something else like a tribe or an international organization.
Just like the shape of leaves helps us to identify that the tree in front of us is an oak and not a
chestnut.
The act by which existing States officially take notice of the existence of a new State, and admit it as
one of their peers, is called State recognition.
It a very old institution of international law and it is a decision of fundamental importance.
And this is because, if becoming a State is essentially a factual process, being a State on your own,
without being admitted in the family of nations and considered as a State by the other States, well
that is rather meaningless.
The next video will deal with State recognition.

STATE RECOGNITION

When a new entity claims to be a State because it meets the three criteria for statehood, other
existing States may decide to recognize it as a State.

State recognition can be used when a new State appears on the world stage.

But if used, it can be used only once in relation to the entity concerned.

State recognition is a single-bullet gun.

State recognition is a discretionary act in the sense that there is no obligation or duty to recognize a
new State as a State.

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However, there might be cases where recognition is prohibited, and we shall turn to that after the
video.

State recognition is discretionary also in the sense that it can be done whenever the State
recognizing sees fit.

The State recognizing the new State may also condition its recognition on certain political
concessions or commitments that the new State is called upon to do.

State recognition is a discretionary act that is most often explicit and made public by an official
declaration.

Sometimes, the word "recognition" is not used and sometimes recognition tacitly results from other
acts.

However, one has to be extremely careful in that regard. For instance, contracting a treaty with a
State does not necessarily mean nor imply that the two States recognize each other.

The only act which necessarily entails tacit and mutual recognition is the establishment of diplomatic
relations between those two States.

Finally, State recognition remains fundamentally a unilateral act from one State vis-à-vis another
State.

Several States may of course decide to consult each other and proceed in a concerted way before
each of them recognizes the new State.

But this does not make State recognition a collective act and there is no collective body or organ
entrusted with the power to recognize new States.

Notably, when a State is admitted as a member of the United Nations, it does not mean that all the
UN member States recognize that new member as a State.

State recognition does not result from being admitted to the UN.

Moreover, even voting in favor of the admission of a new Member State does not necessarily tacitly
mean recognizing it as a State.

Sometimes, diplomacy leads to some rather surreal situations.

For instance, in November 2012, the UN General Assembly accorded what is called the "non-Member
Observer State status" to Palestine, a status by which one does not become a member of the UN but
which nevertheless requires that the entity be a State.

When voting in favor of such status, many States declared that their vote did not mean that they
recognize Palestine as a State -- even if the status of non-member can only be afforded to entities
considered to be States.

Usually, State recognition is said to be declaratory: it simply declares that the entity being recognized
is a State, without having the effect of creating that State as a factual entity or constituting its
international legal personality.

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In other words, State recognition has no specific legal effect and is therefore a political, rather than a
juridical, act.

However, such act has a great importance in international relations and it is never done lightly.

Moreover, the more one State is recognized, the more it will enjoy some international effectivity,
such effectivity enhancing the factual reality that the new State must be in order to be recognized.

In other words, there can be a sort of chicken and egg situation when the State being recognized is
somehow frail: of course, in order to be recognized, the entity should be a new and already existing
State, but being recognized will gradually reinforce, as a matter of fact, its status as a State.

Recognition will not make statehood, because the latter must precede it, but it will nevertheless
consolidate statehood.

For that reason, it is difficult to escape the conclusion that recognition also entails some constitutive
effect.

But, as I just said, recognition is not constitutive of the recognized State as a State.

However, recognition is nevertheless constitutive in the sense that it establishes a relationship

between the State recognizing the new entity and the recognized entity as a State.

A relation that exists between the two of them and that is proper to both of them.

If you see an entity being recognized as a State by some States, while other States refuse to
recognize it as such, you may ask yourself: what is that entity at the end of the day?

Is it a State or is it not a State?

The answer to that question is: it depends. Sometimes, even the States who refuse to recognize an
entity as a State will easily concede that it is, and very much so, a State.

If that is the case, refusing to recognize is not a way to deny the factual existence of the entity as a
State- a fact is a fact -, but it will be a way to deny its political legitimacy.

For instance, Arab States who still refuse to recognize Israel today know very well that Israel is a
State, and a mighty one, and it would be foolish not to see that.

In other cases, when the factual existence of the State is more questionable, the constitutive
dimension of recognition comes into play.

As recognition establishes a relationship between the recognizing State and the entity being
recognized as a State, statehood will exist for the purpose of that relationship.

In such a case, and despite being primarily a factual and objective issue, in such a case statehood
could therefore boil down to a relative issue based on subjective appraisals.

This is puzzling and discomforting when it happens, but it is the price to be paid in a decentralized
system of States where each of them is entrusted with the discretionary power to recognize or not
new States.

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For the rest, time, and time only, will tell if the factual reality of statehood is consolidated or if it
remains doubtful.

OBLIGATION NOT TO RECOGNIZE (PART 1)

If State recognition is a discretionary act, are States always free to recognize another entity as a
State? Or is recognition sometimes prohibited?

In mid-September 1931, Japan invaded Manchuria (North-East China) and established a puppet State
called "Manchukuo". The reaction of the League of Nations to this grave breach of peace was very
weak and Manchukuo continued to exist throughout the Second World War, until 1945
In January 1932, the U.S. State Secretary Henri L. Stimson addressed to Japan and to China diplomatic
notes stressing that the United States would not recognize any territorial change brought as a result
of such an illegal use of force.
War as an instrument of national policy had indeed been declared illegal under the Paris Treaty of
1928 ("Briand-Kellogg Pact") and the Japanese invasion was considered to be in flagrant breach of
that new rule of international law.
The non-recognition policy of the U.S. was called the "Stimson doctrine" (or the "Hoover-Stimson
doctrine" since Henri L. Stimson was serving with the administration of U.S. President Hoover). The
Stimson doctrine did not produce much change on the ground but, as a matter of principle, it
reflected the idea according to which a lawful situation cannot derive from a grave breach of law (Ex

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injuria jus non oritur) and it served to uphold the legal character of the new prohibition established

under the Briand-Kellogg Pact.

Such practice of non-recognition was followed by several States and repeated on various occasions,
notably when the USSR annexed the three Baltic republics (Latvia, Lithuania and Estonia) in 1940.
After the German occupation, those countries were incorporated in the Soviet Union and only
recovered their independence in 1991 when the Soviet Union collapsed. From such practice of non-
recognition, a customary rule of international law emerged.
(Note: Week 3 will address in detail the formation and status of customary international law as a
source of international law).
The obligation not to recognize illegal situations was notably set out by the International Court of
Justice in two different contexts:
1) Namibia had been a German colony. Under the Peace Treaty of Versailles (1919), Germany lost its
colonies and the League of Nations established the Mandate system for their administration. South
Africa was granted a Mandate over South West Africa (Namibia). Under Article 22 of the Covenant

of the League of Nations, the Mandate system was governed by two principles of paramount
importance: the principle of non-annexation and the principle according to which the well-being and
development of the peoples concerned formed "a sacred trust of civilization".
When the United Nations was established in 1945, a new Trusteeship system was put in place, but
former Mandatory powers remained bound to fulfil their Mandate obligations and the UN took over
the supervisory powers that were formerly exercised by the League of Nations.

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In 1966, the UN General Assembly terminated South Africa's Mandate after having concluded that,
because of its policies of apartheid and racial discrimination, South Africa had conducted the
administration of the mandated territory "in a manner contrary to the Mandate, the Charter of the
United Nations and the Universal Declaration of Human Rights" (Resolution 2145 (XXI)).

However, South Africa continued to be present in South West Africa and, four years later, the
Security Council declared such presence to be illegal. The Security Council also declared that all acts
by South Africa concerning Namibia after the termination of the Mandate were illegal and
invalid (Resolution 276 (1970)).

By a subsequent resolution (Resolution 284 (1970)), the Security Council requested the
International Court of Justice to deliver an advisory opinion on the legal consequences for States of
the continued presence of South Africa in Namibia, notwithstanding its previous Resolution 276
(1970).

In 1971, the ICJ found that the UN Member States were "under obligation to recognize the
illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning
Namibia, and to refrain from any acts and in particular any dealings with the Government of South
Africa implying recognition of the legality of, or lending support or assistance to, such presence and
administration." (ICJ, Legal Consequences for States of the Continued Presence of South Africa

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in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, 21 June 1971, ICJ Reports, para. 133, p. 58).

Namibia became independent in 1990, two years after South Africa finally agreed to a transition
process.

2 ) In June 2002, the Israeli government approved the first stage of the construction of a "continuous
fence" in the West Bank (including in and around East Jerusalem), allegedly to protect its citizens
from terrorists attacks.

Gravely concerned by the construction of such a wall in the Occupied Palestinian Territory, the
United Nations General Assembly met in an emergency session and requested from the International
Court of Justice an advisory opinion on the "legal consequences arising from [such] construction"
(Resolution ES-10/14 of 8 December 2003).

The Court found that the "construction of the wall in the Occupied Palestinian Territory, including in
and around East Jerusalem, and its associated régime, are contrary to international law" and that
Israel was under an obligation to cease the works, to dismantle the parts of the wall already built and
to make reparation for all the damage caused by the construction of the wall. The Court also found
that "All States are under an obligation not to recognize the illegal situation resulting from the
construction of the wall and not to render aid or assistance in maintaining the situation created by
such construction" (ICJ, Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports, p. 202, para. 163).

Photo Crédits:

China and Mandchukuo map, derivative work by Emok (talk) China-Manchukuo-map.png: ErnstA,
User:Kingruedi East_Asia_area_blank_CJK.svg: Eurodollers [GFDL
(http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons.

Henry L. Stimson, U.S. Secretary of State, by Underwood & Underwood [Public domain], via
Wikimedia Commons.

United Nations Trusteeship Council chamber in New York City, By MusikAnimal (Own work) [CC BY-SA
4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons.

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OBLIGATION NOT TO RECOGNIZE (PART 2)

The obligation not to recognize as lawful a situation created by a serious breach of a peremptory
norm of general international law has been codified by the International Law Commission as a rule of
customary international law (Article 41, paragraph 2, Articles on the Responsibility of States for
Internationally Wrongful Acts - A/RES/56/83).
(Note: Week 4 will address peremptory norms and Week 6 will address State Responsibility).
Hence, the discretionary power of States to recognize new States is not unfettered: it is limited by
the obligation not to recognize situations resulting from serious breaches of fundamental rules of
international law. As a result, States would breach such obligation if they were to recognize any new
State created out of an illegal military operation or in disregard of other essential rules of
international law.
Furthermore, the obligation of non-recognition can be specifically imposed by the United Nations
Security Council by a resolution which is binding on the UN Member States according to the
conditions that will be set forth later in the course.
The Security Council has notably imposed on the Member States a duty not to recognize as lawful:
-The racist minority régime in Southern Rhodesia (now Zimbabwe), and considered its declaration of
independence as having no legal validity (Resolutions 216 & 217 (1965));
-The declaration of independence of the "Turkish Republic of Northern Cyprus" (Resolution 541
(1983));
-The annexation of Kuwait by Iraq (Res. 662 (1990));
Furthermore, the Security Council declared unacceptable the unilateral declaration of independence
of the "Republika Srpska" (Resolution 787 (1992)).

IS UNILATERAL SECESSION PROHIBITED?

If the emergence on the world stage of a new State results from a concerted and negotiated process
with the mother-State, the rest of the world will usually feel reassured and will not contest such
outcome.

State recognition will easily be granted.

For instance, South Sudan declared its independence in 2011 following an internationally monitored
referendum that had been agreed after a lengthy and a bloody civil war.

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South Sudan was easily and quickly recognized as a State.

However, throughout history, many new States came to exist as a result of unilateral acts of
secession.

The question often asked in that regard is to know whether international law prohibits unilateral
secessions.

And of course, if unilateral secessions are illegal as such under international law, then the obligation
not to recognize should apply and the new entity that aspires to be a State should not be recognized
as a State.

However, traditionally, international law has remained silent on the matter: while unilateral
secession is usually unconstitutional under domestic law, international law does not provide for any
rule prohibiting unilateral secession as such and as a matter of principle.

In other words, per se secession is not prohibited under general international law.

That may sound strange to you and you may think that, because international law protects the
territorial integrity of States, and notably under Article 2, paragraph 4, of the UN Charter that we
shall study later in the course, because of the rule protecting territorial integrity, you may think that
unilateral secession is illegal, as it undoubtedly alters territorial integrity.

However, as the International Court of Justice made clear in an advisory opinion about the
conformity with international law of the unilateral declaration of independence in respect of Kosovo,
as the Court made clear: "the scope of the principle of territorial integrity is confined to the sphere of
relations between States".

That is between already existing States.

One must therefore understand that, at the very moment when secession occurs through a unilateral
declaration of independence, the entity which is about to try to become a State is not yet bound by
the duty owed by States vis-à-vis each other, the duty to respect their respective territorial integrity.

Such duty becomes binding on the new State once it has become a State, just a second, as it were,
after its declaration of independence - provided, of course, that the outcome of such declaration is
successful and that a new State effectively results from it.

17
This may sound fairly artificial and formal, but if international law were to radically prohibit
secession, it would simply mean that history is forever written in advance: as the establishment of
any new State would be contrary to international law and could not be recognized by other States,
then the composition of the international community of States would be frozen forever.

The power of existing States on their people would be considerably reinforced because the creation
of any new State would need to be concerted, which would amount to giving to the mother-State an
unlimited veto to the emergence of a new State on a portion of its territory.

This may be the case as a matter of domestic law, but this is not the case as a matter of international
law.

So, while the absence of a radical prohibition of unilateral secession under international law might be
an element of course of instability in international relations, it does make some sense and is actually
not without some moral foundation.

This does not mean however, that unilateral secession is always in conformity with international law.

As the Court made clear in the same advisory opinion, there are indeed cases where the unilateral
secession stems from other grave breaches of international law, like an illegal use of force by another
State helping the secession, that was the case of the Turkish Republic of Northern Cyprus, or the
violation of the right of colonial people to self-determination, that was the case of Southern
Rhodesia, or grave breaches, graves crimes resulting in an ethnic cleansing, that was the case in
relation to the declaration of independence of the Republika Srpska by the Bosnian Serbs during the
war in Bosnia.

In all those cases, unilateral secession is the result of grave breaches.

In other words, secession would not have existed without those breaches.

Therefore, the unilateral secession constitutes an illegal situation to which the obligation not to
recognize applies.

This is precisely why the Security Council condemned as illegal the situations I just mentioned and
requested from the UN Member States that they do not recognize such situations as such and the
entities as States.

But that practice by the Security Council does not create a rule prohibiting unilateral secessions as
such.

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Let us turn now to the text of the advisory opinion by the Court on those various points.

THE KOSOVO ADVISORY OPINION

Kosovo declared independence on 17 February 2008. In response to that declaration of

independence, some States recognized the Republic of Kosovo as an independent State. However,
other States rejected the declaration, considering it illegal and illegitimate. Upon the suggestion of
Serbia, the UN General Assembly adopted on 8 October 2008 Resolution 63/3 requesting an advisory
opinion from the International Court of Justice on the following question:
“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of
Kosovo in accordance with international law?"
The Court delivered its opinion on 22 July 2010.
The Court first turned its attention to the lawfulness of declarations of independence under general
international law. The ICJ acknowledged the varied historical record of declarations of independence
and argued:
“79. During the eighteenth, nineteenth and early twentieth centuries, there were numerous
instances of declarations of independence, often strenuously opposed by the State from which
independence was being declared. Sometimes a declaration resulted in the creation of a new
State, at others it did not. In no case, however, does the practice of States as a whole suggest that
the act of promulgating the declaration was regarded as contrary to international law. On the
contrary, State practice during this period points clearly to the conclusion that international law
contained no prohibition of declarations of independence. During the second half of the twentieth
century, the international law of self-determination developed in such a way as to create a right to
independence for the peoples of non-self-governing territories and people’s subjugation, domination
and exploitation. […] A great many new States have come into existence as a result of the exercise of
this right. There were, however, also instances of declarations of independence outside this context.
The practice of States in these latter cases does not point to the emergence in international law of a
new rule prohibiting the making of a declaration of independence in such cases.
80. Several participants in the proceedings before the Court have contended that a prohibition of
unilateral declarations of independence is implicit in the principle of territorial integrity. The Court
recalls that the principle of territorial integrity is an important part of the international legal order
and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which
provides that:

19
“All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other manner inconsistent
with the Purposes of the United Nations.”
In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in Accordance with the Charter of
the United Nations”, which reflects customary international law (Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle that States shall
refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any State”. This resolution then enumerated various obligations
incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In
the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1
August 1975 (the Helsinki Conference) stipulated that “[t]he participating States will respect the
territorial integrity of each of the participating States” (Art. IV). Thus, the scope of the principle of
territorial integrity is confined to the sphere of relations between States."

(ICJ, Accordance with international law of the unilateral declaration of independence in

respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Reports, p. 403)

WHEN IS UNILATERAL SECESSION A RIGHT?

PROLEGOMENA

It is not because unilateral secession is not prohibited as such under a rule of general international
law, that any people, any region and any province around the world would have a positive right
under international law to secede and to declare independence.

There is indeed a difference between having a right to do something, and simply having the
possibility, the freedom to do it.

And the absence of the right to do a certain thing does not mean that doing such thing would be
prohibited.

In the Kosovo advisory opinion, the International Court of Justice stressed that "it is entirely possible
for a particular act such as a unilateral declaration of independence not to be in violation of
international law without necessarily constituting the exercise of a right conferred by it."

20
However, certain peoples have been conferred a positive entitlement to become independent.

Those peoples not only have the possibility to declare independence without breaching any rule of
general international law, but they actually have the right, under international law, to do so.

Such a right to become independent unquestionably exists today in favour of non-self-governing

territories and peoples subject to alien subjugation, domination and exploitation.

Before addressing this important normative development and turning to the scope, the content and
the nature of the right of peoples to self-determination, before doing that it is worth recalling briefly
how collective entities that are not States came to be granted some rights under international law, so
as to acquire a certain international legal personality.

This first step paved the way for later developments.

The idea according to which some people could be endowed with the right to become independent,
and to become independent States, that first idea stems from the practice of the Allied and
Associated Powers during the First World War.

In the name of the so-called principle of nationalities according to which each people making a
nation within the multinational Austro-Hungarian Empire had the right to become a State, the Allied
and Associated Powers recognized the Polish and Czechoslovak nations during the war and
considered them as co-belligerents despite the fact that they were part of the territories of their
enemy.

And when the war came to an end, the peace treaties of 1919 dismantled the age-old multinational
empire and replaced it by several new States.

So, the idea that a group, a people, a nation, that a group could be the bearer of a legitimate
entitlement to become a State was already present in the early years of the XXth century.

Furthermore, the Covenant of the League of Nations established - as I recalled earlier - a Mandate
system to look after the peoples of the former German colonies and also of some territories that
were previously under Ottoman rule.

Under Article 22 of the Covenant, those mandated peoples were "peoples not yet able to stand by
themselves under the strenuous conditions of the modern world."

21
According to what was perceived at the time, and with the Euro-centered prejudices, as their degree
of development, those peoples were administered under Mandates A, B or C.

However, common to all those types of Mandates was the duty of the mandatory powers to look
after the "well-being and development" of those "peoples" in the name of a "sacred trust of
civilization."

So, there again, peoples were identified as bearers of specific rights and their territories were
conferred an international status because they were not simply part of the territorial sovereignty of
the mandatory power.

Let us turn to post World War 2 practice in the next video.

WHEN IS UNILATERAL SECESSION A RIGHT? SELF-

DETERMINATION OF PEOPLES

The Charter of the United Nations established a Trusteeship system in order to replace the Mandate
system.

Additionally, Article 73 of the UN Charter confirmed and expanded the concept of the sacred trust to
all "territories whose peoples have not yet attained full measure of self-government" - in other
words, to the colonies of the victorious European powers.

Furthermore, the UN Charter referred to the "self-determination of peoples" in Article 1, paragraph

2, and also in its Article 55.

Which peoples were envisaged to have such self-determination right and what that right precisely
meant was not very clear at the time the Charter was negotiated.

However, because the drafters of the Charter included representatives of the United Kingdom and of
France, two powers with huge colonial empires at the end of the Second World War, because of that
it is quite unlikely that they envisaged to bestow to their colonies more benefits than the ones
envisaged under Article 73.

When referring to the "self-determination of peoples" in the context of the development of friendly
relations among nations, in Article 1 and 55, the drafters of the UN Charter probably had in mind the

22
need to respect the fact that there were already deep political differences between Soviet-style
democracies and liberal democracies.

However those provisions did not stabilize European colonies around the world.

After the great sacrifices imposed on them by the war, peoples in the colonies were longing for
freedom and for self-government.

India became independent in 1947, Ghana was the first African country to reach independence ten
years later and, in the meantime, both in Asia and in Africa, bloody colonial conflicts arose, notably in
Indochina and Algeria.

The fight against colonialism, which was first and foremost of course a moral imperative and a life-
long political struggle for many around the globe, gradually became a legal obligation.

The landmark development in that regard, in that legal evolution, was, a short fifteen years after the
UN Charter was concluded, was the adoption by the General Assembly of the UN of Resolution 1514
(XV) on 14 December 1960.

The resolution is entitled "Declaration on the Granting of Independence to Colonial Countries and
Peoples".

You will find the text of the Declaration in the next reading: in substance, it proclaimed the "necessity
of bringing to a speedy and unconditional end colonialism in all its forms and manifestations."

Peoples living in non-self-governing territories and peoples subject to alien subjugation, domination
and exploitation were granted the right to self-determination, that is the right to freely determine
their political status, including attaining complete independence by becoming States.

Self-determination of peoples acquired a new, external dimension, to the benefit of a certain

category of peoples.

Having the right to become independent, the colonial peoples were thus granted a form of legal
personality.

The paradox of the right to self-determination bestowed upon those peoples is that its single use

results in the birth of States.

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And once the State is born, the people somehow disappears, or at least has exhausted its right to
self-determination by realizing it.

Ten years after Resolution 1514, the General Assembly reaffirmed the right of peoples to self-
determination in the "Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States".

Resolution 2625 (XXV) of October 1970.

Interpreting the "sacred trust of civilization" under Article 22 of the League of Nations Covenant half
a century later, the International Court of Justice concluded in its advisory opinion on the legal
consequences of the continued presence of South Africa in Namibia, the Court concluded that "the
ultimate objective of the sacred trust was the self-determination and independence of the peoples
concerned".

The right of peoples to self-determination, understood as the right of colonial peoples to secede
from the colonial power and become an independent State, that right brought about a revolutionary
change in the composition and the concerns of the international community.

In 1950, there were 60 UN Member States.

In 1961, after Resolution 1514 was adopted, there were 104.

In 1970, there were 127.

In other words, the international community of States more than doubled within 20 years and the
number continued to increase.

No doubt the outlawry of colonialism through the right of colonial peoples and peoples under alien
domination to become independent that right is now a fundamental principle of international law.

It might seem self-evident today, but one has nevertheless to measure the incredible change it
brought about: for many generations in Europe, colonialism had been considered a noble task and a
life-long project.

It was now radically prohibited and, today, it is simply unthinkable. On two occasions, the
International Court of Justice made clear that the right of peoples to self-determination is now a right
erga omnes.

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We shall see later in this course what it means for a right or an obligation to be erga omnes, but
suffice it to say for the moment that it must be respected by all and it entails the right of all States to
request its respect.

In other words, if a colonial power were to refuse to grant independence to the people under its
domination, it would not only be a violation of international law vis-à-vis the colonial people at stake,
but also vis-à-vis all the other States and peoples.

In a following sequence, we'll turn to a question that certainly has crossed your mind: are colonial
peoples and the peoples under alien subjugation, domination and exploitations, are those peoples
the only people to have the right to self-determination, understood as the right, the entitlement, to
secede and to become a new State?

Or are other peoples endowed with the same right?

RESOLUTION 1514 (XV)

Please read carefully the Resolution 1514 (XV), the Declaration on the Granting of Independence
to Colonial Countries and Peoples, adopted in 1960. The Declaration can be found in the Reading
Material.

"The General Assembly [...] solemnly proclaims the necessity of bringing to a speedy and
unconditional end colonialism in all its forms and manifestations.

And to this end Declares that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to
the promotion of world peace and co-operation.

2. All peoples have the right to self-determination, by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a

pretext for delaying independence.

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 4. All armed action or repressive measures of all kinds directed against dependent peoples shall
cease in order to enable them to exercise peacefully and freely their right to complete
independence, and the integrity of their national territory shall be respected.

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained independence, to transfer all powers to the peoples of those territories,
without any conditions or reservations, in accordance with their freely expressed will and desire,
without any distinction as to race, creed or colour, in order to enable them to enjoy complete
independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of the United
Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations,
the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and
their territorial integrity."

THE VARIOUS MEANINGS OF THE RIGHT OF PEOPLES

TO SELF-DETERMINATION
It would be wrong to consider that the right to self-determination only exists to the benefit of
colonial peoples, or peoples under alien subjugation, domination and exploitation. After all, Article 1,
paragraph 2, and Article 55 of the UN Charter do not refer to a specific category of people, while
common Article 1, paragraph 1, of the International Covenant on Economic, Social and Cultural

Rights (1966) and of the International Covenant on Civil and Political Rights (1966) states
that:

"All peoples have the right of self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development."

The right belongs to "All peoples". This being said, self-determination of peoples has two distinct
aspects (or meanings):

 internal self-determination; and

 external self-determination.

26
In the latter sense, self-determination includes the right of a people to secede and to create a new
State.

In the practice of States, such positive entitlement to become a State has so far been limited to
colonial peoples or peoples under alien subjugation, domination and exploitation.

And this is easy to understand: while many States are born out of unilateral declarations of
independence, once they establish themselves as States, they are all eager to protect their respective
territorial integrity. This explains why States, including States that were born as a result of the
exercise of the right of colonial peoples to external self-determination, have always been reluctant to
concede the existence of a positive right to secede unilaterally and become independent to any other
peoples, but the specific category of colonial peoples.

For instance, it is quite telling that, while proclaiming in terms similar to the 1966 Human Rights
Covenants that indigenous peoples have the right to self-determination, the UN General Assembly
stressed that such right could not be interpreted:

"as implying for any State, people, group or person any right to engage in any activity or to perform
any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or political unity
of sovereign and independent States." ( UN Declaration on indigenous peoples (A/RES/61/295

(2007))

Other UN documents use similar sentences to clearly restrict the expansion of external self-
determination to other peoples.

It has however been argued that when its internal self-determination is totally frustrated, any people
should be entitled to resort to external self-determination and should have the right to secede. In
such a situation, secession would be a remedial last resort. Without affirming that such a right
actually exists under contemporary international law, the Supreme Court of Canada has alluded to
such possibility, but quickly concluded that it was not applicable in the context of Quebec (Supreme

Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217).

In the advisory opinion on the unilateral declaration of independence in respect of Kosovo, the
International Court of Justice declined to discuss the legal status of the concept of remedial
secession. It said there was no need to decide on that matter because the question put to it was
about the conformity with international law of the declaration of independence, not about the

27
entitlement of Kosovo to declare independence. (ICJ,Accordance with international law of the
unilateral declaration of independence in respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ
Reports, p. 438, para. 83.)

Finally, it is worth noting that the contracting States to the "2+4" treaty which paved the way of the
German reunification have accepted it in the name of the right of the German people to self-
determination (see the tenth recital of the Preamble to the Treaty on the Final Settlement with
Respect to Germany, signed in Moscow on 12 September 1990).

Because no new State was established in the process of the German reunification, it is difficult to
consider it as an example of the extension of external self-determination (in the sense of the
entitlement to create a new State) outside the colonial context.

To go further on indigenous peoples: http://legal.un.org/avl/ls/Wiessner_HR.html

STATE CONTINUITY AND STATE SUCCESSION

As noted in the reading that preceded this video, the reference in the "2+4" treaty to the self-
determination of the German people served the German reunification, but it did not result in the
creation of any new State: the German Democratic Republic (GDR) ceased to exist as a State, while
the Federal Republic of Germany (FRG) continued to exist as a State.

The FRG embodied the German State since the end of the Second World War, it continued the legal
personality of the German Reich and, when the GDR disappeared, the Federal Republic continued its
own personality as the German State and it succeeded to the deceased GDR.

In other words, the German reunification offers an interesting case of a combination of State
continuity and State succession.

Matters of State succession or State continuity raise very difficult and complex international legal
questions and they would deserve a separate course on their own.

Usually, many of these issues are settled by specific agreements and treaties.

Conceptually, the important point is to see that in a situation of succession, a subject, usually a new
State, but not in the case of the Federal Republic of Germany which existed already and succeeded to

28
the GDR, takes over from a former one: there is an interruption, a break, between two separate legal
personalities.

In a situation of continuity, there is no such interruption: the same legal person continues to exist.

For instance and as already mentioned, South Sudan became independent in 2011.

South Sudan is said be a successor State to Sudan on the part of the former Sudanese territory which
is now South Sudan.

But Sudan, despite having lost a part of its territory, continues the international personality of the
Republic of the Sudan and there is no new State in that regard.

To take another example: Czechoslovakia was peacefully dissolved as a State and stopped to exist as
such on 1 January 1993 and it was replaced by two new States: the Czech Republic and the Slovak
Republic.

None of those new States claimed legal identity with Czechoslovakia and none of them continued the
international personality of the deceased Czechoslovakia; they both succeeded to it as new subjects
of international law.

NEW STATES AND BORDERS

As you are well aware, disputes about territorial delimitation and borders have been recurrent in
inter-State relations throughout history.

Wars have been fought over territories, but hopefully, peaceful means of dispute settlement have
also been developed and often used in matters of border disputes.

It is beyond the scope of this course to review all rules of international law relating to land or
maritime delimitation, but it is important to mention some of them in relation to the emergence of
new States.

The first rule to mention is the automatic succession of States to treaties establishing international
borders.

Borders are usually established by common agreement between the States concerned and those
treaties are, as we shall see later when addressing the law of treaties, binding on the contracting

29
parties, and on them only: as a matter of principle, treaties are not binding on third States, i.e. States
that are not parties to them.

When a new State emerges as a result of a secession, that new State is, by definition, a new subject
of international law and it is not party to the border treaties that were concluded prior to its
emergence.

For instance, when Czechoslovakia disappeared as a State and was succeeded by the Czech Republic
and the Slovak Republic, none of those new States were formally party to the border treaties that
Czechoslovakia had contracted with its neighbors, i.e. Germany, Austria, Hungary, Ukraine and
Poland. Would the new States be entitled to claim that their borders do not exist with their
respective neighbors because they are not party to the borders treaties concluded by the former
State, now a deceased subject of international law?

The answer to that question is no: despite not being formally party to the border treaties, the new
State automatically succeed to the rights and obligations of the mother-State under the border
treaty.

This is a long-established rule of international law.

It serves the purpose of stability in international relations.

And it is an exception to the principle according to which treaties are only binding on the States that
have formally consented to them; a corner-stone principle of the law of treaties that we shall address
later in the course.

Another principle applicable when new States come to exist needs to be presented.

It also relates to borders, but it relates to the establishment of new international borders, rather
than to the stability of existing ones.

The principle is expressed by the Latin maxim "uti possidetis juris".

Historically, uti possidetis juris was first used in the context of the Latin-American decolonization in
the early 19th century: while the borders between the Portuguese possessions and the Spanish
provinces were automatically stabilized as a result of the rule on State succession to border treaties,
it was agreed that the new international borders between the former Spanish provinces that had
become new independent States would be the administrative lines that had been drawn by the
Spanish Crown.

30
Later on, when the European colonial empires in Africa were dismantled in the 1960's and new
African States were established as a result of the right of peoples to (external) self-determination,
many African leaders confirmed the territorial status quo at the time of independence and pledged
to consider the former internal colonial division lines as new international borders.

The first summit of African heads of States meeting within the newly established Organization of
African Unity proclaimed in July 1964 the intangibility of frontiers inherited from colonization and
referred to uti possidetis juris.

In other words, not only the international colonial borders that existed between, for instance, the
French and the British possessions in Africa would be kept, but the internal lines between the former
French territories existing under French colonial administrative law, or the internal lines between the
former British territories existing under British colonial law, were also transformed into international
borders.

So, for instance, when Burkina Faso (formerly called Haute Volta at the time of the French colonial
empire) and Mali became independent after having been French colonies, the internal administrative
line that had been established by the French colonial administration was transformed into an
international border.

Of course, when the application of uti possidetis juris results from the agreement of the parties
concerned, no legal problem arises since that agreement provides for the legal basis of such
application.

But what happens if there is no such agreement?

Does uti possidetis apply as a rule, i.e. are internal administrative boundaries automatically
transformed into international borders even in the absence of any agreement between the parties?

In a territorial dispute between, precisely, Burkina Faso and Mali where the two States referred to uti
possidetis and the intangibility of frontiers inherited from colonization, the International Court of
Justice generalized the application of the principle and considered it as a rule.

The Court said this: "[uti possidetis juris] is a general principle, which is logically connected with the
phenomenon of the obtaining of independence, wherever it occurs.

31
Its obvious purpose is to prevent the independence and stability of new States being endangered by
fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the
administering power."

So, the Court considered uti possidetis as a "general principle" and said it applied even outside the
colonial context.

The Court stressed that the use of uti possidetis in Africa was not to be seen as giving rise to the
emergence of a new rule of international law, but "as the application in Africa of a rule of general
scope."

In 1986, when the Court delivered its judgment, this was probably a bit far-fetched because uti
possidetis had only been used in two specific colonial contexts (in Latin America and in Africa) and
that, each time, the application of uti possidetis resulted from the agreement of the States
concerned.

A few years later, outside any colonial context, but in the context of the dismantlement of the former
Yugoslavia and the wars resulting from it, the question of the territorial delimitation between the
new States that had declared independence became very controversial.

In a legal opinion delivered to the Peace conference on Yugoslavia, the ?Arbitration Commission?

chaired by Robert Badinter who was the president of the French constitutional court and former
justice minister of France, referred to the judgment of the ICJ in the Burkina Faso/Mali case and
concluded that uti possidetis applied as a rule and by default:

the internal boundaries existing between the former Yugoslav republics were said to be protected
under international law as international borders and they could not be changed except by
agreement.

In other words, Serbia, Croatia, Bosnia-Hercegovina and the other Yugoslav republics had no choice:
the borders between them ran along the old administrative lines that separated them when they
were living together as federated entities of the former Yugoslavia.

Uti possidetis juris was thus applied outside a colonial context and the States concerned finally
agreed to it.

From that evolution and practice, it is difficult to escape the conclusion that uti possidetis juris would
most probably apply again as a rule in future cases of secession.

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Like State succession to border treaties, uti possidetis juris promotes territorial stability, and
therefore peace.

Of course, the new States remain free to agree to draw their borders differently.

But the line resulting from uti possidetis will apply by default and will most probably serve as the
starting point to any border negotiation.

However, and even if uti possidetis is considered and applied as a rule, this does not always solve all
the problems.

Indeed, in some States, various internal administrative lines of provinces, departments or regions
could potentially be transformed into international borders and uti possidetis does not say which of
these lines should be used and turned into an international border.

Therefore, the application of uti possidetis will not be so automatic and it may require some prior
negotiation and agreement about the relevant administrative boundary to be transformed into an
international border.

INTRODUCTION
International organizations are a very important feature of international law. Unlike States, they have
not always been part of the international legal system. If the Central Commission for Navigation on
the Rhine, established at the Congress of Vienna (1815), is usually considered as the oldest
international organization, international organizations have really emerged around the end of the
nineteenth century and have since increased in numbers and importance.

During this week on the subjects of international law, it is important to consider the way
international organizations are created, the extent of their international legal personality and
the basic principles governing their status.

Please watch the video below to get an understanding of what international organizations are.

THE CONCEPT OF INTERNATIONAL ORGANIZATION

International organizations have existed since the nineteenth century, but it is really during the
second half of the twentieth century that they have increased in number and in importance.

33
Today, there are a few hundred international organizations around the world, from small technical
organizations established between neighbouring States, like a bilateral river commission, to universal
organizations entrusted with crucial political tasks, like the United Nations.

International organizations play an important role in what can be called the global governance: their
expertise and professionalism is relied upon by States and States often turn to them in order to
design, decide and implement common policies.

And of course this is not without raising some concerns and some problems of legitimacy and
accountability, but those issues are largely political issues rather than purely legal ones.

And, despite their importance, this course will unfortunately not be able to address all of them.

Despite their differences in composition, in size and in object and purpose, international
organizations can be defined, from a legal point of view, as associations of States, and / or of other
organizations, associations that are established among them to serve specific tasks and which are
equipped for that purpose with permanent organs.

Let me take those elements in turn.

First, an international organization is an association: unlike States whose creation is to a large extent
the result of a factual process, international organizations are always the result of a free intent to get
together and act together.

Second, as an association, the international organization has members: in many instances, those
members are States, and this explains why international organizations are also often referred to as
being intergovernmental organizations.

But other international organizations may also be members of international organizations if the rules
of the organization allow it.

For instance, while only States may be members of the United Nations, a separate customs territory
having full autonomy in the conduct of external commercial relations can also be a member of the
World Trade Organization and this is why for instance the European Community, now the European
Union, has been a founding Member of the WTO, alongside the European Union member States.

Organizations are established as a result of a juridical act, usually a treaty concluded between the
founding members.

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The organization is not party to the treaty under which it has been established, but such treaty will
be the basic instrument of the organization, it will be binding upon the organization and it will be like
a constitution for the organization.

It is because their membership is made of other subjects of international law and it is because their
creation results from an act governed by international law that international organizations can be
distinguished from domestic law associations, like NGO's or other legal entities constituted under the
laws of a specific country.

Three: an international organization is established between its members in order to serve specific
tasks.

Organizations are based on functionalism: they are there to fulfil certain functions and are, for that
matter, specialized.

For instance, an international organization can be established in order to monitor and to protect
migrating birds.

Or in order to design and coordinate the rules relating to civil aviation.

Or in order to regulate fisheries in certain oceans.

Or, as the International Criminal Court, to prosecute and to judge individuals accused of having
committed grave international crimes.

We'll revert to this element of functionalism and of speciality when addressing the personality and
the powers of international organizations.

Four, and lastly, international organizations are equipped with permanent organs.

Those organs are usually a secretariat made of international civil servants and some governing body
where the members of the organization are represented.

And those organs are permanent: an international organization is not an ad hoc international
conference set up for a certain purpose during a couple of weeks or months.

The permanent character of the organs will make the organization an institution -- an institution with
its habits, its character and its internal culture.

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To put it bluntly: international organizations are bureaucracies -- and by this, I do not want to mock
them or to be pejorative in any way.

On the contrary, as Max Weber demonstrated, bureaucracies are profoundly rational and they are
central to any modern way to govern.

Moreover, law is central to bureaucracies and bureaucracies are moved by the law.

By this, I mean that bureaucrats always act by referring to the legal instruments and the rules in
order to justify their action.

Bureaucrats, civil servants, derive their power and their authority from the law and always refer to
and rely on it to give reasons for their actions.

This is true in national bureaucracies, but it is somehow squared in international bureaucracies.

In any international organization, when a new task is envisaged, the first question that will need to
be addressed is to know what legal basis entitles the organization to carry it out.

And that is a question for lawyers, and as that question will always somehow refer to the
international instrument under which the organization is established, which is an instrument
governed by international law, that question will be a question of international law itself.

ILC’S DRAFT ARTICLES

The International Law Commission is, as we will see next week, the body responsible for the
codification of international law. Article 2 of the ILC’s Draft Articles on the Responsibility of
International Organizations states that:

"For the purposes of the present draft articles, the term 'international organization' means an
organization established by a treaty or other instrument governed by international law and
possessing its own international legal personality. International organizations may include as
members, in addition to States, other entities".

If the International Law Commission' definition of international organizations refers to their legal
personality, it is because this is one of the most important features of international organizations and
that there is no responsibility without legal personality.

Professor Pierre d'Argent addresses questions that arise such as the meaning and the consequences
of legal personality of international organizations in the video below.

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LEGAL PERSONALITY

You've probably noticed that when I introduced the concept of international organization in the
previous video, I did not mention its legal personality.

This is because it is possible to have an international organization without a distinct legal personality,
a personality distinct from its members.

Let me explain this.

When they create a new organization, States may decide to establish it from a material point of
view, but not from a legal point of view: they may decide to create a bureaucracy that is not legally
distinct from themselves.

They may create an institution that is functionally distinct from their respective national
administrations, an institution that will be truly international for that purpose, but that will
nevertheless not be an institution legally distinct from each of them.

In such a case, the international organization will simply act as a common organ of the members:
what the organization does will be considered as the joint action of the member States themselves.

Each of them will be responsible for what the organization has done because the organization is their
common organ since it has no separate legal personality.

For instance, during fifty years, the Benelux which, as its name indicates, is an organization
established between Belgium, the Netherlands and Luxembourg, the Benelux for fifty years had no
separate international legal personality from the three member States.

Therefore, the Benelux could not become party to any treaty on its own: it was for the three member
States to do so, not for the organization.

The situation changed with the entry into force of the new Benelux treaty in 2012, which confers
international legal personality to the Benelux for limited purposes.

And indeed, more and more often in the last decades, international organizations have been
endowed with a separate legal personality.

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This may result from the very text of the basic treaty establishing the organization, but also, more
strangely and as we shall see, from the system of the treaty as a whole and despite its silence on the
issue of legal personality or on the nature of such personality.

Let me turn first to the easiest case, that is the case when the basic treaty establishing the
organization explicitly states that the organization has an international legal personality.

In such a case, it is obvious that the organization will enjoy a legal personality under international
law.

The organization will be a separate legal entity from its member States.

It will be a subject of international law of its own.

As a matter of principle, the conduct of the organization will not be the conduct of its members
States and the organization will bear responsibility for its own conduct.

Now, what happens if the basic treaty establishing the organization does not say anything about its
legal personality?

Or what happens if it simply says that the organization "shall have legal personality" without stating
the international nature of such personality?

In those cases, it is nevertheless possible, on a case by case basis, to deduce the existence of such
international legal personality from the system of the treaty establishing the organization.

This was authoritatively made clear in the advisory opinion delivered in 1949 by the I.C.J. about the
issue of Reparation for Injuries Suffered in the Service of the United Nations.

We've already come across that opinion, but let me quickly recall the facts and the legal issues.

In 1948, a Swedish diplomat, Count Folke Bernadotte, was appointed UN mediator in Palestine.

He tabled several peace proposals, and those proposals infuriated many in the region.

Together with other UN agents, Count Bernadotte was gunned down in Jerusalem during an attack
on his motorcade.

The attack was carried out by members of an extremist Israeli group.

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The Security Council immediately condemned the attack, while Israeli authorities were reluctant to
investigate and to prosecute the authors of the assassination, and when they did, they were very
lenient.

The General Assembly of the UN requested an advisory opinion from the International Court of
Justice about the capacity of the organization to bring a claim of reparation against the government
of Israel for injury resulting from the killing of its envoy.

This raised two legal issues.

First: was the UN endowed with an international legal personality, so as to be able to bring a claim of
reparation in its own name?

Second: could such a claim be brought against Israel, which had just declared its independence and
which was not a member State of the UN?

In other words: if the UN had an international legal personality, does that personality exist vis-à-vis
its member States only, or also vis-à-vis all other States --non member States?

The Charter of the United Nations is silent on the legal personality of the organization.

However, the Court looked beyond that silence of the Charter and considered that because the
organization had organs having special tasks, because the Member States were bound to assist the
organization in its actions and to accept and carry out the decisions of the Security Council, because
the organization had legal capacity, privileges and immunities in the territory of the Member States,
because the UnIted Nations was entitled to conclude agreements with the Member States -because
of all those elements and also because of the ends, the purposes for which the UN had been
established, the attribution of international personality was, said the Court, "indispensable".

The Court concluded that "the UN could not carry out the intentions of its founders if it was devoid
of international personality".

In other words, the Court deduced from the system of the Charter as a whole the intention of the
drafters of the Charter to establish an organization having an international legal personality.

Such intention may exist despite the silence of the basic treaty, but it may also exist in a situation
where the basic treaty refers simply to the legal personality of the organization, without specifying
that such personality exists under international law.

So far on the first issue, the issue of the existence of an international legal personality.

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Let me turn now to the second issue, which was about the capacity to claim reparation vis-à-vis a
non-member State.

On that second issue, the Court found that because the UN was an international person, it had the
capacity to bring a claim for the injury it suffered.

Moreover, the Court concluded that it could bring such a claim against the government of a non-
member State because the international legal personality of the UN did not only exist in the relations
between the organization and its member States.

The Court said that Israel, as a non-member State, would not be justified in raising an objection
according to which the UN had no capacity to present to it a claim against it.

The Court stated that its "opinion is that fifty States, representing the vast majority of the members
of the international community, had the power, in conformity with international law, to bring into
being an entity possessing objective international personality, and not merely personality recognized
by them alone, together with capacity to bring international claims.

By such words, the Court upheld an objective approach to the issue of the international legal
personality of international organizations.

As legal subjects under international law, international organizations are subjects for all States, not
only for their member States.

Of course, the obligations existing within the framework of the organizations cannot be binding on
States that are not members of the organization but it does not mean that those non-members
States can ignore the legal existence of the organization.

Or rather, non-members can ignore it, but that attitude will not affect the legal personality of the
organization, as its personality does not depend on the consent of third States.

Let me tackle now a last issue.

As I said earlier, some treaties establishing international organizations simply state that they have a
legal personality, without specifying that such personality exists under international law.

And as we've seen, one could very well deduce from the system of the treaty that the legal
personality so mentioned is a personality under international law.

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However, sometimes, the organization will additionally be endowed with a legal capacity under the
domestic laws of its member States for the purpose of, for instance, buying goods, renting offices,
hiring staff, and so on.

Usually, the basic treaty will then explicitly say that the organization has such internal law capacity.

For instance, according to Article 335 of the Treaty on the Functioning of the European Union, the
Union enjoys "the most extensive legal capacity accorded to legal persons under [the] laws" of each
of the Member States.

The important point is to see that the capacity of the organization under the national laws of its
member States does not exclude its legal personality under international law and that both
personalities are perfectly compatible with each other, even if they do not have to always exist
together.

TWO GOVERNING PRINCIPLES (PART 1)

International organizations are all different from one another in their respective objects and
purposes, but also in their organs, their powers and their internal operating rules.

However, when they are endowed with international legal personality, two common principles
govern their legal capacity and give shape to it. Those legal principles are complementary, even if
they might seem contradictory at first sight.

The first principle is the principle of "speciality": unlike sovereign States, international organizations
are specialized legal persons. They are established for certain purposes and their powers are limited
by those purposes. Therefore, the organization must exercise its powers in order to serve its object
and purpose. For instance, an international organization established for the purpose of protecting
migrating birds is not entitled to exercise its powers in relation to fisheries.

In an advisory opinion relating to a question raised by the World Health Organization (WHO) about
the legality of the use by a State of nuclear weapons in armed conflict, the International Court of
Justice described the principle of speciality as a "basic principle" of the law of international
organizations. The Court stressed that it

"need hardly point out that international organizations are subjects of international law which do
not, unlike States, possess a general competence. International organizations are governed by the

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'principle of speciality', that is to say, they are invested by the States which create them with powers,
the limits of which are a function of the common interests whose promotion those States entrust to
them. The Permanent Court of International Justice referred to this basic principle in the following
terms:

'As the European Commission [of the Danube] is not a State, but an international institution with a
special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to
the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so
far as the Statute does not impose restrictions upon it.' (Jurisdiction of the European Commission of
the Danube, Advisory Opinion, P.C.I.J., Series B, No. 14, p. 64.)"

(ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, pp.
78-79, para. 25).

As the Court recalled by quoting from the P.C.I.J.'s opinion relating to the jurisdiction of the European
Commission of the Danube, the principle of speciality does not prevent the organization
from exercising its functions (or powers) to their full extent.

The Court went on further to underline the principle of "implied powers", referring this time to its
1949 advisory opinion relating to the UN reparation claim following the assassination of Count
Bernadotte:

"The powers conferred on international organizations are normally the subject of an express
statement in their constituent instruments. Nevertheless, the necessities of international life may
point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers
which are not expressly provided for in the basic instruments which govern their activities. It is
generally accepted that international organizations can exercise such powers, known as 'implied'
powers. As far as the United Nations is concerned, the Court has expressed itself in the following
terms in this respect:

'Under international law, the Organization must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary implication as being essential
to the performance of its duties. This principle of law was applied by the Permanent Court of
International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July
23rd, 1926 (Series B, No. 13, p. 18), and must be applied to the United Nations.' (Reparation for
Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182-
183; cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1954, p. 57.)"

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(ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, p.
79, para. 25)

On the basis of the implied powers principle, the Court found in 1949 that the UN had the power to
bring a reparation claim for the injury resulting from the death of its agent.

In contrast, in 1996, the Court considered that

"to ascribe to the WHO the competence to address the legality of the use of nuclear weapons - even
in view of their health and environmental effects - would be tantamount to disregarding the principle
of speciality; for such competence could not be deemed a necessary implication of the Constitution
of the Organization in the light of the purposes assigned to it by its member States." (ICJ, Legality of
the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, p. 79, para. 25).

In other words, there is no contradiction between the principle of speciality and the implied powers
doctrine because implied powers exist by necessary implication of the express powers conferred
under the principle of speciality.

TWO GOVERNING PRINCIPLES (PART 2)

Indeed, the Court considered that

"21. Interpreted in accordance with their ordinary meaning, in their context and in the light of the
object and purpose of the WHO Constitution, as well as of the practice followed by the Organization,
the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on
health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive
measures aimed at protecting the health of populations in the event of such weapons being used or
such activities engaged in. The question put to the Court in the present case relates, however, not to
the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in
view of their health and environmental effects. Whatever those effects might be, the competence of
the WHO to deal with them is not dependent on the legality of the acts that caused them.
Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO Constitution,
interpreted in accordance with the criteria referred to above, can be understood as conferring upon
the Organization a competence to address the legality of the use of nuclear weapons, and thus in
turn a competence to ask the Court about that.

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22. [...] In the view of the Court, none of these functions [of the WHO] has a sufficient
connection with the question before it for that question to be capable of being considered as arising
"within the scope of [the] activities" of the WHO. The causes of the deterioration of human health
are numerous and varied; and the legal or illegal character of these causes is essentially immaterial
to the measures which the WHO must in any case take in an attempt to remedy their effects. In
particular, the legality or illegality of the use of nuclear weapons in no way determines the
specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be
necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are
used legally or illegally, their effects on health would be the same. Similarly, while it is probable that
the use of nuclear weapons might seriously prejudice the WHO's material capability to deliver all the
necessary services in such an eventuality, for example, by making the affected areas inaccessible, this
does not raise an issue falling within the scope of the Organization's activities within the meaning of
Article 96, paragraph 2, of the Charter. The reference in the question put to the Court to the health
and environmental effects, which according to the WHO the use of a nuclear weapon will always
occasion, does not make the question one that falls within the WHO's functions."
(ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, p.
79, para. 25).

THE UNITED NATIONS

Among the various international organizations, the United Nations deserves special attention. This is
because the UN's purposes and scope are unique.

According to Article 1 of the UN Charter, the Purposes of the Organization are:

"To maintain international peace and security, and to that end: to take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;
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;

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 To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
To be a centre for harmonizing the actions of nations in the attainment of these common ends."

Because of these fundamental purposes, especially the maintenance of international peace and
security, the UN aims at universality and is by definition unique: a rival organization with similar
purposes would be a contradiction in terms. Furthermore, and as it shall be explained later in the
course, the obligations existing under the UN Charter enjoy legal supremacy (Article 103 of the
Charter).

The UN has six main organs:

 The General Assembly

 The Security Council,
 The Economic and Social Council,
 The Trusteeship Council,
 The International Court of Justice,
 The Secretariat.

A quick overview of those organs can be found on the UN Web site. Please read that
information. The course will deal in more detail with the powers of the General Assembly and the
Security Council in matters relating to international law. The jurisdiction of the International Court of
Justice will also be addressed.

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Under Articles 57 and 63 of the UN Charter, a wide range of intergovernmental organizations having
responsibilities in the economic, social, cultural, educational, health and related fields are brought
into relationship with the UN and are called "specialized agencies". Together with the UN, other
funds and programmes, they form the "UN family". Click here to learn more about the UN system.

As you can see on the UN web page, the United Nations plays a vital role in the promotion,
development and respect for international law.

The study of international law is today inseparable from the work of the Organization.

Credits:

The flag of the United Nations, By Makaristos (Own work) [Public domain], via Wikimedia Commons.
The Palace Nations (United Nations Office at Geneva), By Henry Mühlpfordt (Own work) [CC BY-SA
3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons. The Headquarters
of the United Nations' United Nations Secretariat Building in New York, by Steve Cadman [CC BY-SA
2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons.

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THE FOUNDATION OF THE UN

The UN wasfounded in 1945, 70 years ago. Please read about the The Declaration of St. James's
Palace, The Atlantic Charter, The Declaration of the United Nations, the Moscow and Teheran
Conferences, theDumbarton Oaks and Yalta conferences, and finally the San Francisco Conference in
order to understand the events that led to the conclusion of the United Nations Charter, in the city of
San Francisco on 26 June 1945.

You may also find it interesting to view a documentary about the United Nations Organization and
the San Francisco Conference.

THE INTERNATIONAL COURT OF JUSTICE

The principal judicial organ of the United Nations is the International Court of Justice (ICJ). The ICJ
replaced the Permanent Court of International Justice (PCIJ) that was established at the time of the
League of Nations.

As this course is about international law and because the course relies heavily on judgments and
advisory opinions of the ICJ, it is important to have a good general understanding of the Court's
composition, jurisdiction and powers at an early stage of the course.

Please view the video on "The Role and Activities of the ICJ". It was posted in 2013 on the web site of
the Court, when Judge Tomka was President of the Court.

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This course will later review the ICJ jurisdiction and procedure in more detail when addressing the
pacific settlement of international disputes (Week 7).

The Peace Palace in The Hague, Netherlands, which is the seat of the International Court of Justice.

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