Prohibition use of force = cornerstone of the system - to protec thuman life
- Any system that allows for force leads to slavery, colonisation, etc.
09/09/2025 - arrived 1h late
B. Territory
Two main titles to territorial sovereignty (note: not the only ones, though)
1) Treaties
a) Agreements where a state cedes territory to another state or agrees upon a
boundary.
b) May also occur through acquiescence (tacit and arising from conduct; passive
conduct)
2) Utis posidetis (‘inheritance’ -> USSR)
a) Administrative boundaries of the entities acceding independence become
international boundaries upon independence. Principle started in Latin
America with the waves of independence
b) Clarified in Burkina Faso v Mali (ICJ Reports 1986)
c) Title always prevails over effectivité: a treaty boundary always prevails over
the effectivie that could be achieved contra lege
Territory is facing a challenge with climate change. Islands states are disappearing - does
statehood disappear when one constitutive element disappears?
- Court said no, but very little explanation
- ‘Heavily qualified statement’: obligation of states in respect of climate change
- Conditions for EXISTENCE of a state are not necessarily the same as the conditions
for its CONTINUED existence
C. (Effective) Government
Capable of protecting the rights of third states in a territory
- Based on the rationale of the system (equal sovereign states)
Change of governments and international responsibility (coup d’etat) -> principle of effective
government
- To the extent that the government is effective, the conduct is applicable to the state
Failed states problem? Note: polisci term (unwilling or unable doctrine arises from this)
- State without government for years, unable to protect ppl
- Has never been accepted in international law
D. Capacity to enter into IR? (still relevant)
● Context: crafted in a period when European entities doubted that many could enter
IR
○ ‘Incapacity of savages or nomads to consent’
Recognition: declaratory or constitutive
● Context: european entities did not believe newly independent nations should be part
of the family of nations -> bound by international law
● Treaties by these ppl are NOT international treaties
● In order to be astate within the meaning of EEuropean IL, you needed to be
recognised
● Declaratory: a state exists because it exists
Duty of non-recognition to certain entities - attached to great breaches of IL (jus cogens
norms)
● If you create a state through the use of force (i.e., when Japan invaded China)
● BUT right to independence? Who has that right? It’s a controversial issue (See
Kosovo Advisory Opinion)
What is sovereignty? Palmas Islands definition (Netherlands/USA) p. 828
Sovereignty in the relations between states signifies indepence - this is why the question of
sovereignty is the departure point for a lot of international law issues
Sovereign equality
In 1917, LoN, Japan wanted sovereign equality of states recognised -> principal didn’t make
in the covenant. Only adopted in 1945, when it was enshrined in the UN Charter (UNGA
Resultion 2625):
* sovereignty that IL protect is the one granted UNDER IL. Meaning: in your exercise of
soveretny, you need to comply with international law
PEOPLES (connected to the right to independence)
Idea that prevailed through history -> nations had a right to a State (rise of the nation-State
era). Most used in 1917, after the end of WWI, when the Empires lost (i.e., Turkey, Austria)
-> application of the principle of nationality in these cases to ‘create’ new countries (i.e.,
Austria, Hungary)
Right of independence (of peoples) is not the same as principle (political and not legal) of
self-determination
- The principle was applied politically and therefore unevenly
- Right to self-determination as an objective in 1945 (not a law at first)
- Self-determination cristalised as a rule progressively until 1960 (wave of
independence)
- Right for “peoples of non-self-governing territories AND peoples subject to alien
subjugation, domination and exploitation” Kosovo opinion -> not ALL peoples have a
right under IL
- Colonial powers opposed the UN fiercely
- Qualified: already had in mind who should have independence (ppl from
colonies)
- Not every human group is a people (i.e., part of a territory does not
characterise a group as peoples within international law - which is why
cessation is prohibited under IL but if domestic law provides for it its ok)