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1、States,2010-2011-2,1,States,?,Art.1 of the 1933 Montevideo Convention on,Rights and Duties of States,：,The States as a,person of international law should possess the,following qualifications:,a)a permanent population;,b)a defined territory;,c)government;and,d)capacity to enter into relations with ot
2、her,States.,2,States emerged through following,processes,?,Decolonization,?,Secession(Bangladesh,Eritrea,Estonia,Latvia,Lithuania),?,Dissolution(Yugoslavia,USSR,Czechoslovakia),?,Merger(Yemen,Germany),?,Peace Treaties(Eastern European Countries),3,Yugoslavia,4,Background,?,Serbia,Croatia,Slovenia,Bo
3、snia-Herzegovina,?,The Austro-Hungarian Empire,?,The President Woodrow Wilsons idea of self,-,determination of peoples,?,1919,the Treaty of Saint-Germain-en-Laye,the South Slav State(the Kingdom of Serbs,Croats,and Slovenes),5,?,After WW II,Josip Broz(Tito),the Socialist,Federal Republic of Yugoslav
4、ia(SFRY),six,republics-,Serbia,Montenegro,Macedonia,Croatia,Bosnia-Herzegovina,and Slovenia,?,1980,the death of Tito,Serbia-Slobodan,Milosevic,Croatia-Franjo Tudjman,?,June 1990,Slovenia and Croatia Declared,independence;the Yugoslav federal army,attacked the Slovene militia but withdrew,later;ethni
5、c Serbs in Croatia and the federal,Yugoslav army took up arms in the summer,of 1991,6,?,August 1991,the EC announced that it,would not“recognize changes of,frontiers which have not been brought,about by peaceful means and by,agreement”,?,EC Conference on Yugoslavia:a five-,person arbitration commiss
6、ion(the,Badinter Commission)included the,heads of the constitutional courts of,France,Germany,Italy,Spain,and,Belgium,?,17 Sept.1991,Macedonia declared,independence,7,?,14 Oct.1991,Bosnia-Herzegovina declared,independence,?,10 Nov.1991,Serbs in Serb-dominated parts,of Bosnia held a referendum for a“
7、common,Yugoslav state”,?,25 Sept.1991,UN SC imposed an arms,embargo on all Yugoslavia,?,Yugoslavia National Army(JNA)forces laid,siege to Croatia cities and towns,and war,spread to Bosnia by early 1992,8,?,December 16,1991,EC guidelines for recognition of,the new states in Yugoslavia,?,Bosnia submit
8、ted its request for recognition,?,January 1992,s self-proclaimed Assembly of the,Serbian People of Bosnia-Herzegovina declared the,independence of Serbian Republic of Bosnia-,Herzegovina;ethnic Croats also declared two new,entities in Bosnia,?,1992-1995,conflicts between Serbs,Croats in Bosnia,and t
9、he Muslim-led government for independence,some 200,000 dead including the massacre in July,1995 at Srebrenica,?,The Dayton Agreement,9,?,1999,NATO attacked the FRY to force it,withdraw its forces from Kosovo;the,FRY was forced to accept significant,autonomy for Kosovo which was put,under administrat
10、ion of the UN Mission,in Kosovo(UNMIK),?,February 2003,the Assembly of the FRY,adopted a new Constitutional Charter,changing the name of the state to Serbia,and Montenegro,10,The history of colonies,?,The,Terra Nullius,?,The Berlin West Africa conference of,1884 and 1885,?,Art.XXII of the Covenant o
11、f the League,of Nations:,11,?,for peoples not yet able to stand by themselves,under the strenuous conditions of the modern world,there should be applied the principle that the well-,being and development of such peoples form a,sacred trust of civilisation and that securities for the,performance of t
12、his trust should be embodied in this,Covenant As a result,the tutelage of such,peoples should be entrusted to advanced nations,who by reason of their resources,their experience or,their geographical position can best under take this,responsibility.,12,February 11,1918,President,Wilson,?,Self-determi
13、nation is not a mere phrase;,it is an imperative principle of action,which statesmen will henceforth ignore,at their peril.,13,The Aaland Island Question,?,Homework I,?,Report of the International Committee of,Jurists Entrusted by the Council of the League,of Nations with the Task of Giviing an Advi
14、sory,Opinion upon the Legal Aspects of the Aaland,Islands Question,League of Nations Official,Journal,Special Supp.No.3,at 5-10(1920),14,Homework II,?,The Aaland Islands Question:Report,Submitted to the Council of the League,of Nations by the Commission of,Rapporteurs,League of Nations Doc.,B7/21/68
15、/106(1921),15,Questions,?,What is the historic background of the,Aaland Island Question?,?,Which country do you think should,exercise the sovereignty over the Aaland,Island?,16,Homework III,17,World War II,?,German-speaking peoples in Austria,Czechoslovakia,France(Alsace-,Lorraine),and western Polan
16、d,18,UN Charter,?,Article 1 The Purposes of the United,Nations are:,2.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;,19,Art.73,?,Members of the Unit
17、ed Nations which have or,assume responsibilities for the administration of,territories whose peoples have not yet attained a full,measure of self-government recognize the principle,that the interests of the inhabitants of these territories,are paramount,and accept as a sacred trust the,obligation to
18、 promote to the utmost,within the system,of international peace and security established by the,present Charter,the well-being of the inhabitants of,these territories,and,to this end:,20,?,a)to ensure,with due respect for the culture,of the peoples concerned,their political,economic,social,and educa
19、tional,advancement,their just treatment,and their,protection against abuses;,?,b)to develop self-government,to take due,account of the political aspirations of the,peoples,and to assist them in the progressive,development of their free political institutions,according to the particular circumstances
20、 of,each territory and its peoples and their varying,stages of advancement;,21,?,c)to further international peace and,security;,?,d)to promote constructive measures of,development,to encourage research,and to cooperate with one another and,when and where appropriate,with,specialized international bo
21、dies with a,view to the practical achievement of the,social,economic,and scientific purposes,set forth in this Article;,22,Art.75,?,The United Nations shall establish under its,authority an international trusteeship system,for the administration and supervision of such,territories as may be placed t
22、hereunder by,subsequent individual agreements.These,territories are hereinafter referred to as trust,territories.,23,Art.76,?,The basic objectives of the trusteeship,system,in accordance with the,Purposes of the United Nations laid,down in Article 1 of the present Charter,shall be:,?,a)to further in
23、ternational peace and,security;,24,?,b)to promote the political,economic,social,and educational advancement of the,inhabitants of the trust territories,and their,progressive development towards self-,government or independence as may be,appropriate to the particular circumstances of,each territory a
24、nd its peoples and the freely,expressed wishes of the peoples concerned,and as may be provided by the terms of each,trusteeship agreement;,25,?,c)to encourage respect for human rights,and for fundamental freedoms for all,without distinction as to race,sex,language,or religion,and to encourage,recogn
25、ition of the interdependence of,the peoples of the world;,26,Homework IV,?,Declaration on the Granting of Independence,to Colonial Countries and Peoples,G.A.Res.1514(1960),?,Declaration on Principles of International Law,Concerning Friendly Relations and Co-,operation Among States in Accordance with
26、,the Charter of the United Nations,G.A.Res.2625(1970),27,Questions,?,What is a“people”?Why is the term,undefined in the Aaland Islands opinions,the UN Charter,and the Friendly,Relations Declaration?To which sorts of,peoples has international law afforded a,right of self-determination?,28,Conference
27、on Yugoslavia Arbitration,Commission Opinion No.1,31 I.L.M.1494(1992),?,2 b)-They composition and workings of the,essential organs of the Federation,be they the,Federal Presidency,the Federal Council,the,Council of the Republics and the Provinces,the Federal Executive Council,the,Constitutional Cour
28、t or the Federal Army,no,longer meet the criteria of participation and,representativeness inherent in a federal State;,29,?,c)-,The recourse to force has led to armed,conflict between the different elements of the,Federation which has caused the death of,thousands of people and wrought,considerable
29、destruction within a few months.,The authorities of the Federation and the,Republics have shown themselves to be,powerless to enforce respect for the,succeeding ceasefire agreements concluded,under the auspices of the European,Communities or the United Nations,Organization.,30,3-,Consequently,the Ar
30、titration,Committee is of the opinion:,?,-,that the Socialist Federal Republic of Yugoslavia is,in the process of dissolution;,?,-,that it is incumbent upon the Republics to settle,such problems of State succession as may arise from,this process in keeping with the principles and rules,of internatio
31、nal law,with particular regard for human,rights and the rights of peoples and minorities;,?,-,that it is up to those Republics that so wish,to work,together to form a new association endowed with the,democratic institutions of their choice.,31,Conference on Yugoslavia Arbitration,Commission Opinion
32、No.2,31 I.L.M.1497(1992),?,1.The Commission considers that international law as,it currently stands does not spell out all the,implications of the right to self-determination.,?,However,it is well established that,whatever the,circumstances,the right to self-determination must not,involve changes to
33、 existing frontiers at the time of,independence except where the States concerned,agree otherwise.,32,2.Where there are one or more groups within a State constituting,one or more ethnic,religious or language communities,they have the,right to recognition of their identity under international law.,?,
34、As the commission emphasized in its Opinion No 1,the now-peremptory-norms of international law require,States to ensure respect for the rights of minorities.,This requirement applies to all the Republics vis-,-vis,the minorities on their territory.,?,The Serbian population in Bosnia-Herzegovina and,
35、Croatia must therefore be afforded every right,accorded to minorities under international conventions,as well as national and international guarantees,consistent with the principles of international law.,33,?,3.article 1 of the two 1966 International Covenants on,human rights establishes that the pr
36、inciple of the right,to self-determination serves to safeguard human,rights.By virtue of that right every individual may,choose to belong to whatever ethnic,religious or,language community he or she wishes.,?,In the commissions view one possible consequence,of this principle might be for the members
37、 of the,Serbian population in Bosnia-Herzegovina and,Croatia to be recognized under agreements between,the Republics as having the nationality of their choice,with all the rights and obligations which that entails,with respect to the States concerned.,34,?,4.the Arbitration Commission is therefore o
38、f the,opinion:,?,i)that the Serbian population in Bosnia-Herzegovina,and Croatia is entitled to all the rights accorded to,minorities and ethnic groups under international law,and,?,ii)that the Republics must afford the members of,those minorities and ethnic groups all the human,rights and fundament
39、al freedoms recognized in,international law,including,where appropriate,the,right to choose their nationality.,35,Territory and Borders,?,Uti possidetis,-,the territory of the new,states was determined by their pre-,independence colonial borders-,borders,between imperial domains and,administrative b
40、orders within imperial,domains.,36,Border Disputes Among African States,O.A.U.Res.AGH/RES.1691)(1964),?,2.Solemnly declares that all Member,States pledge themselves to respect the,frontiers existing on their achievement of,national independence.,37,Case Concerning the Frontier Dispute,(Burkina Faso/
41、Mali),1986 I.C.J.554(Dec.22),?,23.,Uti possidetis,as a principle which,upgraded former administrative delimitations,established during the colonial period,to,international frontiers,is therefore a principle,of a general kind which is logically connected,with this form of decolonization wherever it,o
42、ccurs.,38,?,24.The territorial boundaries which have,to be respected may also derive from,international frontiers which previously,divided a colony of one State from a,colony of another,or indeed a colonial,territory from the territory of an,independent State,or one which was,under protectorate,but
43、had retained its,international personality.,39,?,25.At first sight this principle conflicts outright with,another one,the right of peoples to self-determination.In,fact,however,the maintenance of the territorial status,quo in Africa is often seen as the wisest course,to,preserve what has been achiev
44、ed by peoples who have,struggled for their independence,and to avoid a,disruption which would deprive the continent of the gains,achieved by much sacrifice.The essential requirement of,stability in order to survive,to develop and gradually to,consolidate their independence in all fields,has induced,
45、African States judiciously to consent to the respecting of,colonial frontiers,and to take account of it in the,interpretation of the principle of self-determination of,peoples.,40,Conference on Yugoslavia Arbitration,Commission Opinion No.3,31 I.L.M.1499(1992),?,2.Second,-,The boundaries between,Cro
46、atia and Serbia,between Bosnia-,Herzegovina and Serbia,and possibly,between other adjacent independent,States may not be altered except by,agreement freely arrived at.,41,?,Third-,This conclusion follows from,the principle of respect for the territorial,status quo and,in particular,from the,principl
47、e of,uti possidetis.Uti possidetis,though initially applied in settling,decolonization issues in America and,Africa,is today recognized as a general,principle,as stated by the International,Court of Justice in the case between,Burkina Faso and Mali.,42,?,Forth-,According to a well-established,princi
48、ple of international law the,alteration of existing frontiers or,boundaries by force is not capable of,producing any legal effect.This principle,is to be found,for instance,in the,Declaration on Principles of International,Law concerning Friendly Relations.,43,Homework V,Hurst Hannum,Rethinking Self
49、-Determination,34 Va.J.,Intl.L.1(1993),Question,Do you agree with the authors opinion that the Badinter,Commissions“neo,-decolonization territorial approach,can have troubling consequences if used to legitimize,secession for groups possessing a distinct political,status while denying the right of se
50、cession to,territorially based ethnic communities not formally,organized into political units”?,44,Reference re Secession of,Quebec,(1998)2 S.C.R.217,?,The recognized sources of international law establish,that the right to self-determination of a people is,normally fulfilled through internal self-d
