Suchergebnisse

In 2017, a group of Catalonia's politicians issued a declaration of independence. This article considers the international legal framework applicable to Catalonia's secession claim and assesses the legal consequences of the declaration of independence. This article demonstrates that the declaration of independence does not have any legal effects and has remained a political declaration under domestic and international law. For Catalonia, this means that precisely nothing has changed in law. Catalonia continues to be an integral part of Spain. While Spain is under no legal obligation to accept Catalonia's independence, its counter-secession policy does not operate in a legal vacuum. In this regard, it is also highly significant that the declaration of independence was merely a political act. It is questionable whether certain limitations imposed by Spain on the freedom of expression are justified in these factual circumstances. While Catalonia does not have a right to independence, Spain will not be able to ignore the independence claim. It is inevitable that the two sides will need to negotiate to resolve the political crisis. But the outcome of such negotiations would not necessarily be an independent Catalonia.

The UN Charter provides that membership is open to all peace- loving States. How should one understand the State requirement for UN membership, and is it linked to the law of statehood? This article analyses the practice of UN admission procedures and contextualizes it broadly with the State requirement in international treaties. It argues that some non- States have been Member States as well as non- member observer States of the UN. Such practice should not be labelled as being anomalous or sui generis. Rather, it should be taken as evidence of separation between international treaty procedures on the one hand and the substantive law of statehood on the other. Certain voting procedures regulated by international treaties should not be mistaken for state- creation procedures or collective recognition. Membership of the UN or its specialized agencies can have far- reaching effects, however. Such membership effectively creates an entity's treaty- making capacity where treaties are generically open to all States. The member then procedurally becomes a State for the purposes of participation in such international treaty regimes. This should not be conflated with State creation. The term 'State' for the purposes of participation in international treaties open to 'any State' or 'all States' is functionally defined by the so- called 'Vienna formula': it is not a matter of the Montevideo criteria or any other requirements under the law of statehood. This article thus argues that for the sake of doctrinal clarity, such procedural definitions of the 'State' for the purposes of participation in multilateral treaties need to be consistently separated from the substantive issues of the law of statehood. Palestine's appearance before international judicial bodies proves that such a separation is in principle upheld in international practice, but the line is sometimes unclear.

In the 1990s, international legal scholarship was marked by democratic idealism and the belief that democracy had become the only legitimate political system. The more radical proposals even speculated about legality of pro-democratic intervention. Such re-conceptualizations of international law were met with determined criticism. However, even skeptical voices were willing to admit that democracy nevertheless did have some limited normative force in post-Cold War international law. While it would be an exaggeration to say that nondemocratic governments are illegitimate per se, a consensus started to emerge that international law prohibited at least a coup against a democratic government. In the absence of a workable definition of substantive democracy for international law purposes, a democratic government was understood as an authority which comes to power in an electoral process that is reasonably free and fair.