Objects of International Law Flashcards
(41 cards)
What are the various modes of acquisition of territory?
a) occupation and discovery
b) cession
c) accretion and avulsion
d) prescription
e) conquest and annexation
f) award
g) contiguity
Elaborate more on a) occupation and discovery
This was used by colonial powers to discover land that was not owned by anyone (terra nullius). Nowadays, this view is shunned, and any territory inhabited by a people with an effective social or political organisation cannot be considered empty [Western Sahara].
Elaborate more on b) cession
This is an agreement between states to transfer territory. Cessions are rare. It is a derivative mode of acquisition, and so the cessionary acquires no more rights than those held by the ceding state. Although an agreement between states, consideration of the wishes of the inhabitants of the territory concerned is now required by the rule of self-determination.
Elaborate more on c) accretion and avulsion
This is the gradual increase of land mass through deposits of silt, or the sudden removal of land from the domain of one state to another. Problems may occur when new land is added to the banks of a river marking an international boundary.
Elaborate more on d) prescription
Unchallenged occupation of another’s territory over a period of time is deemed to ripen into full ownership. There is no prescribed time period for usurpation.
Elaborate more on e) conquest and annexation
There must be physical subjugation coupled with intention to annex.
Elaborate more on f) award
Title may be granted by way of award by a tribunal asked to settle a territorial dispute, by arbitration or adjudication.
Elaborate more on g) contiguity
This is a claim to land that has not been effectively occupied. It has however been rejected as a root of title. Rather, it is a rebuttable presumption.
What was held in the Island of Palmas case (Netherlands v US)?
Spain ceded the Philippines to the US in 1898. In 1906, the US found a dutch flag flying on the island they believed belonged to the territory ceded to them. Had Spain discovered the island, before transferring such a right to the US? The Dutch claimed peaceful and continuous display of state authority over the island. Therefore, it was found that the Island belonged to the Netherlands.
What was held in the Clipperton Island case (France v Mexico)?
The French laid claim to the island. Mexico claimed that the island had been discovered by the Spanish Navy and succeeded to Mexico in 1836. France’s claim succeeded. They had not lost their right by derelictio, because they did not have the animus to abandon the island.
Why has modern international practice been forced to change?
The classical rules do not accurately reflect the ways in which territory is acquired:
1) acquisition is not a single event
2) a valid title is often based on two or more complementary modes of acquisition, which are reinforced by acquiescence, estoppel and recognition
3) title is never absolute, rather it is weak or strong
4) effective and peaceful occupation is a key requirement
What was held in the Legal Status of Eastern Greenland case (Denmark v Norway)?
Norway relied on claims to title. Denmark relied on peaceful and continuous displays of authority. Denmark won the case and claimed continued sovereignty over Greenland, ahead of Norway.
What is the doctrine of intertemporal law?
Prescribes the date at which laws should be applied to determine title to territory.
What are critical dates?
One date is often relevant to deciding a case. If the parties do not agree on the dates, then the tribunal hearing the dispute may decide the matter itself. It is quite common to exclude all evidence arising after the date selected for hearing a dispute.
What are the general rules concerning the landward extent of state boundaries?
Topographical features no longer form the basis for determining a boundary. Neither do ethnic, religious or linguistic uniformity. Rather, they must be determined by the states concerned, which usually do by agreement. Where a river is a boundary, the middle of the river marks the point of division, or rather the middle of the principle channel, or the path of the strongest downstream current.
What is uti possidetis?
To ensure continuity and stability, many post-colonial states chose to accept the boundaries already drawn. It has since become a rule of customary international law, which overrides even the right to self-determination.
What was held in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand)?
The temple belonged to the sovereignty of Cambodia, and Thailand was required to withdraw all forces stationed there or nearby, and restore everything which had been removed. The Temple was a World Heritage Site. On the map attached to the treaty, the temple fell into Cambodia’s territory.
What is a servitude, and are they recognised in international law?
A right in another’s property which survives the transfer of that property to a new owner. Because of the absolute nature of sovereignty, such a right has not been accepted in international law.
What was held in the North Atlantic Fisheries Arbitration (US v Britain)?
The US had liberty to take fish from GB waters. The US argued that they had a servitude. The arbitrators found that it did not.
What was held in RIght of Passage (Portugal v India)?
Several Portuguese enclaves were surrounded by Indian territory, and so it was impossible for Portugal to visit these enclaves. Portugal claims a right of passage to the enclaves. There was a long established practice. However, there was a political coup in the enclaves in question. India had full sovereignty to determine the nature of the right of passage granted to Portugal. Found that Portugal had a right of passage in respect of private matters, no right in respect of armed forces, police and ammunition, and that India did not act contrary to its obligations re private persons, civil officials and goods in general.
What was held in the Wimbledon Case?
The Kiel Canal cuts through Germany. It is open to all nations at peace with Germany on terms of entire equality. It is an international waterway. Therefore, it must allow the passage of SS Wimbledon (an arms-bearing ship) through.
What is in place to ensure environmental protection?
States are no longer free to exploit resources and abuse their neighbours with pollution. The Kyoto Protocol seeks to reduce the emission of carbon dioxide and other greenhouse gases. A challenge to such regulation is the individualistic nature of human rights.
Define the limits of airspace
Airspace includes the space above land, internal waters and territorial seas. It is contentious in relation to satellites. Airspace is limited to 110km above the ground. This is the spatial approach. The functional approach suggests that airspace may only be claimed where the state actually has control.
What are the freedoms of the air?
Aircraft using designated air routes may fly over but may not land in other states. They may land for non-traffic purposes [International Air Services Transit Agreement 1994]. They may carry passengers and cargo from the state of origin of the aircraft. They may carry passengers from another country to the signatory state. They may carry passengers and cargo between foreign states as part of connecting services to the airline’s own state.Aircraft in distress may be immune from state jurisdiction, and use of force against civil aircraft is not permitted [Bermuda Agreement].
