Professional Documents
Culture Documents
TERMINOLOGY
Acquisition of territory = establishment of sovereignty
over a given peace of „land”; acquisition or
establishment of a particular territorial status
State territory ?
‘modes of acquisition of territory’ – an analogy with
domestic law for the acquisition of ownership over
land
Gradual physical
movement of land
from one territory to
another (silting rivers
banks)
Process of violent
change
(dramatic change in
the course of river,
the creation of
volcanic formation)
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1. TERRA NULLIUS
never belonged to any State or abandoned by the
foreign sovereign
for the international law that emerged in Europe after
1648 discriminatory interpretation:
› Territory in which no person was present +
› Discovered by a European power and unclaimed by
any other sovereign State recognized by European
Powers
Western Sahara case (1975)
› Occupation is legally an original means of
peaceably acquiring sovereignty over territory
› Cardinal condition of valid occupation: territory
should be terra nullius (a territory belonging to none)
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East India Company From the end of the 16fh till the
19th century, companies:
› formed by individuals
› and engaged in economic pursuits (Chartered
Companies)
› were invested by the State to whom they were
subject with public powers for the acquisition and
administration of colonies
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Prescription v. occupation ?
Status of the territory concerned ?
Effective control over territory concerned ?
› requirement of effective occupation is interpreted
more flexibly in the case of occupation than in the
case of acquisitive prescription
Acts carried out by State
Open, continuous, effective and peaceful control
Recognition by international society?
› Chamizal Arbitration (American-Mexican Boundary
Disputes and Co-operation) it was held that
possession in the face of constant opposition could
not transfer title by prescription.
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Legal character ?
a special rule which pertains solely to one specific
system of international law ?
general principle of law ?
› Spanish America
› Respect of the administrative boundaries
established by the colonial powers (Africa)
emergence of customary norm, rule of general
scope
Purpose ?
ensure the independence and stability of new States
being endangered by fratricidal struggle
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Principle of self-determination
Art. 1 (2) UN Charter states that it is one of the purposes
of the UN 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’
Art. 55 UN Charter lists several goals the organization
should promote in the spheres of economics, education,
culture, and human rights with a view, as is noted in the
introductory clause, ‘to the creation of conditions of
stability and well-being which are necessary for
peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-
determination of peoples’.
People:
› As with other collective rights, the lack of definition
does not by itself mean that it is always unclear in
concrete instances whether one or more peoples
exist
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Critical date
Sovereignty over Pedra Branca/Pulau Batu Puteh
Case
› to ‘distinguish … between those acts which
should be taken into consideration for the
purpose of establishing or ascertaining
sovereignty and those acts occurring after such
date’
facts occurring after the critical date will not be
taken into account to determine the title of
sovereignty
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Intertemporal law
the legal significance of any subjective right or
objective rule is governed by the legal standards valid
at the time of its enactment
qualified as
› a theory,
› a principle,
› doctrine,
› supported by a comparison of domestic legal
systems, it amounts to a general principle of law.
a juridical fact must be appreciated in the light of the
law contemporary with it, and not of the law in force at
the time when the dispute in regard to it arises or falls
to be settled (Island of Palmas Case 845)
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aspect of sovereignty
State’s competence under international law to regulate the
conduct of natural and juridical persons (otherwise impact)
authority to affect legal interests / exercise authority :
create, modify, alter, terminate legal relationship
reflects the basic principles of: state sovereignty, equality of
states and non-interference into domestic affairs
traditionally, three forms of jurisdiction are distinguished:
› Legislative / prescriptive – power to make laws, decisions
and rules
› Judicial / adjudicative – power to take judicial action in
pursuance of or consequent on the making of decisions
or rules
› Executive / enforcement – ensure compliance with law
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Effect doctrine
Non-physical effects within state’s territory caused by the
non-national conduct abroad
Anti-trust laws
Sherman Act applies to foreign conduct that was meant
to produce and did in fact produce some substantial
effect in US London reinsurers engaged in unlawful
conspiracies to effect the market for insurance in US and
that their conduct in fact produced substantial effect
[Hartford Fire Insurance C.O v. California]
Vitamin producers filled a class action alleging that
vitamin manufactures and distributors had engaged in a
price-fixing conspiracy, which raised vitamin prices in US
and foreign countries in violation of Sherman and Clayton
Acts [F. Hoffmann-La Roche Ltd. V. Empagran, S.A.]
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