Subjects of international law: States
The term "subject" has a very particular meaning in law. It refers to an entity that may have rights and duties in a particular legal system. Thus, one can be a subject of Swiss or international law, the subject is a holder according to the legal order.
- 1 The legal definition of the State
- 1.1 Population
- 1.2 Territory
- 1.3 Government
- 2 Sovereignty from the perspective of international law
- 2.1 The degree of independence that sovereignty implies
- 2.2 Another issue related to independence and sovereignty is that there must be a willingness to be independent and sovereign in order to be independent
- 2.3 Then there is the problem of federal integrations
- 2.4 From a legal point of view, sovereignty is really at home in conjunction with territory, which means that it is mainly on its territory that the State has its sovereignty
- 2.5 The conclusion of an agreement, i.e. a treaty, is always an act of sovereignty
- 3 The powers
- 3.1 Territorial jurisdiction
- 3.2 What is plenitude?
- 3.3 What is exclusivity?
- 3.4 There are activities that violate the exclusivity of the State's territorial jurisdiction
- 3.4.1 Abduction on foreign territory
- 3.4.2 Fraudulent acts to kidnap an individual in order to circumvent extradition measures
- 3.4.3 Investigations and all forms of evidence gathering
- 3.4.4 Sending official documents abroad by mail
- 3.4.5 Exercise of voting rights abroad and postal voting
- 3.4.6 Tax collection
- 3.4.7 Exceptions based on treaties or agreements
- 3.4.8 Ad-hoc permission outside an agreement or treaty
- 3.4.9 Exception to the custom of general international law
- 3.4.10 Exceptions based on bilateral custom
- 3.5 Personal competence
- 3.5.1 What is meant by "personal competence"?
- 3.5.2 What about nationals, because jurisdiction is only over persons with nationality?
- 3.5.3 Concerning the limits that international law proposes to nationality and what the limits to nationality mean
- 3.5.4 We have for the criminal jurisdiction of a State
- 3.6 Competences relating to crafts
- 4 The territory of the State and its delimitation
- 4.1 Title of occupation of the territory without a master
- 4.2 Treaty - Agreement(s)
- 4.3 Prescription acquisitive
- 4.4 As for the delimitation, what are the legal facts when delimiting territory? In other words, what is the legal basis for delimiting between territories?
- 4.5 General principle of border stability
- 4.5.1 The effectivities
- 4.5.2 Effectiveness corresponds to the right, i.e. the title
- 4.5.3 What if you don't have a title?
- 4.5.4 Role of geographical maps
- 5 The fundamental principles of inter-State relations
- 6 The principle of non-use of force
- 7 Annexes
- 8 References
The legal definition of the State[edit | edit source]
The main subjects of international law are States. The very first thing to do is to define it because the State has its own legal definition. No matter what sociologists, historians, political scientists call a state, in international law there is a definition of its own.
For example, Geneva is a State, but not in the sense of international law, it is based on the Swiss legal order. It is worth taking a closer look.
A State, as defined by international law, is defined by four cumulative qualities, an entity that wants to be a State must have four characteristics:
- a population
- a territory
- a government
- the entity has sovereignty
This gives the following definition in a nutshell: the State is an entity composed of a population, a territory, a government and which is sovereign.
The first three elements do not deserve much comment because they are always on the margins of sociology and law, because law is grafted onto a real fact. When describing a population and a territory, we navigate between sociological facts and the legal qualification we give it.
The sovereignty criterion is a legal concept that merits further comment.
Population[edit | edit source]
A state is not only a virgin space like the territory of the Moon or Jupiter, although this planet is composed only of gas. For a state, you need people, it is the physical basis for the existence of a state.
The population is not everything to everyone who lives in the territory of a State, because on that account there are also people who are in Antarctica, but who are not a State.
What matters is the persons linked to the State by a link of nationality. There is a population of the State when there is a person possessing the nationality of that State. The manner in which nationality is acquired or lost is regulated in principle by domestic law.
There are no minimum limits in the population of a state, there are no rules. There are micro-States, including island States, that are being lost due to rising water levels.
A very special case would be that of the Vatican City. There are various theories, but a whole multitude of people accept that the Vatican City is a State under the 1929 Lateran Treaties, if it is a State it is a very particular State from the point of view of population, because the Vatican City has some functional passports, but does not have automatically its own nationals, because each national has the nationality of his country of origin.
Whether it is multi-ethnic states where the population is partly nomadic, this has no influence, these are sociological facts that do not deprive the state of its population.
Territory[edit | edit source]
The State consists of a territory while the population is the physical basis of the State, the territory is the spatial basis of the State.
The state manifests itself in space, it occupies a portion of space in the world. Moreover, populations that have suffered diasporas are well aware of the importance of the territory and the attachment that populations have shown to their territory.
How is the territory defined from a legal point of view?[edit | edit source]
First of all, we need to have a common mistake that is to think that space is something flat. Space, therefore the territory of the State, is a three-dimensional space, namely the flat dimension and everything in the air and in the subsoil.
If the space has the flat and vertical dimension that it has exactly in the flat and vertical dimension?[edit | edit source]
With regard to the flat dimension, the territory of the State includes the continental territory, i.e. the territory on which one can walk, including lakes and rivers, but also internal waters such as, for example, ports and the territorial sea, which can extend under the law of the sea and the 1982 Convention on the Law of the Sea to 12,000 seafarers from the low tide lines.
Everything that happens in these 12 nautical miles happens on the State's territory, but ships can transit, including warships in peacetime that must announce themselves, while military submarines must come to the surface and tuck in the flag.
Beyond the territorial sea, the territory stops. If the coastal State has other maritime areas, this does not constitute its territory, it is the parts of the sea in which it has certain specific rights, namely the contiguous zone from 12,000 seafarers, i.e. 12,000 more or 24,000 seafarers. Exclusive economic zones give rise to certain rights to explore and exploit resources, and no other State may engage in activities there.
However, in these areas the rights are limited, foreign states have certain rights in the exclusive economic zone outside economic exploitation.
Borders stop at the borders of the territory, i.e. at the land borders and at the territorial sea. As for the two vertical dimensions, it is not necessary to waste time defining them.
The question of how far the State border extends vertically has never been found to be necessary to be determined. In practice, any activity that involves air so that means of air transport can circulate, in any space where there are aircraft activities, is the territory of the underlying State.
Everything that is not based on the existence of air as a means of circulation, namely the lowest orbit of satellites, outer space form is a common space for States and there is no sovereignty.
It is obvious that the State can exploit its mineral resources located underground, there has never been a need to ask how far we can go, because some limits cannot be reached. In reality, territorial sovereignty below the territory goes as far as the state can theoretically exist.
We can have very small micro-States in square kilometres, there is no minimum size. The Vatican City is a separate subject from the Holy See, the Holy See is undoubtedly a subject of international law.
A state may have enclaves within a foreign state such as Portugal in India until 1962 - 1963, even in Switzerland cantons have enclaves in other cantons.
The boundaries of the territory do not have to be totally and definitively defined. In other words, disputes over the extent of the territory or the location of certain borders do not mean that some States do not own a territory, it is sufficient for the State to exercise its effective authority over a territory of the globe even if its borders are contested.
Israel has a territory on which it applies its public power even if almost all its borders are contested.
It is not a question of territory, when we are talking about an artificially created space such as, for example, maritime oil platforms that have a special regime.
Government[edit | edit source]
We need effective and exclusive government. These words have their meanings, the word actually has their meaning, the government must exercise state functions and it must be exclusive, which means that it is this government and it alone that exercises state functions to the exclusion of any other state.
What are the state functions?[edit | edit source]
Central state functions: taxes, police, courts, external security, civil registers, etc. are the prerogatives of public authority exercised by the government.
Sometimes it may be doubtful if a sufficiently effective government exists and this doubt may crystallize in different directions. Thus, it may have been doubtful that there was a government when it came to territories populated by tribes that gathered at conferences through their leaders and the question was whether it formed a sufficient government.
In the question of Western Sahara the question was whether or not the tribes at the time of colonization and even after that who were on this territory formed a government. The Court struggled with the issue because we do not want to calibrate Western models on African territory and on the other hand the government has its own legal definition.
The Court stated in paragraph 149 the criterion that common superior bodies are needed in order to have governments, a simple conference is not enough, common superior bodies are needed.
What are the consequences of the situation?[edit | edit source]
In the case of the failing-states, the government has collapsed, there is no longer a government as there was in Somalia.
International law makes a very clear distinction between the formation of a new State and the maintenance of a constituted State.
To maintain a government, a government is needed, even if it is sometimes difficult to determine whether the government is effective, because the government can impose its authority in a transitional manner.
When it comes to maintaining an already constituted state, if there is a population, a state and no government, this argument is not supported; the state is maintained against "winds and tides". Somalia had its state at the United Nations in the 1990s.
Why do we maintain a state?[edit | edit source]
If from the legal point of view one accepts the argument that a state no longer exists because the government has collapsed then the territory would become a territory without a master and it would be taken over by the first one to come.
We do not want this by virtue of the principle of self-determination of peoples that is imposed in modern law, it is this fiction that prevails, because we do not want the territory to become a territory without a master subject to appropriation.
The type of government is traditionally indifferent to general international law, whether it is a democracy, a dictatorship, a royalty, a theocracy, etc. It is an internal matter and has no impact on its existence. In the field of human rights, the distinction is constant.
Sovereignty from the perspective of international law[edit | edit source]
We will only talk about sovereignty in the legal sense of the term, we can use the word "sovereignty" in a whole other series of sciences and with different connotations. We will only discuss the legal meaning of this term.
In international law, sovereignty is the ultimate decision-making power, the power to decide in the last resort.
In other words, it is the fact that, with regard to a jurisdiction, there are no human authorities superior to "us", if that is the case, we are sovereign. There is no recourse, no organ, no human body that is not superior and that attracts the decision to it. If there is someone superior, he is the sovereign.
There are no higher human organs or bodies. Sovereignty only concerns the fact of deciding, it is necessary to consider if someone else can decide for him/her, it is "someone" of a superior who decides.
Sovereignty is necessary and compatible with international law. Just because a State is sovereign does not mean that it is not subject to international law, the State is a normative order, it is the State itself that decides to apply international law, whether it applies it or not.
Sovereignty is compatible with the existence of a higher legal order, because it is international law itself that recognizes and organizes the sovereignty of States. It would be contradictory to seek to free sovereignty from international law.
However, this does not mean that we are free to ignore international law, because it would mean that it is not binding, it simply remains the de facto power to violate international law.
Some authors reject this term, because they believe that this term has been abused too much in the past, so they have proposed another conceptualization, it is the Vienna School with Hans Kelsen.
The state has international immediacy. This means that the State in the sense of international law is subject only to international law and to nothing else there is nothing between the State and international law, it is subject to nothing but international law. We find the idea that no one decides for someone else, the only thing we are subject to is superior law.
The image of immediacy subject only to international law also explains why a federated state such as the canton of Geneva is considered a state within the meaning of Swiss federal law because it has a population, a territory, and a government, but it is not a state within the meaning of international law because between Geneva and international law there is something that is federal law, so Geneva is not only subject to international law, but also to federal law. In this sense, Geneva is not sovereign and therefore is not a State in the sense of international law, but a State in the sense of Swiss law by a long tradition.
In Switzerland, it is said that the cantons are sovereign. It is a concept of sovereignty of Swiss federal law. We must keep in mind that sovereignty is the ultimate decision-making power, but not freedom from a higher legal order, at the same time if we can decide in the last resort then we are sovereign.
When the state is constituted, the existence of the state is fictionally maintained even if the government fails for a period of time until the state is dissolved.
The same is obviously not true for the territory and the population, a state that is without territory and population, so it disappears in the same way as if it were dissolved, as was the case, for example, in Yugoslavia.
The fiction of state maintenance is only in the case of a temporary failure of the state.
It may happen in a State without governmental functions that an international civil administration of the United Nations is sent, however, under no circumstances is this administration sovereign over the territory, the United Nations does not acquire territories, but administers them in order to return them. The policy of the United Nations is never to want to stay very long, because a government could fail on the United Nations.
In sovereignty there are still some points that can be added, some of which are quite thorny.
The degree of independence that sovereignty implies[edit | edit source]
Sovereignty is the power to decide in the last resort on matters that concern the prerogatives of the state, but what is the degree of independence?
This raises the question of the degree of independence, for example there are extreme cases where independence is totally lacking, as in the case of puppet states that are purely remote-controlled states, we establish a façade of independent government, but in reality this supposedly independent government and remote-controlled by another.
The classic example is the Manchukuo state created in 1932 by the Japanese on Manchuria, but under Chinese allegiance. There was absolutely nothing independent about this state. Such a State is not a State in the sense of international law, it lacks sovereignty, the ultimate decision-making power is lacking.
Apart from these extreme cases, the practice is quite liberal, it does not require a very high degree of independence in order for a sovereign state to exist and are proof of this the USSR's areas of influence in Eastern Europe. These states could decide on a whole series of issues autonomously, but on a whole series of issues they could decide autonomously whether they were ready for the Soviet tanks to land.
The practice has been very liberal, it is enough to have a minimum of autumnal decisions, which is the minimum power of independence that is the one you do not have when you are a puppet state and more particularly a "puppet entity" since it is precisely not a state. For any non-remote-controlled state, it is considered a state.
[edit | edit source]
Sometimes an entity, at least for a long time, does not consider itself an independent state, but considers itself part of an existing territory or state with the legitimate government, as in the case of mainland China and Taiwan. National China considers that they do not form a separate state even if they are; this problem was considered a problem of government legitimacy.
There is this question of the legitimacy of the government which is superimposed on the other questions, it may happen that a State cannot be considered as a sovereign State if it does not assert it itself.
Then there is the problem of federal integrations[edit | edit source]
There are groups that do not integrate very well, as was the case in Switzerland. The federal process raises the question that when entities come closer together, they remain independent; they form States in the sense of international law, but at some point we switch to the federal State and it can be difficult to determine sovereignty; sovereignty can be lost in stages, it can become fragmented, decision-making power can be gradually lost.
If the European Union is to integrate, there will be transfers to Brussels. The integration process exposes that sovereignty can exist by degree in the sense that it is gradually ceded. This raises a question of degree. The major decisions in Europe are taken by national states, so there can be no doubt that they are sovereign states.
From a legal point of view, sovereignty is really at home in conjunction with territory, which means that it is mainly on its territory that the State has its sovereignty[edit | edit source]
Sovereignty is at its peak, "I dictate what happens on my territory precisely because it is my territory".
Everything is reversed, however, from an extraterritorial point of view, sovereignty is in need of justification, to assert extraterritorial jurisdiction requires more specific titles, it is not enough to assert sovereignty.
There are cases where sovereignty can be asserted.
Imagine ships flying the Swiss flag in the high seas, if we want to do acts of sovereignty over this ship in Antarctica we could do so it is extraterritorial, but there are recognized titles. If we are in another state, sovereignty is bent in favour of the other, it would be denying the sovereignty of the other, if we do acts of sovereignty over another state we do not give it the ultimate decision-making power, we decide in its place.
One last remark on sovereignty is a remark on terminology, it is true that terminology is not entirely fixed.
The conclusion of an agreement, i.e. a treaty, is always an act of sovereignty[edit | edit source]
We are free to conclude it or not to conclude it, we can also modulate it through reservations. Then, we ratify or not, it is here that sovereignty is exercised, there is the ultimate decision to accept or not these standards; we decide in the last resort.
Once accepted, one is no longer as free legally as before, one has rights, but also obligations that one owes to the other State; one will say that the subjective positions of this State have been increased.
This limits his freedom of action, inclines his freedom of action to a certain direction, it does not affect his sovereignty, he is no less sovereign since he has accepted the treaty. There is the question of whether or not to accept the treaty, which is a question of sovereignty and is a freedom of last resort, then there is the freedom of action, which is reduced on the one hand and increased on the other, but does not affect sovereignty, because we have been free to choose it.
The powers[edit | edit source]
Basically the term "competence" is better even in French, but in English the term "power" is used, so the term "pouvoir" is also a bridge to Anglo-Saxon vocabulary.
However, according to the authors, a whole series of distinctions can be made between "power" and "competence". We will consider that each of these two terms is equivalent.
Sovereignty is not only a power to make the ultimate decisions, it also has a whole series of particular consequences. Sovereignty forms norms of international law, sovereignty in action is the power to decide, sovereignty is also a norm that guarantees the State this ultimate decision-making power.
This norm of sovereignty gives rise to a whole series of normative concretizations, or other norms that are added to sovereignty such as State immunities; the State enjoys immunities from the civil and criminal jurisdiction of other States. The French President cannot be compelled to go to a Swiss court. Another example is the protection of internal affairs, i.e. the non-intervention in internal affairs, which protects the power to decide independently and to conduct a policy of its own.
Competences also derive from sovereignty, the State has competences because it is sovereign, the State has its competences originally, it does not acquire them because it has been given them.
The United Nations has no power over Geneva, all the powers of the United Nations are derived from the Charter of the United Nations, so that they can do something, it must be recognized in the Charter.
The State can automatically act, it does not need to be given a competence to possess it, it originally possesses it. The State has the original competence which is inherent in sovereignty, so sovereignty extends into a very concrete power of action, the power to decide in the last resort is concretized in the various actions of the State.
What are the competencies of a state?
There are basically three types of skills, but not all of them are of primary importance.
- territorial competences: it is the competence to take action on its territory.
- people skills: the ability to do things in relation to its nationals.
- gear-related skills: skills exercised on ships flying its flag or outer spacecraft.
On peut se pose la question de savoir qu’est-ce qu’une compétence ?
Jurisdiction is simply a legal power. There is a power that is recognized by a standard of right to act in a certain sense, it is a competence. We mainly speak of "competences" in the public domain, we will speak of "powers" in a more neutral sense.
It is a power to do something recognized by law; you can do something, but it is recognized by a legal standard.
Territorial jurisdiction[edit | edit source]
Sometimes we say territorial sovereignty. This territorial jurisdiction has two components, the second and most important of which is:
- the plenitude
- the exclusivity
Territorial jurisdiction is distinguished by its fullness and exclusivity. Plenitude is turned towards the interior of the state, exclusivity and turned towards other states, i.e. the exterior of the state.
What is plenitude?[edit | edit source]
It is a legal presumption that the State has full competence to do any act on its territory unless prohibited by international law. It is assumed that the State has all the jurisdiction on its territory. This is what distinguishes a State from an international organization. The State automatically has all the powers on its territory, it must not be given power, it already has it, it can only limit it afterwards.
On the contrary, an international organization is based on the principle of specialization, it only has competences that are attributed to it.
From the new skills acquired by the State in terms of new technologies, it is obvious that the State automatically has the power to regulate, take administrative measures and submit activities that take place on its territory. They have all the powers except those prohibited by international law and therefore those that States have agreed to renounce.
What is exclusivity?[edit | edit source]
This is a very important point, a masterpiece of public international law; it is the fact that the State on its territory is the only one to the exclusion of all others that can act as a public authority on that territory. In Switzerland, it is only Switzerland that can perform acts of public authority to the exclusion of any other State.
This rule of territorial impermeability is obviously quite fundamental, because it makes it possible to explain and delimit the sovereignty of one in relation to the jurisdiction and sovereignty of the other.
Modern international law is based on territorial States, so one can do acts of sovereignty over one's territory, but one must refrain from doing so over others. It is a basic principle, the delimitation of each person's spheres, sovereignty over their own territory and not that of others and certain rights over common spaces.
The rule is indeed very important and that is why there are very strong positions in the case law; the International Court of Justice has been able to insist on this rule several times.
In the 1927 Lotus case, a ship with this name, Series A number X page 18,
"apart from the primary limitation imposed by international law on the State is to exclude - unless there is a permissive rule to the contrary - any exercise of its power in the territory of another State. In this sense, jurisdiction is certainly territorial; it could not be exercised outside the territory, except by virtue of a permissive rule deriving from customary international law or a convention.
The current Court in the Corfu Channel case at page 35 of 1949 states that "between independent States, respect for territorial sovereignty is one of the essential foundations of international relations and international law also requires respect for political integrity".
We must see how far this goes because the principle has a scope of surprising importance and density.
There are activities that violate the exclusivity of the State's territorial jurisdiction[edit | edit source]
Abduction on foreign territory[edit | edit source]
A State sends agents to the territory of another State to abduct a person and bring him or her into the territory of the sponsoring State. The Eichmann case is most famous when Israel sent agents to Argentina to capture and kidnap Eichmann on trial in the Jerusalem district.
In this case, there was obviously a violation of Argentina's territorial sovereignty, so the Security Council found this violation and Israel apologized; the Argentine did not insist on seeing Eichmann's background.
Whether a person who has been abducted can be tried in the territory to which he or she has been brought depends on domestic law, there are States where this is not possible, because the police are refused the opportunity to make arbitrary arrests, and in a whole series of other States domestic law allows persons captured by methods contrary to international law to be tried.
Fraudulent acts to kidnap an individual in order to circumvent extradition measures[edit | edit source]
Undercover German state agents may invite a German to Zurich to arrest him. This type of fraudulent labour has been convicted several times. This type of violation of territorial sovereignty is done by circumventing extradition measures, by fraudulent labour by circumventing the possibility of deciding in the last instance.
In the Federal Court Decision ATF 117 I 337 it is stipulated: "the rule of good faith prohibits a State from using coercion or deception to seize a person it seeks and who is staying in the territory of another State where he or she would enjoy extradition immunity. Any improper machination to remove an individual from such immunity in order to bring him or her to the territory of the pursuing State or to the territory of another State which would in principle be obliged to extradite him or her shall be prohibited. The requested State to whose territory a person has been attracted by such procedures has a duty not to condone them by accepting an extradition request from the offending State".
Investigations and all forms of evidence gathering[edit | edit source]
Some persons may be directly agents of a foreign State or sometimes persons who do not have a direct link with a foreign State, such as a lawyer who performs acts reserved for mutual legal assistance.
With regard to agents sent abroad, in Switzerland, it happened during Mitterrand's time to see massive capital leaks from France; there were customs investigations in Switzerland in order to discover bank accounts of French nationals, but this was a violation of Switzerland's territoriality jurisdiction, because France had acquired extraterritoriality jurisdiction.
In the context of a lawyer in a federal case, a certain H against Zurich had investigated and gathered evidence in the context of an investigation in Australia. This Zurich lawyer was convicted and confirmed by the Federal Court on the basis of the Federal Criminal Code because his acts had the nature of acts of mutual legal assistance and therefore of public authority for the benefit of a foreign State.
These acts are reserved for mutual legal assistance authorities, the foreign State must make a request for it to investigate and collect evidence in the context of mutual legal assistance, otherwise it is a violation of the sovereignty of the Swiss Confederation, which is punishable under the federal code.
Sending official documents abroad by mail[edit | edit source]
Sending official documents such as a letter of obligation to appear before a criminal or civil court is an act of public authority, it cannot be done by sending a letter abroad unless there is authorization through agreements, again, such court shipments are made through mutual legal assistance bodies. All this is done through state bodies.
Exercise of voting rights abroad and postal voting[edit | edit source]
If it is by correspondence, it is part of the official sending of documents abroad, but votes can be made in embassies or consulates, voting is an act of public authority, it is only granted in the case of agreements.
In 1989, the practice of the Swiss State changed by admitting that there is a vote in embassies. The embassy is not part of foreign territory, the embassy is in the territory of the host state, but there are immunities, so the territory of an embassy is part of the host country.
Switzerland feared that with many foreigners there would be fairly "active" campaigns and violence on its territory, particularly in the case of the Cold War; in a declaration of 12 April 1989, the Swiss Confederation motivated the change in practice and reserved the right to return to this practice.
Tax collection[edit | edit source]
Raising taxes is an act of public authority. Taxes cannot be levied on foreign territory, for example through an embassy.
There was a dispute between the federal authorities and the Embassy of Bosnia and Herzegovina. From 1992 to 1995, there was the Bosnian war, it happened that the diplomatic representation of Bosnia and Herzegovina levied a war tax on Yugoslav nationals in Switzerland.
Bosnia found it a good idea to levy a tax in Switzerland on Bosnian nationals in order to finance the war effort. However, the federal authorities became aware of this practice by sending a letter to the embassy stating that the tax levy was illegal.
What about the protection of nationals in the broader sense of the term, i.e. a quasi-consular service that advises its nationals and promotes its culture?
There were such centres in accordance with Italian law under a 1985 law. Italy wanted to maintain contact with its nationals.
Were these Italian immigration committees contrary to the exclusivity of Swiss territorial sovereignty?
The conclusion was that these immigration committees were not contrary to the integrity of Swiss sovereignty since they were not activities of public authority, advising nationals is not an act of public authority.
Territorial integrity and exclusivity are not simply a matter of invasion by military forces, but a much more subtle issue; states are concerned about territorial sovereignty and suspect every time a foreign state wants to commit an act of public authority on its territory with, possibly, reprehensible practices that may endanger its authority.
At the same time, such a rigid principle of territorial impermeability has never been practicable and is even less so today in a period of globalization; however, there are a whole series of exceptions:
Exceptions based on treaties or agreements[edit | edit source]
Treaties are written texts whereas an agreement is not necessarily written. There is a whole series of agreements that provide for exceptions, including massive exceptions to territorial integrity and exclusive territorial jurisdiction, such as:
- military bases
Military bases around the world that are sometimes based on agreements by stipulating the good will of the adversary through more or less gentle pressures or through agreements concluded entirely freely, such as Japan in the 1950s, then surrounded by communist states, with the exception of nationalist China, which did not have any military influence.
- customs agreements
In 1923, there was an agreement between Switzerland and Liechtenstein in the field of customs activities, Liechtenstein devolved customs to Switzerland, which makes acts of sovereignty over another territory without calling into question Liechtenstein's territorial sovereignty.
Ad-hoc permission outside an agreement or treaty[edit | edit source]
These are special permissions for foreign authorities to carry out certain acts on the territory of a State. Sometimes, States grant authorizations to foreign investigators outside of mutual assistance agreements. There may be special agreements so that judges of the International Court of Justice may come in the course of their duties.
The last time this happened was in 1997 when the Court visited the water project between Hungary and Slovakia. The dispute allowed the Court to visit the site to observe and investigate.
The judges of the International Court are agents of the United Nations who cannot make acts of authority outside this framework, and Hungary and Slovakia had invited them to make their observations.
Exception to the custom of general international law[edit | edit source]
- the war occupation
In international armed conflict, it happens that the army of one State progresses while the army of another State retreats because of the fortunes of the war. The advancing army advances into the territory of the enemy it will control by making the territory an occupied territory that is controlled by conventions. During a period of armed conflict, there is not only occupation of a territory if one finds oneself in a de facto position of occupying it, but one has a duty to administer it, one cannot refuse one's duty as an occupying force, one is the only public power in the territory.
War occupation is one of the situations provided for where the State has the right and duty to administer a territory that does not belong to it in the place of the sovereign.
- diplomatic and consular services
Each State has embassies and consulates abroad, embassies, above all, perform acts of public authority.
These acts are carried out on the territory of a foreign State, the Embassy's premises remain on the host territory.
Under ancient customary international law, codified in the Vienna Conventions on Diplomatic and Consular Relations, agents of the sending State operating within the framework of diplomatic or consular missions may carry out all acts of public authority granted by international law against the foreign State.
Espionage is not one of them. This does not include a series of other acts, such as the Moroccan embassy, which had pronounced a divorce between Moroccan nationals. The question was whether this divorce could be recognised in Switzerland; the Federal Court refused, because under Swiss law, according to Swiss public policy, a divorce cannot be pronounced by an embassy, but only by a court, which is why this divorce cannot be pronounced in Switzerland and beyond what is permitted by the diplomatic service with a violation of sovereignty.
- international organisations
They are not States, but they do act of public authority, and of course these international organizations under customary international law and headquarters agreements have the power to do all acts recognized to them either under international law or headquarters agreements.
An international organization is not necessarily an intergovernmental organization, it can also be any international body. All these bodies act as public authorities.
Exceptions based on bilateral custom[edit | edit source]
In the case of enclaves, the right of passage is based on a bilateral custom implying that one must pass through the territory of a State to reach its enclaves.
The principle of territorial exclusivity is well established and there are a whole series of exceptions, a large number of more or less broad agreements and exceptions, it is not in violation of sovereignty, but it is accepted.
Personal competence[edit | edit source]
What is meant by "personal competence"?[edit | edit source]
This is the jurisdiction of a State over all its citizens. No matter where the nationals are, there is a personal jurisdiction of the State, on its State personal jurisdiction is confused with its territorial jurisdiction, a State can do a whole lot of things on its territory.
Personal jurisdiction has its own value when nationals are not in the territory of the State, but in the territory of another State or in common areas; there are recognized territorial jurisdictions, a Swiss always remains subject to Swiss law wherever he is in the world, this is called personal jurisdiction. It is in the case of nationals abroad that personal competence is perceived. In this respect, a distinction must be made between two types of "jurisdiction":
- normative competence: competence to enact rules.
- executive competence: competence to enforce rules.
In English, there are terms such as "juridiction to prescrive" and "juridiction to enforce".
A distinction must be made because when nationals are abroad they are subject to the normative jurisdiction of the host State's State, but Switzerland may lay down rules for its nationals even if they are abroad.
When the national is abroad if he is in the territory of another State, the competence of the State of origin to enforce the rule it imposes on its national and placed in brackets, the person cannot be taken back to his country of origin, as this would violate the exclusivity of the territorial jurisdiction of the other State.
Extradition may be requested for offences and crimes under certain conditions, and laws may also be enforced, i.e. executed, if the national is on a ship flying the national flag, in the high seas or in the Antarctic.
In common spaces, the law can be enforced, executive competence persists in common spaces.
What about nationals, because jurisdiction is only over persons with nationality?[edit | edit source]
International law does not have rules on the granting of nationality, it leaves this question to domestic law, it must be determined under international law; but international law still knows limits in terms of the nationalities it is prepared to recognize.
International law limits, but does not have rules in the first place.
The most frequent rules that apply in different States is an international practice and recognized by all States are:
Acquisition of nationality at birth, there are two systems[edit | edit source]
- blood law
- territorial right
These terms denote the acquisition of nationality by descent in the case of blood law, the child receives the nationality of his or her parents, and the law of the land means that a child born in the territory of domiciled parents acquires the nationality of that State there.
Reasons for subsequent acquisition or loss[edit | edit source]
There are also recurrent things such as naturalization when certain conditions for the establishment of a State are met, or if certain things have been done or a service rendered to a State are grounds for naturalization under domestic law.
Sometimes there are also reasons that are much more particular, some states at some point in their history have forgotten the acquisition of nationality; in the 1920s in Mexico if one bought land one obtained de facto Mexican nationality, Porfirio Diaz says "poor Mexico, so far from God so close to the United States". This feature was finally abandoned.
You have to imagine beyond that, sometimes in the world there are things you can't think of.
Concerning the limits that international law proposes to nationality and what the limits to nationality mean[edit | edit source]
There are cases of granting a nationality under domestic law that may seem abusive or not internationally recognised, as if, for example, Russia considers that the entire world population is its nationals by sending tax forms to everyone.
There are real disputes over nationalities approached in a "bizarre" way; one of the famous cases was a case that almost concerned Switzerland, namely Liechtenstein: the Nottebohm case, this case was decided by the International Court of Justice in 1950.
A German national has been living in Guatemala for some time and has established his business; when the Second World War began, Guatemala at some point entered the war.
Nottebohm anticipated that Guatemala would go to war against its country of origin; if Guatemala goes to war against Germany then it becomes an enemy national causing damage to its trade knowing that at that time the property of nationals of enemy nationality could be confiscated.
He had to get rid of German nationality as soon as possible; he had relations with Liechtenstein; Nottebohm obtained a nationality in an extraordinary way in a few weeks outside the ordinary procedures and simply through some relations with the payment of a sum against the payment of a sum.
Guatemala entered the war against Germany; at that time, Guatemala considered Nottebohm to be an enemy national and confiscated his assets.
Liechtenstein has defended its national by holding Guatemala accountable for a violation of international law through a violation of one of its nationals.
The case comes before the International Court of Justice with Judge Guggenheim; the Court rules that the limit that applies under international law to the acquisition of nationality and that there must be an effective connecting link, a nationality given by simple complacency is not a nationality that is based on an effective connecting link.
An effective connecting link and the fact that a national is bound more to a particular territory than to any other State in the world; if there is such an effective connecting link, at that time the nationality becomes enforceable.
The Court did not say that Nottebohm is German or Liechtenstein, nationality may be different according to the States; for Lichtenstein, Nottebohm is a Liechtensteiner because he has acquired Liechtenstein nationality and has the right to treat him as a Liechtenstein national, German law may consider him as a German national.
Guatemala could be justified because there was no effective connecting link, while Nottebohm was considered a German national because it had no effective connecting link with Liechtenstein, it is not enforceable.
There is a distinction between nationality acquired by modalities recognized by international law and nationality acquired by modalities that are not recognized by international law.
In cases where nationality is acquired in accordance with recognized procedures, then nationality is enforceable, when nationality is acquired outside those procedures, it is not enforceable, a third State is not obliged to recognize it; in the case of Liechtenstein and Nottebohm, Guatemala was not obliged to recognize it as a Liechtenstein national.
The effective link of connection causes problems, we understand why, moreover, today this is a problem in a globalised world. There are also other reasons, Judge Guggenheim had a dissenting opposition.
We see the limit of the International Court called in the Nottebohm case, we must refer to that case to note that an acquired nationality is not opposable to a third State.
In criminal law, words are used that have to do with the personal jurisdiction of a State in criminal matters.
We have for the criminal jurisdiction of a State[edit | edit source]
Principle of territoriality[edit | edit source]
Corresponds to territorial jurisdiction, a State may prosecute all crimes committed on its territory, regardless of the nationality of the persons concerned.
Personality principle[edit | edit source]
Personal competence, there is the distinction between the principle of active personality and the principle of passive personality:
- active personality: means that a State may prosecute all crimes committed by one of its nationals anywhere in the world under the sole condition that it constitutes a crime at the scene. If you do something legal in Australia, you can't be punished in Switzerland. For blood crimes, a crime committed in Australia allows Switzerland to have legal jurisdiction.
- passive personality: a State acquires criminal jurisdiction over anyone who has committed a crime against one of its nationals anywhere in the world; this is a contested principle, it means that if one goes to Australia and is killed there by a national of nationality X, Switzerland acquires criminal jurisdiction over him, it can prosecute him by criminal jurisdiction and Switzerland can request extradition.
Principle of state security[edit | edit source]
It is a series of crimes where the State acquires jurisdiction over crimes related to espionage or counterfeiting of Swiss currency.
Principle of universality[edit | edit source]
This is important for international law, the principle that a state can prosecute certain crimes wherever they are committed in the world even if it has no connection with that country.
For a State to have criminal jurisdiction to prosecute a specific crime it must have a connection to that crime, these are public services.
There are situations where it is considered that a crime has been committed affecting the interests of all States and therefore all States are granted punitive jurisdiction; this is the case either because the crime has been committed in a common area and there is no territorial jurisdiction such as piracy, which is an act of violence committed for private reasons by one ship on another private ship at sea, which is why there is this offence with universal jurisdiction: each State that captures pirates has jurisdiction because the crime was committed in a common area.
There are crimes that affect all humanity and we do not want criminals to rest, these are war crimes, crimes against humanity and genocide.
There are exceptional cases where States are obliged to prosecute under universal jurisdiction on the basis of certain anti-terrorist conventions and serious offences such as offences under the Geneva Convention on Humanitarian Law.
In the majority of cases, universal jurisdiction is merely a factual matter of how it can and cannot be exercised.
The way in which it can exercise is linked to domestic law, if there is no territorial link with the crime, the State can exercise universal jurisdiction and not in absentia. This universal jurisdiction makes it possible to prosecute for certain crimes either committed in common areas or for crimes of great importance to the community. It will be recalled that Balthazar Garzon in Spain had proceeded on this basis with respect to Mr. Pinochet.
Competences relating to crafts[edit | edit source]
These are on the one hand state-owned vessels, followed by aircraft and spacecraft. From the point of view of international law, a ship is no longer considered, as formerly by fiction, to be part of the floating territory of a State and an aircraft part of the mobile territory; the State of registration of a craft is now considered to be the State that is responsible for the proper functioning of its devices and is the State that exercises jurisdiction over the account on board its vessels, aircraft and spacecraft.
This is true for both state vehicles themselves and warships, but here the question is broader. The State also has duties in relation to civilian vessels such as the obligation to control the safety of such vessels or working conditions, the State incurs its own responsibility, even for commercial vessels the State exercises its jurisdiction.
The territory of the State and its delimitation[edit | edit source]
The territory of the State and its delimitation raises two sets of problems:
First, the territory of the State refers to the problem of the acquisition and loss of the State: how can a State acquire and lose territory?
Secondly, it raises the problem of the territory's membership in one or the other as well as disputes over the delimitation of the territory.
On the one hand, we are wondering how to acquire the territory, and on the other hand, how to determine the territory.
If we apply this problem to islands, there is an attribution problem, but if we think of continental territory, we automatically have delimitation problems.
We discuss all this material very often using the term legal "title". A title is a fact that the legal order recognizes as the basis of law in a territory, it is therefore a fact recognized by the legal order giving rise to a right in a territory.
For a territory to belong to us, it is necessary to produce a title, so the title is always a fact to which the legal system affects a consequence.
What are the facts recognized by the legal system to acquire and concurrently to lose it?
There are a few of them:
Title of occupation of the territory without a master[edit | edit source]
A territory without a master can be acquired by the first occupier, today the time when people rushed to territories to occupy them is over, but the occupation remains a valid and important title for two reasons:
- because of intertemporal law if someone disputes certain territories, someone can argue that he occupied them five centuries ago when he was without a master, this title continues to have effects to this day.
- if an island emerges in the high seas, it may be subject to occupation.
The term "occupation" is the same as that of "war occupation", but it is different; war occupation is not a title of acquisition of territory, but a title of administration of territory during an armed conflict, there is prohibition to annex, occupation is that of a territory without a master, occupation of the tera nullius.
It is also possible to claim a title of conquest in the same waters, but it is now prohibited to conquer and annex territory by force under article 4, paragraph 2, of the Charter of the United Nations.
Once again it is a question of intertemporal law, if one can assert a title as if one had conquered a territory in the 13th century then one can still assert this title today.
Treaty - Agreement(s)[edit | edit source]
Territory can be acquired through treaty-based land transfers.
In the past, land transfers were very often carried out. Today, this is much less the case because the self-determination of peoples has been achieved through this process. In the 1950s, the French territory was transferred to Switzerland in order to expand Geneva International Airport, but this portion was returned elsewhere.
On the other hand, we can have the formation of new states organised through a treaty; the current Germany was born from the 2+4 treaty. The treaty is a very important vector for acquiring the territory and is also the main vector used for delimiting the territory.
Prescription acquisitive[edit | edit source]
The possibility of acquiring a territory by the prolonged, peaceful and continuous exercise of public power without any other State protesting against this practice. There is a State on a portion of territory that acts of public power for a prolonged period of time with the acquiescence of the other States, which is equivalent to title.
Because of the self-determination of peoples today, these are only marginal areas.
Protest is essential to preserve one's rights, if one does not protest against the public authority then one loses this territory, if one protests, acquisition by prescription can never take place. Some authors do not like the term "acquisitive prescription", because it is a matter of private law, but the mechanism is similar.
There are certain natural modalities or facts that make territory acquired by other states such as alluvium; if a state has a maritime coast and the coasts move because the sands sediment, then the territory is acquired by alluvium, its territory has moved, but automatically it acquires it.
The same is true for rivers, there are cases where the border is in the middle of rivers. It is a line in the river, there are sometimes very dynamic rivers that move, causing the border to move; this means that one State is growing, but the other is shrinking. This type of phenomenon is of minor importance, but a natural fact and not voluntary and subject to the acquisition of the territory.
The loss of territory is concomitant, a state could abandon a portion of territory if it no longer wants to, but that is not relevant.
As for the delimitation, what are the legal facts when delimiting territory? In other words, what is the legal basis for delimiting between territories?[edit | edit source]
We have several important principles:
Accord(s) - Traité[edit | edit source]
Delimitation is almost always by agreement, sometimes a sequence of agreements on a border covers sectors, agreements that have modified or rectified borders are often bouquets of agreements.
When the Court of Justice deals with disputes between African or Latin American States, it will always have to deal with treaties from the 19th or even 13th century. It is always the title at the time the delimitation was made that continues to prevail. It is therefore necessary to interpret the treaty of the time and know what the parties could mean.
The International Court of Justice has informed us about a case between Libya and Chad concerning a border dispute that a treaty may fix the border, but that the border acquires a value independent of the treaty established, in other words, the treaty establishes the border, but at that moment the border becomes a legally detachable fact.
This means that if the treaty expires, if it is not renewed or denounced, the border remains, it is the principle of border stability.
The boundary or title created by the treaty has more permanence than the treaty itself, the treaty may disappear, but the boundary remains. In the Court's view, the Treaty must give rise to a permanent border, "once agreed, the border remains, because any other approach would deprive the fundamental principle of border stability, the importance of which the Court has repeatedly stressed".
Delimitation can only be joint evidence between the States concerned, the same can be said of land borders; delimiting a legally binding or legally recognized border can only be the work of the States concerned jointly, if done alone, the other State is not bound by the border that is being attempted to be imposed.
If each State unilaterally delineates borders, we would have non-accepted borders. Since the principle is that a boundary can only be legally delimited by agreement, treaties are the basis for delimitation.
The delineation of borders is found in agreements that are usually bilateral because a border is normally bilateral, separating State A from State B.
In the case of the Swiss borders, in François Schröter's book, all the borders of Switzerland have been delimited by agreements, some of which were concluded with the kings of France.
It is in the treaties that we find the title to know where a certain border crosses.
In a dispute between Libya and Tunisia, the Court said that the border is detached from the treaty and to its own existence, the fact that the treaty disappears at some point is not relevant for the extinction of a border.
It may be uncertain where the border passes exactly, treaties describe the borders, but sometimes they do it wrong and imprecisely, or they are old treaties with topographical problems. In this case, it is a question of interpreting the treaty and also a question of filling the gap in the treaty, the aim is to eliminate uncertainty by specifying where the border crosses or by calling on a judge who can determine or cross the border.
Uti Possidetis juris[edit | edit source]
It is possession according to the law and not according to the fact.
What does "uti possidetis" mean?
It is a principle originally applicable to decolonization; at some point in history, many new States have been created as a result of decolonization.
These states had no pre-constituted borders because they were part of a former colonial empire, only internal administrative borders existed in relation to colonial power; in the French colonial empire, there were constituencies subjecting the different parts of the territories to separate governors.
When decolonization took place, already in Latin America in the 19th century and then in Africa in the 20th century, the States concerned decided to maintain the former colonial administrative borders, which were formerly internal borders, by ensuring that after decolonization these borders became international borders; in other words, to transform internal administrative borders into international borders, as was already the case with administrative borders, this must remain.
This principle was chosen because it was the only one that could immediately ensure a clear and secure border in these areas, in the absence of a use possidetis we would not have had borders at all, we would have had to conclude border treaties that would have easily led, in Africa in particular with its structural instabilities and composite States, as the African States themselves have recognized, to fratricidal struggles; if the decolonization war lasts, there would have been a risk of border struggles later on, adding to the effort of decolonization wars the rout of border wars.
First of all, the uti possidetis is Latin America with critical dates of 1810 and 1823, the decolonization of the Spanish Empire; the borders with Brazil were already international borders. European states have applied this principle in the context of the decomposition of federal states for the former USSR and Yugoslavia.
Legally, the only certain thing is that the principle applies in the event of decolonization, for federal States this principle has been applied because it is quite practical, but it is not certain that the law requires it; at the time when these federal States broke down, this was not yet the case.
The key judgment establishing the principle of uti possidetis as a general tool of decolonization is the judgment of the Chamber of the Court on the case of the territorial dispute between Burkina Faso and Mali in 1986.
At the time of decolonization, a boundary is automatically established, the former colonial administrative limitation; when the judge is called upon to say or cross the boundary exactly, the uti possidetis line is not always obvious in territories that are difficult to access, the Court and the arbitrator must always turn to critical dates and look at where the administrative boundaries were.
Uti possidetis meant that you automatically have a border and that it cannot be unilaterally changed; this does not mean that borders are frozen and that borders cannot be changed; it can be changed either by agreement, the states concerned can conclude agreements and change borders.
In Africa even more than elsewhere, the borders drawn by the colonizer were perfectly arbitrary. There are therefore often many reasons to rectify these old borders, it must be done by agreement; touching the borders means moving very quickly towards armed conflicts.
At the same time, a formal agreement is not always required; if one State administers a portion of a State beyond the uti possidetis and the other State does nothing and is silent in response to the claims, this situation is sufficient to modify the uti possidetis rule; this is referred to as acquiescence to adverse claims and in particular the case of the territorial maritime and island dispute of El Salvador and Honduras.
The Court tells us at page 412 of the judgment, "it is obviously open to these States to modify by agreement the boundaries separating them, and certain forms of activity or inactivity could be deemed to be acquiescence at a different limit than in 1821. »
Some forms of activity or inactivity are a form of acquiescence to the prolonged adverse claim.
The principle of uti possidetis can be modified, but this must not come from unagreed unilateral attitudes because it raises conflicts.
General principle of border stability[edit | edit source]
The use possidetis is one aspect of this; in modern international law, there is a principle of border stability.
It has been expressed in various forms, as was the Hague Court in the Treah Vihar Temple case in 1962, "Generally speaking, when two countries define a border between them, one of their main objectives is to reach a stable and definitive solution. This is impossible if the route thus established can be challenged at any time on the basis of a constantly open procedure, and if rectification can be requested whenever an inaccuracy in relation to a provision of the basic treaty is discovered.
The principle of border stability aims to avoid conflicts and in particular armed conflicts and it is understandable because the border is a very sensitive issue, the border defines home, it is linked to a sense of security, but also to the well-being of populations; the population and States in modern times moreover with their way of conceiving things based on the idea of the nation further increases the sense of perimeter and security that distinguishes us from the other.
Border insecurity very easily generates unrest because it is psychologically traumatic.
In the practice of States, there is the development of the principle of border stability, which has a whole series of concrete implications.
In the Libya v. Chad case, the Court said that a boundary cannot be separated from the treaty, but the boundary remains if the treaty is extinguished; in the succession of States to the treaty, that is, when a territory moves from one to the other, there are principles in the Vienna Convention on Succession of States to the treaty. In Articles 11 and 12 there is the rule that treaties establish borders and that they contain territorial statutes.
The Vienna Convention states that it is not possible to assert a change of circumstances with regard to a border even if the circumstances have fundamentally changed; this is an application of the principle of border stability.
In a restrictive interpretation of the law of States, one should not unilaterally touch the providers; when it is in concert everything is possible or almost possible within the limits of the self-determination of peoples; when it is unilateral, one should be careful.
The effectivities[edit | edit source]
In the law of delimitation there is on the one hand the title either the treaty or the use possidetis; but it happens in life that the effectivities are not in conformity with the title, it is the things that happen on the ground and in particular who administers.
If we have a line set by a treaty that leaves part of the territory to State A, in fact for 80 years State B has been administering that small part of the territory and that is not in accordance with the treaty, but there is an effectiveness, a reality that has taken root. In the colonial field, we speak of colonial effectiveness.
The question is, what is the relationship between title and effectiveness?
As a general rule, there can be no doubt as to what the answer is, the title prevails because the treaty is the law and effectiveness and the fact, the fact cannot prevail over the law.
This rule is not without exception; first of all, if there is acquiescence, i.e. acquisitive prescription, effectiveness is recognized and similarly induced, but it is no longer a simple effectiveness, because there is an effective administration of the State that is not entitled, but the other State has acquiesced becoming something bilateral, there is an exercise of power; the title State has remained silent, creating a trust that it is losing interest in the territory.
At some point, courts consider that effectiveness has become law through the tacit acceptance of the other party.
The International Court of Justice has considered this type of problem, title on the one hand, effectiveness on the other, and has given it an extremely nuanced perspective, as was the case, for example, in the case of the border dispute between Burkina Faso and Mali in §63.
The Court refers to four possible relationships between effectiveness on the one hand and law on the other:
Effectiveness corresponds to the right, i.e. the title[edit | edit source]
Effectiveness is aligned with the law, the border must cross there and both states administer what the treaty has affected countries.
Effectiveness only occurs as confirmation of the title. The Chamber of the Court was able to apply this principle in the case of the land and island border dispute El Salvador v. Honduras in 1992.
El Salvador successfully presented a whole series of effectivities, presenting them as confirmation of its Spanish titles of uti possidetis. The Chamber of the Court confirmed El Salvador's reading or presents its arguments at page 397 §59.
Effectiveness does not correspond to the title[edit | edit source]
There is a divorce between the two and an opposition between effectiveness and title. The general rule is that the holder of the security should be preferred.
One situation in which the Court has had the opportunity to apply this rule is the dispute between the land and maritime border between Cameroon and Nigeria in 2002.
The Court concluded that in this case there was a conflict between Cameroon's conventional titles and Nigeria, which had the effectiveness, according to the title certain areas were allocated to Cameroon and Nigeria had entered these territories and administered them; according to the Court the holder of the title must prevail and therefore this territory belongs to Cameroon.
Effectiveness does not coexist with any title[edit | edit source]
We have effectiveness, but no title; in this case, according to the Court, effectiveness must be taken into consideration and will very often be decisive.
The case of sovereignty over Pulau Ligitan and Pulau Sipadan, is a 2002 case between Indonesia and Malaysia; these are two small islands relatively far from the central area of the States concerned, the Court discards the conventional titles that the parties have presented to it, because according to the interpretation that the Court gives to these treaties they do not extend so far into the sea.
If this is the case, there is no title and at the same time the successor States could not acquire the title.
What if you don't have a title?[edit | edit source]
The Court turns to effectivities, it notes that Malaysia has better effectivities; the Court notes that Indonesia has none that have not made any act of sovereignty.
Malaysia, on the other hand, can do two things: the executive regulatory activity relating to fishing, namely the capture of torture and birds and the construction and maintenance of lighthouses by means of navigation; these two activities are sufficient to give Malaysia the title.
Effectiveness coexists with a title, but the title is not clear[edit | edit source]
This is a fairly common situation, but it is no longer clear where the line passes.
The treaty may be unclear, the line uti possidetis or the description is inconclusive; in this case in particular in the case of effectiveness at the time the title was concluded because effectiveness immediately after the time of decolonization tends to show what the parties considered to be the title.
The presumption is that the parties administered the territory assigned at the time, if we no longer know where the uti possidetis line passes, then we must refer to the actual activities at the time of colonization, the parties behaved according to what they had agreed or what the law granted them.
In the El Salvador v. Honduras dispute, there was a problem with some islands in the Gulf of Fonseca; the old titles in this marginal area were not clear, so the Chamber of the Court considered it appropriate to take into account the actual conduct of the States concerned during the period immediately following independence, thus determining the respective membership of these islands in the Gulf of Fonseca drawing the border in this area.
Role of equity[edit | edit source]
This is not a fundamental role, but sometimes it is not insignificant; there are certain compromises, such as an agreement by which a dispute is submitted to an arbitrator or a judge, sometimes the arbitrator can rule in equity, he must not only limit himself to the title, but also to equitable considerations reflecting the effectiveness of the activities that have created links.
The arbitrator may for equitable reasons modify the boundary or draw one based on what he or she considers to be fair only when the parties agree, equity also plays a role in the interpretation of the title or in the filling of gaps in the title.
The first situation is that the arbitrator is free to draw certain lines, depending on what he considers fair, if the States agree to give him this mission, then the arbitrator will draw the border.
In other cases, the arbitrator does not have this mission; he cannot modify the law according to what he considers to be equity. In the latter case, the arbitrator is bound by the law and nevertheless equity can play a certain role.
The arbitrator applies the law and the treaty; there are two roles that equity can play:
Equity can be used by the arbitrator in interpreting the title, sometimes the title is not very clear, the description of the boundary line is confusing, the geomorphological aspects have changed over time, so if there is uncertainty in a certain area and the boundary could cross either here or there, then we could, since we are covered by the title, rely on equity.
If we draw the line according to line A possible according to the title, but if we take line 1 we are in a desert region where there are water points that are fundamental for the population, if we take line A the water points are all on the side of A. If line B, also possible according to the title, shares the water points either 2 between 2 or 1 against 3, there would be a reason to prefer line B because it shares more equitably water points that are crucial for the populations in the region.
If the shelter does not have the notion of modifying the law by equity, if line A is the one provided for by the title and one can say with certainty what is provided for then it is line A; the assumption is that the title is not clear allowing either line A or B because it is compatible with the description of the title; equity can intervene within the law to recommend interpretation B rather than interpretation A.
To fill gaps in the title, it may be defective in some areas. The most radical case is a line uti posidetis, if in the archives the documents relating to this sector of the border are missing, we have nothing. In this case, the judge or arbitrator applies the equity praeter legem, on the margins of the law and in reinforcement of the law, thus filling a gap, and will then fix a boundary assuming that the parties want him to fix the boundary.
It would be counterproductive and non-compliant if the arbitrator said that he cannot delimit, equity must be used at the edge and in support of the law.
In the case of the territorial and maritime island dispute El Salvador v. Honduras before the Chamber of the International Court of Justice there were six border sectors over a considerable number of kilometres which were to be delimited, in one of these sectors the border uti possidetis could no longer be determined as the sector between the source of the Negro-Quiagara River and the Malpaso de Similaton border pillar, between these two points the titles were not loquacious; the Chamber of the Court therefore relied on an 1869 treaty also concerning the area in question and said that it took over the border contained in that treaty because it seemed fair to it, the treaty was not applicable because it had not been ratified by the two States; a non-binding treaty was issued for a small part of the border which was inserted in the judgment on the basis of equity praeter legem, pages 514 - 515 of the 1982 Code.
Role of geographical maps[edit | edit source]
What is the value of maps in the delimitation?
The answer must be sought in a fundamental distinction that jurisprudence makes. In the judgment on the border dispute between Burkina Faso and Mali, on pages 582 and 583 of the compendiums, the distinction is between the cards of a whole that are an integral part of a treaty that is binding and all other cards that are not an integral part of a treaty and are not binding. The map was part of the treaty is supposed to be legally binding, the map is a legal standard with considerable weight that can be decisive. Such a case is mentioned in a border dispute between Somalia and Eritrea.
In all other cases, the maps are only sources of information of varying weight depending on their quality, technical reliability and the neutrality of the bodies that produced them.
Case law has sometimes shown annoyance because arbitrators and judges are flooded with it. The parties produce hundreds of maps, some of which have relative value, either inaccurate or contradictory; they have relatively limited usefulness; the case law pushes back a little bit, depending on the circumstances.
Such a map that is not part of a treaty may also become more important if it is acquiesced in.
If the opposing party accepts the relevance of this map, the arbitral award is relevant between Ethiopia and Eritrea in the collection of arbitral awards. The case law on page 115 teaches us that a map can question a line and does not necessarily need to have the same probative value.
When a map is produced only to confirm or question a line, but not to establish an asset, case law tells us that the probative value of this type of argument does not need to be subjected to the same force of conviction.
In the case of maritime delimitations, States such as Libya and Tunisia may be bordering and it is necessary to see where the boundary extends in order to separate their continental shelf from their territorial sea. There is the case where there are several States with States facing each other, so we must delimit, because this indicates that there is an overlap.
This whole branch of law is complicated because the fact of being applied, the configurations are different each time, all this influences the drawing of the lines, hence a rich but detailed jurisprudence on the principles applicable in this field.
The fundamental principles of inter-State relations[edit | edit source]
It is not a question of going into detail, but of making us aware of its existence, because this Article 2 contains almost all the rules of modern international law.
Resolutions 25 - 26 are an authentic interpretation of Article 2; Article 2 of the Statute on clear but nevertheless incomplete formulas that raise problems of interpretation.
The General Assembly has taken the trouble to adopt a resolution of great importance since it proposes to give everyone an interpretation of the provisions of article 2, which adds the principle of cooperation between States and the self-determination of peoples.
First paragraph[edit | edit source]
« L'Organisation est fondée sur le principe de l'égalité souveraine de tous ses Membres. »
It is a bizarre, caustic and even unexpected formulation because it merges two heterogeneous elements between "equality" and "sovereignty" by specifying that one is inseparable from the other. One State cannot impose its sovereignty on the other because this would violate the equality of sovereigns.
Sovereignty in 1945 had bad press, that was one of the reasons why the League of Nations had sunk, for aggressive powers had emanated the world from a long and hard war, a tendency to do whatever one wants; one wanted to infer this sovereignty in the reminder of equality, forcing one to take into account the other, because sovereignty is not a prerogative that one has alone.
On "sovereign equality", it seems important to understand what it says and does not say, on the principle of equality, what equality says is legal equality in the first place, i. e. the fact that no State can be considered as being diminished, there is no second category State but the first category on an equal footing.
It does not seem like much to us, but in 1945 it was not, we were emerging from the era of mandates, protectorates and colonies that continued to exist.
In other words, what Article 2 §1 seeks to achieve beyond the equal dignity of States is also the right recognized by international law for each State to have rights and obligations and to be subject to the same rights and obligations of general international law, each State has the same right to have rights and obligations and is subject to the same law and obligations of general international law.
There is also the part of what equality does not mean, first of all it would be wrong to say that each State has the same rights and obligations under international law; this is completely wrong. There is only the same capacity to have rights and obligations and the same capacity of general international law that does not apply to the particular law.
The State that has contracted will have more rights and obligations imposed on it under the treaty, the State that does not have a contract will not have these rights and obligations under the treaty. If we take the particular law all States differ, the more we are involved in particular legal situations the more rights and obligations we will have.
Secondly, equality also does not mean that States are de facto equal, States are de jure equal to a certain extent for general law, they are not de facto equal.
The large and powerful state is not de facto equal to the small and weak state, which does not prevent us from fighting for more equality between states.
Thereafter, the principle of equality is not a norm of ius cogens, it can be waived, as it is the case in all weighted voting systems or some States admit that they will not have the same weight in the vote. This status of inequality must be accepted by particular law which will prevail over the general rule of equality by virtue of the lex specials rule which prevails over the general rule from which the treaty derogates.
Finally, in resolution 25-26, States must be treated despite their differences, so there is no discrimination between States according to their political systems or otherwise legal equality cannot be modulated according to a State's political, economic and social orientations.
Paragraph 2[edit | edit source]
« Les Membres de l'Organisation, afin d'assurer à tous la jouissance des droits et avantages résultant de leur qualité de Membre, doivent remplir de bonne foi les obligations qu'ils ont assumées aux termes de la présente Charte. »
In paragraph 2 it is the question of good faith. This provision was inserted in 1945 in response to the "paper rag doctrine" that some states had applied since the First World War; what is a treaty against the dignity and survival of the German people: it is a paper rag.
We cannot have an international order based on a minimum of security, we oblige States to fulfil this charter in good faith.
In very brief terms, this paragraph recalls pacta sund servanda, treaties must be respected, applied and interpreted in good faith involving the spirit in such a way that the letter does not seek to avoid the spirit.
Paragraph 3[edit | edit source]
« Les Membres de l'Organisation règlent leurs différends internationaux par des moyens pacifiques, de telle manière que la paix et la sécurité internationales ainsi que la justice ne soient pas mises en danger. »
This is an important rule of modern international law that gives rise to a whole branch of international law; it is sometimes rightly said that nothing can be stronger than the weakest link.
Paragraph[edit | edit source]
« Les Membres de l'Organisation s'abstiennent, dans leurs relations internationales, de recourir à la menace ou à l'emploi de la force, soit contre l'intégrité territoriale ou l'indépendance politique de tout État, soit de toute autre manière incompatible avec les buts des Nations Unies. »
This is a very fundamental principle of modern international law, since it is a principle of great importance, it is impossible to summarize it in any word.
Paragraph[edit | edit source]
« Les Membres de l'Organisation donnent à celle-ci pleine assistance dans toute action entreprise par elle conformément aux dispositions de la présente Charte et s'abstiennent de prêter assistance à un État contre lequel l'Organisation entreprend une action préventive ou coercitive. »
It is the assistance that members owe to the organization when it takes action under either Chapter 7 or the Security Council that is pending peace-keeping measures that are therefore binding. All States have an obligation to assist the United Nations in the implementation of sanctions.
Paragraph 6[edit | edit source]
« L'Organisation fait en sorte que les États qui ne sont pas Membres des Nations Unies agissent conformément à ces principes dans la mesure nécessaire au maintien de la paix et de la sécurité internationales. »
This paragraph refers to non-member States following in the footsteps of paragraph 5; in paragraph 5, all members must collectively implement sanctions and cooperate if necessary.
The problem with non-member States and the fact that they are not bound by collective discipline, sanctions may prove ineffective, which is why paragraph 6 asks the United Nations to approach third States so that they apply United Nations measures or at least do not thwart them.
Paragraph 7[edit | edit source]
« Aucune disposition de la présente Charte n'autorise les Nations Unies à intervenir dans des affaires qui relèvent essentiellement de la compétence nationale d'un État ni n'oblige les Membres à soumettre des affaires de ce genre à une procédure de règlement aux termes de la présente Charte; toutefois, ce principe ne porte en rien atteinte à l'application des mesures de coercition prévues au Chapitre VII. »
Nothing in the present Charter shall authorize the United Nations to intervene in the internal affairs of States.
This provision does not make much legal sense, it was inserted because it was very important to some powerful States.
The United States to pass the charter to Congress and the USSR because it had a morbid conception of internal affairs, inserted a non-intervention clause.
The 7 only concerns United Nations intervention in internal affairs, but the intervention of one State in the internal affairs of another State is another principle.
Either the United Nations has a competence recognized in the Charter and it can always exercise it or an organization does not have a competence because it is not recognized in the Charter. At that time, it cannot exercise it, so there is nothing left for the principle of non-intervention; there is only something political left, but nothing much more tangible.
The competences of the United Nations cannot even be interpreted restrictively; any matter with international repercussions falls within the competence of the United Nations, the counterpart is that the Assembly can only recommend protecting the sovereignty of States, it is only discussing.
Paragraph 7 does not apply to the Security Council under article 7 and chapter 14, a political concession has been made because States love their internal affairs, but this rule does not make much sense, or one has competence and one can exercise it or one does not have competence and one cannot exercise it anyway.
The principle of non-use of force[edit | edit source]
Annexes[edit | edit source]
- Conforti, B. (1986) Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem. Cornell International Law Journal. 19 (2), 249–258.
- “Uti Possidetis.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/uti-possidetis.
- Uti Possidetis Iuris - International Law - Oxford Bibliographies, 19 Sept. 2018, www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0065.xml.
References[edit | edit source]
- Sahara occidental, avis consultatif; C.I.J. Recueil 1975, p. 12. (COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES SAHARA OCCIDENTAL AVIS CONSULTATIF DU 16 OCTOBRE 1975)
- Sahara occidental, avis consultatif; C.I.J. Recueil 1975, p. 12. (COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES SAHARA OCCIDENTAL AVIS CONSULTATIF DU 16 OCTOBRE 1975)"Dans la présente affaire, les renseignements dont la Cour dispose montrent qu'au moment de la colonisation espagnole il existait de nombreux liens d'ordre racial, linguistique, religieux, culturel et économique entre des tribus et émirats dont les populations habitaient la région saharienne qui fait aujourd'hui partie du territoire du Sahara occidental et de la République islamique de Mauritanie. Cependant ces renseignements révèlent aussi l'indépendance des émirats et de nombre de ces tribus les uns à l'égard des autres et, malgré certaines formes d'activité commune, l'absence d'institutions ou d'organes, même réduits au minimum, qui leur auraient été commun. La Cour ne peut donc conclure que les éléments en sa possession permettent de considérer que les émirats et tribus existant dans la région constituaient, suivant une autre expression utilisée par la Cour dans l'affaire de la Réparation des dommages subis au service des Nations Unies, « une entité capable d'être bénéficiaire d'obligations incombant à ses membres » (ibid., p. 178). Que l'on définisse l'ensemble mauritanien comme le Bilad Chinguitti, ou comme la nation chinguittienne ainsi que la Mauritanie le suggère, ou encore comme une forme de ligue ou d'association, la difficulté demeure qu'il n'avait pas le caractère d'une personne ou d'une entité juridique distincte des divers émirats et tribus qui le constituaient. On ne peut donc accepter la thèse suivant laquelle le il ad Chinguiti aurait été une « entité » ou un « ensemble » mauritanien jouissant d'une certaine forme de souveraineté au Sahara occidental"
- PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE INTERNATIONALE SÉRIE A - N10; Le 7 septembre 1927 - RECUEIL DES ARRETS AFFAIRE DU « LOTUS »)
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- COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES - AFFAIRE DU DETROIT DE CORFOU (FOND) - ARRET DU 9 AVRIL 1949
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- "Pobre México tan lejos de Dios y tan cerca de Estados Unidos. En realidad fue escrita por Nemesio García Naranjo, intelectual regiomontano" - Malos Vecinos, Ángeles González Gamio; La Jornada
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- COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRETS, AVIS CONSULTATIFS ET ORDONNANCES - AFFAIRE NOTTEBOHM (LIECHTENSTEIN c. GUATEMALA), DEUXIÈME PHASE - ARRÊT DU 6 AVRIL 1955
- 0.748.131.934.91 - Texte original Convention entre la Suisse et la France concernant l'aménagement de l'aéroport de Genève-Cointrin et la création de bureaux à contrôles nationaux juxtaposés à Ferney-Voltaire et à Genève-Cointrin Conclue le 25 avril 1956 Approuvée par l'Assemblée fédérale le 5 oct. 1956 Entré en vigueur le 6 mars 1958
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