International law, Sixth edition
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International Law MALCOLM N. SHAW
Keesing’s, p. 37661. See also 30 ILM, 1991, pp. 457 and 498.
161 See 29 ILM, 1990, p. 1186. 162 See 30 ILM, 1991, p. 445. See also the Exchange of Notes of the same date concerning the presence of allied troops in Berlin, ibid., p. 450. 163 Brownlie, Principles, pp. 113–14. See also O’Connell, International Law, pp. 327–8; A. Coret, Le Condominium, Paris, 1960; Oppenheim’s International Law, p. 565, and V. P. Bantz, ‘The International Legal Status of Condominia’, 12 Florida Journal of International Law, 1998, p. 77. t h e s u b j e c t s o f i n t e r nat i o na l l aw 229 over the area. 164 A Protocol listed the functions of the condominial gov- ernment and vested the power to issue joint regulations respecting them in a British and a French High Commissioner. This power was delegated to resident commissioners who dealt with their respective nationals. Three governmental systems accordingly co-existed, with something of a legal vacuum with regard to land tenure and the civil transactions of the in- digenous population. 165 The process leading to the independence of the territory also reflected its unique status as a condominium. 166 It was noted that the usual independence Bill would not have been appropriate, since the New Hebrides was not a British colony. Its legal status as an Anglo- French condominium had been established by international agreement and could only be terminated in the same fashion. The nature of the con- dominium was such that it assumed that the two metropolitan powers would always act together and unilateral action was not provided for in the basic constitutional documents. 167 The territory became independent on 30 July 1980 as the state of Vanuatu. The entity involved prior to independence grew out of an international treaty and established an ad- ministrative entity arguably distinct from its metropolitan governments but more likely operating on the basis of a form of joint agency with a range of delegated powers. 168 The Central American Court of Justice in 1917 169 held that a condo- minium existed with respect to the Gulf of Fonseca providing for rights of co-ownership of the three coastal states of Nicaragua, El Salvador and Honduras. The issue was raised in the El Salvador/Honduras case before 164 See e.g. 99 BFSP, p. 229 and 114 BFSP, p. 212. 165 O’Connell, International Law, p. 328. 166 Lord Trefgarne, the government spokesman, moving the second reading of the New Hebrides Bill in the House of Lords, 404 HL Deb., cols. 1091–2, 4 February 1980. 167 See Mr Luce, Foreign Office Minister, 980 HC Deb., col. 682, 8 March 1980 and 985 HC Deb., col. 1250, 3 June 1980. See also D. P. O’Connell, ‘The Condominium of the New Hebrides’, 43 BYIL, p. 71. 168 See also the joint Saudi Arabian–Kuwaiti administered Neutral Zone based on the treaty of 2 December 1922, 133 BFSP, 1930 Part II, pp. 726–7. See e.g. The Middle East (ed. P. Mansfield), 4th edn, London, 1973, p. 187. Both states enjoyed an equal right of undivided sovereignty over the whole area. However, on 7 July 1965, both states signed an agreement to partition the neutral zone, although the territory apparently retained its condominium status for exploration of resources purposes: see 4 ILM, 1965, p. 1134, and H. M. Alba- harna, The Legal Status of the Arabian Gulf States, 2nd rev. edn, Beirut, 1975, pp. 264–77. See also F. Ali Taha, ‘Some Legal Aspects of the Anglo-Egyptian Condominium over the Sudan: 1899–1954’, 76 BYIL, 2005, p. 337. 169 11 AJIL, 1917, p. 674. 230 i n t e r nat i o na l l aw the International Court of Justice. 170 The Court noted that a condominium arrangement being ‘a structured system for the joint exercise of sovereign governmental powers over a territory’ was normally created by agreement between the states concerned, although it could be created as a juridical consequence of a succession of states (as in the Gulf of Fonseca situation itself), being one of the ways in which territorial sovereignty could pass from one state to another. The Court concluded that the waters of the Gulf of Fonseca beyond the three-mile territorial sea were historic waters and subject to a joint sovereignty of the three coastal states. It based its decision, apart from the 1917 judgment, upon the historic character of the Gulf waters, the consistent claims of the three coastal states and the absence of protest from other states. 171 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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