International law, Sixth edition
particular state. By this method the complicated theoretical issues related
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
- Bu sahifa navigatsiya:
- The acquisition of additional territory
particular state. By this method the complicated theoretical issues related to recognition are avoided. Some support for this view can be found in the provision in the 1970 Declaration on Principles of International Law that the territory of a colony or other non-self-governing entity possesses, un- der the United Nations Charter, a status separate and distinct from that of the administering power, which exists until the people have exercised the right of self-determination. 38 However, the proposition is a controversial one and must remain tentative. 39 The acquisition of additional territory The classical technique of categorising the various modes of acquisition of territory is based on Roman law and is not adequate. 40 Many of the leading cases do not specify a particular category or mode but tend to adopt an overall approach. Five modes of acquisition are usually detailed: occu- pation of terra nullius, prescription, cession, accretion and subjugation (or conquest); and these are further divided into original and derivative modes. 41 Boundary treaties and boundary awards Boundary treaties, whereby either additional territory is acquired or lost or uncertain boundaries are clarified by agreement between the states concerned, constitute a root of title in themselves. They constitute a special 36 Starke, ‘Acquisition of Title’, p. 413. See also Jennings, Acquisition, p. 37. 37 See above, chapter 9, p. 445. 38 See the Namibia case, ICJ Reports, 1971, pp. 16, 31; 49 ILR, pp. 2, 21. 39 See Shaw, Title to Territory, pp. 171–3. 40 See O’Connell, International Law, p. 405. 41 See Oppenheim’s International Law, p. 677, and Brownlie, Principles, pp. 127 ff. 496 i n t e r nat i o na l l aw kind of treaty in that they establish an objective territorial regime valid erga omnes. 42 Such a regime will not only create rights binding also upon third states, but will exist outside of the particular boundary treaty and thus will continue even if the treaty in question itself ceases to apply. 43 The reason for this exceptional approach is to be found in the need for the stability of boundaries. 44 Further, the establishment or confirmation of a particular boundary line by way of referring in a treaty to an earlier document (which may or may not be binding of itself) laying down a line is also possible and as such invests the line in question with undoubted validity. 45 Indeed, this earlier document may also be a map upon which a line has been drawn. Accordingly, many boundary disputes in fact revolve around the ques- tion of treaty interpretation. It is accepted that a treaty should be inter- preted in the light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969, ‘in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose’. 46 Essentially the aim is to find the ‘common will’ of the parties, a concept which includes consideration of the subsequent conduct of the parties. 47 Since many of the boundary treaties that need to be interpreted long pre-date the coming into force of the Vienna Con- vention, 48 the problem of the applicability of its provisions has arisen. Courts have taken the view that the Convention in this respect at least represents customary international law, thus apparently obviating the problem. 49 More generally, the difficulty in seeking to interpret both gen- eral concepts and geographical locations used in early treaties in the 42 See Eritrea/Yemen 114 ILR, p. 48. 43 See Libya/Chad, ICJ Reports, 1994, pp. 6, 37; 100 ILR, p. 1. 44 Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling