International law, Sixth edition
party. The requirement of a ‘reasonable period’ of possession is similarly
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International Law MALCOLM N. SHAW
party. The requirement of a ‘reasonable period’ of possession is similarly imprecise and it is not possible to point to any defined length of time. 97 It will depend, as so much else, upon all the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims. In the Minquiers and Ecrehos case, 98 concerning disputed sovereignty over a group of islets and rocks in the English Channel, claimed by both France and the United Kingdom, the International Court of Justice ex- haustively examined the history of the region since 1066. However, its decision was based primarily on relatively recent acts relating to the ex- ercise of jurisdiction and local administration as well as the nature of 95 See above, p. 500, and below, chapter 20. 96 See e.g. Johnson, ‘Acquisitive Prescription’, pp. 353–4, and I. MacGibbon, ‘Some Obser- vations on the Part of Protest in International Law’, 30 BYIL, 1953, p. 293. Cf. Brownlie, Principles, p. 149, who notes that ‘if acquiescence is the crux of the matter (and it is believed that it is) one cannot dictate what its content is to be’. 97 In the British Guiana and Venezuela Boundary case, the parties agreed to adopt a fifty-year adverse holding rule, 89 BFSP, 1896, p. 57. 98 ICJ Reports, 1953, p. 47; 20 ILR, p. 94. t e r r i t o ry 507 legislative enactments referable to the territory in question. And upon these grounds, British sovereignty was upheld. The sovereign acts of the United Kingdom relating to the islets far outweighed any such activities by the French authorities and accordingly the claims of the latter were dismissed. As in other cases, judgment was given not on the basis of clearly defined categories of occupation or prescription, but rather in the light of the balance of competing state activities. De Visscher has attempted to render the theoretical classifications more consonant with the practical realities by the introduction of the concept of historical consolidation. 99 This idea is founded on proven long use, which reflects a complex of interests and relations resulting in the acquisition of territory (including parts of the sea). Such a grouping of interests and relations is considered by the courts in reaching a decision as of more importance than the mere passage of time, and historical consolidation may apply to terra nullius as well as to territories previously occupied. Thus it can be distinguished from prescription. It differs from occupation in that the concept has relevance to the acquisition of parts of the sea, as well as of land. And it may be brought into existence not only by acquiescence and consent, but also by the absence of protest over a reasonable period by relevant states. 100 However, de Visscher’s discussion, based on the Anglo-Norwegian Fish- eries case, 101 does fail to note the important distinction between the acqui- sition of territory in accordance with the rules of international law, and the acquisition of territory as a permitted exception to the generally ac- cepted legal principles. The passage in the Anglo-Norwegian Fisheries case relied upon 102 is really concerned with general acquiescence with regard to a maritime area, while the criticism has been made 103 that de Visscher has over-emphasised the aspect of ‘complex of interests and relations which in themselves have the effect of attaching a territory or an expanse of sea to a given state’. 104 Effectiveness, therefore, rather than consolidation would be the appropriate term. Both occupation and prescription rely primarily upon effective possession and control. The element of time is here also relevant as it affects the effectiveness of control. 99 Theory and Reality in Public International Law, 1968, p. 209. See below, p. 520. 100 Ibid. 101 ICJ Reports, 1951, pp. 116, 138; 18 ILR, pp. 86, 100. 102 Ibid. 103 See Jennings, Acquisition, pp. 25–6. See also D. H. Johnson, ‘Consolidation as a Root of Title in International Law’, Cambridge Law Journal, 1955, pp. 215, 223. 104 De Visscher, Theory and Reality, p. 209, emphasis added. See further below, p. 515. 508 i n t e r nat i o na l l aw Intertemporal law 105 One question that arises is the problem of changing conditions related to Download 7.77 Mb. Do'stlaringiz bilan baham: |
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