International law, Sixth edition
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International Law MALCOLM N. SHAW
Eritrea/Ethiopia case, 130 ILR, pp. 1, 102–3.
119 Ibid., p. 43. 120 See the Benin/Niger case, ICJ Reports, 2005, pp. 90, 120. See also the views of the Arbitra- tion Commission of the Conference on Yugoslavia in Opinion No. 11 as to the varying dates of succession (and independence) of the successor states of the Former Yugoslavia: see 96 ILR, pp. 719, 722. 121 See the Burkino Faso/Mali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440, and the Dubai/Sharjah case, 91 ILR, pp. 590–4 for examples where the concept was held to be of little or no practical value. 122 See e.g. Nicaragua v. Honduras, ICJ Reports, 2007, para. 123. 123 As in the Libya/Chad case, ICJ Reports, 1994, p. 6; 100 ILR, p. 1. 124 See the Burkina Faso/Mali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440. 125 See the El Salvador/Honduras case, ICJ Reports, 1992, pp. 56 ff.; 97 ILR, p. 112. 126 See the Beagle Channel case, 21 RIAA, pp. 55, 82–3; 52 ILR, p. 93. 127 The El Salvador/Honduras case, ICJ Reports, 1992, p. 401; 97 ILR, p. 112. See also the Burkina Faso/Mali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440, and the Separate Opinion of Judge Ajibola, the Libya/Chad case, ICJ Reports, 1994, p. 91; 100 ILR, p. 1. 128 See e.g. the Burkino Faso/Mali case, ICJ Reports, 1986, p. 570; 80 ILR, p. 440, for an example where the concept was held to be of little or no practical value. A similar view t e r r i t o ry 511 Sovereign activities (effectivit´es) The exercise of effective authority, therefore, is the crucial element. As Huber argued, ‘the actual continuous and peaceful display of state func- tions is in case of dispute the sound and natural criterion of territorial sovereignty’. 129 However, control, although needing to be effective, does not necessarily have to amount to possession and settlement of all of the territory claimed. Precisely what acts of sovereignty are necessary to found title will depend in each instance upon all the relevant circumstances of the case, including the nature of the territory involved, the amount of opposition (if any) that such acts on the part of the claimant state have aroused, and international reaction. Indeed in international law many titles will be deemed to exist not as absolute but as relative concepts. The state succeeding in its claim for sovereignty over terra nullius over the claims of other states will in most cases have proved not an absolute title, but one relatively better than that maintained by competing states and one that may take into account issues such as geography and international responses. 130 The Court noted in the Eastern Greenland case that ‘It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other state could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.’ 131 However, the arbitral tribunal in Eritrea/Yemen emphasised that the issue did not turn solely upon relativity since ‘there must be some absolute minimum requirement’ for the acquisition of territorial sovereignty. 132 was taken in the Dubai/Sharjah case, 91 ILR, pp. 590–4 and the Eritrea/Yemen Arbitration, 114 ILR, pp. 1, 32. 129 2 RIAA, pp. 829, 840 (1928). The Tribunal in Eritrea/Yemen noted that ‘The modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis’, 114 ILR, pp. 1, 69. 130 See the Island of Palmas case, 2 RIAA, pp. 829, 840 (1928); 4 AD, p. 103. See also the Download 7.77 Mb. Do'stlaringiz bilan baham: |
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