International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Beagle Channel case, HMSO, 1977; 52 ILR, p. 93, and Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras), ICJ Reports, 1992, pp. 351, 544; 97 ILR, pp. 266, 299–300. 219 AHG/Res.16(1). See Security Council resolution 1234 (1999) which refers directly to OAU resolution 16(1) and see also article 4(i) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 2002, and the preamble to the Protocol on Politics, Defence and Security Cooperation adopted by the Southern African Development Community in 2001: see further below, chapter 18, p. 1026. See Shaw, Title to Territory, pp. 185–7. See also the Separate Opinion by Judge Ajibola in the Libya/Chad case, ICJ Reports, pp. 6, 83 ff.; 100 ILR, pp. 1, 81 ff. 220 Shaw, Title to Territory, chapter 5. The principle has also been noted in Asian practice: see e.g. the Temple of Preah Vihear case, ICJ Reports, 1962, p. 6; 33 ILR, p. 48, and the Rann of Kutch case, 7 ILM, 1968, p. 633; 50 ILR, p. 2. 221 ICJ Reports, 1986, p. 554; 80 ILR, p. 459. 222 ICJ Reports, 1986, p. 557; 80 ILR, p. 462. 223 ICJ Reports, 1986, p. 565; 80 ILR, p. 469. t e r r i t o ry 527 and stability of new states being endangered by fratricidal struggles pro- voked by the challenging of frontiers following the withdrawal of the administering power’. 224 The application of the principle has the effect of freezing the territorial title existing at the moment of independence to produce what the Chamber described as the ‘photograph of the ter- ritory’ at the critical date. 225 The Chamber, however, went further than emphasising the application of the principle to Africa. It declared that the principle applied generally and was logically connected with the phe- nomenon of independence wherever it occurred in order to protect the independence and stability of new states. 226 Uti possidetis was defined as follows: The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between differ- ent administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term. 227 The application of this principle beyond the purely colonial context was underlined particularly with regard to the former USSR 228 and the former Yugoslavia. In the latter case, the Yugoslav Arbitration Commission es- tablished by the European Community and accepted by the states of the former Yugoslavia made several relevant comments. In Opinion No. 2, the Arbitration Commission declared that ‘whatever the circumstances, the right to self-determination must not involve changes to existing 224 Ibid. 225 ICJ Reports, 1986, p. 568; 80 ILR, p. 473. See, as to the notion of critical date, above, p. 509. 226 ICJ Reports, 1986, p. 565; 80 ILR, p. 470. 227 ICJ Reports, 1986, p. 566; 80 ILR, p. 459. This was reaffirmed by the Court in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case, ICJ Reports, 1992, pp. 351, 386–7; 97 ILR, pp. 266, 299–300. The Court in the latter case went on to note that ‘uti possidetis juris is essentially a retrospective principle, investing as interna- tional boundaries administrative limits intended originally for quite other purposes’, ibid., p. 388; 79 ILR, p. 301. See M. N. Shaw, ‘Case Concerning the Land, Island and Maritime Frontier Dispute’, 42 ICLQ, 1993, p. 929. See also Nicaragua v. Honduras, ICJ Reports, 2007, paras. 151 ff. 228 See e.g. R. Yakemtchouk, ‘Les Conflits de Territoires and de Fronti`eres dans les ´Etats de l’Ex-URSS’, AFDI, 1993, p. 401. See also, with regard to the application of uti possidetis to the dissolution of the Czech and Slovak Federal Republic, J. Malenovsky, ‘Probl`emes Juridiques Li´es `a la Partition de la Tch´ecoslovaquie’, ibid., p. 328. 528 i n t e r nat i o na l l aw frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise’. 229 In Opinion No. 3, the Arbitration Commission emphasised that, except where otherwise agreed, the for- mer boundaries 230 became frontiers protected by international law. This conclusion, it was stated, derived from the principle of respect for the territorial status quo and from the principle of uti possidetis. 231 It is thus arguable that, at the least, a presumption exists that, in the absence of evidence to the contrary, internally defined units within a pre-existing sovereign state will come to independence within the spatial framework of that territorially defined unit. 232 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