International law, Sixth edition
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International Law MALCOLM N. SHAW
Beyond uti possidetis
The principle of uti possidetis is not able to resolve all territorial or bound- ary problems. 233 Where there is a relevant applicable treaty, then this will 229 92 ILR, p. 168. See also A. Pellet, ‘Note sur la Commission d’Arbitrage de la Conf´erence Europ´eenne pour la Paix en Yugoslavie’, AFDI, 1991, p. 329, and Pellet, ‘Activit´e de la Commission d’Arbitrage de la Conf´erence Europ´eenne pour la Paix en Yugoslavie’, AFDI, 1992, p. 220. 230 The Arbitration Commission was here dealing specifically with the internal boundaries between Serbia and Croatia and Serbia and Bosnia-Herzegovina. 231 92 ILR, p. 171. The Arbitration Commission specifically cited here the views of the International Court in the Burkina Faso/Mali case: see above, p. 526. Note also that the Under-Secretary of State of the Foreign and Commonwealth Office stated in January 1992 that ‘the borders of Croatia will become the frontiers of independent Croatia, so there is no doubt about that particular issue. That has been agreed amongst the Twelve, that will be our attitude towards those borders. They will just be changed from being republican borders to international frontiers’, UKMIL, 63 BYIL, 1992, p. 719. 232 See e.g. M. N. Shaw, ‘Peoples, Territorialism and Boundaries’, 3 EJIL, 1997, pp. 477, 504, but cf. S. Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’, 90 AJIL, 1996, pp. 590, 613 ff. and M. Craven, ‘The European Community Arbitration Commission on Yugoslavia’, 65 BYIL, 1995, pp. 333, 385 ff. 233 See generally K. H. Kaikobad, Interpretation and Revision of International Boundary De- cisions, Cambridge, 2007; M. Kohen, ‘La Relation Titres/Effectivit´es dans le Contentieux Territorial `a la Lumi`ere de la Jurisprudence R´ecente’, 108 RGDIP, 2004, p. 561; M. Mendel- son, ‘The Cameroon–Nigeria Case in the International Court of Justice: Some Territorial Sovereignty and Boundary Delimitation Issues’, 75 BYIL, 2004, p. 223; B. H. Oxman, ‘The Territorial Temptation: A Siren Song at Sea’, 100 AJIL, 2006, p. 830, and S. R. Ratner, ‘Land Feuds and Their Solutions: Finding International Law Beyond the Tribunal Chamber’, 100 AJIL, 2006, p. 808. Note that the International Court has emphasised that the principle of uti possidetis applies to territorial as well as boundary problems: see the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case, ICJ Reports, 1992, pp. 351, 387; 97 ILR, pp. 266, 300. t e r r i t o ry 529 dispose of the matter completely. 234 Indeed, once defined in a treaty, an international frontier achieves permanence so that even if the treaty it- self were to cease to be in force, the continuance of the boundary would be unaffected and may only be changed with the consent of the states directly concerned. 235 On the other hand, where the line which is being transformed into an international boundary by virtue of the principle cannot be conclusively identified by recourse to authoritative material, then the principle of uti possidetis must allow for the application of other principles and rules. Essentially these other principles focus upon the notion of effectivit´es or effective control. The issue was extensively analysed by the International Court in the Burkina Faso/Mali case 236 and later in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening) case. 237 The Court noted the possible relevance of colonial effectivit´es, immediate post-colonial effectivit´es and more recent effectivit´es. Each of these might be relevant in the context of seeking to determine the uti possidetis pre- independence line. In the case of colonial effectivit´es, i.e. the conduct of the colonial administrators as proof of the effective exercise of territo- rial jurisdiction in the area during the colonial period, the Court in the former case distinguished between certain situations. Where the act con- cerned corresponded to the title comprised in the uti possidetis juris, then the effectivit´es simply confirmed the exercise of the right derived from a legal title. Where the act did not correspond with the law as described, i.e. the territory subject to the dispute was effectively administered by a state other than the one possessing the legal title, preference would be given to the holder of the title. In other words, where there was a clear Download 7.77 Mb. Do'stlaringiz bilan baham: |
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