国际公法英文课件：territory.pptx

TERRITORY1 Four types of regime: (1)Territorial sovereignty (including condominium) (2)Territorial not subject to the sovereignty of any state(s) and which possesses a status of its own: trust territories, etc. (3) res nullius (4) res communis Exceptional cases: Antactica, etc. 2 Key terms and distinctions (1) Competence sovereignty / jurisdiction (2) sovereignty (imperium)/ ownership (dominium) (3) sovereignty (legal personality accompanied by independence) / administration (4) “sovereign rights” (eg, continental shelf)3 Administration separated form sovereignty: - terminable and reversionary rights: Monaco; Mandatories (Germany) - residual sovereignty: Ryuku Islands (Treaty of Peace of 1951, Art. 3) - international lease: Hong Kong, Macao, Panama Canal Zone, Guantanamo Bay (1903 Lease, Art. III) - (protectorate)4 The Antarctic Treaty, 1959, Art. IV: 1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other States right of or claim or basis of claim to territorial sovereignty in Antarctica.5 Art. IV: 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty shall be asserted while the present Treaty is in force.6Acquisition and Transfer of Territorial Sovereignty Basic principles: “Roman law” modes: occupation, accretion, cession, conquest, prescription Original and historical title Effective occupation Cession Adjudication7 Effective occupation “Possession” State activity (acts of administration) Eritrea / Yemen (arbitration award 1996) (239)“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.” 8 (i) Discovery Title by discovery is only an inchoate title. Island of Palmas case “since the 19th century, an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered.”9 (ii) Symbolic annexation Symbolic annexation does not give title except in special circumstances; it is only a part of evidence of state activity. Clipperton Island (Mexico/France, arbitral award) “outre animus occupandi, la prise de possession matrielle et non fictive est une condition ncessaire de loccupation. si un territoire, par le fait quil tait compltement inhabit, est, ds le premier moment o ltat occupant y fait son apparition, la disposition absolue et inconteste de cet tat, la prise de possession doit tre considre, partir de ce moment, comme accomplie et loccupation est acheve par cela mme.”10 (iii) Effective and continuous display of state authority Island of Palmas case (arbitral award, 1928) In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration.11 Under the Palmas award, three important rules for resolving island territorial disputes were decided: Firstly, title based on contiguity has no standing in international law. Secondly, title by discovery is only an inchoate title. Thirdly, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.12 PCA , Eastern Greenland (Denmark / Norway, 1933) ICJ, Minquiers and Erechos (UK/France 1953) Where there is genuine doubt about the effectiveness of a states control over territory, the loyalties of the inhabitants, the fact that the territory has traditionally formed part of a larger administrative unit, the ratification of the state on the appropriation of territory by private persons, etc. may constitute evidence of effective control by a claimant state.13 (iv) The intention to act as sovereign Aminus occupandi Anmius possidendi “ titre souverain”14 Cession The transfer of territory, usually by treaty, from one state to another. Island of Palmas “nemo dat quod non habet (nobody g。