The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law

2006 ◽  
Vol 19 (4) ◽  
pp. 1041-1075
Author(s):  
GIOVANNI DISTEFANO
Keyword(s):  
Present Article ◽  
Theoretical Approach ◽  
Case Law ◽  
International Agreements ◽  
Territorial Disputes ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Territorial Sovereignty ◽  
International Court ◽  
Legal Processes

The present article aims to examine a set of legal constructions related to the concept of legal title in territorial disputes. Any international jurist cannot but strongly feel the need of a theoretical approach and framework explaining the acquisition and loss of territorial sovereignty. This conceptualization will be put to the test in the light of the ICI's case law, especially, but not exclusively, the most recent ones. To this end, the article is structured in three main parts in addition to introduction: the first will be devoted to the building of a comprehensive concept of territorial title while rejecting the traditional ‘modes of acquisition’ of territorial sovereignty (part 2). Part 3 will deal with the legal processes through which territorial titles are actually created, extinguished, or modified: roughly speaking, this happens by an international agreements (legal acts) or by virtue of norm-creating facts. Last, but not least, we shall examine – in part 4 – the highly debated and sensitive topic of the relations between effectiveness and formal legal title from the standpoint of the establishment or loss of territorial sovereignty. As we have endeavoured to show in this writing the concept of legal title reunites and resolves the tension between fact (effectiveness) and formal gegal title (law). In this respect four situations will be put under scrutiny in order ultimately to test our construction of a new concept of territorial title.

The objects and effects of non-party intervention before the International Court of Justice

2021 ◽  
pp. 1-21
Author(s):  
Zeno Crespi Reghizzi
Keyword(s):  
Present Article ◽  
Case Law ◽  
International Court Of Justice ◽  
Binding Effect ◽  
Court Of Justice ◽  
International Court ◽  
Potential Binding ◽  
Legal Nature ◽  
State Practice ◽  
Traditional Construction

Abstract The International Court of Justice recognized the legitimacy of ‘non-party intervention’ under Article 62 of the Statute in its 1990 landmark decision on Nicaragua’s intervention in the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras). Such form of intervention ‘is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court’. Its purpose is ‘protecting a State’s “interest of a legal nature” that might be affected by a decision in an existing case’. Whereas non-party intervention under Article 62 now forms part of the law in action within the Court’s system, its precise features and regime remain uncertain. Doubts concern the identification of its precise objects and the potential binding effects for a non-party intervener of the judgment issued between the original parties. The present article explores these issues in the light of the Court’s case law and state practice. It demonstrates that non-party intervention can have various potential objects, depending on how the intervener intends to influence the future judgment between the original parties. Building on the identification of these objects, it then questions the traditional construction denying any binding effect of the decision for a non-party intervener and argues that a judgment issued following intervention is binding as between the original parties and the intervener in so far as this judgment, whether expressly or by implication, decides issues related to the object of intervention.

Reflections on Maritime Delimitation in the Qatar/Bahrain Case

2003 ◽  
Vol 52 (1) ◽  
pp. 53-80 ◽  
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
Case Law ◽  
Customary Law ◽  
Territorial Disputes ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
New Development ◽  
The Status ◽  
The Icj ◽  
First Time

After nearly 10 years of proceedings before the International Court of Justice (ICJ), the Court, on 16 March 2001, rendered the decision concerning maritime delimitation and territorial questions between Qatar and Bahrain. One may identify two interesting features in this judgment. First, the ICJ, in the Qatar/Bahrain case (Merits), peacefully resolved a difficult dispute regarding territorial sovereignty as well as maritime delimitation.1 In this connection, a question which arises is the interrelation between territorial disputes and maritime delimitation.2 As will be seen later, the status of low-tide elevations, in particular, generated a serious disputes between the Parties. Secondly, the equidistance method was, for the first time in the case law of the ICJ, explicitly applied to a delimitation between States with adjacent coasts under customary law. Considering that the Court has been reluctant to apply the equidistance method to delimitations in situations of adjacency, this may be said to be a new development.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

Fiat iustitia . . . Professor Krzysztof Skubiszewski and His Vision of the Relations Between the International Court of Justice and the Security Council

2016 ◽  
Vol 18 (2) ◽  
pp. 129-150
Author(s):  
Bartłomiej Krzan
Keyword(s):  
United Nations ◽  
Present Article ◽  
Security Council ◽  
International Court Of Justice ◽  
Late Professor ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations

The present article addresses the legacy of the late Professor Krzysztof Skubiszewski with a view to analysing his vision of the judicial function of the International Court of Justice vis-à-vis the Security Council. Although the issue has attracted much scholarly and practical attention, it may be argued that the position taken by Skubiszewski, successfully combining theory with practice, remains highly relevant despite the lapse of time and subsequent developments. The relations between the two main organs of the United Nations are examined particularly in the light of the latest jurisprudence of the International Court of Justice.

The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) – Preliminary Objection

1997 ◽  
Vol 10 (3) ◽  
pp. 541-551
Author(s):  
Roger S. Clark
Keyword(s):  
United States Of America ◽  
Case Law ◽  
Third Party ◽  
Advisory Opinion ◽  
Islamic Republic ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
Court Of Justice ◽  
International Court ◽  
Islamic Republic Of Iran

The case-law of the International Court of Justice (Court) is replete with arguments about whether the Court has jurisdiction to entertain the particular dispute (or request for advisory opinion) with which the Court is faced. These arguments are framed at one level as matters of interpretation of the relevant instruments. But they typically play out as well a multiplicity of variations on the overlapping themes of sovereignty (the extent to which states have been prepared to concede decision-making to third-party settlement mechanisms) and justiciability (the extent to which they will accept that an issue may be governed by ‘law’ and thus be susceptible to resolution by judicial actors).

The Holistic Interpretation of Treaties at the International Court of Justice

2018 ◽  
Vol 87 (3) ◽  
pp. 249-343 ◽  
Author(s):  
Liliana E. Popa
Keyword(s):  
Case Law ◽  
Vienna Convention ◽  
Main Argument ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Extended Analysis ◽  
Holistic Interpretation ◽  
Treaty Interpretation ◽  
Interpretative Approach

This article revises the topic of treaty interpretation at the International Court of Justice and focuses on what judges at this Court do in terms of treaty interpretation. The main argument developed in the article, based on an extended analysis of case-law at the ICJ, prior to and after the adoption of the 1969 Vienna Convention on the Law of Treaties, is that the ICJ’s approaches to interpretation after the VCLT was adopted are consistent with the canons of treaty interpretation which this Court has greatly developed and applied with consistency since its inception. The case-law analysis reveals a preference of the PCIJ/ICJ for holistic interpretation, and thus for the use of more rules and methods of interpretation than initially declared by the Court as sufficient to solve the issue of interpretation before it, in an interpretative approach which could be termed ‘overbuilding’.

The International Court of Justice: Territorial and Maritime Dispute (Nicaragua v. Colombia)

2013 ◽  
Vol 52 (1) ◽  
pp. 1-71 ◽  
Author(s):  
David P. Riesenberg
Keyword(s):  
Continental Shelf ◽  
Caribbean Sea ◽  
Foreseeable Future ◽  
Outer Continental Shelf ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Territorial Sovereignty ◽  
International Court ◽  
Western Caribbean ◽  
The Icj

In 2012, the International Court of Justice (ICJ) rendered its fourth judgment in Nicaragua v. Colombia. The case was first initiated by Nicaragua under the Bogotá Pact in 2001. The fourth judgment affirmed Colombia’s territorial sovereignty over a group of islands in the western Caribbean Sea and delimited a boundary between the two states’ zones of maritime jurisdiction. Even after eleven years of complicated proceedings, however, the parties’ conflicting claims are not yet completely resolved. The ICJ explicitly declined to address Nicaragua’s potential entitlement to the continental shelf beyond 200 nautical miles from its coastal baselines, including the portion of Nicaragua’s ‘‘outer’’ continental shelf that allegedly overlaps with Colombia’s maritime entitlements. For the foreseeable future, this aspect of the controversy will likely remain unresolved. One week after the ICJ rendered its fourth judgment, Colombia withdrew from the Bogotá Pact and thereby terminated its consent to the ICJ’s jurisdiction.

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