Objects of International Law

Question 1

What are the various modes of acquisition of territory?

Answer 1

a) occupation and discovery
b) cession
c) accretion and avulsion
d) prescription
e) conquest and annexation
f) award
g) contiguity

Question 2

Elaborate more on a) occupation and discovery

Answer 2

This was used by colonial powers to discover land that was not owned by anyone (terra nullius). Nowadays, this view is shunned, and any territory inhabited by a people with an effective social or political organisation cannot be considered empty [Western Sahara].

Question 3

Elaborate more on b) cession

Answer 3

This is an agreement between states to transfer territory. Cessions are rare. It is a derivative mode of acquisition, and so the cessionary acquires no more rights than those held by the ceding state. Although an agreement between states, consideration of the wishes of the inhabitants of the territory concerned is now required by the rule of self-determination.

Question 4

Elaborate more on c) accretion and avulsion

Answer 4

This is the gradual increase of land mass through deposits of silt, or the sudden removal of land from the domain of one state to another. Problems may occur when new land is added to the banks of a river marking an international boundary.

Question 5

Elaborate more on d) prescription

Answer 5

Unchallenged occupation of another’s territory over a period of time is deemed to ripen into full ownership. There is no prescribed time period for usurpation.

Question 6

Elaborate more on e) conquest and annexation

Answer 6

There must be physical subjugation coupled with intention to annex.

Question 7

Elaborate more on f) award

Answer 7

Title may be granted by way of award by a tribunal asked to settle a territorial dispute, by arbitration or adjudication.

Question 8

Elaborate more on g) contiguity

Answer 8

This is a claim to land that has not been effectively occupied. It has however been rejected as a root of title. Rather, it is a rebuttable presumption.

Question 9

What was held in the Island of Palmas case (Netherlands v US)?

Answer 9

Spain ceded the Philippines to the US in 1898. In 1906, the US found a dutch flag flying on the island they believed belonged to the territory ceded to them. Had Spain discovered the island, before transferring such a right to the US? The Dutch claimed peaceful and continuous display of state authority over the island. Therefore, it was found that the Island belonged to the Netherlands.

Question 10

What was held in the Clipperton Island case (France v Mexico)?

Answer 10

The French laid claim to the island. Mexico claimed that the island had been discovered by the Spanish Navy and succeeded to Mexico in 1836. France’s claim succeeded. They had not lost their right by derelictio, because they did not have the animus to abandon the island.

Question 11

Why has modern international practice been forced to change?

Answer 11

The classical rules do not accurately reflect the ways in which territory is acquired:

1) acquisition is not a single event
2) a valid title is often based on two or more complementary modes of acquisition, which are reinforced by acquiescence, estoppel and recognition
3) title is never absolute, rather it is weak or strong
4) effective and peaceful occupation is a key requirement

Question 12

What was held in the Legal Status of Eastern Greenland case (Denmark v Norway)?

Answer 12

Norway relied on claims to title. Denmark relied on peaceful and continuous displays of authority. Denmark won the case and claimed continued sovereignty over Greenland, ahead of Norway.

Question 13

What is the doctrine of intertemporal law?

Answer 13

Prescribes the date at which laws should be applied to determine title to territory.

Question 14

What are critical dates?

Answer 14

One date is often relevant to deciding a case. If the parties do not agree on the dates, then the tribunal hearing the dispute may decide the matter itself. It is quite common to exclude all evidence arising after the date selected for hearing a dispute.

Question 15

What are the general rules concerning the landward extent of state boundaries?

Answer 15

Topographical features no longer form the basis for determining a boundary. Neither do ethnic, religious or linguistic uniformity. Rather, they must be determined by the states concerned, which usually do by agreement. Where a river is a boundary, the middle of the river marks the point of division, or rather the middle of the principle channel, or the path of the strongest downstream current.

Question 16

What is uti possidetis?

Answer 16

To ensure continuity and stability, many post-colonial states chose to accept the boundaries already drawn. It has since become a rule of customary international law, which overrides even the right to self-determination.

Question 17

What was held in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand)?

Answer 17

The temple belonged to the sovereignty of Cambodia, and Thailand was required to withdraw all forces stationed there or nearby, and restore everything which had been removed. The Temple was a World Heritage Site. On the map attached to the treaty, the temple fell into Cambodia’s territory.

Question 18

What is a servitude, and are they recognised in international law?

Answer 18

A right in another’s property which survives the transfer of that property to a new owner. Because of the absolute nature of sovereignty, such a right has not been accepted in international law.

Question 19

What was held in the North Atlantic Fisheries Arbitration (US v Britain)?

Answer 19

The US had liberty to take fish from GB waters. The US argued that they had a servitude. The arbitrators found that it did not.

Question 20

What was held in RIght of Passage (Portugal v India)?

Answer 20

Several Portuguese enclaves were surrounded by Indian territory, and so it was impossible for Portugal to visit these enclaves. Portugal claims a right of passage to the enclaves. There was a long established practice. However, there was a political coup in the enclaves in question. India had full sovereignty to determine the nature of the right of passage granted to Portugal. Found that Portugal had a right of passage in respect of private matters, no right in respect of armed forces, police and ammunition, and that India did not act contrary to its obligations re private persons, civil officials and goods in general.

Question 21

What was held in the Wimbledon Case?

Answer 21

The Kiel Canal cuts through Germany. It is open to all nations at peace with Germany on terms of entire equality. It is an international waterway. Therefore, it must allow the passage of SS Wimbledon (an arms-bearing ship) through.

Question 22

What is in place to ensure environmental protection?

Answer 22

States are no longer free to exploit resources and abuse their neighbours with pollution. The Kyoto Protocol seeks to reduce the emission of carbon dioxide and other greenhouse gases. A challenge to such regulation is the individualistic nature of human rights.

Question 23

Define the limits of airspace

Answer 23

Airspace includes the space above land, internal waters and territorial seas. It is contentious in relation to satellites. Airspace is limited to 110km above the ground. This is the spatial approach. The functional approach suggests that airspace may only be claimed where the state actually has control.

Question 24

What are the freedoms of the air?

Answer 24

Aircraft using designated air routes may fly over but may not land in other states. They may land for non-traffic purposes [International Air Services Transit Agreement 1994]. They may carry passengers and cargo from the state of origin of the aircraft. They may carry passengers from another country to the signatory state. They may carry passengers and cargo between foreign states as part of connecting services to the airline’s own state.Aircraft in distress may be immune from state jurisdiction, and use of force against civil aircraft is not permitted [Bermuda Agreement].

Question 25

What is the marine extent of state sovereignty?

Answer 25

The UN Law of the Sea Convention is the leading authority for maritime boundaries. UNCLOS establishes four distinct zones over which a coastal state may exercise its jurisdiction:

1) the territorial sea (12nm) - Article 2
2) the contiguous zone (12nm)
iii) the continental shelf
4) the exclusive economic zone (200nm)

Beyond these zones are the high seas, which are res communis.

Question 26

What are the internal waters?

Answer 26

Internal waters include bays and closed-off river mouths, as well as ports, harbours and waters between the low and high water marks. If the distance between the two low-water marks at the natural entrance points of a bay exceed 24nm, then the waters enclosed thereby cannot be considered to be internal waters. Ships have a right of innocent travel through territorial sea. Ships may not be arrested unless that have committed a civil wrong.

Question 27

What is the contiguous zone?

Answer 27

This lies adjacent to the territorial sea. It may not extend more than 24nm from the coastal state’s baseline. The state may exercise enforcement here, but not jurisdiction.

Question 28

What is the exclusive economic zone?

Answer 28

States have a limited jurisdiction to exploit natural resources. It may not extend further than 200nm from the baseline.

Question 29

What is the high sea?

Answer 29

The high seas are open to all states for navigation, fishing, laying cables and pipelines, overflight and research. Drug trafficking, illegal broadcasting, slave trading and piracy are all subject to international law and ships may be stopped, searched and seized.

Question 30

What is the continental shelf?

Answer 30

This is the prolongation of the continental land mass under the sea to depths of between 150-200m or less. States can claim all life and resources from this zone.

Question 31

What is the deep sea-bed?

Answer 31

This is not subject to appropriation by states. It is a resource that vests in mankind as a whole.

Question 32

How are zones delimited?

Answer 32

When zones overlap, boundaries must be delimited. The equidistance principle does not apply. Rather, the delimitation must be equitable.

Question 33

What can landlocked states do with the sea?

Answer 33

Landlocked states are allowed to participate in the exploitation of an appropriate portion or surplus of the living resources in the EEZ of coastal states in the same region, taking into account the circumstances of all the states concerned.

Question 34

What are the duties of state’s who use the sea?

Answer 34

States are obliged not to engage in pollution, and to protect and preserve the marine environment. Where a dispute arises, parties may choose the ICJ, Tribunal or the Seabed Disputes Chamber to hear their grievance.

Question 35

What is the extent of a human beings citizenship?

Answer 35

A state has personal jurisdiction over its nationals, wherever they happen to be. Each state may determine who its nationals are, often those born in the state and those related to a national of the state. In addition, naturalisation may occur after a period of long residence. Marriage does not count. A state may not protect a national from a state of which the person is also a national, unless the former state is predominant.

Question 36

What was held in the Nottebohm case?

Answer 36

Mr Nottebohm had been mistreated by Guatemala. He obtained citizenship of Liechtenstein by way of naturalization. His connection with Guatemala was strong. His connection with Liechtenstein was weak. Hence, Guatemala is under no obligation to recognise the nationality granted in these circumstances, and Liechtenstein is not entitled to extend its protection in the face of Guatemala.

Question 37

What was held in Kuanda v President of RSA?

Answer 37

South African citizens being held in Zimbabwe. Their extradition was unnecessary, and the conception of the Bill of Rights was misconceived. The Constitution is not applicable to conditions of detention in Zimbabwe. Providing diplomatic protection is at the discretion of the executive. Decisions not to grant it are subject to administrative review. The State is obliged to protect a national from a gross violation of human rights.

Question 38

What nationality does a corporation hold?

Answer 38

The country of incorporation or location of its head office is the nationality of a company.

Question 39

What was held in the Barcelona Traction Case?

Answer 39

A company was declared bankrupt by a Spanish court. At all times, 88% of the shares in the company were owned by Belgian nationals. Belgium claimed for the injury suffered by the nationals. Belgium held no legal interest in the matter to bring the claim. Only Canada could sue, because the company was incorporated in Canada.

Question 40

What nationality does a ship hold?

Answer 40

There must be a genuine link between the state of nationality and the ship. The state must exercise jurisdiction and control over the ships flying its flag. Ships sailing under two flags will be deemed stateless [1958 Geneva Convention on the High Seas].

Question 41

What nationality does an aircraft hold?

Answer 41

The sole test for nationality is the state in which an aircraft is registered [Chicago Convention; Paris Convention].