International Law: State Territory, Res Communis, and Peaceful Settlement of Disputes
State Territory
Essential Element of Statehood: Territory is fundamental to the foundational principle of international law: state sovereignty.
Sovereignty is exercised on a specific territory, bestowing entitlements and obligations.
Territorial Jurisdiction: A state has jurisdiction over crimes committed on its territory, even if foreign elements are involved (e.g., victim and perpetrator from different countries, crime in a third country).
Reinforced Principles: Fundamental international law principles like respect for territorial integrity and prohibition of interference in internal affairs underscore territory's importance.
International Obligations (Corfu Channel Case): State sovereignty over territory incurs obligations. The first ICJ case, Corfu Channel, established Albania's duty of due diligence not to knowingly allow its territory to be used for acts contrary to the rights of other states. Even if Albania didn't mine the waters, its sovereignty imposed an obligation to ensure safe passage.
The principle of due diligence (not letting territory harm other states) predates this case, emerging with transboundary pollution cases.
Transfer of Sovereignty vs. Domestic Property Transfer:
Process: Transferring sovereignty in international law is relatively simpler than transferring property in domestic law.
Consequences: Consequences are more complex in international law, as the new sovereign must manage citizenship, apply legal systems, etc., unlike a simple property transfer.
Modes of Acquiring or Transferring State Territory
Uti Possidetis Iuris (As You Possess Under the Law):
Principle: At the moment of a new state's creation (e.g., independence, secession), its boundaries should ideally be preserved or 'frozen'.
Application History:
Latin America (19th Century): First applied when South American states gained independence from Spain. New states aimed to avoid territorial disputes that could invite foreign intervention.
Africa (20th Century): More accurately reflected in practice during decolonization. The Organization of African Unity (1964) emphasized strict respect for this principle to "prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power."
Asia (20th Century): Illustrated by Indochina countries (Siam/Thailand, Cambodia, Laos, Vietnam), where colonial borders were largely preserved upon independence.
Soviet Union & Yugoslavia (late 20th Century): Largely followed during their dissolution. The Yugoslav Arbitration Commission applied it to new states like Serbia, Croatia, and Slovenia, mostly adhering to former federal republic borders.
Purpose: To avoid conflict and provide established rules, though borders can change by agreement between newly created states.
Cession:
Definition: Peaceful transfer of territory from one sovereign to another.
Historical Context: Most common historically, often after wars. Treaties concluded under duress were valid at the time, recognized today via the principle of intertemporality.
Peaceful Cession: Occurred even in peaceful times.
Alaska Purchase (1867): The United States bought Alaska from Russia for million, a decision initially mocked as "Seward's folly" to Secretary of State William Seward. It later proved brilliant due to gold, strategic importance in WWII, oil, and minerals.
Exchanges of Territories:
Example: India-Bangladesh Land Boundary Agreement (2015): Resolved a complex situation of numerous enclaves (including second-degree enclaves) inherited from the 1947 partition. Despite uti possidetis initially preserving the boundaries, the countries agreed to exchange territories, involving large relocations, citizenship changes, and compensation.
Occupation (Historically Relevant):
Definition: Taking possession of a territory that is uninhabited (terra nullius).
This mode is no longer relevant as a valid means of acquiring territory, but the principles and decisions it led to remain important.
Underlying Idea: Effective exercise/control over a territory.
Western Sahara ICJ Advisory Opinion (1975): Crucial for Australia (reflected in the Mabo decision).
ICJ Ruling: Western Sahara was not terra nullius at the time of colonization. It was inhabited by socially and politically organized nomadic people with chiefs competent to represent them.
Spain's Claim: Spain claimed terra nullius in the 19th century.
Morocco's Claim: After Spain relinquished sovereignty, Morocco claimed prior sovereignty.
Current Situation: Approximately of the territory is controlled by the Sahrawi people (SADR), recognized by only countries. Morocco's claim to the whole territory is more widely recognized.
Critique of Recognition: Illustrated the problematic and often political nature of state recognition (e.g., US recognizing Morocco's claim in 2020 in exchange for normalized relations with Israel).
Conclusion: The ICJ accepted an intermediate situation where local tribes had "sufficient international legal personality to preclude the acquisition of territory based on the terra nullius principle." Claims of sovereignty needed to show cession or conquest, not terra nullius.
Prescription (Historically Relevant):
Definition: Continuous peaceful display of state functions over a territory without protests from other states claiming title. (Similar to domestic property acquisition by prescription).
Underlying Idea: Effective control.
Island of Palmas Case: Disputed between the U.S. (successors to Spanish sovereignty in the Philippines) and the Netherlands (colonial power in Indonesia).
Decision: The island (now Miyangas, Indonesia) was awarded to the Netherlands. The Dutch East India Company had exercised continuous peaceful control from the 17th century, despite Spain's earlier discovery and occupation, as Spain had done nothing to assert its sovereignty.
Conquest:
Historical Legality: Prior to 1945, territory could be lawfully acquired by conquest after a complete victory in war, usually formalized by a treaty. This required clarity in the outcome, with no reasonable opportunity for the defeated power to recover. For example, Germany's conquests in WWII did not extinguish sovereignty as Germany was ultimately defeated.
Intention to Annex: Acquisition also required a clear intention to annex the territory, not just temporary control.
Post-1945 Illegality: The acquisition of territory by force alone is illegal under contemporary international law. While wars may still occur, legal territorial transfer after armed conflict requires further international action, such as a treaty of cession or widespread international recognition. Mere conquest is insufficient.
Intertemporality Principle: International law still recognizes titles acquired by conquest prior to 1945, obeying the intertemporality principle.
Res Communis (Common Heritage of Humanity)$^3
Definition: Areas that do not belong to anyone, but to the community.
Examples: High seas (including international seabed), polar regions (Arctic and Antarctica), outer space.
Principle of Common Heritage of Humanity (or Mankind):
Definition: Some spaces belong to all humanity, and their resources are available for everyone's use and benefit, considering future generations and developing countries.
Governing Rules:
Non-appropriation: No country can take control over parts of res communis.
Cooperative and Non-Military Use: Activity in these areas must be cooperative and non-military.
Intergenerational Fairness: Resources must satisfy current generations' needs without jeopardizing future generations'.
Historical Proposals:
1948: Proposed utopian world constitution by American intellectuals (University of Chicago president leading the group).
1967: More seriously proposed by Malta's Ambassador to the UN, focusing on the international law of the sea. Challenged Hugo Grotius's freedom of high seas, proposing international administration of ocean space and resources beyond territorial sovereignty for the good of all humanity. This proved too optimistic.
United Nations Convention on the Law of the Sea (UNCLOS): Preserved the principle for a very limited area: metallic nodules on the deep seabed ('the Area').
Maritime Zones: UNCLOS establishes zones with decreasing coastal state competence (territorial waters, exclusive economic zones, continental shelf).
'The Area': The deep seabed in the high seas (shown in dark blue on maps) falls under a special legal regime (UNCLOS Part XI). Article states it is "common heritage of mankind."
Specific Res Communis Areas:
International Seabed ('The Area'):
Foundational Law: UNCLOS and later implementing agreements.
International Seabed Authority (ISA): Created to adopt binding mining codes, oversee exploration and exploitation activities, and ensure strict environmental standards.
Principles: Licenses for private corporations (sponsored by states for accountability), benefits shared with humanity.
Exploitation Status: Pilot activities and exploration ongoing, but commercial exploitation has not started. Tensions exist due to delays in approvals.
Challenges: The Trump administration issued an executive order greenlighting non-ISA licensing, raising concerns about weakening international law. Other countries are also unhappy with ISA's delays.
Antarctica:
Status: A common heritage of humanity.
Historical Claims: Initially claimed by Argentina, Australia, Chile, France, New Zealand, Norway, and the UK.
1959 Antarctic Treaty: Signed by claimant states and others, focusing on scientific exploration.
1988 Convention on Regulation of Antarctic Mineral Resource Activities: Some nations pushed for mining.
Resistance & Moratorium: Strong UN General Assembly resistance, led by Australia and France, due to environmental concerns for the delicate ecosystem.
1991 Protocol: Established a complete moratorium on mining, designating Antarctica as a "wilderness reserve" and fully protected. It is now explicitly common heritage of humanity.
Arctic:
Status: Not common heritage of humanity.
Physical Differences from Antarctica: No land under the ice, sparsely populated ( million people, mostly indigenous).
Geographic & Political Differences: Arctic rim states (e.g., Russia, Canada, US, Norway, Denmark, Sweden, Finland, Iceland) have significant interests and claims.
Arctic Council (1996): Established by the eight Arctic states to resolve issues.
High Stakes: Melting ice opens new navigation corridors (e.g., North of Russia, replacing Suez Canal route) and reveals vast oil and gas resources. Indigenous populations' rights are also a delicate issue.
Outer Space and the Moon:
Outer Space Treaty (1967): Contains principles similar to common heritage.
Moon Treaty (1979): More explicitly deals with common heritage (Article states the Moon is "province of all mankind").
Regulation: Regulated by five treaties (Outer Space Treaty, Moon Treaty, Astronaut Rescue Agreement, Liability Convention, Registration Convention).
Moon Treaty Failure: Only nations have ratified it (including Australia, but not major space powers like the U.S., Russia, China, Japan, Germany). Considered a failure in international cooperation, possibly indicating major powers prefer to exploit resources in their national interest, not humanity's.
Peaceful Settlement of Disputes
Modern Obligation: Today, international law obligates states to resolve disputes peacefully.
Historical Context:
Early International Law (16th-17th centuries): Fundamental purpose was to avoid wars, but an outright prohibition of war was not attempted until the 20th century.
Pre-20th Century: No obligation for peaceful settlement, allowing states to use military force (e.g., Western powers imposing a blockade on Venezuela in the late 19th century to collect debts, which Venezuela resisted in vain).
Evolution of Dispute Resolution Mechanisms:
1899 Hague Convention for the Pacific Settlement of Disputes: Created the Permanent Court of Arbitration (PCA), a significant step towards reducing war incidence.
Post-WWI League of Nations: Further limited force, obligating states to try arbitration or the Permanent Court of International Justice (PCIJ) and imposing a 3-month cooling-off period if peaceful attempts failed.
1928 Kellogg-Briand Pact: Attempted to outlaw war altogether, but failed with major aggressions in the 1930s (Italy, Germany, Japan).
Post-1945 UN Charter: Established a clear and enforceable obligation for peaceful dispute settlement via the United Nations and Security Council.
Techniques of Conflict Management:
I. Diplomatic Procedures: Attempts to resolve differences either by contending parties or with third-party assistance.
Good Offices: Third party persuades disputants to negotiate (e.g., UN Secretary-General). Role ends when negotiations begin.
Negotiation: Parties come together to find a solution. Must be meaningful and conducted in good faith (customary law, reinforced by ICJ decisions like North Sea Continental Shelf 1969).
Fact-Finding: Independent inquiry, usually by a commission, to produce a report on disputed facts, used in negotiations. Often extends to drawing conclusions.
Mediation: Third party assists in intense negotiations (e.g., Algeria in the U.S.-Iran hostage crisis, leading to the 1980 Algiers Accords and the Iran-American Claims Tribunal). Qatar in Israel-Hamas ceasefire mediation.
Conciliation: Combines inquiry and mediation. A conciliator (appointed by parties) investigates facts and proposes a non-binding settlement report. Parties are not obligated to accept it (unlike arbitration).
II. Adjudication Procedures: Determination of legal and factual issues by a disinterested third party.
1. Arbitration:
History: Early procedures developed in the 18th century (e.g., 1794 Jay Treaty between Britain and the U.S., drafted by Chief Justice John Jay). Major figures of the American Revolution (Madison, Jefferson, Jay) were keen on international law, viewing it as a reflection of their rule of law principles.
First Major Case: 1872 Alabama Claims (Britain paid compensation to the U.S. for building a ship used by Confederates).
Permanent Court of Arbitration (PCA) (1900): A mechanism, not a court. A panel of persons (nominated by states to the Hague Convention) from which disputing countries select arbitrators.
Benefits over Litigation (e.g., ICJ):
Confidentiality.
Flexibility: Parties' consent is required; they can choose procedure and applicable law.
Availability to Non-States: International organizations can participate (unlike ICJ, which is only for states).
Celerity: Quicker solutions more achievable.
Drawbacks: Parties pay all arbitration costs (unlike ICJ, where judges are paid by the UN).
Consent to Arbitration:
Arbitration Treaties: States agree in advance to submit certain future disputes.
Specific Treaty Provisions: Treaties include clauses for arbitration of disputes related to the treaty.
Ad Hoc Consent: Parties agree to arbitration for a specific existing dispute.
Hybrid Nature: Contains elements of both diplomatic (negotiation in drafting the compromis, constituting the tribunal) and judicial procedures (binding decision based on law, not merely mutually acceptable solution).
2. Judicial Settlement at the International Court of Justice (ICJ):
History: Successor to the Permanent Court of International Justice (PCIJ), established post-WWI (1921-1940). PCIJ resolved contentious cases and advisory opinions.
Motivation for PCIJ: Belief that WWI's disaster was partly due to lack of dispute resolution mechanisms; U.S. President Woodrow Wilson's push for rule of law and judicial settlement.
Structure: Principal judicial organ of the UN. Consists of permanent judges, plus up to ad hoc judges for disputing states if they lack a national on the bench. Decisions require a majority.
Role: Applies international law and, in practice, often contributes to its development.
A. Contentious Jurisdiction (Legal disputes between states):
Precondition: Existence of a legal dispute (disagreement over law or fact).
Stages:
Request for interim relief/preliminary measures.
Preliminary objections to jurisdiction (respondent challenging).
Hearing the full case on its merits.
Consensual Nature: States go to the ICJ only with their consent (Article of the ICJ Statute).
Methods of Consent:
Ad Hoc Consent: Parties draft a special agreement (compromis) for a specific dispute.
Treaty Provisions: Treaties provide for ICJ jurisdiction over related disputes (e.g., Article of the Genocide Convention).
Optional Clause (Unilateral Declarations): States make a unilateral declaration accepting ICJ jurisdiction on any legal matter, provided the other disputing party has also made such a declaration (Article of the ICJ Statute).
Operates on reciprocity.
Declarations can include reservations (e.g., Australia's reservation on maritime boundary disputes).
B. Advisory Jurisdiction (Examination of problems at UN request):
General Assembly & Security Council: Can request opinions on any legal question.
Specialized Agencies (WHO, FAO, UNESCO): Can request opinions only on legal questions arising within the scope of their activities.
Example: ICJ declined WHO's request on the legality of nuclear weapons (outside WHO's competence), but then answered the General Assembly's request (1996: nuclear weapons not prohibited in international law due to lack of state practice).
Importance: ICJ has provided firm and direct advisory opinions on significant issues (e.g., Western Sahara, Palestine, Kosovo) which carry significant legal weight.
Other International Courts:
Regional Economic Courts:
European Court of Justice (Luxembourg): Constitutional court for the EU member states; powerful, handles complaints from states, individuals, corporations, IOs on economic integration.
Andean Court of Justice (1969): Limited use.
Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) (Sudan): Powerful on paper, but less effective in practice.
Regional Human Rights Courts: European Court of Human Rights, Inter-American Court of Human Rights, African Court of Human and People's Rights.
International Criminal Courts:
Nuremberg Tribunal: Post-WWII, for Nazi leaders, established idea of punishing abhorrent international crimes at the international level.
Ad Hoc Tribunals (1990s): For Former Yugoslavia (ICTY) and Rwanda (ICTR), created by the UN Security Council for peace preservation.
Hybrid/Mixed Criminal Courts: Combine international and national law/procedures, local and international judges (e.g., Special Court for Sierra Leone, courts for Khmer Rouge in Cambodia).
Specialized Tribunals: International Tribunal for the Law of the Sea (ITLOS) (Hamburg, 1996).
Australia's Engagement with the International Court of Justice
Unilateral Declaration: Australia first submitted a declaration under Article in 1954 with significant reservations (e.g., pearl fishing). In 1975, it accepted almost any type of litigation. In 2002, a new declaration introduced more specific reservations (e.g., maritime boundary disputes, disputes better settled by other procedures like ITLOS).
Case History: Australia has been an applicant times and a respondent times.
Nuclear Tests (Australia vs. France, 1973): Australia argued France's atmospheric nuclear tests in the South Pacific were illegal. France announced it would cease such tests. The ICJ accepted this as a binding unilateral declaration and discontinued the case. Australia's later attempt to reopen the case over underground tests (1995) failed as the court limited its original ruling to atmospheric tests.
Nauru vs. Australia (1989): Nauru sought reparations for Australia's over-exploitation of phosphate deposits during its mandate/trusteeship administration. Australia raised preliminary objections (negative impact on third states: NZ, UK). The ICJ found the case admissible. Australia then negotiated an out-of-court settlement without prejudice, avoiding a public loss.
East Timor (Portugal vs. Australia, 1991): Portugal challenged Australia's early recognition of Indonesian sovereignty over East Timor and the 1989 Timor Gap Treaty with Indonesia (exploring resources in a disputed area). Australia successfully argued that Indonesia (not party to the ICJ's jurisdiction) was a necessary respondent. Australia won legally but suffered reputational damage.
Whaling in the Antarctic (Australia vs. Japan, 2010): Australia challenged Japan's 'scientific research' whaling program (JARPA) in Antarctic waters under the International Convention for the Regulation of Whaling. Australia argued the scale, lack of conservation relevance, and risks made JARPA unjustifiable. The ICJ agreed, leading Japan to close JARPA (a significant success for Australia, though Japan later developed new programs).
Timor-Leste vs. Australia (2014): Timor-Leste initiated arbitration to annul the Timor Sea Treaty (advantageous to Australia) due to alleged Australian espionage (ASIS bugging Timor-Leste's offices during treaty negotiations). The case involved controversy over the arrest of Timor-Leste's lawyer. Ultimately, Australia and Timor-Leste signed a new, more equitable treaty, granting Timor-Leste nearly of the benefits from the Timor Sea resources, leading to the withdrawal of the complaint.
Conclusion: Australia demonstrates a very high level of international engagement with dispute settlement. While protecting national interests and sometimes making mistakes, its overall engagement is seen as positive, supporting compulsory dispute settlement as a middle global power. Australia's lack of enthusiasm for investor-state dispute settlement mechanisms is also noted positively.
$$\text{5. The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, settling legal disputes between states and providing advisory opinions.}$