Public International Law Assignment Essay

SPECIAL ASSIGNMENT FOR CRITICAL ESSAY
(MERGED MID-TERM & END TERM EXAMINATION, JAN-APR, 2021)
B.A. LL.B. (Hons.)
SEMESTER IV
PUBLIC INTERNATIONAL LAW
SUBMITTED TO: -
Dr. Mohammad Atif Khan
Faculty of- Public International Law
SUBMITTED BY: -
Yashovardhan Agarwal
183
Sec-C
1920192104
HIDAYTULLAH NATIONAL LAW UNIVERSITY
NAYA RAIPUR, CHATTISGARH
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SACE 1
INDEX
INTRODUCTION-------------------------------------------------------------------------- Page No.2.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS-------------------------------------------------------------------------------------- Page No.2.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES----------------------- Page No.5.
EVALUATING THE IMPLICATIONS OF ICJ’s TRIPARTITE
HEIRARCHY----------------------------------------------------------------------------------------------
--------------Page No.11.
CONCLUSION----------------------------------------------------------------------------- Page
No.12.
INTRODUCTION
Under international law, the topic of territorial dispute is hotly discussed. This argument is
significant in international society because of its connection to fundamental rights, state
sovereignty, and international harmony. Territorial disputes promote wars and terrorism
because states attempt to impose control over a certain territory. The use of force to maintain
control over a territory is condemned by international organizations. Article 2 (4) of the
United Nations Charter states that governments should not use external force against a state
or territory in order to undermine a nation's sovereignty and political independence. In
International legal framework, territory ownership holds paramount importance as
sovereignty defines the existence of a state. In a modern state, defined borders are very
essential for the functioning of the modern state.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS
SCOPE OF CLAIMS WHICH CAN FALL WITHIN THE PURVIEW OF ICJ
The ICJ being an Independent Subsidiary organ entertains cases which come by referral
through a compromis between two or more states, through relevant provisions of any treaty
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which provide for ICJ’s compulsory jurisdiction or by any treaty provision “committing
disputes arising under the treaty to the court”.1 The scope of the cases court can consider must
comply with sources of law enlisted under the Article 38 of the Statute of International Court
of Justice.2 The Boundary/Territorial claims which appear before the ICJ essentially fall
within the four categories enlisted in Article 38 of instant Statute.
The most hassle-free claims are those which fall under the category of treaty law because it is
easier to prove the existence of a treaty than the existence of any pre-existing custom or
highly enigmatic general principles of law. Because both of these categories require evidence
to prove their existence. That is why the court in its tripartite hierarchal approach takes into
accord a treaty if there is any and then moves ahead with any other recourse.
In the event of absence of treaty law, the court goes ahead with the other three categories, or
to political claims if any or nonlegal claims. The most common nine categories of
justifications for territorial claims are described as follows;
THE 9 MOST COMMON CATEGORIES OF CASES
Treaty Law
Treaty law is recognized under Article 38 as a source of law and thus holds supreme
importance when it comes to justification for sovereignty over a disputed piece of land. The
treaty serves as a contract to which both sovereign states under question are part of and thus
have to abide by.3 The role of ICJ then only limits to the interpretation of treaty and
ascertaining who has the better claim.
Economy
These type of claims by a state is to assert as to how much the disputed land is “necessary to
the viability or development of the state.”4 For instance, the territory under question might be
the source of high revenue for a state holding a significant share in its economy.
1 Article 36 of Statute of International Court of Justice2 Article 38 of Statute of International Court of Justice includes the following sources of law;
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.3 MARVIN A. CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 1 (4th
ed. 2001).4 Professor Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973).
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Geography
Territorial jurisprudence heavily relies on this to determine the claim over the piece of land
by parties. Factors of geographical origins such as mountain ranges and rivers act as a natural
boundary in most of the cases but such factors often lead to altercation as it gives leeway for
problems in delimitation, demarcation or both.5 Natural Boundaries, owing to their nature,
can be difficult to mark.6 The natural boundaries by the force of nature can alter over time
and can give rise to problematic situations. The principal question around such claim, as
pointed out by Andrew Burghardt, is two- fold –
Effective Control
In this type of claim, the party claims a land on the basis that it has effective control and “the
group has "uncontested the land and its resident population”7 The natural boundaries by the
force of nature can alter over time and can give rise to problematic situations. The principal
question around such claim, as pointed out by Andrew Burghardt, is two- fold –
“(1) what constitutes an abandonment of the land by the last governing entity, and
(2) what constitutes administration of the land.”8
Culture
The ethnic nation argument which justifies the creation of border on basis of cultural
characteristics like religion, language etc. forms the cultural justification defining a territory
according to the group of people living in there.9
History
The principles of duration and priority comes into play under this category in which the state
needs to provide historical evidence showcasing its possession over a territory in order to
assert its claim. This indicates the priority. Similarly, proof for duration of such possession
5Bradford L. Thomas, International Boundaries: Lines in the Sand (and the Sea), in REORDERING THE
WORLD: GEOPOLITICAL Perspectives on the Twenty-First Century 87, 94 (George J. Demko & William B.
Wood eds., 1996 Beth Simmons, See You in "Court"? The Judicial Legal Processes in the Settlement of Territorial Disputes, in
A Territorial Dimensions of International Conflict 205.7 Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225(1973) p. 228.8 Supra 119 Donald l. Horowitz, Ethnic groups in conflict 219–24.
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lays ground of it being under that state for a considerable amount of time.10 They are mostly
related to cultural claims as duration translates to insertion of the culture of the holding state
in that territory.
Elitism
As these claims are considered to be against the democratic ideals11, they have become rarer
over time. Under this claim, conquerors who termed themselves as having divine rights to
rule over a certain territory after the annexation, contend that a “particular minority has the
right or duty to control certain territory.”
Uti Possidetis
A principle mostly used in context of countries in Asia, Latin America and Africa12 to define
postcolonial boundaries; is a doctrine according to which the pre-independence boundaries
set by the former colonial power is inherited by the newly independent states.13 This principle
has led to a lot of criticism as it is argues that colonial borders were vaguely drawn14 and does
not really reflect the inhabitant’s wants. It is also argued that the reliance on the principle in
itself has given birth to may border dispute cases.15
Ideology
Often considered as the antithesis of uti possidetis claim16, this ideological justification argues
that colonial borders are not appropriately demarcated on the grounds of legal or moral
reasons. These types of justification are often termed as ideological imperialist as it contains
“exclusivist overtones”17 based on “unique identification with the land”.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES
10 Supra note 11 at p. 238.11 Supra note 11 at p. 239.12 P. Mweti Munya, The International Court of Justice and Peaceful Settlement of African Disputes: Problems,
Challenges and Prospects, 7 J. INT'L L. & PRAC. 159,215 (1998).13 Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 Am. J. Int'l L. 590
(1996).14 Supra note 10 at 114-115.15 Supra note 10 at 24,31,155.16 Supra note 10, p.239-240.17 Supra note 13, p.234.
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The ICJ analysis the competing territorial claims on the basis of tripartite hierarchal approach
wherein it firstly looks for presence of treaty law, then to Uti Possidetis, then to effective
control.
1. DIPOSITIVE NATURE OF A PRE-EXISTING TREATY (TREATY LAW)- The
International Court of justice considers any prior boundary treaty or any other
document which showcases an interstate agreement with regards to boundary
limitation or delimitation is considered as dipositive (Settling the issue). This notion
has even extended by the ICJ in cases wherein a mutual interstate agreement existed
but had certain unclear terms in it but an element of state consent existed. The prime
instance of this was the case of Territorial Dispute between Libya and Chad.18
Territorial Dispute (Libya/Chad), 1994
The dispute between the two countries was concerning Aozou Strip (a
Purported source of Uranium). The conflict initiated in the year of 1973
when Colonel Mohammar Qaddafi of Libya claimed the strip from Chad.
The matter was taken into the court’s consideration and further the parties
submitted their respective sides relying on the principles of “Uti
Possidetis”, Ideology and elitism.
The Chad representatives submitted that there existed a treaty known as
the Franco-Libyan Treaty of Friendship and Good Neighbourliness,
1955 and further submitted that Article 8 of the instant treaty most
certainly defined the boundaries which shows that State of chad had
consented. But the Libyan side was apprehensive to recognize that the
1955 treaty defined any boundaries or not because the provisions were
unclear. The court took former sides argument into accord and held that
“when interpreted in good faith with ordinary meanings imputed to its
terms, the 1955 Treaty left no boundaries undefined.”19
It can be clearly observed here that the court relied on the treaty solely
even when one side was of the opinion that the treaty was unclear to
certain extent. It can also be observed that the court didn’t question the
merits of the instant treaty, which the court also portrayed through its
statements to be unclear on certain terms.
18 Territorial Dispute (Libya/Chad), 1994 I.C.J. 19 Ibid at 21-26
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