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31 results

Page 1 of 2

  • 15 - Territorial Disputes

  • from Part III - The Impact of the ICJ’s Jurisprudence
  • Edited by Carlos Espósito, Universidad Autónoma de Madrid, Kate Parlett, Twenty Essex, London
  • Book:
    The Cambridge Companion to the International Court of Justice
    Published online:
    18 May 2023
    Print publication:
    06 April 2023, pp 332-362

  • Summary

    This chapter considers the ICJ and territorial disputes, an area where the Court has had significant scope to consider the applicable law in multiple cases. The authors identify three areas in which the Court has made a significant contribution to the law on territorial disputes: first, the reconceptualisation of the rules of international law governing the acquisition of territorial sovereignty; second, the clarification of the territorial implications of the fundamental principles of international law; and finally, the elaboration of a clear and coherent method for the legal settlement of territorial disputes, the core of which rests on respect for the principle of legality.

  • 19 - Peace Agreements and Territorial Change

  • from Part IV - Representation, Sovereignty and Governance
  • Edited by Marc Weller, University of Cambridge, Mark Retter, University of Cambridge, Andrea Varga, University of Cambridge
  • Book:
    International Law and Peace Settlements
    Published online:
    14 January 2021
    Print publication:
    04 February 2021, pp 432-446

  • Summary

    This chapter examines the relationship between peace treaties and territorial change. Distinguishing peace treaties from other related agreements, it analyses the critical role that peace treaties play in the acquisition of territorial sovereignty following the use of force, both under contemporary and classical international law. In this regard, it maintains that, besides cases of debellatio, conquest alone was never a valid title to territorial sovereignty. Based on the difference of the applicable legal regimes, it distinguishes peace treaties concluded between independent states from those concluded as part of the process of accession of a people to independence, as well as from those concluded with successful secessionist entities. In addition, particular attention is paid to the great variety of territorial clauses contained in peace treaties.

  • 7 - Self-Determination

  • from Part I - The Principles of the Friendly Relations Declaration
  • Edited by Jorge E. Viñuales, University of Cambridge
  • Book:
    The UN Friendly Relations Declaration at 50
    Published online:
    21 September 2020
    Print publication:
    08 October 2020, pp 133-165

  • Summary

    Alongside the prohibition of the use of force, self-determination constitutes the most important fundamental principle of contemporary international law. It can certainly be described as the most revolutionary of all existing fundamental principles. For the first time in the history of international law, one of its rules recognises the right of certain human communities, the ‘peoples’, to freely decide their international status, which includes the possibility of independence. In other words, the right to create their own State. Before the emergence of such a right, all struggles for independence were considered to be internal conflicts or civil wars, for which international law had little to say. They were merely envisaged as ‘domestic matters’.

The Institute of International Law's Resolution on State Succession and State Responsibility
  • Introduction, Text and Commentaries
  • Marcelo G. Kohen, Patrick Dumberry
  • Published online:
    16 January 2019
    Print publication:
    14 February 2019
  • Marcelo Kohen and Patrick Dumberry explore in an article-by-article commentary the Resolution adopted in 2015 by the Institute of International Law, on state succession in matters of state responsibility. They analyse the content and scope of application of each provision based on a comprehensive survey of existing state practice and judicial decisions (both domestic and international), as well as taking into account the works of scholars and that of the ILC Special Rapporteur in his proposed Draft Articles on the same topic. This book explains the rationale and the reasons behind why the Institute adopted specific solutions to address particular problems of succession to responsibility for each provision, including the need to achieve a fair outcome given the specific circumstances and relevant factors for each case.

  • The Principle of Non-Intervention 25 Years after the Nicaragua Judgment

  • MARCELO KOHEN
  • Journal:
    Leiden Journal of International Law / Volume 25 / Issue 1 / March 2012
    Published online by Cambridge University Press:
    06 February 2012, pp. 157-164
    Print publication:
    March 2012

  • This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court's 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

  • The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law’?

  • MARCELO G. KOHEN, KATHERINE DEL MAR
  • Journal:
    Leiden Journal of International Law / Volume 24 / Issue 1 / March 2011
    Published online by Cambridge University Press:
    11 February 2011, pp. 109-126
    Print publication:
    March 2011

  • This article focuses on the reasoning employed by the International Court of Justice in its Advisory Opinion rendered on 22 July 2010 with respect to the most formidable legal impasse of the accordance with international law of the unilateral declaration of independence: the lex specialis that applied at the critical date, and which the Court affirmed continues to apply to Kosovo, as established by the United Nations Security Council in its Resolution 1244 (1999). The Court's analysis of the applicable lex specialis is questionable. Its analysis was coloured by the narrow approach it took to answering the question it was asked to address. It queried an unambiguous factual qualification made by the General Assembly, and it disregarded factual qualifications made by the Secretary-General, his Special Representative, and indeed all relevant actors. It failed to uphold the legally binding provisions of Security Council Resolution 1244, and it did not qualify as unlawful or invalid an act of a subsidiary body of the Security Council that was undertaken in excess of authority and contrary to the fundamental provisions of that Resolution. The resolute conclusion of the majority of the Court that the unilateral declaration of independence did not violate international law seems to read as a declaration of ‘independence from international law’.

Secession
  • International Law Perspectives
  • Edited by Marcelo G. Kohen
  • Published online:
    23 July 2009
    Print publication:
    21 March 2006
  • The end of the Cold War brought about new secessionist aspirations and the strengthening and re-awakening of existing or dormant separatist claims everywhere. The creation of a new independent entity through the separation of part of the territory and population of an existing State raises serious difficulties as to the role of international law. This book offers a comprehensive study of secession from an international law perspective, focusing on practice and applicable rules of international law. It includes theoretical analyses and a scrutiny of practice throughout the world by eighteen distinguished authors from Western and Eastern Europe, North and Sub-Saharan Africa, North and Latin America, and Asia. Core questions are addressed from different perspectives, and in some cases with divergent views. The reader is also exposed to a far-reaching picture of State practice, including some cases which are rarely mentioned and often neglected in scholarly analysis of secession.

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