Territorial dispute - an international dispute between two or more states regarding the legal affiliation of a certain territory [1] . Each of the parties to the dispute claims that this territory is its property, since it exercised or exercises its power in this territory. A territorial dispute is considered as such when all of the disputing parties recognized its existence [2] [3] . In the general case, however, in the opinion of the International Court of Justice of the United Nations , expressed in a decision on a specific case, “It is not enough for one party to the controversial case to state that there is a dispute with the other. A simple statement is not enough to prove the existence of a dispute, just as a simple denial is not enough to prove that such a dispute does not exist ” [4] .
The recognition by the state of the existence of a territorial dispute over a certain territory at the same time represents the recognition that the legal affiliation of a given territory is not precisely or definitively established [5] .
The emergence of a territorial dispute
The basis for a territorial dispute is territorial disagreement . By such are meant disagreements regarding the establishment of a legal regime and the ownership of the territory. The establishment of a legal regime means the assignment of a territory to one of the following categories: international territories, state territories, territories with a mixed regime. The territorial affiliation determines those entities (or one entity) that have territorial supremacy over state territory or have rights in respect of territories belonging to other categories. It should be borne in mind that the presence of territorial differences of the parties in itself is not yet evidence of the existence of a territorial dispute [4] .
Parties, object and subject of dispute
From the international legal point of view, talking about a territorial dispute is possible only if there are parties (subjects) to the dispute, a matching object of the dispute and the subject of the dispute recognized by all parties [6] .
Parties to a territorial dispute are entities claiming their rights to a certain territory. It is generally accepted that only states can be parties to a dispute. So, for example, the struggle of a people (nation) for self-determination is not considered a territorial dispute. The basis for such an approach is the fact that a people (nation) fighting for independence, until independence and the formation of their own state, is located in the territory to which the territorial supremacy of another state extends. International organizations are also excluded from possible parties to the dispute for the reason that they do not have their own territory [4] [6] .
In addition to the parties to the dispute, other states, as well as organizations, can participate in its resolution. The participation of other states is usually either related to the performance of intermediary functions, or is caused by the fact that as a result of the resolution of the dispute their interests may be affected. Organizations involved in dispute resolution include international judicial institutions and arbitrations, as well as mediation organizations. Other parties to the dispute may have a political or economic interest, but, unlike the parties to the dispute, such interest is devoid of legal basis [4] .
The territory always acts as an object of a territorial dispute. It can become a subject of controversy both by virtue of raising the question of its affiliation and as a result of the question of whether the existing distinction corresponds to its norms of international law. In turn, the subject of the dispute is the right of the state to the territory. It is the evidence of this right that is the subject of proof in territorial disputes. The specified object and subject of the dispute separate territorial disputes from other disputes relating to the resolution of issues related to territories [4] .
Dispute Resolution
The principle of peaceful resolution of international disputes
In modern international law , the principle of the peaceful resolution of international disputes, enshrined in the UN Charter, is considered as fundamental to the resolution of territorial disputes. According to paragraph 3 of Art. 2 of the Charter “all Members of the United Nations resolve their international disputes by peaceful means in such a way as not to endanger international peace and security and justice” [7] . This principle is developed and detailed in the Declaration on the Principles of International Law, adopted by the UN General Assembly in 1970, and in the Final Act of the 1975 Conference on Security and Cooperation in Europe . The Manila Declaration on the Peaceful Resolution of International Disputes and the Declaration on the Prevention and Resolution of Disputes and Situations that May Threaten International Peace and Security, and on the role of the United Nations in this field, adopted by the United Nations in 1982 and 1989, also played an important role in the development of the principle. respectively [8] .
In accordance with the principle of peaceful resolution of international disputes in its modern understanding of the state, the parties to the dispute must resolve their disputes [8] :
- exclusively by peaceful means;
- solely on the basis of law and justice;
- refraining from actions that may lead to exacerbation of the dispute;
- not leaving your disputes unresolved;
- making full use of all possible peaceful means and procedures appropriate to the circumstances and nature of the dispute.
The principle of the peaceful resolution of international disputes, like other basic principles of international law , belongs to the category of peremptory norms . Any deviations from peremptory norms in relations between states are not allowed [9] .
There are two main forms of resolving international disputes, differing in the settlement mechanism: contractual and judicial [10] .
Contractual form for the resolution of territorial disputes
The basis of the contractual procedure is negotiations between the parties, and the result of the dispute settlement using this form is an agreement between the parties .
The transfer of territorial disagreements into the category of territorial disputes is accompanied by the formation by the parties to the dispute of their positions and the statement of claims to each other. A clear and complete determination of the positions of the parties usually helps to successfully resolve the dispute. Thus, the compilation and coordination of a mutual list of disagreements between Peru and Ecuador in 1996 significantly contributed to the fact that the territorial dispute between them, which had more than half a century of history, was settled in 1998 by agreement of the parties [10] [11] .
When using the contractual form, there is no entity directly controlling the negotiation processes and reaching an agreement. At the same time, such processes may involve third parties who do not make their own territorial claims and are not parties to the dispute. Such, in particular, may be intermediaries and entities providing good services [Comm 1] . The parties to the dispute resort to the help of intermediaries in those cases when they themselves are not capable of reaching an agreement. In practice, the consequences of the existence of such a possibility turn out to be different: in some cases, mediation leads to success, in others it is not possible to achieve success, in third - the parties reject proposals in mediation.
The advantages of a contractual form include its flexibility: when using it, the parties can make any concessions to each other and make any compromise. The main disadvantage of the contractual form is its dispositiveness , expressed in this case in that both the negotiation procedure and the agreement conclusion procedure are determined only by the will of the parties.
In cases where negotiations regarding a territorial dispute do not lead to a final resolution of the dispute, other negotiation results are possible. For example, the result may be the determination of the subject of the dispute or agreement on the use of another peaceful means, including going to court. In the latter case, the contractual form of dispute resolution, without leading to a substantive settlement of the dispute, gives way to the judicial form [10] .
Judicial form for the resolution of territorial disputes
Judicial resolution of international territorial disputes is carried out by the International Court of Justice. The competence, organization and procedure of the UN International Court of Justice are determined by the Statute, which is an integral part of the UN Charter [13] . According to Art. 93 of the UN Charter, all UN member states are ipso facto parties to the Statute of the Court [Comm 2] .
The UN International Court of Justice is entitled to consider a case only if the relevant states have agreed to become a party to the proceedings before the Court ( principle of consent of the parties ). A state may express its consent in the following ways [13] [15] :
- Special agreement . It is concluded by the parties to the dispute when they agree to jointly submit the dispute to the Court.
- Article in the contract . Some treaties contain articles ( jurisdictional articles ) in which the state party agrees in advance to recognize the jurisdiction of the Court in the event of a dispute with another state party regarding the interpretation or application of the treaty in the future.
- Unilateral statement . Statement by a State party to the Statute of the Court on the recognition of the jurisdiction of the Court as binding on any other state that has undertaken the same obligation.
As of 2014, unilateral declarations declaring the jurisdiction of the Court to be binding are made by approximately one third of the UN member states [Comm 3] .
At the same time, a state that has recognized the jurisdiction of the Court may, after having been called to the Court by another state, consider that such jurisdiction is not applicable because, in its opinion:
- no dispute with this other state
- or since the dispute is not legal
- or since his consent to recognize the jurisdiction of the Court is not applicable to the dispute in question.
In this case, the Court shall resolve the issue in a preliminary decision [Comm 4] [13] [15] .
The decisions of the Court are binding, but only for the states involved in the dispute, and only in this case. The obligation to comply with the decision of the International Court of Justice in the case in which a UN member state is a party rests with the UN Charter. The decisions of the Court are final and not subject to appeal, however, they can be reviewed on the basis of newly discovered circumstances [13] [17] .
See also
- Disputed Territories
- Territorial dispute between Ukraine and Romania
- The territorial dispute between France and the Netherlands in Guiana
Notes
Comments
- ↑ Good services - the activities of a third party (state, international organization, private individual) aimed at establishing contacts between the disputing parties [12] .
- ↑ ipso facto ( lat. Ipso facto - literally "by the fact itself") - by virtue of the fact itself, by virtue of this alone or by itself [14] .
- ↑ Of the five permanent members of the Security Council, only one ( Great Britain ) made such a statement, which is valid at present (2016). Previously, France and the United States did this, but they withdrew their statements, while China and Russia never made such statements. The statement of Great Britain is provided with reservations that exclude from the scope of its action a part of the categories of disputes [15] .
- ↑ The practice of the court shows that in most cases when one state initiates proceedings unilaterally, the other state disputes the jurisdiction of the Court. In resolving such matters, the Court declared itself competent in approximately 65 percent of cases [16] .
Used Sources
- ↑ Territorial dispute // Big Law Dictionary / Sukharev A. - M .: Infra-M, 2005. - 857 p.
- ↑ Kurakov L.P. , Kurakov V.L. , Kurakov A.L. Territorial dispute // Economics and Law: Dictionary. - M .: University and school, 2004 .-- 1072 p. - ISBN 5-94378-062-9 .
- ↑ Ashavsky B.M. et al. International Law / Under. ed. A.A. Kovaleva and S.V. Chernichenko. - M .: "Omega-L", 2011. - S. 215. - 831 p. - ISBN 978-5-370-01882-4 .
- ↑ 1 2 3 4 5 Orlov A. S. The concept of international territorial dispute // Bulletin of the Udmurt University . - 2010. - Issue. 3 - S. 94-100 . - ISSN 1999-8597 .
- ↑ International Law / Kolosov Yu.M., Kuznetsov V. And .. - M .: International Relations, 1994. - 608 p.
- ↑ 1 2 Chapter 16. Territories and borders in international law // International law / Otv. ed. V.I. Kuznetsov, B.R. Tuzmukhamedov. - 3rd ed., Pererab. - M .: Norma, Infra-M, 2010 .-- S. 448. - 720 p. - ISBN 978-5-468-00320-6 .
- ↑ UN Charter
- ↑ 1 2 Chapter 6. Principles of international law // International law / Resp. ed. V.I. Kuznetsov, B.R. Tuzmukhamedov. - 3rd ed., Pererab. - M .: Norma, Infra-M, 2010 .-- S. 192. - 720 p. - ISBN 978-5-468-00320-6 .
- ↑ Lukashuk I.I. International law. A common part. - M .: Walters Clover, 2005 .-- 432 p. - ISBN 5-466-00103-01.
- ↑ 1 2 3 Orlov A. S. Correlation of contractual and judicial forms of settlement of international territorial disputes (statement of the problem) // Russian Journal of Law. - 2009. - No. 3 . - S. 82–90 .
- ↑ Beth A. Simmons. Territorial Disputes and Their Resolution. The Case of Ecuador and Peru . - Washington, DC: United States Institute of Peace (USIP), 1999. - 52 p.
- ↑ Good Services // Big Law Dictionary / Sukharev A. - M .: Infra-M, 2005. - 857 p.
- ↑ 1 2 3 4 Glebov I.N. International law. - M .: Bustard, 2006 .-- 368 p. - ISBN 5-7107-9517-8 .
- ↑ Babichev N.T., Borovskoy Ya. M. Ipso facto // Latin-Russian and Russian-Latin Dictionary of Winged Words and Expressions. - M .: Russian Language, 1982.
- ↑ 1 2 3 Judicial proceedings in contentious cases . International Court of Justice . UN Date of treatment February 19, 2016.
- ↑ International Court of Justice. The main judicial organ of the United Nations: questions and answers . - New York: UN , 2001. - S. 58-59. - 80 p. Archived on September 6, 2015. Archived September 6, 2015 on Wayback Machine
- ↑ Tolstoy V. L. Course in international law . - M .: Walters Clover, 2009 .-- 1056 p. - ISBN 978-5-466-00401-4 .
Links
- Declaration of Principles of International Law Relating to Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations
- Conference on Security and Cooperation in Europe. The final act. Helsinki , August 1, 1975
- Manila Declaration on the Peaceful Resolution of International Disputes
- Declaration on the prevention and resolution of disputes and situations that may threaten international peace and security, and on the role of the United Nations in this area
- Statute of the International Court of Justice
- Judgment of the United Nations International Court of Justice of December 21, 1962, "South West Africa Cases (Ethiopia v. Soztth Africa; Liberia v. South Africa), Preliminnry Objections"
Literature
- Brian Taylor Sumner, Territorial Disputes at the International Court of Justice . // Duke Law Journal, 53, pp. 1779-1812 (2004 )