Riassunto esame Diritto internazionale, Prof. Campiglio Cristina, libro consigliato Diritto Internazionale Privato e Processuale + Cassese’s International Law, Franco Mosconi, Cristina Campiglio e Paola Gaeta

SPATIAL DIMENSIONS OF STATE ACTIVITIES

- most activities performed by States take place within a geographic area:

territory=crucial for their existence (State without territorial

basis=inconceivable)+dimension within which States deploy their main activities

- physical dimension: earth+sea+air→divided into areas, subject to the sovereign

authority of States

- whoever possessed a territory+exercised actual control over it→acquired legal title

- areas subject to no one=terrae nullius

- land+territorial waters+air above territory (up to the stars)=subject to State

sovereignty; high seas: belong to everybody=res communis omnium/common

good=every State could sail its ships/use high seas’ resources, as long as it did not

hamper their free use by other States→every State is authorized to use a certain

good for its own purposes and interest

- (after 2WW) new technological means brought potential resources of seabed and

subsoil off the coast of States=continental shelf+advances in shipping→exploit

fishing resources far from coast and in high seas (beyond limits of national

jurisdiction); mineral resources on the ocean floor→every State can freely

appropriate/exclusively exploit resources within its reach→individualistic principle of

competition/act on a community-oriented principle: resources beyond territorial

waters of each State should be commonly exploited and shared/used by the more

industrialized and powerful States, to take into account also the needs of other States

(common heritage of mankind)

- individualism (State sovereignty and nationalism)+laissez faire attitude: whoever had

the physical means of acquiring and effectively controlling a portion of territory on

land→legitimized to claim sovereign rights over it=more militarily and economically

powerful States→greater chance of acquiring larger territory=self-interest and

competition

- legal regulation of outer space=layer of atmosphere above the airspace normally

used by aircraft; limits of technology: not yet allow application of sovereignty-oriented

notions to this area

- spatial dimension of State activities=territory=land+sea+air spaces=subject to

exclusive sovereignty of the State/exercise sovereign rights over certain

matters=exclusive economic zone+continental shelf/beyond States jurisdiction and

are global commons=high seas+seabed and subsoil+outer space

SOVEREIGNTY, COMPETENCE AND JURISDICTION

- sovereignty is intrinsically related to spatial dimension where it exercised=territory

of the State

- sovereignty in the relations between States=independence (in regard to a portion of

the globe)=the right to exercise therein, to the exclusion of every other State, the

functions of a State=full range of competences exclusively pertaining to a State by

virtue of its sovereignty over its territory=powers and duties flowing from

sovereignty→exercised through assertion of jurisdiction, over the State territory

(territorial jurisdiction)/beyond (extraterritorial jurisdiction)(they cannot extend

application of their laws and jurisdiction of their courts to persons/property and acts

outside their territory→discretion limited in certain cases by prohibitive rules, for

prosecuting international crimes/bring remote situations under the scope of a State’s

human rights obligations=functional jurisdiction)

- a subject of international law not sovereign may have competences dictated/implicitly

covered by its mandate, not full/exclusive within spatially delimited area

EXERCISE OF JURISDICTION

1) prescriptive jurisdiction: sovereign territory→binding legislation applicable to

persons/entities in the territory of the State

- upon nationals abroad/other facts-conduct engaged in abroad and considered

prejudicial to the State/acts performed abroad by foreigners against other

foreigners

- extraterritorial extension: market power laws=adopted by a State requiring

certain actors based abroad to behave in certain ways to avoid being

penalized and commercially affected in the State adopting the law (they must

respect the sovereignty of foreign States)(used over terrorism/other serious

international crimes, ex. genocide/torture: the State deliberately seeks to

address situations beyond its territory=allocating responsibility for situation

deemed under jurisdiction of the State)

2) adjudicative “=power to pronounce upon legal disputes; principle of

territoriality→nationality principle: based on the nationality of the

offender/victim/protective principle: according to which courts assert jurisdiction over

offences that infringe upon/seriously affect national interests

- principle of universality: over offences committed abroad by foreigners against

foreigners→international crimes

3) enforcement “: acts committed on the territory, except permissive rule from

international custom/convention

LAND TERRITORY

- =portion of emerges land+islands→subject to the sovereign authority of a State

- at present: no territory exists that is not subject to a sovereign Power; exception:

Antarctic continent→claims to territorial sovereignty of

Argentina-Australia-Chile-France-New Zealand-Norway-Uk, based on

discovery/symbolic annexation/doctrine of contiguity→sector principle

- sovereignty in relation to a portion of the surface of the globe=legal condition

necessary for the inclusion of such portion in the territory of any particular State

- States are entitled to exercise over their territories all powers inherent in their

sovereignty, subject to limitations from ever-expanding body of international law, over

matters such as human rights/environmental protection/economic relations in areas

of foreign investment and international trade

ACQUISITION

- modes of acquisition=legal basis underlying the powers exercised over territory

- (Roman law) occupation of a terra nullius=land belonging to no one→effective and

accompanied by animus domini=intent to appropriate the territory (no longer

possible→no terrae nullius left); cession by treaty+peaceful transfer of territory;

conquest=occupation following resort to armed violence (no longer admissible: no

territorial acquisition from threat/use of force shall be recognized as legal);

accretion=physical process→new land is formed close to existing land (normally:

new land is held to be under the sovereignty of the State within whose territory it has

come into being; acquisitive prescription=uncontested effective possession of

territory with animus for a long period of time

- all current modes of acquisition are derivative in nature=presuppose a prior

acquisition of title over the territory, that is passed on→validity of current title to

territory often dependent to historical events/previous title secured in remote past

- States coming into existence in decolonization/succession/secession context/for title

conferred by third party in process of political/equitable attribution/allocation

- effective displays of sovereign power over a certain territory=effectivités

TITLE=source of a right and evidence of existence of the source→gives a State certain

powers over territory→may vary: territorial sovereignty/only to

administration/ownership/property; different titles confer different powers over spaces

- territorial sovereignty titles: may arise from coming to existence of a State

(exercise of the right to self-determination of people of a non-self-governing territory,

succession of a State to one/more other States, secession of entity becoming a new

State)/treaty lawfully concluded (=without coercion) and ratified by all relevant

States (treaty transferring territory=cession/delimiting boundary/formally recognizing

sovereignty of other State over certain area/general peace settlements allocating

different portions of territory among contracting parties/agreements entered into by

colonial Powers with local rulers) →confer title for the stability of boundaries: a

boundary set by treaty is maintained even if the treaty is terminated/political

adjudication-attribution=by the decision of a third party empowered to allocate

territory to one/more States on its authority (decisions of international courts/tribunals

on land/maritime boundary disputes=not basis for attribution→declaratory and simply

drawing conclusions resulting from application of international law/unilateral acts

(renunciation of a territory=recognition that another State has sovereignty over it;

acquiescence by a State to the continued display of sovereign prerogatives by

another State)/effective occupation of a territory by a State with animus domini,

over terra nullius/territory over which no other State holds a firmer title

- interaction title-effectivités: effective administration à titre de souverain can by itself

confer title, only in absence of stronger title; if another title exists, the effectivités can

challenge to such title (if additional factors are met, ex. acquiescence) to a title in its

own right (the other State also claims effectivités, but weaker/less well

established)/evidence of geographical extent of a title; acts corresponds exactly to

law+effective administration additional to uti possidetis juris→role of

effectivité=confirm exercise of right from legal title; act does not correspond+territory

subject of the dispute effectively administered by a State other than the one

possessing the legal title: preference to the holder of the title; the effectivité does not

co-exist with any legal title: must be taken into consideration; the legal title is not

capable of showing exactly the territorial expanse: essential role of the effectivité in

showing how the title is interpreted in practice

- legal title>effectivités: the ICJ addressing a territorial dispute considers whether a

treaty confers title on one of the parties=lex specialis→there is no need to examine

other titles; no treaty: examine whether other legal titles recognized in general

international law are controlling in the circumstances of the case; analysis of

effectivités+their relations with the title previously ascertained; assessing whether the

subsequent behaviour of the parties to the dispute confirms/modifies the situation

arising from the legal title: application of technical rules on critical date and

intertemporal law; reliance on equity infra legem=a form of equity which constitutes a

method of interpretation of the law in force and one of its attributes→equitable

interpretation of the applicable rules (relevant title)

- delimitation of maritime boundaries: application of the fundamental principles of

international law (=uti possidetis principle, stability of boundaries, exclusion of the

rebus sic stantibus clause and role of equity infra legem)

DELIMITATION OF BOUNDARIES

uti possidetis juris: (beginning of 19th century) practice of Spanish America→accession of

former colonies of Spain to independence→boundaries followed former colonial frontiers

(“you will ha