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On the effective occupation rule in the territorial dispute settlement

Author: DongZuo
Tutor: GaoJianJun
School: China University of Political Science
Course: International law
Keywords: Territorial disputes Effective occupation Treaty the required Retain possession
CLC: D995
Type: Master's thesis
Year: 2008
Downloads: 376
Quote: 1
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Abstract

Territory of any sovereign state has a very important significance, territorial disputes between countries is also an ancient and important issue in the international law. This article aims to explore the effective occupation of territory dispute settlement rules. It is in a territorial dispute, the ICJ or arbitration institutions in identifying the circumstances of the land in dispute does not exist to determine the legitimate sovereignty, evidence submitted by the measure of the disputing parties, to determine which side has more closely, effectively control, constitute an effective occupation of the land in dispute the award of the territorial disputes of the parties to resolve. This article is divided into three chapters, the following major elements: the first chapter the concept of effective occupation. First, the effective occupation of the generation and development process. Effective occupation was originally produced in the Roman law, has been established during the colonial period, after the 1884 Berlin Conference, certain changes in its elements, instead emphasizing the exercise of national sovereignty or the declaration. Secondly, on the effective occupation of the constituent elements. Divided into the main objective two aspects: the subjective element can be defined from the actors, without the private activities of the national authorization or permission is usually not constitute effective occupation, in addition, due to the subjective element of complexity and lack of maneuverability, the practice of whether a country's behavior constitutes effective occupation more dependent on the measure of objective elements, that is to see the exercise of national sovereignty or declaration of whether the peace, the actual, continuous, full requirements. The second chapter discusses the identification of issues of effective occupation. This chapter first describes the significance of this important concept of the critical dates, and then explore the practice of critical dates to identify the problem; Secondly, according to the specific circumstances of the \flexibility; Finally, the author of the specific case of a territorial dispute, the inspection ICJ or arbitration institutions consideration of how the evidence submitted by the parties to the dispute, which state behavior can be identified as the exercise or declaration of sovereignty, resulting in the identification of effective occupation play a role. The third chapter analyzes the effective occupation in the settlement of territorial disputes. It can be seen by inspection of the judgment of the ICJ case: effective occupation plays an important role in the settlement of territorial disputes, important rules of international law to resolve the territorial dispute, is in many cases, the Court ruled. The reason is that effective occupation there is a close link with the traditional international law on the preemption and timeliness. Effective occupation of the application of the rules, on the other hand, there are restrictions, that is not identified on the land in dispute legitimate sovereign. In practice, the ICJ or arbitration institutions by examining the dispute countries whether they were preemption, treaty relations, the former colonial country's domestic law and established the territorial sovereignty of the disputed area. Only in the confirmation failed to pass the above method is only applicable effective occupation to resolve territorial disputes.

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