Research Handbook on Territorial Disputes in International Law

The Place of Non-Aggravation in the Peaceful Settlement of Territorial and Maritime Disputes

“…Consequently, the way states conduct themselves in the terrestrial domain and associated duties of non-aggravation pending the resolution of the territorial dispute will have to be assessed against fundamental principles of international law. These fundamental principles include, notably, the principle of territorial integrity, the principle of inviolability of boundaries, and the obligation to pursue the peaceful settlement of international disputes (Kohen and Hébié, 2018;Milano, 2004;Milano and Papanicolopulu, 2011).…”

“…Therefore, even when State A denies the existence of territorial dispute with State B but at the same time both states lodge explicit official statements on the validity of their respective sovereignty claims and such claims are positively opposed to each other (i.e., competing claims of sovereignty over the same territory and/or surrounding ocean space often accompanied by formal protests hinting at each other's internationally wrongful acts) it would be difficult to deny that a proper dispute does in fact exist. The critical point for the crystallisation of the dispute is when one side asserts its sovereignty and associated sovereign rights and the other side protests for the first time, or when the first protest by one state is rejected by the other (Kohen and Hébié, 2018). On the other hand, statements of a 'general nature', 'general criticism[s]', or statements 'formulated in hortatory terms' without advancing a specific allegation (i.e., without specifying whose state's conduct gave rise to an alleged breach of international law) do not in themselves give rise to the existence of a dispute (Yiallourides et al, 2018).…”

“…International law requires the peaceful settlement of disputes but does not provide any compulsory means for reaching such settlement (Kohen and Hébié, 2018). Dispute resolution, within and outside the United Nations (UN), operates only upon the consent of the states concerned (Northedge and Donelan, 1971).…”

Self-determination in territorial disputes before the International Court of Justice: From rhetoric to reality?

“…54 Effectivités therefore differs from legal titles (such as treaties or former colonial agreements) in that they are demonstrations of behaviour, as opposed to legal sources. 55 The Court has explicitly stated on many occasions that legal titles take precedence over effectivités, 56 and has applied legal titles over effectivités in a number of decisions. 57 Effectivités has only been considered if a legal title was lacking, 58 if an existing legal title was ambiguous and did not provide a clear solution regarding the disputed territory, 59 or if the effectivités was subsequent to a valid legal title and indicative of acquisitive prescription.…”

“…110 The state must manifest the exercise of state sovereignty over such people (through legislative, administrative or regulatory acts, for example 111 ) as well as its intention to act as their sovereign. 112 In the words of one author, 'adjudicators have distinguished the presence of individuals as private persons on the one hand and from their presence à titre de souverain, on the other.' 113 For example, the 'fishing and piratical activities in the waters in the Straits of Singapore, including in the area of Pedra Branca/Pulau Batu Puteh' 114 of the nomadic people of the sea named the Orang Laut were considered to be evidence of Malaysia's sovereignty over the disputed territory in the 2008 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) case.…”