Giovanni Distefano

The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law

The present article aims to examine a set of legal constructions related to the concept of legal title in territorial disputes. Any international jurist cannot but strongly feel the need of a theoretical approach and framework explaining the acquisition and loss of territorial sovereignty. This conceptualization will be put to the test in the light of the ICI’s case law, especially, but not exclusively, the most recent ones. To this end, the article is structured in three main parts in addition to introduction: the first will be devoted to the building of a comprehensive concept of territorial titlewhile rejecting the traditional ‘modes of acquisition’ of territorial sovereignty (part 2). Part 3 will deal with the legal processes through which territorial titles are actually created, extinguished, or modified: roughly speaking, this happens by an international agreements (legal acts) or by virtue of norm-creating facts. Last, but not least, we shall examine – in part 4 – the highly debated and sensitive topic of the relations between effectiveness and formal legal title from the standpoint of the establishment or loss of territorial sovereignty. As we have endeavoured to show in this writing the concept of legal title reunites and resolves the tension between fact (effectiveness) and formal gegal title (law). In this respect four situations will be put under scrutiny in order ultimately to test our construction of a new concept of territorial title.

The Position of Individuals in Public International Law Through the Lens of Diplomatic Protection: The Principle and Its Transfiguration

In this contribution we endeavour to examine the legal status of individuals from the perspective of diplomatic protection, with the purpose of ascertaining whether the asserted evolution of the latter has had any impact on the international personality of the former. To this end, we will firstly sketch two different definitions of the international personality, and then the main features of diplomatic protection, in its traditional construction as well as in its ‘transfigured’ form, will be scrutinized. Generally speaking, the individual is seen by international law in two different, yet complementary, perspectives. In the first, which can be labelled ‘traditional’, the individual is taken into consideration as an ‘object’, that is, an extension of States’ jurisdiction; viewed from this angle, they can be the source of a dispute between States as they crystallize the collision between their sovereignties. Therefore, international law is not at all concerned with individuals outside this specific situation; indeed, the regime which applies to them is governed by the national jurisdiction of the State of which they are nationals; in other words, the relationship between a national and its State belongs to the latter’s domaine reserve.The second approach, which can be termed the new approach, or nouvelle vague, since it came chronologically after the first one, is tacked on to it, without, though, replacing it. We are talking of the widely known – and highly publicized – law related to human rights. According to this perspective – which encompasses the wide and deeply specialized body of rules related to the human rights – a person is protected not as an appendix of a State’s sovereignty, but as a holder of human dignity vis-a-vis any State, including, most importantly, the one of which he (or she) is a national. The two approaches underline, beyond their fundamental differences, the emergence of the individual on the stage of International Law, whose status evolved from that of an ‘object’ (a mere accessory of his/her own State) to ‘subject’. From the diplomatic protection – which best highlights the first approach – through the protection of minorities, up to the international protection of human rights, this legal development shows the penetration of international law into the State’s own national jurisdiction, and, at the same time, the latter’s shrinking. What was once governed by the State’s national jurisdiction is from then onwards determined by International Law, the rules of which are created – directly and indirectly – by States that have then willingly given up their exclusive legal regulation with regard to individuals to International Law.

Les compétences territoriales

This chapter identifies the places in the book of Emer de Vattel where the concept of territorial jurisdiction is actually examined. It tackles this task in a tripartite movement like the sonata for piano that will be permanently codified at the same time. The chapter is devoted to the study of this concept and deals with inventory of various jurisdictions and examines the patterns of their establishment and their spatial boundaries. It demonstrates that the fresco in the new international order brushed by Vattel, local skills certainly is the armature that penetrates the rules of international law. The internationalist construction of territory, namely the territorial jurisdiction in contemporary order, commonly called Westphalian least as an icon or image Epinal betrays the idea of a division of the original undivided Empire. The original text of the chapter is in French. Keywords: Emer de Vattel; international law; territorial jurisdiction; Westphalian

Le Protocole de Londres du 17 janvier 1871: miroir du droit international

Dans la presente contribution, nous entendons etudier, a la lumiere d’une crise internationale en apparence anodine, le changement de paradigme du droit international qui s’opere en arriere-plan. Dans la premiere partie, il s’agira de planter le decor historique des evenements et de brosser le portrait et l’argumentaire des dramatis personae: les ministres russe et anglais des affaires etrangeres et les autres chancelleries europeennes. Dans la deuxieme partie, nous mettrons en exergue la contribution de cette crise – et surtout de son denouement grâce au Protocole de Londres de 1871 – au droit des traites moderne. Enfin, et c’est notre point essentiel, nous sommes convaincus que la resolution de cette crise revele en filigrane le changement de paradigme, c’esta-dire qu’elle porte sur les fonts baptismaux une nouvelle construction de l’ordre juridique international. En d’autres termes, le reglement – par la Conference de Londres de 1871 – d’un differend sur l’interpretation et l’application d’un traite international n’aurait pas pu etre realise sans ce changement de paradigme scientifique.