Page 1

VOLUME 20

Rights to Territory: The Case of the United Nations

Göran Lysén is professor emeritus in public international law at the Faculty of Law, Uppsala University, Sweden.

GÖRAN LYSÉN

Disposition, administration and possession of territory have occurred throughout of the history of mankind, often resulting all together in conquest and annexation. In more modern times the peace treaties of Osnabrück and Münster in 1648 (Westphalian Peace), ending the war of the “Thirty Years” in Europe, brought a new structure and means in the relations between the European states. A new époque started by the Vienna Congress in 1815 following the wars of Napoleon and was also the beginning of the so-called European Concert conducted by the “Great Powers” in arranging territorial issues in Europe. This era was concluded by the Versailles Peace Treaty in 1919, which also brought a new player into the “territorial business”, namely the League of Nations/ Société des Nations, that is to say an international organization. After the Second World War the United Nations (UN)/l’Organisation des Nations Unies (ONU) was created and given such a position that the powers once held by the “Great Powers” to a certain extent now have been channeled through the UN. Consequently, considering the main objective of the UN, that is to preserve international peace and security or to restore such conditions, the UN has engaged itself in almost countless missions to that end. In many cases the use of disposition, administration and possession of territory on the part of the UN has taken place, including state-building. This Study focuses on the actions by the UN concerning the three mentioned aspects, including a discussion on a number of legal issues pertaining to territory.

GÖRAN LYSÉN

Rights to Territory: The Case of the United Nations The matters of disposition, administration and possession

UPPSALA UNIVERSITY SWEDISH INSTITUTE OF INTERNATIONAL LAW STUDIES IN INTERNATIONAL LAW

U PPSALA U NIVERSITY S WEDISH I NSTITUTE OF I NTERNATIONAL L AW ISSN 0348-4718; 20 ISBN 978-91-7678-944-5


RIGHTS TO TERRITORY: THE CASE OF THE UNITED NATIONS The matters of disposition, administration and possession göran lysén


Contents

Contents Preface  9 Abbreviations  13 Cases  15 Permanent Court of International Justice (PCIJ)  15 International Court of Justice (ICJ)  15 International Tribunal of the Law of the Sea (ITLOS)  16 European Court of Justice (ECJ)  17 European Court of Human Rights (ECHR)  17 Arbitral Awards  17 Miscellaneous 17 Chapter One – Introduction to issues  19 1.1 General overview  19 1.2 The State concept  30 1.3 Protectorates and colonies  43 1.4 Belligerent occupation and annexation of territory  46 1.5 International administration of territory  72 1.5.1 Mandated territories  74 1.5.2 Administration in Europe by the League of Nations  75 1.5.3 Trusteeship territories and non-self-governing territories  77 1.5.4 UN peace-keeping and peace-making  82 1.6 The UN and rights to territory  83 1.7 Proposed Study  89 Chapter Two – The matter of the UN Charter; some points of relevance to territorial rights  91 2.1 General notes on the UN Charter  91 2.2 The UN as an international organization  93 2.3 The UN and its competences relative to territory  102 2.3.1 Competences on international peace and security  102 2.3.2 Specific competences on territory  109 2.4 Some concluding remarks  114

5


Contents Chapter Three – The matter of UN Disposition of Territory  116 3.1 The UN as midwife  117 3.1.1 Decolonization generally  117 3.1.2 Republic of Namibia/South West Africa  119 3.1.3 Two failed attempts  131 3.2 The UN preventing pregnancy  134 3.2.1 Southern Rhodesia  134 3.2.2 Bantu states or homeland states  135 3.2.3 Cyprus  136 3.3 Recognition of states and territorial acquisitions  137 3.4 Some concluding remarks  140 Chapter Four – The matter of UN Administration of Territory  144 4.1 Peace-keeping  147 4.1.1 The First United Nations Emergency Force in the Middle East (UNEF) and the Certain Expenses Case  147 4.1.2 UN Operation in the Congo (ONUC)  155 4.1.3 United Nations Temporary Executive Authority on West Irian (UNTEA)  156 4.1.4 United Nations Mission for the Referendum in Western Sahara (MINURSO)  157 4.1.5 United Nations Transitional Authority in Cambodia (UNTAC)  158 4.1.6 European Union and the administration of the city of Mostar (EUAM)  159 4.1.7 The Office of the High Representative in Bosnia and Herzegovina (OHR)  162 4.1.8 United Nations Transitional Administration for Eastern Slavonia (UNTAES)  163 4.2 Peace-making  164 4.2.1 Afghanistan  164 4.2.2 Somalia (UNOSOM I and II)  168 4.2.3 The Congo at present  169 4.3 State-building  171 4.3.1 Kosovo  171 4.3.2 East Timor/Democratic Republic of Timor-Leste (UNTAET)  181 4.4 International appointees as a special feature in peace-keeping/ state-building 184 4.5 Some cases beyond the UN  186 4.5.1 Taiwan  187 4.5.2 Palestine  188 4.5.3 Crimea  189 4.6 Some concluding remarks  192

6


Contents Chapter Five – The matter of UN Possession of Territory  196 5.1 On theory  196 5.2 From practice  201 5.3 Some concluding remarks  212 Chapter Six – Concluding remarks  216 Bibliography  221

7


VOLUME 20

Rights to Territory: The Case of the United Nations

Göran Lysén is professor emeritus in public international law at the Faculty of Law, Uppsala University, Sweden.

GÖRAN LYSÉN

Disposition, administration and possession of territory have occurred throughout of the history of mankind, often resulting all together in conquest and annexation. In more modern times the peace treaties of Osnabrück and Münster in 1648 (Westphalian Peace), ending the war of the “Thirty Years” in Europe, brought a new structure and means in the relations between the European states. A new époque started by the Vienna Congress in 1815 following the wars of Napoleon and was also the beginning of the so-called European Concert conducted by the “Great Powers” in arranging territorial issues in Europe. This era was concluded by the Versailles Peace Treaty in 1919, which also brought a new player into the “territorial business”, namely the League of Nations/ Société des Nations, that is to say an international organization. After the Second World War the United Nations (UN)/l’Organisation des Nations Unies (ONU) was created and given such a position that the powers once held by the “Great Powers” to a certain extent now have been channeled through the UN. Consequently, considering the main objective of the UN, that is to preserve international peace and security or to restore such conditions, the UN has engaged itself in almost countless missions to that end. In many cases the use of disposition, administration and possession of territory on the part of the UN has taken place, including state-building. This Study focuses on the actions by the UN concerning the three mentioned aspects, including a discussion on a number of legal issues pertaining to territory.

GÖRAN LYSÉN

Rights to Territory: The Case of the United Nations The matters of disposition, administration and possession

UPPSALA UNIVERSITY SWEDISH INSTITUTE OF INTERNATIONAL LAW STUDIES IN INTERNATIONAL LAW

U PPSALA U NIVERSITY S WEDISH I NSTITUTE OF I NTERNATIONAL L AW ISSN 0348-4718; 20 ISBN 978-91-7678-944-5

Profile for Smakprov Media AB

9789176789445  

9789176789445  

Profile for smakprov

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded