International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms

Table of ContentsI. Introduction 3II. The Annexation of Crimea 5III. The European Court of Human Rights 9IV. The International Court of Justice 14A. Instituting Proceedings Directly Against the Occupying Power 15B. Advisory Jurisdiction 18C. Lateral Attack: A Return to the Black Sea Delimitation 24V. Inter-State Arbitration 27A. Territorial Disputes in BITs 28B. Territory under the Ukraine-Russian Federation BIT 30VI. Conclusion 41I. INTRODUCTIONSituations sometimes arise to which international law rules clearly pertain but for which international law procedures are not clearly available. The international law rule that precludes acquisition of territory by force is one of the clearest rules and undergirds much of the modern system of international law. Yet a state from which another state has seized territory by force does not necessarily have recourse to procedures that will fully vindicate its rights. The present Article is meant to provoke fresh consideration of the possibilities for challenging the unlawful acquisition of territory. It refers in particular to the annexation of the Ukrainian territory of Crimea by the Russian Federation. Some of the considerations set out herein chiefly concern that situation; others may be of wider or general application to territorial questions.This Article considers dispute settlement mechanisms under three instruments: the European Convention on Human Rights (European Convention), the Statute of the International Court of Justice (ICJ Statute), and the Ukraine-Russian Federation bilateral investment treaty. The point here is not to predict whether a particular court or tribunal would hear a submission seeking to affirm (or to challenge) title to Ukrainian territory, or to any given territory that might be subject to dispute. Justice Holmes said that the lawyer's task is to predict what a court will in fact do;1 a prediction (preferably accurate) is what the practicing lawyer's client expects. The lawyer writing as an academic, however, may be expected to explore the bounds of what a court might do if, for some reason, it saw fit to interpret or apply a text in a new way.2 The questions posed here are meant to be that sort of exploration.International law clearly prohibits acquisition of territory by force. As the General Assembly expressed it in the Friendly Relations Declaration,[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.3The rule has been stated in a number of forms.4 It would appear under modern international law that the rule is self-executory: that is, no particular determination is needed by an organ of the international legal system to implement the rule when a case of its breach arises. This was Judge Skubiszewki's reasoning in the East Timor case;5 Article 41 of the ILC Articles on state responsibility is consistent with it. The rule, as the Friendly Relations Declaration states it, has two parts: it forbids a state from acquiring territory by force, and it obliges all states to withhold recognition from any acquisition of territory which took place by force. …