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  • Territorial Sovereignty

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    76 vues42 pages

    Territorial Sovereignty

    Transféré par

    Ken Dela Cruz
    Public International Law

    Droits d'auteur :

    © All Rights Reserved
    Téléchargez comme PDF ou lisez en ligne sur Scribd
    Signaler comme contenu inapproprié
    sur 42
    ng ‘the i state, orders ses the tearity wal and present of none i recog- his not protl ibility of vitimate yactual CHAPTER SUMMARY Condominium This oceurs when two or more States jointly exercise sovereignty over a piace of lerntory and its inhabitants, Terminable and reversionary sovereignty This rofers to a situation where sovereignty of a territory changes by operation of law as a result of fulfilment of a condition or 3 failure to meet an exaress ar ims condition, Indeterminate sovereignty This may occur when a temitary is not terra auflus but nevertheless has no determinate soversign, The Principles and Rules Applicable to the Acquisition of Title to Territory ‘The following principles and rules can be identified: The rulesof jus cogens such as the prohibition (other than in selfsdefence or as mandated by the United Nations Security Caunail (UNSC)} of the threat or the use of force against the territorial integrity or the political independence of a State, the principle of settlement of disputes in a peace‘ul manner and the principle of self-determination. However, the content of jus cogens is much disputed and even the principles just mentioned, probably apart from the prohibition of the use of force, may not quality as being of ajuscogens nature (see Chapter 2.5.1), They apply to all mades of acquisitiorloss of terzitory by a State, Thus the validity of and/or effect of any mode of acquiring territorial tile or losing it by a State will be tested by reference to these fundamental rules and principles. However, their application is subject to the limitations imposed by the intertemporal law. Principles applicable to the acquisition of tite te temtory. These &) are: + Theprinciple of effectiveness. This has many meanings but in the context cot acquisition of tie to territory it refers to how a factual situation affects the creation of a right, 1.2. the acquisition of legal tile to territory. That Situation being the exercise of effective authority over the retevant tert tory, the principle of effectiveness is af relevance to the following modes Cf acquisition of territory: occupation, acquisitive prescription and {prior 10 the prohibition af the use of force} the acquisition of territory by conquest. Further, plays an important role inthe settlement of disputes, concerning conflicting claims to territory 262 TERRITORIAL SOVEREIGNTY +The principle of uti possidetis. This was first developed among the Spanish colonies of Latin America in the nineteenth contury and later accepted by the Organisation of African Unity in its 1964 Cairo Dece laration, The principle provides that the oid colonial boundaries will be recognised as the borders of the newly independent wx-eslonial States, The principle easures territorial integrity for nowly independent States, thus allowing them to survive, consolidste and develop. The Badinter Commission in its Opinions 2 and 3 applied the prindple of uti T possidetis in the European context, that in dealing with the issues ‘of self-determination and the determination of frontiers of new Tr States which have emerged as a result of the disintegration of the former Socialist Federal Republic of Yugoslavia (SFRY) and of the Sov Unicon. * Intertemporal law concems the temporal application of legal rules, thatis ‘whether a judicial fact should be appreciated in the light of the lave contemporary with it or in the light of the law in existonce when a ‘matter or dispute arose or failed to be settled. The famous Swiss arbit tor M Huber in the isaad of Palmas Arbitration in 1928 acknowledged ) ‘that whilst a judicial fact should be aporaised in the light of the rules of international aw contemporaneous with that judicial fact he added that @ distinction must be made between the craation of rights and their continued existence. The creation of rights should be assessed in accord- ance with rules contemporaneous with the time of their creation, whilst the continued existence of rights is ta be determined in accordance with © i the rules of international law as they exist at the time of dispute. This istinction was critiased as undermining the stability of international relations as it implies that States would constantly have to re-establish bile to temtory due to the evolving nature of international law. Gne view is that the two elements in Hubert’s definition are complementary and that they ensure stability as to the ereation of rights, and flexbifty as to the evolutions of rights. @ {c) The critical date rule. This is 3 procedural rule which refers to the date on @ which a territorial dispute crystallised. After that date subsequent ever will not be taken into account in the detenhination af the rights of the ‘ parties } (d) Evidontiary rules. these are i * Recognition. in respect of land claims recognition refers mainly to attitude of third States, je, States not invelvedin a dispute, By aunilateral declaration or by an international treaty they may show that they have 6 ‘accepted a particular situation, However, recognition will also be of role vance in a situation where a State by positive conduct, even if contrary to ‘an existing treaty, acknawledges that its opponent has a valid tite toa disputed territory tit + Acquiescence, This refers to the attitude of 2 dispossessed State and is Three a inferred from its failure to protest in circumstances where protest might ara easonably have been expected against the exercise of control by its resulting ‘opponent over disputed territory. «© Estopoel, The situation af estoppel arises when a State's conduct is lear sustained and consistent and the other party elying on such conv” Fee fas changed its postion 10 ts own detriment or has suffered sore lugce The Modes of Acquisition of Title to Teri cory ‘The traditional five modesare: ta) Occupation, Only tea nullus can be acquired by occupation, The condeen rs aequistion of litle to any tertiary by occupation i effective possession Sich posession combines the intention of a State to act as sovereign, 9h aaeve actual exercise or display of State activity consistent with sovereignty Nomadeys the acquisition of terntory by occupation is of ithe relevance 28 there i practically no terra nulls. {). Aegukive prescription. TNS concern the acquisition of territory by 2 Slots evigh continuous and undisturbed exercise of sovereignty for along peed duer e terntory belonging to another State during which neriog the latter Be ont protest the occupation, Le. the occupying State may claim tle on fhe ba aoe eee pied acquiescence of the alleged dispossessed State and sufficient passage of tre. Pa Ot Te refers to som, gradual increase f land due to accumdlation of aoe ureval such as sand, sit, lay, gravel resulting from naturel causes. Te Spposte af accretion fs efesion wich occurs when land is gradually washed quay by water orin the natural course of events. Sudden or violet chars: Freya ttorms, floods, eruptions of a volcano, or Sudden charges in course St & Body ef water are known 2s avulsion. Accretion entails groguatness We evulion entails suddenness. With regard to Boundavy rivers, a State may GOP at satan farmed by accretion in of near its border river but nat as 2 res of awulion. tay Cention, This consists af the peaceful transfer of terttary from the gree Sent che grantee State usually by 2 treaty. although the form in which the Sores concerned express their understanding §§ not important, Both Sats saat consent and 3 consent obtained by the use of or a threat of fom. a fey atue of arcle 52 of the Vienna Convention on the Law of Treaties Ti ey econ. an example of a deriotie tile and thus the grantee State eee possess more nights than the grantor state, The grantee. upeh the passing of the te, s responsible under international law for any wronh ulacts Committed in the terory concerned. te Conquest, Ths was a histoncal method of establishing soversgriy tention The profibition af the use oF foe outiawed this bass for daiming tHle to teritory. ree addtional modes can be added: historical consoldation, novation (enlacs Feet or eovereignty rather than succession) and the aequlsiton of tle 10 tern Wy from anoint decsion of victors of wars inthe twentieth century 263 264 TERRITORIAL SOVEREIGNTY Other Circumstances Relevant to the Acquisition of Territory These are: (a) Contiguity, This was rejected as a mode at acquisition of title to territory Nowadays contiguity is regarded as. fact which may influence the decision of an international tribunal (b) Discovery. In the Middle Ages, mere discovery without actual possession was sufficient to establish a val title to teritory. The modern view is that discovery merely gives an option to the discovering State to consolidate its claim by proceeding to effective occupation within 3 reasonable time (Symbolic annexation. This will be accepted as establishing a walid title ony in special circumstances, such a5 those described in the Clippertarr island’ Arbitration. (a) Adiudication/erbitration only confirms the existence of a title to territory as courts and arbitral bodies have no power to grant title The Acquisition of Territory in Polar Regions e Arctic th ines between the ive coastal States to Gaim the exten- sion of their continental shelf beyond the 200 nautical miles mark irom baselines, but all are willing to co-operate in respect of environmental matters. The 1959 Antarctic Treaty, on the ene hand, has imposed a moratorium on territorial claims to ‘aniaretica and, on the other, ensures that this region fs used for peaceful purposes only Restrictions on the Transfer of Territory In ig doubtful whether restrictions normally imposed by treaties on the transfer of territory by a Stare wil affect the tite ata grantee State. The Loss of Territory mis mainly results from cession, acquisitive prescription, emergence of a new State which entails that anether State loses its territory, and by abandonment Abandonment requires both a chysical abandonment of a territory and an intention to abandon it, For reasons of slability there is @ rebuttable presumption against abandanment of title to territory. Rig Inte withr a least the let tudes State, tory a refrain interne Territor as being Slate, the * The cis, INTRODUCTION Rights over Parts of Territory of a Foreign State: International Leases and Servitudes With regard to leases each agraemont issu’ generis but the general principle is that a leased territory remains under the residual Sovereignty of the lessor State whilst ine lessee State has exctusive jurisdiction over it fer the eniod of the lease. Serv. GES Deeur when terrtory of ane State is made to sere the interests of anath piste. By treaty or otherwise a State may ba ented in oan oon the torrie retain fea tO. #© exercise a ight of way) or to compet are re State to feo” doing something leg. forfying its wns). Seve may benefit the Intemational community ar a particular State, 71 Introduction ‘The vesnitory of a Sute is the foundation of cise ofits legal powers. ‘h ts Factual existence and cine basis for the Ttory has boda pliysical! and lepal dimension "As 10 the physical element, the Hoty ofa State comprises all land areas (ineluding crema Go a rat (inceding maional river and lakes), te versteral oe CERAM © the Tend, and the sexed and subsoil of the tericecl ana Sr over nie in al the terror) sen," Terria! soversgaty mary he ee a O° ious geopraphical feanares analogous to land tuding islands, ielete, rocks and reefs Se far ar the egal element is concerned, the possesion of tech and the exclastve corer HOP) lurisdicton therein is one ofthe essential lemenee of sare sovereignty Netty wat described in Uh in of Pine Atenin (The Nee vu)? ihe right to exercise therein [Leon the tericny]. un the axe n oF any other stare the functions of a sovereign’, SOFC My, undentood 26 sume peta. Lc supreme power territory, has both internal and external arpecss whic command within a coexist and are omnipresent * The umemaal aspect concert the authority sed by = Suate within its borders nd situations/events that gccur dispose of the territory The external a5 ‘torial integrity of other es and mat ensure the (ersitory. Huber, im the Lind «f Pes Ativan, crnghsssed that a Sate hata duty to powect wien tory che rights prement Schad fe 2008, 115-117 265 TERRITORIAL SOVEREIGNTY cof exer Sates, in particular thet sight to integrity and sasilability ip peace and in war, together with the rights whieh each State may claim for is nationals in focelgn ory’ Further, in the Corfn Chand Case (Mens) (UR Alteia} the International Court (ICT) held that each State har a duty ‘not to allow knowingly its territory to be used for acts contrary to the rights of other Sates)" J 1n addition to territorial sover ‘international law: rary thee other territorial regimes are recognised by + Territory nor subject to the sowexeignry of any State oF Stare and which possesses a watus of its own {eg mandate ard wust tertories — see Chapoer 17.2.1 and 2.2.2.1). + Ram pales, being land legally susceprible wy acquisition by States but not as yet placed under territorial sovereignty Fes communis, consisting of the high sea being placed ‘outer space, which are not expable of any State 72 Different Types of Territorial Sovereignty is sometimes suid that texsitadial sovereignty i indivisible, but there have been rumerous instances in international practice beth of division of sovereignty and of disutbution of the components of sovereignty. These arc examined below. 321 Titular (or residual) sovereignty and effective sovereignty Amenity which has the wlimate capatiry of disposing of a ‘tular’ or "residual" sovegeagmny. The entity wehich exercises plenary pow but lacks the capacity of ultimate dieposal may be mid to possess ‘effective’ sowerc eximple, with regard to Jeases a lessor State retains residual sonexeigaty OF territory whilst the lessee State exercises effective contel over it. The tinalav/ effective sovereignty make up the totality of sovereignty sy may be said to possess 722 Condominium Condoral nium occurs when swa-or more States jointly exercise sovereignty aver a piece of nbabitants The best example was the Anglo-Freach Condominium of the New Hebrides islands (ow Vanuana} constituted in 1906, Under this arrangement each State was to retain is othority over sts munonale and both of them were ta exercise joint control eves the indigenons inhabitants (see Chapter 5.4.2.4), anid 5 [1949] AC ep 2 sae DIFFERENT TYPES OF TERRITORIAL SOVEREIGNTY 72a Terminable and reversionary sovereignty ‘Terminable and reversionary sovereignty nefire to a situation where sovereignty of 3 territory may or will change by operation of lzw, for example, witea 2 condition is met cor where a failure to meet an express or implied conditiaa will renult in the ttle 1 terilary rovésting ta the grantor ‘The fulfilment of a condi vas to revert was envisaged under Artide 3 of dhe 1918 Treaty Esublishing the Rdations of Principality of Monaco" which specified thar in the event of vacancy in the Crown of Monaeo a new State called ‘the Siate of Monaco’ would be establishes! as an auionomeus State acting as a protectorate of France. This clause meant that Monaco would revert 10 France in the este ofthe sbrence of a legitimate heir tothe Monaco Croven, However, his is of historical interest only, as nesther the 2002 Treary of Friendship between France and Monaco,” nor the 2002 Consuution of Monaco make any reference ia Article 3. af the 1918 Treaty, Consequently, should sheze be no fiers to carry on the Grimaldi dynasty which his governed Monaco since the thirer principality would remain an independent natian rather rance with the ss revert 10 France. “With regard to 2 filure to satiefy 2 condition which fiilure would result ia a tile reverting to Cae Ehipinv South Alice: Libera South Atco) (Padiminacy Objeciow) Judges Spencer and Fitemauri stated Usat the Allied did Ascoeisted Powers (Great Brtxin resiineda dormat 8, Maly, Japan and she US) mandate una it fulfilled the condition of attaining self-governance or independence® The reference wo a ‘dormant ciated Powers by the dissenting reversionary interest! of the principal Allied and judges has proved co be vary controversial an chat until the termination of che manéare sysemiin 1946 it was melear as to who had suvereigery in respect of “There were theve views: sndated territories. + Fist, that the Allied and Associated powers were vested with sovereignty over mandated territories This was based on the ficts that the defeated nations Germany and Turkey had renounced all their rights and tiles to their colonial teritoties (under the 1914 Treaty of Yersulles in the case of Germany and under the 1922 ‘Treaty of Lausanne in the case of Turkey) in Gear of the Principal Allied and sn conferred mandates directly upon the mundatories Indeed, the Supreme War Council consisting of the UX, France, Italy, Jap ally the US, drafted che terms of cach mandate and conferred mandates ow the selected State. Howerer, with the development of the mandate systera and the grawing involvement of the League of Nations it had become clear that the femporry nakure af the shaidive, the shared responsibilty sm the adaminiscoring ndated termtories between ‘mandate the League of Nations, and Associated Powers who ais un ed fp ee Dp ir Pec ea Cage 24 Qosber 2h, enn mo for | Bremer 2006 (unary 2004 orm Ofelia Buia 267 TERRITORIAL SOVEREIGNTY the fer chat mandatoree ad no ght wo dispose of the terntory wo a third Srate undermined the idea thar sovereignty was vested in the Principal Allied and ‘Associated Pome + Seeond, that sovereignty over mandated sorrtentes war ametbuted to the League of Nations Covenant of the Les stated that rmandarories exercised toteage an. behal of the League af Nations. The cou arguments were, fit, that it was dovteful whether the League of Natioms hae intaraational le yy (set Chaprer $.1} and second, that the Laague of ations did not confer mandates to the selected mandatories but merely canirmed the decisions of the Supreme War Council of the Principal allied and Associated Ponwers. ‘Thind, that sovereignty was wested in peoples living in dhe mandated territories, This + World War l (WWII), The IC} in Legal Comsequsacts for States of the Continued Prevence of Sewnh Afra in Namibia (Sentth Wiese Arica) Notrtheeanding Securry Council Resoluson 176 (Advuory Opsmion}" held that virtue of Article 22 0! peoples tes but were tomsporarly deprived of ir by dominason or utcloge penipective, therefore itis dear ated Leritories was vested tw the Principal gin the mandlared territories had virmal sovereignty aver those teritor om, tears serencigay Bee people living in these territarie: and therefore could nos reve Allied and Associated Powers 724 Indeterminate sovereignty BR roay be tata piece of terriory which i not can mul: neverdeless has no determinate sovercign. This would apply. for instance, ina situation where » sovereign hus zenounced hie sovereigary andthe coming ito Desay ofa new sovereign is posipoaed (Le. there isan fnvermegnum) until certain condition is ulfled, or there is 3 dispate ax wo who the new sovereign should be. An example is char of Japan's renunciation of any right wo Formosa {sow Taiwan) and the subsequent claims of both the Communist regime which controls sulnland Chins and the Nationalist Goverament which controls Tiwan to represent the ‘whole of China, including Taiwan. Neither government has ever submited tha Twas Scparate State, As a result Taiwan fe a deits regime (see Chaptez 57) which i de je part of China but under separate administration. 73 The Principles and Rules Applicable to the Acquisition of Title to Territory The ttle to a tervitory was desestbed by the ‘Burns Re y Ryle of Ma)" a encompassing beth any evidence which nthe Caze Concerning the Fence Degte y establish the ight, and dhe actual source of that ight. Therefore, the tiie concerns both 9.970) Rep 1 [uc Rep 6, pe Ison, rae nile @ nll ‘eat 2s. ya24 This ba ohowt veritat RULES APPLICABLE TO THE ACQUISITION OF TITLE TO TERRITORY: {he foundation and the eause ofthe right of Slatko a territory. This ates the question of how to distinguish between the tie and the modes of acquisikion of thet: inthis respect, Torres Bernarde2 contends that if fone adopts 4 conceptual approach which differcariates between the actual process yhereby territorial sovereignty i attained and tht legal status thereby acquired, the distinction becween ‘mode! and ‘ude’ is seen az logical, even if over-ellipeial te uinclogy ad the manner in Whi fori) chims are normally advanced have tended to sage it Accordingly, the mode of acquisition of dile to territorial sovereignty involves examin= ‘material and judicial ficts in the light of dhe requirements of internacional law to decide whether they are tufitient to create a ‘sth to texsitartal sovercignty, This will ‘cccur, in particular, in a situation where States make competing elaims, and the subsequent ‘scureise of ternicorial sovereignty is considered as a separate matter ‘The principles snd rules relating to the acquisition of title 1o terntorial sovereignty can he divided into three extegeres, Jus coges rules of international li Specific principles applicable te the acquisition of wie 10 Leritary, Proeduralyevidentary rules relating oo che ascertining of title to vat Jus cagens rules of international law Js cages rales such 2 the prohibition ofthe wse of fxce er 14) the principle o ternational disputes (owe Chapter 13) and the peiitiple of se sletermination of peoples (see Chapter 12) apply to all moves of acquisian/Iest of tertory by 1 Stats, Thus the validity of andor elfect of any mode of acquiring texivora] He (or losing it) by a State will be tested by reference to these rules. However, the application ic subject to the limitations impated by setertempora] law (eve below). Aid iulonally, there is no agreement on what rales have the satus of jus cogs (set Chaptez 25.1). 732 Specific principles applicable to the acquisition of title to territory 7321 The principle of effectiveness (or effectivité) This has many meanings but in the context of acquisition of ttle to territory ir refers to howra faetwal situation atfecss the creation af a right, Le. che acquisition of legal title to Territory, It can be wid that under the principle of effectiveness dea given to 2 factual situation in the evaluation of a legal siruancn, ic. Uie fachoal fective siouation constitutes a pre-requisite of the existence of the right of a State #0 claim TERRITORIAL SOVEREIGNTY savereignty over a territory. The application of the principle of effeerivencss is justified on the ground thet, beciuse there is no single coercive internation authoricy 7 con States’ titles ta particular territozics, effective contol exercised by aState over a territory ‘may create, in some earcumstaaiés, toil, However, the principle of effectiveness oes not apply i reusas its man PuEpOSe is ROC to reuerpnise aright hased on srength but to ensure the ability of the inernational legal order and to guarantee legal securiy. The principle of effectiveness is relevant 0 the flowing modes of acquisition of decides Occupation: a Stare which cin show effective consrel over no man's terntory (tema nllvs) together with the inention to estblish sovercign ttle to it can claim sovereignty aver that territory. + Acguisitive prescription: continuous, ninterrupted and pexceful control over tertitnry for a long period of time under che implicit or explicit consent of a prior sovereign wall be sufficient to prove dhe tite + Conguest: price to the prohibition of the use of force by Artie 2(4) of the UN Charter save in the exercise of self-defence, it was posible for a Stare to acquire territory by force if that State proved that ic had effective control over the conquered territory accompanied by an intention of anaexing that territory. The principle of effectiveness applies wo seulement of disputes berercen States in the following way: fist, fa Sate cannot show that title was acquired from a prior sovereign ary of gession or through Séate succession including decolonisation and, second, if the principle of wit posideis (sce below) i not applicable, the determination ‘of whether a Siale can claim sovereignry over a disputed territory or whether 4 prior soveseign hud in fact held cite will be made on dhe basis of the acrual exercise of Sare ower over the disputed territory, This principle was formulated in the Island of Fulmas “Aubitataa i the Following words: ‘continuous and peaceful display of the functions of Sane ‘within 4 given segion it constituent element of territorial sovereignty’ Beomgh 7322 The principle of uti possidetis Us jsidts, or the principle of territorial integrity, was fist developed among the Spanish colonies of Latin America in the nineteenth century. It provides chat the old colonial Dbaundares will be recognised ay the borders of newly sndependent ex-cdlocial Skies This principle was adopted by the Organization of Afeican Unity (AU) in the 1964 Cairo Declaration” which provides that all States should respect colonial boundaries as they ‘isted at she time of eaablishment af new independent Stes in Africa. The successor to the OAU, the Affican Union (AU), has confirmed its adherence to the principle of wl sila in Arvcle 4(b) of te 2000 Const ich states that members of the ‘AU should respect borders existing on aehievernent of independ tive Act™ 1 ORE mes 6 27-21 ly 2968) ace sel Corres ln 1 Goorinaie Aca i nine Adopeed by Se Het Cedimary Season af he Asem of Hen UAR fiom 17 22 Fay 1968, 14 ly 2000, com ine Bre 24 Mag 2009) 2158 UTS. ss Van (one RULES APPLICAGLE TO THE ACQUISITION OF TITLE TO TERRITORY ‘The funcsion of this principle is to ensure stability and. certainty fn) the process of decolomisat thus avoid continuous tarritoriak dispntes among newly independent Stares. More recently, the Badinter Cemmission, whieh was established by the BU in order to deal with problems arising from the disintegration of the former Socialist Federal Republic of Yugoslavia (see Chapter 17.7.2) in its Opinions 2 and 3 Relating to Self Determination and the Frontiers of New States, evended the application of the principle of uti posidais beyand the colonial context The Commission sated that the mtermal boundaries of the former Yugoslav republice should become intermartonal, fromiexs protected by international lw"* idly applied bythe ICT an the wontext of post- the Frater Dpute Case (Buthian Foo v the Republic of Nei," the TC] based ie incipal of wh posits, eo which both parties referred. The Court held ‘ple of uti peidetis was of general application with regard wo the leteztnination of borders for all: newly established States in Affica, mot just co States located 11 South America. Farther it held that the recognition of the principle of wt poss by the new Mrican States, as evidenced, inte alia, by the Cairo Derlsrstion, showed that it had customary international Law. ple of wi posidai 10 the determination of post-colonial houndsries has been eriticised an dhe ground shat it confirms the artificial division of Aftica by colonial powers which devermnined the borders of their colomies without any consideration for ethnicity, geography, sconatty and other loeal factors. Alchough the principle of ui posidess has peeverted many terricoria) disputes it has also been a source of ‘many ilajoe armed enndiets between African States, eg. Somalia and Keaya, Ethiopia and Somalia, Togo and Ghana, and berween tribes living in the same ‘g Reanda and Somalia (see Chapter 12.7.2). Many authors submit that iasead of the principle of wi pessilecs, which isa Eurceenicic principle, some genuine Affican solutions would be more appropriate to solve territorial disputes im Affies.” Ic ks to be noted iret, that States can always adjust cheir frontiers by an agrecment ad, second, that in some circumstances the principle of effectiveness may peevail over the ‘einciple of ui pesidcis. og. 2 State, by CATyINg out some activities ar by being inactive may acquiesce ia the acquisition of tide to territary by another State," 7323 intertemporal law ‘As a result of changes in the law relating to the acquisition of teritory, problems have acisen 25 10 which legal regime should be applied when determining ttle. For example 14 ponsy enemy 15 The Chane stn Dare QU Ac ei Cad) (17491) 6 The Ce Cg Lk ld tre ei Dep (21S Vena rg {) 791) SEV REp 9; ed Th Cow Coie Si die ug (oa ig) 005) IC E79. 1 [2584] Rep 558 17 danas, The Gems of ing Wage Aes wh th eau Sarpredene-The Cameroon Miers Papers (QUD8) Chine oorza of traci an 79 “he Cm Led db i rai Oe (er dr: nga rir) [1992] 1.292 272 TERRITORIAL SOVEREIGNTY should de to seeritary acquired by conquest im the atinetcenth century be aseseed Scrording tothe rules relating ta conquest tthe ime (in witch case tle would be lawful) or acconting 1o the Law on conquest today (so cha uile would be ulewful}? The general rule ~ own asthe principle of fncereermporal lw ~ is that tide should be ‘senor! accreting wo the rules of law that prevailed at the time of the acquisition of territory. In the Id of Pima: Arhiecion, howe cor Huber based his decision on he Proponition Bat tide wo certory needed to be conGrmed agains the changing Standards of international lin: He stated As regards the question which of difforent legal systems prev. Bevods ts t0 be applied in pardicular case (the so-called inter-temporal li distinction must be made between the creation of rights and the roxsaene of ‘Highs The same principle which subjects the acts creative of a right t the law in fotee a the time rises, demands that the existence of the right, in other words iss continued manifestation, shall fallow the conditions roy ‘evolution of law. Accordingly. Arbiuater Huber made « ought to beassessed in the li and the existence of rights, of intorn: distinction between the creation of right, ight of the legal system contemporaneous with tari creat ‘which ought to be assessed in dhe light of ceoh tal law The first mentioned ences salty nim second mencioned intratuces the necessary fee biliey i the af rights A mumber of writers argued ternational relations, the asesment of the existence ths modified rule developed by Huber would he highly disruptive ap every State would constantly have to review and confiem its tie” Jn Présies, the coneepr of intextempon! ley, a6 Judge Al-Khasswrne in hia Separate Chscion in the Ce enazing the lend ed Mite Bun beer Cmca an Nisin (Cenc ecikte: Bestia Gene Inuivning)* sted. i confusing. controversial to the point dat the International Law Comenissioi: (ILC) dropped it from the 1969 VCLI {idefined Senet suppored by judicial decisions of saternatonal court induing the IC. Jude Aoebssumch provided, ins di, the following exanaples of cies in which the 1G) either swolded or rejected the application of intertemporal law: he: Acgem Sex Continental Shelf Case (Gre v Tushey) "This case concerned a dispute ‘lating to the delimitation of the continental shelf af'a Greek island located close to the Tarkich coast Of Anatolia ln this case, the IC] intepreted the phrase ‘disputes relating to the territorial staims of Greece” contained in a Greek 1928 Kellogg-Briand Pact in accordance with che law a6 it woo at se wae sxainiined by the JCJ and not in secordance with rules in foree ashes the seservation was inade, ie in 1931. As Judge AL-Khasawach emphasised "wit the ald of a belated diseovery of the intention of the parties" the IC] avaided dhe pplication of imerernperal Lew, ion to the the tine the 2 Rings. Teepe ary ae Ln, Mache (2002 ap 492 pw 15 2B [94H cep 3 22 Supreme, pu, 8 Manan Unies Pea. 1 ABLE TO THE ACQUISITION OF TITLE TO TERRITORY Nowid Cex." de Cj held that “an international increment nas be ier prcted and applied wichinc frasierrock ofthe judicial system in force at the tame of innerpresstic 4 Many critcs as supporters. For example, the Peake ncesttiational Law ini 1975 Reokison on ie Imeempord Pores ceereargtttzatcnal Law’ sted that “the temporal appliaen aff ant mere ‘of pubic by hich nay tee all be determined in sgcondance with the geneil princpies & hes 7 which ay fet. ation or situation must be asesed in the ght Of Ge a Porgneeus with i" Further, in many cases the iC} has cled on intereenporat ecee Jn conclusion r can be said that Judge Al-Khacswneh's assessment of intertemporal law sea eh el defined concep s correc. 3s rubalted thatthe rejanna o sone, Which intertemporal kur embodies i vial for barmonious relate een jets Pact in respect of territorial cals which ae ofen avodart into by States many centuries ago, However, the erchuties pitt important Ficor ta be takea into consideration when le ws tory i disputed 2ajhss wspect, he main problem with tnertemporal law is when iesesendents aos age Caaytge Sand Krom ina joint declaration inthe Gax Cammy te Aird oe Near th From st Pusha fe Cre of Genie (fee en Renee a ean Site hat ‘i some respects che interpreticn of « weaty’s poeiee be divorced fi ius cogens, it will #2 ew rule of tus cogens with whicl ie iin ection oF intertemporal lav when its application clashes mith jus ‘Tetarements of human rights Lew (HAL), justied but fs applicntcn uf tories validly acquired before the relevant rale of jus cogrs bas come anes extstence undermines the requirement of ss geiramised by intertemporal law and the THEY hatte of tsermatral lw x not easy trol. The ape at ‘emporal law or otherwise will depend am che fact of tach case 7324 Procedurallevidentiary rules relating to the aseertainina of title ro territery ‘These are examined below 73241 The critical date The “sila dae isthe date on which a dispae over tertory crystallised, Conduct the 1 Ei Ce te han rom ei ii th Agni Cant asin 276 (1870) (ny Cpa) [1971] Rap 16.31 U4 Arde 8 (1978) $6 A 536, 2 Ba he Me alberta Re) [1953 Rep and he Co Gare Fr ge Sais) (0s) 1997) 1 3 [Sim exible tbe aia in TERRITORIAL SOVEREIGNTY. PAGES or any events that coeurred after the deterrsination of wile l date will often be apparent fem the facts of the case, ste detee oF tribunal. particularly in the fice of conti tay be of great significance wo the merits of the dispute. The ehaioe of exe or ‘other date may, for example, prectode a party from adducing particular evi: aker the esse fio one of pocupution to ane of prescription. The choice sdute is thas a usefil practical tool avaable to the court ta restict or the argument itical dare will noe be taken ise account in ding evidence from 73242 Evidentiary rules: recognition, acquiescence and estoppel Zhtee eedentiary rules play 2m importan ole in the aoqusion of tide to territory wh Competing claims art made by Sates: mainly refers to the amimnde of (0) Recognition. Recogaision in respect of land cli third Staies, 2¢. Slates not involved in the diepute. This may take che form of a unilateral express declaration or may occur in teaty provisions with third Sates x the Kegel Sons of Eases Grealsal Cue?” concerning a dispute berween Denizerk and Norway, the Ferment Coart of international Justice (RCI) refered to ereaties berieeen Dennnark and States coer than Norway as consdtring evidence of recog ‘bo of Danish rovercignty over Greenland in genetal. However recoguition also. ‘relevant in respect of eounpeting claims of two Sates in «situation whieze a State by Positive conduct, even if cantary to an existing ereaty.*" acknowledges that ‘eppotient his a valid ule wo a disputed territory Acquiescenct. This applies to theattiude oF: dispossessed State and is inferred from its Bilore to protest ix circumstances where protest might rearoaatly have been expected agains the exercise of contol by its opponent. Therefore, 18 thIG) hedd in Scrcigaty ose Sm Fuon Boe Path, AG ck an ea ale (Maly Shppo). ‘alenet may alo speak but only ifthe conduct ofthe other Sate calls for a response ‘Acquiescence by a State has Linie or mo elleer unless its accompanied by som ‘measure of contral over the territory by the ather State So, for fi roves against a purely vecbsl assertion of title unsupported by any depres of conte does noe constitute seq ieseence (©) Estoppel Judge Spender in the Temple af Pah Vite Case provided the following defini ef estoppel the principle operates ro prevent a Stale contesting before the Court a situ: tom contrary toa clear and repreuentionsjreviously made by i to tation the other Scute was, in the eircumstances, ented to rely and in fact di rely, and as aresult opt Sins ol es Gal (Dena Nay BH Sere AB Me 24 Te iecae §0 08,324 De foun sal wes fhe Cpe AVLES APPLICABLE To THE ACQUISITIOW OF TITLE TO TeRsvTORY 275 ug that other Sate has fe making it has secured some benedit or advantage: £2 tree. the Ie] regarded acquicscence over long period tne #5 amounting Cute Galt CeeeHNS Sats the Court upheld this sprouch ta dee See catty Se Cons" dhe Coure held that only ‘a very define very consist Rouse of conduct’ on the par of Germany could have been said upon by Scares Fearn Genera Convention on the Continéntl Shelf to clam on 0 Con: Teavion was binding upon Germany in a situation oho Germany was noe of Commun PU © "Additionally. such consistent, unequivecl senduct of Germany would have had to ie destimental wo we Position of Denmark of the Netherlands, As this wat not tht tase. ihe atnaine of estoppel did not arise Accordingly. the requizement of detriment or prejudice distinguishes estoppel from aequiese Hake Gof of Mine Ces." the Charnber of the ICJ-explined that hoch sequiescence and pr ee arectit SFigin in the same peiciples. the pemapie of pont care and the £ cea OF eat. Hamcwer, they are buted an diferen leg rece ning: while acqu- 1 cider a lest Yo tact reeogation manifeted by wise eek a the Serer BMC BAY tnterpret as concent, estoppel is Baked to the rae preclusion and ‘ Grice ney RsteNCe of detiment so the Sts relying on it. In dy ae ne Chamber Gece that both acquiescence aad ctoppel were ralenne Bits of the case el after reviewing the fcte of the dispar the we i Br ts coodnet acquicsced inthe sea ofthe medina, applying in particular i seame siltbtation of the Georges Bonk The Chamber conchae the conduct ofthe US was not ‘sufficlenly clea. sustained and consistent tosansicute acquiescence’ 2 thes i bell that estoppel did not arse because inthe igh ofthe circumstances of Hofinan let) cece he competent US achninisruve authorities Gree oumie letter). whieh santoed an implicit acknowielgmen ta stelimitation Seuld be czade on che bast of the medion line, was for euiteee to amount 10 estoppel rejected the argument of Canada th i om Gf estoppel arises only wea a State's lear ction ns Comfatent, and the other parry, reying‘on such eenlace he changed its ‘own dettiment or has suffered some prejucice 38 The Cox Came ai Ph (Cae [1762] aap 62 ed) Oe). song Opinion of Se Ry Spender 2 he Hho Cte ha Ons (eA Gee Denk: Pa uh orm SNe) age) (1949) 11 Rep 22 Th it ening nits tne Ben ise ane (mal Symes [1984] 1) Rap "Seth ete ee ee +a Pain [004 0 Rt pn TERRITORIAL SOVEREIGNTY to Territory Yaltonal ternational law dsiogustes several meds by cf propery, The monarchy prevalent Sxteenth and seventeenth centuries where the monach State's terruoty. Howreves, with the ineicenth con under carrent internation! lay Purpose and indeed gives a ine of private law can be argued that Hed View of current practice, Cvident tm ifolation. The modes are intcrzelawed and ‘mn conjunetion with each other to the eit Sedition, these modes do not adequately des independent States exoreising the ri ‘ind that the traditional during che formative stage emt 7 by oceupacion, for example, is based on, the fund ‘ther recognised State, i a Ste which was ane of the se Sternational lw vas deemed to have app 241 Occupation Th Te ae ginal mode of acquisition whereby a Suite acquire State). The territory may be lind wi Have been abandoned by the Jacking the social and poli fnceruational lav Xn the Adsey Option onthe Wes Sau, the IC} eld dist ap which have “social and politcal order” tobe segarded as term al hat they had acquired h has never previously belo a organisation necessary to con al liles, ic they seul aot, relevant termtory had not been cluimed by aay other Sia te 236 [1975] ep 12 pu a0 74 The Modes of Acquisition of Title ‘which sovereignty: caus be seed over territory. They were based om Rotban law viles regu logy with Roman law was well suited to the eysiem af ht ope during che formative yeas of Earopean exp was regarded as ‘owmee’ of notions in the cighteenth Het the analogy with Reman law rules became lass dating, ch an analogy serve [Ths five modes by which werrtry has traditionally becn sid lve been aequ ree atin: Prewription; accretion: ceston; and’ comuest CoRRVES tachusive or exhavsie Ia practic ts unl tho say singh © Modes are not, Fe mode would be tomplex cases chat no one mode appears dominant, scribe the acquisition of tervisory by newly + self-determination, Ie muse also 4s of acquisition of territory founda place tly of imteraational law. In a rumber of cases it will, chen be evident chat these modes ar based on = Wescra penepion ofa Slatus of che me ivestion prior t© sequisition. As is uszated in more deta te claw, acquisition of nual perception tha mnie ny "as Previous ue nul, Le wot under the sonecigeey of freee wat, however, implied thi the territory was net undes t ie sowcreignty af any club of Sates to which eS sovereignty over tes Sonny Gt tiny capable of being owned by aSlace but not ender he ore ipnty of any Hiner sovereign or it may bave been occupied by 2 people tute a sovereign inhabited by groups light of te lav tn force ac that tn Accordingly, the colonial powers were not able w enablieh Fespect of the ternisary ree 27 S8eh soups, sucessfully claim territorial eovercigney'on he Colonial powers were, THE MODES OF ACQUISITION OF TITLE TO TERRITORY. nevertheless, able-om the basis of a derivative tile, ie. a tide acquired by a cos ‘concluded berween the relevant colotial puwer and local rulers, cr by coaque ‘tablish their sovereign power over the territory 7414 What constitutes occupation? Territory is occupied when iti: plictd under effective control. This is a relative concept varying according to che naturu of the territory caacemned, For instance, it will be much fasicr to establish effective control aver territory which is uninhabited than over territory ‘hich i inhabited, albeit by a people lacking social and politcal organisation. Inthe Leel Str of Eat Grecknd Cae (Naroay Deana} the PCT stated + 4 chim to sovereignty based noc upon some parieular act o¥ title such sea ceaty upon continued display of auhority, involves rere elements each st be shaw to exist: the invention and will to act as Sovereign: and some setual exerese or display of such authority.” ‘These two clements are exaniined Below 74414 The intention and will to act as sovereign (animus possidendi) Brownlle argues that intention and will to act as sovereign. being a subjective criterion, Involves the imputation of a state-of mind involving a legal astessment and ‘judgment those ordering various State activities. He comcludis that this approach expects too much and is unreal ng 2 paricubar and coherent intention in a mass of activity by ‘usherous individual This requizeinnt of mim prada also leads to problems where there are competing acts of sovereignry. Today almost all habitable aeas of the earth fall under the dominion of some State and, therefore, the importance of acquisition by occupation lies no the aquisition of new territory but in che colving of competing claims based on past (cccupation. For that rexsom, in cases where there are competing acts of sovereignty the subjective requireiient of the anima paid of the competing States may be incos In such eases the determination of the master relies an objective clements of State activity ie, the acteal manfestanane of sovereigaty ‘The intention to act ay sovereign as ane of the requirements of effective somupation is importane in dros espeets, + The activity mms be chat of the Seae of its nuthorived agent and not that of a mere individual, + Tho activity mst not be exercised by or subject wo eomsent of another S + The activity, when looked at as a whole, nuast uve no other explant assumption that there was dhe pre-existing £overcigaty om brut the 38 Fc sere Arm £5, «2-42 oval Poms Wf Riera on Od CUP in, 200, 137 TERRITORIAL SOVEREIGNTY ania Effective exercise or continued authority tory concerned and thew ‘ty consistent with sovereignty, The tra She oF Sceupation in terms of settlement and dase ply Possession. However, swhat Tee tse: the necessary degree of control will vary wich wae ‘Greumstances of the case This i exemplified by the eases TBE dares he and ot Pomas wich esha 3M, Nat wosthen te Oth Eat me eed ae Wea of Pare by unten Spin ceded he eae eat te Hand of a 9 pat of the Pipi | one: te in ws sat wer ache ar ae enaiet sovereignty aver the island belonged to Spain atthe woe she purported tocede the island ta the us, faway between the Philippines Hela: Tin, Arbitrator held that even if Spain did originally have sover bignty over the Slond the Dutch had administered it since the erty cieheccon century, thereby Supplanting Spain as the sovereign, He stated that, Jiercnntinuous and peaceful splay of teritora sovereignty featetulin {Satins to other sates) as good a5 a title... manifestations sree tnd a stsumG His true, different forms according to condone ee ir ieee Although continuous in principe, sovereignty cant beac | Tr Aney MOM BD awry nok of « tert. The Ine sire: Scontinuity compatible with the maintenance of the Tight necessarily | crc tie tsinhabited or uninhaited region are invoked oo ay Satan a thin territories ia whicn sovereignty i incomestatiy dieie ee 2988 regions occensible from, for instance the High aoe The learned arbitrator found amy Upon its Peaceful and continues These include et Danmark in evidence, {The absonce, until 1931, of ayy competing caim, "Phe Shersier of the councy ahs atte ond wdbcang ature of the deemanised Darts of the teritory where it wes a Unveasonabie te dinand continuous exert heathens | * The numerous Danish legislative end aeininisttative acts purporting to apply to the whole of Greentand, 2 TRhatleswith other states recognising the Danish eaim to the territory, *Mpemianting of ade monopoly and the granting of trading, mining ang other concessions by Denmark. Meld: | {2eSburthheld that this pattern of acuity between 1721 and 1931 was sufficient {o esabish Danish ttle tothe whole ofthe tenttory Pentit fxample oF the practical approich to occupation was provided by the Anglo- Fe Backes Hinds (Peer y UP." ta appraising the lative suength oF Sovereignty over the Borchos Telands the decanted that i smacks, éa parila, probate’ hac eos Ee wh be cae of ait and loal administration and to logiaiticn’ the andes aie inal friction, the holding f tonto ae a of taxes eg ites Wiest is maaan te enter aon im the Part of Jory foes faael of ie delet oF ht spre prod che Bama 1 eee Ci Takicm)" tn the ase ofa wading eae economy dhe tribun ‘as able t concede chat grazing ind ScOnOME aEties by private Bundloers ay lovide sccepable evidence of te oe ae Rete ten Gad ama vty (125i) 20) Se AP) #5 (1968) 7m 633 TERRITORIAL SOVEREIGNTY 742 Acquisitive prescription Like orcupation this ic based om effective conteel eves te 4s acquisition of ume alias, prescripsion ‘bot whereas occupation the aequizition of territory whicl beloigs to State. Gppenkcim describes prescription 35 The ace on of territorial sowereigney through continuous and of sovercignty over it ducing such a period as is necessary to create, under the influence of historical dew the general conviction thatthe present condition af thingsix m conformity with international order." According to Brownlie The essence of preseription is the sermenal of defects in a pusative tide arising from usurpation of another's sovereignty by the causeat and acquieseence of the former : ‘Acquisitive prescripsion sho be distinguished from: main differenct bermeen acquisitive prescription and immemorial posession is that in dhe case ef immemorial postession the ‘unknown and is-precimed that the possession combined wih the effecive exercise of sovereignty is legal whilst in respect of Anquisitive prescription the Sue i initially illegal ‘occupation. Although in situations of both acquisitive prescription andl os a Sate exercises, with ‘mnmemorial postession, Th cerigin of the possession =e ihe intencion 10 a¢0 a6 4 soveroign, effective cont tory, in the case of occupattan che claim to sovereign Ist im the case of acquisitive prescripdoa the cai hhelongs to apodher State. Notwithstanding this, i peaitice the ai occupation and acquisitive prescription in claims based wpon the né ice between inal cxercise af sovereignty may be ‘mposuble to ascertain. The very paint at iscue my hie whether dhe tersttory was tem suilus or wihecher it wat previous sovereignty. In the laa! of ulnar Arbitron (above}, for example, dhe arbitrator did snot make Clear whether the island was under Spanish sovereignty before the Dutch began to exercise conucl. Acoxpied criteria for acquisitive resription are az flaws: 1. Possession must be exercised “Lute de souverain’, There must be a display of Sate authority and absence of amy sesognition of sowereignty of ancther State ‘condision rules out the possbility of acquisinon of territory by means of prescription wen nistersa territory, eg as:ts protectorate or asa trustee (see Chapter $4.2 and 5,8). Ir alo preveas acquisition of title by a State in ‘Greumsances where individuals not by virtue of authority from any State but in their private capacity take and retain possession and conceal ofa te ie Sail Sofulu Mond (Botremns v Namie) (odgroet)“* Namibia argued that ie had acquired 3 State a tet gran A VEL pp’ tid Lan iho, or, 445 (ecw, cpt Rk bane Lan, Onrts Ote Usiventy Pes, Used, 2008, 4 ‘40 (1990) oc nep 1085, THE MODES OF ACQUISITION OF TITLE TO TERRITORY slspated island becuse members of the Masubia ibe (whe were Namibian nationals) had for long time occupied and used the island. The IC) Ibekd that members of the ribs did not occupy the island “dre de sourverain” since dey were snot exercising functions of State autharity Foosession must be peaceful and uninterrupted, What conduct is sufficient 10 rovent possession from being peaceful and wninterupled? Any conduct indicating a lack of acquiescence, e.g, protest. Hecive protests provent aequisition af tide by preseription, Ths is ilostrated by the Chumind arbiteion (US w Novit).*” Facts (for detailed facts see section 7.4.3) ‘The US Iaid claim to an arco of Mexican territory which had become joined to: US territory by the movernent of the Rio Grande southwards. inter alfa, on the ‘ground of uninterrupted possession, Held: ‘The claim failed because Mexico had made 3 number of protests to the US, and indeed as 2 result of the protests a convention had been signed in an attempt to settle “the rights of the two nations with regard to the changes brought about by the action of the waters of the Rie Grande'. Theréfore in the opinion of the commissioners, diplomatic protests by Mexico prevented ttle arising by acquisitive prescription, ees ‘However, itis doubtful whether diploiiatic protests alone aze sufficient to preserve the rights of a dispossessed sovereign. There must be some scricus protest, eg the severing of diplomatic relations or the impes retaliation. The matter should be raised befé Dy a bona fide suggestion that dh In the Minpoiers ord Bcrebos ied Case (above) the UK argued that French protests against British legislation applying co the dispeted islands wee ineffective, iter li fon the ground dhat they should bave been reinfaread by pressure to have the matter submited for determination by an intemational tribanal, The Coure 6 ‘mont en this iseue While some Jurist: dea regard protest as merely effecting a pastponcme reasonable peried of the process of prescripnen while advantage is taken of the swailable-machinery forthe sertlement of intraational disputes, this apysoteh ean be Hon of sanctione as the United Nations and reinforced pure be submined to arbitration or jul efor a iiticised, Should failure to resort co cermin ongans be penalised by loss of territorial rights? Is all teriton proper to demand onal al disputes be referred to 281 319 TERRITORIAL SOVEREIGNTY sments be inteducrd into the concept af The possession m publicity, # The possession must penis. The effective control necessary to: establish ule by ‘Prescription must last fora long period of time. However, the length of time requizedt is not fixed by sntermationsl lw with the consequence that whether the effective ‘contol exercised over a teritory was of sufficient duration will be a matter of fact ‘depending on the particular cave be public If there is 10 be aequiescense thest t be ‘The concept of acquisitive preseriptisn im interatidnal law is very conwores [Because international law does not fx any specific pexiod of time that must elapse before State can claim that itr pass ‘ure de souverain’ amounts to a gaod title. So far che ICT has avofded making any pronouncement an whether the comicept of acquisitive prescription is part of intemmational law. TAs & due to the fact thax Gaimns based (08 acquisitive prescription alone are rare because by relyilng On acquisitive presc: the State concerned adinits chat ic has no valid ull Additionally, the application of the principle of ws pasidetr to cerritortl claims‘in the eolonial context has further unclermined the relevance of the doctrine af acquisitive prescription, Howeves, in many cases before the 1C] parues have relied on acquisitive presetiption as an alternative claim. For example, in the Kes ond Ca, Namibia argued that icc nile (o the disputed territory was based on the 1899 Anglo-Gerrnan Treaty, and ia the alternative on acquisitive prescription. Both parties to the dispute, Hotewana and Namibia, agroed om the cri prescription as sated abore, but the IC] based ite judgrieat om the Grst c did not examine the alternative claim, As noted by J Wu raver recognised th resesiptig invoked, an a by Wouters |. mainly ssion of territory for acquisi itive ers and S Verhoeven” the IC] has ‘existence of a ttle to territory based on the sole ground of acquisitive The Coure prefers o base tt judgments, when acquisitive prescrip ‘The aniinde of cf Verhoeven as follow it is difficult not tone 5 form of acquiescence o territary is panally occupied by another Sate". Thic is eremplified by the ICTs judgraent {in the Sony ona Pi, Brnci/Polau Baw Path Cur, Mille Rods and South Ley (Masa ¥ Sgupe) (mens). in which the Cauet decided that Shigapore had acquired a ce wo the ispured islands on the ground of a tacit agreement or acquiescence, ‘ae f fhe case warranted the zppliation of acquistve preserition” State ratice shows that States recognise acquisitive presc ransforing fie. Furth, the and of eeber meri sequin pee IC] has been explained gh the facts o iption at = separare ground ere is some support in the opinions ef judges oF the IC], I courts and tibunals, as well as of academics, for the view that although act # rule of customary intemational wy, can be regarded asa general principle of international Law, (8) Yee a Mercere, +H 2c, bot eee so ni. saber dhe efi wei ft 1 oo THE MODES OF ACQUISITION OF TITLE TO TERRITORY 743 Accretion A State has che exelusive right of sovcreigary over any additions made to its ceritory as'a result of accretion or resulting frasn the formation of iclands wishin it trsitorial vraters ‘he slow, gradual increase of land doe to accurmulaston of sil material euch as sand, st clay. gravel sesuling from natural causes is called acertion. The opposite of cretion iy zosion Which oicers when land is gradually washed away by water or in the marital fount of events. Both ftsion and secretion mst occur natural. Le slowly. gradually and ienperceptibly, in order to affect the title to territory." Sudden or vislente! 49 matural forces or disaster such a8 storms. fonds and husrrieanes a the co of water ame known as avulsion. Intemational law is mainly of relevance with regard te alterations in rivers which form Sate boundaries Norualy, he boundary line isthe median line in non-avigable ri and in navigable river, it 35 the ‘thalweg' ~ the deepese channel em ‘avigatian. It is 10 be noted that the thalvreg is not a boundary line bh because the of a iver is never a pretite line. Funthcr, there anay be more than one Davigable channel. a boundary river changes it course as a result of accretion on coe bank and erosion of the echer the boundary Line wil, im the exe ofa muvigable ver continue to be the middle of the duahveg. and in the case ef a nom-hsvigable sive ie idle Tine. However, f boundary river changes its course 25 a result of avul boundary wall remain where it was te Cami Acbisstion eale- wath beth accretion aud svilsiow, Facts: The 1848 and 1852 Treaties between the US and Mexico established the Rio Grande as a boundary river between the two countries, However, as the Rio Grande often changed its course a dispute arose. Bofore 1864, the hie Grande changed its course which resulted in the gradual exposure of a tract of land (this was By S¢tretion), In 1864 there was sucidenly a very big flood of the river. This flood dramatically altered the course of the river resulting in a tract of some 500 acres, called the Chamizal Tract, which had been en the zouth bank of the fiver near the Mexican shore finding itself adjacent to the north bank near the US town of €1 Paso, The gradual accretion and the sudden flood both aitered ‘the Rio Grande, ‘The US claimed that the Chamizal Tract was formed by slow and gradual ‘#rotion whilst Mexico angued that it was formed by avulsion, ay of Sa nei $US 46 (1874). A Stas catonne lmoy abo be exeed iy reece. Puhr if eel trowp naan pee a theeasoow ssmomic sane Sate wil poral bene wa Se (amy s amas, 284 TERRITORIAL SOVEREIGNTY Hele: The arbitral tribunal made a distinction between two periods af alteration in the Rio Grande: prior to 1864, the alteration was due to gradual erasien and accretion ond consequently, the US was entitled to the part of the Chamizal Trsct resulting from the gradual southward accretion of land. in 1864 there was a sudden alteration and thus Mexico was entitled to the resnaining acres exposed by the flocd. Because of different causes of alterations in the two periods, the ‘majority of the arbitration commission awarded 437 acres of the Chamizal Tract to Mexico (.¢. this was the area of the land that wat on the Mextce side of the river before the 1884 flood), The US refused to aexept the award for mere than 50 yaars. after the intervention of US President J F Kennedy, a Treaty wassigned between US and Mexico in 1963 under which the 437 acres af the Chamizal Tract were transferred to Mexico, a TE) 1m tse Miscsppt* the US Supreme Court applied the principles 2 boundary dispute beeen these two federal States whose boundary was formed by the Mississippi sive. The Cout held thatthe gradual ezosion of sol from the Misxisa and its deposit on the Louisiana hank berween 1823-and 1912 passed ide tothe vo Lovisiana But w denly changed course in 1913 aeros the ace fhe previous 90 years this did not divest Louisiana ofthe teritory already acquired. This change wat an zeulsion and thasefore the pro-1915 boundary remained. The US eourts Juve applied these principles to many cascs concerning disputes between states of the federation. 74a Cession (Cave eee ‘Thies the wafer of territory, usually by treaty, from one State to another. The form is not impor y form of understanding will be sufficient provided that both the grantor State and the grantee Site have given. their consent. A wnilsteral declaration of the grantor Stace wall suffice if accepted by the grantee Sta obtained by the use of force wall be invalid by virme of Aricle 52 VEL. Cession may be either gratuitous or for some consideration (eg the sale to the US by Denmark of the Danish Weet Indies in 1916, the sale of Louisiana by 1803. thesale of Aladk by tussi 0 the USin 1867) or in exchange for another territory, cg the UK ceded Heligoland to Germany in exchange far Zanzibar in 1890, Many cessions ‘were based on prace treaties, eg the 1919 Versailles Poe Teeaty. Nowadays, cession k vwsualy effected in respect of small pieczs of terxitary along Staue borders with land and France in 1953, Cession is an example of a derivative le. M'chere awe defecs in the ceding State's ile, he purported eession cannot cure them. However, so salled ‘consent nce to the US in wit 5 (0540) aa US 458, 4 ERs Mae (1963) 32205115: Toe 26 8 ($8 (1918): opie in| 2430 THE MODES OF ACQUISITION OF TITLE TO TERRITORY In the tand of Fos Articmcion” the US clainata that by the 2898 Treary of Paris it acquired tide © the island of Palmas from Spain. However the Arbitrator found that at the tite of the purported transfer of the ishind in 1898 scvereigary over the island lay nok vith Spain but wrth the Neqherlands. Spain could not wansfer moe rights than she bers poseeseed. Therefore since Spain had no tide to the island in 1898, the US eould-not have sequited ttle From Spain. ‘When tide fo territory is passed to a grantee Sate, that State becomes respousible for any act oocurting on th is exemplified by the Hal Cex." Facts: The Treaty of Paris, signed on 10 December 1898, provided that on exchange of ratifications, Spain should evacuate the Philippines in favour of the US. However ton 24 December local insurgents forced the Spanish to withdtaw and ft was not Until 10 February that Amarican troops captured tlailo from the insurgents. On the following day the insurgents set fire to the town damaging property of British subjects. Hold: ‘The British-Americaa tribunal hearing claims for damaged property held that as ‘the treaty did net take effect until ratification on 11 April, the transfer of de jure and its resulting obligations, did nat commence until that sovereignty te the US, s residing it a territory which has been ceded bs 3 Stiles concerned, However, in the absence of any ormally settled becween the © ereement the suezesvr Site will normally grant ke nationality Petladon. Thi i seppored by Arude 5 of he 1999 Draft Adiles on Nanon Srl Rusons i Relation wo ie Succession of Sate= ptepared by the 1LC which seta Febutubie presumpiion that perane habe resident within the territory concernd qtuld seguir the nationality of the successor State. In order to avoid satleuness, the eumril of Borope 2096 Convention on the Avoidance of Satchasness im Relation 1 State Suconsion provides that a suecessor Stare is obliged o grant is natlonaby to nationals of the pasecestor See who ae habiually residearin the relevant weritony and who wow athe ile 8). tine aewely seq wy of ge became stateless persons (Ar > (1999) ankle ist i mm, ed Tat Ta pr #8 crs 100, 285 TERRITORIAL SOVEREIGNTY Under imemaiional lw a State has 20 obligation o grant we the population concerned a opton to chonss asenalty though Anile 20 af the 1998 Draft Arles provide sceiean option should be avaible Furdhr,s grantor Sia hat 1o obligation to const ae ed population as is consent ia not required in order to make the cession ili ao ee ced by the constant practice of Suues which befeee and after WWT and Flowing the disintegration of the Sovier Union and the Former Yoxosivia, di aot onedh che affected popalation when tertoril changes were mle. ras Conquest Under vedicional international law conquest was recognised. a5 a. means of accTwrihg Tatty ewn in the dence of a Weury of ession, bat the acquisition of territory by ‘conquest wns not aval anil ostlites had come 19am end. Terre in the absence of peace treaty endance Was nocesary that lL eine by the enemy Sate Ane By allies Pee dared 6 that there vere no longer Fares in the Geld which might free the ocespied arcnany fora the contol of the conquering power Thus the German mnextion of Poland during WWI was invalid, because Roland’s allies continued co sugele again Germany Tra wien a Sate has been completely subjugated there will be wo transfer of soreuagury ithe absence ofan infeation to annex Ths, in 1945 dhe victorious Altes fexprestly dicclatmed any intention of snsexing Germany. ney had occupied all German territory and defeated Germany's allies inte tequbuion of trzxory by conquest may have bees acceprible during the period when there was ao legal restricion upoe the right of a State to wage wat It is Bow Senesally arcepted thar the Covenant of the League af Nati Pact of Paris, and, more Smnporuanti, Article 2(+) of dhe UN Charter id away with territory by conquest The effect af the prohibition of the use of force on the acquisition of territory ce the proportion ix acepitd that an aggremor Sax cannot acqise writ HY com Gusting abother Save througl the use of fone, {flows thar an aggresor oanot noe see entry by conquest snd tht any treaty of cosion impor by am aggressor wil be imalid qasa Caan ‘innocent party’ to 0 war still acquire territory by conquest? cam a Stace acting in self-defence acyulreterivory by conquest? The Soviet view was at Sauce aeting in self-defence may impose sanctions on 2 defend aggressoe: in particular they are empowered 10 take away parof the terior of the aggressor n order 0 PRINS ear crenee of the aggression. Heswerer, (he Declaration on Pritcipes of Imermaional 1a Temceming Friendly Relaioat ind Co-operation among Sues sn Accordance wilh Bt Chaner of the United Nations (UNGA. (Res 2625 GOCV))" suggests otherwise. 1 2a omobe 1970) 6008 29 Souk Dre 28. 12 THE MODES OF ACQUISITION OF TITLE TO TERRITORY ‘The territory of a tate shall not be the abject of nikitary occupation reeling fs ise of fovut in contravention of the provisions of the Chaster. The texzitary of 8 st hall not be the object of acquisition by another tate revulong from che threat or use of foes So any thevat of oF use of force, whether in contravention ef the UN Charter oF not javalidates the acquisition of territory. Foc example, both the UNGA and the UNSC here repeatedly declared that fsach is not entitled to annex any of the territory it captured Following the war af June 1967, The UNSC affirmed in 1967 that tht ‘sequisition. of territory by military conquest ic inadmissible’ and chat all rxasures taken by pocupied territories were invalid and ineffective to change the stanas of Mare recently, inthe Preamble co Resolution. 1472 dealing with the situation in Traq tht TUNEC reaffirned ‘che commitment of all Member States 10 the sovere ty and weenterial incegricy of Iraq’ Howerss, i must be cememberad that 2: long as the international community of Sates ts not determined to prevent aggressors from enjoying their spatls the peinciple that an aggressor cannot acqsire a good te o wernt i habe ro produce serious diserepancies tebween the lave and tbe facts Irwall depend epon political rather than legal cizcumstances 7452 The 1961 invasion of Goa Poreugal reained this coloay on the ladlan pubconsinent unt it was invaded by Inds an Tegal use of force by India and the subsequent sof the UNS and there was no incorporated into India's territory. Thi annexation of Gos reccived the approval of many condemaation of the act by either the UNSC ar the UNGA. .gue that India bas obtained « busts of & the fact, will hecome

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