Modes of acquiring territory


Traditionally
1. Occupation (with discovery) of terra nullius.
2. Prescription.
3. Accretion (natural cause).
4. Cession.
5. Subjugation/Conquest.
Modern
– Self determination
Additional Mode (Starke)
– Adjudication of award by a Conferences of States (victorious states eg. Redistribution of Europe at Versailles Peace
Conference 1919)
– Plebiscite (referendum) (Soviet Doctrine)
Occupation with discovery
• Terra Nullius
• Establishing sovereignty over territory not under authority of any state
– Discovered
– Or abandoned by former state
• Territory inhabited by tribes or people having a social and political organization CANNOT be of the nature of terra nullius (ICJ Opinion on Western Sahara Case 1975)
– On the subject of ‘colonisation’ by occupation of African territory inhabited, at the time, by tribal people
• Test of Occupation – principle of effectiveness
• What amounts effectiveness ?
– PCIJ in Eastern Greenland Case (1933) and
Western Sahara Case
• Two elements test
– Intention or will to act as sovereign
– Adequate exercise or display of sovereignty
• Eastern Greenland case : Dispute was between Norway and Denmark where Denmark was able to prove the circumstances which justified two elements
• Intention
– Mental element
– Matter of inference from all the facts
– Sometimes intention may be formally expressed
– Evidence of permanent intention to assume control
– A mere transient passage is insufficient to satisfy
– Unauthorized activities of private individuals is not valid
• Discovery alone
– Without intention
– Even if proclaimed or hosted national flag – does not be sovereignty (but inchoate title only), if it does not have intention
• Adequate display of sovereignty
– Satisfied by concrete evidence of possession or control
– May be manifested by
• symbolic act (France by symbolic act, had given due notice to world by publication of declaration of sovereignty in English in Journal – Clipperton Island Case 1931)
• Legislative or executive measures
• Treaties
• Recognizing claimant state’s sovereignty, by fixing
boundaries and so on
– Degree of authority required – vary according to circumstances
• Minquiers and Ecrehos Case (ICJ, 1953)
– Proving continuous display of sovereignty which is necessary to confirm title
• Stressed importance of actual exercise of state functions
• Example : local administration, jurisdiction and act of legislative authority
– Court assessed these elements and preferred the claim of Great Britain
– Also applied in AO on Western Sahara Case, 1975.
• What extent of territory is embraced by an act of occupation:
– Two theories (Theory of continuity and theory of contiguity)
Theory of Continuity
– Occupation in particular area extends sovereignty of occupying state so far as is necessary for the security or development
– Accepted in Island of Palmas Arbitration by M. Huber
– long continuous exercise of effective authority can confer title
Theory of Contiguity
– Whereby the sovereignty of the occupying state reaches to those neighboring territories which are geographically pertinent to the area of lodgment
– i.e. there is geographical unity between the mainland and area claimed
– Rejected by M. Huber
– Rejected in Western Sahara Case
– Rejected in North Sea Continental Shelf case
Prescription
• Result of peaceful exercise of de facto sovereignty for a very long period over territory subject to sovereignty of another.
• Consequence of immemorial exercise of such sovereignty
• Or as a result of lengthy adverse possession only (distinctive factor to distinguish prescription from occupation)
• the first sovereign state can be displaced by the second through a peaceable occupation with sufficient intent of a second state.
• No decision of any tribunal which conclusively support the doctrine
• No recognized principle in international law
– Fixing the required term of years
Accretion or Accumulation
• Natural or Geographical process resulting in formation of new territory
• Wind blown sand, volcano resulting in formation of island,
• Adds territory to territory already under sovereignty
– for example, an island emerged in the Pacific after an under-sea volcano erupted in January 1986
• Was recognized as territory of Japan
– Change in track of river
Cession
• Rests on principle that ‘the right of transferring its territory is a fundamental attribute of the sovereignty of a state’
• Peaceful transfer of territory from one sovereign to another.
• Accordance to international treaty amongst affecting states
• Also in case of purchase of territory (Alaska’s purchase by USA from Russia in 1867)
• Cession is void – if conclusion of such treaty is procured by threat or use of force (UN charter; art 52 of VCLT)
• Cession
– Compulsory
• Cession of Alsace-Lorraine to Germany by France in 1871 – subsequently returned to France at end of WW I
– Voluntary
• Treaty (Alaska from Russia to USA)
• Gift, sale or exchange
• Cession results into passing all sovereign rights pertaining to territory ceded.
• Cannot pass more rights than the territory in question
• If third state had right to passage : the new sovereign must respect it
• Cession often takes place within the framework of a peace treaty following war
• Basis of Cession
– Lies in the intention of the relevant parties to transfer the sovereignty
• Cession, Renunciation or Abandonment
• Cession: given from one state to another under international agreement
• Renunciation: renounced by one state, passing into the hands of another state which exercises sovereignty
• Abandonment: renounced by one state, and left as res nullius
• Presumption against abandonment
Conquest and the Use of Force
• Illegal act cannot give birth to a right in law
• However, international community has accepted illegal aggression in many cases by recognition
• Iraq invaded and annexed Kuwait in 1990
– International community protested invasion and asked to withdraw Iraq from Kuwait
• UN Security Council, in resolution622(1990) : Annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void.
• UN Charter art 2(4)
– “Territory of a state shall not be the subject of acquisition by another state resulting from the threat or use of force”
[All members shall refrain in the international relations from the threat or use of force against the territorial integrity or political independence of any State…]
Modern
• Self Determination
1.Defining Self-Determination:
• “all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”
2. Sources of Self-Determination
• recognized as a rule of customary international law and is invoked in Articles 1 and 55 of the United Nations Charter.

• Example: Western Sahara: Self-Determination Denied
• ICJ asked two questions:

1. Was Western Sahara Terra Nullius at the Time of Colonization by Spain?
• No. It was not terra nullius because its inhabitants had sufficient political and social organization.

2. What Were the Legal Ties of This Territory with The Kingdom of Morocco and the Entity that would become Mauritania?
• the Court did not find “legal ties of such a nature as might affect the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.”