Principles governing Territorial Claims and Border Disputes

Doctrine of inter-temporal law

– Creation of rights.

– Existence of rights.

• Effective Control (Occupation and Prescription)

– Apparent display of sovereignty.



– Intention to acquire sovereignty.

– Continuous Peaceful display.

• Critical Date

• Uti Possidetis Juris

 

• Consent

– Agreement

– Recognition, acquiesces, estoppels

• Principle of territorial integrity and prohibition on use of force

– Prohibition

– Acquisition of territory by lawful use of force

• General Equitable Principles

• Self Determination

The doctrine of Inter-temporal law
• Problem of changing conditions

• Can cause considerable difficulties since territorial title may be valid previously, but may be ineffective under later developments.

• Fitzmaurice – it is an established principle of int’l law that in such cases the situation in question must be appraised , and the treaty interpreted, in the light of rules of intl law as they existed at the time, and not as they exist today.

• General Rule in such circumstance – In a dispute, the claim or situation in question (or example, a treaty) has to be examined according to the condition and rules in existence at that time it was made and not at a later date.

• Island of Palmas Case (1928), PCIJ – a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. – The Spanish claim to title by discovery, which the US declared it had inherited, had to be tested in the light of international legal principles in 16th century when the discovery was made.

• Creation of Rights : as discussed above

• Existence of Rights

• Island of Palmas case (1928) – a distinction must be made between the creation of rights and the existence of rights. – The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, – in other words its continued manifestation, shall follow the conditions required by the evolution of law

• Aegan Sea Continental Shelf Case (1978 ICJ) – Treaty must be interpreted accordance with rules of int’l law as they exist today, and not as they existed in 1931 – Evolution of int’l law concerning continental shelf had to be considered although that concept was completely unknown in 1920s – How far does this aspect of intl’ law is applicable ? Highly controversial .

Effective Control
• In case of prescription and occupation – Apparent display of sovereignty – Intention to acquire sovereignty – Continuous Peaceful display

• Display of state activity, and the interpretation of the facts in light of legal policy which favors stability – 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
• Huber in Palmas Arbitration Case, – The actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial sovereignty • Palmas Arbitration Case, 1928 – Dispute concerned sovereignty over a particular island in the pacific – US – since by treaty of 1898, Spain had ceded to it all Spanish rights possessed in that region – Netherland – claimed the territory on the basis of various rights of sovereignty over it since the 17th century .
• Huber – Dismissed the American claims as not effective to found title – Netherland possessed sovereignty on the basis of the ‘actual continuous and peaceful display of state functions’ evidenced by various administrative acts performed over the centuries • Clipperton Island Arbitration (1932) – dispute between France and Mexico over an uninhabited island – Arbitrator – emphasized that the actual, and not the nominal, taking of possession was necessary condition – Proclamation of sovereignty by French naval officer later published was deemed sufficient to create a valid title.
Intention to acquire sovereignty

– Referred to as animus occupandi or animus possidendi

– Will to act as sovereign

– Such intention must be that of the state and not of an unauthorized person

– Western Sahara, Advisory Opinion, 1975 – Eastern Greenland Case (Denmark v Norway) (1933) PCIJ

• Continuous peaceful display – Island of Palmas Case (Netherlands, USA) (1928) – Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. (p. 840)

Critical Date
• Date at which question of sovereignty is to be assessed –

– date at which dispute crystallised and after which no acts can be taken into account in determining sovereignty. • May be date of a particular treaty where its provisions are at issue (Island of Palmas) or date of occupation of territory (Eastern Greenland)
• Critical date does not always exist

• But where there is, acts undertaken after that date will not be taken into consideration, • In uti possidetis – Which posits that a new state has the boundaries of the predecessor entity – So that the moment of independence itself is the critical date

Uti possidetis Juris
• May you continue to possess such as you do possess

• Pinciple in int’l law that territory remains with its possessor at the end of the conflict, unless otherwise provided by treaty – If a treaty consists of no condition regarding the possession of property and territory taken by force, the doctrine of uti possidetis will prevail. • Frontiers of newly independent states – to follow boundaries of old colonial territories from which they emerged • Use originated in South America (19th century) – New state sought to ensure that there was no Terra Nullius in South America when the Spanish withdrew

• Uti possidetis juris reaffirmed by ICJ

– In Burkina Faso v. Mali (1986)

• Uti possidetis in general principle

• Its obvious purpose is to prevent the independence and stability of new states being endangered by struggles provoked by the changing of frontiers following the withdrawal of the administering power.

Consent
• a. treaty/agreement • b. recognition, acquiescence, estoppels – Role of subsequent conduct – Eritrea/Ethiopia Boundary Commission • Effect of subsequent conduct may be so clear in relation to matters that appear to be the subject of a given treaty that the application of an otherwise pertinent treaty provision may be varied, or may even cease to control the situation, regardless of original meaning.

Prohibition of use of force
• Charter of the United Nations, Article 2(4) – All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. • 1970 Declaration of Principles of International Law adopted by the United Nations General Assembly – The territory of a State shall not be the subject of military occupation resulting from the use of force in contravention of the provisions of the Charter. The 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.

Acquisition by lawful use of force
• UN Charter, article 51 – Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.