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LAWS1023

PUBLIC INTERNATIONAL LAW


1. INTERNATIONAL LEGAL PERSONS, STATEHOOD AND SOVEREIGNTY 1

1 INTERNATIONAL LEGAL PERSONS,

STATEHOOD AND TERRITORY

1 INTERNATIONAL LEGAL PERSONS, STATEHOOD AND TERRITORY ......... 1

1.1 International Legal Persons ....................................................................................................................... 2 1.1.1 States ................................................................................................................................................... 2 1.1.2 International Organisations .................................................................................................................. 2 1.1.3 Corporations ........................................................................................................................................ 3 1.1.4 Individuals ........................................................................................................................................... 4 1.1.5 Other Non-State Entities ...................................................................................................................... 4

1.2 Statehood and its Requirements ................................................................................................................ 5 1.2.1 Permanent population .......................................................................................................................... 5 1.2.2 Defined territory .................................................................................................................................. 5 1.2.3 Government ......................................................................................................................................... 5 1.2.4 Capacity to enter relations with other States (Independence) .............................................................. 6 1.2.5 Consistency with jus cogens and international law ............................................................................. 7 1.2.6 Self-determination ............................................................................................................................... 7

1.2.6.1 The requirement of self-determination ....................................................................................... 7 1.2.6.2 The right to self-determination................................................................................................... 8

1.2.7 Recognition of States and Governments ............................................................................................ 11 1.2.7.1 Recognition of States ............................................................................................................... 11 1.2.7.2 Recognition of governments .................................................................................................... 11

1.2.8 Presumption of continued Statehood ................................................................................................. 12 1.2.8.1 Failed States ............................................................................................................................. 12 1.2.8.2 Submerged States ..................................................................................................................... 13

1.3 Sovereignty and Territory ........................................................................................................................ 13 1.3.1 Title to Territory ................................................................................................................................ 13

1.3.1.1 General principles .................................................................................................................... 13 1.3.1.2 Discovery ................................................................................................................................. 15 1.3.1.3 Occupation ............................................................................................................................... 15

1.3.1.3.1 Terra nullius ........................................................................................................................ 15 1.3.1.3.2 Taking possession ............................................................................................................... 16

1.3.1.4 Prescription .............................................................................................................................. 17 1.3.1.5 Cession ..................................................................................................................................... 19 1.3.1.6 Conquest .................................................................................................................................. 19 1.3.1.7 Contiguity ................................................................................................................................ 20

1.3.2 Sovereignty over territory, maritime zones, and airspace .................................................................. 21 1.3.2.1 Law of the Sea ......................................................................................................................... 21 1.3.2.2 Airspace ................................................................................................................................... 23

1.3.3 Common heritage, joint management of resources and sustainable development ............................. 24 1.3.3.1 The Area................................................................................................................................... 24 1.3.3.2 Outer-space .............................................................................................................................. 24 1.3.3.3 Antarctica ................................................................................................................................. 25



1.1 INTERNATIONAL LEGAL PERSONS

O’Connell, International Law (2nd edn 1970), Vol. I, pp. 80-82

““[P]ersonality” as a term is only short-hand for the proposition that an entity is endowed by international law with legal capacity.”

For every legal personality we must ask:

a) “Do the rules of international law establish that this claimant to capacity has the capacity which it claims?

b) What exactly is the capacity which it claims and which is allowed to it, or in other words, just what sorts of legal relations may this entity enter into? ...

c) Should the entity be recognised as having the capacity which it claims to have?”

1.1.1 STATES

States are the central focus of international law

Gillian Triggs, International Law: Contemporary Principles and Practices (1st ed, 2006) 29

“While the recognition of new international personalities has been a striking feature of the twentieth century, it is the evolving capacity of the individual that may prove to have the dominant effect on the development of international law in the twenty-first century. The human being was seen as the primary focus of international law from the point of view of its natural law origins. With the growth of a positivist approach to international law, however, the state became the central, if not the exclusive, subject of the law. Contemporary state practice has been to re-emphasise the importance of human rights through substantive law and procedural capacities.”

Only States can be a party in the ICJ

Statute of the International Court of Justice Article 34

1. Only states may be parties in cases before the Court 2. …

For the Requirements of Statehood and the Sovereignty of a State see 1.2 and 1.3

1.1.2 INTERNATIONAL ORGANISATIONS

Definition of international organisation:

International Law Commission Draft Articles on the Responsibility of International Organisations

Article 6



An organisation established by treaty or other instrument governed by international law and possessing its own international legal personality. International organisations may include as members, in addition to States, other entities.

International organisations have legal personality:

Reparations for Injuries Case (Advisory Opinion) [1949] ICJ Rep 174

FACTS: A UN official was killed by a private terrorist group in Jerusalem. The UN sought compensation for Jerusalem’s negligence in failing to protect him.

HELD: UN could make this claim because it had legal personality. It could claim for damage the UN suffered personally and also claim on behalf of the individual’s estate so long as the individual’s national state did not bring the same claim.

“the [UN] was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane”

“the [UN] is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.”

NB: In order to decide whether the UN could claim on behalf of the victim’s estate’s the court turned to the charter that formed the UN. Hence the rights and responsibilities of each independent organisation is different and dependent upon the particular charter that formed the organisation.

International Organisations can also be responsible for harm they cause:

Behrami v France (2007) 45 EHRR SE 85, European Court of Human Rights

FACTS: The children of Bahrami were killed and severely injured when they picked up an active bomb (argued negligently) left behind by a UN security force (KFOR) which was led by France in the district the bomb was left. Was France held accountable?

HELD: France is not accountable because they were acting within the UN’s mandates BUT it appears the UN could be responsible. I.e. the forces are not considered agents of their home country but of the UN. Unfortunately the court didn’t have jurisdiction over the UN.

“As such, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective.”

1.1.3 CORPORATIONS

Corporations don’t have international personality (but this case may have misapplied principles so it is unclear):

Kiobel v Royal Dutch Petroleum, US Court of Appeals 2nd Circuit, 17 September 2010



FACTS: The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law when they executed the plaintiff’s peaceful environmental protestor husband. This was brought in a US Court because of the Aliens Torts Statute which reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Hence non-citizens can bring claims in the US courts for international law violations even when committed overseas).

HELD: Corporations are not an international person (but this may have been misused the Nuremberg principles in its reasoning.)

Under international law, "corporate liability is not a discernible—much less a universally recognized—norm of customary international law"

As part of their reasoning the courts relied on the Nuremberg principle “Crimes against International Law are committed by men, not abstract entities, and only by punishing such crimes can the provisions of international law be enforced.”

1.1.4 INDIVIDUALS

Individuals have personality:

International Military Tribunal (Nuremberg) 41 AJIL 172 (1947)

“Crimes against International Law are committed by men, not abstract entities, and only by punishing such crimes can the provisions of international law be enforced.”

Ways an individual may be punished:

Usually there will be some corresponding domestic law and their nation may punish them. Also see the formation of the International Criminal Court or the American Alien Tort Claims Act which reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Hence non-citizens can bring claims in the US courts for international law violations even when committed overseas).

1.1.5 OTHER NON-STATE ENTITIES

The Holy Sea has international personality but is not a state/IO/Individual/Corporation:

Nanni v Pace and the Sovereign Order of Malta (1935-37) 8 AD 2 Italian Court of Cassation

“But it is impossible to deny other international collective units a limited capacity of acting internationally within the ambit and actual exercise of their own function with the resulting international judicial personality and capacity which is necessary and natural corollary. In accordance to these doctrines such personality was never denied to the Holy Sea… it is unanimously conceded to the League of Nations [and] to certain international administrative unions.”



1.2 STATEHOOD AND ITS REQUIREMENTS

Montevideo Convention on Rights and Duties of States 1933

Article 1 The State as a person of international law should possess the following qualifications:

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.

The above convention has only been adopted by fifteen Latin-American states but has also crystallised into a universal customary rule. There are some indications that other requirements have also become custom, such as accordance with the principles of self-determination and not being in the pursuit of racist policies (in breach of jus cogens).

1.2.1 PERMANENT POPULATION

There is no lower limit to population:

Emily Crawford, Climate Change, Sovereignty and Statehood, Sydney Law School, Legal Studies Research Paper No 11/59. http://ssrn.com/abstract=1931466

“With regards to population, no minimum is set for numbers; a state is a state even if its population numbers less than one thousands. The law likewise does not prescribe the physical scope of territory necessary;; as Franck and Hoffman note ‘infinitesimal smallness has never been a reason to deny self-determination to a population.’”

1.2.2 DEFINED TERRITORY

The territory need not be accurately delimited but must have some consistency:

Deutsche Continental Gas-Gesellshaft v Polish State (1929) 5 AD 11

(The German-Polish Mixed Arbitral Tribunal at 15) “In order to say that a State exists and can be recognised as such… it is enough that… [its] territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited.”

NOTE: Island of Palmas and the Western Sahara Case reiterated this. Island of Palmas stated that the boundary must be physical and not abstract and Western Sahara stated that accurate delimitation is not necessary.

1.2.3 GOVERNMENT

A stable political organisation is required:

Aaland Islands Case (Sweden v Finland) (1920) LNOJ Spec Supp No 3



FACTS: In the case a question arose as to when Finland became a state. The Finnish Parliament declared independence in 1917 but (due to unhappiness of not being part of the Russian Empire) there were riots. The Government only maintained limited order with the help of foreign Russian troops.

HELD: Finland became a state when a “stable political organisation” had been created. As the civil war ended in May 1918, that would be around when Finland became a State.

“It is, therefore, difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops…”

1.2.4 CAPACITY TO ENTER RELATIONS WITH OTHER

STATES (INDEPENDENCE)

To be independent means you have the capacity to enter relations with other states. If you are not independent (i.e. you are a dependent state) you are subject to the sovereignty of other states.

Independence means you are only restricted by obligations under international law:

(Only Judge Anzilotti’s opinion) For there to be dependence there must be some form of subordination and not equality:

Austro-German Customs Union Case (Advisory Opinion) PCIJ Reps, Series A/B, No 41 (1931)

FACTS: Austria and Germany sought to create a customs union establishing free trade between the states. Austria was a party to the Treaty of Saint-Germain 1919 which provided that “Austria undertakes… to abstain from any act which might directly or indirectly or by any means whatever compromise her independence…”. Austria was also a party to A Protocol of 1922 concerning economic independence to the same effect.

HELD: The court found (8 votes to 7) the customs union would be in breach of the 1922 Economic Independence Protocol and the minority (7 votes to 8) found it was also in breach of the Saint-Germain Treaty.

(The Court) “The Treaty of Saint-Germain, must be understood to mean the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters economics, political, financial or other with the result that that independence is violated, as soon as there is any violation thereof, either in the economic, political or any other field, these difference aspect of independence being in practice one and indivisible.”

(Judge Anzilotti) “[Dependent States] are subject to the authority of one or more States… Where there is no relationship of superiority and subordination, it is



impossible to speak of dependence within the meaning of International Law… It follows that the legal conception of independence has nothing to do with a State’s subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterise the relation of one country to other countries.” (NB: This was the one Judge that, despite finding an inconsistency with the Economic Independence Protocol, did not find that there was a breach of Independence in general under the Saint-Germain Treaty).

An example of a dependent state

French Indemnity of 1831, US Claims Commission. Moore, 5 Int. Arb. 4447

FACTS: France had to pay the US compensation in respect to certain damage caused during the Napoleonic Wars. Some of this damage was caused by Holland and Denmark and the question arose whether they were at the time independent or whether France was responsible.

HELD: A treaty between France and Holland made Holland dependent on France. Denmark was independent.

(Commission at 4472) “The tenth article of the [Franco-Dutch] treaty… was as follows: “All merchandise, which has arrived in American vessels in the ports of Holland since the 1st of January 1809, shall be placed under sequestration, and shall belong to France, to be disposed of according to circumstances and to the political relations with the United States”… The treaty was a form;; in substance it was an imperial degree… the kingdom of Denmark was then, as now, independent”

1.2.5 CONSISTENCY WITH JUS COGENS AND

INTERNATIONAL LAW

Where Jus Cogens are violated in the otherwise making of a state, that state may not be recognised as a state. Some believe this to be evidence of a new customary requirement.

This is heavily related to the recognition of states and the declaratory and constitutive theories outlined below.

E.g. The United Nations General Assembly (by a vote of 134 to 0) condemned the granting of independence of Transkei by South Africa and refused to recognise it as a state. This was because it was “designed to consolidate the inhuman policy of apartheid”.

1.2.6 SELF-DETERMINATION

1.2.6.1 The requirement of self-determination

Souther Rhodesia was a British self-governing colony. The government (the Smith regime) claimed independence in an attempt to continue white rule. Southern Rhodesia gained independence and satisfied all the Montevideo requirements from 1965 onwards. However it would not be considered a state as the means it gained independence (a white minority dictating



the political future of the people) was not in accordance with self-determination principles. This indicated that complying with the principles of self-determination is now a customary requirement for statehood.

1.2.6.2 The right to self-determination

The right codified in conventions:

International Covenant on Civil and Political Rights 1966 International Covenant on Economic Cultural and Social Rights 1966

Common Article 1

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Declaration on the Granting of Independence to Colonial Territories and Peoples 1960

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.



The right as customary law:

Western Sahara Case (Advisory Opinion) [1975] ICJ Reps 12

FACTS: Western Sahara was colonised by Spain and constituted mainly nomadic Saharan tribesmen. Spain agreed to hold a referendum so that the population could exercise its right to self-determination. Morocco then claimed that tit held historic title predating Spain’s colonisation. Two questions were asked:

1. Was Western Sahara terra nullius? 2. Was there any ties between Western Sahara and Morocco/Mauritius?

HELD: Land occupied by nomadic people are not terra nullius (Mabo referred to this). The right is also a custom.

(The Court at [56]) “…subsequent development of law, through the Charter of the United Nations and by way of customary law.”

(The Court at [59]) “…the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples…”

The right is a jus cogens and erga omnes obligation:

East Timor Case (Portugal v Australia) [1995] ICJ Rep 90

HELD: The right to self-determination is a jus cogen and erga omnes obligation

(The Court at [29]) “In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court (see …);; it is one of the essential principles of contemporary international law”

Limitations on the right (colonial context only):

Note that this right is not strictly available to everyone (e.g. minorities) (see Harris 112, footnote 110). The right is only evident in colonial contexts. The right to self-determination must not involve changes to existing frontiers under the principle of uti possidetis unless the concerned state agrees otherwise (Opinion no. 2 of the Arbitration Commission of the Conference on Yugoslavia) However in a colonial context there will be no changes to frontiers.

Declaration on the Granting of Independence to Colonial Territories and Peoples 1960

Article 6

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations



Supreme Court of Canada finds that the Quebec is not owed the right because it is not colonial nor oppressed:

Reference re Secession of Quebec (1998) 2 SCR 217

FACTS: Supreme Court of Canada was asked “Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”

HELD: No, because Quebec is not a former colony and the right to self-determination would not extend to it.

“In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determiantion…”

Limitation on the right (right to declare independence but not necessarily to become independent unless you are oppressed):

Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep

FACTS: The ICJ responded to a request from the UNGA to consider whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

HELD: It is not contrary to international law to declare independence (c.f. a right to independence). Those people subject to alien subjugation, domination and exploitation also have a right to independence (remedial secession); it is unclear whether people outside this context also have a right to independence.

“The Court first notes that during the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases….The Court considers that it is not necessary, in the present case, to resolve the question whether, outside the context of



non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State, or whether international law provides for a right of “remedial secession” and, if so, in what circumstances. It recalls that the General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law. The Court notes that debates regarding the extent of the right of self-determination and the existence of any right of “remedial secession”, however, concern the right to separate from a State. That issue is beyond the scope of the question posed by the General Assembly.”

1.2.7 RECOGNITION OF STATES AND GOVERNMENTS

1.2.7.1 Recognition of States

Declaratory theory v constitutive theory:

Brierly, The law of nations, Waldock (6th edn 1963), p 183

“The legal significance of recognition is “controversial”… According to one view it has a constitutive effect; through recognition only and exclusively a state becomes an international person... But there are serious difficulties in this view… The better view is that the granting of recognition to a new state is not a “constitutive” but a “declaratory” act;; it does not bring into legal existence a state which did not exist before. A state may exist without being recognized…”

Declaratory theory is more prevalent but recognition is still evidence of the other statehood requirements:

Tinoco Arbirtation (Great Britain v Costa Rica) (1923)

“The non-recognition by other nation of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such. But when recognition vel non-government is [bias/misinformed] their non-recognition loses something of evidential weight on the issue with those applying the rules of international law alone are concerned.”

Stimson doctrine of non-recognition:

The Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7, 1932, to Japan and China, of non-recognition of international territorial changes that were executed by force. The doctrine was an application of the principle of ex injuria jus non oritur (does not arise from injustice).

1.2.7.2 Recognition of governments

This issue only arises when there has been an unconstitutional change in government. It is different to recognising statehood and most likely will only affect pre-existing states. Whether



the government is effective (evidenced perhaps through its recognition) will affect the Montevideo criteria but if ineffective the state will most likely become a failed state rather than lose its statehood.

Australia’s policy on recognition:

Australia use to release a press release a message to the courts when there was a need to recognise a new government/not recognise a new government. This was stopped in 1998 because it was interpreted by the public as approval of the way the governments attained power. Courts must decide for themselves which government is legitimate now.

The Hon Bill Hayden MP, Minister for Foreign Affairs and Trade, 19 January 1988

“From now on the Australian Government will not extend formal recognition, whether de facto or de jure, to new governments taking power in other countries. Indeed, Australian authorities will conduct relations with new regimes to the extent and in the manner which may be required by the circumstances of each case.”

Judicial criteria for recognising governments:

Sierra Leone Telecomm Co v Barclay Banks [1998] All ER 821

FACTS: The P (wholly owned by the Sierra Leone government) held a US bank account with the D. There was a coup and a new (unconstitutional) government in Sierra Leone emerged. The new government made changed to the account and the P (who retained some independence from the new government) sought a declaration to reverse these changes by claiming the government was not real.

HELD: (Cresswell J) In deciding whether to recognise a government we must look at the “Woodhouse criteria” (1) whether it is the constitutional government of the state, (2) degree, nature and stability of administrative control, (3) Whether Her Majesty’s government has any dealings with it and if so what is the nature of hose dealings, and (4) only in marginal cases the extent of international recognition. The new government was not recognised.

Statutory criteria for recognising government:

Some statutes contain their own criteria for determining whether to recognise governments for the purposes of applying the provisions of that statute. E.g. Foreign Corporations (Application of Law) Act 1989 (Cth).

1.2.8 PRESUMPTION OF CONTINUED STATEHOOD

1.2.8.1 Failed States

Failed states retain their legal capacity but have for all practical purposes lost the ability to exercise it. These are states that have essentially lost stable political organisation but due to the presumption of continued statehood, retain their statehood. E.g. Somalia during the 1990’s had a civil war and therefore there was no government that could represent the state.



1.2.8.2 Submerged States

Territory is so fundamental to a state that the presumption may be rebutted if territory is lost (e.g. submerged):

Emily Crawford, Climate Change, Sovereignty and Statehood, Sydney Law School, Legal Studies Research Paper No 11/59. http://ssrn.com/abstract=1931466

“However, if, having acquired the Montevideo criteria, a state ‘loses’ one or more of the criteria – say, an effective government – does this mean that the state no longer exists? Indeed, climate change threatens to deprive some states…of the key Montevideo criterion – namely, territory. [i.e. rising sea levels] Does that mean these states will, under international law, cease being states? Much as states can be created under international law, so too can they cease to exist.”

1.3 SOVEREIGNTY AND TERRITORY

1.3.1 TITLE TO TERRITORY

1.3.1.1 General principles

Whichever state/people have the better claim gets title:

Islands of Palmas Case (Netherland v US) (1928) Permanent Court of Arbitration 2 RIAA 829

FACTS: America said they owned the islands through cession from Spain. Spain can only give title if they had it to begin with. Did Spain have title through discovery? Or did Netherlands have title through prescription in that the Dutch East India Company used the Islands regularly?

(Arbitrator: Huber) “If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title—cession conquest, occupation, etc.—superior to that which the other State might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.”

The concept of critical date:

Goldie, The Critical Date, International and Comparative Law Quarterly (1963), volume 12, issue 04, 1251

“In international law the point of time at the end of the period within which the material facts of a dispute are said to have occurred is usually called the “critical date.” It is also the date after which the actions of the partied to a dispute can no longer affect the issue. It is exclusionary and it is terminal. Hence it is most frequently resorted to in



territorial disputes to indicate the period within which a party should be able to show the consolidation of its title or its fulfilment of the requirement of the doctrine of occupation. The traditional use of the term “critical date” may appear to import little more than the point of time in the course of an international dispute when the parties reject other possible means of resolving their differenced and, defining them in terms of legal dialect, reduce these differences to “objects of litigation”.”

Hence the critical date is often when a party objects to a claim of sovereignty (usually, but not necessarily, when the dispute crystallises). Any actions past this date cannot be considered.

Doctrine of intertemporal law:


HELD: The law at the time of alleged creation of the title is used to determine whether the title was originally formed but intertemporal laws are used to see if the title continues to exist until the present day.

(Arbitrator: Huber) “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 effect of discovery by Spain [i.e. creation of the right] is therefore to be determined by the rules of international law in force in the first half of the 16th century.”

(Arbitrator: Huber) “As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), 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.”

Jessup, The Palmas Island Arbitration, (1928) 22 AJIL 735

“Assume that State A in a certain year acquires Island X from State B by a treaty of peace after a war in which A is the victor. Assume Island X is… uninhabited and desired by A only for strategic reasons to prevent its fortification by another Power. Assume that A hold island X, but without making direct use of it for 200 years. At the end of that time suppose that the development of international morality has so far progressed as to change the previous rule of international law and that the new rule is that no territory may be acquired by a victor from a vanquished at the close of a war. Under the theory of ‘intertemporal law’ as expounded, it would appear that A would no longer have good title to Island X but must secure a new title upon some other basis or in accordance with the new rule. Such a retroactive effect of law would be highly disturbing. Every state would constantly be under the necessity of examining its title to each portion of its territory in order to determine whether a change in the law has necessitated, as it were, a reacquisition.”

Actions of private individuals are not on behalf of their state:

Anglo-Norwegian Fisheries Case (U.K. v Norway) [1951] ICJ Reps 116



(Judge Sir Arnold McNair at 184)“the independent activity of private individuals is of little value unless it can be shown that they have acted in pursuance of a license or some other authority received from their Governments or that in some way their Governments have asserted jurisdiction through them.”

1.3.1.2 Discovery

Discovery merely creates an inchoate title that must be completed:



HELD: The court said discovery never creates a title but just an inchoate title that must be completed with effective occupation soon after.

(Arbitrator: Huber) “If on the other hand the view is adopted that discovery does not create a definitive title of sovereignty, but only an "inchoate" title, such a title exists, it is true, without external manifestation. However, according to the view that has prevailed at any rate since the 19th century, an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered.”

Old laws of discovery:

Keler, Lissitzyn and Mann, Creation of Rights of Sovereignty though Symbolic Acts 1400-1800 (1938), 148-9

Found that discovery (along with a symbolic act like planting a flag) was enough to establish a valid title to terra nullius.

NB: Palmas makes it clear that even though this was the law, the intertemporal doctrine means we also need to apply the more recent 18/19th century laws to see if the title continues to exist.

1.3.1.3 Occupation

Occupation is the acquisition of land that belongs to no-one (‘terra nullius’).

1.3.1.3.1 Terra nullius

The requirement for terra nullius:


FACTS: Western Sahara was colonised by Spain and constituted mainly nomadic Saharan tribesmen. Spain agreed to hold a referendum so that the population could exercise its right to self-determination. Morocco then claimed that tit held historic title predating Spain’s colonisation. Two questions were asked:



1. Was Western Sahara terra nullius? 2. Was there any ties between Western Sahara and Morocco/Mauritius?

(The Court at [79]) “Turning to Question 1…The expression "terra nullius" was a legal term of art employed in connection with "occupation" as one of the accepted legal methods of acquiring sovereignty over territory. "Occupation" being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid "occupation" that the territory should be terra nullius- a territory belonging to no-one - at the time of the act alleged to constitute the "occupation"…”

Old laws defining terra nullius and tribal populations:


(Arbitrator: Huber) “It is admitted by both sides that international law underwent profound modifications between the end of the Middle-Ages and the end of the 19th century, as regards the rights of discovery and acquisition of uninhabited regions or regions inhabited by savages or semi-civilised peoples.”

Current laws defining terra nullius and tribal populations:


HELD: It was not terra nullius because there were tribes living there with social and political organisations.

(The Court at [80]) “Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers.”

1.3.1.3.2 Taking possession

To occupy land one needs to take possession of it:

When the land is not occupied little is needed to take possession:

Clipperton Island Case (France v Mexico) (1932) 26 AJIL 390

FACTS: France claimed to have occupied an island but Mexico also claimed that Spain discovered it and that it was the successor.

HELD: For occupation you also need to possess the land which France did.

(Arbitrator: King Victor Emmanuel III of Italy) “that island was in the legal situation of terratorium nullius, and, therefore, susceptible of occupation. The question remains whether France proceeded to an effective occupation, satisfying the conditions required by international law for the validity of this kind of territorial acquisition.”



WHAT IS NORMALLY REQUIRED: (Arbitrator: King Victor Emmanuel III of Italy) “It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduced to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organisation capable of making its law respected.”

WHAT IS REQUIRED IF IT IS UNINHABITED: (Arbitrator: King Victor Emmanuel III of Italy) “But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby complete…”



(The Court at 92) “True, the Permanent Court recognized that in the case of claims to sovereignty over areas in thinly populated or unsettled countries, "very little in the way of actual exercise of sovereign rights" (ibid., p. 46) might be sufficient in the absence of a competing claim.”

NB: simple ‘administrative assertions of authority’ may be enough when there are no inhabitants. This includes providing navigational aids (e.g. lighthouses) etc. (see Pulau Ligitan and Pulau Sipidan Case; Qatar v Bahrain; Minquiers and Ecrehos Case).

1.3.1.4 Prescription

To establish a claim of sovereign title by prescription, it must be shown that there was an intention to act as and exercise sovereign authority and there existed a peaceful and continuous display of state authority that is publicly known and of sufficient duration in the period leading up to the CRITICAL DATE (the date at which the dispute of territorial sovereignty is considered to be decisive).

Continuous and peaceful display of State authority:



HELD: Outlined that you needed a continuous and peaceful display of State authority for prescription.



(Arbitrator: Huber) “The actual continuous and peaceful display of State sovereignty is in the case of dispute the sound neutral criterion of territorial sovereignty.”

(Arbitrator: Huber) “As to the conditions of acquisition of sovereignty by way of continuous and peaceful display of State authority (so-called prescription), some of which have been discussion in the United States Counter-Memorandum, the following must be said: The display has been open and public, that is to say it was in conformity with usages as the exercise of a sovereignty over colonial States. A clandestine exercise of State authority over an inhabited territory during a considerable length of time would seem to be impossible…”

Elements of displaying State authority:

Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ Reps, Series A/B, No 53

HELD: For a continued display of state authority you need an intention to be sovereign and display of that authority. Also you need regards to competing displays/beliefs.

(The Court at 45-6) “a claim to sovereignty based… upon continued display of authority, involved two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken into account… is the extent to which the sovereignty is also claimed by some other Power.”

Requirements for prescription:

Kasikili/Sedudu Island case (Botswana v Namibia) [1999] ICJ Rep 1045

FACTS: Namibia claimed it owned an island through prescription.

HELD: The list of requirements that Namibia set out for itself were not met by Namibia. The court did not comment on whether the list was exhaustive of the requirements but did agree that they were requirements.

(The Court at [94]) “According to Namibia, four conditions must be fulfilled to enable possession by a State to mature into a prescriptive title:

1. The possession of the… State must be exercised a titre de souverain. 2. The possession must be peaceful and uninterrupted. 3. The possession must be public. 4. The possession must endure for a certain length of time.”

(The Court at [97]) “The Court need not concern itself with the status of acquisitive prescription in international law or with the conditions, for acquiring title to territory by prescription. It considers… that the conditions cited by Namibia itself are not satisfied in this case.”



(The Court at 92) “True, the Permanent Court recognized that in the case of claims to sovereignty over areas in thinly populated or unsettled countries, "very little in the way



of actual exercise of sovereign rights" (ibid., p. 46) might be sufficient in the absence of a competing claim.”

NB: simple ‘administrative assertions of authority’ may be enough when there are no inhabitants. This includes providing navigational aids (e.g. lighthouses) etc. (see Pulau Ligitan and Pulau Sipidan Case; Qatar v Bahrain; Minquiers and Ecrehos Case).

1.3.1.5 Cession

Cession is the peaceful transfer of sovereignty of state territory by the owner state to another state.

You can only cede what you have title to:


FACTS: America claimed the owned land Spain had ceded to them.

HELD: Spain can only cede what it has title to.

(The Court at 842) “It is evident that Spain could not transfer more rights than she herself possessed.”

Cession must be made with unambiguous language:

US v Ushi Shiroma 123 F.Supp. 145 (1954)

FACTS: The court had to determine whether Japanese Islands had been ceded to the US.

HELD: The islands had not been ceded under the treaty because the language was not clear.

1.3.1.6 Conquest

The use of force is prohibited under customary international law now. Article 2(4) of the UN Charter also prohibits the use of force. Only title claimed through force before the evolution of international law to ban it remains valid title.

United Nations Charter 1945 Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 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.

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