PIL Chapter 2 Midterm

sovereign territory

territory owned by a sovereign state

terra nullius

“land belonging to no one” or “no man’s land”

• territory capable of ownership although not yet under sovereign control

• such lang is open to an ownership claim

res communis

“thing of the entire community”

• territory that cannot be owned by any nation

• high seas, Antarctica, celestial bodies and space

Inchoate

“inchoate title” refers to a right, claim, or offense that is incomplete and requires a further act or process to become definitive or legally enforceable.

Island of Palmas Case: Spain spotted the island first. Under int’l law at the time, this discovery gave them an “inchoate title” aka calling dibs or creating a temporary placeholder claim.

But because Spain never actually landed, set up administration or physically occupied the island, their claim remained incomplete (inchoate).

Principle of contiguity

asserts that a state’s sovereignty over a piece of land or region naturally extends to other nearby or adjacent unoccupied territories.

Declaration on the Granting of Independence to Colonial Countries and Peoples

Adopted by UNGA Resolution 1514 (XV) of 14 December 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.

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter on the United Nations

No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

UN Charter 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.

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. [p.392]

If force is used in self-defense and if the exercise of self-defense results in the acquisition of territory, is such acquisition valid?

A number of int’l agreements and the UN Charter prohibit the instance where a state can acquire territory through the use of force.

It is permitted under Article 51, but this argument has been criticized as contrary to the Declaration on Friendly Relations which states that “no territorial acquisition resulting from the threat or use of force shall be recognized as legal”.

Cession

the act of ceding, a yielding or giving up, surrender.

In int’l law, the process whereby one sovereign gives title to territory to another sovereign.

Voluntary cession

territories can be peacefully acquired through financial purchase.

Ex: US purchasing Louisiana from France in 1803, and Alaska from Russia in 1867.

Involuntary cession and coercion

Historically, int’l law did not prohibit the use of force, meaning conquered nations were often forced into signing treaties to cede their land.

However, modern standards have changed; under Article 51 and 52 of the VCLT, treaties signed under coercion are now considered void.

VCLT Article 51 Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

VCLT Article 52 Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

Prescription

Acquisition of land belonging to another state through prescription under int’l law is analogous to the concept of adverse possession under municipal law.

• the acquisition of real property through the continuous and open use of it for a prescribed number of years despite the fact that the property is registered in another owner’s name.

Basic requirements for adverse possession (domestic)

• actual possession of the property

• continuous use of the property

• open and notorious use of the property

• exclusive use of the property

• hostile or adverse use of the property

However, in int’l law there are no articles or written treaties codifying such requirements.

Uti possidetis

“as you did possess, so you shall possess”

• roots in roman civil law, now adapted to int’l law to provide a rule for states emerging form colonial rule.

• the rule of uti possidetis required the newly independent states to accept the boundaries as they had been drawn up by the colonical administrators.

  • but this rule directly conflicts with another rule of int’l law, the right of peoples to self-determination.

Accretion (slow change)

the process of a gradual increase (build up) in the land through silt deposits or shifts in the seashore or river beds.

• if accretion occurs on an int’l boundary, as on a boundary river, the general view is that the int’l boundary will shift.

Avulsion (fast change)

the emergency of territory or the alteration in the shape of existing land through violent subterranean eruptions.

• if avulsion occurs on an int’l boundary the general view is that the boundary will not be altered.

nemo dat quod non habet

legal maxim - you cannot transfer a right that you do not actually possess

Principle of intertemporal law

This principle means that the creation of a legal title must be judged according to the law at the time when the title first arose. However, the continued existence of that title must satisfy the conditions required by the later development of international law. Therefore, even if discovery had legal significance at the time it occurred, the title still had to be maintained through effective authority over time