PUBLIC INT’L LAW

CLASS FIVE/SIX

TERRITORIAL SOVEREIGNTY

Prof David K. Linnan

USC LAW # 783

09/23/03

ACQUISITION OF TERRITORIAL SOVEREIGNTY

Concepts at stake: 1. Traditional ideas of terra nullius and “savage”

society versus locally organized peoples 2. Intertemporal doctrine (change over time in

legal principles) 3. Title to land doctrinal categories

4. Boundary and related doctrines

ASEAN & AUSSIE MAP

ACQUISITION OF TERRITORIAL SOVEREIGNTY

Island of Palmas (US v. Netherlands 1928 Arb)

Palmas as island between Dutch East Indies (now Indonesia) & Philippines claimed by both US & Netherlands (within Philippine marine boundary, but claimed by Dutch)

US claim based initially on discovery title as successor in interest to Spain following 1898 Spanish-American War

 Dutch claim have possessed and exercised sovereignty

from 1677 or perhaps before 1648 to 1920s

ACQUISITION OF TERRITORIAL SOVEREIGNTY

Palmas (cont’d)

Arbitrator indicates “inchoate” nature of original Spanish title based on discovery but with not effective follow up assertion of sovereignty, indication that while discovery may have been enough under 16th century international law views to assert territorial rights some occasional exercise of sovereignty required by 1900s

Query, what constitutes manifestation of territorial sovereignty at differing places and times?

How to apply the intertemporal law doctrine?

ACQUISITION OF TERRITORIAL SOVEREIGNTY

How to distinguish among : 1. Title of discovery (inchoate, terra nullius concept

related)? 2. Title of sovereignty (requiring continuous and peaceful

display of State authority during a long period of time)? 3. Title of contiguity (is being adjacent enough)? Problem in asserting sovereignty by peaceful display where

few people, no civilization & isolation

GREENLAND MAP

ACQUISITION OF TERRITORIAL SOVEREIGNTY

LEGAL STATUS OF EASTERN GREENLAND (DENMARK V. NORWAY PCIJ 1933)

Norwegian proclamation of 1931 purported to plce portions of eastern Greenland under Norwegian sovereignty on theory it was tera nullius rather than Danish, whereas Denmark claimed all of Greenland essentially under its historical occupation of other parts

Citing Palmas arbitration, Denmark claimed title “founded on the peaceful and continuous dislay of State authority over the island”

Query, what elements are required for sovereignty title?

What is the effect of other states’ behavior?

ACQUISITION OF TERRITORIAL SOVEREIGNTY

EASTERN GREENLAND (CONT’D)

Titled based upon continued display of authority (sovereignty) requires two elements:

1.      intention & will to act as sovereign

2 some actual exercise or display of authority

ACQUISITION OF TERRITORIAL SOVEREIGNTY

Issue of competing claims normally (up to 1931 none here), third party states had recognized Danish claims implicitly by excluding Greenland under treaties

Norway estopped too because:

1.  party to those treaties implicitly addressing Greenland’s ownership

2. Norway had given express understanding to Danish government not to contest

ACQUISITION OF TERRITORIAL SOVEREIGNTY

MISCELLANEOUS RELATED DOCTRINAL CONCEPTS INCLUDE:

1.     Contiguity

2.    Prescription as title founded on long and peaceful possession (not municipal law’s adverse possession, however)

3.    Consolidation

4.    Uti possidetes juris (power of preexisting boundries, remember as applied in decolonization and former Yugoslavian break up)

5.    Accretion

6.    Cession

7.    Conquest

ACQUISITION OF TERRITORIAL SOVEREIGNTY

BOUNDARIES:

UTI POSSIDETIS JURIS (colonial administrative boundaries taken over despite not matching ethnic distributions-- in EU approach to former Yugoslavia too)

AIRSPACE ISSUES (1944 Chicago Convention & ICAO, with problems of no innocent passage as with LOS because over land-- WWI security issues with new air vessels, except archipelagic sea lanes passage now for aircraft with recent US/Indonesia incident)

LAW OF SEA (LOS 1982) treatment of zones in terms of territorial waters assimilated to territory to 12 miles, contiguous zone extending 24 miles from territorial sea, exclusive economic zone extending 200 miles from territorial sea but innocent passage

FOR NEXT WEEK (SIX)

Territorial sovereignty problem to be distributed

Read UN Charter completely for structure and authority