Territorial Disputes

Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel

1) Introduction. -2) Intertemporal Law and Critical Dates. -3) Direct Methods of Acquisition of Title - Roots of Title: i) Treaties. ii) Uti Possidetis. iii) Decisions of International Courts and Tribunals. iv) Agreements Concluded With Local Rulers. -4) Advocacy - Proof and Indirect Methods of Showing Title: i) Pre-hearing Preparatory Stage. ii) The Hearing. -5) Indirect Methods of Acquisition... (see full summary)


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1) Introduction

This chapter deals with boundary disputes relating to land. The following chapter deals with maritime boundary disputes.

Territorial disputes are concerned with sovereignty and involve the concept of title. A supranational court or tribunal faced with conflicting claims over rights to a territory will be presented with arguments and evidence aimed at showing that title to the disputed territory is vested in the contending party and not the opposing party.

There are two main methods of demonstrating the right to territory. The first method involves roots of title and is concerned with circumstances where a fairly direct and clear-cut right to territorial sovereignty can be demonstrated. The direct methods considered here are:

i) treaties;

ii) uti possidetis;16

iii) decisions of international courts and tribunals;

iv) agreements concluded with local rulers.

Second, where such direct claims cannot be demonstrated, there are various indirect methods of showing title. These include:

i) effective occupation;

ii) prescription;

iii) discovery;

iv) symbolic annexation.

2) Intertemporal Law and Critical Dates

Before looking at the direct and indirect methods of demonstrating the right to territory, however, it may be useful to consider two preliminary matters: intertemporal law and critical dates.

Intertemporal law

In considering the claims of the parties in a dispute concerning territorial sovereignty, it may be necessary for the Court or Tribunal to apply principles of international law in force at an earlier date.

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One example can be found in the Island of Palmas case,17 a decision of significance that is considered in various parts of the Manual. As mentioned in Chapter 6, the case came before the Permanent Court of Arbitration (PCA) in 1928 and the sole arbitrator was Max Huber.

The Netherlands and the United States agreed that the only duty of the arbitrator was to determine whether the Island of Palmas formed part of territory belonging to one or the other party. Their respective claims had to be tested on the basis of international legal principles ruling in the 16th century, the period when the island was discovered.

The report of the case sets out the arbitrator's statement in the Award on the matter of intertemporal law. He said that it was 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:

"Both Parties are also agreed that 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 rises or falls to be settled. The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the 16th century - or (to take the earliest date) in the first quarter of it, i.e., at the time when the Portuguese or Spaniards made their appearance in the Sea of Celebes.

"If the view most favourable to the American arguments is adopted - with every reservation as to the soundness of such view - that is to say, if we consider as positive law at the period in question the rule that discovery as such, i.e. the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an 'inchoate title', a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e. the moment of conclusion and coming into force of the Treaty of Paris."

The arbitrator then went on to deal with what he described as "so-called intertemporal law":

"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. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of states members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is, offer certain guarantees to other States and their nationals. It seems therefore incompatible with this rule of positive law that there should be regions which are neither under the effective sovereignty of a State, nor without a master, but which are reserved for the exclusive influence of one State, in virtue solely of a title of acquisition which is no longer recognized by existing law,Page 37 even if such a title ever conferred territorial sovereignty. For these reasons, discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment properly speaking of sovereignty by one State in order that the sovereignty of another may take its place does not arise.

"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. This principle must be applied in the present case, for the reasons given above in regard to the rules determining which of successive legal systems is to be applied (the so-called intertemporal law). Now, no act of occupation nor, except as to a recent period, any exercise of sovereignty at Palmas by Spain has been alleged. But even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State. This point will be considered, when the Netherlands argument has been examined and the allegations of either Party as to the display of their authority can be compared."

Another example can be seen in the Western Sahara case, mentioned later in this chapter, where the ICJ considered the law relating to terra nullius in the period beginning 1884.

Critical dates

A specific date may be relevant in a territorial dispute. For example, the 1898 date of the treaty of cession was relevant to the United States' claim in the Island of Palmas case.

The concept of critical dates is especially important in relation to the doctrine of uti posseditis, under which a new State retains the earlier colonial boundaries following independence. The date of independence may therefore be of particular significance in a territorial dispute.

3) Direct Methods of Acquisition of Title - Roots of Title

This section looks at the direct methods of acquisition of title.

i) Treaties

One of the direct methods of proving title is by reliance on the provisions of a treaty. In the Island of Palmas case the United States relied on a treaty of December 1898 under which Spain transferred the Philippines to the United States. The report of the Award of Max Huber dealing with the US claim states:

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"The United States, as successor to the rights of Spain over the Philippines, bases its title in the first place on discovery. The existence of sovereignty thus acquired is, in the American view, confirmed not merely by the most reliable cartographers and authors, but also by treaty, in particular by the Treaty of Munster, of 1648, to which Spain and the Netherlands are themselves Contracting Parties. As, according to the same argument, nothing has occurred of a nature, in international law, to cause the acquired title to disappear, this latter title was intact at the moment when, by the Treaty of December 10th, 1898, Spain ceded the Philippines to the United States. In these circumstances, it is, in the American view, unnecessary to establish facts showing the actual display of sovereignty precisely over the Island of Palmas (or Miangas). The United States Government finally maintains that Palmas (or Miangas) forms a geographical part of the Philippine group and in virtue of the principle of contiguity belongs to the Power having the sovereignty over the Philippines."

Another case involving a territorial claim based on a treaty that came before the International Court of Justice (ICJ) involved a frontier dispute. The subject of the dispute related to the sovereignty over a region in which a temple was situated. The treaty in...

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