LAW 1508 Lecture Notes - Lecture 4: Clipperton Island, Uti Possidetis, Terra Nullius
23 May 2018
School
Department
Course
Professor
Soveeigty & Teitoy; Statehood, Self Deteiatio &
Legal Pesoality
Sovereignty and Territory
Island of Palmas (Netherlands v USA)
Territory requires sovereignty
Sovereignty means independence (and control)
Sovereignty also means responsibilities
• Obligation to the world to protect foreign citizens; search and rescue (no
benefit to state- just hat good outies do.)
Corfu Channel (United Kingdom v Albania)
Must respect territorial sovereignty. Essential foundation of international
relations
Practical benefits (rights to all land and water- mining, strategic geographical
benefits, territorial sea, exclusive economic zone); air space; but not outer
space.
Acuisitio of title to teitoy
5 Ways (all require exercises of authority which are peaceful)
1. Discovery + occupation
STEP 1: Requirement that the territory is Terra Nullius to begin
Earlier applied notwithstanding Indigenous occupation (Australia, late 18th C)
Later versions did not (Western Sahara (Advisory Opinion)
STEP 2: Discovery confers an inchoate title (imperfect) Requires effective
occupation within a reasonable time to complete
STEP 2.1: Effective occupation itetio ad ill to at as soeeig atual
eeise o displa of authoit
effective depends on the habitability and location of the territory in
question Legal Status of Eastern Greenland
intentional display of power and authority. exercise of jurisdiction or State
functions. continuous and peaceful basis. FLAG. Eritria/yemen
i. depends on nature of the territory and the size of its population,
if a.
STEP 2.2: Time
Cannot discover then come back 500 years later.
40 years is reasonable: Clipperton Island Case (dispute between Mexico and
France- isolated and reef island- France had possession recognised by other
states- no evidence of actual occupation)
2. Prescription taking ownership of territory which was previously discovered
by another State, but the title not completed.
STEP 1: peiousl disoeed … i …. State … a lai… if following elements
are satisfied.
STEP 1.1: Adverse possession + acquiescence
• Adverse possession: (state … owns it but hast done anything with it for
years, whereas state B has displayed authority by:
o intention and will to act as sovereign (flag) (Eastern Greenland)
o AND has in fact actually exercised (laws/ state functions)
▪ but depends on nature of T and size of P. Continual and
peaceful basis (Eritria/yemen)
• Acquiescence: (discovering state doest do a lot to stop ou)
STEP 2: Two competing claims requires the deteriatio of the etter lai
STEP 2.1: Critical date (Date when dispute crystalised, evidentiary point,
demonstrations of authority after this do not count as effectivites)
Reason: Excludes self-serving conduct: Often takes date of treaty of
purported cession
STEP 2.3: Identify Effectivités – demonstrations of authority
It is enough to MAKE legislation- ENFORCING it is even better
legislatio is one of the most obvious forms of the exercise of sovereign
poe Legal Status of Eastern Greenland (PCIJ, 1933)
• Denmark: made laws/ had international recognition of its claim in treaties
• Norway: ancient claims not as strong
find more resources at oneclass.com
find more resources at oneclass.com
Jobs with no benefit, ut that ae soethig hih good outries do as a
matter of responsibility over their territory are strong displays of sovereignty.
(EG: inquests/ search and rescue) Minquiers and Ecrehos (France v United
Kingdom) [1953]
• (UK v France, both had beacons near island. UK beacons showed how to
get to island. French showed how to avoid island) (Uk enforced L, F
visited)
Sufficient to erect and maintain a structure built by another state Breda
Branca (Singapore v Malaysia)
• Singapore (successor in title to UK) maintained UK lighthouse on island-
Singapore won claim of prescription
Plant flag
Maps are of limited use (island of palmas)
Context: manifestations of sov differ depending on time and place
Does not always need to be exercised, just:
• Cotiuous ad peaeful display of atual power
• Over a small and distant island, inhabited only by natives, cannot be
epeted to e feuet Island of Palmas (Pulau Miangas)
Netherlands (later Indonesia) vs USA (previously Spain, later
Philippines) (US thought it got the island from Spain in Treaty of Paris
1898 (effective 1899) 1906 US Governor visits, discovers Netherlands
flag flying
Island is DUTCH.
3. Cession Give it away- Transfer of title by treaty: Requires a prior good title
4. Accretion New geological formations (deltas, rivers)
5. Conquest
No longer permitted- inter-temporal rule makes it relevant
• Kellogg-Briand Pact (Pact of Paris, 1928)
• UN Charter art 2(4)
All Mees shall efai i thei iteatioal elatios fo the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Puposes of the Uited Natios.
Miscellaeous teitoy ules
Maps
Only limited uses permitted- Island of Palmas
More relevant if produced by 3rd party- (UN) (avoids bias)
Contiguity
Political not a legal argument- the teito is losest to us so….
May be relevant in balancing claims
• o oe tha eidee R Y Jennings, The Acquisition of Territory in
International Law (1963)
Inter-Temporal Law
Validity of a claim to title depends on the law in force at the time the claim
was made (but maintenance of the title depends on the law as it evolves)
Uti possidetis juris
Maintaining territorial boundaries once colonies gained independence
Respect for territorial boundaries at the moment a colony achieves
independence or State separates (absent agreement to the contrary)
• Examples: Spanish America, Africa, former Yugoslavia
GOOD
• Rule of convenience
Convenient for those dividing up the world at peace conferences
Inconvenient for populations- groups forced to live together
• Prevents splintering
Flood gates, maintains stability, prevents chaos
BAD
• Capsuling two major groups into one geographical space
Bad for population
maybe be more peaceful to separate groups into new countries to
avoid (in the case of Rowanda- mass genocide)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Sovereignty also means responsibilities: obligation to the world to protect foreign citizens; search and rescue (no benefit to state- (cid:858)just (cid:449)hat good (cid:272)ou(cid:374)t(cid:396)ies do. (cid:859)) Practical benefits (rights to all land and water- mining, strategic geographical benefits, territorial sea, exclusive economic zone); air space; but not outer space. 5 ways (all require exercises of authority which are peaceful: discovery + occupation. Step 1: requirement that the territory is terra nullius to begin. Earlier applied notwithstanding indigenous occupation (australia, late 18th c) Later versions did not (western sahara (advisory opinion) Step 2: discovery confers an inchoate title (imperfect) requires effective occupation within a reasonable time to complete. Eritria/yemen: depends on nature of the territory and the size of its population, if a(cid:374)(cid:455). (cid:859) Cannot discover then come back 500 years later. 40 years is reasonable: clipperton island case (dispute between mexico and.
