Professional Documents
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a) Centrality of title
The basic unit of the international legal system is the state- the space in which the
state occupies
Effectivits- actual administration
The basic principle in modern law stated by the chamber in Frontier dispute (Burkina
faso v Mali):
the effectivits can play an important role in showing how the title is
interpreted in practice ( cases where the legal title does not show exactly the
territorial expanse to which it relates )
The title prevails over possession however if the title is equivocal, possession under
a claim of right matters
Unquestioned title arises from history, general recognition and the absence of
another claimant.
Title may be relevant in different contexts
1) Principle of nemo dat quod non habet ( you cannot pass on more than you
possess) places a restrictive effect on titles dependant on bilateral agreement
Huber in Island of Palmas case:
The title alleged by the USA as constituting the immediate foundation of its claim is
that of cession, brought about by the Treaty of Paris, which cession transferred all
rights of sovereignty which Spain may have possessed in the region it may have
been evident that Spain could not transfer more rights than she herself possessed.
Effect of the principle is much reduced by the operation of acquiescence and
recognition
2) A judicial decision on issues of title cannot foreclose the rights of third parties
3) The compromis on the basis of which a dispute is submitted to a court or
tribunal may assume that title is to go to one of the two claimants, In
Minquiers and Ecrehos the Court interpreted the compromis as excluding a
finding that the islets were res nullius or subject to condominium. In such a
case, the absence of any other claimants, the result seems to be a title valid
against all, but the parties have not had to come up to any minimum
requirements of effective control.
The second point regarding the critical date, which relates to the first, is that any actions taken by an occupying
country while a dispute is ongoing--and which are protested by another country--cannot be used to back up a
territorial claim.34 This is because such actions, under the said circumstances, do not constitute a "peaceful and
continuous display of State authority."35 The notion of "protest" becomes a factor in such situations, since the
absence of a protest when a country is placed at a disadvantage is construed, in international relations, as
indicating acquiescence. Protests are usually made to undermine the legitimacy of actions taken by an
occupying country.36
The third point is that protests have no legal meaning, though, if the occupying country is only reinforcing its
original title to a territory through effective occupation.37 Original title here does not necessarily refer to rights
that go back to time immemorial but only to title that was first acquired legitimately. As the title to territory is
already established in this case, protests from another country are not opposable to the occupying country.
c) TERRA NULLIUS
land that is not under sovereignty or authority of any state: occupation
was the mode by which such territory could be acquired (DID FRANCE
DEMONSTRATE EFFECTIVE OCCUPATION). The principle in the modern context
has fallen into disuse.- no true vacant territory remains
In the case of Western Sahara the Court had to decide whether the Western
Sahara was terra nullius at the time of Spanish colonization (1890). It was
held that it was not because of the people of the territory were socially and
politically organised under chiefs with a capacity to represent them. ICJ noted
that: so long as a territory is inhabited by tribes or peoples have a social or
political organization, simply occupying the territory is insufficient for a state
to successfully assert sovereignty over that territory.
MODES OF ACQUISITION
Question relates to additional territory acquired by a state under PIL: title to
territory
Principles of PIL on this matter mainly determined by case lawStart: def. of Territorial sovereignty in the Island of Palmas case
Sovereignty in the relations between states signifies independence.
Independence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other state, the functions of the state.
Huber J
The different methods for acquiring terri. in PIL: occupation, conquest, cession
(chain of title transfer of title/succession), prescription. If competing claims, courts
will balance up the different claims (Eritrea v Yemen) In determining title a tribunal
will concern itself with proof of the exercise of sovereignty via titre de souverain
before the critical date(s).
It is clear from the Island of Palmas case that the effective display of state authority
within a territory is to be regarded as the primary means for the acquisition of
territory:
EFFECTIVE OCCUPATION
For the title acquired through occupation to be final and valid under
International Law, the presence and control of a State over the
concerned territory must be effective. In Eastern Greenland case the
PCIJ said a claim to sovereignty based upon some particular act or
title such as a treaty of cession but merely upon continued display of
authority involve to 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
Peaceful Display
The exercise of state power over territory must be peaceful in the sense that it is
not challenged by other states. this relates to terra nullius as seen in the
Clipperton Island Arbitration.which means that state functions must proceed in
uninterrupted fashion. In the case of Botswana v Namibia the two parties agreed
that acquisitive prescription was recognised in international law and further agreed
effective occupation France in respect of North American territory and Great Britain
in relation to North American territories both took further steps to establish effective
occupation of those areas as they themselves did not regard symbolic annexation
and discovery to be the only means of proving title to territory.
So both concepts do not produce more than just inchoate title
CESSION AND TREATY
A right to territory may be conferred by territory provided that the transferee takes
in accordance with the treaty. The date on which title changes will normally be the
date on which the treaty comes into force .
The principle of nemo dat quod habet still applies to the transferee
-
Treaties between indigenious peoples and the state were a feature of the period of
colonization but are of limited relevance since the partition of the world into
independent states. During the era of the European Colonial expansion under which
an immense number of treaties were concluded with various African politiesearly
position of the treaties.
Although this was not classed as being cessions but none the less it gave a form of
derivative title distinguishing the act of acquisition from that of a mere occupation.
Huber J in Island of Palmas:
In substance it is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory on the basis of autonomy of the natives thus
suzerainty over the native states becomes the basis of territorial sovereignty as
towards other members of the community of nations.
In Western Sahara, the Court stated that in the period beginning in 1884,
agreements with local rulers, whether or not considered as an actual cession of
the territory, were regarded as derivative roots of title, and not original titles
obtained by occupation of terra nullius, ICJ in this case noted that territories
inhabited by tribes or peoples having social and political organisation
were not to be regarded as terra nullius
In Cameroon v Nigeria, the Court called upon to determine the legal effect of a
1884 Treaty between the UK and the Kings and Chiefs of Old Calabar an area in the
Niger Delta, and its consequent effect on the UKs capacity to deal later with the
territory. Nigeria considered the 1884 Treaty to have created an international
protectorate, which did not therefore result in the transfer of title to the UK; rather it
remained vested in Old Calabar as a sovereign entity. The court disagreed, noting
that
a) At the time, the UK did not regard Old Calabar as a state, a position
consistent with its activity in the rest of the region;
b) The region did not possess a central federal authority sufficient to create a
protectorate