Part 2 The objects of international law, Ch.5 State territory, Modes of Acquisition of State Territory
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Territory, acquisition and transfer — Sovereignty
Salomon, De l’Occupation des territoires sans maîtres (1889) Jèze, Etude théorique et pratique sur l’occupation comme mode d’acquérir les territoires en droit international (1896) Hertslet, Map of Africa by Treaty (3 vols, 3rd ed, 1909) Holdich, Political Frontiers and Boundary Making (1916) Lindley, The Acquisition and Government of Backward Territory in International Law (1926) Hill, Claims to Territory in International Law and Relations (1945) Fitzmaurice, BY, 32 (1955–6), pp 20–76; also The Law and Practice of the International Court of Justice (1986), pp 284–315 Schwarzenberger, AJ, 51 (1957), pp 308–24 Langer, Seizure of Territory (1947) Stone, Aggression and World Order (1958) and Legal Controls of International Conflict (1959) Krenz, International Enclaves and Rights of Passage (1961) Bastid, Hag R, 107 (1962), iii, pp 435–95 Higgins, The Development of International Law through the Political Organs of the United Nations (1963) Jennings, The Acquisition of Territory in International Law (1963) Pounds, Political Geography (1963) Blum, Historic Titles in International Law (1965) Parry, BDIL de Vischer, Les Effectivités du droit international public (1967), pp 101–17 Cervenka, The Organisation of African Unity and its Charter (1968) H Lauterpacht, International Law: Collected Papers (vol i, 1970), pp 367–82 Bokor-Szego, New States and International Law (1970) Verzijl, International Law in Historical Perspective (vol iii, 1970), pp 297–386 Munkman, BY, 46 (1972–73), pp 1–116 Gottmann, The Significance of Territory (1973) Stone, Conflict through Consensus (1977) Kaikobad, BY, 54 (1983), pp 119–41 Shaw, Title to Territory in Africa (1986).
The acquisition of territory, or perhaps one should rather say of territorial sovereignty, by an existing state and member of the international community should not be confused, first, with the foundation of a new state, or, secondly, with the acquisition by private individuals or corporations of rights in respect of territory or even of authority over it.1
(1) When a new state comes into existence, its title to its territory is not explicable in terms of the traditional ‘modes’ of acquisition of territory to be described below. The new state’s territorial entitlement is more to do with recognition;2 for, as soon as recognition is given, the new state’s territory is recognised as the territory of a subject of international law; although, questions of succession and of the legal history of the territory may also be involved where particular boundaries, or the precise extent of the territory, are doubtful or disputed.3
(2) There have been cases, in the past, in which a private individual or a corporation has acquired land (together with authority over it) in countries (p. 678) which were not then under the territorial supremacy of any state. Such acquisition of authority in respect of a territory was usually acquired either by occupation of hitherto uninhabited land, or by cession from a native tribe living on the land.4 Unless the corporation in question was invested by its state with the public power of acquisition and administration,5 the corporation’s acts could not serve to enable the state to acquire territorial sovereignty, unless accompanied by, or followed by, a certain measure of exercise of authority by the state itself. If the individual or corporation which made the acquisition required protection, he could either declare a new state to be in existence and hope for its recognition by the powers, as in the case of the former Congo Free State,6 or ask an existing state to acknowledge the acquisition as having been made on its behalf.
No unanimity exists with regard to the modes of acquiring territory on the part of the members of the international community. The topic owes its controversial character to the fact that the concept of state territory has undergone great change since the beginnings of international law. When Grotius laid the foundations of modern international law, state territory was still, as in the Middle Ages, more or less References(p. 679) identified with the private property of the monarch of the state. Grotius and his followers applied, therefore, the rules of Roman law concerning the acquisition of private property to the acquisition of territory by states. Nowadays, however, the acquisition of territory by a state normally means the acquisition of sovereignty over such territory. In these circumstances the Roman law scheme of ‘modes’ concerning the acquisition of private property are no longer wholly appropriate. It is still necessary, however to expound these ‘modes’ of acquisition because they are still relevant to explain titles that go back in history, as so many titles to territory do; and because the new law has developed out of the old, so that the old is necessary to an understanding of the new. It should be emphasised however that this treatment of the traditional modes needs to be qualified by what is said below about Consolidation of historic titles, critical date and self-determination (§§ 271–5).
Five1 modes of acquiring territory have traditionally been distinguished, namely: cession, occupation, accretion, subjugation, and prescription. These will be discussed in turn. These modes of acquiring territory may be divided according to whether the title they give is derived from the title of a prior owner-state or not. Cession is therefore a derivative mode of acquisition, whereas occupation, accretion, subjugation, and prescription are original modes.
1 As to the former position of the large colonising corporations, such as the British South Africa Company, see Lawrence, para 42; Lindley, pp 91–113; Smith, ii, pp 76–96. For two Law Officers’ opinions on the subject, see McNair, BY, 26 (1949), pp 41–4.
2 See § 38; also Starke, BY, 41 (1965–66), pp 411–16; and Andrews, LQR, 94 (1978), pp 408–27.
4 An important instance is the Territory of Waitangi 1840, between the British Crown and several aborigine chiefs of New Zealand. It is important today and not least in respect of claims to ownership of land by aboriginal groups; which suggests that the distinction between title to territory and title to land is not always clear-cut. On this whole matter see Professor Brownlie’s Robb Lectures at Auckland University in 1990.
5 This phrase is used by Judge Huber, describing the relationship between Holland and the Dutch East India Company, in the Island of Palmas arbitration between the US and Holland of 4 April 1928: AD, 4 (1927–28) No 70; RIAA, ii, p 829, where Judge Huber treated contracts made between the Ruler of Palmas and the Dutch East Indian Company as having established ‘exclusive rights of suzerainty’. See also McNair, Opinions, i, p 295, on British practice in relation to the British East India Company and the Royal Niger Company. See also McNair dissenting in the Anglo-Norwegian Fisheries Case, ICJ Rep (1951), p 184: ‘Another rule of law that appears to me to be relevant to the question of historic title is that some proof is usually required of the exercise of State jurisdiction, and that the independent activity of private individuals is of little value unless it can be shown that they have acted in pursuance of a licence or some other authority received from their Governments or that in some other way their Governments have asserted jurisdiction through them’. Ibid, p 157: ‘As far as the fishing activities of the coastal inhabitants are concerned, I need only point out that individuals, by undertaking enterprises on their own initiative, for their own benefit and without any delegation of authority by their Government cannot confer sovereignty on the State, and this despite the passage of time and the absence of molestation by the people of other countries’. See also Fitzmaurice, BY, 32 (1955–56), pp 55ff for irrelevance of acts not performed à titre de souverain.
6 The case of Sir James Brooke, who in 1841 acquired Sarawak, in North Borneo, and established an independent state there, of which he became the sovereign, may also be cited. Sarawak was a British protectorate till 1946 when, by voluntary — though somewhat disputed — cession it became a Crown colony. This case is discussed at some length by Lindley, pp 86–8; Keith, JCL, 3rd series, 8 (1926), p 306, and Lindley, ibid, 9 (1927), pp 138, 139. See also Smith, ii, pp 77–83; Verzijl, op cit, p 349. See also the Cocos Islands, ‘title’ to which was granted by Queen Victoria to the Clunies-Ross family in 1886. In 1955 the Cocos Islands were placed under the authority of Australia; and in 1978 Australia, prompted by the UN decolonisation committee, bought out the Clunies-Ross interests for £4m. See The Times (London), 3 July 1978.
1 On the question whether ‘adjudication’ ought to be regarded as a mode of acquisition see H Lauterpacht, Private Law Sources and Analogies of International Law, (1927), p 107, n 3, and Strupp, Eléments, p 155. It would seem, however, that adjudication can strictly only be an original mode of acquisition in the rare case where the court has been specifically given a power of allocation. See Verzijl, International Law in Historical Perspective (vol iii, 1970), p 378. On the adjudication by Pope Alexander VI concerning the West Indies between Spain and Portugal, see Staedler, ZI, 50 (1935), pp 315–34.