Marcelo G Kohen
- Sovereignty — Territory, acquisition and transfer — Territory, title — States, formation, continuity, extinction
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 In general, abandonment is understood as a way of relinquishing territorial sovereignty in situations where the holder no longer wishes to maintain sovereignty. It is also known by the Latin term derelictio. Traditionally, this notion was understood as the mode of losing territory that corresponded to territorial occupation as a mode of territorial acquisition. The consequence of abandonment is either that the territory becomes res nullius once again, or that it falls under another State’s sovereignty. However, the notion of abandonment covers more than just the relinquishment of one’s own territorial sovereignty. A State having possession of territory on grounds other than À titre de souverain, such as a mandate, a trust, a non-self-governing territory, a military occupation, or on the basis of another kind of territorial administration, can also abandon either its possession, or the legal basis for such possession. The abandonment of the administration of territories under international statutes, such as mandates, trusteeships, or non-self-governing territories, does not render the territory res nullius. The international status of the territory continues until a decision about its future is taken by the competent body charged with its supervision.
2 A further type of abandonment that may be distinguished is that of a ‘claim’ to territory. A claim can be abandoned, irrespective of whether it is well-founded or not. The subsequent abandonment of a competing claim with regard to a given territory is a way of ending a territorial dispute. Furthermore, if the competing claimant is in possession of the disputed territory, this kind of abandonment tacitly implies recognition of the other claimant’s sovereignty.
3 The material possession (corpus) of a territory may be abandoned, without the State in question necessarily abandoning its territorial sovereignty. Similar to occupation—a method of acquiring territorial sovereignty that requires two elements, namely corpus and animus—abandonment as a method of losing territorial sovereignty also requires the presence of the subjective element, that is, the intention to abandon the sovereignty (animus derelinquendi). Without this subjective element, a State will continue to retain territorial sovereignty despite abandoning material possession of a given territory.
4 Territory can be abandoned in a formal way, ie through a unilateral declaration, or as the result of a purely factual situation, such as when the holder of title ceases to act as sovereign or administrator of the territory. Situations of acquiescence or estoppel were particularly relevant in the Eastern Greenland Case (the 1919 Ihlen Declaration) and the Temple of Preah Vihear Case (Annex I Map). In the Malaysia/Singapore Case, the International Court of Justice (ICJ) found that Johor lost its sovereignty over Pedra Branca/Pulau Batu Puteh through its conduct, which could be considered as abandonment, tacit agreement, or acquiescence (Sovereignty over Pedra Branca/Pulau Batu Puteh Case, Middle Rocks and South Ledge [Malaysia/Singapore]). The ICJ, however, remained silent as to which of these particular legal situations was at issue in that case. Occasionally, abandonment appears as the formal recognition that another State is the holder of sovereignty over a territory that was previously under the sovereignty of the abandoning State, or claimed as being under its sovereignty. This was the case in relation to the Treaty between India and Portugal of 31 December 1974 with regard to the Portuguese enclaves in India, namely Goa, Daman, Diu, Dadra, and Nagar Haveli. Situations of abandonment through acquiescence can be found when the holder of sovereignty over a given territory does not react when another State, claiming its own sovereignty, performs sovereign acts. In most cases, abandonment—either of territorial sovereignty or a claim to it—occurs when a territorial dispute is settled outside of an adjudicative process. Although rare, abandonment can also occur during proceedings, as was the case for Ethiopia with regard to Tserona and Fort Cardorna in the Eritrea–Ethiopia boundary dispute case.
5 Abandonment is a unilateral act, although it may be referred to in the form of a declaration in a bilateral or multilateral agreement. Abandonment can be effected with or without the agreement of the beneficiary State or entity in whose favour the abandonment is made. Abandonment can only be distinguished from cession if it is presented in the form of an abandonment of a claim, and not as a transfer of title. The Peace Treaty with Japan (1951) offers examples of abandonment without designation of an actual or potential beneficiary, such as Formosa, Pescadores, Sakhalin, Kuril Islands, Paracel Archipelago, and Spratly Islands.
6 There is a presumption against abandonment of title over territory. The intention to abandon must be clearly manifested without any doubt and proven, see, eg the Lighthouses in Crete and Samos Case; Clipperton Island Arbitration; Delagoa Bay Arbitration; Sovereignty over Certain Frontier Land Case (Belgium/Netherlands); and Sovereignty over Pedra Branca/Pulau Batu Puteh Case, Middle Rocks and South Ledge (Malaysia/Singapore). In the Clipperton Island Arbitration, the fact that the French did not perform any concrete act of sovereignty over the island was not considered to be abandonment. On the contrary, the fact that France, as soon as it knew of the Mexican claim, reacted immediately by asserting its sovereignty was considered to be a clear manifestation of its lack of intention to abandon the island.
B. Historical Background
7 Cases of abandonment can essentially be found during the period of expansion of the sovereignty of the European Powers throughout the world, particularly during the period when discovery was considered as a title or at least an inchoate title, or where the mere taking of possession of territory led to a claim of sovereignty (Territory, Discovery). At that time, lack of a further exercise of sovereignty could be interpreted as abandonment, particularly when another State performed sovereign acts. Abandonment was also frequently confirmed in peace treaties that put an end to states of war and in which territorial modifications were made.
8 Mere relinquishment of the exercise of State functions or transfer of the sole administration of a given territory cannot be considered as abandonment of sovereignty. This was the case for some territories, such as Bosnia and Herzegovina and Cyprus, that were detached from the administration of the Ottoman Empire at various times, but which were not placed under the sovereignty of the new administrator until a further agreement led to the transfer of sovereignty (see also the Lighthouses in Crete and Samos Case).
C. Special Cases
9 The Palmas Island Arbitration is often erroneously presented as an example of abandonment. In the opinion of Arbitrator Max Huber, Spain had never acquired sovereignty over Palmas, and consequently he considered it unnecessary to examine whether Spain had abandoned its purported right. A classical example of abandonment mentioned in literature is that of Santa Lucia. England occupied this Caribbean island in 1639, but its settlers were massacred by the natives one year later. In turn, France took possession of Santa Lucia in 1650, considering it to be terra nullius. England did not accept this until 1763, when it resigned its claim in the Peace Treaty of Paris.
10 The long-standing controversy over the Falkland Islands/Islas Malvinas also offers examples of opposing claims where one side considers the other to have abandoned the territory. According to Spain, the United Kingdom (‘UK’) abandoned its claim when it left Saunders Island in 1774. According to the UK, Spain abandoned the territory in 1811 and later Argentina abandoned its claim to the territory after it had ceased to protest against the 1833 British occupation of the islands for some decades. Both cases of purported abandonment are contested by the other side.
11 Abandonment of claims to sovereignty occurs frequently, however, in recent or even present times. In 1928, the UK’s formal abandonment of its claim over Bouvet Island took the form of a statement made before the Commons by the Under-Secretary of the Foreign Office. In 1979, the United States of America abandoned its claims of territorial sovereignty over certain islands in its treaties with Tuvalu and with Kiribati.
12 One particular example of abandonment of a claim can be found in the Beagle Channel dispute between Argentina and Chile. In 1977 an arbitral award decided that Lennox, Picton, and Nueva Islands were under Chilean sovereignty. Argentina declared this decision to be null and void, something rejected by both the arbitral tribunal and by Chile. Mediation by Pope John Paul II led to the conclusion of the Treaty of Peace and Friendship between Argentina and Chile in 1984. This treaty determines the maritime boundary between the two countries ‘from the existing boundary line within the Beagle channel’, which is tantamount to recognition by Argentina of the validity of the arbitral award in 1977 and consequently its abandonment of any claim with regard to the islands in dispute.
13 The case of the former German territories situated east of the Oder-Neisse line offers an example of a complex set of bilateral treaties, unilateral acts, and a multilateral treaty leading to the abandonment of sovereignty and the engagement not to make any claim in the future. The process began with the so-called ‘Ostpolitik’ treaties, concluded during the 1970s between the German Federal Republic (‘GFR’), the USSR and Poland, and continued during the process of unification of Germany through unilateral declarations of the GFR Bundestag and the Volkskammer of the German Democratic Republic of 21 June 1990. A confirmation of the definitive nature of the existing borders and a renunciation of any territorial claim were formally included in the Treaty on the Final Settlement with respect to Germany of 12 September 1990 and finally in the Treaty of Confirmation of the Boundary between Germany and Poland of 14 November 1990. Determination of the exact moment in time when Germany lost its sovereignty and Poland consequently acquired it is a complex issue.
14 An example of acquiescence that can be equated with abandonment of claim is that of the zone of Tepangüisir, disputed between El Salvador and Honduras. For the Chamber of the ICJ, Honduras’s conduct amounted to recognition of a boundary line that implied the abandonment of any possible claim that Tepangüisir was part of Honduras’s territory (Land, Island and Maritime Frontier Dispute Case [El Salvador/Honduras: Nicaragua Intervening]).
15 Examples of cases of abandonment of the administration of territories with special status include the case of Great Britain with regard to the mandate of Palestine in 1948, and Spain with regard to the non-self-governing territory of Western Sahara in 1975. A different case was that of Portugal with regard to East Timor. In 1975, and as a consequence of the Indonesian invasion, Portugal lost possession of East Timor but did not abandon its status as administrative power of that non-self-governing territory. Indeed, Portugal maintained its claim as the administrative power, in spite of the fact that it was not in possession of the territory, until an arrangement was reached leading to a referendum and the temporary administration of the territory by the United Nations prior to East Timor’s independence.
- R Kahn ‘Relinquishment of Title to Territory: The Rann of Kutch Award: A Case Study’ (1969) 9 IJIL 157– 76.
- JC Flores and others, ‘The Legal Implications of the Unilateral Dropping of the Sabah Claim’ (1982) 57 PhilipLJ 78–103.
- G Marston ‘Abandonment of Territorial Claims: The Cases of Bouvet and Spratly Islands’ (1986) LVII BYIL 337–56.
- E Lauterpacht ‘Whatever Happened to the Beagle Channel Award?’, in M Virally, Le droit international au service de la paix, de la justice et du développement: mélanges Michel Virally (Pedone Paris 1991) 359–71.
- Clipperton Island Case (Mexico v France) (1928) 2 RIAA 1105.
- Delagoa Bay Arbitration (Great Britain v Portugal) (1954) 3 Recueil des arbitrages internationaux 596.
- Eastern Greenland Case (Denmark v Norway) PCIJ Series A/B No 53.
- Eritrea-Ethiopia Boundary Commission, ‘Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia’ (13 April 2002) (2002) 41 ILM 1057.
- Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (Judgment)  ICJ Rep 351.
- Lighthouses in Crete and Samos (France v Greece) (Judgment) PCIJ Series A/B No 71.
- Palmas Island Arbitration (Netherlands v United States of America) (1928) 2 RIAA 829.
- Peace Treaty with Japan (with Two Declarations) (signed 8 September 1951, entered into force 28 April 1952) 136 UNTS 45.
- Sovereignty over Certain Frontier Land (Belgium/Netherlands) (Judgment)  ICJ Rep 209.
- Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Judgment)  ICJ Rep 12.
- Treaty on the Final Settlement with respect to Germany (signed 12 September 1990, entered into force 15 March 1991) 1696 UNTS 115.
- Treaty of Friendship between the United States of America and the Republic of Kiribati (with Agreed Minute) (signed 20 September 1979, entered into force 23 September 1983) 1643 UNTS 239.
- Treaty of Peace and Friendship between Argentina and Chile (signed 29 November 1984) (1985) 24 ILM 11.
- Treaty of Peace and Friendship between Great Britain, Spain, and Portugal (signed 10 February 1763) (Paris Peace Treaty).
- Treaty of Recognition of India’s Sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli and Related Matters (with Exchange of Letters dated 14 March 1975, constituting an Understanding in respect of Article 5 of the Treaty) (India-Portugal) (signed 31 December 1974, entered into force 3 June 1975) 982 UNTS 153.