Acquisition of State Territory

Why it matters. It is the leading authority on occupation, on the insufficiency of discovery, and on intertemporal law, and its central test decides territorial disputes to this day.

How much authority is enough? Less in a remote and uninhabited place than in a populated one, and the case below is where that is settled.

Facts. Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series A/B, No. 53, judgment of 5 April 1933. On 10 July 1931 Norway proclaimed the occupation of a part of eastern Greenland which it called Eirik Raudes Land. Denmark asked the Court to declare the proclamation unlawful and invalid, relying not on any particular act of occupation but on a peaceful and continuous display of State authority going back to the founding of the colonies by Hans Egede in 1721. Norway argued that in the older Danish legislation the word Greenland meant only the colonised area on the west coast. Denmark also relied on a statement of 22 July 1919 by M. Ihlen, the Norwegian Foreign Minister, that Norway would not make difficulties about the Danish claim.

Held. The Norwegian proclamation was unlawful and invalid. A claim to sovereignty based upon continued display of authority involves two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of that authority. Legislation is one of the most obvious forms of the exercise of sovereign power, and Norway had not discharged the burden of showing that the Danish measures were confined to the colonies. Bearing in mind the absence of any competing claim by another Power, and the arctic and inaccessible character of the uncolonised parts, the King of Denmark and Norway had displayed authority to an extent sufficient to give a valid claim over the whole of Greenland. Norway was in addition bound by the Ihlen declaration and by engagements implying recognition of Danish sovereignty.

Why it matters. It states the two elements of a title founded on display of authority; it establishes that how much display is needed depends on the character of the territory and on whether anyone else is claiming it; and it is the leading authority for the binding force of a unilateral declaration by a foreign minister, which is one of the things article 38 of the ICJ Statute omits, as [The Sources of International Law] notes.

Terra nullius is now almost empty as a category. There is very little unclaimed land left, and the doctrine's historical use, to treat inhabited lands as legally empty because their inhabitants were not organised as a European State, is one of the passages of this subject's history dealt with in [What International Law Is, and Where It Came From].

Prescription

The acquisition of territory that belonged to another State, by exercising sovereignty over it publicly, peacefully and for a long time, with the acquiescence of the former sovereign.

The difference from occupation is the starting point: occupation begins with land belonging to nobody, prescription with land belonging to somebody else.

Four requirements are usually stated. Possession must be exercised as sovereign, not by permission or by treaty. It must be peaceful, so protest by the other State defeats it. It must be public, so the other State has the chance to object. And it must be prolonged, with no fixed period, since what is long enough depends on the circumstances.

The role of protest is the practical point. A State that protests, and keeps protesting, prevents the possession from being peaceful and so prevents prescription, which is why formal protests are made about situations everybody knows will not change.

Cession

The transfer of territory from one State to another by agreement, usually by treaty. Cession may be by sale, by exchange, by gift or as part of a peace settlement.

Two rules. The transferee takes no more than the transferor had, so a cession of territory subject to a servitude passes it subject to the servitude. And a cession obtained by the unlawful use or threat of force against the ceding State is void: article 52 of the Vienna Convention makes a treaty void if its conclusion has been procured by the threat or use of force in violation of the principles of the Charter, and that is [Validity of Treaties, and Jus Cogens].

Accretion

The addition of territory through natural processes: silt deposited by a river, an island formed in a river or the territorial sea, land raised by volcanic action, or land gained from the sea.

The addition belongs to the State whose territory it accrues to, and no act of appropriation is needed. Where a boundary river changes course, the distinction between gradual accretion, which moves the boundary, and sudden avulsion, which does not, decides the outcome.

Artificial additions. Reclamation from the sea extends the land, but article 11 of the Convention on the Law of the Sea provides that off-shore installations and artificial islands are not to be considered permanent harbour works for the purpose of delimiting the territorial sea, and article 60(8) provides that artificial islands, installations and structures do not possess the status of islands and have no territorial sea of their own. So building does not extend maritime zones, and this is worked in [The Exclusive Economic Zone].

Conquest and subjugation, and why it is gone

The classical mode: territory taken by force in war, and annexed after the defeated State has been subjugated, the annexation being completed by a declaration and by effective possession.

It is no longer lawful, and three instruments say so.

Article 2(4) of the Charter: all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

Resolution 2625 (XXV): the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and no territorial acquisition resulting from the threat or use of force shall be recognised as legal.

The duty of non-recognition that follows from it, dealt with in [Recognition of States].

So conquest survives in the syllabus as a mode to be described and dated, not as a live route to title. The related earlier step was the Stimson doctrine of 1932 and the Kellogg-Briand Pact of 1928, and the whole prohibition is [The Use of Force and Collective Security].

Plebiscite and adjudication

Plebiscite is a vote of the inhabitants on which State they wish to belong to. It is not by itself a mode of acquisition, since a vote transfers nothing; it is a way of establishing the wishes of the population, which then supports a cession or a grant of independence. Its importance has grown with the principle of self-determination, which Resolution 2625 lists among its seven principles.

Adjudication, meaning the award of territory by a court or tribunal, is likewise not really a mode of acquisition: a tribunal declares which State already has title. Where the parties agree in advance to be bound by an award that allots territory, the transfer takes effect by their agreement, which makes it a form of cession.

A worked example

An uninhabited island, X, lies between State P and State Q. In 1780 explorers of State P sighted and charted it and did nothing more. From 1890 State Q licensed fishing there, collected dues, posted a lighthouse keeper and tried a theft committed on the island in its own courts. State P said nothing until 1975, when it protested and claimed the island by discovery. Oil is now suspected offshore.

Does State P's 1780 sighting give title? No. On Palmas, discovery alone, without any subsequent act, cannot suffice to prove sovereignty. At most it created an inchoate title.

What must an inchoate title do? Be completed within a reasonable period by effective occupation. A hundred and ten years of nothing is not that.

What does State Q have? The continuous and peaceful display of the functions of a State: licensing, revenue, a permanent presence, and the exercise of criminal jurisdiction. That is the strongest evidence there is, and Palmas says such display is as good as a title.

Does State P's protest in 1975 help? It came too late. Protest defeats a claim while the possession is being built; it does not undo eighty-five years of unopposed authority.

How does intertemporal law bear on it? A juridical fact is judged by the law of its own time, so State P's 1780 discovery is judged by the law of 1780, when discovery counted for more. But the continued existence of the right must satisfy the conditions the law has since developed, and by the twentieth century that meant effective occupation.

Change one fact: suppose State Q took the island in 1950 by landing troops and expelling State P's officials. Then prescription fails, because possession was not peaceful; conquest fails, because article 2(4) and Resolution 2625 make acquisition by force unlawful and unrecognisable; and State P's title would survive its dispossession.

Distinctions table

What it does NOT mean

Discovery is not title. It is at most an inchoate title, to be completed within a reasonable period.

Effective occupation does not mean settlement. In remote and barren regions a modest display of authority suffices, which is what Eastern Greenland shows: the Permanent Court there weighed the arctic and inaccessible character of the region and the absence of any rival claim.

Conquest is not a mode of acquisition today. Describing it as one without dating its abolition is the commonest error in this topic.

Artificial islands do not enlarge territory or maritime zones. Article 60(8) says they do not have the status of islands and have no territorial sea of their own.

A plebiscite does not itself transfer territory. It establishes the wishes of the inhabitants, which then supports a cession or independence.

Limits and criticism

The classification adds little. Tribunals decide territorial disputes by weighing the evidence of State activity, and the classical modes function as labels applied afterwards. Palmas is cited far more often than any classification.

Effectiveness rewards possession. A doctrine under which continuous and peaceful display is as good as a title tends to confirm the State that got there and stayed, which was frequently the colonising State, and the intertemporal rule protects titles acquired under a law now repudiated.

The abolition of conquest did not undo earlier conquests. Article 2(4) operates from 1945 and the intertemporal rule judges older acquisitions by older law, so the modern prohibition leaves most historical maps intact. That is a compromise, and it is defended on the ground that reopening every pre-Charter title would produce more conflict than it resolved.

Quick revision

Five classical modes: occupation, prescription, cession, accretion, conquest. Plus plebiscite and adjudication, neither of which transfers territory by itself.

Occupation: of terra nullius, needing intention plus effective exercise of authority. Island of Palmas, (1928) 2 RIAA 829: the continuous and peaceful display of territorial sovereignty is as good as a title; discovery alone cannot suffice; an inchoate title must be completed within a reasonable period; intertemporal law.

Prescription: of another State's territory, by possession as sovereign, peaceful, public and prolonged. Protest defeats it.

Cession: by agreement. The transferee takes no more than the transferor had, and a cession procured by force is void under article 52 VCLT.

Accretion: by natural processes. Gradual accretion moves a river boundary; sudden avulsion does not. UNCLOS article 60(8): artificial islands have no status as islands and no territorial sea.

Conquest is abolished: article 2(4) of the Charter and Resolution 2625, no territorial acquisition resulting from the threat or use of force shall be recognised as legal.

Test yourself

1. Distinguish occupation from prescription.

Occupation applies to terra nullius, territory belonging to no State, and requires the intention to act as sovereign together with the actual exercise of authority. Prescription applies to territory belonging to another State, and requires possession exercised as sovereign, peaceful, public and prolonged, with the acquiescence of the former sovereign. The practical difference is protest: in prescription a maintained protest by the dispossessed State prevents the possession from being peaceful and defeats the claim, whereas in occupation there is by definition no other State to protest.

2. State the facts and holding of the Island of Palmas case.

The Island of Palmas lay between the Philippines and the Netherlands East Indies. The United States claimed it as successor to Spain under the Treaty of Paris 1898, Spain's title resting on sixteenth-century discovery; the Netherlands claimed on a long and continuous exercise of authority through the island's local rulers. Max Huber, as sole arbitrator, awarded it to the Netherlands. He held that the continuous and peaceful display of territorial sovereignty is as good as a title and is a constituent element of it, effectiveness being required for maintenance as well as acquisition; that discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty; that an inchoate title of discovery must be completed within a reasonable period by effective occupation and cannot prevail over another State's continuous display; and that by intertemporal law a juridical fact is judged by the law of its own time while the continued existence of a right must satisfy the law as it develops.

3. Is conquest still a mode of acquiring territory?

No. Article 2(4) of the Charter requires all Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, and Resolution 2625 (XXV) provides both that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force and that no territorial acquisition so resulting shall be recognised as legal. The duty of non-recognition follows. Its ancestors are the Kellogg-Briand Pact 1928 and the Stimson doctrine of 1932.

4. Explain intertemporal law and give the criticism of it.

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 the dispute arises; but the continued existence of the right must satisfy the conditions required by the evolution of the law. So a title acquired in 1700 is tested by the law of 1700, while its survival is tested by the law as it has developed. The criticism is that the first limb preserves titles acquired under rules that have since been repudiated, including colonial titles, and that the second limb is applied gently enough that it rarely disturbs them.

5. Does building an artificial island extend a State's territory?

It adds structures but not maritime entitlement. Article 60(8) of the Convention on the Law of the Sea provides that artificial islands, installations and structures do not possess the status of islands, have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Article 11 similarly excludes off-shore installations and artificial islands from being treated as permanent harbour works. Reclamation attached to the coast is different, since it becomes part of the land, but building a structure on a submerged feature generates nothing.

6. Why do modern tribunals rarely decide a territorial dispute by naming a mode of acquisition?

Because the modes are borrowed from Roman property law and overlap in practice, and because the evidence in a real dispute is almost always a long record of activity by both States rather than a single acquisitive act. What tribunals actually do is weigh which State has exercised the functions of a State more continuously and more peacefully, which is the Palmas test, and consider protest, acquiescence and the conduct of the parties. The classical list remains the right answer to a question that asks for it, and it should be given with the observation that the Palmas test is what decides cases.