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Consolidation as a Root of Title in International Law

Published online by Cambridge University Press:  16 January 2009

D. H. N. Johnson
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Extract

Although the rules of international law relating to the acquisition of title to territory have long been substantially clearer than most rules of international law, this clarity has to some extent been obscured by the efforts of writers to make them clearer still. The clarity of the rules is due to the circumstance that this branch of international law—unlike some branches—is one on which international tribunals have frequently been called upon to pronounce. It has, in fact, been elucidated to an unusual degree by a relatively small number of recent and authoritative judgments. The obscurity arises from the fact that the terms and classifications traditionally employed by the writers have not to any great extent been followed by the courts in modern times. No comprehensive attempt to overhaul the traditional doctrine on the subject in the light of the recent decisions seems so far to have been made.

Type
Research Article
Information
The Cambridge Law Journal , Volume 13 , Issue 2 , November 1955 , pp. 215 - 225
Copyright
Copyright © Cambridge Law Journal and Contributors 1955

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References

1 In particular, the Island of Palmas case decided by Huber, Judge in 1928Google Scholar (American Journal of International Law—referred to subsequently as A.J.I.L.—22 (1928), p. 867); the Clipperton Island case decided by the King of Italy in 1931 (A.J.I.L., 26 (1932), p. 390); the case of the Legal Status of Eastern Greenland decided by the Permanent Court of International Justice in 1933 (P.C.I.J. Series A/B No. 53); and the Anglo-Norwegian Fisheries and Minquiers and Ecrehos cases decided by the International Court of Justice (I.C.J. Reports 1951, p. 116, and I.C.J. Reports 1953, p. 47).

2 Elements of International Law (Dana's, ed., 1866Google Scholar, section 161).

3 A Treatise on International Law (8th ed., by Higgins, Pearce, 1924Google Scholar, section 31). The first edition of Hall's treatise was published in 1880.

4 In another passage, where he refers to “Cessions of territory, whether by way of sale or exchange, and gifts …” so does Hall himself (op. cit., section 35).

5 The Principles of International Law (4th ed., 1910, sections 74 to 78). The first edition of this work was published in 1895.

6 Le droit international public positif, vol. I (1920), pp. 339–73.

7 Traité de droit international public, vol. I, part II (8th ed., by Bonfils, , 1925Google Scholar), sections 532–7.

8 Digest of International Law, vol. I (1940), sections 59–63.

9 The Law of Nations (3rd ed., 1942), pp. 120–6.

10 A Manual of International Law (3rd ed., 1952), pp. 52–5.

11 International Law, vol. I (7th ed., by Lauterpacht, , 1948), pp. 495–528.Google Scholar The reason for substituting “subjugation” for “conquest” is, apparently, the desire to emphasise that “conquest” alone—i.e., “the taking possession of enemy territory through military force in time of war”—is not sufficient to convey title from one State to another, but requires to be followed either by a cession or by a formal act of annexation. “Annexation,” according to Oppenheim, “turns the conquest into subjugation,” and thus “it is conquest followed by subjugation, and not conquest alone, which gives a title, and is a mode of acquiring territory” (op. cit., pp. 518–9). It is somewhat controversial whether a cession or a formal act of annexation is always necessary, or whether in certain cases, notably the total disappearance of the enemy State, annexation may be implied. There would not. however, appear to be sufficient reason for departing from the normal term “conquest,” especially as the Permanent Court of International Justice has thrown some light upon this particular method of acquiring title. (See the case of the Legal Status of Eastern Greenland, Series A/B No. 53, p. 47.)

12 Thus Hall, Lawrence, Hackworth, Brierly and Oppenheim use the term “accretion.” Schwarzenberger uses the term “accession.” De Louter and Fauchille, writing in French, also use the term “accession.”

13 See, for instance, Beckett, Sir Eric in Recueil des Cours, vol. IV (1934), pp. 218–55.Google Scholar Sir Eric here concluded that the Permanent Court of International Justice awarded Eastern Greenland to Denmark rather than to Norway on the basis of occupation, but that in the Island of Palmas case Judge Huber awarded the island to the Netherlands rather than to the United States on the basis of prescription. Not all, however, would accept this conclusion as entirely valid. In the recent Minquiers and Ecrehos case the International Court of Justice did not specify precisely under which of the normal heads, if any, it awarded the islets to the United Kingdom rather than to France.

14 Lawrence regards occupation and accretion as original methods, and cession. conquest and prescription as derivative methods (op. cit., section 74). Oppenheim regards accretion, occupation, subjugation and prescription as original methods, and cession as a derivative method (op. cit., p. 498). Schwarzenberger regards occupation, accretion and prescription as original methods, cession as a derivative method, and conquest as a hybrid method (op. cit., pp. 52–3.)

15 Op. cit., p. 340.

16 2nd ed. (1910), p. 90.

17 Ibid., p. 91.

18 Ibid., p. 94. The expression “acquisitive prescription” is frequently used in this context in order to distinguish between prescription as a method of acquiring title to territory and “extinctive prescription,” i.e., the principle that, if State A has an international claim against State B, such claim will be extinguished if State A does not take reasonable steps within a reasonable time, first, to notify the claim to State B, and, secondly, to prosecute the claim by whatever means are available.

19 See the list of authors cited in Verykios, P. A., La prescription en droit international public (1934), p. 44Google Scholar, n. 1.

20 Op. cit., section 36.

21 Alternative to “straightforward possession” would be “simple possession” or “possession simpliciter.”

22 The arbitration between Austria and Hungary concerning certain lakes in Galicia in 1902, reported in Revue de droit international et de législation comparée (Deuxieme Série) 8 (1906), p. 207.

23 “Acquisitive Prescription in International Law,” by the present writer, in British Year Book of International Law, 27 (1950), p. 332.

24 Above, pp. 218–9.

25 For the sake of completeness, however, mention should also be made of an opposite tendency. Thus, according to one author, “prescription only applies to a territory which is either territorium nullius or has been abandoned by another State.” (Schwarzenberger, , International Law: Vol. I, International Law as applied by International Courts and Tribunals (2nd ed. 1949), p. 141.Google Scholar

26 Sir Eric Beckett also classified under prescription cases of the acquisition of territory where the former sovereign, without having abandoned the territory, had nevertheless begun to lose the effective possession or control. (Op. cit., p. 248.)

27 I.C.J. Reports 1953, p. 47. See also the article by the present writer in International and Comparative Law Quarterly, 3 (1954), p. 189.

28 At pp. 55–7 of the report.

29 I.C.J. Reports, 1951, p. 116 at p. 130.

30 Ibid., pp. 138–9. Italics ours.

31 Théories et Réalités en Droit International Public (1953), pp. 244–5.

32 Op. cit., p. 243, n. 2.

33 Loc. cit.

34 Wheaton, however, indicated that titles must be “subsequently confirmed. Above, p. 215.

35 A.J.I.L., 22 (1928), pp. 740–1.

36 A.J.I.L., 26 (1932), p. 390.