TERRITORIAL SOVEREIGNTY

Prof David K. Linnan

USC LAW # 783

Unit Seven

ACQUISITION OF TERRITORIAL SOVEREIGNTYIDEAS IN PLAY

1. Traditional ideas of terra nullius and “savage” society versus locally organized peoples (colonization vs modern views of indigenous rights)

 2. More recently, arguing often over resources

(can be offshore, e.g., fish & oil in 200 mile EEZ)

3. Intertemporal doctrine (change over time in legal principles, traditionally viewed as historical law

problem as with conquest of territory, but now seeing application arguably in EU setting

where rules are changing during past 50 years )

MODERN APPROACHESIDEAS IN PLAY (CONT’D)

3. Title to land doctrinal categories (details later)

4. Boundary and related doctrines (often offshore, example of Timor Gap dispute among Portugal, Indonesia & Australia)

5. Territorial sovereignty arguments typically relative claims, meaning which state has better claim in asserting different bases for claim

ASEAN & AUSSIE MAP

ISLAND OF PALMASISLAND OF PALMAS (US v. NETHERLANDS 1928

ARB)

Palmas as island between Dutch East Indies (now Indonesia) & Philippines (then colony, now independent) claimed by both US & Netherlands (within Philippine marine boundary, but claimed by Dutch)

US claim based initially on discovery title as successor in interest to Spain through Philippines following 1898 Spanish-American War

 Dutch claim have possessed and exercised

sovereignty from 1677 or perhaps before 1648 to 1920s

TITLE OVER TIMEISLAND OF PALMAS (CONT’D)

Arbitrator indicates “inchoate” nature of original Spanish title based on discovery but with not effective follow up assertion of sovereignty, indication that while discovery may have been enough under 16th century international law views to assert territorial rights some occasional exercise of sovereignty required by 1900s

Query, what constitutes manifestation of territorial sovereignty at differing places and times?

How to apply the intertemporal law doctrine?

PALMAS & TRADITIONAL THEORIES

HOW TO DISTINGUISH AMONG 1. Title of discovery (inchoate, terra nullius concept

related)? 2. Title of sovereignty (requiring continuous and peaceful

display of State authority during a long period of time)? 3. Title of contiguity (is being adjacent enough)? Problem in asserting sovereignty by peaceful display where

few people, no civilization & isolation

GREENLAND MAP

EASTERN GREENLANDLEGAL STATUS OF EASTERN GREENLAND (DENMARK V.

NORWAY PCIJ 1933)

Norwegian proclamation of 1931 purported to place portions of eastern Greenland under Norwegian sovereignty on theory it was terra nullius rather than Danish, whereas Denmark claimed all of Greenland essentially under its historical occupation of other parts

Citing Palmas arbitration, Denmark claimed title “founded on the peaceful and continuous display of State authority over the island”

Query, what elements are required for sovereignty title?

What is the effect of other states’ behavior?

CONTINUED DISPLAYEASTERN GREENLAND (CONT’D)

Title based upon continued display of authority (sovereignty) requires two elements:

1. intention & will to act as sovereign

2. Some actual exercise or display of authority

NORWAY ESTOPPEDEASTERN GREENLAND (CONT’D)

Issue of competing claims normally (up to 1931 none here), third party states had recognized Danish claims implicitly by excluding Greenland under treaties

Norway estopped too because:

1.  party to those treaties implicitly addressing Greenland’s ownership

2. Norway had given express understanding to Danish government not to contest

DOCTRINE CATALOGUEMISCELLANEOUS DOCTRINAL CONCEPTS

1. Contiguity

2. Prescription as title founded on long and peaceful possession (not municipal law’s adverse possession, but rather sovereignty-based)

3. Consolidation (viewing title acquisition as process over time, essentially relativist process view as opposed to snap-shot

norm view)

CATALOGUE IIMISCELLANEOUS DOCTRINAL CONCEPTS

4. Uti possidetis juris (power of preexisting boundaries, relevant on boundaries but also implicitly:

1. Contiguity claims in negating terra nullius claims historically as in analyzing modern territory claims as in Central & South America going back to 19th century independence from Spain,

2. Applied in modern decolonization such as 1950s-1960s inAfrica for state boundaries per se disregarding ethnicity, and

3. Most recently 1990s Former Yugoslavian break up, problems

referred to previously under self-determination)

CATALOGUE IIIMISCELLANEOUS DOCTRINAL CONCEPTS

(CONT’D)

5.    AccretionTraditional center navigation channel

view & Rio Grande

6.    CessionExample as with Swiss/French AirportsBasel as shared facilityGeneva runway extension

CATALOGUE IVMISCELLANEOUS DOCTRINAL CONCEPTS (CONT’D)

7.    ConquestPermitted prior to circa 1920 so historically applicable perhaps under inter-temporal doctrine

Modern prohibition on use of armed force for such purposes (our units 9-11)

Current problematic West Bank & Israeli control post Six Day War, underlying disputes like

current security fence controversy

Israeli view Opposing view

BOUNDARIES & ZONESBOUNDARIES & ZONES AS SUCH

UTI POSSIDETIS JURIS (boundaries plus, just reviewed)

LAW OF SEA (LOS 1982)

Changing law since pre-WW II traditional 3 mile canon-shot rule, continental shelf principles under Truman, etc.

Zone concept for maritime law in terms of territorial waters assimilated to territory to 12 miles, contiguous regulatory zone extending 24 miles from territorial sea, exclusive economic zone (EEZ) extending 200 miles from territorial sea but innocent passage

AIRSPACE ISSUES (1944 Chicago Convention & ICAO, with problems of no innocent passage as with LOS because over land-- WW I security issues with new air vessels, except archipelagic sea lanes passage now for aircraft with recent US/Indonesia incident)

PARACELS & SPRATLEYSWHERE ARE THE SPRATLEYS, WHICH

SEVERAL ASIAN COUNTRIES CLAIM?

In preparation for discussing Unit Seven problem, look also at Spratley Islands’ map for physical location between Vietnam, China, Philippines & Kalimantan (Malaysia/Indonesia)

Why claim some islands in the middle of nowhere?