The acquisition of territory in international law: With a new introduction by Marcelo G. Kohen

The Acquisition of Territory in International Law

Melland Schill Classics in International Law

Series editors Jean d’Aspremont and Iain Scobbie

The Melland Schill name has a long established reputation for high standards of scholarship. The new Melland Schill Classics in International Law series brings classic works back into print and at the same time contextualises them with a powerful new introduction from a current scholar.

The Acquisition of Territory in International Law

with a New Introduction by Marcelo G. Kohen

R. Y. Jennings

Manchester University Press

Copyright © R. Y. Jennings 1963

Copyright © the estate of R. Y. Jennings 2017

Introduction copyright © Marcelo G. Kohen 2017

The right of R. Y. Jennings to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Altrincham Street, Manchester M1 7JA

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

ISBN 978 1 5261 1717 5

First edition published 1963 by Manchester University Press

This edition published 2017 by Manchester University Press

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset in 10/12 Times New Roman by

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Contents

SERIES EDITORS’ FOREWORD

NEW INTRODUCTION BY MARCELO G. KOHEN

I.  TERRITORIAL CHANGE

The Nature of Territorial Sovereignty

The Meaning of Title

The Procedures of Territorial Change

Boundary Disputes

Conclusions

II.  THE MODES OF ACQUISITION

Cession

Occupation and Prescription

Historical Consolidation of Title

Intertemporal Law

The Critical Date

Conclusions

III.  RECOGNITION, ACQUIESCENCE AND ESTOPPEL

Estoppel

Estoppel and Recognition

Estoppel and Acquiescence

The Temple Case

IV. TITLE AND UNLAWFUL FORCE

Forcible Self-help

Conclusions

V.  LEGAL CLAIMS AND POLITICAL CLAIMS

Political Claim or Legal Title?

Geographical Considerations

Historical Continuity

Self-determination

Procedures for Political Decisions Respecting Territory

APPENDIX

INDEX

Series Editors’ Foreword

In her will, Miss Olive B. Schill of Prestbury, Cheshire left a bequest to the University of Manchester in memory of her brother, Edward Melland Schill, who was killed on active service during the First World War. From 1961 to 1974 Professor Ben Wortley used the income generated by this bequest to promote and publish a series of public lectures, the Melland Schill Lectures in International Law. On Professor Wortley’s retirement, his successor, Professor Gillian White, decided to replace the lecture series with a monograph series, the Melland Schill Studies in International Law.

Both the lecture and monograph series included seminal works that have profoundly influenced international legal thought and practice. Several decades after their publication, these classics of international law have not lost their relevance. Because all have been out of print for some time, the Manchester International Law Centre and Manchester University Press have decided to re-publish a selection of these masterpieces with a new introduction which is aimed at situating the argument they develop in a contemporary context and recalling their impact.

This new series of re-publications opens with Robert Jennings’ The Acquisition of Territory in International Law, which was originally published in 1963. We are immensely grateful to our colleague Professor Marcelo Kohen, whose authority on this question is unparalleled, for agreeing to write a new introduction to this important and timeless work.

JEAN D’ASPREMONT AND IAIN SCOBBIE

Manchester, September 6, 2016

New Introduction

The book I have the honour to preface is a slim one. This is but one of its merits. Because The Acquisition of Territory in International Law is the ultimate proof that a short text may constitute a classic authoritative reference in its field. This was the case soon after its publication by Manchester University Press in 1963 and it still continues to benefit from this quality today. The decision to republish it is then to be commended. Quite obviously, in order to enjoy this qualification, its author should be able, as he was, to make a clear, simple, concise and precise presentation of his views about the status of international law in what has always been a traditional topic of the discipline: the acquisition and loss of territorial sovereignty.

The Author

The author of this book, Sir Robert Yewdall Jennings, was one of the most distinguished British specialists in the field of International Law of the last century. Born in Idle, Yorkshire, in 1913, he was Whewell Professor of International Law at Cambridge University, succeeding Sir Hersch Lauterpacht, from 1955 to 1982. That year, he was elected Judge at the International Court of Justice and acted as its President between 1991 and 1994. Sir Robert was also President of the Institut de Droit international between 1983 and 1985 and played a fundamental role in the organization of its 61st session in Cambridge.

During the Second World War, Robert Jennings served in the Intelligence Corps, on the interpretation of aerial photographs, working with maps and charts. Perhaps this is where his interest for territorial, maritime and air space issues began, as these are fields in which the relationship between geography and international law is quite obvious. In any case, as Dame Rosalyn Higgins pointed out, the skills he acquired during this period were invaluable when dealing with territorial and maritime disputes, whether as a professor, as a counsel or as a judge.¹

Robert Y. Jennings was also a practitioner involved in territorial and maritime disputes. He acted as counsel and advocate first in Beagle Channel Arbitration (Argentina/Chile),² then in the arbitration on the boundary between Dubai and Sharjah,³ the arbitration on the Continental Shelf between France and the United Kingdom,⁴ and in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case before the International Court of Justice⁵. As a judge, and, during his time as President of the Court, he took part in deciding territorial disputes such as Land, Island and Maritime Border Dispute (El Salvador/Honduras: Nicaragua intervening)⁶ and Territorial Dispute (Libyan Arab Jamahiriya/Chad).⁷ The former was a very complex case, involving delimitation of some inhabited areas of the boundary, the determination of sovereignty over islands, the status of the Gulf of Fonseca, the possibility of delimiting the maritime areas outside the gulf and 17th century documentation whose original language was Spanish. The outcome was the longest judgment rendered by the I.C.J. in its entire history. The latter was a rather simple case of a territory effectively occupied by Libya, but belonging to Chad according to a treaty concluded by France, the colonial power, with Libya itself and referring to former colonial treaties from the beginning of the 20th century. No doubt Sir Robert must have played an important role in both decisions, which were quasi-unanimous. He did not append any opinion or declaration to either judgement. Sir Robert was also the president of the arbitral tribunal in the proceedings between Eritrea and Yemen on territorial sovereignty over islands in the Red Sea. The arbitral award had to deal with claims involving ancient titles, succession, treaties, effectivités and questions concerning natural and geographic unity.⁸

Professor Jennings also worked on spatial issues other than land, both before and after the first publication of this book. In the field of air and outer space, it is worth mentioning his seminal course at the Hague Academy of International Law on ‘Some Aspects of the International Law of the Air’ of 1949,⁹ as well as ‘Customary Law and General Principles of Law as Sources of Space Law’.¹⁰ In the field of maritime areas and delimitation, ‘The Limits of Continental Shelf Jurisdiction: Some Possible Implications of the North Sea Case Judgment’,¹¹ ‘The United States Draft Treaty of the International Seabed Area: Basic Principles’,¹² ‘A Changing International Law of the Sea’¹³ and ‘The Principles Governing Marine Boundaries’.¹⁴

Nearly three decades after the first publication of this book, Sir Robert undertook the task, together with Sir Arthur Watts (a former Legal Adviser to the Foreign Office and an outstanding counsel and advocate in cases before the International Court of Justice), of updating the classical standard British manual of International Law of the 20th century. The ninth edition of Oppenheim’s International Law, while keeping the structure of prior editions, took advantage of Jennings’ work in the chapters related to boundaries and acquisition and loss of territorial sovereignty, incorporating further developments of case law and practice.

Sir Robert Jennings was a man of extraordinary vitality. He continued to actively participate in international law issues until his passing on August 4, 2004, at the age of 91. Throughout his work, including in his General Course on Principles of International Law at The Hague Academy,¹⁵ there transpired, as Vaughan Lowe wrote in his obituary, ‘his combination of intellectual honesty and principled common sense’ and ‘[h]is gift was, and always had been, to make his analysis of a problem seem obvious’.¹⁶

The Context

In order to better understand Sir Robert Jennings’ thought about the acquisition of territory in international law, it is worth mentioning the context in which this book was written at the beginning of the 1960s. Two major elements must be taken into account: the case law and the process of decolonization. The decade prior to this book’s publication had been rich in contentious cases relating to territory decided by the International Court of Justice. In the Minquiers and Ecrehos case (France/United Kingdom),¹⁷ the parties had extensively alleged and discussed old titles coming from the Middle Ages, but the Court preferred to avoid this discussion and focused instead on the exercise of State authority over those minor rocks and the conduct of the other party with regard to that exercise in the 19th and 20th centuries. In Sovereignty over Certain Frontier Land (Belgium/Netherlands),¹⁸ the Court decided on the basis of the interpretation of the Boundary Convention of 1843, disregarding later Dutch acts of authority over the plots (effectivités) that were contrary to that convention, and insufficient to displace the Belgian sovereignty it established. In Right of Passage over Indian Territory (Portugal v. India),¹⁹ the Court implicitly recognized Portuguese sovereignty over the enclaves on the basis of treaties concluded centuries before with local authorities and the conduct of both the British colonial power and the newly independent State of India. Finally, in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand),²⁰ decided just some months before the first publication of this book, the judgment relied on the conduct of the parties to determine the interpretation of the boundary established by the Mixed Commission on the basis of a 1904 treaty. All these cases raised issues concerning whether the acquisition and loss of territorial sovereignty could be explained through the exclusive prism of its traditional ‘modes’. Indeed, in none of these cases did the Court identify a precise ‘mode’ by which it made its ascertainment as to the holder of sovereignty in each situation. Furthermore, acquiescence, recognition and estoppel were largely debated both by the parties and in the opinions of a number of judges.

The beginning of the 1960s was also a turning point in the process of decolonization. The adoption of Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, on 14 December 1960 was the major momentum in this process, because of its implications for the development of international law in outlawing colonialism. The Acquisition of Territory in International Law, published just two years later, placed an emphasis on what was being discussed at that moment: the way in which the newly independent States acquired sovereignty. The other crucial question, i.e. the extension of this sovereignty—and consequently the boundaries of those new States—was a matter that only became popular some time later. The OUA AHG/Res. 16(1) Resolution of Cairo on the intangibility of boundaries inherited from colonization was adopted in 1964, one year after this book was first published. Sir Robert, however, had this problem in mind and advanced his views on the matter, as will be recalled below. Another important historical element that occurred just before the publication of the first edition of this book was the forcible expulsion by India of the Portuguese from Goa and the other enclaves that Portugal held in the subcontinent from colonial times. Some of the author’s reflections on the impact of the use of force in territorial change at the time of the Charter of the United Nations were no doubt motivated by this case.

The Work in Perspective

The present book starts with the traditional analysis of the different ‘modes’ of acquisition of territorial sovereignty as developed in doctrine since the very beginning of the science of international law. One of the merits of this book is precisely that, instead of focusing exclusively on or absolutely disregarding them, an approach other authors had adopted, it harmonizes the traditional modes with other elements that may influence the determination of sovereignty and that were not taken into account in the past. One doctrinal construction à la mode at the time was the theory of the ‘historic consolidation of title’, developed by D. H. N. Johnson, Charles de Visscher and Georg Schwarzenberger.²¹ Its purpose was purportedly simplification and to elaborate a theory that would take into account the real way sovereignty is established in practice, something the classical modes allegedly would not be able to do. ‘But it is elaboration that international law needs rather than simplification’ wrote Jennings.²² The present book put ‘consolidation’ within its right limits. According to its author, this ‘voracious concept’ cannot replace the whole structure of international law in the field. Forty-one years later, the I.C.J. agreed with this vision in the Cameroon v. Nigeria judgment.²³

The traditional five ‘modes’ of acquisition of territorial sovereignty described by doctrine were: (1) occupation (2) prescription (3) cession (4) accession or accretion and (5) subjugation or conquest. Sir Robert put aside discovery because, as he wrote, since the 16th century it is not possible to argue discovery alone as a way to create a title. In Chapter II, he emphasized the analysis of the first three modes. His endorsement of the common idea of the time, according to which territories under tribal organization were considered terrae nullius open to occupation, can certainly be challenged today, in particular after the Western Sahara advisory opinion.²⁴ With regard to prescription through adverse possession, Sir Robert anticipated what the Court clarified in the Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge case: what is crucial, instead of the doctrinal discussions that existed since the birth of the theory of international law about the existence of acquisitive prescription, is the existence of acquiescence on the part of the original sovereign.²⁵

Subjugation and conquest are naturally analysed from a historical perspective, since at the time of the first publication of this book they were outlawed by the international legal system. Instead, an entire chapter is devoted to the question of the unlawful use of force and the acquisition and loss of territorial sovereignty. Again, this book is prescient. After having stressed that even in traditional law the mere seizure of the territory and military occupation alone cannot allow the acquisition of territory, it develops an argumentative rejection of the thesis advanced some years later, according to which territory can be acquired while acting in self-defence, since this use of force would not be illegal. The author also discussed the use of force to recover what is considered to be one’s own territory. As mentioned above, the case of Goa and the other Portuguese enclaves in India was very fresh. Jennings’ reflections are still useful to distinguish the question of title, on the one hand, and the idea of taking justice into one’s own hands, on the other. Since the latter is prohibited, this situation raises the issue of one of the most evident weaknesses of the international system: international law prohibits the use of force in international relations, but the system does not provide for a compulsory mechanism for the settlement of international disputes. Means of peaceful settlement essentially remain based on the consent of the States parties to disputes. It follows that territorial disputes can remain unsettled for a long time.

The analysis of geographical considerations is made in the last chapter, in which the author discusses the distinction between legal and political claims. He rightly refers to contiguity or continuity as an aspect of possession, as evidence or a presumption of the extension of effective possession that can be rebutted by better evidence of effective possession by another State. Any other use of contiguity to base a claim would be a political one.

As mentioned above, for the author of this book the establishment of a new sovereign entity could be considered another ‘mode’ to be added to the traditional ones. Answering the question about the way newly independent States established sovereignty over their territory, Sir Robert Jennings attributed a decisive role to recognition by other States and by the international community. For him, the recognition of a new State implies the recognition of sovereignty over its territory.

In order to encompass other elements coming into play in the analysis of the acquisition of territorial sovereignty, the book included references to two devices of use in any dispute about territory: intertemporal law and the critical date. Suffice it to glance through any territorial dispute brought before the Court or a tribunal to notice that this is the field in which these two technical rules find their privileged room for action.

To complete the picture, a separate chapter of this book considers the place of recognition, acquiescence and estoppel in the realm of acquisition of title to territorial sovereignty. The author examines here the fundamental role performed by consent in its different forms. These explicit or implicit manifestations of consent may constitute a root of title or merely possess probative value. His vision of acquiescence as a manifestation of tacit consent is once again the one that has been followed by subsequent case law.²⁶ This book also clarifies the scope of estoppel in the field. It cannot by itself constitute a root of title, but it can assist in its determination.

Sir Robert also stressed the importance of the notion of title in this field and furnished the reader with a clear, simple and practical definition.²⁷ Although recognizing the importance of actual possession in the establishment of territorial sovereignty, he did not automatically equate possession with title. For him, the possibility of subsistence of a legal right to territorial sovereignty even when divorced from possession is ‘the testing requirement’ for international law as a legal system. One can see in this position an antecedent of what the Chamber of the I.C.J. established as the relationship between titles and effectivités in the well-known Burkina Faso/Mali Frontier Dispute judgment.²⁸ Indeed, Sir Robert, as member of the I.C.J. Chamber in El Salvador/Honduras, endorsed this approach in the 1992 judgment, and extended it not only to the situation prior to independence, but also that existing afterwards.²⁹

The current reader of this book might be surprised that no reference is made to uti possidetis. As mentioned above, at the time the book was written, the main theoretical point under discussion was whether the sovereignty of the newly independent States was derivative (i.e. through succession) or original. This was rather a doctrinal debate about whether sovereignty, by its nature, is transmissible or not. At the time, European doctrinal approaches had some difficulty in accepting, if not in understanding, what appeared to be a rule of no interest for them, since its spatial scope of application was confined to Latin America. The decolonization of Africa and the consequent boundary problems between the new States put uti possidetis back in the spotlight of international law. After the abovementioned judgment in the Burkina Faso/Mali case, Sir Robert Jennings, as a member of the Chamber in the El Salvador/Honduras case, took into account uti possidetis as a rule applicable for the determination of the territorial scope of the newly independent States and their boundaries. Furthermore, he recognized one of the components of uti possidetis as applied by the Latin American countries, i.e. that ‘a key aspect of