Class 16 Flashcards
What is prescriptive title?
An occupation based concept analogous to adverse possession.
In what other circumstance do we use effective occupation as a source of sovereign title?
When we are dealing with terra nullius
What are the prerequisite for prescriptive acquisition of title?
Possession must be:
1) peaceful and sufficiently continuous
2) public
3) lengthy
What is the 1st cases for prescriptive title and what is the ratio?
Island of Palmas Case:
- peaceful and continuous display of authority over the island would prevail over the acquisition of property not followed by actual display of state authority. An incohate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty.
- It is not necessary that the display of authority should go back to a very distant past
- It is not necessary to establish that the display of sovereignty begun at a specific epoch.
What is the 2nd cases for prescriptive title and what is the ratio?
Case concerning Kasikili Island. Prescription requires occupation by a titre de souverain. Unless they are present as agent of the state, simple occupation by non-state actors is irrelevant, even if these members are connected in some manner to one of the disputing states. This was also the finding in the the case of Sovereignty over Pulau Litigan and Pulau Sipadan.
How does conquest and annexation work in international law related to obtaining territory?
“Conquest is the taking of territory through military force through military force in time of war. Formal Annexation is required before the conquering state becomes the sovereign.”-Scholar
Two requirements for title resting upon conquest:
1. material strength to his make conquest good
2.he must have , and exhibit the intention to expropriate.
What is the ratio of the Eastern Greenland Case?
Conquest only operates as a loss of sovereignty when there is a war between 2 states and by reason of defeat of the one, the territory passes from the loser to the victor state.
What is the current state of acquisition of territory by conquest and annexation in international law?
No longer permissible due to Article 2(3), Article 2(4).
Reaffirmed by UNSC Resolution 242 (1967), when they stated “inadmissibility of acquisition by war” in Arab-Israeli conflict.
Again in 1990, UNSC adopted resolution that the annexation of kuwait has no legal validity, and is considered null and void.
Declaration of principles of international law on friendly relations-pf 314
What is and what does Declaration of principles of international law on friendly relations cover?
- General assembly resolution that is widely viewed as customary international law states
- “every state has a duty to refrain form threat or use of force to violate the international boundaries of another state”
- ” refrain from forcible action which deprives…people of self determination, and freedom of independence”
- “no territorial acquisition resulting from threat or use of force shall be recognized.
What is the impact of the UN prohibiting acquisition of territory by conquest, on territory acquired in the past?
Doctrine of intertemporal law precludes retroactivity; look at what law governed at the time.
What are the 3 modes of acquisition that are valid today?
Territorial acquisition thorough political events: Cession, renunciation, and abandonment.
Describe Cession.
Cession is basically a transfer of title. It is conferred by agreement, and if grantee takes possession in accordance with a treaty, the treaty provides the legal basis for sovereignty.the date of the title change is determined by the the treaty, usually the date when the treaty comes into force.
Cession by treaty is void when the the conclusion of treaty has been procured by threat or use of force in violations of principles of international law embodied in the un charter.
What is the current effect of fraudulent or coerced treaties?
While customary international law rule prohibiting by conquest only dates back to the 3rd, 4th decade of the 20 century, some suggest that customary international law prohibiting fraud, or non-military coercion may have existed much earlier. Colonial treaties still continue to have modern international legal consequences.
What is the dealing with colonial treaties and what is the ratio?
Camerron v Nigeria- cites Advisory opinion on western sahara “if territories were not terra nullis, but were inhabited by tribes or people having a social and political organization, agreements concluded with the local rulers were regarded as derivative roots of title.”
In cases of kings and chiefs with whom Britain signed a treaty, they were separate states, and there is no evidence of a central federal power.
There was no protest by kings and chiefs in 1913 when Britain ceded the territory to the Germany, and there is no action by those chiefs to pass sovereignty over to Nigeria.
How does cession differ from renunciation and abandonment?
In both instances, the state unilaterally repudiates its territory.
