Acquisition of Territory: Modes and Island of Palmas

Territory is the space within which a state exercises sovereignty, and many international disputes are about who holds title to a piece of land. Classical writers listed five modes by which territory is acquired. Modern courts look less at labels and more at evidence of effective and peaceful display of authority. This note covers the modes, the leading cases, the rule against acquisition by force, and how territory is lost.

1. Territorial Sovereignty

• Meaning. In Island of Palmas (1928), the arbitrator Max Huber said that sovereignty in relations between states signifies independence, and independence in regard to a portion of the globe is the right to exercise there, to the exclusion of any other state, the functions of a state.
• Duty attached. Territorial sovereignty carries the duty to protect within the territory the rights of other states and their nationals.

2. The Modes of Acquisition

Figure 1: Traditional modes and modern tests

• Occupation. Acquisition of terra nullius, territory belonging to no state, by effective control with the intention to act as sovereign; discovery alone gives only an inchoate title that must be completed by effective occupation within a reasonable time.
• Prescription. Acquisition of territory belonging to another state through long, continuous, peaceful and public possession, acquiesced in by the former sovereign; in Kasikili/Sedudu Island (1999), Namibia's claim by prescription failed for want of the required possession and acquiescence.
• Cession. Transfer by treaty, by sale, exchange or gift, as with Alaska in 1867; the transferee can acquire no greater rights than the transferor had; by a treaty of 31 December 1974, Portugal recognised India's sovereignty over Goa, Daman, Diu, Dadra and Nagar Haveli.
• Accretion. Gradual natural additions, such as alluvial deposits, enlarge territory; a sudden change of a river's course (avulsion) does not shift the boundary (Chamizal arbitration, 1911)
• Conquest. Once a valid title after war; now prohibited by Article 2(4) of the Charter, and the Friendly Relations Declaration provides that no territorial acquisition resulting from the threat or use of force shall be recognised as legal; the Security Council declared Iraq's annexation of Kuwait null and void (resolution 662, 1990)

3. The Leading Cases

Figure 2: Decisions on title to territory

• Island of Palmas (Netherlands v USA), 1928. The United States claimed the island as successor to Spain, which had discovered it; the Netherlands showed continuous and peaceful display of authority through treaties with local rulers; Huber held for the Netherlands and laid down the doctrine of intertemporal law: a juridical fact must be appreciated in light of the law contemporary with it, but the continued existence of a right must follow the evolution of the law.
• Clipperton Island (France v Mexico), 1931. For an uninhabited island, France's proclamation and notification were enough to establish title.
• Legal Status of Eastern Greenland (Denmark v Norway), PCIJ, 1933. Sovereignty requires intention and some actual exercise of authority; in remote, thinly populated areas very little is needed.
• Minquiers and Ecrehos (France/UK), 1953. The Court relied on evidence of actual possession, such as jurisdiction and local administration, rather than medieval titles.
• Western Sahara, 1975. Territories inhabited by tribes or peoples having a social and political organisation were not terra nullius at the time of colonisation.
• Sovereignty over Pedra Branca (Malaysia/Singapore), 2008. Original title lay with Johor, but sovereignty passed to Singapore through its conduct and Johor's failure to respond, including a 1953 letter disclaiming ownership.

4. Modern Approach

• Effectivités. Acts of administration, legislation and jurisdiction showing effective control; in Frontier Dispute (1986), the Chamber held that where a legal title exists, it prevails over contrary effectivités, which serve mainly to confirm or fill gaps in title.
• Critical date. The date on which the dispute crystallised; acts after it, done to improve a party's position, carry little weight.
• Acquiescence and recognition. A state's silence or express recognition can confirm another's title (Temple of Preah Vihear, 1962)
• Uti possidetis juris. New states inherit colonial administrative boundaries (Topic 24)
• India. The Rann of Kutch dispute with Pakistan was settled by an arbitral tribunal in 1968, and India implemented the award without ceding territory (Maganbhai, 1969; Topic 6)

5. Loss of Territory

• Modes. Cession, prescription, accretion to another state, secession, and abandonment.
• Abandonment. Requires both giving up control and an intention to relinquish sovereignty; mere absence of activity is not enough.

6. Frequently Asked Questions

Does discovery give title to territory?

Not by itself. In Island of Palmas (1928), discovery was held to create only an inchoate title, which must be perfected by effective occupation within a reasonable period.

What is the doctrine of intertemporal law?

A juridical fact must be assessed by the law in force when it occurred, but the continued existence of a right created then must be judged by the law as it evolves, so a title must be maintained under later law.

7. Related Topics

• Topic 6: Treaty Making in India. Cession and boundary settlement.
• Topic 24: Self-Determination. Uti possidetis juris.
• Topic 32: Antarctica and the Polar Regions. Sector claims.