2.5 The International Law of Territorial Disputes
2.5.2 The Jurisprudence of Territorial Dispute Resolution
The modes of acquisition outlined above can all be legal: it is the process and principles which determine whether their usage is legal and legitimate or not. There are countless justifications which states have made for their claims to territory, from contiguity to historical title, and Thomas Franck speaks to a timeless truth when he points out that, “for every principle, there is a countervailing one” (1983: 122). While historical claims are the most common, the jurisprudence of the arbitration of territorial disputes has established a hierarchy of principles which have been called upon in a consistent manner. The two key principles relevant here are treaties and effective control; there are other powerful legal principles, such as uti possidetis, but such principles are not relevant to the kind of disputed island territories which are under analysis in this dissertation.60
Treaties and agreements represent the most straightforward and legalistic of all the justifications for territorial claims, and can also inform several of the other justifications.
Treaties are similar to private contracts, in that they create legal rights and duties, and as such are binding on the signatories (Sumner, 2004: 1783). Article 26 of the Vienna Convention on the Law of Treaties (which codifies previous customary law on treaties) states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith”
(Part 3, Article 26). Thus, claims on territory which are based on valid treaties have the firm backing of international law. In fact, in a review of International Court of Justice (ICJ) jurisprudence by Sumner, treaties are ranked as the primary deciding factor in the resolution
60 Uti possidetis is Latin for ‘as you possess’, and is the legal principle that sovereign states emerging from previous administrative regions should maintain their original borders. Its effects are most easily visible in Africa, where the former colonies became sovereign states based not on self-determination or ethnicity, but on the administrative boundaries the colonial powers had imposed.
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of territorial disputes – where there is an extant treaty, the agreement it makes is upheld (Sumner, 2004: 1808). Thus, those states that can show evidence of a treaty which assigns the disputed territory to them have the strongest claim to the territory, following not only customary law but international conventions. However, treaties may be defective, disputed, or may not have been signed by the current parties.61 In these cases, and in the multitude of others where no defining treaty exists, the states involved can make claims based on other justifications – but as stated above, there is only one other key principle: effective control.
The Island of Palmas Case is considered to be the seminal case in dealing with island disputes (Shaw, 2003; Sumner, 2004). It involves a small island, located between the Philippines and the Former Dutch East Indies, which was disputed by the US and the Netherlands. The US claimed that Spain had title of the island, through its ‘discovery’ in 1648, which it then ceded to the US following its defeat in the Spanish-American war (Jessup, 1928).62 The Dutch claim was based on the fact that neither Spain nor the US ever occupied that island, whereas the Netherlands had effectively occupied it through an exercise of sovereignty, which in this case was the taxation of the ‘natives’. Both sides agreed to take the case to the Permanent Court of Arbitration (PCA), and Phillip Jessup summarises Judge Huber’s position on the island as being that “even if inchoate title persisted, it could not prevail over the continuous and peaceful display of authority by another state” (1928: 739).
In other words, the case set the legal precedent that effective occupation – based upon the exercise of sovereignty – trumps historical title. Thus, Judge Huber awarded the island to the
61 For example, cases when colonial powers signed treaties dividing colonies between themselves, or where a state signed a treaty under duress or occupation.
62 The island was in fact inhabited when it was ‘discovered’, hence the quotation marks
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Netherlands, since this was the country which exercised control over the island by collecting taxes from the ‘natives’ (Jessup, 1928: 746).63
While the Island of Palmas Case set down the precedent of effective control as a principle of international law governing island disputes, there were two subsequent cases which refined the law, and are of relevance to the later case studies. The first is the Clipperton Island Case, concerning a small uninhabited island in the Pacific Ocean which was disputed by France and Mexico (Dickinson, 1933). The judge followed the Island of Palmas precedent, ruling in favour of France as it had a stronger claim of effective control.
The ruling had two effects: first, it substantially lowered the bar for a claim of effective control – continuous occupation of an island is not always necessary – rather, the effective occupation “which is required is such occupation as is appropriate and possible under the circumstances” (Dickinson, 1933: 133). Second, it demonstrated the importance of timely protest: a state must protest another state’s incorporation of what it considers to be its territory within a reasonable time period.
The Gulf of Fonseca Case clarified the importance of a timely and meaningful protest even further (Rottem, 1993). Contested between Honduras, Nicaragua and El Salvador, the judge at the ICJ awarded each island based on the conduct of the parties since they gained independence, and the effective control of each island and acquiescence in this effective control.64 Without timely, meaningful protest, a state loses its claim to a disputed
63 Terra nullius did not necessarily mean that nobody lived on the land, simply that no-one deemed to be white or European enough lived on the land. Palmas had a population of about 750 ‘natives’, none of whom were consulted during the arbitration as to what they thought of the situation.
64 Acquiescence occurs when a state vaguely protests but does not follow up the protest, or when a state does follow up the protest but does so too late, see Shaw (2003: 436). For a more detailed discussion of the judge’s awards, see Rottem (1993: 622).
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territory. The International Court in the Gulf of Maine Case defined acquiescence as
“equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent” (ICJ reports, 1984: 265, 305 cited in Shaw 2003: 84)65 As Shaw explains, this means that “where states are seen to acquiesce in the behaviour of other states without protesting against them, the assumption must be that such behaviour is accepted as legitimate” (2003: 84-5). Acquiescence, protest, recognition and legitimacy, then, are the key concepts in territorial disputes; and not only are they crucial in the international law of territorial disputes, but they help constitute the politics of these disputes – the sovereignty game.
The final case of interest here is the Pedra Branca/Pulau Batu Puteh Case between Singapore and Malaysia over sovereignty of a rocky island and other smaller maritime features in the Straits of Malacca. On the one hand, the case raises questions about the validity of incorporating territory under the principle of terra nullius where there exist historical claims.66 The ICJ denied Singapore’s argument of terra nullius incorporation on the basis that while uninhabited, the main rocky island was a part of the Johor Sultanate (part of modern day Malaysia) due to their being well-known as a navigational hazard in the Straits of Malacca.67 On the other hand, the case reinforced the importance of “timely protest” and acted to underscore the role of effective control in contemporary dispute resolution: despite the denial of the claim of occupation based on terra nullius, the court found that Malaysia had failed to react to Singapore’s effective display of sovereignty (primarily maintaining a
65 The Gulf of Maine Case was an ICJ arbitration involving the US and Canada following unsuccessful attempts to delimit their east coast maritime border.
66 There are several other important cases which have helped refine the jurisprudence of disputed island territories, but given the spatial constraints of the dissertation it is impossible to outline them all.
67 Technically some parts of the Johor Sultanate are also part of modern Indonesia, but for the purposes of the court any title the Johor Sultanate may have had was passed on to Malaysia.
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lighthouse which had been constructed during the colonial era) in a timely manner – it had acquiesced – and so sovereignty had passed to Singapore.68
While effective occupation – in effect the exercise of sovereignty – does provide a state with grounds for a legitimate legal claim, it is important to note that not all exercises of sovereignty at all historical times are considered by a court. The concept of critical date prevents this. Anthony Aust describes the critical date as “the date by which the rights of the parties to a territorial dispute have so crystallised that what they do afterwards does not effect the legal position” (Aust, 2005: 35). What this means is that, from a legal perspective, exercises of sovereignty post-dispute emergence are not legally relevant.69 There is one other aspect of the law which relates to time: the intertemporal rule, which requires that the law of the time in which the acts occurred must be applied, rather than applying current international law retrospectively (2005: 35).