PUBLIC INT L LAW CLASS SIX TERRITORIAL SOVEREIGNTY. Prof David K. Linnan USC LAW # /23/03

Transcription

1 PUBLIC INT L LAW CLASS SIX TERRITORIAL Prof David K. Linnan USC LAW # /23/03

2 Concepts at stake: 1. Traditional ideas of terra nullius and savage society versus locally organized peoples 2. Intertemporal doctrine (change over time in legal principles) 3. Title to land doctrinal categories 4. Boundary and related doctrines

3 ASEAN & AUSSIE MAP

4 Island of Palmas (US v. Netherlands 1928 Arb) Palmas as island between Dutch East Indies (now Indonesia) & Philippines 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 following 1898 Spanish-American War Dutch claim have possessed and exercised sovereignty from 1677 or perhaps before 1648 to 1920s

5 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 16 th 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?

6 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

7 GREENLAND MAP

8 LEGAL STATUS OF EASTERN GREENLAND (DENMARK V. NORWAY PCIJ 1933) Norwegian proclamation of 1931 purported to plce portions of eastern Greenland under Norwegian sovereignty on theory it was tera 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 dislay of State authority over the island Query, what elements are required for sovereignty title? What is the effect of other states behavior?

9 EASTERN GREENLAND (CONT D) Titled 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

10 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

11 MISCELLANEOUS RELATED DOCTRINAL CONCEPTS INCLUDE: 1. Contiguity 2. Prescription as title founded on long and peaceful possession (not municipal law s adverse possession, however) 3. Consolidation 4. Uti possidetes juris (power of preexisting boundries, remember as applied in decolonization and former Yugoslavian break up) 5. Accretion 6. Cession 7. Conquest

12 BOUNDARIES: UTI POSSIDETIS JURIS (colonial administrative boundaries taken over despite not matching ethnic distributions-- in EU approach to former Yugoslavia too) AIRSPACE ISSUES (1944 Chicago Convention & ICAO, with problems of no innocent passage as with LOS because over land-- WWI security issues with new air vessels, except archipelagic sea lanes passage now for aircraft with recent US/Indonesia incident) LAW OF SEA (LOS 1982) treatment of zones in terms of territorial waters assimilated to territory to 12 miles, contiguous zone extending 24 miles from territorial sea, exclusive economic zone extending 200 miles from territorial sea but innocent passage

13 FOR NEXT WEEK (SIX) Territorial sovereignty problem to be distributed Read UN Charter completely for structure and authority