Territorial Disputes

1) Introduction

This chapter deals with boundary disputes relating to land. The following chapter deals with maritime boundary disputes.

Territorial disputes are concerned with sovereignty and involve the concept of title. A supranational court or tribunal faced with conflicting claims over rights to a territory will be presented with arguments and evidence aimed at showing that title to the disputed territory is vested in the contending party and not the opposing party.

There are two main methods of demonstrating the right to territory. The first method involves roots of title and is concerned with circumstances where a fairly direct and clear-cut right to territorial sovereignty can be demonstrated. The direct methods considered here are:

i) treaties;

ii) uti possidetis;16

iii) decisions of international courts and tribunals;

iv) agreements concluded with local rulers.

Second, where such direct claims cannot be demonstrated, there are various indirect methods of showing title. These include:

i) effective occupation;

ii) prescription;

iii) discovery;

iv) symbolic annexation.

2) Intertemporal Law and Critical Dates

Before looking at the direct and indirect methods of demonstrating the right to territory, however, it may be useful to consider two preliminary matters: intertemporal law and critical dates.

Intertemporal law

In considering the claims of the parties in a dispute concerning territorial sovereignty, it may be necessary for the Court or Tribunal to apply principles of international law in force at an earlier date.

One example can be found in the Island of Palmas case,17 a decision of significance that is considered in various parts of the Manual. As mentioned in Chapter 6, the case came before the Permanent Court of Arbitration (PCA) in 1928 and the sole arbitrator was Max Huber.

The Netherlands and the United States agreed that the only duty of the arbitrator was to determine whether the Island of Palmas formed part of territory belonging to one or the other party. Their respective claims had to be tested on the basis of international legal principles ruling in the 16th century, the period when the island was discovered.

The report of the case sets out the arbitrator's statement in the Award on the matter of intertemporal law. He said that it was admitted by both sides that international law underwent profound modifications between the end of the Middle Ages and the end of the 19th century as regards the rights of discovery and acquisition of uninhabited region...

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