Document Type

Article

Disciplines

International Law

Abstract

There is no rule of international law prescribing any single mode for the acquisition of territory. Customary international law provides traditionally recognised modes of territorial acquisition,' and these modes have been developed through decisions and awards2 of international judicial and arbitral bodies over the last centuries. There are notably five traditional ways through which states can acquire territory: discovery and occupation, cession, accretion, conquest, and prescription. Each of these modes has played an important role in identifying legal arguments for the resolution of specific territorial disputes, and thus has substantially contributed to resolving such disputes.

The traditional modes of territorial acquistion do not, however, operate in watertight compartments and, depending on the circumstances, overlap in several respects. In the same vein, the clear conceptual distinction between these various modes is also not easily recognisable. Thus, Jennings points out that international tribunals have not always indicated the grounds upon which they proceed.' As a result, the practice of applying traditionally categorised modes to material facts has often been faced with criticism for its inadequacy.4 Brownlie characterises the reference to traditional modes as a 'stereotyped' classification,5 and declares: [T]he whole concept of modes of acquisition is unsound in principle and makes the task of understanding the true position much more difficult.... The issue of territorial sovereignty, or title, is often complex, and involves the application of various principles of the law to the material facts. The result of this process cannot always be ascribed to any single dominant rule or 'mode of acquisition'.

There is, in fact, considerable difficulty in employing the traditional modes of territorial acquisition in the resolution of recent complicated territorial disputes where the material facts are intertwined with other factors such as political and historical issues. Nonetheless, it is not contended that the relevance of these traditional modes can be totally disregarded, and their functional contribution in clarifying the legal issues in specific disputes cannot be ignored. Accordingly, it is more realistic to acknowledge the interplay between the traditional modes and recent developments. Jennings and Watts capture the essence of the interaction: It is still necessary, however to expound these 'modes' of acquisition because they are still relevant to explain titles that go back in history, as so many titles to territory do; and because the new law has developed out of the old, so that the old is necessary to an understanding of the new. It should be emphasised however that this treatment of the traditional modes needs to be qualified by ... [c]onsolidation of historic titles, critical date and self-determination.

Thus, as they reiterate, "although the law is changing, there is also continuity; and the new developments can hardly be understood without their origins in the classical scheme of the modes of acquisition."8 In analyzing the traditionally recognised modes of territorial acquisition and reflecting upon new developments in international law relating to territorial disputes, this research will offer a broad framework for the appreciation of the nature of territorial disputes.

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