Page 56 - Law of Peace, Volume ,

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populated or unsettled countries, the requirement of ence of a title the precise origin of which cannot be shown
effective occupation is satisfied with very little in the way or to extinguish the prior title of another sovereign. In the
of an actual exercise of sovereign rights, provided that the absence of definite evidence that the possession began as a
other state cannot establish a superior claim. 13 Third state wrongful assumption of a sovereignty already belonging to
recognition of Danish sovereignty over the territory in another state, peaceful and continuous possession raises a
question, by means of treaties, was also cited as a factor in presumption that the original assumption of sovereignty
the Court's decision in favor of Denmark. Thus,it would was in conformity with international law and has the effect
appear that in cases of conflicting territorial claims based of consolidating the claimant's title. Possession of territory
on discovery, the arbitrator or Court will look most consists in the exercise or display of state authority in or in
favorably on that state most "effectively occupying" the regard to the territory in question. In the Island of Palmas
territory in question. Moreover, in thinly populated or un- Arbitration, M. Huber spoke of the acquisition of
settled areas, this degree of occupation may be sovereignty by way of continuous and peaceful display of
minimal. 14 state authority as 'so-called prescription' and also said that
(2) Contiguity. As was noted, the arbitrator in the the continuous and peaceful display of territorial
Island of Palmas case 1s also spoke to contiguity as a sovereignty (peaceful in relation to other states) is as good
means by which to acquire sovereignty over territory. In as a title. Again, even in the Eastern Greenland case,
doing so, however, he declared it was impossible to show which is commonly referred to as the leading case on 'oc-
the existence of a rule of positive international law which cupation,' the Court emphasized that Denmark did not
stood for the proposition that islands situated outside the ,found her claim upon any 'particular act of occupation'
territorial waters of any state should be considered to be a but alleged a title 'founded on the peaceful and continuous
part of the territory of the state whose land mass con- display of state authority,' and it awarded sovereignty to
stitutes the terraflrma (nearest continent or island of con- Denmark on the basis of the latter's display of state
siderable size). 16 Thus, the title of contiguity, understood authority with regard to the whole of Greenland during
as a basis of territorial sovereignty, had, in his opinion, no successive periods of history. In fact, it is neither very easy
foundation in international law. This rejection of the con- nor very necessary to draw a precise line between an an-
cept of contiguity is generally accepted and acknowledged cient title derived from an original 'occupation' and one
by international publicists. However, there are those who founded simply on long and peaceful possession.
contend the principle does possess some validity as an in- (1) In the Island of Palmas case, M. Huber
ternational norm. Lauterpacht submits that the Island of emphasized that proof of an original taking of possession
Palmas award: is not enough and that possession must be maintained by
...related only to islands; that, in a sense, it was obiler inasmuch as the display of state authority. On the other hand, both he in
claim of the United States was not based mainly on contiguity; that the that case and the Court in the Eastern Greenland case
arbitrator admitted that a group of islands may form 'in law a unit, and pointed out that proof of peaceful possession in the most
that the fate of the principal part may involve the rest'; and that he held recent period before the rival claimant attempts to assume
in effect, with regard to occupation of territories which form a
geographical unit, that the appropriation must be presumed, in the in- the sovereignty is sufficient by itself to establish a title to
itial stages, to extend to the whole unit (a rule which is one of the main the territory-without proof of a long historic possession.
aspects of the doctrine of contiguity) and that the only consideration to The truth seems to be that peaceful display of state
which contiguity must cede is that of actual adverse display of
authority is in itself a valid title to sovereignty and that
sovereignty by the competing state. l7
proof either of an original act of occupation or of the long
Even in light of Lauterpacht's favorable comments duration of a display of state authority is important pri-
regarding contiguity, however, it would appear that the marily as confirming the peaceful and nonadverse
concept is generally viewed, at best, as a minimally effec- character of the possession. Peaceful display of state
tive means of territorial acquisition. authority over a long period excludes the existence of any
b. Prescription. Prescription, as a title to territory, is ill- valid prior title in another state and makes it unnecessary
defined, and some writers deny its recognition altogether. to rely upon the principle of extinctive prescription by long
International law does appear, however, to admit that, by adverse possession.
a process analogous to the prescription of municipal law, (2) The principle of extinctive. prescription, under
long possession may operate either to confm the exist- which the passage of time operates ultimately to bar the
right of a prior owner to pursue his claim against one who,
13. For &le, a claim in the form of a valid treaty of cession.
14. Territorial conflicts of this nature still occur, as evidenced by having wrongfully displaced him, has continued for a long
the controversy between the former Republic of Viet Nam and the Peo- time in adverse possession, is recognized in almost all
ples' Republic of China in 1974 regarding the Spratley Islands in the systems of municipal law, and it appears equally to be ad-
South China Sea. mitted by international law. It is debatable as to exactly
1s. See page 4-2, supra. how far diplomatic and other paper forms of protest by the
16. See Page 4-4, supra.
17. Lauterpacht, Sovereign& over Submarine Areas, (19501 Brit. dispossessed state sateto 'disturb' the possession of the
Y.B. Int7 L. 376, 428-29 (footnotes omitted). occupying state, so as to prevent the latter from acquiring