Territorial Title

by

Masaharu Yanagihara

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0004

Introduction

Especially essential for the existence of modern European international law is a state with a “defined territory,” or a “territorial state.” International law cannot exist without a coexistence of several sovereign and territorial states. According to the definition of modern European international law, “territory” is not the same as “territory” in ancient and medieval Europe or “territory” in medieval or early modern East Asia. The concept of state territory composed of land as principal and sea as accessory, as well as the concept of territorial title as facts justifying an acquisition of territory, were developed in the 18th and the early 19th centuries in Europe. State territory in the case of a newly established state, justified by the theory of state recognition, was completely distinguished from the territory defined by the concept of territorial title. The theory of territorial title that asserts five modes of acquiring territory, such as occupation, accretion, cession, subjugation (conquest), and prescription, was elaborated in the latter half of the 19th century and in the beginning of the 20th century, following private law patterns. Discovery as a legal term was extremely controversial, dealing with issues such as whether this category was recognized as a complete title at some point in time, what kind of symbolic acts were required to compel discovery, what is the real meaning of “inchoate title” assigned to discovery, and so on. Currently, the only mode of acquisition of territorial title in operation is accretion and cession. Occupation is not usually relevant given the lack of terrae nullius. Conquest is incompatible with the prohibition of the use of force in international relations. Prescription continues to be one of the most controversial issues among international lawyers as well as in state practices. It is sometimes contended that its ultimate justification lies in the principles of effectiveness, recognition, and acquiescence, or a historic title. Significantly, traditional modes of acquisition have not necessarily played a decisive role in territorial disputes in international tribunals.

Textbooks

Extensive explanations of territorial title can be found in all international law textbooks, although only seven notable textbooks are introduced here. Brownlie 2008, one of the most reliable textbooks on this topic, offers an authoritative and clear explanation about all necessary issues of territory. Shaw 2008 is also a dependable guide to this issue. O’Connell 1970 is, although dated, still a well-balanced textbook in this field. Oppenheim’s textbook originally published in 1905 played a preeminent role in making the theory of five modes of acquiring territory—cession, occupation, accretion, subjugation (conquest), and prescription—prevalent among international law writers. The new edition (Jennings and Watts 1992) explores a quite different idea from the traditional theory of five modes. Daillier, et al. 2009, one of the most reliable textbooks in French, offers a brief, but unique, explanation of the modes of territory acquisition. Fukamachi’s chapter in Yanagihara, et al. 2010 gives a clear and lucid explanation of traditional modes of acquiring territory and a “dynamic” and new theory of territorial title. Jia 2009, one of the contemporary reliable textbooks in Chinese, offers a fine explanation of several aspects of acquiring territory.

• Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Oxford University Press, 2008.

  The most authoritative contemporary textbook written in English. All fundamental concepts concerning the creation and transfer of territorial sovereignty are explained thoroughly.

• Daillier, Patrick, Mathias Forteau, and Alain Pellet. Droit international public. 8th ed. Paris: L. G. D. J., 2009.

  Offers a brief explanation of the acquisition and loss of territory. The authors divide modes of acquisition of the nonstate territory, such as effective occupation and contiguity, and modes of acquisition of state territory, such as cession, annexation, unilateral decision, conquest, and prescription.

• Jennings, Robert Y., and Arthur Watts, eds. Oppenheim’s International Law. Vol. 2. 9th ed. Harlow, UK: Longman, 1992.

  The first edition in 1905 offered the traditional five modes of acquiring state territory. Parts 2 to 4 in Volume 2 of the ninth edition provide a completely different concept for determining territory in place of traditional territorial title, following, in principle, a theory of historical consolidation of title.

• Jia, Bing Bing. Guojigongfa: Lilun yu shijian. Beijing: Tsinghua University Press, 2009.

  In chapter 7, “Acquisition of Territory” (pp. 164–188), the author explains traditional and contemporary modes of acquiring territory. He deals in detail with acquiescence, recognition, and estoppel as well as historical consolidation. Only in Chinese, no English translation.

• O’Connell, Daniel P. International Law. Vol. 1. 2d ed. London: Stevens, 1970.

  Chapter 15, “Territory” (pp. 403–453), gives a reliable explanation of acquisition and loss of territory. His starting point is the fact that the decisions of tribunals have been given that tend to ignore the traditional terms and categories.

• Shaw, Malcolm N. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.

  As a specialist in territory the author offers a fundamental and thorough explanation of territorial title in a way that distinguishes “the acquisition of additional territory from “new states and title to territory.” He deals characteristically with occupation and prescription in the category of “the exercise of effective control.”

• Yanagihara, Masaharu, Koichi Morikawa, and Atsuko Kanehara, eds. Purakutisu kokusaiho kogi. Tokyo: Shinzansha, 2010.

  Chapter 12, “State Territory” (pp. 186–203), by Tomoko Fukamachi provides a short historical survey of territory and a distinctive and important explanation of territorial title from a theoretical and practical viewpoint. Only in Japanese, no English translation.