SUPERVISION 7: TERRITORY AND GLOBAL COMMONS

Overview

This supervision focuses on title to territory, and areas that are not subject to sovereignty claims
(global commons). Important questions include:

1. What are the legal bases for acquiring title to territory in international law, and have they
changed over time?
2. What principles and rules have international cours and tribunals used in settling territorial
disputes?
3. What is a global commons, and what role do global commons play in preserving the
world’s resources?

Required Reading
Casebook

Harris, Cases and Materials on International Law (8th edn, 2015), Chap 5

Focus on the following cases

Island of Palmas Case (Netherlands v US) (1928) 2 RIAA 829

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia, Judgment, (2002) ICJ
Rep, paras. 127-149; noted Colson (2003) 97 AJIL 398
Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment, ICJ Rep 2007, paras. 117-131 (critical date),
151-158 (uti possidetis), 172-208 (effectivités).
Sovereignty over Pedra Branca/Pulau Batu Puteh (Malaysia/Singapore), Judgment, ICJ Rep
2008, esp. paras. 32, 62-75 (original title), 118-125 (passing of title), noted Mills 67
(2008) CLJ 443

Introductory Reading (one of)

Aust, Handbook of International Law (2nd ed., 2010), Ch 3

Klabbers, International Law (2nd ed., 2017), Ch. 13
Lowe, International Law (2007), 136-152

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Recommended Reading (one of)

Crawford, Brownlie’s Principles of Public International Law (9th edn, 2019), Chaps 8-10, esp.
Chapter 9
Kohen & Hébié, ‘Territorial conflicts and their international legal framework’, in Kohen and
Hébié (eds) Research Handbook on Territorial Disputes in International Law (Edgar Elgar,
2018)
Shaw, International Law (8th ed, 2017), Ch 9

Further reading

Brilmayer & Faure, ‘Initiating Territorial Adjudication: the Who, How, When, and Why of
Litigating Contested Sovereignty’ in Klein (ed.), Litigating International Law Disputes:
Weighing the Options (CUP, 2014) 193–229.
Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Cambridge University Press 2014),
Chapters 9 and 10
Hardin ‘The Tragedy of the Commons’, 162 (1968) Science, 1243-1248
Kohen and Hébié (2012), ‘Territory, Acquisition’, in Wolfrum (ed.), The Max Planck
Encyclopedia of Public International Law, Vol. IX, Oxford University Press, 887–900
O’Keefe, Legal Title versus Effectivités: Prescription and the Promise and Problems of Private
Law Analogies (2011) 13 International Community Law Review 147
Pahuja, ‘Conserving the world’s resources?’ in Crawford and Koskenniemi (eds), The
Cambridge Companion to International Law (Cambridge University Press, 2012), 398-
420, pp. 409-418
Waibel, Falkland Islands/Islas Malvinas (2011) Max Planck Encyclopedia of Public
International Law

Questions for discussion

1. The UK and Argentina have just agreed to submit their territorial dispute over the
Falkland Islands/Malvinas to inter-state arbitration. You are retained as: (i) Counsel for
Argentina; (ii) Counsel for the UK; (iii) counsel of the Falkland Islanders. Advise.

2. States A and B have no defined frontier in the considerable area of desert which lies
between them. The desert is inhabited by nomadic tribes owing allegiance to neither
state, although the area has long been claimed by A on the basis that the predecessor
colonial power from which A secured independence in 1960 has always claimed the area
as its hinterland. In 1980 B moved its troops into the area, occupying the oases and
establishing a military administration, and in 1982 it formally annexed the territory. This
occupation continues to meet sporadic resistance from the local tribes and A has
protested to the Security Council over aggression against its territory.

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 What principles apply to the dispute between A and B regarding the territory? Do you
consider that the modern law of territorial title conforms to the requirement, stated by
Judge Dillard in the Western Sahara advisory opinion (1975), that the people of a
territory should determine its future, rather than the territory determining the future of the
people?

3. ‘It is often said there are few truly untamed places left on Earth, but the windswept
horizons of the Arctic surely qualify. Some analysts maintain that the geopolitical
landscape is equally harsh – a lawless region poised for conflict due to an accelerating
“race for the
North Pole.’ Discuss.

4. ‘The modern law of territory owes much to a battle among imperial states for the earth’s
finite resources.’ Discuss.

5. Just as in a developed domestic system of law the ownership and user of a parcel of land
may depend not only on the conveyancing law but also upon general legislation, so also
international law has come to embody general considerations different from the
modalities of acquisition or loss. A principle of this sort, which has been of great
importance in the United Nations period, is that of self-determination.’ (JENNINGS
AND WATTS). Discuss.

[Tripos 2006]