This chapter discusses the modes of acquisition of territorial sovereignty between existing States. It considers some problems arising from the cession of territory. In the normal cession there are two elements, the agreement to cede embodied in the treaty, and the actual handing over of the territory. The mode called occupation corresponds very closely to the occupation of Roman Law. It is the appropriation by a State of a territory which is not at the time subject to the sovereignty of any State. Prescription indicates the acquisition of title by a long-continued and undisturbed possession. The authority for the rule most frequently quoted is the Award of Max Huber in the Island of Palmas case. It will be remembered that the United States claimed title to the Island because of a cession to her from Spain. The principle of the intertemporal law was an essential ingredient of the American case.
This introduction presents an overview of the key concepts discussed in the chapters of this book. The book starts with the traditional analysis of the different 'modes' of acquisition of territorial sovereignty as developed in doctrine since the very beginning of the science of international law. Instead of focusing exclusively on or absolutely disregarding them, it harmonizes the traditional modes with other elements that may influence the determination of sovereignty and that were not taken into account in the past. The traditional five 'modes' of acquisition of territorial sovereignty described by doctrine were: occupation, prescription, cession, accession or accretion, and subjugation or conquest. The book explores the question of the unlawful use of force and the acquisition and loss of territorial sovereignty. It also discusses the use of force to recover what is considered to be one's own territory and concludes with the distinction between legal and political claims.
The early law of war treaties and writings seem hardly to have addressed the problem of how to protect the civilian population from the effects of attacks. By 1907 the only positive rule relating to precautions against the effects of attacks was the requirement to mark hospitals and religious edifices with distinctive signs. During the Gulf war of 1991 it was alleged that Iraq pursued a deliberate policy of placing military objectives near protected objects, for example, near mosques, medical facilities and cultural property. The provisions of Art. 58 of Protocol I overlap to quite an extent with those of the protocol dealing with civil defence. Civil defence falls outside the scope of this work, which is concerned with the law as it affects the military commander, but Art. 61 of Protocol I contains a list of civil defence measures that can be taken for the protection of civilian population.
Until Protocol I, there was no specific treaty provision dealing with the duty to take care to restrict the incidental damage caused by attacks. This chapter is devoted to discerning the relevant customary and treaty law and to examine and explain the rules of Protocol I on the subject. It presents the precautionary rules introduced by The Hague Regulations. According to Lauterpacht, assault, siege or bombardment on the battlefield is not prohibited; the rules impinge only on assaults, bombardments and sieges outside the battlefield. Despite the fears and stresses of battle, a violation of Art. 57 of Protocol I may amount to a war crime. It will even amount to a grave breach of that protocol if an attack is launched in the knowledge that it will cause excessive incidental damage.
The very limited 'treaty law' which had evolved since the seventeenth century merely stemmed from the conclusion of the Treaty of Westphalia that a treaty-making capacity was a vital mark of sovereignty and independence. There is a very stark contrast between Vattel's theory of treaty obligations and the London Protocol of 1871. Vattel's view of treaty law is part of his general view of the natural rights of States. Both the Protocol and Vattel are a central part of the international legal tradition. This chapter claims claimed that a municipal law analogy does not allow jurists to grapple with the real tensions which beset treaties, in order to ensure that they have the maximum stabilising effect on international relations. Jurists cannot focus upon the limits of control which treaties afford, because they have decided, a priori, to pose only municipal law questions.
In this chapter, the author considers the place of recognition, acquiescence and estoppel in questions of title to territorial sovereignty. Recognition is the adoption of a positive acknowledgment on the part of a State. Acquiescence may arise from a mere omission to protest against a situation where a right to protest existed and its exercise was called for. The principle of estoppel in international law must be approached with some caution. An impressive warning against the temptation to put more weight upon estoppel than it can rightly bear is to be found in the separate opinion of Judge Sir Gerald Fitzmaurice in the Temple case. The chapter considers how far an estoppel worked by recognition may affect a question of territorial title. It provides a closer look at the decision of the International Court of Justice in the Temple case.
In this chapter, the author talks about some problems that affect the whole question of territorial change. The whole course of modern history testifies to the central place of State territory in international relations. The legal rules and procedures for effecting territorial changes lie at the core of the whole system of international law. The existence or not of a title depends ultimately upon the existence of certain facts. The primary meaning of 'title' is the vestitive facts which the law recognizes as creating a right. There is yet one more category of rules or principles for the determination of territorial sovereignty that must be mentioned: the body of legal rules which is concerned specifically with frontier or boundary disputes. These rules may be serviceable whatever the mode of acquisition of the territory; and indeed the mode of acquisition is often, in this type of frontier dispute, irrelevant.
The traditional modes of acquisition of territorial sovereignty include subjugation, or conquest, as a means of acquiring title. This chapter starts with a brief discussion on the meaning of subjugation in the traditional law. Subjugation, even in the traditional law, required something more than mere seizure of territory by force of arms. Firstly, there is a long-established and first rule that the military occupant cannot acquire sovereignty at all durante bello. Secondly, there must be present both the elements of corpus and animus. It must be borne in mind that although the use of illegal force and the question of title are very closely linked they are nonetheless distinct questions. Most discussions of the effect of the use of illegal force on title assume the case where the aggressor forcibly seized territory to which he had no existing title.
The Geneva Convention of 1864, directly reflecting the experiences of Solferino, laid down certain principles that have remained constant in all subsequent conventions and protocols dealing with the wounded and sick. By and large, respect for the law relating to the wounded, sick and shipwrecked seems to have been quite good. The current legal provisions on the subject matter of this chapter can be found in the Wounded and Shipwrecked Conventions and in Part II of the Civilian Convention, ratified or acceded to by 194 states, and Part II of Protocol I, binding on 171 states. Under the Geneva Conventions, there are quite detailed rules relating to what might be termed military medical personnel. Despite the protection afforded to hospitals by the law of war, there continue to be reports of hospitals, or other places where the wounded and sick are treated, being damaged by military action.
The Hill Fight of the Korean War constitutes an important chapter of the formative military conflict of the mid-twentieth century where the South Korean and other UN forces confronted the Chinese and North Korean forces. Currently, it has become a vital site of contested memory, especially in relation to the growing contest of power between the United States and the People’s Republic of China. Describing South Korea’s recent initiative of missing in action (MIA)/killed in action (KIA) accounting activities on these old battlegrounds since 2000, this article looks at how public actions concerning the remains of war are intertwined with changing geopolitical conditions. This will be followed by a reflection on the limits of the prevailing art and technology of war-remains accounting.