TERRITORY AND THE COMMONS: ACQUISITION OF TERRITORY BY OTHER THAN OCCUPATION:
We ended part 7 by describing the acquisition of territory by effective occupation and the primacy of this method in terms of universal acceptance. Effective occupation and settlement as well as effective administration is what has made the sovereignty of Great Britain over the Falkland islands legally incontestable. Despite Great Britain's incontestable legal claim Argentina decided to test it by force of arms. While many Latin American nations cheered Argentina on, none took up arms with her, largely because the entire community of nations knew full well that Argentina's claim based on discovery( by Spanish colonial elements, not the nation of Argentina) , proximity, and a failed attempt at settlement by a nation that no longer exists nor is a direct predecessor of Argentina was utterly without legal merit. The world knew that if Great Britain proved unable to defend its territory in the Falklands that NATO nations including the United States would have come her assistance no matter how reluctantly, because Argentina was guilty of a grievously illegal invasion of sovereign British territory. Fortunately Great Britain soundly defeated the invasion forces and chose not to carry the fight to the Argentine mainland. Yet Argentina continues to put forward claims on the Falklands even after the issue as been decided by force of arms, at Argentina's insistence. The lessons of the Falklands are two fold. First effective occupation and settlement, even if a bit sparse is universally recognized as the single most powerful proof of sovereignty. Second proximity, mineral wealth, and relatively sparse settlement generates territorial ambitions that may not be tempered by referral to international law.
This is exactly the heart of the island disputes between China and her neighbors on the China seas today. China puts forth claims based on ancient history of sightings, failed settlement, legend, but in clear opposition to the current law of the sea as agreed to in currently operative international conventions. China generally can't even claim proximity most of the islands are actually closer to their neighbors than to China, most in fact are inside the internationally recognized exclusive economic zones of China's neighbors. But rich fisheries and suspected mineral resources tempt China to risk all of her economic progress to date in an attempt to steal territory. When China finally fully reveals its intent to push these bogus claims to an act of war she will find herself friendless except for her insane lackey, North Korea. China will find Japan a truly formidable naval force, she will find the Philippines stronger than she anticipated, Vietnam aligned with Japan and the Philippines and both Japan and the Philippines linked by formal defense treaty to the United States, Australia unlikely to ignore the informal veiled threats of nuclear strike if she backs her long time allies, and possibly India joining in. The Chinese Navy will not stand long against the armada that will be assembled against it. Once the Chinese Navy is on the bottom of the sea, the nations organized to stop her watery land grab will have no desire to invade the mainland, or cause regime change in China. But the people of China may want regime change as a result, so what will the power elite of this authoritarian state do? If they decide to use nuclear weapons they may well damage certain cities in Australia and the United States but they will not bring the economies of these nations down and the inevitable retaliation will destroy China. Yet such is the temptation of sparsely settled territory with natural resources. Such territories are sometimes acquired by accession, annexation, prescription, or accretion, but historical sightings, ancient claims, ancient failed settlement attempts can not trump legally the United Nations Law of the Sea Convention regime for Exclusive Economic Zones or the modern Outer Continental Shelf Conventions. But let us now examine these other legitimate forms of territorial acquisition that may still govern remote and watery disputed regions.
Amazing that these matters occupy so much attention this long after what we thought was the close of the colonial era.
A nation may acquire sovereignty over territory by cession from another nation. The title a nation acquires by this means is not original. The title derives its validity from the ceding nation. If the ceded territory had not been effectively occupied or controlled by the ceding nation the title would lack validity. Cession may be voluntary as in the Alaska Purchase, or forced in a contest of arms. There is a growing tendency in international law to refuse to recognize cession without a plebiscite where settlements are involved, and to refuse to recognize cession by force of arms. However enforcement had been inconsistent up until the time of the Falkland War. China obviously hopes to avoid enforcement by bullying her neighbors into ceding the desired territories by constant actions that raise the cost of effectively enforcing soverignity. The problem with that approach is that nations have been known to go to extraordinary measures to defend territory, playing at the brink of war usually simply leads to war.Though enforcement had been inconsistent in modern history, the law seems settled and we would predict that enforcement will occur if China crosses the line far enough.
A sovereign nation may acquire territory by annexation. This is distinguished from cession by its lack of a treaty. In annexation a nation proceeds to acquire sovereignty over some or all of the territory of another, with or without the consent of the other nation, and without benefit of a treaty. Basically annexation may be by conquest or threat of conquest. However, it can also occur as a result of effective occupation of disputed unoccupied territory. In rare cases it can result from the desire of the residents of an area to affiliate with the state annexing the territory. Article 2 of the United Nations Charter prohibits the threat of actual use of force against the territorial integrity or political independence of any state. This means that annexation by conquest or threat of conquest would be viewed as illegal by UN member states. It is unlikely that such a view would invalidate title by annexation through conquest occurring prior to the ratification of the UN Charter.
Prescription conveys sovereignty over territory to an occupying state simply by virtue of long understood governmental control over the area. There may come a time when the international community views the control as accepted , peaceful, and conducive to good international order regardless of how the control was first established. Here we see a route by which China may actually acquire sovereignty over her neighbor's islands if they do not respond to her illegal settlements and patrols. If it goes on long enough uncontested it could happen. It might take over a hundred years however. Would the global economy still be interested in the fisheries and oil? There can be no reliable licensing of these activities in the region while a full blown contest over soverignity , even if short of war, is going on.
Accretion is the .process where new land is created within the territorial boundaries of a nation. The nation where this occurs immediately and automatically acquires title and sovereignty over the new lands. Examples in recent history include the creation of volcanic islands within the territorial seas of Iceland and Greenland, the building of the Atchafalaya Delta in Louisiana, and the artificial enclosure of the Zudier Zee in the Netherlands creating land out of sea bottom.
TO BE CONTINUED: NEXT THE IMPORTANCE OF LAND TO THE CONCEPT OF TERRITORY, INCLUDING WATERY TERRITORIES