Traditional modes of acquisition
- Occupation: taking effective possession of terra nullius with the intention to act as sovereign
- Accretion: natural growth of territory through deposits or volcanic activity
- Cession: transfer of territory by treaty
- Prescription: claimed title through long, peaceful and open control of another state's territory (contested)
- Conquest: no longer a valid mode since article 2(4) of the UN Charter prohibits the use of force
Effective control
In the Island of Palmas arbitration (1928), Max Huber held that discovery gives only an inchoate title, which must be completed by the continuous and peaceful display of state authority. Legislation, administration, taxation and courts count as evidence. In the Eastern Greenland case (1933), the Permanent Court accepted that very little actual exercise of authority suffices for thinly populated areas.
Title versus effectivités
In Burkina Faso/Mali (1986) the ICJ said that a valid legal title prevails over conflicting practice, while effectivités matter mainly when title is unclear. In Ligitan/Sipadan (2002) the Court found for Malaysia based on its administrative acts because neither party proved a treaty title.
The critical date
Acts taken after a dispute crystallised in order to improve a party's position carry little weight, so identifying the critical date is often decisive.
Korean context
For Dokdo, Korea relies on historical title and continuous effective control and considers there to be no dispute, while Japan cites its 1905 Shimane incorporation. The debate turns on terra nullius, the critical date and the interpretation of the 1951 San Francisco Peace Treaty.
References
- Island of Palmas Case (Netherlands v. United States), 2 R.I.A.A. 829 (Permanent Court of Arbitration, 1928).
- Legal Status of Eastern Greenland (Denmark v. Norway), 1933 P.C.I.J. (ser. A/B) No. 53.
- Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 625.
- Shaw, M. N. (2021). International Law (9th ed.). Cambridge University Press.
- 김대순. (2022). 『국제법론』(제22판). 삼영사.