Historic Titles in International Law PDF
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HISTORIC TITLES IN INTERNATIONAL LAW HISTORIC TITLES IN INTERNATIONAL LAW by YEHUDA Z. BLUM M. JUR. (JERUS.), PH. D. (LOND.) Lecturer in International Law, Hebrew University of Jerusalem Assistant Legal Adviser, Israel Ministry for Foreign Affairs Member of the Israel Bar FOREWORD BY D. H. N. JOHNSON Professor of International and Air Law University of London MARTINUS NI]HOFF / THE HAGUE / 1965 ISBN 978-94-015-0201-6 ISBN 978-94-015-0699-1 (eBook) DOl 10.1007/978-94-015-0699-1 Copyright, 1965, by Martinus Nijhoff, The Hague, Netherlands Softeover reprint of the hardcover 1st edition 1965 All rights reserved, including the right to translate or to reproduce this book or parts thereof in any form To the memory of my grandfather JOSEPH DUX who perished inJune 1944 in the German extermination camp of Auschwitz at the age of 84 FOREWORD The question of Historic Titles in International Law has been much discussed in recent years. In particular, it was an issue of some im portance in several international arbitrations, such as the Gulf of Fon seca case, decided by the Central American Court ofJ ustice; the Island of Palmas case, decided by Judge Huber as sole arbitrator, under the auspices of the Permanent Court of Arbitration; the case concerning the Legal Status rif Eastern Greenland before the Permanent Court of International Justice; and, more recently still, the cases concerning Fisheries (United Kingdom v. Norway); Minquiers and Ecrehos Islets (U nited Kingdom v. France) ; Certain Frontier Land (Belgium v. N ether lands); and Temple rif Preah Vihear (Cambodia v. Thailand), before the International Court of Justice. Historic Titles are probably also a re levant factor in a number of territorial disputes that have not yet been submitted to arbitration or judicial settlement. The recent controversies over the proper breadth for the territorial sea and the exclusive fishing limits of coastal States have brought to the fore new aspects of the problem. There is, for instance, the question whether States, whose nationals have for a certain period of time been accustomed to fish in areas of sea relatively close to the coasts of other States, have acquired for those nationals a right, in the nature of an historic right, to continue to fish in those areas, notwithstanding an extension of their territorial sea and their exclusive fishing limits by the coastal States concerned. There is also the question whether the right of innocent passage, normally regarded as a right confined to the territorial sea, may not also exist through the internal waters of certain States where the States concerned have recently extended either their internal or their territorial waters. Whether such an exception will be permitted or not will almost certainly depend on historic factors. These questions were much discussed at the United Nations Conferences on the Law of the ,Sea, held at Geneva in 1958 and 1960. vm FOREWORD The question of historic titles is not new. But, in the past, there has been a tendency not to see the problem as a whole. Writers have been apt to treat the problem as one appertaining exclusively to maritime territory e.g. the question of the so-called "historic bays" or "historic waters." Alternatively, the problem has been regarded as merely in cidental to the rather sterile controversy as to whether prescription is or is not a recognised means of acquiring title to territory under inter national law. The decisions of international tribunals mentioned above, and dis cussed at great length by Dr. Blum, show that, while the maritime factors are important, the question of historic titles deserves to be con sidered as a whole and not exclusively in the maritime context. It needs, for instance, to be considered in conjunction with such associated doctrines as acquiescence and estoppel. It needs to be considered too in relation to the whole process whereby international customary law is formed. Thus considered, the doctrine of historic titles can be shown to play an intelligible and constructive role in international law. It is my belief that Dr. Blum's book contributes greatly to the clarifi cation of these, and many other, questions. I am therefore grateful to have the opportunity in this Foreword to welcome it as a timely and valuable contribution to the literature of international law. D. H. N. JOHNSON London, February 1965 PREFACE This book, which has grown out of a Ph. D. thesis submitted to the University of London in 1961, is a study of the Historic Title, one of the titles to territory recognized by international law. During my two years of study at the London School of Economics and Political Science I had the privilege of working under the supervision of Professor D. H. N. Johnson, Professor of International and Air Law in the University of London. His personal interest in the progress of my work as well as his constant guidance and encouragement carried me through the difficulties well known to those who have engaged in research oft his kind. Dr. D. W. Bowett, Fellow of Queen's College, Cambridge, external examiner of the thesis, and Dr. Shabtai Rosenne, Legal Adviser to the Israel Ministry for Foreign Affairs, Member of the International Law Commission and Associate of the Institut de Droit International, have read the manuscript and were kind enough to make valuable obser vations on it. Needless to say, I alone bear responsibility for the views expressed in the book. I wish to thank the staff of the libraries of the London School of Economics and of the Institute of Advanced Legal Studies, University of London, for their patience and consideration. I wish further to express my thanks to Mr. Henry Shaw, Director of the B'nai B'rith Hillel Foundation in London, fOI his interest and the assistance he rendered to me during my stay in London. Thanks are also due to the publishers for their courtesy and for bearance at all stages of the production of this book. It is a time-honoured Jewish custom for an author, on completing his work, to give thanks to the Almighty. This I do now in all humility, especially as a survivor of the Bergen-Belsen concentration camp and as one belonging to a generation of Jewish youth in Europe, few of whom lived to see the end of the Second World War. This book is dedicated to the memory of my grandfather who, together with some x PREFACE sixty members of his family, was among the victims of what Sir Winston Churchill called "a monstrous tyranny, never surpassed in the dark, lamentable catalogue of human crime" (House of Commons, May 13th, 1940). It is my sincere wish that this book may make a modest contribution to international law, which it is imperative to strengthen if we are to save succeeding generations from catastrophes like that which so recently threatened the very existence of humanity. Hebrew University of Jerusalem, Adar I, 5725 I February, 1965 Y. Z. B. TABLE OF CONTENTS Foreword by D. H. N. JOHNSON VII Preface IX Table of cases XV List of abbreviations XXI CHAPTER 1. INTRODUCTION 1. The acquisition of territory: the evolution of the modern concept 2. The acquisition of territory: the differing approach of aca- demic and practising lawyers 2 3. The various modes of acquiring territory - Classification 3 4. Plan of the work 4 CHAPTER II. PRESCRIPTION IN INTERNATIONAL LAW 6 5. The distinction between acquisitive prescription and extinc- tive prescription 6 6. Prescription as a private law concept 6 7. Private law concepts in international law 7 8. Divergence of the definition of prescription between the continental and English legal systems 8 9. Prescription in municipal law - Roman law 9 10. Prescription in municipal law - English law 10 11. Prescription in municipal law - Conclusions 11 12. Doctrinal reasons for the existence of prescription in inter- national law 12 xu TABLE OF CONTENTS 13. The existence of prescription in internationallaw - Opinions of writers 15 14. The existence of prescription in international law - Judicial decisions rendered by international tribunals 20 15. The existence of prescription in international law - Judicial decisions rendered by municipal courts 29 16. The existence of prescription in international law - Practice of States 34 CHAPTER III. ACQUIESCENCE AS THE JURIDICAL BASIS OF AN HISTORIC TITLE 38 17. General 38 18. The creation of a customary rule of international law - The generality of practice and the time element 39 19. The creation of a customary rule of international law - Opinio juris and acquiescence 41 20. The consensual basis of customary international law 46 21. Recognition and acquiescence 49 22. The role of the time element in the creation of special custom- ary or "historic" rights 52 23. Some historic rights viewed as remainders of more extensive ancient rights 55 24. Non-exclusive historic rights 57 25. Acquiescence versus prescription as the legal basis of historic rights 59 26. Acquiescence as the juridical basis of historic rights - Opinions of writers 60 27. Acquiescence as the juridical basis of historic rights - Opinions of learned bodies 65 28. Acquiescence as the juridical basis of historic rights - Deci- sions of international tribunals 67 29. Acquiescence as the juridical basis of historic rights - Deci- sions of municipal courts 78 30. Acquiescence as the juridical basis of historic rights - State practice 81 31. Acquiescence and estoppel 90
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