Article

Territorial Title

Masaharu Yanagihara

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI: http://dx.doi.org/10.1093/obo/9780199796953-0004
Territorial Title

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Especially essential for the existence of modern European international law is a state with a “defined territory,” or a “territorial state.” International law cannot exist without a coexistence of several sovereign and territorial states. According to the definition of modern European international law, “territory” is not the same as “territory” in ancient and medieval Europe or “territory” in medieval or early modern East Asia. The concept of state territory composed of land as principal and sea as accessory, as well as the concept of territorial title as facts justifying an acquisition of territory, were developed in the 18th and the early 19th centuries in Europe. State territory in the case of a newly established state, justified by the theory of state recognition, was completely distinguished from the territory defined by the concept of territorial title. The theory of territorial title that asserts five modes of acquiring territory, such as occupation, accretion, cession, subjugation (conquest), and prescription, was elaborated in the latter half of the 19th century and in the beginning of the 20th century, following private law patterns. Discovery as a legal term was extremely controversial, dealing with issues such as whether this category was recognized as a complete title at some point in time, what kind of symbolic acts were required to compel discovery, what is the real meaning of “inchoate title” assigned to discovery, and so on. Currently, the only mode of acquisition of territorial title in operation is accretion and cession. Occupation is not usually relevant given the lack of terrae nullius. Conquest is incompatible with the prohibition of the use of force in international relations. Prescription continues to be one of the most controversial issues among international lawyers as well as in state practices. It is sometimes contended that its ultimate justification lies in the principles of effectiveness, recognition, and acquiescence, or a historic title. Significantly, traditional modes of acquisition have not necessarily played a decisive role in territorial disputes in international tribunals.

Article.  6321 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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