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International law is a vital medium for settling disputes between states; it therefore acts

as a hindrance - or resolve to restraints demanding the attention of the international

community. These disputes are resolved by the International Court of Justice on hearing

the claims of member States by administering in accordance with international law:

a) International conventions;

b) International customary law;

c) General principles of law;

d) Judicial decisions and the works of highly qualified legal jurist/academia.

This is promulgated by article 38(1) statute of the International Court of Justice1. The

aforementioned sources are necessitated in this essay and will be use to examine the

problem question relating to territorial disputes among Lisboa, Colonia and Portugal –and

how all of the sources have impacted the development of title to territory through the

development of international law.

It would be relatively imperative, to provide definitions to a few legal expressions which

will be use throughout this essay, as State entities base their arguments for legitimacy of

title around them. These concepts are:

a. Cession – which is ‘ the transfer of sovereignty over state territory by the owner-

state to another state…’ opined by Oppenheim;

b. Critical date – ‘[this is] the date on which the location of territorial sovereignty is

decisive’;

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c. Intertemporal law – This refers to ‘the law that international courts apply to

evaluate changes in international law…. The existence of a right must be

determined based on the law at the time of the creation of the right and the

international law applicable to the continued existence of that right’;

d. Discovery – ‘… to discover lands unknown to other(s) [and to] claim property and

sovereign rights over the lands and [its] native peoples… discovery, however, was

usually considered to have created only an incomplete title… [however,] [a]ctual

occupancy and current possession [was needed] to turn …discovery into

recognized title… to actually occupy and possess newly found lands. This was

usually done by building forts or settlements. Physical possession had to be

accomplished within a reasonable amount of time after the first discovery to create

a complete title.

e. Prescription – This title is obtained when a state entity takes possession when it is

not the first state authority or original title owner of the territory.

The concepts and modes of acquisition mentioned above help States argue better title to

territory – This aids tribunals, arbitrators or courts to formulate enquiries which they deem

necessary upon making decisions between disputed countries who claim to hold greater

title to property.

This could be substantiated in the Island of Palmas case (Netherlands v U.S) whereby it

was held that:

“[I]t is customary to examine which of the States claiming sovereignty possesses

a title – cession, conquest, occupation, etc. – superior to that which the other State

might possibly bring forward against it.” Award of the Arbitrator (Huber) 2

Several issues are to be discussed before providing a conclusion as to which State in the

problem question i.e. whether it be Colonia or Lisboa could lay better claim to the island

of Fantasia. In this essay each issue will be stated by using the relevant authorities and

law – therefore, there will be an analysis of the issues and arguments – henceforth,

concluding with the best and most formidable argument which is available to the said

States; providing that this essay remains structured and its analysis of the issues and

possible arguments are coherent and are intertwined with the applicable law then the

conclusion will breed a plausible victor State who will then possess the rights to the

disputed.

a. The first question which needs clarification is whether Portugal had legal

title to territory upon discovery by its naval captain in the 1700’s.

Title by discovery and by extension conquest prior to the 1700’s was the most crude and

used mode of acquisition by the Super Power States, during that time. This resulted from

the fact that lands (primarily archipelagoes and by extension North and South America)

which are west of Europe known as the New World were undiscovered and uninhabited

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by Europeans. As such most prima facie territories were regarded as Terra Nullius

meaning ‘Nobody’s land.’

During the 1400’s it has been recorded that States would have considered mere discovery

to uninhabited territories (Terra Nullius) or territories which are inhabited but by people

who inter alia are unorganized politically and uncivilized acceptable to lay claim to the

said territories, thereof. However, given the definition of intertemporal law which is

‘[T]he law that international courts apply to evaluate changes in international law….

The existence of a right must be determined based on the law at the time of the

creation of the right and the international law applicable to the continued existence

of that right.’ 3

Therefore based on the posited definition of intertemporal law, it is indicative that the

inference reached – which is, the laws concerning discovery have been developing over

the centuries. It would be plausible to examine what was/is deemed necessary to hold

title to territory during the 1700’s as provided by the definition of the doctrine of

intertemporal law. Being learned of such doctrine and based on acquired readings the

law concerning discovery after the 1400’s have change. As such it no longer considers

mere discovery to be sufficient for a State or an individual representing the state to lay

claim to territory that is terra nullius. However, after the 1400’s it was stated that upon

discovery – one not only had to see/ visually apprehend the territory but also perform

such a symbolic act such as the placement of a flag on the land that the state had

3
Uslegalcom, 'Intertemporal law law and legal definitions' (Uslegalcom, 2001)
<http://definitions.uslegal.com/i/intertemporal-law/> accessed 18 February 2016
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discovered. Which in fact was not done by Portugal. Nonetheless, the law that mere

discovery and a symbolic act was necessary to obtain title was replaced in the 1700’s to

hold legitimate title when effective occupation was also added to the mix. According to

Keller, Lissitzyn and Mann, referring the years 1400-1800, state that:

“Throughout this lengthy period, no state appeared to regard mere discovery in the

sense of ‘physical’ discovery or simple ‘visual apprehension,’ as being in any way

sufficient per se to establish a right of sovereignty over, or a valid title to, terra

nullius… the symbolic act, was generally regarded as being wholly sufficient per

se to establish immediately a right of sovereignty over, or a valid title to, areas so

claimed and did not require to be supplemented by the performance of other acts,

such as , for example, ‘effective occupation.’ A right or title so acquired and

established was deemed good against all subsequent claims set up in opposition

thereto unless perhaps, transferred by conquest or treaty, relinquished,

abandoned, or successfully opposed by continued occupation on the part of some

other state.”4

Therefore, based on the corroborated evidence Portugal cannot display any such

legitimate title to territory as it needs to depict more than just visual apprehension during

that time as stated in the problem question. The naval captain had only made visual

contact with the land but made no attempt to settle it, or to have done a symbolic act on

behalf of his royal majesty the crown/State. Consequently, since no authority or act of

sovereignty was displayed or could be cited to a court or tribunal, it would be unanimously

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held that Portugal title could not be legitimate as it had not complete the requirements

necessary to satisfy the mode of acquisition known as discovery based on the doctrine of

intertemporal law, international law customs as purported in the aforesaid paragraph i.e.

the quotation located above stating that

“Throughout this lengthy period, no state appeared to regard mere discovery in the

sense of ‘physical’ discovery or simple ‘visual apprehension,’ as being in any way

sufficient per se to establish a right of sovereignty…”

b. Secondly, whether Colonia’s mode of acquisition falls under discovery

(original title) or whether it is prescriptive (derivative title).

Since Portugal had not done the necessary act which would be a symbolic one, they could

not have ousted the territory’s title which remained ‘terra nullius.’

Notwithstanding Portugal’s claim to title to Fantasia - Colonia’s title also lands itself as

being that of discovery. Since they possessed original title as stated above in para. [9]

That since Portugal left the territory terra nullius then the following explorer would have

the right to claim and exercise original title.

c. The penultimate issue which is the culmination of this essay is; whether

Colonia held during the time of its settlement and continues to hold after its

desertion of the land for a period as a result of a lack resources, good title

to territory.
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Similar to what was discussed above with Portugal in relation to discovery the same law

ought to and will be applied to Colonia. This issue requires from the essay an analysis of

Colonia’s title, if any – at the point that it had settle the territory and upon its abandonment

for cogent and prudent reasons i.e. ‘because of a lack of water and vegetation.’

By applying the applicable law to the issue it will be held that Colonia possessed the

necessary requirements to satisfy the accumulation of territory through Discovery.

However should it not suffice, which is highly unlikely – other modes of acquisition

specifically Prescription is available to the Colonians for use. This argument i.e. the

acquisition of title through ‘prescription’ will be discussed below.

When looking at Discovery, Colonia not only visually apprehended the plot of land

stippled, but by extension was a symbolic act done to which at the time was necessary.

This symbolic act came in the form of the placement of Colonia’s flag by its settlers on

Fantasia. Furthermore, they settled the territory which demonstrates that Colonia had the

intention of making the territory part of their domain. This could be substantiated further

by the fact that in the problem question it was stated that Colonia appointed a Governor

to represent its territory and settlers. Therefore, it is evidential that Colonia upon its

discovery of the territory known as Fantasia not only satisfied phase 2 of the title to

discovery but also added to its inchoate title which allowed it to exercise its right as

sovereign of the said property, thereof. The validation for the aforesaid sentence comes

from one of the most influential cases i.e. the Island of Palmas Case, when observing

‘title to territory.’

Judge Huber states,

“The title of discovery… exist only as an inchoate title, as a claim to establish

sovereignty by effective occupation. An inchoate title however cannot prevail over

a definite title founded on continuous and peaceful display of sovereignty.” 5 –

Island of Palmas of Case

However, Colonia had to disembark on its plans to the continued settlement of Fantasia.

The lack of resources made it unreasonable for the settlers to remain on the territory.

Nonetheless, in the Palmas case it was iterated by Judge Huber that:

“[S]overeignty cannot be exercised in fact at every moment on every point of a

territory.” 6

Notwithstanding the aforementioned quotation, Colonia persisted in its use of the territory.

According to the problem question:

‘…since about 1850, there has been regular fishing in the waters of Fantasia by

Colonian fishing boasts, and their sailors land on the island to process their catch

before returning to Colonia.’

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Therefore, on such basis which is the continued use of the soil/ territorial waters, the

premise of prescription as an argument to validate Colonia’s title over Fantasia will be

deemed equally plausible.

As seen in the Island of Palmas Case looking at the argument brought forth by the

Netherlands was that of prescription i.e. a continued illustration of authority over the

territory. Within that case the courts held that such an adverse possession which is

peaceful and continuous and not met with sufficient protest by the previous State – the

previous state entity would have been held to have acquiescent the territory to its adverse

possessor.

As seen in the problem question, Colonia enjoyed the use of the land for fifty (50) so

years. They were not met with protest within that period by Portugal nor Lisboa. Therefore,

on the basis of prescription Colonia needs to prove ‘effective occupation’ i.e. occupation

which is peaceful, continuous, public and exclusive. All these factors were essentially

stippled by Colonia. They established a governor as stated above which gives indication

that they had the intention of possessing the land and making it part of their domain. They

settled the territory with the exclusion of other nation state members having any form of

control in the internal affairs Fantasia.

In conclusion, it is highly evidential that Colonia’s title which is that formed on the basis

of Discovery is of great title as they have effectively satisfied the requirements set forth

by this mode of acquisition. As mentioned above, if this proves not to be the case and

Colonia has not fulfill the requirements promulgated by the international law on Discovery
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in relation on the claim of best title overall then they are not at the expense of any and

could rely on prescription through effective occupation, whereby – they effectively

occupied the land and, display sovereignty over the disputed territory within the

frameworks of the international law on prescription (which is, it must be peaceful,

continuous, exclusive, public.)

d. Whether, Lisboa claim to territory through cession upon their independence

sufficient means to hold greater title than that which could be proven by

Colonia.

In the interest of the reader, and strategical placements of arguments by the writer the

discussion of Lisboa in relation to its part in the fray i.e. its claim on the disputed

territory of Fantasia against its opposition Colonia, will be proven to be far from

the painstaking but necessary arguments discussed above.

In the Clipperton Case which was fought by Mexico and France, whereby Mexico

who thought clipperton belonged to her was protested by France who argued that

they possessed legal title to the territory. In that case, it was held that upon

discovery it would be equally necessary to establish the contention of the

successor state to prove that its mother country or the state entity bequeathing the

land not only had the right to entrench the territory and make it part of its dynasty

but could also effectively exercise the right to cede the territory. As could be

autheticated in the synopsis below looking at the Clipperton case which states:
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“However, even admitting that the discovery had been made by Spanish subjects,

it would be necessary, to establish the contention of Mexico to prove that Spain

not only had the right, as a State, to incorporate the island in her possessions, but

also had effectively exercised the right…”7

Lisboa argues that upon its official acceptance of being an independent state by its former

sovereign it was bequeathed the territory of Fantasia. As such another issue is to be taken

into consideration, which was previously discussed in the above paragraphs; which is

whether Portugal had good title or any title to pass down to its former colony.

As is known within the international community/law and that of most municipal

jurisdictions looking at property law, more specifically the doctrine of adverse possession

it is generally held that one cannot transfer a better title to territory than (s)/he has, as

stated within the Island of Palmas case. This is founded on the doctrine of ‘Nemo dat

quod non habet’

Based on the circumstantial evidence it is apparent that Portugal who had not completed

the necessary requirements to satisfy the stipulations for discovery as a mode of

acquisition, was therefore unable to pass down which it did not possess.

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As such, the treaty amongst Lisboa and Portugal in relation to Fantasia declaring it as a

nation or part and parcel to Lisboa will be/ should be considered null and void, since

Portugal did not possess Fantasia in the first place.

Furthermore, the arbitrator in the Eastern Greenland case stated that:

“A claim to sovereignty based upon some particular act or title such as a treaty of

cession but merely upon continued display of authority, involves two elements

each of which must be shown to exist: the intention and will to act as sovereign

and some actual exercise or display of such authority.” – (David Harris)

None of this was done by Portugal, they did not show any signs of an intention to act as

a sovereign other than the mere fact of visual apprehension and secondly they did not

display no such form of authority over the land, the same could be said for Lisboa since

their plans was thwarted by Colonia’s continued occupation of the soil.

Lisboa as a result of its proximity also had the opportunity to add to its claim that the

cession of Fantasia to it could be further strengthen by the argument of contiguity.

However, in the Islands of Palmas case Judge Huber made it clear that such an argument

cannot take life as a full fledge argument. As mere proximity cannot be used as a claim

but in the case of a lack of corroborated evidence of state authority, which in this problem

there is not this argument could have given Lisboa a better claim to title.

In addition, Lisboa and Portugal also had within their rights as ‘hypothetical owners’ of the

disputed territory of Fantasia, had the right to conduct peaceful protest in order to show

that they had not acquiescent the property to Colonia, since Colonia had control over the

land mass for such a prolonged period.

To conclude, among the three states Colonia based on the legal arguments available to

it and the strength of those arguments it will reign supreme between Lisboa and Portugal.

Portugal who spotted the land in the 1700’s did not complete the necessary requirements

to hone and take inchoate title which would allow her the rights to exercise the other

phase of obtaining its derivative title by Discovery. Therefore, Fantasia retained its title of

Terra Nullius since Portugal never took control of it. Remaining Terra Nullius and not

having any possessors, a territory not within the arms of a State entity (Portugal) cannot

be ceded to another (Lisboa) if that State does not own the rights to do such an act.

However, on the other hand Colonia upon its arrival on the territory provided for the

obligatory requirements from discovery which has developed overtime as a result of

intertemporal law. They visually apprehended the land mass, they performed a symbolic

act (placement of their flag) which signifies that they have possessed the territory in the

name of the crown, and also appointed a governor which depicts an intention to exercise

its authority over the state of Fantasia. Colonia was also able to establish two generations

of its people in the country of Fantasia. However, they fled the country for the sole purpose

of a lack of resources nonetheless, this does not give rise to them acquiescing the territory

to Lisboa, as no protest was taken neither by Portugal nor Lisboa, in the first place. They

continued with the use of the soil and as such could also show that at the time which
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looks at the dispute and the critical date which would be the point whereby the fracas

culminated and it would still be maintained that since a country after it has claimed its

sovereignty over a territory which is uninhabited does not need to show it has control over

the territory at all times. However, with the evidence provided in the essay is exponentially

evidential that Colonia exercised more state authority, in fact had exclusive state authority

over Fantasia – whereby Portugal and Lisboa had no claim to put forward to combat that

of Colonia. Henceforth, the winner of this fray will be Colonia.