Stephen Vasciannie | Just wearing a colourful shirt?

In 1962, Cambodia and Thailand had an important border dispute between both states addressed by the International Court of Justice.  The case concerned whether a particular temple belonged to Cambodia or to Thailand.  

It thus became known as The Case of the Temple at Preah Vihear.  The court found that Cambodia had title to the temple on the basis that Thailand’s actions had recognised Cambodia’s sovereignty over the relevant area.

ESTOPPEL

Two actions proved decisive in the Temple Case.  First, Cambodia sent a map of the temple area to Thailand, indicating that the temple belonged to Cambodia.  Thailand expressed its gratitude for the map, and did not protest about it.  Secondly, a leader of Thailand visited the temple and accepted the hospitality of the Cambodian (French) authorities during the visit.  Thailand was estopped from denying Cambodian title over the temple. 

Now, the approach taken by the court in the Temple Case was convincing enough, but it may not be readily replicated.  This is so because most countries with territorial claims are not likely to lose their claims through inadvertence, as Thailand appears to have done. 

Also, it should be emphasised that cases concerning title to territory for states usually turn on factors other than estoppel. These rules include: the right of self-determination of peoples, the concept of uti possidetis, certain so-called traditional modes of acquiring title, and the general idea of effective control over territory in dispute. 

SELF-DETERMINATION

In practice, these approaches are more easily stated than applied.  For example, self-determination relies on the notion that the sovereign will of the people in an area shall be respected.  But then the questions arise: consider title to Catalonia, Spain.  Which people should determine title? The Catalans or the Spanish as a whole?  

We should be careful, however, not to assume that problems associated with self-determination undermine completely the power of the concept.  Problems there are, but self-determination has played a prominent role in the decolonisation of the Global South, largely through the impact of UN General Assembly Resolution 1514 of 1960, a pronouncement that represents customary international law. 

UTI POSSIDETIS

Somewhat surprisingly, the concept of uti possidetis has also retained prominence in the modern law about title to territory.  The term uti possidetis (meaning literally “as you possess thus you may possess”) encapsulates the view that a newly independent state shall inherit title to territory over land that had previously been held by colonial powers.  

Accordingly, in the 19th century when Latin American countries emerged from the Spanish Empire, they normally delineated their boundaries by reference to lines previously drawn for Spanish administrative regions. Likewise, in parts of Africa, following decolonisation from British and French control, the post-colonial boundaries of the new states adhered to boundaries that had been established by the colonial powers.

Given the historical fact that some colonial boundaries disregarded traditional African boundaries and ethnic divisions, we are entitled to question why the OAU accepted unreservedly, the concept of uti possidetis.  The answer concerns order: understandably anxious to tackle the realities of their post-colonial societies, the new states opted not to reopen boundary questions, as a way of avoiding disruption. 

Then there are the “traditional modes” of determining title to territory. Prior to World War II, these traditional modes were: (a) Occupation (of land owned by no one); (b) Prescription (taking over the land of another); (c) Cession; (d) Operations of Nature; and (e) Conquest.  These modes pertain mainly to effective control of territory by a state and will usually grant title to the controlling state. Save for conquest, these modes remain valid in practice.  

SHIRT

Finally, return to the colourful shirt of my title. State A has a claim over a large area of land called, say, Zutupec, which is rich in resources, but it is also claimed by State B.  State B is currently in control of Zutupec.  

The prime minister of State A visits State B wearing a shirt stating “Zutupec belongs to State A”.  The president of State B observes: “Prime Minister, I admire your sartorial elegance; where can I get one of these shirts?”

The prime minister pulls out a second shirt with the same message and gives it to the president of State B.  The prime minister adds: “This confirms that Zutupec belongs to my State (A)”.

“Yes, thank you,” replies the president of State B.

Applying the estoppel principle from the Temple Case, the president of State B could lose more than his shirt.  

Be careful, CARICOM – not a blade of grass!

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