The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law

Leiden Journal of International Law, Vol. 19, pp. 1041–1075, 2006

35 Pages Posted: 9 Oct 2010  

Giovanni Distefano

University of Neuchatel - Faculty of Law; University of Geneva - Geneva Academy of International Humanitarian Law and Human Rights

Date Written: 2006

Abstract

The present article aims to examine a set of legal constructions related to the concept of legal title in territorial disputes. Any international jurist cannot but strongly feel the need of a theoretical approach and framework explaining the acquisition and loss of territorial sovereignty. This conceptualization will be put to the test in the light of the ICI’s case law, especially, but not exclusively, the most recent ones. To this end, the article is structured in three main parts in addition to introduction: the first will be devoted to the building of a comprehensive concept of territorial titlewhile rejecting the traditional ‘modes of acquisition’ of territorial sovereignty (part 2). Part 3 will deal with the legal processes through which territorial titles are actually created, extinguished, or modified: roughly speaking, this happens by an international agreements (legal acts) or by virtue of norm-creating facts. Last, but not least, we shall examine – in part 4 – the highly debated and sensitive topic of the relations between effectiveness and formal legal title from the standpoint of the establishment or loss of territorial sovereignty. As we have endeavoured to show in this writing the concept of legal title reunites and resolves the tension between fact (effectiveness) and formal gegal title (law). In this respect four situations will be put under scrutiny in order ultimately to test our construction of a new concept of territorial title.

Keywords: abandonment, acquiescence, acquisitive prescription, adverse possession, disputed possession, effectiveness, estoppel, immemorial possession, legal title, modes of acquisition and loss of territorial sovereignty, subsequent practice, territorial sovereignty, territorial title

JEL Classification: K33, K10, K40

Suggested Citation

Distefano, Giovanni, The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law (2006). Leiden Journal of International Law, Vol. 19, pp. 1041–1075, 2006. Available at SSRN: https://ssrn.com/abstract=1688945

Giovanni Distefano (Contact Author)

University of Neuchatel - Faculty of Law ( email )

Neuchatel, CH-2000
Switzerland

University of Geneva - Geneva Academy of International Humanitarian Law and Human Rights ( email )

Villa Moynier
120B rue de Lausanne
Geneva, 1211
Switzerland

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