Legal Title Versus Effectivités: Prescription and the Promise and Problems of Private Law Analogies
(2011) 13 International Community Law Review 147–188
Republished in Kohen (ed.),Territoriality in International Law (Cheltenham: Edward Elgar, 2016), Chap. 11
36 Pages Posted: 3 Dec 2019 Last revised: 14 Dec 2019
Date Written: 2011
Abstract
Faced with the question whether the effective display of sovereignty in territory by one state can in law trump another state’s prior definitive title to the same expanse, international courts and tribunals have drawn inspiration from analogy with the private law doctrines of acquisitive prescription (from the civil law) and adverse possession (from the common law). But the different structural bases of municipal law and international law respectively have made the straight transposition of these cognate doctrines to the latter technically and conceptually unworkable. In response, while guided by the policy reflected in acquisitive prescription and adverse possession, international adjudicators have cast about for explanatory private law analogies more attuned to the horizontality and voluntarism of the international legal order. Yet the availability in municipal law of a number of relevant doctrines has produced a hotchpotch of conceptual bases for the trumping of legal title by effectivités. The common denominator nonetheless has been the necessity of manifest acquiescence on the part of the title-holder to a change in title. In turn, such acquiescence has been described, and more accurately, as tacit recognition. Ultimately, then, an international legal question has been answered, and answered better, in the native language of international law.
Keywords: Effectivités
JEL Classification: K33
Suggested Citation: Suggested Citation