‘The colonial legacy pervades international law on title to territory. This can be seen in the modes of acquisition of title to territory, many of its key principles and concepts, and the identity of the territories that are in dispute.’ Discuss.
Whilst the process of decolonisation is largely over, the history of international law is undeniably tainted with colonialism. Such legacies do not simply disappear. This essay will evaluate each of the claims and conclude that, like many aspects of modern society today, the colonial legacy does indeed pervade the law on title to territory.
Identity of Territories in Dispute
Title to territory refers to the factual and legal conditions which allow a valid claim to territorial sovereignty against other states. It is relative, not absolute (Legal Status of Eastern Greenland) and is heralded as one of the “linchpins of the international system” (Shaw).
Decolonisation has left a “legacy of territorial uncertainties [and] imprecisions” (Thirlway) and this can be seen in the identity of territories that are in dispute. Many cases involve former colonial states against former colonised states, even if the dispute is not directly about colonialism. For instance, in Nicaragua v Hounduras, there were two successor states to a single colonial state, Spain. In Chagos Islands, the UK was in tension with former-Commonwealth state, Mauritius. It is immediately apparent that the identities of territories are clouded with colonialist legacies.
Modes of Acquisition
Of the five classic modes of acquisition, several involve colonialist origins. Occupation was a mode of acquiring title to territory through an exercise of a sovereign authority over terra nullius. Historically, colonial powers argued indigenous peoples did not have sovereignty over their territory, claiming it as terra nullius. The Courts in Mabo v Queensland and Western Sahara condemned this practice, concluding that the respective territories were inhabited by peoples at the time of colonisation. Such cases demonstrate how westernised conceptions of a state (based on criteria such as agriculture and settlements) led to conclusions that inhabited territories were terra nullius, supporting the “proof of the disposition of Western political thought to empire” (Fitzmaurice). Seemingly, as Mickleson observes, “the lighter the ecological footprint…the less likely the colonisers were to see the land as ‘inhabited’”. This historical colonial legacy pervades modern titles to territory today.
Conquest was a method of acquiring territory through annexation, following military defeat. The “grave dangers of abuse inherent” (Jennings) in this mode of acquisition have been outlawed by the prohibition on force in Art 2(4) UN Charter. Yet, Wheaton has suggested that prescription is used to legitimise territories previously acquired by conquest. Prescription involves acquiring title to territory through exercise of sovereign authority for a prolonged period, which may ultimately permit the attainment of title to territory via the prior, inherently colonial mode of acquisition of conquest.
Cession represents the consensual transfer of sovereignty from one state to another and represents another colonialist legacy in the law on title to territory. States would often conclude imbalanced treaties with representatives of inhabitants, leading to territory formally being ‘ceded’ to colonial power. Oftentimes, treaties were completed under threat of force, as use of force was not prohibited under international law at the time. Such territorial boundaries remain intact today, such as the transfer of Gibraltar from Spain to the UK in 1713, providing a pertinent example of the colonial legacy pervading modern reality of international law.
Key Principles and Concepts
There are several principles governing the law of territory today, including the rule of intertemporal law, critical date, self-determination, and the prime example of a colonial legacy enshrined in a legal rule – uti possidetis juris.
On the one hand, intertemporal law has colonialist overtones, as it allows for sovereignty acquired by conquest in 19th century to be analysed based on the law at the time. Yet, as Kohen notes, the “maintenance of sovereignty must conform to the present legal situation”, and thus sovereignty acquired over territory in such a way can be “superseded by the evolution of international law”. The Friendly Relations Declaration solidified this transformation of colonial title to titles of administration. Therefore, the principle of intertemporal law may preserve colonial legacies only up to the extent they are compatible with modern principles, such as the right to self-determination. The critical date, defined as the date at which the dispute over territory has crystallised (Pulau Batu Puteh), is usually the date of independence, demonstrating inherent links of territorial title to colonialism.
The principle of uti possidetis best illuminates the statement. Paternalistic colonial undertones lace the principle, with the ICJ explaining its purpose as preventing the “stability of new States being endangered by fratricidal struggles” (Burkina Faso/Mali). Yet, these ‘fratricidal struggles’ are only emerging due to the disregard that former imperialists had when drawing up colonial boundaries. Former Prime Minister, Lord Salisbury, exemplifies this attitude of “drawing lines upon maps where no white man’s feet have ever trod” (quoted in Libya/Chad). Ratner believes it is time to re-examine uti possidetis as it is “profoundly at odds with current trends in international law and politics”. Are such boundaries real international boundaries? Or were they simply artificial constructs to serve colonialist functions? If so, why does international law protect them? It could be argued that uti possidetis relates more to stability of boundaries than the preserving colonialist legacies. The Badinter Commission, Opinion No2 emphasised that legal developments “must not involve changes to existing frontiers at the time of independence”.
Yet, this renders uti possidetis in direct tension with the principle of self-determination - a right created to allow groups of individuals to realise their independence. In the context of self-determination claims, the “complexity of the territorial element cannot be wished away through invocation of a hallowed formula” (Ratner). Such tension was observed by the Court in Burkina Faso, who eventually concluded that maintenance of the status quo was the “wisest course”. It seems therefore that the map is sketched according to processes now deemed illegitimate, which may contribute to worsening conditions in these new countries. McCorquodale and Pangalangan suggest that even definite boundaries inherited from colonial past should be open to challenge, as they are “tainted” from the manner of creation. Yet, as Scelle notes, an “obsession du territoire” has led to the maintenance of colonialist legacy. Such a legacy persists so long as the physical boundaries remain intact.
On the other hand, the statement can be challenged. International law has progressed greatly since colonialism and has offset much of the legacy through new principles. As Kohen and Hébié observe, “contemporary principles such as the right to self-determination or prohibition on use of force have “produced significant changes in the law” relating to title of territory. Self-determination was almost exclusively designed to counteract colonialist legacies, and “decolonisation has always been the firm ground on which the right to self-determination applies” (Thürer and Burri). Kohen observes the major effects of self-determination on territorial sovereignty which, notably for our purposes, involves the rights of colonial peoples to decide on the international legal status of their territory. This is jus cogens (East Timor) and erga omnes (Wall), possibly demarcating a gradual shedding of colonial legacies surrounding title to territory.
Overall, however, it can be argued that colonial legacy does pervade international law on title to territory, apparent in the identities of the states bringing forth claims, the modes of acquisition of title and, most poignantly, the principles underpinning title to territory. It is difficult to detach modern reality from historical context, and such a colonial legacy will not simply fade out of existence without active concerted efforts to acknowledge and undo its impact.