From Apology To Utopia 1
From Apology To Utopia 1
Sovereignty
1
Many have recognized the existence of these two alternative viewpoints. Often, however,
the arguments on which the choice between them has been made, have been such as to
already assume the correctness of one or the other. Thus, for example, as Verdross makes
a naturalist ‘‘choice’’ to prefer the descending perspective, this is predetermined already
by the way in which he looks at the problem from a perspective external to ‘‘pure facts’’.
See e.g. Verdross (Verfassung) p. 118 et seq and passim. One lawyer to have clearly
realized that the choice between the viewpoints cannot be made by criteria determined
by the viewpoints themselves is Kelsen (Souveränität) for whom the choice remains an
extralegal (political) one, pp. 317–319; idem 14 RCADI 1926/IV pp. 321–326.
224
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4 SOVEREIGNTY 225
2
See e.g. Unger (Knowledge) pp. 191–235.
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any simple description of sovereign power into the norms which convey
or delimit such power. But in order to be justifiable, these latter norms
will have to be traced back to the sovereigns themselves. And from this
emerges the problem of how they can be used to achieve such delimit-
ations. In this chapter I shall argue that this intuitively felt ambiguity
follows from the way in which discourse attempts to preserve the
descending and ascending perspectives within itself. Moving thus within
contradictory premises, it fails to provide substantive resolution to
disputes involving arguments about sovereignty.
3
Schmitt (Political Theology) p. 31.
4
For Schmitt (Political Theology), the location of factual power remains usually hidden.
Things happen as if impersonal laws were governing. Only when the legal order is
threatened, that ultimate repository of power will manifest itself. It will then take on
the character of the ultimate ‘‘source of validity’’ of the order, pp. 5–15, 29–35.
5
See, generally, Kelsen (Soziologische) passim; idem (Souveränität) pp. 1–101.
6
Kelsen (Rechtslehre) pp. 67–89.
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4.1 S T R U C T U R E O F T H E P R O B L E M: S C H M I T T V . K E L S E N 227
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4.1.1 ‘‘L E G A L’’ A N D ‘‘P U R E F A C T ’’ A P P R O A C H E S 229
13
See supra, ch. 2.2.
14
For reviews, see Verdross (Einheit) pp. 13–29; Sauer (Solidarität) pp. 18–26.
15
Bodin (Six Livres) L.I, ch. VIII (p. 129).
16
Hart (Concept) pp. 215–218. Similarly Olivecrona (Rättsordningen) pp. 89–106.
17
Verdross (Einheit) p. 35. Idem 16 RCADI 1927/1 pp. 311–319. See also Kunz
(Anerkennung) pp. 17–19. This view was adopted by many early 20th century lawyers
as a part of their criticism of the professionals’ excessive emphasis on sovereignty. See
e.g. Politis 6 RCADI 1925/I p. 5 et seq; Krabbe 13 RCADI 1926/III pp. 576–581; Le Fur 18
RCADI 1927/III pp. 412–419; Scelle (Précis I) pp. 7–14 and infra n. 18. Frequently, this
view is expressed by holding the ‘‘international community’’ as conceptually anterior to
the individual State whose sovereignty is seen as its organ-status. See e.g. Sauer
(Solidarität) p. 163. Nippold 2 RCADI 1924/II argues that sovereignty is a principle of
municipal law, paralleled internationally by the principle of the international commu-
nity. Internationally, the only relevant sense of sovereignty is the systemic one; the one
endowing the State with the quality of ‘‘subject’’ of international law, pp. 22–24, 51–57.
Similarly, Bruns 1 ZaöRV 1929 pp. 10–12; Mosler 36 ZaöRV 1976 pp. 11–21; Verdross-
Simma (Völkerrecht) pp. 48–49; Alvarez, diss. op. ICJ: Corfu Channel Case, Reports
1949 p. 43. For the ‘‘systemic’’ character of sovereignty, see also Lauterpacht (Function)
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230 4 SOVEREIGNTY
pp. 95–96; Chen (Recognition) p. 20; Fitzmaurice XXX BYIL 1953 pp. 8–18; Coplin
(Functions) pp. 26–27, 30–31; Higgins (Reasonable) p. 10; Merrills (Anatomy)
pp. 30–31; Virally 183 RCADI 1983/V pp. 78–79. See also Ross (Text-book)
pp. 40–43; D’Amato 79 Northwestern University Law Review 1984–85 pp. 1305–1308.
18
Rousseau 93 RCADI 1958/I p. 394. See also generally ibid. pp. 397–426. See further,
Scelle 46 RCADI 1933/IV, for whom ‘‘le droit positif n’est qu’un faisceau de règles de
compétence’’, p. 367. This view follows from Scelle’s methodological individualism
which systematically breaks ‘‘moral persons’’ down to the rules of competence which are
directed at individuals. ‘‘Sovereignty’’ – like ‘‘State’’ – are only fictitious ways of speaking
about groups of individuals invested with specific types of competences, idem (Précis I)
pp. 7–14. Similarly Bourquin 35 RCADI 1931/I p. 101 et seq; François 66 RCADI 1938/IV
pp. 65–68; Cavaré (Droit international I) pp. 185–189 et seq; Reuter 103 RCADI 1961/II
pp. 512–516; idem (Droit international public) affirms, in a somewhat circular argu-
ment, that as no State can unilaterally extend its competence, it must be assumed that
such competences derive from international law – though the competence-
conferring rules remain few and fragmentary, pp. 156–157. The idea that the law is
simply a set of competences is associable with the ideal of the ‘‘completeness’’ of the legal
system. Everything is regulated because either someone has the competence or he has
not. For a recent, critical discussion of the idea of the State as an ‘‘order
of competences’’, see Carty (Decay) (tracing this idea to 19th century German public
law theories) pp. 43–48 et seq.
19
For the standard point about ‘‘relative sovereignty’’ as supreme power controlled by
the law, see e.g. Guggenheim 80 RCADI 1952/I pp. 84–85; Jenks (Common Law)
pp. 123–129; Schwarzenberger 10 CLP 1957 pp. 269–271; Nincić (Sovereignty)
pp. 6–15; Wildhaber (Macdonald-Johnston: Structure and Process) p. 437, passim.
Kelsen 14 RCADI 1926/IV points out the dilemma: ‘‘relative sovereignty’’ involves a
contradiction. The term’s original sense is that of supreme power. If power is limited by
the law, it cannot be supreme. To use the term is to distort ‘‘sovereignty’s’’ proper,
original sense, pp. 311–313; idem 84 RCADI 1953/III pp. 83–85.
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4.1.1 ‘‘L E G A L’’ A N D ‘‘P U R E F A C T ’’ A P P R O A C H E S 231
20
Much UN rhetoric, quite understandably, implies the legal approach. Thus, in the Draft
Declaration on the Rights and Duties of States it is pointed out that: ‘‘Every State has the
duty to conduct its relations with other States in accordance with international law and
with the principle that the sovereignty of each State is subject to the supremacy of
international law’’, UNGA Res. 375(IV) 6 December 1949. More recently, in the
Friendly Relations Declaration, it is argued that: ‘‘All States . . . are equal members of
the international community.’’ UNGA Res. 2625 (XXV) 24 October 1970. The idea is
taken into Article 2(3) of the 1982 UN Convention on the Law of the Sea: ‘‘The
sovereignty over the territorial sea is exercised subject to this Convention and to
other rules of international law.’’
21
Indeed, as Hobbes (Leviathan) noted, if the law arises from the sovereign, it seems
logically necessary to leave the sovereign itself unregulated by it, ch. 18 (pp. 230–231).
For this position in Vattel, see Ruddy (International law in the Enlightenment)
pp. 125–127. The same point underlies Hegel’s views about the relation between the
State and law. See e.g. Hegel (Grundlinien) x 331 (p. 284). The point encapsulates what
19th century German theorists argued as the ‘‘normative force of the factual’’, see
Jellinek (Allgemeine Staatslehre) pp. 337–339, 364 et seq. For a review, see Kunz
(Anerkennung) p. 18n. 10. For this position generally, see De Visscher (Theory)
pp. 166–169; von Simson (Souveränität) pp. 31–53. See also Raphael (Problems)
pp. 55–58 (generally), 59–75 (a criticism).
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232 4 SOVEREIGNTY
22
Lansing (Notes) attacks Bluntschli’s naturalism by the point that sovereignty cannot be
made a ‘‘public law conception’’ because this would make it unable to comprise the
factual, objective power on which public law itself stands. A meaningful concept
of sovereignty must, in this sense, be external to the law, an objective reason for it,
pp. 8–11.
23
For this view among professional lawyers, see e.g. Klüber (Droit des gens) pp. 28–30;
Merignhac (Traité, I) pp. 130–132; Hall (International Law) pp. 20–21.
24
See e.g. Westlake (Chapters) pp. 137 et seq, 141–143.
25
See, however, ICJ: Namibia Case, Reports 1971 in which it seems implied that if the UN
Security Council held a State ‘‘illegal’’ (as it has done e.g. in respect of Rhodesia or South
Africa’s Bantustan homelands), the members of the UN (and possibly other States, too)
would be under an obligation not to recognize that entity’s statehood, pp. 54–56
(xx 117–126).
26
Anzilotti (Cours, I) p. 169.
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4.1.2 CONTINUING DISPUTE ABOUT EXTENT OF SOVEREIGNTY 233
as a legal subject. The existence of that fact is beyond the control of the
law. It is simply given to it.27
Perhaps the most frequent version of the pure fact approach is
expressed in voluntarism, the view that international law emerges
from the will of the State. This view accepts as given the existence of
an authoritative will and proceeds to construct law from it.28 But many
other arguments, too, presuppose the pure fact view. It is present in the
argument that the State has a given sphere of domestic jurisdiction, or
that monism with the primacy of municipal law is correct, or that
conflicts between jurisdictions must be solved by looking at what rights
are entailed in ‘‘sovereignty’’ and statehood per se, or that the functions
of international organizations are dependent on what States have agreed
about them etc.
The two approaches involve opposing views on how to establish
whether a State is free in some particular relationship or not. The legal
approach assumes such freedom to exist when there exist legal
rules which have allocated it to the State. The pure fact view thinks
that a State is free ipso facto unless specific rules restrict its freedom. To
solve a normative problem about State freedom – even to approach the
problem – this question would seem to require prior solution. Making
a preference, however, is not at all an easy task.
27
The analogy is clearest in the non-problematic application of the idea of ‘‘fundamental
rights’’ at the inter-State level. The argument about sovereignty being such a right,
‘‘inherent’’ in statehood has a structural function identical to the human rights argu-
ment at the municipal level. See e.g. Vattel (Droit des Gens) L. I, ch. I x 1 (p. 17); G.-F. de
Martens (Précis, I) pp. 100–101; Wheaton (Elements) p. 27. For a more recent formula-
tion, see Korowicz 102 RCADI 1961/I p. 102. For a review of the analogy between the
conception of the individual with an ‘‘automatic’’ (natural) right of property and the
State with sovereignty over its territory through its simple existence as a State, see Carty
(Decay) pp. 44–46, 55–56.
28
For the classic, see Jellinek (Allgemeine) pp. 274–275. Indeed, Hart (Concept) holds the
two views as indistinguishable, pp. 218–219. The voluntaristic conception is taken as
the ‘‘real’’ sense of sovereignty also by von Simson (Souveränität) pp. 31–53.
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29
In fact, quite a few lawyers have, for one or another of the reasons stated below,
proposed a ‘‘rejection’’ of the concept altogether. See e.g. Kelsen (Souveränität)
p. 321; idem 84 RCADI 1953/III p. 82; idem (Principles) p. 194; Politis 6 RCADI
1925/I p. 5 et seq; Scelle (Précis, I) 13–14; Morellet XXXIII RGDIP 1924 pp. 116–119;
Eagleton 36 AJIL 1942 p. 234; Ross (Text-book) pp. 33 et seq, 44–45.
30
These lawyers have accused the former of ‘‘ideological escapism’’ and neglecting the
positive ‘‘functions’’ of sovereignty. See e.g. Bull (Falk-Kim-Mendlowitz) pp. 60–73;
Hinsley (Sovereignty) pp. 221–236; Schwarzenberger 10 CLP 1957 pp. 264–266 and
passim.
31
For early statements, see e.g. Olney 1 AJIL 1907 pp. 418 et seq, 429–430; Reinsch 23 AJIL
1909 pp. 1–19 et seq; Morellet XXXIII RGDIP 1926 pp. 113–114; Bourquin 35 RCADI
1931/I pp. 9 et seq, 23–26. See further Jessup (Modern) pp. 13, 36–42; Fried (Deutsch-
Hoffmann: Relevance) pp. 124–127.
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4.1.2 CONTINUING DISPUTE ABOUT EXTENT OF SOVEREIGNTY 235
32
See supra, ch. 3 n. 1 and e.g. Van Kleffens 82 RCADI 1953/I pp. 70–71; Schiffer (Legal
Community) pp. 193–201. Frequently ‘‘sovereignty’’ has been held an irrational and
essentially psychological – or psychopathological – idea, a ‘‘mystic sentiment expressed
in abstruse legal doctrines’’, Howard-Ellis (Origin) p. 120. To the same effect, see West
(Psychology) pp. 29–37, 180 et seq, 200–202; De Visscher (Theory) p. 64; Kaplan-
Katzenbach (Political Foundations) p. 135; Stone (Conflict) p. 109; Ross (Text-book)
pp. 37–39.
33
See Lansing 1 AJIL 1907 p. 105 et seq. Articles published also in Lansing (Notes).
34
Wildhaber (Macdonald-Johnston: Structure and Process) p. 436. On these points, see
also Brierly (Law of Nations) p. 15; Ross (Text-book) pp. 45–46 and the strong criticism
in Falk-Kim-Mendlowitz (Toward) pp. 55–139.
35
For Kelsen, the juridical concept of ‘‘State’’ coalesces with the concept of the legal order.
Juridically, to call the State ‘‘sovereign’’ is to attribute a quality to the legal order, not to
the ‘‘sociological conception’’ of the State as a factual centre of power. This quality refers
to the legal order’s formal validity vis-à-vis other legal orders. See Kelsen (Souveränität)
pp. 9–16 and passim.
36
Ibid. pp. 314–319. 37 See supra n. 12.
38
See Ross 70 Harvard L.R. 1957 pp. 812–815; idem (Text-book) pp. 33 et seq, 40–45. See
also Politis 6 RCADI 1925/I pp. 15–23.
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39
Kelsen (Souveränität) himself recognizes that the choice between the two ‘‘monisms’’
remains a political one – a choice regarding one’s ‘‘Welt- und Lebensanschauung’’,
p. 317.
40
Thus Kaufmann 54 RCADI 1935/IV is able to argue on explicitly Hegelian premises
against ‘‘absolutist’’ ideas of sovereignty. Recognizing sovereignty as the supreme will
and power does not mean that the sovereign could use that will and power in an
‘‘arbitrary’’ way. For sovereignty includes also the idea of the State’s responsibility
towards itself and its duty to have regard to the objective commands of morality and
interdependence as well as to the duties accepted by it. Though ‘‘inherent’’, sovereignty
is also ‘‘elastic’’, pp. 352, 359 and generally 351–364. It is easy to see the Jellinekian
construction at work here. See supra ch. 2.3.2.1.
41
Higgins (Reasonable) p. 3. See also Island of Palmas Case, II UNRIAA p. 839; Deutsch
(Deutsch-Hoffmann: Relevance) pp. 83–85; Bleckmann (Grundprobleme) p. 84.
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4.1.2 CONTINUING DISPUTE ABOUT EXTENT OF SOVEREIGNTY 237
42
See generally SC Res. 138/1960 (24 June 1960). See also Whiteman (Digest, V)
pp. 208–214 and e.g. Henkin (How) pp. 269–278. The examples are, of course, many.
Thus, for example, the UNGA condemned Indian intervention in Bangladesh in 1971 as
a violation of Pakistani sovereignty despite the fairly uncontroversial humanitarian
justifications applicable. See UNGA Res. 2793 (XXVI), 7 December 1971. Also, only US
veto in the Security Council in 1976 prevented the Council from condemning the Israeli
rescue operation at Entebbe airport in Uganda. For a discussion, see Schachter 178
RCADI 1982/V pp. 147–148; Boyle (World Politics) pp. 77–167.
43
ICJ: US Military and Paramilitary Activities Case, Reports 1986 pp. 106–110, 111–112
(xx 202–209, 212–214).
44
See UNGA Res. 34/32, 14 November 1979 (Kampuchea); 38/10, 11 November 1983
(Nicaragua); ES-VI, 14 October 1980 (Afghanistan); 38/7, 2 November 1983 (Grenada).
See also the discussion in Franck (Nation against Nation) pp. 224–231.
45
Ghozali (Mélanges Chaumont) argues about ‘‘sovereignty’’ in the economic context:
‘‘. . . l’arme de l’impérialisme s’est transformée en arme centre l’impérialisme’’, p. 313.
Similarly Demichel (Benchikh – Charvin – Demichel: Introduction) p. 57.
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238 4 SOVEREIGNTY
46
See Koskenniemi XVII Oikeustiede-Jurisprudentia 1984 p. 100 et seq. The Canadian
claim for damages resulting from the fall of the Kosmos 954 satellite on Canadian
territory and the small radioactive fall-out was dressed in terms of violation of sover-
eignty. See 18 ILM 1979 p. 907. Similarly, in the Nuclear Tests Cases, the Australian
claim was concerned with, inter alia, violation of sovereignty, Pleadings I p. 14.
47
Friedmann 65 AJIL 1971, for example, holds that the new Law of the Sea marks the final
victory of Selden over Grotius, pp. 757–770.
48
See further infra ch. 7.
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4.1.2 CONTINUING DISPUTE ABOUT EXTENT OF SOVEREIGNTY 239
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240 4 SOVEREIGNTY
normative code. But if both approaches justify any situation, then there
is no determinate extent to sovereignty at all. Anything can be explained
as in accordance with or contrary to sovereignty. Disputes about
whether a State is free or not remain incapable of material resolution.
In the following section (4.2) I shall show what it means that sovereignty
lacks fixed, determinate content. I shall then outline the legal approach
to construct a meaning to sovereignty (4.3) and the corresponding
attempt from the pure fact perspective (4.4) as well as the reasons for
why they fail. I shall then show how modern ‘‘constructivism’’, also, will
remain ultimately unacceptable (4.5). The remaining sections are
devoted to an illustration of the conflict between the two approaches
within doctrines about statehood and recognition (4.6) and territorial
disputes (4.7).
49
On the different constructions of the ‘‘meaning’’ of sovereignty in 19th century profes-
sional doctrines, see Morellet XXXIII RGDIP 1926 pp. 106–108. Kelsen isolates
altogether eight different meanings to the term (Staatslehre) p. 102 et seq. Wildhaber
(Macdonald-Johnston: Structure and Process) identifies four pp. 435–437. See also
Dennert (Ursprung) pp. 5–6 n.9; Basdevant 58 RCADI 1936/IV p. 579; von Simson
(Souveränität) pp. 24–31. Schwarzenberger regards attempts at definition as ‘‘shadow-
fighting’’, 10 CLP 1957 p. 264. Similarly Ross (Textbook) pp. 33–34. Akehurst (Modern
Introduction) comments: ‘‘It is doubtful whether any single word has caused so much
intellectual confusion and international lawlesness’’, p. 15.
50
The distinction between ‘‘external’’ and ‘‘internal’’ sovereignty reflects an attempt to include
a descending and an ascending argument into the construction of the identity of the State:
its point is to explain how States can be both internally free and externally bound. The
distinction is commonly traced back to Bodin (Six Livres) ch. IX (esp. p. 221 et seq).
Significantly, Grotius does not make it. Indeed, in the early lawyers’ system it would be
pointless as there is no distinction between external and internal legitimacy. The distinction
re-emerges in Vattel (Droit des Gens) L. I, ch. I x 4 (p. 25). It is then taken as a matter of
course in the professional system. See e.g. Wheaton (Elements) p. 25; Klüber (Droit des
gens) pp. 28–34. For the distinction in modern writers, see e.g. Oppenheim (International
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4.2 THE MEANING OF SOVEREIGNTY 241
The idea of independence was, again, defined by the PCIJ in the Austro-
German Customs Union Case as:
. . . the continued existence of (a State, MK) within her present frontiers
as a separate State with the sole right of decision in all matters economic,
political, financial or other . . . 52
Law, I) pp. 113–115; Lansing (Notes) pp. 29–32; Strupp 47 RCADI 1933/I pp. 493–496;
Suontausta (Souveraineté) p. 41; Van Kleffens 82 RCADI 1953/I pp. 88–89, 94–115;
Schwarzenberger 10 CLP 1957 pp. 268–271, 276–283; Korowicz 102 RCADI 1960
pp. 11–14, 39; von Simson (Souveränität) p. 19; Wildhaber (Macdonald-Johnston:
Structure and Process) pp. 435–437, 440–444; Virally 183 RCADI 1983/V p. 77; Anand
197 RCADI 1986/II pp. 28–29.
51
Island of Palmas Case, II UNRIAA p. 829. See also Westlake (International Law, I)
p. 308; Hinsley (Sovereignty) p. 158; Coplin (Functions) p. 172. On ‘‘independence’’
generally as a condition for statehood, see Crawford (Creation) pp. 48–71.
52
PCIJ: Austro-German Customs Union Case, Ser.A/B 41 p. 45. See also Anzilotti, diss. op.
ibid., p. 57.
53
Ross (Text-book) pp. 36–37. 54 ICJ: Right of Passage Case, Pleadings I pp. 6, 26.
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242 4 SOVEREIGNTY
Both States argued on the basis of their sovereignty. But their arguments
reflected differing interpretations of the meaning of the term ‘‘sover-
eignty’’ – that is, on the extent of their sovereignty. Which was correct?
It is obvious that the definitions set out above do not provide an
answer. To define ‘‘sovereignty’’ as ‘‘independence’’ is to replace one
ambiguous expression with another. To explain it in terms of a ‘‘sole
right of decision’’ seems more concrete but that, too, creates difficulty.
For does not any international obligation entail a restriction of that ‘‘sole
right’’? And if restrictions are admitted without this depriving the State
of its sovereign status, how do we know whether they are those implied
in the Portuguese or the Indian view?
The expression ‘‘sovereignty’’ or any definition thereof cannot have
such fixed content as to be ‘‘automatically’’ applicable. It is not only that
they are ambiguous or have a penumbra of uncertainty about them.
There simply is no fixed meaning, no natural extent to sovereignty at all.
Moreover, assuming that sovereignty had a fixed content would entail
accepting that there is an antecedent material rule which determines the
boundaries of State liberty regardless of the subjective will or interest of
any particular State. But this is incompatible with the liberal doctrine
of politics. For it, ‘‘liberty’’ is a purely formal notion. Any attempt
to impose material boundaries to it which do not stem from the free
55
Fernandes, diss. op. ICJ: Right of Passage Case, Reports 1960 p. 124.
56
ICJ: Right of Passage Case, Pleadings II p. 113 (Counter-memorial).
57
Chagla, diss. op. ICJ: Right of Passage Case, Reports 1960 p. 119.
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4.2 THE MEANING OF SOVEREIGNTY 243
The guarantor States argued that Austria had violated these provisions.
By making the customs union arrangement Austria had alienated its
sovereignty.61 Austria denied this. It held that the faculty of binding
itself was inherent in its sovereignty. By making the customs union
Austria had taken a sovereign decision in order to further its own
commercial interests.62 The Court was similarly divided. The majority
held that it was difficult to maintain that the customs union was not
58
PCIJ: Austro-German Customs Union Case, Ser. A/B 41. For the terms of the request, see
ibid. p. 38. For the content of the Protocol and the Court’s analysis, see ibid. pp. 50–51.
59
Ibid. p. 42. 60 Ibid. p. 43.
61
See e.g. written statement by the Government of France, ibid. Ser. C 53 pp. 119–152.
62
Written Statement by the Government of Austria, ibid. Ser. C. 53 pp. 86 et seq, 94–101.
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244 4 SOVEREIGNTY
63
The Court held that only the Geneva Protocol was violated – and not the Treaty of
Saint-Germain – because only the former made express reference to economic arrange-
ments. Ibid. Ser. A/B 41 p. 52. The inarticulate character of the conclusion is aptly
criticized by Lauterpacht (Development) pp. 48–49. See also Crawford (Creation)
pp. 49–51.
64
PCIJ: Austro-German Customs Union Case, Ser A/B 41 pp. 76–78, 82.
65
‘‘. . . the right of entering into international agreements is an attribute of sovereignty’’,
PCIJ: Wimbledon Case, Ser. A 1 p. 25. See further generally McNair (Treaties)
pp. 754–766. Recently, in his preliminary Award in case No. 2321 at the ICC, the Sole
Arbitrator observed that a State could not invoke its immunity to avoid judicial
proceedings based on an agreement which it has made. For: ‘‘A sovereign State must
be sovereign enough to make a binding promise both under international and muni-
cipal law’’, 65 ILR 1984 p. 452. Similarly Dispute between Texaco Overseas Petroleum
Company/California Asiatic Oil Company v. the Government of the Libyan Arab Republic,
XVII ILM 1978 p. 24 (xx 63–69). This matter is at the heart of the debate about whether
States remain bound by concession contracts. The irony of the doctrine of ‘‘permanent
sovereignty’’ – if it is taken to mean that the State is not bound, as implied in the Libyan
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4.2 THE MEANING OF SOVEREIGNTY 245
arguments in the above case – is that it denies the State’s capacity to make such promises
and has an adverse effect on the State’s commercial relations. For this latter point, see
Revere Copper v. OPIC (District Court, US, December 1978) 56 ILR 1980 pp. 279–284
(using a good faith standard to hold the sovereign bound).
66
The painful attempts by doctrine to distinguish between ‘‘sovereignty’’ on the one hand
and, for example, ‘‘sovereign rights’’ or ‘‘freedoms’’ on the other or between ‘‘alienation’’
and ‘‘restriction’’ of sovereignty all stem from its inability to adopt a ‘‘pure fact’’ or a
‘‘legal’’ perspective on statehood. For these distinctions, see e.g. Van Kleffens 82 RCADI
1953/I p. 87; Arangio-Ruiz (Friendly Relations) pp. 275–278; Blix (Sovereignty) p. 11;
Joint diss. op. PCIJ: Austro-German Customs Union Case, Ser. A/B 41 p. 77. Dispute
between Texaco Overseas Petroleum Company/California Asiatic Oil Company v. the
Government of the Libyan Arab Republic, XVII ILM 1978 (concession contract not an
alienation of permanent sovereignty but a partial and temporal limitation of its
exercise) p. 26 (xx 77, 78). Somehow, doctrine needs to assume that statehood has an
inner ‘‘essence’’ (described as the State’s inalienable sovereignty) as well as an external,
historically relative actuality (described as a limited set of rights, or freedoms, or
restrictions on sovereignty’s variable surface). Doing away with the former would
seem to leave the system ‘‘hanging in the air’’. It would involve assuming that there is
some material code ‘‘behind’’ statehood which the law seeks to ensure. Doing away with
the latter would achieve a non-normative law, a description of the essence of statehood
from a solipsistic perspective. See also Kelsen (Souveränität) p. 247 and passim.
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246 4 SOVEREIGNTY
4.3 The rise and fall of the legal approach: the temptation
of analysis, domestic jurisdiction and the dilemma
of interpretation
If ‘‘sovereignty’’ entails no determinate amount of freedom or constraint,
then it looks like a generic description of the particular rights, liberties and
competences which are applicable to the State, each of which needs to be
grounded in a distinct legislative source. This will make the law prior to the
State and allows a determinate delimitation of its sphere of liberty.
From an analytical, ‘‘Hohfeldian’’, perspective, ‘‘sovereignty’’ looks
like a generic term – a ‘‘general principle’’ in Schwarzenberger’s sense –
which only describes the cluster of power-conferring norms which
address themselves to the State and is devoid of independent normative
authority.67 A claim of sovereignty would be reduced to a claim
concerning the existence of individual rights, liberties and competences.
Initially, such analysis would seem to shed light on cases such as the
Right of Passage, for example. The conflicting views about sovereignty
could be translated into claims about the existence or non-existence of a
customary right of passage to a State’s enclaves and positive restrictions
to such a right. This is the way the ICJ discussed them.68
There are analogous cases. In the Nuclear Tests Case (1974) Australia
and New Zealand argued that French nuclear weapon tests caused
radioactive fall-out which violated their sovereignty.69 France, relying
67
Schwarzenberger 10 CLP 1957 p. 284. Schwarzenberger-Brown (Manual) regard ‘‘legal
sovereignty . . . an abstraction from a number of relevant rules’’, p. 52. See also e.g. Ross
(Textbook) pp. 40–45. For a discussion of Schwarzenberger’s ‘‘descriptive’’ concept
of general principles, see Koskenniemi XVIII Oikeustiede-Jurisprudentia 1985
pp. 126–127. The idea of sovereignty as an ‘‘omnibus word’’ stems, obviously, from
the criticism which argues that ‘‘sovereignty’’ can have no essential content but is
relative or ‘‘rule-determined’’. Thus Hart (Concept) is able to argue that to find out
what rights and duties States have by looking at what kind of sovereignty States have is
to ‘‘invert . . . the order in which questions must be considered’’. We can know
sovereignty only if we first have an idea of what rights and duties the normative order
gives States, p. 218. This outlook is widely shared by Anglo-American lawyers. See e.g.
Brownlie (Principles) p. 19; Brierly (Basis of Obligation) pp. 350–351, 373; idem (Law of
Nations) p. 47. See also the analysis by Starke (International Law) of ‘‘sovereignty’’ into
1) power to exercise control over domestic affairs, 2) power to admit and expel aliens,
3) privileges of a State’s diplomatic and consular representatives, 4) exclusive territorial
jurisdiction pp. 113–121. To the same effect, see further Crawford (Creation)
pp. 26–27n. 105; Blix (Sovereignty) p. 12.
68
ICJ: Right of Passage Case, Reports 1960 pp. 36–45.
69
According to the Australian Application, the resulting radio-active fall-out ‘‘. . .
a) violates Australian sovereignty over its territory . . .’’ ICJ: Nuclear Tests Case,
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4.3 RISE AND FALL OF THE LEGAL APPROACH 247
Had the Court entered into a discussion of the substance of the Parties’
views, it would have been obliged to look ‘‘beyond’’ abstract sovereignty
and take a view on the customary law status of atmospheric nuclear-
weapon testing.72
In the Asylum Case (1950) Peru and Colombia disputed about the
right of a person who had taken asylum in the Colombian Embassy in
Peru to safe exit from Peru. Both States argued on the basis of their
sovereignty, Colombia to support this right, Peru to deny it.73 Again, the
Court avoided discussing the ‘‘nature’’ of sovereignty or statehood and
concentrated on the customary law status of, on the one hand, the
alleged rights of Colombia to qualify the person as a political refugee
and the alleged right of Peru to prevent his exit through Peruvian
territory.74
In these cases – as in many others75 – what are originally presented as
claims about sovereignty turn out as disputes about the existence of
certain individual rights, liberties and competences. Moreover, disputes
Pleadings, I p. 14. See also the Request for Interim Measures, ibid. p. 43. Though
Australia also argued that the fall-out violated its ‘‘independent right to decide what
acts shall take place in its territory’’, this was not to distinguish such right from
‘‘sovereignty’’. The formulation followed that in Article 2(4) of the UN Charter and
was treated in Australian arguments as an ‘‘aspect’’ of its sovereignty. See oral argument
by Mr Elliott, ibid. pp. 186–188; Mr Byers, ibid. pp. 479–483.
70
France never participated in the formal proceedings. For its views, see ibid. Pleadings II
pp. 339, 347–348.
71
Ignacio-Pinto, diss. op. ICJ: Nuclear Tests Cases, Reports 1974 p. 131.
72
On the Court’s treatment of the claims, see infra ch. 5.3 and 6.5.1.
73
See esp. Memorial of Columbia, ICJ: Asylum Case, Pleadings I p. 29; Counter-Memorial
of Peru, ibid. p. 146.
74
Ibid. Reports 1950 pp. 274–275.
75
See e.g. ICJ: Corfu Channel Case, Reports 1949 (on the question of whether the British
Naval operation ‘‘Retail’’ violated Albania’s sovereignty), pp. 26–35.
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248 4 SOVEREIGNTY
76
Brierly VI BYIL 1925 p. 8.
77
In both instruments, the provision was included at the insistence of the United States in
order to protect its tariffs and immigration policy. For the background on the Covenant
provision, see Nincić (Sovereignty) pp. 138–141; Waldock XXXI BYIL 1954
pp. 103–104. Article 15(8) of the Covenant read: ‘‘If the dispute between the Parties is
claimed by any one of them, and is found by the Council, to arise out of a matter which
by international law is solely within the jurisdiction of that Party, the Council shall so
report, and shall make no recommendation as to its settlement.’’ For the background of
the corresponding (but different) Charter formulation, see Waldock XXXI BYIL 1954
pp. 127–128; Kelsen (The Law of the United Nations) p. 769 et seq. A similar safeguard
clause is included in the constituent instruments of many international organizations
(OAS, OAU, Arab League). See Trindade 25 ICLQ 1976 pp. 721–722.
78
Waldock XXXI BYIL 1954 argues that it was held as self-evident by the League organs
that they had the competence – and not the State itself – to decide on the validity of
domestic jurisdiction claims, pp. 106–107. To the same effect, see Kim-Howell (Conflict
of Obligations) pp. 36–38; Rajan (Expanding Jurisdiction) pp. 4–5.
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4.3 RISE AND FALL OF THE LEGAL APPROACH 249
such, however, it fails to provide the security for which it was intro-
duced. It makes the sphere of the State’s liberty completely relative to
what is externally decided.
The Charter remains silent on who is to undertake the determination
and whether it should be made by international law or the municipal law
of the respective State. The Charter formulation suggests an ascending
position: this sphere can be determined by the State itself. As such,
however, it threatens to make international jurisdiction illusory: if
what lies in the private sphere can be decided by the State itself and
this decision can be effectively opposed against international action,
then the legitimacy of such action is dependent on the good will of the
State against which the action is taken.79
Much discussion has focused on the difference between the Covenant
and the Charter formulations.80 Yet, as both positions tend towards
unacceptable consequences, they have in argument lost their initial
polarity. League organs never interpreted the Covenant so as to assume
unrestricted legislative powers. As the PCIJ pointed out in the
Nationality Decrees Case (1923) there are matters – such as questions
of nationality – which are ‘‘in principle within this reserved domain’’.81
These are matters which do not come under domestic jurisdiction
simply by virtue of a legislative act but as a consequence of statehood
and they establish a barrier against international legislation.
On the other hand, UN organs have constantly assumed jurisdiction
in matters which with some justification have been understood to be
covered by the functions of the organization.82 Though the plea of
79
For a strong recent defence of this view, see Watson 71 AJIL 1977 p. 62 et seq (pointing
out that the ‘‘relativist’’ approach goes against the letter and spirit of Article 2(7) and
that a contrary interpretation is utopian and counter-productive as such). A similar
interpretation has been taken by others who, however, worry about its consequences,
see Kelsen (The Law of the United Nations) pp. 777–784; Preuss 74 RCADI 1949/I
pp. 597–604; Gross (Essays II) has taken the ‘‘intermediate’’ interpretation that both the
State and the organization are empowered to make the determination which remain
valid, respectively, in the national and the organization’s legal order, p. 1179.
80
See e.g. Brownlie (Principles) pp. 293–294; Cavaré (Droit international I) pp. 192–193;
Nisot 43 AJIL 1949 pp. 776–779.
81
PCIJ: Nationality Decrees Case, Ser. B 4 p. 24.
82
Hence, many commentators have concluded that there is no essential difference
between the Covenant and the Charter formulations but that both provide the deter-
mination by the organs themselves and by reference to rules of international law. See, in
particular, Rolin 77 RCADI 1950/II pp. 381–393; Waldock XXXI BYIL 1954 p. 129;
Trindade 25 ICLQ 1976 pp. 719–720. For a review and criticism of their arguments, see
Watson 71 AJIL 1977 pp. 60–83.
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83
During the first years of the organization, the matter came up in relation to the Spanish,
Indonesian and Greek questions as well as in connection with South Africa’s policy of
apartheid. Later, it has occasionally been raised in respect of e.g. Hungary,
Czechoslovakia, Dominican Republic and Afghanistan. Unless the matter has come
before the Security Council and a permanent member has vetoed it because of its own
stake in the matter, the plea has regularly been rejected. For general overviews, see Rajan
(Domestic Jurisdiction) p. 145 et seq; idem (Expanding) (an updated addition to the
former). See also Kim-Howell (Conflict of Obligations) p. 34 et seq, and (for analysis of
the Spanish, South African and Rhodesian cases) pp. 48–56; Higgins (Development)
pp. 58–230; Trindade 25 ICLQ 1976 pp. 722–744.
84
See e.g. Rajan (Domestic Jurisdiction) pp. 146–179; idem (Expanding) pp. 11–34;
Nincić (Sovereignty) pp. 186–192.
85
Rajan (Domestic Jurisdiction) pp. 397–418; idem (Expanding) pp. 85–97.
86
Rajan (Domestic Jurisdiction) pp. 298–397; idem (Expanding) pp. 98–123; Nincić
(Sovereignty) pp. 193–218.
87
Rajan (Domestic Jurisdiction) pp. 179–298; idem (Expanding) pp. 35–84; Nincić
(Sovereignty) pp. 219–259; Trindade 25 ICLQ 1976 pp. 729–734.
88
Trindade 25 ICLQ 1976 p. 765. Higgins (Bull: Intervention) concludes her survey: ‘‘One
is led very near to saying that most things short of actual action by the United Nations
are in fact now permissible intervention’’, p. 36. See also Waldock 106 RCADI 1962/II
(arguing that Article 2(7) of the Charter only guarantees that the UN will not interfere
with the State’s exclusive authority on its territory) pp. 182–191.
89
See e.g. PCIJ: Losinger Case, Ser A/B 67 pp. 23–25 (a reservation about matters of
domestic jurisdiction not ‘‘automatically’’ a bar to discussion of merits); Electricity
Company of Sofia Case, Ser. A/B 77 pp. 78, 82–83 (the fact that a concession was granted
in accordance with municipal law did not exclude the involvement of international
obligations). To the same effect, see ICJ: Anglo-Iranian Oil Company Case, Reports 1951
p. 92. Scelle 46 RCADI 1933/IV summarizes: domestic jurisdiction ‘‘est par lui-même,
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252 4 SOVEREIGNTY
international rights and duties of the States involved. And nothing could be
easier than formulating a claim in such a way. In the absence of a ‘‘natural’’
private realm, any act can plausibly be said to violate another State’s rights
if only that State so thinks.94 To deny prima facie violation we should be in
possession of a naturalist test of domestic jurisdiction (an ‘‘absolute rights’’
test) – a hypothesis excluded by the legal approach.95
The legal approach denies that States have a natural realm of liberty
which would exist through the simple fact of their being States. There is
no general principle investing a State with a prima facie legitimate sphere
of action. To do something, the State will always have to show a specific
rule of international law entitling it to act or at least the absence of a
prohibiting rule.96
On many areas of international conduct, however, there are only few
detailed rules. Moreover, and here is the paradox, the most important
rules of general application seem to be precisely the rules laying down the
right of self-determination, non-intervention, independence or exclusive
jurisdiction. It is virtually impossible to imagine an international law in
which such concepts would be reduced to non-normative abstractions.
If they were such, then international law would appear as a huge lacuna,
consisting of a few scattered, mainly treaty-based individual rules and we
would be at a loss about how to justify our abstractions.
94
This is so because, as Virally 183 RCADI 1983/V observes, sovereignties delimit each
other, p. 78. In a system in which each participant’s freedom (‘‘private realm’’) is
delimited only by the equal amount of freedom of others, any claim about my freedom,
right, competence etc. will automatically involve a claim about others’ obligations. In
such system, each participant’s freedom is relative to assessments about what is ‘‘equal’’
amount of freedom in particular respects – assessments for which ‘‘objective’’ standards
seem lacking.
95
Thus, in the Nationality Decrees Case, the British case was also formulated in terms of
the French acts being violative of British sovereignty. Ser. C 2 suppl. p. 60 (British
Government Case). To decide on this claim, it is obviously insufficient to formulate the
domestic jurisdiction test in the way the Court did as concerning France only. Waldock
XXXI BYIL 1954, for example, argues that the prima facie test works in the reverse
direction, that is to the determination of the respondent’s reserved domain,
pp. 107–114. This may be a correct description of what took place in the Nationality
Decrees opinion but it leaves unexplained how it is possible to start out from the
respondent’s (instead of the applicant’s) perspective and prefer its private realm to the
allegedly violated private sphere of the applicant.
96
Because of these difficulties, some have concluded that the domestic jurisdiction
doctrine is not a ‘‘legal’’ doctrine at all but represents only the various political
claims – a view which is taken to explain the widely differing interpretations of its
extent and character. See Trindade 25 ICLQ 1976 pp. 728–729.
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4.3 RISE AND FALL OF THE LEGAL APPROACH 253
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97
That is, valid as a (background) theory of justice – irrespective of whether anybody
accepts it. See supra ch. 1.2.2.2.
98
PCIJ: Nationality Decrees Case, Ser. B 4 p. 21.
99
According to the British case: ‘‘. . . every contention put forward on either side depends
principally, at least, upon treaty obligations, on international law, and therefore
obviously not on French domestic jurisdiction.’’ Ibid. Ser. C 2 (speech by Sir
Douglas Hogg) pp. 49–50. According to the French case, nationality was a matter
which was an essential attribute of sovereignty as it related to the State’s very organiza-
tion and constitution, ibid. Ser. C suppl. (French Government Case) pp. 20–23.
100
The French case resting on French territorial sovereignty (ibid. Ser. B 4 pp. 14–15),
the British case resting on treaty obligations which set limits to such sovereignty
(ibid. p. 16.)
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4.4 RISE AND FALL OF THE PURE FACT APPROACH 255
4.4 The rise and fall of the pure fact approach: Lotus principle
We have seen that the meaning of sovereignty seems determinable only
in a contextual way, having regard to the rights and duties the State
possesses at each moment. But also attempts to reduce it fully to such
individual rules seem unworkable as rules require construction through
the use of interpretative principles. A residual rule, or a principle of
interpretation is needed which can both serve to explain the binding
force of existing rules and provide a basis for decision when individual
rules are ambiguous or lacking. Here ‘‘sovereignty’’ re-emerges as a
normative principle in its own right.
In the Lotus Case (1927), the PCIJ observed that there were no rules
governing the exercise of jurisdiction by Turkey over foreign vessels in
the High Seas.104 To avoid a non liquet the Court relied on the assumption
that unless specific prohibiting rules exist, State sovereignty – the sphere
of its legitimate action – is unlimited.105 In the absence of a positive
prohibition Turkey was presumed to possess jurisdiction. The Court
had previously resorted to a similar argument in the Wimbledon Case
(1923) and was again to do so in the Free Zones Case (1932).106
The principle according to which State sovereignty must be presumed
as extensive as possible may be called the ‘‘Lotus principle’’ in
101
PCIJ: Nationality Decrees Case, Ser. B 4 p. 24. 102 Ibid.
103
On the ‘‘provisional’’ character of the conclusion and the manner in which the Court
refrained from assuming that it prejudices anything on the merits, see PCIJ:
Nationality Decrees Case, Ser. B 4 pp. 24–26.
104
PCIJ: Lotus Case, Ser. A 10 p. 30. 105 Ibid. pp. 18–19.
106
PCIJ: Wimbledon Case, Ser. A I p. 24; Free Zones Case, Ser. A/B 46 p. 167.
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256 4 SOVEREIGNTY
107
As Kaltenborn von Stachau (Kritik des Völkerrechts) puts it, the international norma-
tive order: ‘‘. . . auf der basis der Souveränität der einzelnen Staaten in ähnlicher Weise
aufgebaut wie die staatliche Gemeinexistenz, der Staatsorganismus auf dem
Fondament individueller Freiheit’’, p. 267.
108
For a recent discussion of the opposition between a (‘‘subjectivistic’’) view which looks
at international law through restrictions to an antecedent liberty and a (‘‘objectivistic’’)
view which takes international law to establish competences, see Bleckmann ÖZöRV
1978 pp. 174–183. For the view that international law consists mainly of liberty-
limiting obligations and only in rare cases establishes specific competences, see e.g.
Fitzmaurice XXX BYIL 1953 pp. 9–10; Marek VI RBDI 1970 pp. 46–47. See also Dore
(Superpowers) pp. 128–130. Of course, the argumentative structure which opposes
‘‘law’’ with ‘‘sovereignty’’ assumes that the purpose of the former is precisely to restrict
the latter. For this point, see e.g. Van Kleffens 82 RCADI 1953/I p. 84; Suontausta
(Souveraineté) p. 41; Wildhaber (Macdonald-Johnston: Structure and Process) p. 442;
West (Psychology) p. 29 et seq. As Strupp 47 RCADI 1934/I points out, the Lotus
principle is simply a modernized version of the fundamental rights doctrine. Both start
out from the non-existence of a set of natural duties and affirm obligation only in the
presence of positive undertakings, pp. 497–498.
109
ICJ: Anglo-Norwegian Fisheries Case, Reports 1951 p. 143. See also the Norwegian
formulation of its view, ibid. p. 123 and the Court’s discussion on pp. 132, 138–139.
For a discussion of this point, see also Fitzmaurice XXX BYIL 1953 pp. 8–11; idem,
sep. op. ICJ: Fisheries Jurisdiction Case, Reports 1973 pp. 25–30.
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4.4 RISE AND FALL OF THE PURE FACT APPROACH 257
Denmark and the Netherlands were entitled to use this method but
whether the Federal Republic was under an obligation to accept it.110
In a more general fashion, the opposability doctrine, endorsed by the
Court in, for example, the Fisheries Jurisdiction (1974), Nuclear Tests
(1974) and U.S. Military and Paramilitary Activities (1986) Cases reveals
the same assumption.111 The issue is not whether there exist rules
providing competences but whether there are obligations restricting
the State’s initial freedom.
A pure fact approach reveals itself also behind such doctrines as those
according to which restrictions of sovereignty must be established by
‘‘clear and convincing evidence’’,112 cannot be made by analogy113 and
must be interpreted restrictively.114 Each is based on the assumption
that there exists an initial liberty of the State which must be given
normative effect if clear obligations are absent. The problem with such
doctrines is, however, that they do not provide grounds for decision in
cases which involve a conflict of liberties.115
In the Right of Passage and Asylum Cases, preference for interpreting
sovereignty restrictively lead nowhere because we do not know which of
the two States’ sovereignty to prefer. Moreover, it is not difficult to dress
any dispute in language which implies a conflict of liberties, or sover-
eignties. This is so because under the pure fact view itself, the ultimate
ratio of any legal regulation is to prevent violations of liberty – ‘‘harm’’ –
and each State has the final say about what constitutes ‘‘harm’’ to it, what
110
ICJ: North Sea Continental Shelf Cases, Reports 1969 p. 23 (xx 21–23). See also Marek
VI RBDI 1970 pp. 46–47.
111
See infra ch. 6.5.1.
112
Schwarzenberger (Dynamics) expresses this in terms of the presumption of good faith
of the sovereign, p. 64.
113
German Reparations Case, I UNRIAA p. 76.
114
See e.g. PCIJ: Free Zones Case, Ser. A/B 46 p. 167; Certain German Interests in Polish
Upper Silesia Case, Ser. A 7 p. 30; Nationality Decrees Case, Ser. B 4 p. 25; Interpretation
of the Status of Memel Territory Case, Ser. A/B 49 pp. 295–296, 314. See also the
Kronprins Adolf Case, II UNRIAA p. 1285; Radio Corporation of America Case, III
UNRIAA p. 1672; ICJ: Libya–Malta Continental Shelf Case (Application by Italy to
Intervene) Reports 1984 p. 22 (x 35); Iran-US Claims Tribunal: Golpira v. Iran (Case
No. 211), diss. op. Shafeiei, 72 ILR 1987 p. 534. For literature, see Strupp 47 RCADI
1934/I pp. 495–496; Lauterpacht (Development) pp. 300–306; Rousseau (Droit inter-
national public I) pp. 273–274; Zoller (Bonne foi) pp. 218–220.
115
For criticism of the Lotus principle, see Bruns 1 ZaöRV 1929 pp. 31–40, 50–56; Brierly
84 RCADI 1936/IV pp. 146–148; Lauterpacht (Function) pp. 94–96; Mann (Studies)
pp. 25–27; Bleckmann (Grundprobleme) pp. 198 et seq, 201–202; Fitzmaurice 92
RCADI 1957/II pp. 55–59. See also Koskenniemi XVII Oikeustiede-Jurisprudentia
1984 pp. 103–105.
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258 4 SOVEREIGNTY
116
See supra n. 94. See also Levine (Liberal Democracy) pp. 128–129 and Unger
(Knowledge) pp. 84–85.
117
Fitzmaurice 92 RCADI 1957/II p. 51.
118
PCA: Casablanca Case, XI UNRIAA p. 128. The case involved a conflict between
German consular jurisdiction and French military jurisdiction in Moroccan territory.
The tribunal concluded that the conflict must be solved by taking account of the
‘‘circonstances de fait qui sont de nature a déterminer la préférence’’, ibid.
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 259
One must, rather, look behind abstract presumptions for the general
system of goals and values in international law and attempt to construct
a solution which is best in harmony with them.119
This approach may be illustrated by reference to the Anglo-Norwegian
Fisheries Case (1951). Here the ICJ observed that there existed no
unambiguous rules for drawing the baselines of the territorial sea.
Nevertheless, the Court observed:
It does not at all follow that, in the absence of rules having the technically
precise character alleged by the United Kingdom Government, the
delimitation undertaken by the Norwegian Government in 1935 is not
subject to certain principles which make it possible to judge as to its
validity under international law.120
Despite the absence of detailed obligations, Norway still could not rely
on an overriding liberty principle:
119
See e.g. Bleckmann (Grundprobleme) pp. 164–166. Thus, we are led into the discussion
reviewed in chapter 1.
120
Anglo-Norwegian Fisheries Case, Reports 1951 p. 132. Norway had originally argued
that the coastal State does have an extensive right to delimit its territorial sea according
to its will – the sole restrictions to such right being provided by ‘‘reasonableness’’, ibid.
Pleadings III (Rejoinder of Norway) p. 11.
121
ICJ: Anglo-Norwegian Fisheries Case, Reports 1951 p. 132.
122
Ibid. On the ‘‘equitable’’ nature of the Court’s reasoning, see also Koskenniemi XVII
Oikeustiede-Jurisprudentia 1984 pp. 131–152.
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In its own judgement it listed four such factors which it thought relevant
for achieving an equitable delimitation: geological and geographical
factors, the unity of mineral deposits and a ‘‘reasonable degree of
proportionality’’ between the shelves allocated to the States and their
respective coastlines.127
Maritime delimitation since the North Sea judgement has proceeded
by way of aiming at equitable solutions by balancing the different factors
involved. It is true that in the North Sea Cases the Court still experienced
some hesitation about this. It attempted to preserve the idea that it was a
pure fact which area belonged to which of the disputing States. Their
rights were assumed to exist, as the Court put it, ab initio and ipso facto.
It expressly rejected the German view that delimitation would be a
matter of equitable apportionment.128 As Judge Oda noted, delimitation
was to consist of:
. . . discerning and bringing into light a line already in potential
existence.129
123
For an early ‘‘equitable delimitation’’, see PCA: Grisbadarna Case, XI UNRIAA esp.
pp. 161–162. See also Munkman XLVI BYIL 1972–3 pp. 59–60 passim, and the
discussion in Koskenniemi XVII Oikeustiede-Jurisprudentia 1984 pp. 136–148.
124
ICJ: North Sea Continental Shelf Cases, Reports 1969 p. 46 (x 83).
125
Ibid. p. 33 (x 47). 126 Ibid. p. 50 (x 93). 127 Ibid. pp. 50–52 (xx 94–98).
128
Ibid. pp. 22–23 (xx 19–20).
129
Oda, diss. op. ICJ: Tunisia–Libya Continental Shelf Case, Reports 1982 p. 254. See also
Lang (Plateau continental) pp. 18–20.
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 261
But the attempt to safeguard the pure fact view in this way and to
avoid the objection that balancing the equities is a matter of subjective
evaluation has proved practically meaningless. What rights the parties
have – what the extent of their sovereign liberty is – follows from the
Court’s act of balancing and is not inscribed in some transcendental
code ex ante. In the Anglo-French Continental Shelf Case (1977),
the Court of Arbitration pointed out that the principle of ‘‘natural
prolongation’’ – with which the ICJ had originally associated its view
about the ab initio and ipso facto existence of the boundary – ‘‘may be
subject to qualifications in particular circumstances’’.130 The delimitation
was to be undertaken:
In other words, that rights are said to pre-exist the actual act of listing
and evaluating the various circumstances appears only as a strenuous
fiction: for practical purposes, they become dependent on the act of
establishing the balance, on taking a view on equity by the Court.
Later delimitations have completely set aside ab initio rights in favour
of equity as the goal of delimitation. This idea was present already in the
North Sea Cases132 but became overriding in the Anglo-French and
the Tunisia–Libya Continental Shelf (1982) Cases. In the former, the
presence of the British Channel Islands close to the French coast and the
position of the Scilly Isles with a potential for distorting the median
line were taken account of as ‘‘special circumstances’’ which required
a modification of the otherwise privileged equidistance rule.133 The
purpose, as the Court of Arbitration noted, was to make:
130
Anglo-French Continental Shelf Case, XVIII UNRIAA p. 91 (x 191).
131
Ibid. p. 92 (x 194). Thus Herman 33 ICLQ 1984 argues that delimitation is an
‘‘evaluative process of fact assessment’’, pp. 853–858. It escapes, he assumes, pure
‘‘subjectivism’’ in that it takes account of the pertinent ‘‘facts’’. But, of course ‘‘facts’’
do not (under liberal assumptions) possess intrinsic value. The problem remains to
justify the axiology from which value is projected onto ‘‘facts’’.
132
ICJ: North Sea Continental Shelf Cases, Reports 1969 p. 49 (x 90).
133
Anglo-French Continental Shelf Case, XVIII UNRIAA p. 93 (x 197) and pp. 98–99
(xx 207–210).
134
Ibid. p. 94 (x 198).
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135
ICJ: Tunisia–Libya Continental Shelf Case, Reports 1982 p. 59 (x 70).
136
ICJ: Gulf of Maine Case, Reports 1984 p. 312 (x 155).
137
ICJ: Libya–Malta Continental Shelf Case, Reports 1985 pp. 34–38 (xx 35–44).
138
Ibid. pp. 38–39 (x 45). 139 Island of Palmas Case, II UNRIAA pp. 867, 870–871.
140
Ibid. p. 869.
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 263
141
Ibid. pp. 869–870. Se also De Visscher (Equité) p. 102; Jennings (Acquisition) p. 75.
142
Clipperton Island Case, II UNRIAA p. 1110; PCIJ: Eastern Greenland Case, Ser. A/B 53
p. 46; ICJ: Minquiers and Ecrehos Case, Reports 1953 pp. 57, 60–67.
143
See also the discussion in Munkman XLVI BYIL 1972–3 p. 1 et seq and esp. pp. 96–116;
Bardonnet (Mélanges Reuter) p. 35 et seq and further Koskenniemi XVII Oikeustiede-
Jurisprudentia 1984 pp. 142–148.
144
Guatemala-Honduras Boundary Case, II UNRIAA p. 1352.
145
Rann of Kutch Case, XVII UNRIAA p. 11. 146 Ibid. pp. 569–570.
147
ICJ: Burkina Faso-Mali Frontier Case, Reports 1986 pp. 567–568 (x 28).
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148
See e.g. Principle 21 of the Stockholm Declaration, UN Conference on the Human
Environment, Stockholm 5–16 June 1972, UN Doc. A/CONF.48/14.
149
The project of the ILC concerning ‘‘liability for the harmful effects of activities not
prohibited by international law’’ provides an illustration. The very definition of this
item by the ILC locates it in that realm of the law where there exist no prohibitory
rules (i.e. where responsibility as a consequence of the wrongfulness of the act is not
triggered). In the absence of prohibiting rules, however, the question arises on what
basis liability would follow? The answer given by both Special Rapporteurs (and indeed,
the only possible answer) refers, 1) to the need to create procedures (‘‘regimes’’) which
the States involved could use to settle their conflict (duty to cooperate and negotiate in
order to reach agreements); and 2) to equity and the need to ‘‘balance’’ the interests
of the source-State and the affected State. Whatever content ‘‘liability’’ is to have shall
be determined in an equitable evaluation. See, in particular the ‘‘Schematic Outline’’
in Quentin-Baxter, Third Report, YILC 1982, vol. II/I. pp. 62–64. The material rule in
this ‘‘twilight zone’’ of non-prohibited but injurious activities is always an equitable
construction. Having reviewed the balancing standard in the practice of the ICJ, the
Special Rapporteur concludes: ‘‘The equitable principle can be seen to operate . . . in
circumstances in which wrongfulness is precluded’’, idem First Report, YILC 1980,
vol. II/I p. 261 and generally pp. 156–162. On the balancing standard, see further idem
Second Report, YILC 1981, vol. II/I p. 112 et seq, and section 6 of the Schematic Outline,
supra. See further infra ch. 7 n.101.
The typical case here concerns a State’s obligations regarding transfrontier pollution.
In the absence of specific duties, the content of these obligations seems determinable
only through an equitable evaluation. See e.g. Koskenniemi XVII Oikeustiede-
Jurisprudentia 1984 pp. 152–164; Lammers RCADI Coll. 1984 pp. 153–165; Handl,
XVI Neth.YBIL 1985 pp. 68, 76–77; Goldie ibid. pp. 175, 204–238.
150
For the centrality of equity in water resource law, see ILA: Report of the 52nd
Conference, Helsinki 1966 pp. 486–494 (‘‘Helsinki Rules’’). See further, ILA: Report
of the 58th Conference, Manila 1978 pp. 222, 228. See also Report by Salmon to the
Institut de Droit International, Annuaire 1979-I pp. 201–210 and esp. pp. 202–203 (on
the sic utere and abuse of rights principles). The principle of equitableness lies also at
the core of the ILC project on the Non-navigational Uses of International Watercourses.
See, in particular, Schwebel: Third Report, YILC 1982, vol. II/I pp. 75–110 (Draft
Articles 6–8 and esp. pp. 82–85 (state of doctrine on equity). See further Evensen: First
Report, YILC 1983, vol. II/I pp. 169–174 (Draft Articles 6–9); idem Second Report,
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 265
resources amounts to little else than a general statement to the effect that
a coastal State’s ‘‘preferential rights’’ must be balanced against the
‘‘historic rights’’ of other States. Neither right (liberty) is given absolute
preference but reconciliation is looked for.151 In the Fisheries Jurisdiction
Case (1974), the Court noted that adjustment between the two sets
of rights was to be made ‘‘in as equitable manner as possible.’’152
Nationalisation of foreign property provides a further example. The
law regarding compensation for the taking of alien property, in parti-
cular concessionary rights, has developed into the direction of equitable,
or ‘‘just’’ compensation in an effort to balance the interests of the
nationalizing State and the home State.153
YILC 1984, vol. II/I pp. 110–112 (Draft Articles 6–9). For a review and further
references, see Koskenniemi XVII Oikeustiede-Jurisprudentia 1984 pp. 153–156.
151
See ICJ: Fisheries Jurisdiction Case, Reports 1974 pp. 24–27 (xx 55–60), 28–29
(xx 63–67). The Court noted that ‘‘in order to reach an equitable solution . . . it is
necessary that the preferential fishing rights of Iceland . . . be reconciled with the
traditional fishing rights of the Applicant’’, p. 30 (x 69).
152
Ibid. p. 30 (x 70).
153
Such balancing is best evidenced in the law concerning compensation for expropria-
tion. On the one hand, nationalization is generally held lawful. But there must be
‘‘appropriate compensation’’. Thus, in the Libyan American Oil Company (LIAMCO)
v. the Government of the Libyan Arab Republic, XX ILM 1980, the Arbitrator reviewed
the status of the ‘‘prompt, adequate and effective compensation’’ rule and concluded
that such compensation was ‘‘no more imperative’’ and that it had been replaced by the
need for ‘‘convenient and equitable compensation’’. This, he noted, was justified by
‘‘taking into consideration not only the interests of the owner of the property natio-
nalized, but also those of the Society . . . and of the nationalizing State’’, p. 74 (x 145) –
a balancing standard. He noted, however, that no definitive rule had emerged. It was
therefore necessary to have regard to ‘‘general principles’’. The applicable principle in
this case was – equity. The inferred rule (or non-rule) was that of ‘‘equitable compen-
sation’’, pp. 76–77 (xx 150–151). In the Dispute between the Government of Kuwait
and the American Independent Oil Co. (AMINOIL), 66 ILR 1984, again, the Tribunal
first observed that the law applicable to compensation could not be determined
by ‘‘abstract theoretical discussion’’. It had to be determined contextually, p. 602
(xx 144–145). This led it to give effect to a principle of ‘‘effective compensation’’ –
one which ‘‘would not make nonsense of foreign investment’’, pp. 602–603
(xx 146–147). It noted that its task was to assess a ‘‘contractual equilibrium’’,
pp. 603, 607 (xx 148–149, 159). It thus rejected the claimant’s view about full profit
until the concession would have ended and the plaintiffs view about ‘‘net book value’’,
opting for a middle – a ‘‘reasonable rate of return’’, pp. 607–609 (xx 160–164). Of
course, the (perhaps now majority) view that compensation must be ‘‘appropriate’’
(or ‘‘just’’, ‘‘equitable’’), rather than ‘‘prompt, adequate and effective’’, is precisely
a balancing standard – a rule the content of which depends on the circumstances.
See further Schachter 178 RCADI 1982/V pp. 323–326; Pellonpää 3 KOIG 1986 pp. 334
et seq, 361–363. See, however, also the Dispute between Texaco Overseas Petroleum
Company/California Asiatic Oil Company v. the Government of the Libyan Arab
Republic, XVII ILM 1978 (for restitutio in integrum) pp. 32–36 (xx 97–109). The
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defendant ignored the Award. For the element of equity in compensation cases, see
also Zoller (Bonne foi) pp. 242–243. The case of extraterritorial jurisdiction is similar.
Here, two States’ subjective freedoms clash and legal practice can only resort to some
balancing of interests test – a solution which is vulnerable to the standard criticism
against equity that it creates a ‘‘vague system, operated by inappropriate tribunals, with
unpredictable results’’, Lowe 34 ICLQ 1985 pp. 730–731. See further infra ch. 7 n. 44.
For the view that inter-sovereign conflict in antitrust cases, too, must be solved by an
evaluation of the interests at stake, see Meessen 78 AJIL 1984 pp. 783 et seq, 802–810.
154
Waldock 81 RCADI 1952/II p. 467.
155
Indeed, a rule which calls for an evaluation of proportionality – like the rule about
equity in general – rather poses the problem than solves it. An assessment of ‘‘propor-
tionality’’ involves highly controversial evaluations about the admissibility of defen-
sive action in anticipation of an attack, about how personal and material losses should
be ‘‘counted’’, whether the victim’s own behaviour should be taken into account,
whether there might have been a justifying cause (aiding a minority which fights for
self-determination, for example) and so on. That these are complex issues which can
hardly be decided without taking reasoned moral positions is evident if one reads, for
example, the appropriate chapter in Hoffmann (Duties) pp. 55–85. See also Navari
(Mayall: Community) p. 24. For a recent discussion, see Schachter 178 RCADI 1982/V
pp. 133–166. On the Caroline Case and the formulation of the conditions for
self-defence therein, see Bowett (Self-defence) pp. 58–60 and passim. Discussing
humanitarian intervention in relation to self-defence under Article 51 of the UN
Charter Higgins (Bull: Intervention) concludes that leading cases seem always to
refer to ‘‘. . . a contextual case-by-case appraisal of all the circumstances’’, p. 38.
156
The problem is not, as some appear to think, that there is no third-party determination
of these matters. See e.g. Jessup (Modern) pp. 164–169, 196 et seq. The problem is that
there are no specifically legal criteria which would be determining.
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 267
Indeed, if we apply the rule set out by the ICJ in the Asylum Case,
according to which the party which relies on a customary rule
must prove its existence158 so as to be in harmony with the Lotus
principle, we notice the absurdity. For surely, if conventional norms
or general principles are lacking, then both parties rely on custom, one
on a prohibitory, the other on a permissory rule. If it were always
the former who would bear the burden of showing the existence of
the rule (an idea containing an implicit acceptance of the Lotus
principle), then the outcome of the dispute would be substantially
dependent on the way in which a party can manipulate itself in the
position of the defendant, as arguably illustrated by the Anglo-
Norwegian Fisheries Case.159
Much judicial practice supports the constructivist approach. A State’s
rights and duties are not determined by abstract presumptions based on
sovereignty but by ‘‘balancing the equities’’. It is not sovereignty which
157
McNair (Treaties) p. 765; Iran-US Claims Tribunal: Case A/1, 68 ILR 1985 p. 537.
Similarly Salmon (Perelman: Problème) p. 317. For a discussion of the opposition
between the ‘‘restrictive’’ (that is, incorporating the Lotus principle) and ‘‘liberal’’
(equitable) interpretation of treaty provisions in municipal practice and in the travaux
préparatoires of the Vienna Convention on the Law of Treaties and the inconclusive
character of doctrine and practice in this respect, see Schreuer XLV BYIL 1971
pp. 282–301.
That a requirement of balancing follows from sovereign equality is also usefully
discussed in Barboza, Second Report on International Liability for Injurious
Consequences arising out of Acts not prohibited by International Law, UN Doc.
A/CN.4/402 (16 May 1986), pp. 26–27 (xx 52–54). See also Draft Article 6 (Freedom
of Action) and comment in idem, Fourth Report, A/CN.4/413 (6 April 1988) pp. 8 and
32–33 (xx 92–95).
158
ICJ: Asylum Case, Reports 1950 pp. 276–277. See also comment in Baxter XLI BYIL
1965–66 pp. 296–297; Marek VI RBDI 1970 p. 63; Brownlie (Principles) pp. 6–7.
159
Fitzmaurice XXX BYIL 1953 pp. 12–13. The Parties argued at length about the correct
position of the burden of proof. See ICJ: Anglo-Norwegian Fisheries Case, Pleadings I
(Memorial of the United Kingdom: the Party relying on historic right must prove its
existence) pp. 94–97, ibid. (Counter-Memorial of Norway: the one who relies on
prohibitory custom must prove its existence) pp. 378–379. It is submitted that the
Court avoided discussing this question because of the plausibility of the Parties’
alternative descriptions of what was in issue. Establishing a priority between
the rules would have meant establishing a priority between these descriptions, the
perspectives from which the two States looked at the matter.
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This, of course, takes us quite far from what was expressed as the identity
of the judicial process – applying rules in an objective way. For, as Reuter
writes:
. . . il y’a toujours plusieurs équités possible et chacune d’entre elles est
soustendue par une conception politico-philosophique différente.161
160
Stowell (International Law) pp. 123 and generally 122–130. Indeed, such an extension of
compromise, or equity infra legem into any conflict where clear-cut legal rules are lacking
has been increasingly suggested. Thus, in the Decision of the ICSID ad hoc Committee
Setting aside the Award Rendered on the Merits in the Arbitration between AMCO Asia Corp
et al. and Indonesia, XXV ILM 1986 it was suggested that recourse to ‘‘equitable principles’’
by the ICJ in maritime delimitations was not a course open only in such cases and that
there would be no question of an ex aequo et bono judgement – and consequently any ultra
vires decision – if such principles were used to determine compensation, for instance, p. 10
(xx 27–28). See further e.g. Schachter 178 RCADI 1982/V pp. 82–90.
161
Reuter XV RBDI 1980–1 p. 179.
162
Allott XLV BYIL 1971 p. 127. The same point is made by Bourquin 64 RCADI 1938/II
(application of equity is to go beyond objective law and to ‘‘legislate’’ for the parties)
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 269
pp. 422–423. Similarly Scelle 46 RCADI 1933/IV pp. 566–567. See also Akehurst 25
ICLQ 1976 p. 811.
163
For the suggestion of good faith as the constraining principle (noting, however, the
difficulties of verification), see e.g. Gounelle (Motivation) pp. 192–222. See also Revere
Copper v. OPIC (Arbitration Tribunal, 24 August 1978) 56 ILR 1980 pp. 279–284. For a
critical view see Zoller (Bonne foi). For her, good faith either refers to a state of mind or
a moral principle. In both cases it is objectively unverifiable, pp. 335–354 and passim.
For the suggestion of ‘‘abuse of right’’ as a controlling rule, see e.g. Politis 6 RCADI
1925/I pp. 77–109; Lauterpacht (Function) pp. 286–306; Jacqué (Elements) pp. 171–176;
Zoller (Bonne foi) (a critical view) pp. 96 et seq, 109–122. For criticism, see also
Koskenniemi XVII Oikeustiede-Jurisprudentia 1984 pp. 113–116.
164
ICJ: Barcelona Traction Case, Reports 1970 p. 33 (x 36). The same principle has been
much belaboured in respect of international environmental conflict in which it has
essentially led to an attempt to search for the equitable solution. See supra n. 149.
165
For the argument that liberties cannot be preferred vis-à-vis each other because this
would contradict with sovereign equality, see Schwarzenberger (Dynamics) p. 72;
Kooijmans (Equality) p. 126 et seq.
166
Thus, it was argued by Judge McNair in the Anglo-Norwegian Fisheries Case that:
‘‘. . . the manipulation of the limits of territorial waters for the purpose of protecting
economic and social interests finds no justification in law,’’ diss. op., Reports 1951
p. 169. Similarly, Degan (l’Equité): ‘‘Il ne fait aucun doute que ce raisonnement de la
Cour n’est pas purement juridique’’ p. 225.
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167
This concerns especially its delimitation practice. See e.g. Gros, diss. op. ICJ:
Tunisia–Libya Continental Shelf Case, Reports 1982 pp. 147–156; idem, diss. op. ICJ:
Gulf of Maine Case, Reports 1984 (arguing that the search for equity allocates a new
function to the judge ‘‘as freed from the positive law it is charged to apply’’) p. 388;
Ruda, Bedjaoui, Aréchaga, joint sep. op. ICJ: Libya–Malta Continental Shelf Case,
Reports 1985 (pointing out the ‘‘pretorian subjectivism’’ in delimitation by equity)
pp. 90–91; Oda, diss. op. ibid. (deploring the subjectivism in the Court’s search for
equity) pp. 125, 159. See also Pirotte LXXVII RGDIP 1973 pp. 130–133; Bowett XLIX
BYIL 1978 (criticism of the effect of equity on the predictability of the law – with
reference to the Anglo-French Continental Shelf Case) pp. 13–14 et seq; Charney 78
AJIL 1984 (a review of criticisms) pp. 589–591; Rosenne (Festschrift Bindschedler)
(noting that ‘‘very frequently’’ a reference to equitable principles contains no ‘‘real
substantive rule of law’’) pp. 407–425.
Of course, the Court itself has argued that its equity is not really the kind of
‘‘subjective equity’’ – ‘‘a matter of abstract justice’’ – which it thought was entailed by
the German argument about ‘‘equitable shares’’ in the North Sea Continental Shelf
Cases. It has made the distinction between equity ex aequo et bono and equity infra
legem and assumed that it has kept itself well within the boundaries of the latter,
Reports 1969 p. 48 (x 88). See also supra n. 128 and the discussion in Koskenniemi XVII
1984 pp. 134–136.
168
Oda, diss. op. ICJ: Tunisia–Libya Continental Shelf Case, Reports 1982 p. 157.
Similarly, Tanaka, diss. op. ICJ: North Sea Continental Shelf Cases, Reports 1969
pp. 195–196.
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4.5 C O N S T R U C T I V I S M: R E C O U R S E T O E Q U I T Y 271
fact view because it was more objective than this. It was more objective
because the view that States had an initial freedom led into apologism.
To think that the law precedes the State, however, will ultimately lead
to the assumption that values are objective. As the legal approach
cannot hold such a position it maintains that the relevant sovereignty-
determining standards are valid because accepted by States themselves.
But this entails assuming that subjective acceptance has a validity
and an objectivity which natural morality lacks. It is now the State’s
initial freedom to accept or reject norms which grounds the objectivity
of the legal approach – the very assumption against which it constituted
itself.
A reverse shift takes place in the pure fact argument. For it,
originally, the legal approach seemed subjective as this did not base
itself on the objective fact of a State’s existence as a centre of effective
authority. But to justify itself, the pure fact view will ultimately have
to assume the existence of a set of criteria for legitimate authority
which are external to the pure fact of effectiveness. It will have to rely
on an antecedent conceptual system which tells which facts are
legally relevant and which are not. These criteria come to form the
normative system which now overrides statehood and delimits the
State’s sovereign sphere.
Both approaches, while originally exclusive, lose their identity during
argument and come to rely on each other – indeed, start to appear
indistinguishable. The structure of modern discourse about sovereignty
is provided by the continuous re-affirmation of the initial opposition
between the two views and its gradual dissolution during argument.
Lawyers commonly argue about the limits of sovereignty as if they
assumed the existence of objective values. They ground their proposi-
tions on equity, ‘‘peace and stability’’, economic efficiency, vital interests
etc. They assume that liberties can be limited objectively, by recourse to
such ideas. But they remain at a loss in respect of the justification of such
objectivities and ultimately justify them by subjective acceptance –
behind which looms the metavalue of liberty. And lawyers argue
about sovereignty as the need to honour the State’s subjective consent,
domestic jurisdiction or self-determination. To justify this, they appeal
to the law which, they assume, contains these within itself and thus
remains anterior to them.
In the following sections I shall attempt to show how this discursive
structure leads to the impossibility of justifying, in a determinate
manner, solutions to disputes about sovereignty. Instead, discourse
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169
For general reviews of this classical and all-but-resolved debate, see e.g. Kunz
(Anerkennung) pp. 65–84; Strupp 47 RCADI 1934/I pp. 425–442; Chen (Recognition)
pp. 13–17; Bindschedler 9 Arch.VR 1961–62 pp. 385–394; Charpentier (Reconnaissance)
pp. 190–200; Blix 130 RCADI 1970 /II pp. 603–610; Crawford (Creation) pp. 16–25; idem
XLVIII BYIL 1976–77 pp. 95–107; Brownlie (Principles) pp. 91–93; Gilson (Sovereign
Equality) pp. 196–201. My analysis here is inspired by Kennedy (Structures) pp. 129–151.
170
As Chen (Recognition) puts the point: ‘‘The source of rights and duties of an entity
in international law is the fact of its actual supremacy within a specified area of
territory . . . This fact is the basis of international law’’ p. 3. Because the law emerges
from the State, it would be illogical to think of the emergence of States as a legally
regulated process. See also Jellinek (Allgemeine) pp. 270–283.
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4.6 E X A M P L E: S T A T E H O O D A N D R E C O G N I T I O N 273
This view sets the entity’s own subjective power and will to exist as a State
before any act of recognizing it as a State by the legal order. But it looks
apologist in its reliance on the self-assessment of the entity itself. Surely,
even if the process which leads to the establishment of the State may be a
sociological one, it cannot be wholly dependent on what the emergent
entity does and how it itself views what it is doing. The cases of Hyderabad
and Rhodesia, among others, testify to the effect that whether an entity is a
State or not cannot be a simple matter of the entity’s self-definition but that
this definition, in order to create legal consequences, must correspond to
some external criteria. Other States could hardly be expected to accept the
171
See e.g. Corbett (Law and Society) p. 63; Strupp 47 RCADI 1934/I pp. 425–426; Briggs
43 AJIL 1949 pp. 115–117; De Visscher (Theory) pp. 103–104; Lansing (Notes)
pp. 11–13; Cavaré (Droit international I) pp. 342–349; Barile 161 RCADI 1978/III
pp. 26–27, 30; Anand 197 RCADI 1986/II p. 22; Carty (Decay) (defending his view that
international law is not a ‘‘complete system’’) p. 57 and passim.
172
See e.g. Kato 10 IJIL 1970 pp. 305–307, 322–323; Bindschedler 9 Arch.VR 1961–62
pp. 389, 393–394; Ross (Text-book) pp. 114–116; Erich 13 RCADI pp. 30–38; François
66 RCADI 1938/IV pp. 72–74; Rolin 77 RCADI 1950/II pp. 327–328: Blix 130 RCADI
1970/II pp. 609–610; Briggs 43 AJIL 1949 pp. 113–121; Hingorani (Modern) pp. 96–97.
Chen (Recognition) affirms the minimal international importance of recognition
under this view. Its sole significance is relative to national courts, p. 7.
173
Lapradelle, PCIJ: Nationality Decrees Case, Ser. C 2 p. 83. Jellinek (Allgemeine)
summarizes: ‘‘Der Staat ist Staat kraft seines inneren Wesens’’, p. 273.
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174
For these criteria, see e.g. Kunz (Anerkennung) p. 15; Kelsen (Principles) p. 388; Brierly
(Law of Nations) p. 137; Corbett (Law and Society) p. 61; Blix 130 RCADI 1970/II
pp. 622, 632–638. Crawford (Creation) interprets the traditional criteria so that they
all aim to prove the factual effectiveness of the entity, pp. 31–76.
175
Bluntschli (Völkerrecht) p. 71. For the association of the declaratory position with
naturalist theories of self-determination, see also Chen (Recognition) pp. 18–19; Blix
130 RCADI 1970/II pp. 609–610.
176
Kelsen 14 RCADI 1926/IV pp. 309–310. See also Fitzmaurice IIL 1973 p. 216; Kunz
(Anerkennung) holds that while recognition is declaratory in respect of the ‘‘member-
ship’’ of the State in the international community, it is constitutive in respect of the
relations between the recognizing and recognized States, pp. 80, 86, 88.
177
Kelsen 42 RCADI 1932/IV pp. 260–266; idem (Principles) pp. 420–421; Tucker (Lipsky:
Law and Politics) pp. 31–48. See also Lauterpacht (Recognition) pp. 45–51; Ago 51
AJIL 1957 pp. 702–703. Later, in fact, Kelsen labelled his view ‘‘constitutive’’ – in the
sense that he held the law to ‘‘constitute’’ the state (Principles) p. 394. On this apparent
change of position, see also Gilson (Sovereign Equality) pp. 203–206; Kunz 44 AJIL
1950 pp. 713–714.
178
Crawford XLVIII BYIL 1976–77 p. 95.
179
See also Kelsen 14 RCADI 1926/IV pp. 309–310; idem 42 RCADI 1932/IV p. 182 et seq.
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4.6 E X A M P L E: S T A T E H O O D A N D R E C O G N I T I O N 275
180
Thus Scelle 46 RCADI 1934/IV, a ‘‘declarativist’’, must insist on the cognitive character
of recognition as a ‘‘pur constatation’’ of fact – an ‘‘acte juridictionnel’’, pp. 387, 388.
But it seems doubtful whether we have reason to rely on such ‘‘purity of perception’’.
The point against declaratory theory’s ‘‘automatic test of existence’’ is made by
Lauterpacht (Recognition) pp. 48–51. Anzilotti (Cours, I) connects the ‘‘automatic’’
test with indefensible naturalism, pp. 163–164.
181
As Kelsen (Principles) puts it: ‘‘In the realm of law, there is no fact ‘in itself’, no
immediately evident fact; there are only facts ascertained by the competent authorities
in a procedure determined by law’’, p. 388. Wright 44 AJIL 1950 captures this insight
in the following: ‘‘Recognition is in principle declaratory but in practice constitutive’’,
p. 557.
182
This is, arguably, Oppenheim’s (International Law, I) reason for his espousal of the
constitutive view, p. 117. See also Anzilotti (Cours, I) pp. 163–164.
183
For the constitutive position generally, see Oppenheim (International Law, I)
pp. 116–121; Cavaglieri 26 RCADI 1929/I pp. 351–353.
184
See e.g. Verdross (Verfassung) pp. 131–137; Kunz (Anerkennung) pp. 88–89.
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185
The argument of the historical character of notions of statehood is presented against
the pure fact view by Hart (Concept) pp. 216–217; Brierly (Basis of Obligation) p. 125.
186
See generally Crawford (Creation) pp. 103–106, 149–169, 225–227; James (Sovereign
Statehood) gives several examples of the differences in factual effectiveness in entities
considered ‘‘States’’ and argues that the sole test of statehood can be a ‘‘legal’’ one –
namely the test of constitutional dependence, pp. 39–45, 99–130 and passim.
187
A classical example being the system of Minorities Treaties, established on the basis of
Article 256 of the Versailles Peace Treaty. Under this system, and more specifically
Article 93 of the Versailles Treaty, Poland, for example, was held bound to honour the
principle of equality of all Polish citizens. See generally, PCIJ: German Settlers in
Poland Case, Ser. B 6 pp. 19–21, 36–37.
188
For example, the complete collapse of effective Government in Germany by 5 June
1945 was not taken to mean the dissolution of Germany as a sovereign State as the
Allied powers had not expressed their wish to annex it. For discussion, see e.g.
Crawford (Creation) pp. 274–275; Jennings XXIII BYIL 1946 pp. 113–114; O’Connell
(International Law, I) pp. 441–442; Fawcett (Law and Power) p. 19. See also Korovin 40
AJIL 1946 p. 744. The idea that absence of will to annex will suffice to prevent transfer
of sovereignty from the vanquished to the victor State follows also from the principle
according to which the establishment of sovereignty requires the presence of an animus
to that effect, see PCIJ: Eastern Greenland Case, Ser. A/B 53 pp. 45–46.
189
There is an abundance of case-law on this. See e.g. PCIJ: Wimbledon Case, Ser. A 1
p. 25; Exchange of Greek and Turkish Populations Case, Ser. B 10 p. 21. In the
Lighthouses of Crete and Samos Case, the PCIJ held Turkey to possess sovereignty
over the islands despite the ‘‘theoretical’’ character of its control over them, Ser. A/B 71
p. 103 and the criticism by Hurst, diss. op. ibid. p. 127. See also ICJ: Status of South West
Africa Case, Reports 1950 p. 132; US Nationals in Morocco Case, Reports 1952 pp. 185,
188 and James (Sovereign Statehood) pp. 100–104; Crawford (Creation) pp. 186–214.
See also e.g. Whiteman (Digest, I) pp. 248–251. In some cases, such as Burma in late
1970s and contemporary Lebanon, complete absence of effective Government has not
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4.6 E X A M P L E: S T A T E H O O D A N D R E C O G N I T I O N 277
been taken to involve loss of statehood. For discussion, see James (Sovereign
Statehood) pp. 123–129. For such doubtful cases as those of Danzig, Cyprus,
Guinea-Bissau and some other mini-States, see Crawford (Creation) pp. 163–169,
188–194; James (Sovereign Statehood) pp. 53–71, 99–130, 142–160, 188–194,
238–246. For cases where administration and sovereignty are separate, see also
Whiteman (Digest, II) pp. 1104–1111. For the point that sovereignty may be ‘‘quali-
fied’’, see e.g. Aliq v. Trust Territory of the Pacific Islands (US High Court, Appellate
Div. 24 Nov. 1967) 61 ILR 1981 pp. 89 et seq, 96, 99.
190
Thus, States emerging from the Vienna Conference of 1815 or through such contrac-
tual arrangements as the Versailles Peace Treaty, seem to be constituted through a
‘‘legal process’’. See also the Austrian State Treaty of 1955, 217 UNTS p. 223. On this
point further, see Crawford (Creation) pp. 310–311; Blix 130 RCADI 1970/II
pp. 605–606. See also Dugard (Recognition) (reviewing the collective recognition
practice in the League and the UN) pp. 14–24, 41–80.
191
On the UN policy of non-recognition in respect of Rhodesia, see UNGA Res. 2024
(XX) 11 November 1965 and SC Res. 216, 217, 12 November 1965, 232, 16 December
1966 and 253, 29 May 1968. For discussion, see Fawcett (Law and Power) pp. 19–20,
92–103; Okeke (Controversial Subjects) pp. 104–105. On this policy vis-à-vis South
Africa’s Bantustan homelands (Transkei, Bophutnatswana, Venda, Ciskei), see e.g.
UNGA Res. 344 D (XXX), 28 November 1975 and 32/105, 14 September 1977. See also
SC Res. 402, 22 December 1976, 407, 25 May 1977. See also the Statement by the
President of the Council in 1982 (Doc. S/14794). For these cases, see further Dugard
(Recognition) pp. 90–108 and (on UN non-recognition of the Turkish republic of
Northern Cyprus) pp. 108–111. On the different considerations of illegality which
have affected this policy, see James (Sovereign Statehood) pp. 133–161. It is probably a
majority view that no duty of non-recognition exists. This view has been somewhat
challenged by the opinion in ICJ: Namibia Case, Reports 1971 pp. 51, 54 (xx 112, 117,
119). See also UNGA Res. 42/22, 18 December 1987 (Declaration on the Enhancement
of the Effectiveness of the Principle of Refraining from the Threat or Use of Force),
operative para. 10 & Annex. See also Crawford (Creation), holding that there is a duty
of non-recognition in respect of fundamental breaches, pp. 123–124. See also Virally
183 RCADI 1983/V pp. 56–57; Dugard (Recognition) pp. 135 et seq, 152–163. For a
review of the history of the non-recognition doctrine (apart from the useful work by
Dugard, supra), see Bierzanek VIII AFDI 1962 pp. 119–124 (containing also a criticism
of the doctrine as contrary to the aim of peace and security), pp. 119–132; Bindschedler
9 Arch.VR 1961–62 pp. 391–393.
192
Oppenheim (International Law, I) p. 118; Charpentier (Reconnaissance) pp. 291–294;
Bierzanek VIII AFDI 1962 p. 130 (but see also pp. 131–132). See also the discussion
of the change in US policy from a ‘‘right’’ to recognition to holding recognition
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justify a naturalist view on the rule providing the criteria for statehood.
But if recognition is constitutive and political,193 then the system
fails to protect the initial liberty and equality of the new entity, its
right of self-determination. The entity’s identity as a State becomes
wholly dependent on the political views of old States. This would
also threaten the Rule of Law. A situation would be created in which
any emergent entity, however effectively in possession of territory,
people and Government, could be considered a legal nothing by the
non-recognizing States.194 Each entity’s status would become infinitely
variable depending on whether a State has recognized it or not. It would
lack coherent legal identity altogether.195
These are precisely the kind of difficulties for which the pure fact view
and the declaratory theory were conceived in the first place. For the
declarativists, 19th century European practice of admitting non-
European states to the ‘‘community of civilized nations’’ was a form of
political subjectivism which failed to do justice to the objective character
and individuality of the non-European entities.196 It failed to give effect
to their liberty as persons similar to European States and equal in this
sense with them. Most importantly, it failed to give effect to what had
seemed like objective facts:
essentially a ‘‘political’’ act, Corbett (Law and Society) pp. 68–78; Brownlie
(Macdonald-Johnston: Structure and Process) pp. 637–638; Wright 44 AJIL 1950
pp. 556–557; Brown 44 AJIL 1950 pp. 620 et seq, 639–640; Coplin (Functions)
pp. 58–60. See also Crawford (Creation) pp. 258–266.
193
See especially Kato 10 IJIL 1970 pp. 305, 307–318 (a review of the ‘‘political’’ character
of recognition).
194
See Brierly (Law of Nations) pp. 138–139; Charpentier (Reconnaissance) pp. 193–194;
Corbett (Law and Society) p. 61. See also Brownlie (Principles) p. 94.
195
Kelsen (Principles) pp. 393–394; Bindschedler 9 Arch.VR 1961–62 p. 386; Erich 13
RCADI 1929/III pp. 34–35; Blix 130 RCADI 1970/II p. 608; Briggs 43 AJIL 1949
pp. 117–119. Charpentier (Recognition) p. 203 et seq, and Cheng (Macdonald-
Johnston: Structure and Process) pp. 516–518 see no difficulty in this consequence;
for them, the ‘‘voluntary’’ character of the international society makes this ‘‘relativist’’
conclusion inevitable.
196
Kato 10 IJIL 1970 pp. 320–321. Chen (Recognition) deplores what he calls the
‘‘Machiavellian’’ consequences of the constitutive view, p. 3.
197
Kato 10 IJIL 1970 p. 302. Brownlie (Principles) prefers the declaratory view for the
same reason, because ‘‘it militates in favour of a legal and objective method of
analyzing situations’’, p. 635.
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198
Lauterpacht (Recognition) pp. 6, 25, 72–78 and passim. Lauterpacht’s theory is devised
to avoid the consequences of pure constitutivism which ‘‘divorces’’ questions of
statehood ‘‘from binding considerations of legal principle’’, p. 41. See also
Guggenheim (Traité, I) pp. 150–151. For a criticism, see e.g. Kunz 44 AJIL 1950
pp. 713–719.
199
‘‘. . . si la reconnaissance est obligatoire, elle n’est plus constitutive’’, Charpentier
(Reconnaissance) p. 194. To the same effect, see Brownlie (Macdonald-Johnston:
Structure and Process) p. 627.
200
Wright 44 AJIL 1950 suggests that a tribunal might be able to oppose the statehood of
an entity against a non-recognizing State if only the former had secured ‘‘general
recognition’’, pp. 550–551. This is another way of saying that the duty to recognize or
accept the entity’s statehood becomes operative when a majority has recognized. For
the popular argument about ‘‘collective recognition’’, see Jessup (Modern) pp. 44–51.
The kind of majority legislation assumed by both suggestions, however, contradicts
the sovereign equality of both the State which is the object of recognition and the
State which has not recognized. It is indefensible within the liberal system as it
ultimately assumes that communal goals are always expressed in majority vote and
must override individual States’ freedom.
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201
Some lawyers have attempted to escape this difficulty by distinguishing between
recognition as a ‘‘cognition of fact’’ and recognition as ‘‘political act’’. See e.g. Rolin
77 RCADI 1950/II pp. 327–328; Brownlie (Macdonald-Johnston: Structure and
Process) pp. 633–634; Briggs 43 AJIL 1949 p. 120; Blix 130 RCADI 1970/II pp. 607,
609, 623–624; Crawford XLVIII BYIL 1976–77 p. 95. The former would involve a
simple perception that the required conditions for statehood exist, the latter would
denote the State’s willingness to attach legal consequences to it. The distinction rests
on being able to differentiate between the State’s (impartial, objective) acts of cogni-
tion and (partisan, subjective) volition. It then uses the former to explain the State’s
emergence and the latter to explain the different consequences attached to it. But the
construction is a failure. In the first place, it is quite unclear whether there exists a
‘‘pure’’ cognition which can be opposed to ‘‘pure’’ volition. Indeed, one of the assump-
tions behind this book is that the distinction cannot be made. Secondly, the point
really is that it seems impossible to oppose to a State a view about what it has or has not
taken cognizance of. If the State simply denies the presence of the (objective) cognitive
criteria, we seem unable to argue that such cognition had taken place though the State
now denies it. By denying ‘‘cognition’’, the State will achieve precisely the same effect as
denying a recognition in a constitutive system.
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together in a way that seems called for. For they are based on mutually
exclusive assumptions. The factual approach assumes that a State’s
liberty, its will and interest must be effective: these must override
external constraint. The legal approach assumes that the legal order
must be effective: that it can overrule the State’s subjective liberty, will
or interest. Sometimes, of course, ‘‘facts’’ and ‘‘rules’’ may point to the
same direction. In such cases, there is no need to establish preference.
But the very essence of the dispute in our example – as well as in any
dispute about recognition – is that facts and the law seem to conflict and
that the decision-maker is asked to establish which of these is prior to
the other.
The pure fact and the legal approach to sovereignty seem indefensible
because both dissolve into politics. The former fails to draw a line
between force and law. The latter will legitimize the imperialism of
existing States. The pure fact approach is, moreover, indefensible as
facts alone cannot create law. Rules are needed. But rules are not auto-
matically applicable. They need interpretation and interpretation seems
subjective. This is not merely a ‘‘practical’’ difficulty of interpretation.
The doctrine of sovereign equality makes it impossible to decide
between competing interpretations. If the validity of the interpretation
cannot be checked against the rule itself (which it, of course, cannot,
as this would require that we could know the meaning of the rule
independently of the interpretations – in which case no interpretation
would be needed), then there is no other basis to make the choice than
either by referring to a theory of justice or to the identities of the States
involved: one interpretation is better either because it is more just or
because it is produced by this, and not that, State. And the former
solution is utopian, the latter violates sovereign equality. Both seem
purely political.
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207
Island of Palmas Case, II UNRIAA p. 839. For doctrinal discussion on the conditions of
‘‘effective possession’’, see e.g. Fenwick (International Law) pp. 405–407; O’Connell
(International Law, I) pp. 409–419.
208
For the Eastern Greenland Case, see infra ch. 4.7. See also ICJ: Minquiers and Ecrehos
Case, Reports 1953 p. 57 et seq; Frontier Lands Case, Reports 1959 pp. 227–230;
Temple Case, Reports 1962 pp. 29–33; Western Sahara Case, Reports 1975 pp. 45–48
(xx 99–107).
209
Island of Palmas Case, II UNRIAA pp. 839, 843–846. See also Fenwick (International
Law) pp. 410–411.
210
Lauterpacht (International Law, I) pp. 341–344. Sørensen 101 RCADI 1960/III (noting
the insufficiency of mere effectiveness in adverse prescription) pp. 147–148. See also
ICJ: Namibia Case, Reports 1971 in which the Court distinguished between sover-
eignty and effective control, p. 54 (x 118).
211
This principle serves to maintain the law’s concreteness. On the validation of illegally
attained title through acquiescence, see Lauterpacht (International Law, I)
pp. 344–345. The principle according to which things should be left as they are – the
‘‘principle of stability and finality’’ – is present in Vattel (Droit des Gens) L. II, ch XI
x147 (p. 364). It has been frequently referred to in case-law. See e.g. Grisbadarna Case,
XI UNRIAA p. 161; ICJ: Temple Case, Reports 1962 p. 34. For discussion, see
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216
Kelsen (Festschrift Wehberg) pp. 203–205. Similarly Lauterpacht XXVII BYIL 1950
pp. 429–430.
217
Lauterpacht XXVII BYIL 1950 legitimizes such claims precisely by reference to the
aspect of tolerance, or acquiescence in other States, p. 393 et seq.
218
For a discussion of the tendency to emerge the law with power under the doctrine of
effectiveness, see e.g. Chemillier-Gendreau XI RBDI 1975 pp. 38–46.
219
PCIJ: Eastern Greenland Case, Ser. A/B 53 p. 46.
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220
On the role of external (third States’) recognition or acquiescence in the law of
territorial acquisition, see e.g. O’Connell (International Law, I) pp. 424–426.
221
The position is equivalent to the declarativist’s criticism of the constitutive position
regarding the recognition of States.
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emerges from pure fact. Facts overrule views about them. This seems
necessary so as to avoid political subjectivism. The argument from
recognition assumes that whatever titles States may have depends
on what view States have taken on them. These views give facts their
legal sense. This seems required in order to maintain distance between
political power and legal right. Either pure fact (and State liberty)
is effective (in which case general consent is overruled) or general
recognition is effective (in which case pure facts and State liberty are
overruled).
The argumentative structure of disputes about territory is provided
by the constant affirmation of the opposition between these two app-
roaches and its dilution within argument. What happens in dispute-
solution is that disputing States’ positions are interpreted so as to lose
the conflict between them. Effective possession and general recognition
are so interpreted as to point to the same solution. Either both are
present or both are absent. The question what if they were to point to
differing solutions is neither raised nor answered. Nor can it be because
this would emerge the need to establish priority between them – a
priority which cannot be made. The embarrassing dilemma is that by
failing to indicate a preference between fact (possession) and views
about fact (recognition), dispute-solution fails to be guided by any
rule at all.
Let me now illustrate this structure by reference to three cases from
the jurisprudence of the World Court.
The Eastern Greenland Case (1933) arose out of a Norwegian royal
resolution of 10 July 1931 in which Norway declared its sovereignty over
a small portion of Eastern Greenland (Eirik Raudes land). Denmark
disputed the validity of this act, arguing that its sovereignty extended
over the whole of Greenland. Norway denied Danish title on the terri-
tory occupied by it which it regarded a terra nullius.222
Denmark’s initial argument is that Danish sovereignty was based on
general recognition and acquiescence. It:
222
For the parties’ final submissions, see PCIJ: Eastern Greenland Case, Ser. A/B 53
pp. 24–26.
223
Ibid. Danish Memorial, Ser. C 62 p. 101.
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224
Ibid. Danish Reply, Ser. C 63 p. 712.
225
Ibid. Danish Reply, Ser. C 63 pp. 726–729 and argument by De Visscher, Ser. C 66
p. 2797.
226
Ibid. Ser. C 66 pp. 2794–2795.
227
Ibid. Danish Memorial, Ser. C 62 pp. 101–107; ibid, Danish Reply, Ser. C 63
pp. 712–713 and argument by De Visscher, Ser. C 66 pp. 2798–2857.
228
Ibid. Norway’s Counter-Memorial, Ser. C 62 pp. 373–430.
229
Ibid., oral argument by Gidel, Ser. C 66 p. 3220 et seq; and Norway’s Rejoinder,
Ser. C 63 pp. 1190 et seq, 1331–1372.
230
Ibid. Norway’s Counter-Memorial, Ser. C 62 p. 538.
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For Norway, general recognition was only a res inter alios acta.231 There
is no majority rule in international law.232 Reliance on recognition will
inevitably violate Norway’s sovereign equality.
At this stage, the two rules are presented as mutually opposing.
Preferring general recognition would seem to support the Danish
claim and preferring effective possession the Norwegian view. But
both States succeeded in making their opponent’s view seem untenable.
Title based on general recognition seemed fictitious as devoid of factual,
objective criteria. Title based on effective possession violated commu-
nity consent. And there was the difficult issue of sources: could Norway
be held bound irrespective of consent? Could Denmark be so bound?
Therefore, both Parties needed to complement their initial arguments
with additional points.233
Denmark argued also that it exercised effective control on the dispu-
ted territory and had exercised it ‘‘for centuries’’.234 Its title was not
fictitious. By contrast, it held that Norway had not succeeded in showing
effective possession. For this contains a dual structure: actual acts of
sovereignty (corpus) and the will to act as sovereign (animus). Denmark
denied the presence of animus in the Norwegian acts as Norway had,
according to Denmark, expressed its contrary animus in its recognitions
of Danish sovereignty.235
Norway argued also from general recognition. The rule about effective
possession was argued as a customary rule which was binding on
231
In his oral argument, professor Gidel pointed out that giving effect to third States’
views would be to concede to a policy of ‘‘spheres of influence’’ – one which could not
be binding on Norway, ibid. Ser. C 66 pp. 3229, 3259–3260. Norway’s Rejoinder
stressed that reliance on foreign consent was a colonialist rule, ibid. Ser. C 63
pp. 1373–1380.
232
Ibid. Oral argument by Gidel, Ser. C 66 pp. 3220–3226.
233
Both Parties argued that the other was bound because it had consented to the other’s
position. This seemed necessary to preserve sovereign equality. Thus both came to
assume that their right is based on the other’s consent. See ibid. Danish Memorial C 62
pp. 107–114; Norwegian Counter-Memorial C 62 pp. 428–493.
234
Ibid. Danish Reply, Ser. C 62 pp. 726 et seq; 732–744, 810–825. The Danish Memorial
made express reference to the ‘‘continous and peaceful display of sovereignty’’ rule,
ibid. p. 104.
235
Norway’s consent was held based on 1) the Treaty of Kiel of 1814; 2) general multi-
lateral conventions to which Norway was a Party and which recognized Danish rights;
3) the Declaration by the Norwegian Foreign Minister to the Danish Foreign Minister
on 22 July 1919 according to which Norway would ‘‘make no difficulties’’ in respect of
Danish extension of sovereignty over Greenland. See ibid. Danish Memorial, Ser. C 62
pp. 107–114, Danish Reply, Ser. C 63 pp. 850–900.
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4.7 E X A M P L E: T E R R I T O R I A L D I S P U T E S 291
236
Ibid. Norwegian Counter-Memorial, Ser. C 62 pp. 382–394 and argument by Gidel,
Ser. C 66 p. 3226 et seq.
237
Norway held that such comparison would immediately lead to prefer the interests of
Norwegian hunters and fishermen, ibid. Norwegian Counter-Memorial, Ser. C 62
pp. 174–243 and argument by Rygh, Ser. C 66 pp. 2948–2970.
238
Ibid. Norwegian Counter-Memorial, Ser. C 62 pp. 482–493; Rejoinder, Ser. C 63,
pp. 1324–1327.
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take effect over the whole of Greenland.239 The conditions for effective
occupation were fulfilled. There was no dispute about the possessions of
the Danish-Norwegian King being transferred to Denmark in the Treaty
of Kiel of 1814. There was, then, no terra nullius for Norway to
occupy.240
But Danish title was also based on general recognition, evidenced in
several bilateral commercial treaties in which Denmark’s stipulating
over Greenland had encountered no protests, in the practice of requesting
grants of concession from Denmark to foreign nationals which were to
apply over whole Greenland and in the diplomatic overtures of
1915–1921.241
Consequently, the Court could affirm the equal validity and effective-
ness of the Parties’ two rules by making these point to the same direc-
tion. Both supported Danish sovereignty.
It might be objected that the Court turned to general recognition only as
evidence of effective possession, this latter being the overriding and deter-
mining rule. But it is difficult to make a distinction between the rule and
the ways of manifestation of the rule. One seems unable to argue about the
presence of a rule in some behaviour without at the same time referring to
the external manifestations, the evidence there is for such rule. The rule as
a pure idea is always inaccessible. All we can grasp are its ‘‘traces’’ in
external manifestation. To hold otherwise would be to assume the pre-
sence of natural meanings in social action. But this is a utopian idea.
Now, to have affirmed both effective possession and general recog-
nition leaves still open the problem about sources: how can Danish
acts or even general recognition be opposed to Norway without violating
the latter’s sovereign equality? Therefore, in the second part of the
judgement, the Court proceeded to show ‘‘that Norway had given
certain undertakings which recognized Danish sovereignty over all
Greenland’’.242 Such recognition was based on: 1) Norwegian statements
during the termination of the Union (1814–1819); 2) a series of bilateral
agreements in which Greenland had been referred to as a Danish colony;
3) on the reply of the Norwegian Foreign Minister, on 22 July 1919 to the
239
Ibid. Ser. A 53 pp. 45–51. The Court argued that very little sufficed to show sovereignty
on polar regions, p. 46. Danish ‘‘animus’’ was not derived from any psychological
considerations. It resulted from an interpretation of the term ‘‘Greenland’’ as it was
expressed in official Danish-Norwegian documents of the time, pp. 49–50.
240
Ibid. pp. 51, 62–64. 241 Ibid. pp. 51–62. 242 Ibid. pp. 64–74.
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4.7 E X A M P L E: T E R R I T O R I A L D I S P U T E S 293
243
Anzilotti, diss. op. ibid. pp. 76–95. 244 See infra ch. 5.3.
245
See PCIJ: Eastern Greenland Case, oral argument by Gidel, Ser. C 66 pp. 3193–3218.
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246
The Norwegian system had been promulgated by a Royal Decree of 12 July 1935. The
case concerned the conformity of this Decree with international law. For the back-
ground, see ICJ: Anglo-Norwegian Fisheries Case, Reports 1951 pp. 121–126. See also
Waldock XXVIII BYIL 1951 pp. 117–126. For the ensuing analysis, see also Kennedy
(Structures) pp. 82–90.
247
It was held that for the existence of historic right, two conditions must be fulfilled: there
must be 1) actual acts of effective authority and 2) acquiescence by other States, ICJ: Anglo-
Norwegian Fisheries Case, Reply of the United Kingdom, Pleadings II p. 303. For the
argument against the consistency of the enforcement of the system, see ibid. pp. 591–597.
For the lack of recognition of the system in general custom, ibid. pp. 603–604 and generally
p. 426 et seq and Memorial of the UK, ibid. Pleadings I pp. 60–84. For lack of acquiescence,
see also ibid. Reply of the UK, Pleadings III pp. 602–604.
248
For the Norwegian argument about the general recognition of its system, see ibid. Counter-
Memorial of Norway, Pleadings I pp. 351–361, 370–373. For the argument that custom
does not bind Norway as this possesses a historic right, ibid. pp. 381–384. For the
justification of the Norwegian right as based on possession, economic interests, security
and general recognition, ibid. pp. 571–573 and esp. Rejoinder of Norway, Pleadings III
pp. 462–490. For critical commentary, see Waldock XXVIII BYIL 1951 pp. 128–129, 160.
249
The Court concluded its discussion of the substance by observing that the Norwegian
system: ‘‘. . . was consistently applied by Norwegian authorities and . . . encountered
no opposition on the part of other States’’, ICJ: Anglo-Norwegian Fisheries Case,
Reports 1951 pp. 136–137.
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4.7 E X A M P L E: T E R R I T O R I A L D I S P U T E S 295
250
Ibid. pp. 127, 130. 251 Ibid. pp. 134–138. 252 Ibid. p. 133.
253
Ibid. p. 138. Waldock XXVIII BYIL 1951 argues that the Court thus implied that the
Norwegian system had its ‘‘legal basis in the consent of States’’, p. 162. See also
Fitzmaurice XXX BYIL 1953 pp. 27–42.
254
ICJ: Anglo-Norwegian Fisheries Case, Reports 1951 p. 138. 255 Ibid. p. 139.
256
That both points were needed is not disputed even in the dissenting opinions. Judge Read
affirms them expressly, ibid. p. 194, while Judge Alvarez discusses the twin conditions of
actual possession and ‘‘reasonableness’’. In his objectivist view of morality, obviously,
‘‘reasonableness’’ plays the same (‘‘descending)’’ part which general recognition does
under mainstream non-cognitivist assumptions, ibid. pp. 152, 150.
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According to the Court, the UK could not have failed knowing about the
Norwegian decree of 1869. Therefore, its inaction could only be inter-
preted as acquiescence in the Norwegian system.
The Court arrived at a solution by a series of interpretations which
defined the material dispute away. Norway’s sovereignty was established
by Norway’s own acts, general recognition and UK consent. None of
these was preferred. Sovereignty followed from all of them. The critical
issue of possible conflict is neither raised nor answered. And, as
pointed out, it cannot be answered without engendering unacceptable
consequences. But this loses the sense of the original need to make
reference to anybody’s acts or consent in the first place. The distinguish-
ing feature of a claim about Norwegian sovereignty (or British or general
consent) is that this can be effectively opposed to other States. If
Norwegian sovereignty is to have a sense, it must be capable of over-
ruling any general views or another State’s particular views which
conflict with it. This applies, obviously, to British sovereignty or the
argument from general recognition as well. By discussing them as if they
were equally relevant to the emergence of sovereignty the Court loses the
sense in all of them. The solution comes out through a strategy of
evading material choice. No material solution is needed because there
is no dispute. No wonder British lawyers have found it hard to accept
the Court’s solution.258 The argument from British acquiescence (tacit
257
Ibid. p. 139. The protection of British sovereignty was an important consideration as
the Court had earlier given protection to Norwegian sovereignty through the persis-
tent objector rule, ibid. p. 131. Failing to give equal importance to British consent
would have violated sovereign equality. The relevance of possible British acquiescence
was anticipated in the Parties’ arguments. See its affirmation in ibid. Rejoinder
of Norway, Pleadings III pp. 484–487 and denial in ibid. Reply of the UK, Pleadings
II p. 591 et seq.
258
For an extended, critical discussion of the Court’s construction of British consent, see
Fitzmaurice XXX BYIL 1953 pp. 163–172. He argues that the test of consent was in fact
based on a non-consensual presumption. The British, he says, were put in a position of
having to show the absence of consent on their part. Likewise, Waldock XXVIII BYIL
1951 pp. 164–166.
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4.7 E X A M P L E: T E R R I T O R I A L D I S P U T E S 297
In other words, the Court was required to take a stand – if the answer to the
first question was in the negative – on whether Morocco and Mauritania
had possessed sovereignty on the disputed area before Spanish coloniza-
tion and were now in a position to reclaim that lost legal title.262 Though
advisory, the case came very close to a contentious procedure. The claims
of sovereignty advanced by Morocco and Mauritania and the Spanish
reliance on the right of self-determination of the West Saharan population
conflicted in a manner resembling a territorial dispute. The Court held the
advisory procedure appropriate inasmuch as the matter involved a deter-
mination of the proper courses of action of UN bodies.263
259
See further infra p. 278. 260 ICJ: Western Sahara Case, Reports 1975 p. 14 (x 1).
261
Ibid. p. 40 (x 85).
262
The Court pointed out that the question about the ‘‘legal ties’’ needed to be ‘‘under-
stood as referring to such ‘legal ties’ as may affect the policy of decolonization of
Western Sahara’’, ibid. p. 41 (x 85). Spain opposed the Court’s jurisdiction on the
grounds that the question was simply of academic or historical nature, ibid. Pleadings I
(Spanish Written Statement) pp. 187–205. For the Court’s reply, see ibid. Reports 1975
pp. 19–21 (xx 16–19, 24) and 29–31 (xx 48–53). For a discussion of the way in which
the Court’s treatment allowed it to deal with a historical issue as one of contemporary
law and doctrine, see Shaw XLIX BYIL 1978 pp. 125–127.
263
ICJ: Western Sahara Case, Reports 1975 pp. 26–27 (xx 39–41).
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298 4 SOVEREIGNTY
264
Oral argument by Slaoui, ibid. Pleadings IV pp. 125–127.
265
Oral arguments by Isoart and Dupuy, ibid. pp. 264–271, 301–305.
266
Oral arguments by Maouloud and Salmon, ibid. pp. 355 et seq, 429–438.
267
Oral argument by Cheikh, ibid. pp. 393–420.
268
Written argument by Spain, ibid. Pleadings I pp. 206–208. 269 Ibid. pp. 87–108.
270
Ibid. Reports 1975 p. 49 (x 108).
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4.7 E X A M P L E: T E R R I T O R I A L D I S P U T E S 299
271
Ibid. pp. 42–43 (xx 91–92).
272
Ibid. pp. 43–48 (xx 94–106). See also Shaw XLIX BYIL 1978 pp. 140–141, 143.
273
ICJ: Western Sahara Case, Reports 1975 pp. 49–57 (xx 108–129).
274
Ibid. pp. 53, 54, 56–57 (xx 117, 118, 120, 126, 129). 275 Ibid. p. 63 (x 149).
276
Ibid. pp. 58–61 (xx 133–138). 277 Ibid. pp. 63–65 (xx 147–152).
278
Written Arguments by the Government of Spain, ibid. Pleadings I pp. 78–136.
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4.8 C O N C L U S I O N O N S O V E R E I G N T Y 301
279
This circularity is also pointed out by Ross (Text-book) (noting that to define ‘‘State’’
we refer to international law while to define the latter we refer to ‘‘States’’) p. 12.
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