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From Apology To Utopia 1

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4

Sovereignty

The international doctrine of State sovereignty bears an obvious


resemblance to the domestic-liberal doctrine of individual liberty.
Both characterize the social world in descriptive and normative terms.
They describe social life in terms of the activities of individual agents
(‘‘legal subjects’’, citizens, States) and set down the basic conditions
within which the relations between these agents should be conducted.
But the relations between individual liberty and normative principles
might be figured in alternative ways. We have seen that a pre-classical
scholarship started out with assuming the existence of a normative code – a
set of rights and duties in different areas of the Prince’s conduct. That
code was normative in its own right. Sovereignty – the Prince’s sphere of
liberty – had no independent normative status. It was simply a descrip-
tion of the powers and liberties which the Prince was endowed with by
the normative code. A reverse perspective was developed by the classical
lawyers. For them, the State’s sphere of liberty was prior, and normative,
and the principles of conduct between States simply followed as a
description of what was required to safeguard the anterior liberties. It
should not be difficult to recognize the opposition between a descending
and an ascending outlook in this explanation of the contrast between
early and classical doctrines.1
The problem with the classical position is how to explain what is
involved in a State’s sovereignty – its sphere of liberty – without lapsing

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

into apologism; the conclusion that a State’s liberty extends to anything


the State itself thinks appropriate to extend it to. A fully formal idea of
‘‘freedom’’ is incapable of constructing a determinate, bounded conception
of statehood as well as giving any content to an international order.
Therefore, classical lawyers developed theories of ‘‘absolute rights’’, for
example, which, by giving content to what it was for a State to be ‘‘free’’,
also delimited liberty so as to achieve determinate descriptions. By this
movement, however, they constructed a descending argument which
stood in tension with their ascending denial of a pre-existing (natural)
normative code and the very justification for assuming that States were
‘‘free’’ in the first place. Just like individuality can exist only in relation to
community – and becomes, in that sense, dependent on how it is viewed
from a non-individual perspective – a State’s sphere of liberty, likewise,
seemed capable of being determined only by taking a position beyond
liberty.2 The paradox is that assuming the existence of such a position
undermines the original justification of thinking about statehood in
terms of an initial, pre-social liberty.
The ambiguity about the modern doctrine of sovereignty follows
from this paradox. On the one hand, we seem incapable of conceptual-
izing the State or whatever liberties it has without reflecting on the
character of the social relations which surround it. The sphere of liberty
of a member of society must, by definition, be delimited by the spheres
of liberty of the other members of that society. But the delimitation of
freedoms in this way requires that we do not have to rely on the self-
definition of the members of their liberties. In other words, a State’s
sphere of liberty must be capable of determination from a perspective
which is external to it. On the other hand, we cannot derive the State
completely from its social relations and its liberty from an external (and
overriding) normative perspective without losing the State’s individual-
ity as a nation and the justification for its claims to independence and
self-determination.
Consequently, modern doctrine constantly oscillates between an
ascending and a descending perspective on statehood. The former is
expressed in the manner in which recourse to ‘‘sovereignty’’ seems
always available, in one form or another, to legitimize what first appear
like clear breaches of the State’s international obligations. Not infrequently
both parties in a dispute put their conflicting claims in terms of their
sovereignty. To solve such disputes, doctrine is forced to look beyond

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.

4.1 The structure of the problem: Schmitt v. Kelsen


This contradiction may be illustrated by reference to the positions of
Carl Schmitt and Hans Kelsen in regard to the relationship between law
and power within the State. For Schmitt law is secondary to factual
decision. Making and applying law involve decision. The legal idea
cannot translate itself into social action automatically, independently
of decision: ‘‘. . . in any transformation there is present an auctoritatis
interpositio’’.3 Everything depends ultimately on factual decision, not on
the abstract norm. To look for the place of sovereignty – the highest
authority within the State – we should not ask ‘‘what controls legal
decision-making under regular circumstances?’’ but ‘‘who shall decide
on the exception?’’4 And this is a question of power, not of law. This
looks like a purely ascending position. State’s power is normative and
that power is itself external to and constitutive of the law.
Kelsen works in the opposite direction. Factual power cannot establish
what ought to be. The State as a juridical concept is separate from the State
as a sociological concept.5 Juridically, that is in the realm of the ‘‘ought’’,
‘‘State’’ is simply another name for the (municipal) legal order. As the
validity of the latter – being a matter of ‘‘ought’’, not ‘‘is’’ – can only be
derived from a further norm and ultimately a hypothetical Grundnorm,
the State’s (juridical) identity, too, becomes dependent on it.6 For Kelsen,
the question of the ‘‘place’’ of sovereignty is unanswerable in legal terms as

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

it concerns a simple sociological fact. Legally, ‘‘sovereignty’’ is really only


another way of saying that the legal order is valid. The argument seems
purely descending. The legal order is prior to factual power.
These two positions have an immediate connection with modern ideas
about objectivity in the law. Schmitt’s system seems objective because
‘‘realistic’’ and directed towards concrete, observable facts. For Schmitt,
Kelsen appears utopian: his is only a scholar’s subjective construction
which ‘‘has no connexion with positivity (Positivität)’’.7 In Kelsen, these
associations are reversed. His system seems objective as he shares the
opposite view of what it means for a system to be ‘‘objective’’. Decision
and power are relegated into the realm of sociology precisely because so
subjective. Kelsen’s own ideas seem objective because detached from such
considerations.8 His objectivity is constituted by the controlling force of
his normative premises. From this perspective, Schmitt’s system is sub-
jective because apologist, because it assumes that might makes right. As
Schmitt and Kelsen argue from opposite perspectives, they are capable of
dismissing each other as too subjective. But because the perspectives
differ, there is also no hope of rational agreement until the prior question –
whether ‘‘objectivity’’ should mean relatedness to facts or relatedness to
norms – is solved. And agreement on this is hardly forthcoming.
In Schmitt’s system, sovereignty is a matter of fact-description and law a
normative consequence thereof. In Kelsen, the law is normative and
‘‘sovereignty’’ merely a descriptive shorthand for the rights, liberties and
competences which the law has allocated to the State. Though the positions
are contradictory, they both move within a distinctly modern problématique.
Both project a normative model about how the relations between statehood
and law should be understood without taking a stand on material justice.
But neither position can be fully accepted and yet not fully rejected,
either. Though mutually exclusive, empiricism and conceptualism also
rely on each other. Hence, international sovereignty doctrine oscillates
constantly between arguments such as Schmitt’s and Kelsen’s.9 It works
7
Schmitt (Political Theology) pp. 18–22.
8
Kelsen (Souveränität) repeatedly distinguishes between legal ‘‘objectivism’’ and ‘‘subjec-
tivism’’, associating the latter with doctrines allowing the State’s factual position or
power to influence the law’s content, pp. 241 et seq, 314–319. See idem (Soziologische)
pp. 136–140.
9
The Schmitt/Kelsen contrast is, of course, only a relatively modern surface of a long-
continued discussion in German Staatstheorie about whether the State was a
Rechtsvoraussetzungsbegriff – a sociological fact preceding the law – or a
Rechtsinhaltsbegriff – a concept determined from ‘‘within’’ the legal system. For the
former view, see e.g. Jellinek (Allgemeine) pp. 337 et seq, 364–367. For the latter, see

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228 4 SOVEREIGNTY

with a fluid conception of sovereignty which assumes the correctness of


both. Full rejection of Schmitt’s realistic emphasis on decision would
make doctrine seem utopian. Moreover, it would fail to give protection
to the State’s assumed initial freedom and independence.10 Full rejection
of Kelsen’s argument would make doctrine look apologist; it would fail
to distinguish between actual and legitimate decision. It would also fail
to protect the equality of other States and to explain the legitimacy of
external constraint to State power.11
Disputes involving sovereignty organize themselves in a similar way.
One State argues in terms of effective power. The other argues in a way
which assumes the precedence of constraining norms to actual power.
Neither position can be consistently preferred. Therefore, disputes
about sovereignty remain incapable of material solution by law.

4.1.1 The ‘‘legal’’ and the ‘‘pure fact’’ approaches


According to the Kelsenian view, ‘‘sovereignty’’ is a systemic concept – not
something external to but determined within the law.12 The legal order
pre-exists the sovereignty of the State and remains in control thereof.
I shall call this the ‘‘legal approach’’ to sovereignty.

e.g. Kelsen (Soziologische) p. 75 et seq; idem (Rechtslehre) pp. 117–121. On this


contrast, see e.g. Kunz (Anerkennung) pp. 15–19. A similar contrast is apparent in
Austin’s and Hart’s treatment of sovereignty. For the (initially Hobbesian) argument
that the sovereign is external to the rules which emanate from him, see Austin
(Province) pp. 193–195 et seq. For the view that ‘‘rules are constitutive of the sovereign’’,
see Hart (Concept) pp. 49–76.
10
Carty (Decay) notes that the Kelsenian view fails to give independent normative sense
to a principle of self-determination, p. 47.
11
The difficulty of making a preference is perceived by von Gierke (Grundbegriffe), who
argues that the State must (juridically) be understood both as a factual centre of power
and a legal construction, pp. 30–31. For a critical review of these ‘‘two-sides theories’’,
see also Kelsen (Soziologische) p. 105 et seq. Modern international lawyers are similarly
trying to take a dual perspective. Bleckmann (Aufgabe), for instance, points out that the
opposition between the two perspectives is analogous to the ideals of individual liberty
and the Rechtsstaat and that neither can be allowed to fully overrule the other, p. 38;
idem ÖZöRV 1978 pp. 194–196. But it is probably more correct to associate the dual
perspective with the opposition between liberty and equality or free market and the
social (democratic) welfare State.
12
Kelsen expresses this in the argument according to which it is the essential function of
international law to determine the ‘‘sphere of validity’’ of municipal law, that is the
boundaries of the State’s internal competence. See e.g. 42 RCADI 1932/IV p. 182 et seq;
idem (Principles) p. 177 et seq. For a recent restatement of the Kelsenian position, see
Carreau (Droit international public) pp. 304, 314.

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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

The legal approach dominated the early lawyers’ system.13


‘‘Sovereignty’’ denoted the Prince’s authority which was derived from
a postulated, superior normative code. It may best be understood as his
legally limited ‘‘competence’’.14 The Prince cannot legitimize his action
by referring to his sovereignty if this action conflicted with the law.
A war is not just simply because waged by a legitimate sovereign. It is just
only if waged as enforcement of the law. Even if Bodin did stress the
scope of the Prince’s authority, he did not give up the idea that
such authority was derived from a normative code which remained
controlling. That it was ‘‘absolue et souveraine’’ meant only that:
. . . elle n’a autre condition que la loy de Dieu & de la nature
commande.15

According to this approach, sovereignty is a quality which is allocated to


certain entities by international law which, in this sense, is conceptually
anterior to them. Many modern lawyers, too, share this view. They
argue, with Kelsen and Hart,16 that the criteria for the emergence and
dissolution of States are not simply questions of fact but established by a
rule of law. The law delegates to certain entities the quality of statehood
as a sum of rights, liberties and competences:
Souveränität ist gerade die besondere Kompetenz, die die Staaten auf
grund des Völkerrechts besitzen. ‘Staatliche Souveränität’ und die
‘unmittelbare Völkerrechtsunterwerfenheit’ bedeuten daher ein und
dasselbe.17

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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The same point is formulated in another way by Rousseau:


La fonction essentielle du droit est de conférer, de répartir et de reglé-
menter des compétences – et le droit international public ne fait pas
exception a cette donnée fondamentale de la vie sociale.18

International law allocates competences and legitimate spheres of action


to entities it chooses to regard as legal subjects. No subjects, no sets of
rights, competences or liberties are externally given. They are constituted
by the law itself.
Many kinds of argument imply an acceptance of the legal approach,
epitomized in the idea of ‘‘relative sovereignty’’.19 It is implied in the
view which holds domestic jurisdiction as a ‘‘relative’’ question, in the
view which chooses the monistic conception of international law with
the primacy of international law, in the view which draws boundaries
between conflicting jurisdictions by recourse to ‘‘equitable principles’’

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

and in the view which holds international organizations as functional


bodies whose rights and duties may be inferred from their purpose.20
Ultimately, the very concept of sovereignty loses its normative
significance under the legal approach. If a State cannot refer to its
sovereignty to justify its action but has to find a rule of law which has
given it the right, liberty or competence to act in a certain way, then to
speak of ‘‘sovereignty’’ at all is merely superfluous or, at best, a description
of the norms whose normative force is in their being incorporated in
some legal act, not in their being inherent in statehood.
Under the legal approach, the law’s objectivity is based on the
assumption that facts of State practice, power and authority will disclose
merely subjective politics. To rid law from the danger of apologism, a
higher normative code needs to be assumed. This may be thought of
as a code of natural law. But it is clearly more common for modern
lawyers to envisage it in terms interdependence, common interests, a
shared progressive morality or legal logic.
In Schmitt’s argument, sovereignty is external to international law, a
normative fact with which the law must accommodate itself. I shall call it
the ‘‘pure fact approach’’.
An independent idea of sovereignty which precedes the law emerged
with classical scepticism about the objective character of Natural or
Divine law.21 In order to find out what is normative and what is not,
you must not look at abstract speculations about justice but at what

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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takes place in the real world.22 An objective concept of statehood had


to be unrelated to any views about, for instance, the constitution,
religion or policy of the State.23 To be a State was to hold certain factual,
not evaluative properties. If non-European entities did not qualify for
statehood this was not because of the existence of a material code which
would, for all time, have prevented their qualification as such. It was
simply because their subjective essence (degree of civilization) did not
correspond to that of European States: they were simply too different.
For the classical jurist, this difference was a matter of fact, not of political
opinion.24
To be a State is, according to this position, a question of fact which the
law can only recognize but cannot control. In principle, it would be
possible to speak of a sovereign State only when the entity is ‘‘peace-
loving’’, ‘‘democratic’’ or fulfils some other such criteria. This, however,
presupposes the existence of a normative code which is superior to
statehood. What criteria would it contain? How do we know its content
or whether a particular entity fulfils the criteria included in it? Because
these seem such difficult questions the answers to which seem dependent
on political views, moderns do not assume the existence of such a
code.25 As Anzilotti points out:

. . . il n’y a pas d’Etats légitimes et d’Etats illégitimes; la légitimation de


l’Etat réside dans son existence même.26

The analogy with liberal individualism is evident: an individual’s rights


must be independent of creed, colour or politics. The fact of your being a
human being is sufficient to ground your human rights and your status

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.

4.1.2 The continuing dispute about the extent and relevance


of sovereignty
The legal and pure fact approaches are contrasting ways to justify
sovereignty – the State’s sphere of liberty. This opposition is often
confused with the distinct contrast between two views about the extent

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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234 4 SOVEREIGNTY

of sovereignty. One view is highly critical of sovereignty and seeks to


restrict it as much as possible.29 Another view stresses the continued
relevance of sovereignty and its wide material scope.30 Discussion about
sovereignty constantly takes up these latter views and seeks to relate
them to the opposition between the legal/pure fact approaches in order
to make either seem unacceptable. While the legal approach is usually
associated with views seeking to restrict sovereignty and the pure fact
approach with arguments stressing the State’s freedom, there is no
reason not to assume that while the normative order could allocate
very extensive rights to States, the rights which they possess ipso facto
are only few in number. Views about the material extent of sovereignty
cannot be related to the available justifications in a permanent way. This
makes it possible for an adherent to either position to interpret any
present situation as manifesting his preferred perspective. It is not
possible to argue for the relative correctness of either justification by
simple ‘‘observation’’. Choosing either one is a conceptual, not an
empirical matter – because it is so, modern doctrine is puzzled about
how to establish preference.
Three sets of criticisms have been presented against the very idea of
sovereignty: sociological, moral and logical-systematic.
According to the sociological criticism, no State is able to exist in such
autonomous fashion as suggested by traditional theories of sovereignty.
The criticism stresses the many forms of economic, political and social
interdependencies between States and finds support from the establishment
of international organization.31
A moral criticism, often indistinguishable from the sociological one,
points out that State sovereignty serves to strengthen State egoism,
interpreted as one of the chief reasons for the cataclysms of the present

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

century.32 It has become the hall-mark of Western-liberal doctrines to


challenge absolutist views of sovereignty, imputed to Hegel’s philosophy
and political nationalism. In this spirit, for example, the former United
States Secretary of State, Robert Lansing, published a series of articles in
the first decade of the past century dealing with a perceived transition
from State sovereignty to ‘‘world sovereignty’’.33 As a recent writer puts
the moral point: ‘‘Free, pluralistic democracy’’ requires the harnessing of
sovereignty.34
The logical-systematic criticism has already been referred to. For
Kelsen, sovereignty can have no independence from the more general
and fundamental question of the primacy of international or municipal
law within a monistic conception of law. An ‘‘absolutist’’ view on
sovereignty is merely another way to express the primacy of municipal
over international law.35 For Kelsen, such a conception will ultimately
deny the reality of international law and lead into apologism.36
Therefore, he reduces sovereignty to a description of the State’s competence,
determined by international law.37 For Alf Ross, sovereignty emerges
as a tû-tû concept – a word without a meaning independent from a
full description of the duties and rights which the law ascribes to the
State.38
These criticisms have some intuitive plausibility. Initially, they seem
to stem from the legal approach. What seems common to them is an
effort to look at sovereignty from the perspective of a normative code,

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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236 4 SOVEREIGNTY

assumed to be prior to any initial liberty and conceptualized variably


through a descending approach to interdependence, morality or plain
legal logic.
But this way of understanding the criticisms has a bite only if one has
already accepted the correctness of the legal approach; the assumption that
the law precedes the State. If one does not share it, then the criticism simply
misses the point. From the pure fact perspective it may always be retorted
that the very idea of interdependence starts out from a prior conception of
the State between which relations of dependence have been formed, that
morality – democracy, for instance – is relevant only insofar as States have
freely accepted it and that legal logic really requires only making a choice
between the two perceptions but not what that choice should be.39
The criticism may as well be voiced from a pure fact approach. It may
be argued that the liberty which States ‘‘inherently’’ possess is not
extensive in scope or that States have used their freedom so as to
construct a normative code which now greatly restricts their liberty.40
From the legal approach, of course, this criticism seems unconvincing
as it seems to leave a door open for the State to deny the law’s
binding force. What is important, however, is that both approaches can
accommodate these criticisms in themselves. Neither justification implies
anything determinate concerning the material extent of sovereignty.
Correspondingly, stressing the wide material scope of sovereignty is
possible from both approaches.
It is not at all difficult to make the case for an extensive concept of
sovereignty. As Rosalyn Higgins pointed out in her inaugural lecture
in 1982:
States are still the most important actors in the international legal system
and their sovereignty is at the core of that system.41

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

Indeed, many international developments seem to support the view that


sovereignty is essentially beneficial and that what is needed is not its
abandonment but its realization on the most varied fields of inter-
national conduct.
In the first place, the State’s exclusive right to decide what acts shall
take place in its territory is virtually undisputed and functions as an
independent, overriding justification. The very term ‘‘intervention’’
suggests the idea of the wrongfulness of the act – sometimes, as in
1960 when the UN Security Council condemned the capture of Adolf
Eichmann by Israeli security foces in Argentinian territory, even against
prima facie strong moral reasons for approval.42 Many have argued that
humanitarian considerations are irrelevant in judging whether or not an
act amounts to illicit intervention.43 No reference was made to competing
justifications or the intervener’s motivations when the General
Assembly condemned the recent interventions in Kampuchea,
Nicaragua, Afghanistan and Grenada, for example, as violations of the
‘‘independence, sovereignty and territorial integrity’’ of the respective
States.44
It should not be forgotten that sovereignty was originally taken as a
progressive, egalitarian principle and that it still carries these connotations.
Claims for ‘‘economic sovereignty’’ attain strong moral support from the
rhetorics of the New International Economic Order. The State’s perma-
nent sovereignty over national resources is supported by countless UN
General Assembly resolutions from 1962 onwards.45 Use of natural
resources is a general sovereignty issue. Typically, in cases
of international pollution both the source-State and the target-State

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

legitimize their claims by reference to their sovereignty.46 Also claims of


sovereignty beyond State territory, whether in air space or maritime
areas receive strong, perhaps increasing support. A process was started
from the 1945 Truman proclamation which did not stop at extending
sovereignty over the continental shelf. The 1982 UN Convention on the
Law of the Sea legalized a system whereby 40% of the Oceans’ surface
was brought under national control.47
These developments are, of course, well-known and manifest the view
that what is needed is not to do away with national barriers but to
strengthen them against external, imperialistic pursuits of other States.48
But it would be simply wrong to associate the view which emphasizes
the wide scope of sovereignty with the pure fact approach, solely. As the
experience of the III UN Conference on the Law of the Sea has taught us,
each extension of sovereignty may always be explained as a new allocation
of rights, liberties and competences by the law. By looking at these
arguments or developments it is impossible to decide whether it is the
pure fact or the legal approach which correctly grasps the relations
between the State and international law.
In many, if not most, international disputes what seems to be at issue
is precisely the extent of a State’s sovereignty. The normative sense of
sovereignty seems to lie in what view we take of its extent. In this sense,
the question about the justification of sovereignty may seem simply
superfluous or ‘‘academic’’. Why bother with the latter – seemingly
inconsequential – matter if it is the question of extent which has
practical importance? But it does not seem possible to take a view
about the extent of sovereignty without forming an anterior stand on
the question of its justification. This is so because there is no ‘‘natural’’
extent to sovereignty. Its extent can only be determined within a conceptual
system and the systems provided by the two approaches are not only different
but contradictory.
As long as there exists no disagreement about the legitimacy of State
action, the legal and pure fact approaches may be left in abeyance. But as

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

soon as disputes arise, position needs to be taken on whether a State has


a sphere of liberty which is ‘‘inherent’’ in its statehood or whether it
possesses rights, liberties or competences only inasmuch as allocated by
the law. This is needed in order to know what sort of arguments one
should make to defend one’s position.
A State argues that it has a sovereign right. Another State denies this.
The dispute seems to be about the extent of sovereignty in a concrete
circumstance. But the term ‘‘sovereignty’’ is ambiguous and open to
interpretation. The decision in such dispute seems completely dependent
on what the interpretation will be. And the interpretation, again, hinges
on the crucial question: What should it aim at?
In the pure fact view, law is a means to fulfil the liberty of the State.
This may sometimes require the restriction of liberty. But liberty can be
restricted only through an unambiguous rule of law. If such rule is
lacking, then interpretation must give effect to the original liberty in
its authenticity. A problem-solver can have no authority, no justification
to decide otherwise.
In the legal approach, there is no such anterior liberty. Behind law,
there is only – law. If the law is ambiguous, we cannot solve the problem
otherwise than by constructing from the legal materials available the best
(most useful, most coherent, most ‘‘just’’) solution possible. The point is
not to give effect to some hypothetical, initial ‘‘liberty’’ but to what the
law says, even if this can be determined only ‘‘constructively’’.
But a choice between these two positions cannot be made. The former
will ultimately end up in apologism, affirming the State’s self-definition
of the extent of its sovereignty. The dispute will remain unsettled. The
latter will lead into utopianism, fixing the extent of sovereignty by
reference to a natural, non-State-related morality. Neither solution
seems acceptable. Rather, both seem needed because they limit each
other’s negative consequences. This, again, requires that both can be
used to justify situations in which States have few or no obligations as
well as situations where there exist a wide extent of duties restricting the
State’s present liberty.
Here is the structure of sovereignty discourse: First, arguments will
arrange themselves so as to manifest the opposition between the legal
and the pure fact views. Because a preference cannot be made, however,
arguments have to proceed so as to make this initial opposition disappear.
Second, this requires that any fact-situation can be explained from both
approaches. The presence and absence of obligation are explained as
consequences of an initial liberty as well as a legislative act by an initial

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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).

4.2 The meaning of sovereignty


If the term ‘‘sovereignty’’ had a fixed, determinate content, then whether
an act falls within the State’s legitimate sphere of action could always
be solved by simply applying it to the case. This is the way much
legal discussion proceeds. Though it is notoriously difficult to pin
down the meaning of sovereignty49 literature characteristically starts
out with a definition. ‘‘Sovereignty’’ is usually connected with the ideas
of independence (‘‘external sovereignty’’) and self-determination
(‘‘internal sovereignty’’).50 A classical definition can be found in the

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

statement by Judge Huber in the Island of Palmas Case (1928), con-


nected with a dispute between the Netherlands and the United States
over sovereignty on the Island of Palmas (Miangas) in the Pacific:
Sovereignty in the relations between States signifies independence, independ-
ence in regard to a portion of the globe is the right to exercise therein, to
the exclusion of any other State, the functions of a State.51

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

Both definitions speak of what is usually called external sovereignty, the


legal position of the State vis-à-vis other States. In most international
disputes it is the content of this position which emerges as the central
problem.
But other lawyers have pointed out that such definitions are useless as
it seems impossible to infer individual norms, or solutions to particular
disputes from them.53 How should one, for example, solve a dispute in
which both disputing States refer to their sovereignty?
In the Right of Passage Case (1960), a dispute arose between India and
Portugal with regard to the the latter’s alleged right to move persons and
goods, including military personnel, arms and ammunitions, from the
Portuguese colony of Damaõ on the Indian coast to its enclaves deep
inside Indian territory. In the Portuguese request it was argued that such
right of transit was:
. . . comme une nécessité logique, impliquée dans la notion même du
droit de souveraineté . . . 54

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

Portugal’s judge ad hoc sought further to drive the point home:


Sovereignty over any territory implies the capacity to exercise public
authority in that territory. It implies the right and the obligation to
maintain order there, if necessary manu militari . . . how could that
authority, that right and obligation and those duties be exercised if a
right of access as to the enclaves were not recognized?55

India disputed this and, instead, made a mirror-image argument:


These alleged rights of passage must evidently impinge upon and dero-
gate from India’s sovereign rights over the territory concerned.56

And the Indian judge ad hoc agreed:


To the extent that India is sovereign she must have complete, absolute and
unrestricted right to regulate the passage of goods, men and traffic . . . 57

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

choice of the individual or entity in question will appear as unjustified


coercion.
This explains the apparently puzzling phenomenon that ‘‘sovereignty’’
seems compatible with the situation of a State living in hermetic
isolation from others as well as for one which has surrendered all its
decision-making power to supranational bodies. This is easiest to see by
way of an example which shall also introduce the need to move away
from the question of the fixed content of sovereignty to the assumptions
which control arguments about it.
In the Austro-German Customs Union Case (1933), the PCIJ was
requested an advisory opinion by the Council of the League of Nations
regarding whether a customs union established between Austria and
Germany on 19 March 1931 violated Austria’s obligations under the
Treaty of Saint-Germain (10 September 1919) and the related Geneva
protocol (4 October 1922).58 In these instruments France, Italy,
Czechoslovakia and the United Kingdom had guaranteed Austria’s
independence in exchange for the latter’s undertaking not to alienate
it. In Article 88 of the Treaty of Saint-Germain it was stated:

The independence of Austria is inalienable otherwise than with the


consent of the Council of the League of Nations.59

In the Geneva protocol, Austria undertook:

. . . not to alienate its independence; it will abstain from any negotiation


or from any economic or financial engagement calculated directly or
indirectly to compromise this independence.60

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

calculated to threaten Austria’s economic independence.63 But a strong


minority held that making such unions had been a frequent practice and
never had the question arisen that States involved in them would have
renounced their independence.64
The strangeness of the argumentative positions in this case relates to
their pointing beyond the liberal doctrine of politics. The guarantor
States’ position was equivalent to Rousseau’s point about ‘‘forcing men
to be free’’. It sought to impose a determinate material content of
sovereign freedom on Austria which claimed to overrule Austria’s own
sovereign will. It was based on a theory of objective interests. Austria’s
point captured the insight that sovereign liberty can only be determined
in a subjective way, that a State’s interests cannot be dissociated from
what it ‘‘wants’’ and that it now ‘‘wants’’ the establishment of the union.
But if this is true, then there is no justification to overrule guarantor
States’ ‘‘wants’’ – that is, their will to exclude the threat posed by the
extension of German influence – in favour of Austria’s. The case will
simply have to remain undecided.
The same arguments are available in respect of any integration or, in
fact, any consensual obligation. From one perspective, undertaking
obligations seems a limitation of the State’s ‘‘sole right of decision’’
and in this sense its independence and sovereignty. From another
perspective, the capacity to enter into such binding arrangements
seems one without which a State could hardly be said to be truly
sovereign at all.65 By arguing in this way, however, no solution can be
found. The very problem-setting seems as frustrating as the little boys’

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

dispute about whether God Almighty can create a stone so big He


Himself cannot lift up.
It is impossible to define ‘‘sovereignty’’ in such a manner as to contain
our present perception of the State’s full subjective freedom and that
of its objective submission to restraints to such freedom.66 If we start by
associating sovereignty with an initial, aprioristic freedom of the
State, we shall either have to conclude that no State is free or that the
international order is not really binding. If sovereignty is associated with
the momentary set of rights, liberties and competences given by the
normative order to the State, then we shall have to reject the idea that the
State would be free to do anything which it is not specifically empowered
to do.
These conclusions seem both mutually exclusive and equally incap-
able of being accepted as such. Clearly, we need to think that the State
is both free in areas where it has no engagements as well as restrained
by the engagements it has. Whatever we think sovereign statehood to
mean, it should be compatible with both. But States have undertaken
different obligations and have widely differing spheres of freedom and
restraint in this respect.
Therefore, by a simple reference to ‘‘sovereignty’’ or statehood no
determinate consequences arise so as to indicate whether the State in
some particular relation is free or not.

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

on the exception concerning matters of national defence in its accep-


tance of the Court’s jurisidiction also relied on a sovereignty-based
claim.70 The judges were quick to notice the mirror-image nature of
the claims:
Of course, Australia can invoke its sovereignty over its territory and its
right to prevent pollution caused by another State. But when the French
Government also claims to exercise its right of territorial sovereignty, by
proceeding to carry out tests in its territory, is it possible legally to deprive
it of that right, on account of the mere expression of the will of
Australia?71

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

in which both parties base their arguments on sovereignty would seem


capable of solution only if they are so treated. ‘‘Sovereignty’’ would then
seem only a more or less convenient shorthand for a total of such rights,
liberties and competences each of which needs support from a distinct
legislative source.
This conclusion seems supported by much that has been said about
the determination of a State’s ‘‘domestic jurisdiction’’ – a concept which
translates the liberal distinction between the ‘‘public’’ and the ‘‘private’’
realms into international legal language. Let me now illustrate the
difficulties in constructing a determinate concept to sovereignty by refer-
ence to that doctrine which, as Brierly argued in 1925, had become a new
catchword to replace ‘‘the somewhat battered ideas of sovereignty, State
equality, and the like’’.76
Reference to domestic jurisdiction was included in Article 15(8) of
the League Covenant and Article 2(7) of the United Nations Charter. In
both instruments, it was included to safeguard member States’ freedom
against excessive adoption of international jurisdiction by the two
organizations.77 But the formulation of that concept differed and the
difference reflects what seem like two distinct ways of constructing the
State’s ‘‘private realm’’.
What was to be included in domestic jurisdiction in the League
system was to be determined by the Council or the Assembly and the
determination was to be made ‘‘by international law’’. Domestic jurisdic-
tion was constructed from a descending perspective external to the State;
it denoted hardly more than the sphere of (negative) liberty left to the
State by the law – as interpreted by League organs – at any moment.78 As

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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domestic jurisdiction has been occasionally made – with decreasing


frequency, it seems – it has been remarkably unsuccessful.83 The organization
has extended its jurisdiction by referring to its ‘‘purposes and principles’’
especially under chapters IX and XI of the Charter to nearly all areas
of life, including questions of internal régimes,84 economic and
social conditions,85 human rights,86 self-determination,87 apartheid
and protection of minorities, for example. This has led commentators
to conclude that domestic jurisdiction is ‘‘undergoing a continuous
process of reduction’’.88 In particular, it has seemed to possess no
‘‘inherent’’ or natural content which could be opposed to international
action. Its content seems to have been determinable only by taking a
legal approach; by looking at present regulation and what areas it leaves
open for States to regulate by municipal law.
The plea of domestic jurisdiction has had likewise little success in
international adjudication. In particular, courts have held that making it
is no bar to dealing with the merits of the claims advanced.89 This

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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4.3 RISE AND FALL OF THE LEGAL APPROACH 251

suggests immediately that whether or not a matter concerns a State’s


domestic jurisdiction seems capable of determination only once it is
known what obligations the State has. In the Polish Nationals in Danzig
Case (1932), for example, the PCIJ pointed out that while the
Constitution of Danzig was an internal matter, its application might
still involve Danzig’s international obligations and assumed jurisdiction
concerning minority protection.90 A similar point was made by the ICJ
in the Peace Treaties Advisory Opinion (1950) where it noted that
although the matter related to the constitutional régimes of Bulgaria,
Hungary and Romania, the fact that it involved the interpretation of
treaties to which these States were parties detached it from the reserved
domain.91 As the Court argued in the Right of Passage Case, against
India’s preliminary objection, the fact that such passage related to
India’s sovereignty did not preclude the Court from dealing with the
issue as by formulating its claim as a right against India’s duty, Portugal
had placed itself ‘‘on the plane of international law’’.92
Now, it would seem that once sovereignty is understood as ‘‘domestic
jurisdiction’’ it would lack any inherent or natural content. Its content
would be, as the PCIJ pointed out in the Nationality Decrees opinion (1923),
‘‘an essentially relative question’’ and dependent on ‘‘the development
of international relations’’, i.e. of the prevailing corpus of law at each
moment.93 But this creates unacceptable consequences.
In the first place, it destroys the normative meaning of words such as
‘‘sovereignty’’, ‘‘self-determination’’, ‘‘non-intervention’’, ‘‘independence’’
or ‘‘exclusive jurisdiction’’. None of these could be successfully invoked
against a State which succeeds – like Portugal succeeded in the Right of
Passage Case – in formulating its claim so as to bear a relation to the

sans significance’’ – it cannot be determined independently of a survey of the State’s


rights and duties, p. 415.
90
PCIJ: Polish Nationals in Danzig Case, Ser. A/B 44 p. 24. To the same effect, see German
Interests in Polish Upper Silesia Case, Ser. A 7 p. 19 (the application of municipal law
might conflict with international obligations); Greek and Turkish Populations Case,
Ser. B 10 p. 17 (the matter related to construction of treaty).
91
ICJ: Peace Treaties Case, Reports 1950 pp. 70–71. For commentary, see e.g. Briggs 93
RCADI 1958/I pp. 321–324.
92
ICJ: Right of Passage Case, Reports 1957 p. 33.
93
Most lawyers argue in this way. See e.g. Politis 6 RCADI 1925/I pp. 47–48 et seq; Scelle 46
RCADI 1933/IV pp. 414–420; Strupp 47 RCADI 1934/I pp. 502–504; Sørensen 101
RCADI 1960/III pp. 165–166; Cavaré (Droit international I) pp. 200–201; Waldock
XXXI BYIL 1954 p. 111; Brownlie (Principles) pp. 292–293; Jacqué (Elements)
pp. 57–60; Virally 183 RCADI 1983/V pp. 81–82. See also IIL Resolution of 1954,
IIL Yearbook 1954 pp. 150, 299. See also supra notes 82–83.

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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

The legal approach, however, is untenable also as it will either have to


accept that the individual rules which lay down rights, liberties and
competences have ‘‘natural’’ meanings which are applicable without
interpretation or it will have to use a theory of interpretation which
contradicts its own premises.
According to the legal approach, only individual rules have normative
force. But fixing the sense of rule-formulations requires interpretation
which connects them to the system in which they appear. Now the
problem is that it is precisely the nature of the system which is disputed in
the opposition of the legal and the pure fact approaches to sovereignty. We
can construct the sense of individual rules only if we already know whether
the freedom of the State is prior to the normative order or vice-versa.
There are two systems of interpreting ambiguous rules. In one system,
each rule is regarded as an obligation which limits State freedom and
needs therefore to be restrictively construed. In another system, rules may
establish not only duties but also rights, liberties and competences and the
sense of rules is determined by linking them to the ‘‘systemic’’ properties of
the legal order. Quite apart from other difficulties, neither system is open
for the legal approach to derive its principles of interpretation from.
The legal approach cannot adopt the principle of restrictive inter-
pretation because that principle is based on the assumption of an initial,
unrestricted liberty of the State. This is simply the pure fact approach
restated. As the point of the legal approach is to reject the pure fact view,
it cannot, without self-contradiction, give effect to such initial liberty.
But the legal approach cannot accept the idea of systemic interpretation,
either, for this will lead into the assumption that values are objective or
back into the pure fact approach.
Systemic interpretation construes rules by linking them to the values
(purposes) of the legal order as a whole. What are those values? A first
possibility would be to associate them with the States’ preferred values.
But associating systemic value with the States’ values is premised on the
acceptance of the pure fact approach. It assumes that States have the initial
liberty to introduce their subjective values as law and once law is
ambiguous, that liberty must be given effect to – precisely the assump-
tion against which the legal approach constituted itself.
The second possibility is to assume that systemic values are independent
of States’ values. They could exist, and be discoverable, through their
‘‘coherence’’ with the rules of the legal order as a whole. But one man’s
coherence is not necessarily that of another’s. To overrule one interpretation
of systemic value with another is justifiable only if there is an external

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(objective) standard whereby these can be measured. But then it must be


assumed that these values – the ‘‘principles of coherence’’ – are valid
regardless of whether anybody has accepted them. In other words, they
must be assumed to exist as a natural morality.97 This looks like a utopian
position. Moreover, it fails to explain why the initial rules from which
inferences about coherence started should be regarded as valid simply
because they have been enacted in a formal-legal procedure. For the
justification of such a procedure is a pure fact justification: legislation is
a valid way of creating rules only if there are no objective values.
The legal approach cannot be coherently held. Its interpretative principles
cannot be justified without either assuming the correctness of the pure fact view
(and thus accepting self-contradiction) or some form of moral objectivism
which cannot be justified within the legal approach itself. The approach which
would do away with an independent concept of sovereignty fails to explain
why the rules which it assumes to exist are valid in the first place. It cannot
construct a meaningful ‘‘system’’ out of the totality of individual rules it
perceives at all without either assuming the correctness of its opposite: the
view that rules exist to protect the State’s initial freedom, or by taking an
objectivist view on values.
It may have been these reasons for which the PCIJ formulated its
approach in the Nationality Decrees opinion in such careful terms. The
question was whether certain French nationality decrees which had been
promulgated in the French Protectorates of Morocco and Tunis were
applicable to British citizens residing therein.98 France argued that this
was a matter of domestic jurisdiction. United Kingdom held that the
matter related to France’s international (treaty and other) obligations.99
Initially, the French relied on a pure fact, the British on a legal
approach.100 The Court was careful not to take a definite view either
way. It admitted that ‘‘questions of nationality are . . . in principle

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

within the reserved domain’’.101 It thus recognized the existence and


normative significance of such a domain. However, it could be
‘‘restricted by the obligations which (France, MK) may have undertaken
towards other States’’.102 But whether this was so was a matter of
substance. Hence, the ‘‘relativist test’’ was a prima facie test, a preliminary
view as to whether the matter might plausibly involve some of France’s
international obligations.103 The Court never touched the substance as
the Parties agreed outside of Court. But if it had, then it might have
fallen on the applicant to prove the existence of such obligation with the
assumption that unless such proof could be adduced, then France’s
initial freedom might have been given normative effect – a decision
which would have violated British sovereignty.

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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accordance with the above mentioned decision. It expresses the assump-


tion that State sovereignty is the starting-point of international law in
the same way as individual liberty is the basis of the municipal legal
order.107 Both can be restricted only by a law which is enacted in the
correct legal procedure.
This is nothing else than a restatement of the pure fact approach.
States are vested with a natural liberty which must be given effect to
when individual rules are lacking or ambiguous. The essence of the law is
not to allocate competences but to establish duties as exceptions to the
initial liberty.108
Much international jurisprudence encapsulates this assumption. It is
visible, for instance, in the Anglo-Norwegian Fisheries Case (1951). The
dispositif of the judgement is dressed in revealing language: the
Norwegian method of drawing straight baselines was ‘‘not contrary to
international law’’.109 In other words, the Court was not concerned with
whether or not there existed a positive rule entitling Norway to use this
method. Such competence was assumed to exist ipso facto by the fact that
no prohibiting rules existed. The same assumption was present also in
the Court’s discussion, in the North Sea Continental Shelf Cases (1969),
of whether the equidistance rule was binding on the Federal Republic of
Germany. The Court did not pose the issue so as to enquire whether

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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violates its liberty. To hold otherwise would be to assume the presence of


a material criterion which would overrule liberty – a criterion which the
pure fact approach has excluded. Hence, any claimed right, liberty or
competence is bound to encroach upon another State’s rights, liberties
or competences.116 The pure fact view is powerless to do more than
acknowledge this fact. Inasmuch as dispute-solution involves under-
taking a delimitation of or establishing a ‘‘balance’’ between liberties, it
cannot be conducted under the pure fact view at all.
The difficulty with the pure fact view is that it will do away with the
law’s binding force altogether. For if norms have no natural meaning but
require interpretation and if the interpretative rule calls simply for
respect to liberty, then hard cases can only be decided by letting each
State do what it wishes.
If dispute solution entails the establishment of a balance between
freedoms, then we must move beyond the pure fact approach. For in
order to prefer liberties, or self-understandings about liberties, vis-à-vis
each other or to establish a balance between them, a code of material
value is needed which is independent from the conflicting liberties
themselves and which must be superior to the liberties in providing
a way to evaluate them. Thus we come back to the legal approach,
once again.

4.5 Constructivism: recourse to equity


It is common for lawyers to attempt to escape from the unacceptable
consequences of the Lotus principle by appealing to evaluative, construct-
ivist considerations or to the ‘‘spirit of the system’’.117 If two liberties, for
example, two jurisdictions, seem to conflict, then:

. . . le conflit . . . ne saurait être décidé par une règle absolue qui


accorderait, d’une manière générate la préférence, soit à l’une, soit à
l’autre des deux juridictions concurrentes.118

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:

The delimitation of sea areas has always an international aspect; it cannot


be dependent merely on the will of the coastal State . . . the validity of the
delimitation with regard to other States depends on international, not
municipal law.121

The Court proceeded to construct the applicable law by recourse


to what today would be called ‘‘equitable principles’’, including for
example, ‘‘certain economic interests, peculiar to a region, the reality
and importance of which are clearly evidenced by long usage’’.122 The
Court avoided a lacuna, not by resorting to the Lotus principle
but by balancing. The extent of Norway’s sovereignty was made depen-
dent on considerations about the economic justice of alternative
solutions.
Delimitation cases are clearly exemplary cases in which a State’s sphere
of liberty must be determined. Legal practice here overwhelmingly follows

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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the constructivist position.123 The problem is whether constructivism


can be reconciled with doctrine’s self-constitutive assumption about the
objectivity of law.
In the North Sea Continental Shelf Cases (1969), the ICJ first observed
that the parties were neither under an obligation to apply the 1958
Convention nor a customary equidistance rule. This did not mean that
the situation was one ‘‘for the unfettered appreciation of the Parties’’.124 It
noted that there was an obligation to negotiate in good faith and that the
ideas of delimitation by agreement and in accordance with equitable
principles ‘‘have underlain all subsequent history’’ of continental shelf
law since the 1945 Truman Proclamation.125 It pointed out that there was:
no legal limit to the considerations which States may take account of for
the purpose of making sure that they apply equitable procedures, and
more often than not it is the balancing-up of all such considerations that
will produce the result . . . 126

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 the light of all relevant geographical and other circumstances.131

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:

. . . a more appropriate and a more equitable balance between the


respective claims and interests of the Parties.134

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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In the Tunisia–Libya Case, the Court expressly rejected the idea of


antecedent rights and made everything subservient to equity:
The result of the application of equitable principles must be equitable . . .
The equitableness of a principle must be assessed in the light of its
usefulness for the purpose of arriving at an equitable result.135

The same approach is visible in other recent delimitations. In the Gulf of


Maine Case (1984), the Chamber of the Court observed that there were
no conventional or customary rules regulating the delimitation of a
single maritime boundary between Canada and the United States. But
this did not mean that no delimitation was possible. The Chamber
merely noted that it was not bound by any ‘‘special law’’ applicable
between the Parties and went on to construct an equitable, contextually
evaluated balance from the different factors involved.136 In the
Libya–Malta Continental Shelf Case (1985) the Court rejected the
Libyan emphasis on the close relations between the concept of
the shelf and that of ‘‘natural prolongation’’. Likewise, it rejected
Malta’s argument for equidistance.137 It observed that it was ‘‘the goal –
the equitable result – and not the means used to achieve it’’ which was
decisive.138 Everything turned on the act of balancing.
Constructivism extends beyond maritime delimitation to all disputes
involving sovereignty. Take, for example, disputes about territory. In the
Island of Palmas Case (1928) the Arbitrator was faced with conflicting
claims of the Netherlands and the United States on the small Pacific
Island of Palmas (Miangas). The final decision in the case was made by
applying the rule about continuous and peaceful display of authority.139
But had this rule not been applicable, what would have been the
decision? Judge Huber felt it necesary to point out that in such case:
. . . the decision of the Arbitrator would have to be founded on the
relative strength of the titles invoked by each Party.140

The power to establish ‘‘relative strengths’’ was inherent in the judge’s


function. International law, noted Judge Huber, demands an evaluation
of the worths of conflicting interests. Indeed, the decision to privilege
effective possession came about precisely through such evaluation: it was

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

the correct rule as it best enhanced the protection of the population of


the island and the interests of other States.141 Later on, the method of
‘‘relative strengths’’ has been used in many other territorial disputes.142
Recourse to balancing has been used to avoid non liquet situations
whether or not there has been an express authorization to rule ex aequo
et bono.143 In the Guatemala-Honduras Boundary Case (1933), for
instance, the power to modify the uti possidetis rule was taken
by the arbitrators to authorize them to determine the boundary ‘‘as
justice may require’’.144 In the Rann of Kutch Case (1966) the Tribunal
expressly noted that it did not have the power to decide ex aequo
et bono.145 Nevertheless, Judge Lagergren felt free to strike a balance
between Indian and Pakistani interests by refusing to recognize
those parts of the Rann which penetrated deep into Pakistani
territory as Indian together with the rest (about 90%) of the area. He
pointed out:
. . . it would be inequitable to recognize those inlets as foreign territory. It
would be conducive to friction and conflict. The paramount consideration
of preserving peace and stability in this region compels the recognition
that this territory which is wholly surrounded by Pakistani territory also
to be recognized as such.146

In the recent Burkina Faso-Mali Frontier Case (1986) the Chamber of


the ICJ bluntly observed that the kind of equity infra legem which had
been used in maritime delimitations was applicable in terrestial disputes
as well.147
Constructivism is the sole available means to deal with any kinds of
conflicts which seem to involve a conflict of liberties. This is easiest to
illustrate by reference to the law of natural resources.
Transboundary pollution, for example, involves the juxtaposition of
the freedoms of the source-State and the target-State: on the one hand,
there is the former’s sovereign right to exploit its natural resources in

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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accordance with its own environmental policies; on the other hand,


there is the victim’s sole right to decide what acts shall take place in its
territories.148 The former’s liberty to pursue economically beneficial
uses of its territory is contrasted with the latter’s liberty to enjoy a
pure environment. The conflict is insoluble by simply preferring
‘‘liberty’’. Balancing seems inevitable in order to reach a decision.149
The law regarding the uses of international watercourses is based on a
principle of ‘‘equitable utilization’’, enshrined in the International Law
Association’s Helsinki Rules of 1966, a resolution by the Institute of
International Law of 1979 and in the ILC project on non-navigational
uses of international watercourses.150 The law concerning fishery

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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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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Even the seemingly clear-cut norm against external intervention turns


out to require balancing. Waldock observes, in a classic formulation,
that intervention might be lawful in case of immediate threat of injury,
failure by the territorial sovereign to protect the interests of other States
and the intervention is limited strictly to achieving such protection.154
The formulation manifests an effort to achieve a balance between more
and less important State interests. If there is no natural meaning to
sovereignty, then its counterpart – intervention – is capable of determi-
nation only through such a contextual test. The same is true of the
Webster formulation of the extent of the right of self-defence which
places an evaluation of proportionality and urgency at the heart of the
law.155 The obvious problem is that a system which regards evaluation
‘‘subjective’’ seems incapable of making justifiable criticisms of the
views States themselves have taken on the admissibility of intervention
or self-defence in some actual circumstance.156
The applicability of the Lotus principle seems now quite thin indeed.
Applying it would seem manifestly unjust as it takes account only of the

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

liberty of one of the States concerned. As McNair points out, discussing


the Lotus principle in the interpretation of contractual provisions:
. . . it reduces the reciprocal benefit . . . due to the other Party, also a
sovereign State, which seems to me to be absurd.157

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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determines the extent of a State’s legal rights, liberties and competences –


it is the latter which determine the extent of its sovereignty. But if this is
so and if the law constantly refers us to look for a contextual equity
(either by an express rule or an interpretative principle), then we must
assume that equity overrides and delimits State liberty, that there exists a
general principle which obliges States to take reasonable regard of
others, that:
Any conflict between the opposing rights of two States is to be settled on
the basis of reasonable adjustment or compromise.160

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

If State freedoms can be delimited by evaluative balancing, then this


initial scepticism about the objectivity of values was either mistaken or
we have simply renounced the identity of the legal process in favour of
making political compromises.
The constructivist approach cannot be consistently held as it fails to
explain how the established balance – the judge’s conception of equity –
can be opposed to a State not accepting it. It is ultimately just another
version of the utopian position, assuming the objectivity of a natural
morality. If inter-sovereign conflict is dealt with by rules which refer
further to reasonableness, equity, proportionality and the like, then, as
Philip Allott writes,
. . . the specifically legal character of the law would have ceased to exist.
All would have become politics.162

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

The same consequence follows from suggestions to delimit conflicting


sovereignties by reference to a principle of good faith or abuse of
rights. Either such concepts refer to the subjective, mental states of the
acting organs – in which case they cannot be normatively controlling
because we cannot assume to know these states better than those organs
themselves – or they refer to a non-subjective thery of justice – a theory
which conflicts with the principle of the subjectivity of value.163 To this
extent statements such as ‘‘responsibility is the necessary corollary of
right’’164 appear as healthy admissions that constraining rules cannot be
constructed simply from an initial liberty. But they fail to give direction as
to how this could be done.
If we wish to stay within modern discourse – that is, if we continue to
deny the existence of natural justice – the crucial question we shall face
will be this: What basis is there to impose a balance, some conception of
equity, ‘‘reasonableness’’ or good faith, on a State which has not accepted
it? To argue that it is binding because other States have accepted it fails to
explain why a State should be bound by other States’ subjective values.
This is manifestly contrary to its sovereign equality.165 From the per-
spective of the State against which the balance is invoked this seems an
attempt to impose others’ political views on it.166 As we have seen,
modern doctrine attempts to avoid this by appealing to an impersonal

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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systemic value. But this is merely another version of the (utopian)


position which accepts that some norms are valid irrespective of any-
body’s acceptance. Not surprisingly, many international lawyers have
objected against the growing practice by international tribunals to use
‘‘equitable principles’’ because those principles seem so subjective and
political.167 Reference to them (or reasonableness, good faith etc.) has
only restated the problem of justice which it was the task of formal rules
to dispose of. It has seemed, as Judge Oda writes, to ‘‘suggest the
principle of non-principle’’.168
To conclude: modern discourse about sovereignty shifts constantly
between a pure fact and a legal approach. When the positions are traced
to their logical conclusion, they will show themselves in conflict with
their constitutive assumptions. At that point, argument will try to
rescue itself by relying on the opposite approach. The pure fact view
will justify itself as a legal one: State sovereignty is given preference
because the law says so. The legal approach will ultimately find that
the systemic value which provides the law’s coherence is the liberty of
the State.
Sovereignty discourse silently changes the meanings it gives to object-
ivity and subjectivity. The legal view claimed to be better than the pure

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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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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has developed ‘‘strategies of evasion’’ which make it seem as if


decisions could be justified without taking a stand on the relative
superiority of the legal and pure fact approaches. These strategies,
however, use projections and interpretations which cannot ultimately
be justified within modern assumptions about legal objectivity.

4.6 Example: statehood and recognition


The structure of argument created by the opposition of the two
approaches to sovereignty may be illustrated by reference to the doct-
rinal disagreement on whether the creation of States is a ‘‘factual’’ or a
‘‘legal’’ occurrence and whether recognition is ‘‘declaratory’’ or ‘‘consti-
tutive’’.169 None of the positions can be consistently held. Although they
at first seem contradictory, they lose this contradictory character during
argument and come to rely on each other in a way which makes
preferring either one impossible. As standard disputes about statehood
and recognition organize themselves by assuming a contrast between
these positions, such disputes become insoluble.
According to the pure fact view, the emergence of the State is an
extralegal, sociological event which is not controlled by the legal order
but is something externally given to it.170 Those who have taken this
view support it regularly by an interpretation of diplomatic history.
Surely, they argue, most States have emerged through political and
military struggles, factual concentrations of power and consolidation
of Government. To say that States such as France, the United Kingdom
or Sweden, for example, were created in some legally controlled process
would seem a curious position. What we have witnessed are sociological
processes which sometimes direct themselves against prevailing legal
structures. That an entity starts to behave and becomes treated like a

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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State is a political process and not something created or controlled by


the law.171
Clearly, such argument supports a declaratory view on the effects of
recognition. A State’s emergence is a factual event. The legal significance
of recognition becomes marginal; its sense is to establish a formal basis
for the relations between the recognized and recognizing States.172 But
admission to statehood and the acquisition of the rights and duties
which follow from it are independent of recognition.
On reflection, however, this position seems untenable because too
subjective. Consider de Lapradelle’s position in the Nationality Decrees
Case (1923):
. . . la question de la formation de l’Etat est-elle la question fondamentale
du droit international. Mais comment la régle-t-il? En laissant à l’Etat le
soin de s’organiser lui-même: à lui de décider comment il se forme, et se
recrute: à lui de créer sa propre substance, puis de la développer; à lui
de promulguer, par la jeu de sa puissance et dans l’étendue de cette
puissance, les lois qui sont celles de sa croissance et, par suite, de sa vie.173

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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entity’s self-definition. Its statehood must manifest itself by reference to an


external – and in this sense non-subjective – set of criteria for statehood.
The factual approach must rely on a legal approach concerning the
existence of a set of criteria which pre-exist the sociological process
and determine the sense and consequences of that process. The criteria
for statehood – territory, people, Government, capacity to enter into rela-
tions with other States174 – need to be regarded as constitutive of statehood.
They form the normative code which regulates the attainment of statehood.
This has made it possible for many legal approach lawyers, such as the
naturalist Bluntschli175 or the positivist Kelsen176 to endorse the declara-
tory view of recognition while still attaching constitutive effects to the
rule which provides for the criteria of statehood. A purely declaratory
view seems to ‘‘confuse’’ facts with law.177 Facts alone are powerless to
create law. For facts to have significance an anterior legal system must be
assumed to exist which invests facts with normative sense.178
But this ‘‘declaratory-constitutive’’ view, too, creates difficulties. In
the first place, it has to explain the status of the rule providing the
criteria for statehood. If this rule precedes any individual State then it
looks like a rule of natural law. A justifiable rule about statehood needs
to have some relation to subjective acceptance by States.179 We might
argue, for instance, that any present criteria have emerged through
a political, legislative act by the existing States while the creation of the
first State(s) remains a matter of fact, only.

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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Secondly, facts do not, as it were, automatically compare themselves


with the rule containing the criteria for statehood. To hold otherwise
would be to accept the naturalistic view that perception is ‘‘pure’’ in the
sense of being unrelated to what I have called conceptual matrices.180
But there is always an amount of theory, or construction, involved in the
perception of facts. Similarly, to compare facts with some criteria about
them is possible only through the comparing person’s conceptual matrix
which, in this sense, has a constitutive effect on whether correspondence
is perceived or not.181
Thirdly, even if facts were objective in the sense discussed, they could
hardly be allowed to impose themselves on an existing State in the way
the declaratory theory assumes. For the emergence of States entails the
creation of new duties on the old States. To hold that these States can
be opposed with duties which they have never consented to would
violate their initial liberty as well as their equality vis-à-vis the new
State whose subjective power would now determine their duties.182
For these reasons, the pure fact view needs to be rejected and with it
the declaratory theory. It is ultimately based on unacceptable assump-
tions about the overriding normative force of the new entity or of the
objectivity of ‘‘facts’’. Doctrine seems compelled to move towards the
legal approach and a (pure) constitutive theory about the effects of
recognition. It needs to assume that a State’s emergence is controlled
by the legal order as represented by the existing States.183
The legal approach – the idea that law is anterior to statehood – may
equally well be supported by reference to diplomatic history.184 For it
does not seem to be the case that simply by attaining some actual

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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degree of effectiveness an entity would have ipso facto been considered


a State.185 Communities which have lacked the actual effectiveness
normally connected with statehood have been regarded as States
(Monaco, Tuvalu, The Holy See etc.) while communities with much
greater effectiveness have been denied it (Rhodesia, Transkei, Taiwan).186
Much practice seems to support the view that statehood is indepen-
dent of any fixed set of factual criteria. Many States have, for example,
been forced to accept important restrictions to their legislative powers,
even against their will, without thereby having lost their character as
sovereign States in the eyes of other States.187 Sometimes the preserva-
tion of sovereign statehood has been linked to the mere absence of
will by a de facto occupying power to annex the territory in question.188
Nor has the exercise of administrative – even ‘‘supreme’’ – powers
by a foreign State or lack of effective authority altogether been
thought to involve loss of sovereign statehood.189 Finally, examples are
not lacking of situations where the attainment of independence has

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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taken the character of a legal transaction or been otherwise controlled by


a community process, for example, United Nations’ decolonization
policy.190 Recent attempts to reinvigorate the time-honoured practice
of non-recognition of illegally created title speaks in favour of a legal,
constitutive view of recognition.191 However, this view, too, turns out to
be unacceptable as too political.
The standard view does not accept a duty to recognize.192 The ‘‘poli-
tical’’ nature or recognition can also be inferred from the inability to

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:

To ignore such objective facts is to allow subjectivity to prevail over


objective reality and thus to introduce a dangerous myth.197

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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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 279

To counter these objections the legal-constitutivist view has sometimes


assumed the existence of a duty to recognize and a corresponding right to
be recognized once factual criteria for statehood have been fulfilled.198
But this view loses the very distinctiveness of the constitutive approach
altogether and, if taken seriously, becomes vulnerable to the criticisms
advanced against the declaratory view.199 For the question now arises how
the ‘‘objective’’ facts of territory, population, Government and capacity to
external relations can automatically impose such a duty on the existing
State. Even if the criteria were uncontroversial (which they are not and
never have been), their application in particular circumstances will
remain a matter of subjective assessment. If a State refuses to recognize
an entity because it thinks that this has not fulfilled the criteria for
statehood, there is no point in insisting that it has a duty to recognize
and that the existence of this duty makes the matter something other than
subjective choice. Of course, the State can deny that the entity fulfilled the
criteria for statehood mala fide. Maybe it secretly held that it did fulfil the
required conditions. But the point is that nobody can know the State’s
motives better than the State itself. Under liberal assumptions, as I shall
argue in more detail later (chapter 5), nobody has the right to claim that
he ‘‘knows better’’. If this were not so, then we could simply posit that
‘‘somebody’’ as the super-legislator.200 We would lose the justification for
basing law on legislative State policies. To ‘‘know better’’ is an argument
about objective interests.

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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The attempt to achieve reconciliation by assuming a duty to recognize


adds nothing to the system. It will remain vulnerable to the objections
presented either against pure declarativism or pure constitutivism.
Neither of the two views seems defensible alone and neither provides
a satisfactory interpretation of State practice. From one perspective,
such practice seems to support declarativism, from another, constitu-
tivism. Statehood seems dependent on both facts and an external cogni-
tion of facts. But neither alternative seems fully acceptable. To lay stress
on ‘‘pure facts’’ seems necessary so as to overrule the subjectivism in
external cognition. To emphasize the importance of external cognition
seems necessary to avoid relying on a naturalistic view about the ‘‘self-
evidence’’ of facts or on the new entity’s self-definition.201 Yet, no third
alternative seems available. The attempt at reconciliation by postulating
a duty to recognize will reveal itself as either pure declarativism or pure
constitutivism in disguise.
Imagine a dispute between entity A and State X about the former’s
statehood. A argues that it is entitled to statehood because it possesses a
piece of territory, has a Government which exercises effective control on
the territory and the population residing there and is capable and willing
to enter into relations with other Governments. X denies that A can be
State because of the undemocratic nature of its internal régime.
Initially, A relies on a pure fact argument. It denies that other States’
recognition is needed. Its statehood exists ipso facto and other States
simply have to accept this. Reference to ‘‘democracy’’ is merely an

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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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 281

attempt to introduce a political right for existing States to decide


freely which entities they will or will not accept. To make statehood
dependent on the will of old States fails to give effect to the right of self-
determination and creates an inegalitarian law in which each entity’s
identity would be relative to other entities’ wills. However, to pursue this
argument A will have to show why it is that precisely its criteria are
relevant and not, for example, the alleged criterion of the democratic
nature of A’s regime. It will, in other words, have to assume the existence
of a rule about the criteria of statehood which is anterior to it and which
cannot be justified by reference to its own consent. A’s argument is now
both a pure fact and a legal one.
In answering these points, X will have to present its own views in a
similar light. It will oppose A’s initial point (that A’s statehood is
dependent only on pure facts) by noting the need for an external
rule about the criteria of statehood. At this stage, the dispute seems
structured by A’s being a pure fact position and X’s a legal position. But
when A’s position reveals itself to be also a legal one, X will have to argue
why it is that its view of the criteria is better than that of A’s. This forces it
to make a reverse shift. It will now occupy A’s initial position. It will
argue that it can be opposed only by criteria which it has accepted. To
hold otherwise would be either to assume that the criteria exist as
natural law or by virtue of other States having preferred it. The former
argument would seem utopian, the latter would violate X’s sovereign
equality. In other words, its initial liberty would be violated by another
solution. X’s argument is now both a legal and a pure fact one.
During this imaginary dispute, A will have changed its position
from a factual to a legal one and X from a legal to a factual one.
Moreover, this is what they were compelled to do by the logic of the
discourse in order to present a coherent case. The pure fact view will
involve a claim to override the other disputant’s inital freedom and
sovereign equality. Such a view seems manifestly untenable. To insist
that my view is better because it is mine or that my interpretation of facts
is better simply because I have put it forward as a sovereign provides no
grounds for decision. A rule external to both sovereigns is needed. But
the determination of the content of that rule and whether some facts fit
the criteria contained therein will immediately re-emerge an identical
dispute. Whose rule, or whose interpretation thereof is to be given
preference?
Both positions involve a combination of the pure fact and legal
approaches. But this involves contradiction. The two cannot be put

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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.

4.7 Example: territorial disputes


The structure of creating and losing the contradiction between the pure
fact and the legal approaches to sovereignty may be illustrated also by
reference to the question whether sovereignty on a piece of territory is
dependent on effective possession or external recognition. As dispute-
solution is unable to prefer either of these alternatives it will have to
proceed by way of adopting interpretations about facts and the disput-
ing States’ positions which – together with the ultimate solution – will
remain undetermined by the legal arguments available.

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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 283

Textbooks commonly list four or five modes of acquisition of territ-


ory: occupation, (adverse)prescription, cession and accretion (and
sometimes conquest).202 However, it is notoriously difficult to keep
these analytical categories separate. Occupation and prescription, for
example, seem overlapping and may have a relation to some cessionary
instrument or natural accretion.203 Moreover, other ‘‘modes’’, such as
contiguity or adjudication may seem relevant as well.204 International
tribunals have usually refrained from applying any of these modes
expressly. Therefore, lawyers have been tempted to look at territorial
acquisition from a wider perspective from which each of the claimed
‘‘modes’’ would be seen as an expression of a more fundamental rule
or principle. Two candidates frequently present themselves: effective
possession and ‘‘consolidation’’.205
It often seems as if each of the classical modes only constituted an
attempt to rationalize, or justify, what presently or in the past existed as
effective possession of a piece of territory. Occupation, accretion and
contiguity have an obvious relation with the physical control which the
State has exercised or can exercise on the territory.206 Prescription and
historic right refer to the temporal aspects of such control. To an extent,
cession and adjudication seem different as they look beyond continued
202
See e.g. Oppenheim-Lauterpacht (International Law, I) p. 546; Fauchille (Traité) p. 532;
Sørensen (Manual) pp. 321–324; O’Connell (International Law, I) pp. 405–443;
Fenwick (International Law) p. 404; Strupp 47 RCADI 1934/I pp. 533–534; Virally
183 RCADI 1983/V pp. 142–147.
203
See Shaw (Title) p. 17; Brownlie (Principles) pp. 134–135; O’Connell (International
Law, I) pp. 405–407. Johnson XXVII BYIL 1950 distinguishes occupation and pre-
scription by applying the latter term only to maritime territory, pp. 348–353. The
status of conquest, or subjugation, is uncertain. Lauterpacht (International Law, I)
denies its present validity, pp. 380–381 while O’Connell (International Law, I) sees no
reason to exclude it as a basis of title if only accompanied with acquiescence or
recognition, pp. 431–436. Clearly, both arguments have some plausibility. If any
conquest were held capable of conferring title, then the law on acquisition would
seem apologist. If all conquest-related present titles were regarded as illegitimate, then
the gap between law and fact would make the former seem utopian. Reconciliation
may be sought by legitimizing acquisition by conquest by some cessionary act, even if
this might raise problems in respect of the conditions of validity of such instrument
under Article 52 of the Vienna Convention on the Law of Treaties. See also Chemillier-
Gendreau XI RBDI 1975 pp. 44–45.
204
On contiguity as basis for title, see Koskenniemi 82 LM 1984 pp. 446–449 and passim.
205
See Shaw (Title) (effective possession) pp. 17–24; De Visscher (Theory) (consolidation)
p. 200. See also Jacqué (Elements) pp. 220–221.
206
Inasmuch as geological or geographial contiguity has been relevant, its justification has
related to its link with effectiveness of control. See Waldock 36 Transactions of the
Grotius Society 1950 p. 141.

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effectiveness. In this respect, they need to be discussed separately. But


inasmuch as they too imply acts of renouncing or taking possession, they
have a relation with effectiveness as well.
Much discussion has centred upon the question what constitutes
effective possession, or as Max Huber formulated it ‘‘continuous and
peaceful display of territorial sovereignty’’.207 Much of the relevant case-
law turns on an evaluation of whether the acts relied upon have or have
not constituted possession.208 The law does not allocate sovereignty
irrespective of considerations of effectiveness. Symbolic acts or discov-
ery are not usually assumed to create a valid title. The reason for this was
explained by Judge Huber in the following way: Territorial sovereignty
does not only involve rights but also duties in respect of third States and
local populations. Without effective manifestations of sovereignty, such
duties could not be adequately fulfilled. The law would lack required
concreteness.209
However, it is immediately evident that effective possession cannot
constitute an exhaustive rule on what is needed to show title. Not all
factual possession results in sovereignty. It seems reasonably clear that
illegal occupation, however effective, cannot per se create title.210 But law
cannot interminably divorce itself from fact. Therefore, it is assumed
that original illegality may be corrected in a process of consolidation,
that is, the passing of time during which it becomes generally accepted
to be best to let the sleeping dogs lie – quieta non sunt movere.211

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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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 285

Sometimes such considerations may justify territorial title even in the


absence of proof on full effectiveness of possession.212
Consider the case of adverse prescription (historic right). If this is a
valid mode of acquisition, it seems clear that something more than mere
factual occupation and passing of time must be involved. What is
needed is a general consensus or at least a long-standing absence of
protest indicating that title has shifted from the original to the derivative
possessor.213 The very process of decolonization and the continuing
disputes about, for instance, British sovereignty in the Falklands or
Gibraltar, show that even long-continued possession may seem insuf-
ficent for title to emerge or be maintained. The very claim of self-
determination is premised on the assumption that however long, mere
possession cannot suffice to justify sovereignty.214 Whatever historic
rights there may exist, their existence seems less dependent on actual
possession than on general acquiescence or recognition of the excep-
tional treatment which such rights entail.215
In such cases it is less actual effectiveness of possession than general
views about sovereignty which seem determining in whom the title
should be vested.

Cukwurah (Boundary Disputes) p. 123; Bardonnet (Mélanges Reuter) pp. 46–47;


De Visscher (Confins) p. 28; Johnson XXVII BYIL 1950 pp. 333, 335 and passim.
212
See cases supra n. 142. In these cases, the tribunals have been content with very little by
way of showing effectiveness. The matter has turned on an evaluation of the relative
strength of the claims when neither Party has been able to show full effectiveness. See
also Island of Palmas case, II UNRIAA p. 869. For commentary, see O’Connell
(International Law, I) pp. 408–409, 411–413; Lauterpacht (International Law, I)
pp. 379–380; Fitzmaurice XXXII BYIL 1954–5 pp. 34–36, 64–66; Waldock XXV BYIL
1948 p. 336.
213
Or at least silence (absence of protest) which is capable of interpretation as acquies-
cence. As Vattel (Droit des Gens) puts it, ‘‘une très-longue possession non contestée’’,
L.II, ch. XI x 149 (p. 365). See O’Connell (International Law, I) pp. 423–424; Johnson
XXVII BYIL 1950 p. 347.
214
The problematic character of fusing the law of self-determination together with the
traditional law on territorial title is discussed in e.g. Shaw (Title) p. 149 et seq. Carty
(Decay) notes that reliance on private law concepts such as possession, for example,
makes it very difficult to deal with nationalism and self-determination in an adequate
way. The juristic tendency to think about territorial matters in private law terms
reflects, he observes, the 19th century lawyer’s wish to exclude tackling with those
issues directly because they were seen as too political, p. 43 et seq.
215
Thus in the Anglo-Norwegian Fisheries Case, Reports 1951, the ICJ legitimized
Norwegian rights on maritime territory by reference to the ‘‘general toleration’’ of
States, pp. 138, 139. See also comment in Fitzmaurice XXX BYIL 1953 pp. 26–29, 32–33
and generally Blum (Historic Titles) pp. 38 et seq, 59–98.

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Likewise, the ‘‘pure facts’’ of geography or geology have seemed


powerless for creating title unless accompanied by general recognition.
The role of contiguity is an example. In a sense, as Kelsen points out,
everything is contiguous to everything else. To recognize claims based
on physical closeness seems a dangerous way of justifying interminable
extensions of national jurisdiction.216 That contiguity has been accepted
as a valid basis for title in, for example, maritime areas is beyond dispute.
But this may be less an expression of the intrinsically normative char-
acter of physical closeness than of the wish to give effect to the gradual
acceptance, by States at large, of the extensions undertaken by individual
States.217
Both cession and adjudication refer beyond effectiveness of power to
external recognition of a State’s title as valid. In making reference to the
origins of possession they imply a denial of the sufficiency of mere posses-
sion to create title; there must be a permissible causa to possession which is
independent of the act of taking possession itself, be this in an objectively
binding rule or an external process of acquiescence or recognition.
The law of territorial acquisition oscillates between basing title
on effective possession (and its derivatives) and on external recognition
(acquiescence). It should not be difficult to perceive here the opposition
between a pure fact and a legal approach to sovereignty. The problem is
to construct a law which would neither associate title with effective
power nor assume that title is received from what other States think
about it. In other words, the system should be such as to guarantee
the normativity and concreteness of the law without derogating from
sovereign equality.218 But this seems impossible.
The standard argument from effective possession seems apologist in
that it attempts to impose one State’s subjective power and will to
sovereignty on other States in a way which cannot explain the objectivity
of the criteria whereby effectiveness can be ascertained. It violates
other States’ sovereign equality. In the Eastern Greenland Case (1933),
the PCIJ pointed out that sovereignty required ‘‘intention and will to act
as a sovereign and some actual exercise or display of such authority’’.219

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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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 287

The Court’s express distinction between the aspects of animus/corpus


of possession aimed at reconciliation. On the one hand, the State’s
own self-interpretation (animus) had to be effective. On the other
hand, there had to exist an external criterion (corpus) to control such
self-interpretation.
Both elements seem needed. Relying on animus – the will to sover-
eignty – violates the wills of other States. Relying on corpus – acts of
possession – fails to deal with the case where there are conflicting
interpretations about whether some acts count as ‘‘possession’’ or not.
The latter is, of course, the single most important issue in territorial
disputes. One State’s interpretation of the facts stands against that of
another’s. This conflict is not soluble by referring back to the facts ‘‘in
their purity’’ as this would assume that we can know the meaning of
‘‘possession’’ without interpretation. The problem is how to justify
overruling a participant State’s interpretation. The standard solution
is to refer to third States’ views as to the content of the rule and its
application, that is to their recognition or acquiescence.220
But external recognition (acquiescence), too, seems unacceptable
alone. To derive territorial sovereignty from general consent fails to
protect the initial liberty of States, their right of self-determination. It
fails to give effect to the nation’s subjective animus. From the claimant
State’s perspective, such a view merely gives effect to the subjective
politics of other States. Hence it fails, ultimately, to give effect to the
corpus of possession as well.221
In other words, to be acceptable, both arguments need to rely on
each other. To demonstrate effective possession we must refer to a
generally accepted rule and a generally accepted interpretation thereof.
To escape politics, we must assume that the adequacy of general recog-
nition or acquiescence can be checked against actual effectiveness of
possession. We must assume that the justification for territorial title
lies both in facts as well as in an interpretation of those facts by States
at large.
But the positions cannot be linked together in this way without losing
the sense in them. They imply a capacity to overrule each other. The
argument about effective possession assumes that territorial title

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:

. . . a été exercée en fait pendant des longues périodes, d’une manière


entièrement publique et avec la recognition et l’adhésion de tous les
autres Etats.223

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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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 289

This was further elaborated in the Danish reply:


Le statut juridique d’un région déterminée est fixé en droit international
par la conviction générale ou communis opinio des Etats qui forment la
communauté internationale.224
Denmark refrained expressly from relying on isolated acts of occupation
or other evidence of effective possession.225 The rule, it argued, is that of
general recognition, not effective possession. As sovereignty on a
piece of territory concerns the international community as a whole, it
therefore must depend on community recognition. Mere subjective
acts are insufficient for validating title erga omnes.226
Recognition of Danish claims was said to be evidenced by continued
absence of protest towards Danish sovereignty on Greenland. Denmark
invoked, in particular, the Treaty of Kiel of 14 January 1814 in which it
had ceded Norway to Sweden with the express mention that Greenland
did not constitute a part of this cession, several commercial conventions
in which other States had admitted Denmark’s right to exclude
Greenland from the application of those conventions and a series of
diplomatic overtures between 1916 and 1921 during which many
third States (USA, France, Sweden, Japan, UK) had recognized Danish
sovereignty over the whole of Greenland.227
Norway replied with an argument about effective possession. Title
to territory is independent of general recognition and constituted by
constant and peaceful display of authority.228 The Norwegian case
belabours at length the content of effective occupation and concentrates
on showing the Danish claim as ‘‘fictive’’ and based on repudiated
doctrines about discovery or contiguity.229 For Norway, the territory
had been terra nullius until it had established effective occupation on it.
The validity of recognition was expressly denied:
‘‘La Norwège n’est évidemment engagé en rien par des déclarations
données par des Etats étrangers.230

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

Denmark irrespective of Danish consent.236 A similar assumption


worked behind its view that sovereignty could also be based on a
comparison of interests.237 Both involve the assumption that sovereignty
does not emerge from merely subjective acts or will of the territorial
State. There is an external criterion – a customary rule or a hierarchy
of interests – which regulates the acquisition of title. Inasmuch as
such criterion cannot be one of natural law, it must be assumed to
be grounded in general recognition. Finally, in order not to undermine
Danish sovereignty, Norway also relied on Danish recognition of the
Norwegian claim – assuming thus that the limits of its own sovereignty
might be dependent on Danish consent.238
Both disputants relied on effective possession and general recognition.
And both assumed that their sovereignty also depended on what
the other had recognized. More generally, both adopted an ascending
and a descending argument about sovereignty. As the approaches are
contradictory, both sets of arguments were contradictory, too. Such
maximalist advocacy may be commonplace in any litigation. But the
point is that contradiction seems inevitable as each position is defensible
only by confirming its opposite.
Two reasons make it impossible for the Court, too, to proceed by way
of giving preference either to effective possession or general recognition:
first, neither position is defensible alone; second, both disputants have
occupied both positions. Instead, the case turns on a series of interpre-
tations. Can third States’ conduct be interpreted as a recognition of
either disputant’s position? Can either State’s acts be so interpreted as to
amount to effective possession with both the corpus and animus factors
included? The question of possible conflict is not raised. Nor is the
question of possible preference should both States have had effective
possession.
In the first part of the judgement, the Court bases Denmark’s sover-
eignty on effective possession as well as general recognition.
The King of Denmark had, at least since 1721, manifested his sover-
eignty over parts of Greenland with the intention that his sovereignty

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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292 4 SOVEREIGNTY

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

Danish Minister in which he had stated that Norway ‘‘would make no


difficulties’’ in respect of Danish claims on Greenland.
This argument may be approached from different points of view. As
Judge Anzilotti conceived it, the Norwegian recognition constituted an
agreement between the two States.243 It can also be discussed as a
unilateral act, by laying weight on the declaration of the Norwegian
Foreign Minister.244 For our purposes it is enough to point out that this
argument served to deny Norwegian animus occupandi (and effective
possession) as well as to maintain Norwegian sovereign equality. By this
argument, the conflict between two equally effective possessions could
be avoided without going into an evaluation of the acts themselves.
The solution appears derived from the sovereign will of both disputants.
No violation of sovereign equality is involved.
To sum up: the Court avoided taking any stand in the apparent
conflict between the two rules invoked. It thus followed the same
strategy as the parties themselves. And it laid equal weight to their
sovereign wills. Every argument was interpreted so as to point in the
same direction: the conduct of third States implied recognition of
Danish sovereignty; Danish conduct constituted effective possession;
Norway had recognized Danish sovereignty; as it had recognized Danish
sovereignty its own acts could not amount to effective possession.
The decision was overdetermined: the same conclusion was drawn
from conflicting premises. The embarrassing dilemmas involved in an
effort to make a preference were avoided by presuming that there was
no conflict. Similarly, formal equality and sovereign authority were
preserved by making no preference between the parties’ positions. The
message of the Eastern Greenland case was that there was no dispute, no
disagreement between Denmark and Norway at all: both parties – like all
other States – had agreed to Danish sovereignty. Only Norway
attempted to deny this.245 But as it itself had recognized Denmark’s
sovereignty, the solution could give effect to Norway’s sovereignty as
well. It is not difficult to see why such an argument cannot seem very
convincing to the parties which lived on their claims being conflicting.
A similar structure of argument reveals itself in the Anglo-Norwegian
Fisheries Case (1951). Here the ICJ was asked to decide whether the
Norwegian system of applying straight baselines exceeding 10 miles in
the delimitation of its territorial sea – a method which enclosed large

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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294 4 SOVEREIGNTY

maritime areas within Norway’s internal waters – was in conformity


with international law.246 Both parties – Norway and the United
Kingdom – made points about sovereignty over maritime areas arising
as a pure fact of effective possession and geographical relatedness to
non-controversial land-territories. And both argued about the need to
establish external recognition to claims of sovereignty over these areas.
The United Kingdom argued that the Norwegian decree of 1935 could
only be valid if the system established in it had been generally recognized
through historic right or custom. The Norwegian system had failed to
receive such recognition. It also disputed the consistency – effectiveness –
with which Norway had applied its method. There was no effective
occupation of the sea-areas claimed.247 Norway put forward opposing
arguments on both issues. It argued that it had applied its method
consistently and that the waters had been in effective use by
Norwegian fishermen and that its legitimate interests further supported
the validity of its decree. And it also argued on the basis of a recognized
custom or, at least, historic right.248
Again, the relevant section of the judgement is in two parts: one deals
with the consistency with which Norway had applied its system (effect-
iveness), the other with the general recognition of that system by States
in general.249 In order not to violate the sovereign consent of the United

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

Kingdom, the Court further interprets its inactivity as acquiescence. As a


result, the dispute becomes non-existent: each rule as well as each State’s
will renders the same conclusion.
First, the Court bases Norwegian sovereignty on the claimed seas on
possessio longi temporis.250 The Court finds Norway applying its system
consistently since 1869.251 The Court’s discussion of geography and econ-
omics contribute to strengthen the effectiveness of Norway’s possession.
The ‘‘dependence of the territorial sea on the land domain’’, the
‘‘close relationship existing between certain sea areas and land format-
ions’’ and the ‘‘economic interests peculiar to a region, the reality and
importance of which are clearly established by long use’’252 each support
Norwegian possession. They are the pure facts on which Norway’s
sovereignty may be based.
Having established the presence of effective possession, the Court
observed that:
From the standpoint of international law, it is now necessary to consider
whether the application of the Norwegian system encountered any oppo-
sition from foreign States.253

It concluded that the ‘‘general toleration of foreign States’’ of the Norwegian


system was ‘‘an unchallenged fact’’.254 Absence of protest bore ‘‘witness to
the fact that they did not consider it to be contrary to international law’’.255
In other words, Norway’s sovereignty arose from an ascending as well
as a descending point; from the subjective behaviour, will and interests
of Norway itself as well as from the general recognition of the inter-
national community. No preference between these two is established256
as they are interpreted so as to point in the same direction. Norwegian
acts were interpreted as effective occupation, general silence as absence
of protest (despite the well-argued point by the UK that very few States
could have known of the Norwegian system as its details had been
available in foreign languages for only a very brief period).

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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296 4 SOVEREIGNTY

The remaining task is to protect the sovereign consent of the United


Kingdom. This is achieved by interpreting its conduct as acquiescence.
The Court points out:
The notoriety of facts . . . Great Britain’s position in the North Sea, her own
interest in the question, and her prolonged abstention would in any case
warrant Norway’s enforcement of her system against the United Kingdom.257

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

consent), in particular, seems to be based on the assumption that


the Court can know better than the British themselves to what they
have consented – an assumption which is indistinguishable from full
naturalism and vulnerable to the objections against it.259
My third example is provided by the Western Sahara Advisory opin-
ion (1975). Here the ICJ was requested by the UN General Assembly to
determine, firstly, whether the area of Western Sahara (Sakiet el
Hamra and Rio de Oro) had been, at the time of its colonization by
Spain (1884), a terra nullius and secondly, if not, ‘‘what were the legal ties
between this territory and the Kingdom of Morocco and the
Mauritanian entity’’?260
The issue had come before UN organs as one of decolonization. The
apparently primary issue of the right of self-determination of the
Saharan population had become complicated by the:

. . . pretensions put forward, on the one hand, by Morocco that the


territory, was then (i.e. at the time of Spanish colonization, MK) a part
of the Sherifian State and, on the other, by Mauritania that the territory
then formed part of the . . . Mauritanian entity.261

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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Morocco argued its sovereignty on the basis of effective possession


and general recognition. It pointed out that Spain had failed to establish
effective possession immediately after the colonization and at least
before 1916.264 Until that time, Morocco had continued to enjoy its
immemorial possession of Western Sahara. It referred to acts of jurisdic-
tion by the Sultan to whom the Saharan tribes paid allegiance. According
to Morocco, those acts established both the corpus and animus of its
effective possession.265 Its argument about general recognition related
to numerous bilateral treaties which Morocco had concluded in the 19th
century and in which its authority had been tacitly consented to by
States at large.
The central part of Mauritania’s argument was based on contiguity,
namely its view that Western Sahara had been a part of the Bilad
Shinguitti which, at the time of colonization, had formed what was
called the ‘‘Mauritanian entity’’.266 It was pointed out that the
Moroccan acts of jurisdiction had been of isolated nature and could
not break the geographical, ethnic and cultural ties which bound that
area to the Bilad Shinguitti.267 The aspects of effective possession and
general recognition were not treated separately in this argument.
Spain rejected both sets of arguments and advanced an ascending and
a descending argument to support its view on the independence of
Western Sahara. Such independence was a direct consequence of the
inherent right of self-determination of the Saharan population.268 It
followed also from the recognition of that right by States in general as
well as Morocco and Mauritania in particular.269
The Court began with an examination of the two Moroccan views,
namely the ‘‘internal acts invoked by Morocco’’ and the ‘‘international
acts said by it to show that the Sultan’s sovereignty was directly recogni-
zed’’.270 It dismissed neither argument as a priori invalid and thus
implied that Morocco’s sovereignty could be based on both. Again, the
possibility of conflict between them was left undiscussed. This was
possible because both were interpreted so as to produce the same
consequence.

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

First, the Court held the evidence inconclusive to establish Moroccan


‘‘immemorial possession’’. The Sultan did exercise some jurisdictional
authority but evidence of the effectiveness of this authority was insuffi-
cient. The analogy with the Eastern Greenland case, invoked by
Morocco, was rejected.271 Here the question concerned a territory
actually populated. The Sultan’s acts were interpreted so as not to
establish effective possession.272
Second, the argument from general recognition of Moroccan sover-
eignty focused on a series of bilateral treaties between Morocco and
third States from 1767 until 1911.273 But the Court did not construe
these so as to amount to collective recognition. A distinction was made
between the Sultan’s authority and his sovereignty. While the invoked
treaty formulations (recognizing Western Sahara as ‘‘a part of Morocco’’
or ‘‘comprised’’ in Morocco) did contain a recognition of the former,
they did not imply a recognition of the latter.274
The Mauritanian claims were rejected in a brief discussion in which
the Court found that the Bilad Shinguitti lacked the ‘‘common institut-
ions or organs’’ which would have justified treating it as an area under
unified sovereignty.275 The Mauritanian view is treated as partly one
about direct effective possession (‘‘political authority’’), partly as a point
about cultural, ethnic and religious ties,276 that is, of indirect possession.
None of these were demonstrated with sufficient clarity or intensity.277
The question of external recognition is not discussed as it was absent
from Mauritanian argument (a fact which shows the weakness of the
Mauritanian case).
The Court ended up denying Moroccan as well as Mauritanian
sovereignty. Some legal ties had existed but these did not amount to
ties of sovereignty. The Court did not have the occasion to pronounce
more on the right of self-determination of Western Sahara as this was
not included in the question formulated to it. Had it gone into this
matter more deeply – as some of the judges did – it would in all
probability have argued – as Spain had – about the ‘‘inherent’’ character
of such right (ascending argument) and about the recognition of that
right generally (the descending point).278

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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The Court’s treatment of the Moroccan claims, in particular, is a


further illustration of its acceptance of two contradictory assumptions:
namely that sovereignty may follow ‘‘from the inside’’ of a State’s sub-
jective acts as well as ‘‘from the outside’’, through general recognition. As
neither position can be preferred the Court must move so that they seem
compatible. In this way, considerations of factual power and normative
constraint seem balanced while each State’s sovereign consent goes
unviolated. But this is done at the cost of determinate rule about
territorial acquisition. Territorial title seems capable of being argued
both without any actual acts of possession, by simple reference to
general recognition (which could well be ‘‘tacit’’) as well as without
any general recognition, by reference to the State’s own acts (which
might well have been held illegal by other States). Neither argument
seems preferable because they both need each other in order to avoid
immediate criticism. But once they rely on each other, neither can be
used to overrule the other. They are ultimately the same.

4.8 Conclusion on sovereignty


In modern international law ‘‘sovereignty’’ plays a role analogous to
that played by ‘‘liberty’’ in domestic liberal discourse. It works as a
description and a norm. It characterizes the critical property an entity
must possess in order to qualify as a State. And it involves a set of rights
and duties which are understood to constitute the normative basis of
international relations. But lawyers have difficulty to envisage how the
relations between the descriptive and prescriptive parts of sovereignty
doctrine should be understood.
Modern lawyers start out by emphasizing description in order to
distinguish their system from that of the early lawyers. They adopt the
‘‘pure fact approach’’. Sovereignty is related to de facto independent
power. Any other solution would fail to give effect to the assumption
that liberty is basic – that there is no justification to impose restrictions
on liberty which cannot be derived from liberty itself (for instance, from
free consent). But difficulties emerge when we want to explain which
facts count and what the boundaries of liberty are.
If we rely on the self-definition of the entity, we shall lapse into
apologism and other entities’ sovereignty seems violated. There must
be an anterior rule about the conditions for sovereignty. This creates
the difficulty of explaining the status and content of that rule. Two
possibilities seem open: either it is a rule of natural law or a rule created

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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

by other States. Neither seems acceptable. If the conditions and extent of


liberty were defined by a naturalistic rule, then the distinction between
early and modern doctrines vanishes. If the conditions and extent of
liberty are derived from what others say, then there is no initial liberty at
all. An entity’s sphere of legitimate action would be completely relative
to what is externally decided.
In more general terms, the difficulty relates to holding the facts/law
(‘‘is’’/‘‘ought’’) opposition intact. For one seems capable of determination
only in terms of the other. To see which facts are relevant, we must look
for a legal rule. To establish the content of that rule without assuming
the existence of a natural justice (and without abandoning the modern
project), we must refer to facts.279 The pure fact approach relies on
the legal approach and vice-versa. Because both standpoints alone are
vulnerable to criticism, neither can be maintained and argument is
forced into constant movement between them. But as disputes about
liberty organize themselves by polarizing legal views with pure fact
views, their solution in these terms becomes impossible. In legal
practice, solutions are arrived at only by means of evasion: by making
it seem that no polarity exists in the first place. State behaviour is so
interpreted as to manifest agreement.
This problem may be described in another, more familiar way. The
moderns have admitted that there is nothing automatic about either
facts or norms concerning sovereign statehood. No simple fact-description
has seemed to allow an automatic inference about State rights and
duties. Likewise, the norm ‘‘sovereignty’’ has been capable of accommoda-
tion with the most various rights and duties. To arrive at a determination
of whether an entity is ‘‘sovereign’’ in some particular respect, it has
seemed necessary to interpret the factual or normative materials available.
The solution of normative problems concerning sovereignty has required
choosing between several competing interpretations.
Discourse has typically opposed the self-interpretation of the State
whose statehood or title has been the object of disagreement with a
conflicting interpretation by another State. In addition, third States’
interpretations have been held relevant as well. The difficulties courts
(or other problem-solvers) have experienced in such cases have related
to the justification of overruling any participant interpretation in favour
of another one. Because the problem-solver cannot go beyond the

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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302 4 SOVEREIGNTY

interpretations to see what invoked facts or norms ‘‘really’’ say, any


proposed solution has seemed to involve preferring sovereign interpre-
tations vis-à-vis each other in an unjustifiable manner. Therefore, as we
have seen, the ICJ has tended to assume that there was no material
dispute in the first place; that there had, at some point, been an inter-
pretation on which everyone had agreed.
But this solution looks like an outright distortion of participant
understandings. Disputes arise because resources are scarce. Affirming
one State’s liberty to use resources means denying this liberty from
another State. And States do disagree on how resources should be
allocated between them. But the doctrine of sovereignty seems unable
to cope with this disagreement without either making what seems
like illegitimate preference or doing away with the dispute altogether.
A better way would be to uphold one claim and overrule others. This
seems compelled by the quest for a truly normative law. Whether
modern doctrine in fact contains such a law is a question to which we
shall turn in the next chapter.

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