The Legal Construct

XXX POLISH YEARBOOK OF INTERNATIONAL LAW
2010
PL ISSN 0554-498X
Artur Kozłowski*
THE LEGAL CONSTRUCT OF HISTORIC

TITLE TO TERRITORY IN INTERNATIONAL
LAW – AN OVERVIEW
Abstract
Historic title is just one of many legal instruments which may be raised by par-
ties and used by judges to decide a territorial dispute. If a claim of historic title in given
circumstances may be deemed to have been extinguished as a result of its relative weak-
ness, the elements advanced in support of its construction, for example uti possidetis or
effective occupation, may be used to support other types of legal claims.
Taking into account its construction and its systemic conditional criteria, historic
title gains maximum effectiveness when conditions exist which would support a finding
of its incremental consolidation. This involves a multi-dimensional interpretation in
reliance on particular elements which, taken together, create a complicated factual state
in a particular territorial dispute. On the other hand, consolidation of historic title is
not an argument which can be used by the indigenous native inhabitants of a territory,
since their arguments are not based on claims of sovereignty.
1. CONTEXTUAL CONSIDERATIONS
Under international law, there are several legal mechanisms for recognis-
ing the sovereign rights of a particular State to a defined territory. They are based
on the concept of legal title to such territory. The legal title is created by both
legal acts and factual circumstances.1 It decides whether a particular State may,
* Artur Kozłowski (Dr. iur. habil.) is the Chair of International and European
Law, University of Wrocław.
1
P.-M. Dupuy, Droit international public (6th ed.), Dalloz, Paris: 2000, p. 33 (“Ce titre
peut ici résulter d’un fait, telle l’occupation, ou d’un acte juridique, tel un traité de cession.”).
62 Artur Kozłowski
in accordance with international legal standards, be recognised as a subject with

a position of power over an object, i.e. physical territory. The widest possible range
of competences associated with legal title arises from exclusive sovereignty.
The concept of sovereignty is often assumed to be coincident with and arise
out of the legal title itself. Accordingly, factual restrictions on sovereignty do not
automatically infringe on legal title, for example the occupation of territory by
rebellion would not change the nature of the legal title possessed by the original
sovereign, even though factually it might reduce the size of administered terri-
tory. The concept of legal title provides answers to the question: why does a given
competence exist and what is its extent? It also provides support to the claims of
territorial sovereignty by one entity (State) versus other entities (States) laying
claim to the same territory.2
The methods recognised by international law for acquisition of a territory
are usually divided into two categories: primary and secondary.3 Primary acquisi-
tion occurs in situations where occupation and control is obtained over territory
which never belonged to another sovereign entity or, if it once did, does not any
longer. Secondary acquisition occurs with regard to territory which the origi-
nal sovereign surrenders to another. It should be pointed out that this division
is sometimes considered as relative.4
When discussing the normative foundation of acquisition of territory by
a state in the context of the sources of international law, the particular types of
legal titles have to be connected with the consent expressed by subjects of interna-
tional law. International agreement is capable to cover any type of transfer of sove-
reign rights, so long as it does not violate the basic norms encompassed by iuris
cogentis, irrespective of whether treaty provisions relate to primary or secondary
acquisition. Territorial cession is the most spectacular example of a consensual
transfer of sovereign rights to a particular territory from one entity to another.
However, an agreement can also, at least in theory, determine rules binding upon
specific states on acquisition of territory as a result of geographical changes. Some-
times consensual agreement is the only way to obtain legal title over territory,
as happens, for example, when governments agree to hold plebiscites or submit
to adjudication. In the former instance, the agreement specifies the conditions
2
I. Brownlie, Principles of Public International Law, (6th ed.), Oxford University
Press, Oxford: 2003, p. 121.
3
Dupuy, supra note 1, pp. 33-39; W. Czapliński, A. Wyrozumska, Prawo międzyna-
rodowe publiczne. Zagadnienia systemowe [International public law. Systemic issues] (2nd ed.),
CH Beck, Warszawa: 2004, p. 283.
4
Brownlie, supra note 2, p. 130; see also: A. Aust, Handbook of International Law,
Cambridge University Press, Cambridge: 2005, pp. 35-36.
THE LEGAL CONSTRUCT OF HISTORIC TITLE TO TERRITORY IN INTERNATIONAL... 63
according to which the inhabitants of a particular territory will vote over its
future. In the case of adjudication, the jurisdiction of a court, and thus indirectly
the substantive part of the proceeding, depends on the agreement.5
In deciding upon validity of legal title to territory, treated as essential ele-
ment of a state, one may be also required to refer to the sphere of customary law.
Insofar as a particular issue related to acquisition of territory has not been re-
solved by consensual agreement, then it must be decided by applying international
customary law, at least insofar as we speak about title in its legal sense, that is as
a source of acquiring sovereign rights to a particular territory under international
law. In this sense, the norms of customary international law may provide that the
occurrence of certain physical geographical conditions will be recognised as ter-
ritorial acquisition. Similarly, international customary law, in order for peaceful
occupation to produce legal effect, should characterise in binding manner its con-
stituent elements, unless such elements are set forth in the provisions of a codify-
ing international agreement.
Thus, if the object of consideration here is historic title (also sometimes
referred to as historical title), analysed as a legal construct, then we may pos-
tulate that we are dealing with a principle which must in the end be rooted in
international custom, both in terms of its construction as well as its legal effects.
In order that reliance on such title does not become a camouflage for other reco-
gnised rules for determining a State’s sovereign rights to a particular territory,
it must be considered independently. This does not eliminate, however, the pos-
sibility of raising historical claims in reliance on treaty regulation rather than in
international customary law. One may mention here Article 7(6) of the 1958
5
Judge Max Huber, in his decision concerning the fate of the Las Palmas
(Miangas) islands, emphasized that even if no recognized methods for the exercise of
sovereignty were applicable in that particular case, a compromise agreement would in
and of itself constitute a basis and source of law sufficient to reach an independent deci-
sion in that USA – Netherlands territorial dispute (“The same conclusion would be
reached, if, for argument’s sake, it were admitted that the evidence laid before the Tri-
bunal in conformity with the rules governing the present procedure did not–as it is
submitted by the United States–suffice to establish continuous and peaceful display
of sovereignty over the Island of Palmas (or Miangas). In this case, no Party would have
established its claims to sovereignty over the Island and the decision of the Arbitra-
tor would have to be founded on the relative strength of the titles invoked by each Party.
A solution on this ground would be necessary under the Special Agreement. The terms
adopted by the Parties in order to determine the point to be decided by the Arbitrator
(Article I) presuppose for the present case that the Island of Palmas (or Miangas) can belong
only either to the United States or to the Netherlands, and must form in its entirety a part of
the territory of either one or of the other of these two Powers, Parties to the dispute. Island of
Palmas case” (Netherlands, USA), 1928, RIAA, vol. II, p. 869).
64 Artur Kozłowski
Geneva Convention on the High Sea and Continental Shelf and corresponding
Article 10(6) of the 1982 Convention on the Law of the Sea (hereinafter
UNCLOS), which includes references to the concept of a historic bay.6 Similarly,
the accepted system of straight baselines includes elements connected with,
for example, the necessity of taking into account established practices which
reflect the specific economic interests of States peculiar to the maritime areas
concerned (Article 7(5) of the UNCLOS). In addition, the concept of historic
title appears in connection with the possibility of deviation from median lines
rule in the division of territorial sea whose shape does not permit delimitation
to maximum widths (Article 15 of the UNCLOS).7
It seems that the concept of historic title can be applied equally to efforts to
show sovereign rights to maritime land territories. If one examines the decisions
of international courts in this field no particular objections can be discerned. The
term “historic title” appears in the well-known judgement of the International
Court of Justice (ICJ) in the British-Norwegian dispute concerning the freedom
to fish in the North Sea (1951).8 The case concerned Norway’s attempt to expand
its territorial waters using the straight baseline method, in reliance on historical
usage. The concept of historic title, although also appearing with the associated
terms of “ancient or original title”, was also relied upon by the ICJ in its 1953
verdict in the dispute between France and the United Kingdom concerning rights
to the islands of Minquiers and Ecrehos.9 Reference to this concept can be found
in the arbitration judgement concerning the territorial dispute between India and
6
Article 10(6) specifically provides that “[p]reliminary provisions cannot be ap-
plied to a so-called ‘historic bays’ in cases where the system of straight lines envisioned in
Article 7 are applicable.”
7
See H.W. Jayewardene, The Regime of Islands in International Law, M. Nijhoff, Dor-
drecht-London: 1990, p. 274.
8
Fisheries case, Judgment of December 18th, I95I (United Kingdom v. Norway), ICJ Re-
ports 1951, p. 130 (“By ‘historic waters’ are usually meant waters which are treated as inter-
nal waters but which would not have that character were it not for the existence of an historic
title. The United Kingdom Government refers to the notion of historic titles both in respect
of territorial waters and internal waters, considering such titles, in both cases, as derogations
from general international law. In its opinion Norway can justify the claim that these waters
are territorial or internal on the ground that she has exercised the necessary jurisdiction over
them for a long period without opposition from other States, a kind of possessio longi tempo-
ris, with the result that her jurisdiction over these waters must now be recognized although
it constitutes a derogation from the rules in force”) (cited hereinafter as “Fisheries”).
9
The Minquiers and Ecrehos Case, Judgment of November 17th, 1953 (France
v. United Kingdom), ICJ Reports 1953, p. 53 (“Both Parties contend that they have respec-
tively an ancient or original title to the Ecrehos and the Minquiers, and that their title has
Pakistan (Rann of Kutch),10 and was also relied on in the parties’ arguments before
the arbitration tribunal in the dispute between Eritrea and Yemen over an island
in the Red Sea.11 Most recently, the ICJ analysed the concept of historic title in the
dispute between Malaysia and Singapore concerning sovereign rights to a group of
sea islands and maritime features located in the Singapore Straights (Pedra Bran-
ca/Pulau Batu Puteh, Middle Rocks and South Ledge).12
From the point of view of the legal construction of historical title to a ter-
ritory, it is important to address in the first place its self-existing character. Great
Britain argued before the ICJ that Norway’s method for delimiting territorial
rights to the sea had to be examined in terms of conditional entitlement, that con-
stitute a deviation from general rules. The arguments put forward by Norway (and
related legal conclusions) had to be regarded, in the opinion of the British govern-
ment, as derogation from the rules of general international law. According to UK,
a proper historic title could cure a situation, which would otherwise be incompat-
always been maintained and was never lost. The present case does not therefore present the
characteristics of a dispute concerning the acquisition of sovereignty over terra nullius.”)
(cited hereinafter as “Minquiers and Ecrehos”).
10
The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Paki-
stan, 19 February 1968, RIAA, vol. XVII, p. 436 (“This last point was the foundation for
the thesis of Pakistan that there was a “current of history” in the direction from Sind to
Kutch which could be construed as an element for a historic title in favour of Pakistan”.);
Ibidem, p. 482 (Dissenting Opinion, Bebler) (“Because of this fundamental difference India
relies on instances of display of State authority only as a confirmation of the agreed bound-
ary alignment, while Pakistan relies on them as an independent source of title. In other
words: Pakistan’s claim is a claim to what doctrine calls a ‘historic title.’”) (cited hereinafter
as “Rann of Kutch”).
11
The Eritrea – Yemen Arbitration, Phase I: Territorial Sovereignty and Scope of Dis-
pute, 1998, RIAA, vol. XXII (2006), pp. 211-334 (cited hereinafter as “Eritrea v. Yemen”).
The Tribunal had no doubts that the concept of historic title was applicable today to land,
including islands, as well as the Sea (Ibidem, p. 239, para. 106 as well as p. 243, para. 123).
For more on that decision, see: M. D. Evans, Maritime Delimitation between Eritrea and Yemen,
14 Leiden Journal of International Law 141 (2001).
12
Case concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia v. Singapore), ICJ, Judgment of 28 May 2008, para. 290 (“Since Mid-
dle Rocks should be understood to have had the same legal status as Pedra Branca/Pulau
Batu Puteh as far as the ancient original title held by the Sultan of Johor was concerned, and
since the particular circumstances which have come to effect the passing of title to Pedra
Branca/Pulau Batu Puteh to Singapore do not apply to this maritime feature, original title
to Middle Rocks should remain with Malaysia as the successor to the Sultan of Johor, unless
proven otherwise, which the Court finds Singapore has not done” (cited hereinafter as
“Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge”). In their
claims the parties used the term “historic title”, while the Court, in assessing the claims,
referred to the term “ancient original title”.
66 Artur Kozłowski
ible with binding rules of international law. Thus, legal title was conceptualized as
an exception from the general rule:
The arguments and legal conclusions proposed by Norway are, in the opinion
of the British government, derogations from universally applicable interna-
tional law. In the opinion of the United Kingdom Government, Norway is
entitled, on historic grounds, to claim as internal waters all fjords and sunds
which have the character of a bay. She is also entitled on historic grounds to
claim as Norwegian territorial waters all the waters of the fjords and sunds
which have the character of legal straits (Conclusions, point 9), and, either
as internal or as territorial waters, the areas of water lying between the island
fringe and the mainland (point II and second alternative Conclusion II).
(…) The United Kingdom Government refers to the notion of historic titles
both in respect of territorial waters and internal waters, considering such ti-
tles, in both cases, as derogations from general international law. (…) Norwe-
gian sovereignty over those waters constitutes, in the opinion of the British
government, an exception, an example of historic titles justifying situations
which would otherwise be in conflict with international law.13
Norway characterised its claim of historical title to the disputed territories

in a completely different way: “The Norwegian Government does not rely upon
history to justify exceptional rights, to claim areas of sea which the general law
would deny; it invokes history, together with other factors, to justify the way in
which it applies the general law.”14 Thus, according to Norway, the straight base-
line system of delimitation applied in 1935 did not violate universal law, but rather
was an expression of its adaptation to concrete factual situations.15 The Interna-
tional Law Commission (hereinafter ILC) interpreted the relationship between
a “general rule” and an “exception” in the same way.16
13
ICJ, Fisheries, pp. 130-1.
14
Ibidem, p. 133; see also, M. S. McDougal, W. T. Burke, The Public Order of the Oceans.
A Contemporary International Law of the Sea, New Haven Press, New Haven – Dordrecht:
1990, p. 364.
15
ICJ, Fisheries, p. 133 (“This conception of an historic title is in consonance with
the Norwegian Government’s understanding of the general rules of international law. In its
view, these rules of international law take into account the diversity of facts and, therefore,
concede that the drawing of base-lines must be adapted to the special conditions obtaining
in different regions. In its view, the system of delimitation applied in 1935, a system char-
acterized by the use of straight lines, does not therefore infringe the general law; it is an
adaptation rendered necessary by local conditions.”).
16
Juridical Regime of Historic Waters, Including Historic Bays, Study prepared by the
Secretariat, A/CN.4/143, YILC, 1962, vol. II, pt 54 (“Without passing judgment on these
two opposing opinions, it may be pointed out that there seem to be certain difficulties inher-
ent in the view that title to “historic waters” is an exception to the general rules of interna-
It would appear that the reasoning applied by Norway is more convincing

in characterising the legal valour of historic title. In this context, the historic ti-
tle should be interpreted as an equal element in any determination of the source
of a state’s sovereign rights to a particular territory, and not be treated as a der-
ogation from or exception to some other norm. There should be agreement,
therefore, that a claim of historical right is not a reference to some developing
and accumulating claim, but to a clearly established right,17 which constitutes an
element of international law reality.18 Historic title then is not a deviation, but
a dimension of the rules that are referred to when defining the scope of territorial
rights. It is one of the emanations of a general principle, and hence the determina-
tion of a right arising from historic title is dependent only upon the fulfilment of
the prerequisite conditions.19 Their existence should suffice for a determination of
a state’s right to a disputed territory. As stated by the arbitration tribunal in the
dispute between Eritrea and Yemen, “if there is indeed an established [historic] ti-
tle - the best right to possession – then it is by definition a prior right.”20 Similarly,
the affirmation that a legal value of historic title is comparable to a mutual agree-
ment is fully justified.21 Conceptualizing historic title in terms of implied agree-
ment corresponds well with the catalogue of sources of international law and does
not require introducing any new conceptual category with unidentified content.
Reducing a legal value of historical title to traditional sources of international law
strongly connected with consensual arrangements accurately reflects the essence
of international law, and in addition gives the concept of sources the necessary
legal coherence. In order to allow either side to a dispute to claim historic title,
tional law regarding the delimitation of the maritime domain of the State and that such title
therefore must be based on some form of acquiescence on the part of the other States.”); see
also pts 55-6 (cited hereinafter as “Juridical Regime”).
17
Eritrea v. Yemen, p. 239, para. 105 (“It refers not to a developing claim but to
a clearly established right …”).
18
Ibidem, p. 241, para. 114 (“Thus the Tribunal fully recognizes that the intention
of article 2 is that, among all the relevant international law, particular attention should be
accorded to such elements.”). Article 2 par 2 of the compromise agreement contains the fol-
lowing statement: “[t]he Tribunal shall decide territorial sovereignty in accordance with the
principles, rules and practices of international law applicable to the matter, and on the basis,
in particular, of historic titles”.
19
Like, for example, in the case of historic waters (Juridical Regime, pt 58).
20
Eritrea v. Yemen, p. 239, para. 107.
21
Jayewardene, supra note 7, p. 274 (“It has been interpreted as meaning that equi-
distance did not apply in the case of longi possessio, or historic rights recognized in interna-
tional law, and have been attributed the same legal value as those acquired by an explicit
agreement.”).
68 Artur Kozłowski
particularly when both parties claim it, requires however that a court presid-
ing over a dispute apply concrete legal solutions and clearly indicate governing
norms. A proper judicial determination cannot omit this element, since it carries
with it normative valour.22 Consequently, since a proper verdict must be based
on applicable law, it can hardly be denied that an examination into the nature and
efficacy of historical title is the mandatory duty of a court.23
2. CONSTITUTIVE ELEMENTS OF HISTORIC TITLE
When discussing historic title as a legal construction, one has to indicate

and analyse the prerequisite conditions, which must be met in order to justify reli-
ance on the concept in reaching a legal solution.
The arbitration tribunal in the dispute between Eritrea and Yemen ad-
vanced two methods for determining historical title. The first involves a reference
to very distant time horizon (“ancient title”) and was defined by the tribunal as
“(a) title that has so long been established by common repute that this common
knowledge is itself a sufficient.”24 Malaysia also relied on this line of argument in
its territorial dispute with Singapore.25 The arbitration tribunal in Eritrea vs. Yemen
22
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Mer-
its, Judgment, ICJ Reports 2001, p. 173, para. 90 (Joint dissenting opinion of Judges Bad-
jaoui, Ranjeva and Koroma) (“All of the legal grounds advanced by the Parties, including in
particular the argument based on historical title.”). Judges Bedjaoui, Ranjeva and Koroma
expressed their clear displeasure with the lack of response on the part of the Court to the ex-
pansive and complicated assertion of the parties concerning the legal construction of histor-
ic title (Ibidem, pp. 163-164, para. 52-53) (cited hereinafter as “Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Diss. Op.)”).
23
Ibidem, p. 176, para. 97 (“… It is a purely juridical operation appertaining
to a court’s function and jurisdiction.”); Ibidem, p. 174, para. 93 (“Yet a court is obliged to
meet the challenges with which history confronts it in a particular case. It must take account
of the interplay between historical events and territorial disputes, notwithstanding all the
various difficulties which the juridical approach may face.”).
24
Eritrea v. Yemen, p. 239, para. 106; Ibidem, p. 270, para. 246 (“Yemen relies on
a claim of historic title, asserted to stem from time immemorial.”).
25
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge,
Judgment, para. 48 (“Malaysia asserts that the island in question had always been part of
the territory of the Sultan of Johor since the kingdom came into existence and could not at
any relevant time be considered as terra nullius and hence susceptible of acquisition through
occupation. It claims that ‘rather it is the case that from time immemorial Pedra Branca/Pu-
lau Batu Puteh was under the sovereignty of the Sultanate of Johor’. According to Malaysia,
its situation is similar to that depicted in the award rendered in the Meerauge arbitration,
also proposed a second line of reasoning for determining historical title. It stated:
“[b]ut an historic title has also another and different meaning in international
law as a title that has been created, or consolidated, by a process of prescription,
or acquiescence, or by possession so long continued as to have become accepted by
the law as a title. These titles too are historic in the sense that continuity and the
lapse of a period of time is of the essence.”26
In light of the above interpretation of the concept of historic title, the fol-
lowing question arises: Is historic title, as a separate category, dependent on prior
possession of a territory, or is it sufficient to justify a claim to possession even if no
previous possession has taken place?27
The arbitration tribunal determined that: “Yemen’s claim is based essen-
tially on an ‘ancient’ or ‘historical’ title pursuant to which the Imam’s inherent
and inalienable sovereignty extended over the entirety of what historically has
been known as Bilad el-Yemen, which existed for several centuries and is alleged
by Yemen to have included the southern Red Sea islands.”28 The tribunal, while
not negating the efficacy of historic title, nevertheless had reservations whether
Yemen had met its burden of proof in establishing its claim of historic title to the
disputed territory. It stated that: “[t]here are certain historical problems about
this argument. First, there is the historical fact that medieval Yemen was mainly
a mountain entity with little sway over the coastal areas, which were essentially
dedicated to serving the flow of maritime trade between, on the one hand, In-
dia and the East Indies, and on the other, Egypt and the other Mediterranean
ports.”29 In the dispute between Singapore and Malaysia, Singapore’s representa-
tive expressed similar reservations about Malaysia’s claim, arguing that “[i]t is not
enough for Malaysia to plead geography or immemorial possession to prove origi-
nal title. Malaysia must produce concrete evidence of specific acts of sovereign au-
thority by old Johor on or over Pedra Branca.”30 In the territorial dispute between
Qatar and Bahrain, some of the judges also postulated that a claim of historical
from which it quotes the following: ‘Possession immemorial is that which has lasted for such
a long time that it is impossible to provide evidence of a different situation and of which any-
body recalls having heard talk’.”).
26
27
Ibidem, p. 239, para. 107.
28
29
Ibidem, pp. 247-248, para. 143.
30
Verbatim Record of public sitting, 6 November 2007, CR 2007/20, p. 45, pt 26 (Chan).
70 Artur Kozłowski
title carries with it a requirement that the claimant demonstrate actual control
and government of the disputed territory.31
In the above-mentioned ICJ judgment in the matter of fishing rights in
the North Sea, the British government argued that reliance on historical title to
a definite territory requires that the State asserting historic title demonstrate
the exercise of a requisite amount of jurisdiction over the disputed territory over
a long period of time, without adversarial claims by other governments, in such
a fashion that the absence of adversarial claims would amount to a recognition of
jurisdiction, despite the fact that such jurisdiction would be an exception to existing
international law.32 The Court accepted Great Britain’s reasoning in part, but in
ruling in favour of Norway found that: “[t]he notoriety of the facts, the general
toleration of the international community, 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.”33
It also emphasised the aspect of “constant and sufficiently long practice.” It is also
worth noting that the Court found that in assessing historical arguments, geo-
graphical conditions may constitute a determining factor, concluding that “the
method of straight lines, established in the Norwegian system, was imposed by
the peculiar geography of the Norwegian coast.”34
Similarly, the arbitration tribunal, in the dispute between Eritrea and
Yemen, emphasised that the difficulties Yemen faced in establishing historic title
to the disputed territory arose from the specific geography of the islands, which
did not contain permanent inhabitants and in addition were not located within
the confines of recognised historical waters.35
It would appear that the reasoning used in the actual cases described above
strengthen the conclusions contained in the Study prepared in 1962 at the re-
quest of the International Law Commission relating to the legal status of his-
toric waters. The factors/conditions delineated in the said study for determining
historic title would seem just as actual today as when they were formulated, and
31
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Diss.
Op.), p. 176, para. 98 (“As part of this juridical operation, the court has to weigh up the
manifestations of authority which a State power has imposed in the past on a given terri-
tory. It is in the warp and weft of history that it discerns these ‘effectiveness in action’ and
ascertains the degree of consolidation which they impart to the State’s historical title to
that territory.”).
32
ICJ, Fisheries, p. 130; see fn. 13.
33
Ibidem, p. 139.
34
Ibidem.
35
could be equally applied to both maritime territory and other forms of territory.
The ILC postulates that, in examining a claim for historic title, three factors must
be examined: (1) the exercise of authority over the area by the State claiming the
historic right; (2) the continuity of this exercise of authority; (3) the attitude of
foreign States.36 The exercise of governmental authority must be visible for a con-
siderable time, and it must be directed toward usage of the territory in a sovereign
fashion.37 The terms used to describe required authority differ.38 What is essential,
as the ILC emphasises, is a determination of the extent of the authority exercised,
the relevant acts underlying such assertion of authority, as well as proof of effec-
tiveness of the authority exercised. The character of the authority is in principle
dependent on the nature of the claim. If a State is claiming absolute sovereignty
based on historic title, then its exercise of power must have been absolute over the
requisite prolonged period of time. As the ILC states: “The activities carried on by
the State in the area or, in other words, the authority continuously exercised by
the State in the area must be commensurate with the claim.”39 However, the sove-
reignty exercised need not be absolute: “[t]his does not mean, however, that the
State must have exercised all the rights or duties which are included in the concept
of sovereignty. The main consideration is that in the area and with respect to the
area the State carried on activities which pertain to the sovereign of the area.”40
On the other hand, if the claim of historic title is limited in its scope, then
the burden on the State asserting sovereignty is to show such acts of authority,
which would support its claim to limited sovereignty41 (for example, a right of
transit across the territory of another State).
36
Juridical Regime, pt 80. Mention is also made, as a possible fourth factor of economic
necessity, national security or vital interests. According to the ILC, there are opinions that
these factors should be elevated to the status of basic elements in the formation of historic
title, even in instances where historic element is lacking (Ibidem, pt 81). Cf. Art. 7 para. 3 of
the Convention on the Law of the Sea (“The drawing of straight baselines must not depart
to any appreciable extent from the general direction of the coast, and the sea areas lying
within the lines must be sufficiently closely linked to the land domain to be subject to the re-
gime of internal waters.”); as well as para. 5 (“Where the method of straight baselines
is applicable under paragraph 1, account may be taken, in determining particular base-
lines, of economic interests peculiar to the region concerned, the reality and the importance
of which are clearly evidenced by long usage.”) (emphasis added).
37
Juridical Regime, pt 80.
38
Ibidem, pt 84: “exclusive authority”, “jurisdiction”, “dominion”, “sovereign owner-
ship” and “sovereignty”.
39
Ibidem, pt 87.
40
Ibidem, pt 88.
41
Ibidem, pt 85.
72 Artur Kozłowski
The range and scope of activities undertaken by a State which would consti-
tute evidence of and support a claim of its sovereign authority, is very wide. They
may comprise all kinds of national legal acts designed to uphold sovereign author-
ity (legislative, executive, and judicial.) They must, however, be of a nature that
can be ascribed to a particular State or or its legal organs. The activities of natural
persons or private legal entities are not sufficient to support a claim of sovereignty,
unless they are implemented under conditions of authority, agency, or license.42
This matter was elaborated upon, in the context of a claim of historical title, in the
case of Rann of Kutch.43
The ILC clearly emphasises that activities supporting a claim of sovereignty
by a State over a disputed territory must be public, constitute an open manifes-
tation of a State’s will, and achieve a state of recognition and notoriety which
is normal for acts of a State. Ipso facto secret and confidential actions cannot sup-
port a claim of historical title.44
The issue of reliance upon historical developments arose in the case of Rann
of Kutch. In that case, the Tribunal found that although the activities of a State
that amount to aggression did not constitute independent basis for acquiring
a title, they could trigger a process leading to a development of legal title.45 The
court’s conclusions are rather controversial. By placing the issue in the context of
acquisitive prescription, it situates the development of a title outside the prohi-
bition on the use of force between States. Contemporary recognition of prescrip-
tive possession to a territory arising out of the use of force would be quite difficult
to accept and would require, at a minimum, a long period of exercising
authority with a very high degree of effectiveness in order to sanction the initial
violation of international law. This seems impossible in theory. Even if a State is
attacked, and hence uses force legally according to the principle of self-defence,
it is not permitted as a consequence to occupy territory taken from its enemy via
42
Ibidem, pt 95.
43
Rann of Kutch, p. 416. See also, in a similar spirit, the statements by the ICJ in the dis-
pute over territorial rights to the islands of Pulau Ligitan/Pulau Sipadan (Indonesia v. Malay-
sia), ICJ Reports 2002, p. 683, para. 140; cited hereinafter as ‘Pulau Ligitan/Pulau Sipadan.’
44
45
Rann of Kutch, p. 436 (“This last point was the foundation for the thesis of Pakistan
that there was a ‘current of history’ in the direction from Sind to Kutch which could be con-
strued as an element for a historic title in favour of Pakistan. Such reasoning is not convincing.
Mere invasion, even the most successful, cannot possibly create a title to territory by itself.
Invasions in the distant past could have been, and were in some places, the starting points of
an evolution that terminated in sovereignty over a given territory by the original aggressor
State. But in between there had to be quite a number of other elements. The naked fact that
a neighbour was the more aggressive one in the past has no legal consequence whatsoever.”).
annexation, even if the annexation is classified as some form of sanction against

the original aggressor.
In order for acts of State to be considered as an exercise of sovereign
authority over a territory, which would lead to the creation of an historic title,
the activities must demonstrate a high degree of effectiveness. Only if they are
acknowledged as such an exercise can they be deemed to create the sovereignty of
a State over territory. It should be noted that an assessment of the sovereign nature
of State activities must necessarily take into account the particularities of specific
case; the analysis does not presume the achievement of some permanent universal
standard of sovereignty without regard to the circumstances in which legal title to
territory develops.46
As a consequence, the first prerequisite contained in the ILC for the estab-
lishment of historic title is the effective exercise of sovereign authority over a de-
fined territory by appropriate action on the part of the claiming State.47
The requirement of the usage of the territory by a State raises no controversy,
although the terminology used to express this element of sovereignty differs some-
what.48 In the work of the ILC, it was deemed essential to distinguish between the
same usage by several entities and repeated usage by the same entity. Legal analysis
indicates that only the latter instance can constitute a basis for the creation of his-
toric title. The former may lead to the formation of customary norms.49
In order to reach a finding of historic title based on repetitive or long-term
usage, the activities of a State must take place over a considerable period of time.
ILC indicates that this requirement is an essential element of such a finding, al-
though it does not specify a concrete time length nor a way to determine whether
sufficient time has elapsed, relying instead on the phrase “considerable time”. This
needs to be decided in each concrete determination. Hence, instances of reliance
on the concept “from time immemorial” may be assistance, although not always.50
46
Juridical Regime, pt 99 (“It is essential, however, that to the extent action on the
part of the State and its organs is deemed necessary to maintain authority, such action was
undertaken.”).
47
Ibidem, pt 100.
48
Ibidem, pt 101 (“‘[C]ontinuous usage of long standing’ [usage continu et séculaire]
(Institute of International Law 1894), ‘international usage’ (Institute of International Law
1928), ‘established usage’ (Harvard draft 1930), ‘continued and well-established usage’
(American Institute of International Law 1925), ‘established usage generally recognized by
the nations’ (International Law Association 1926), ‘immemorial usage’ (Japanese Interna-
tional Law Society 1926), ‘continuous and immemorial usage’ (Schücking draft 1926).”).
49
Ibidem, pt 102.
50
Ibidem, pt 104 (“It must remain a matter of judgement when sufficient time has
elapsed for the usage to emerge. (…) It will anyhow be a question of evaluation whether,
considering the circumstances of the particular case, time has given rise to a usage.”).
74 Artur Kozłowski
As Yehuda Blum stresses, the time factor in making a determination of historic

title fulfils a role similar to explicit recognition or even positive consent.51
One has to agree that the exercise of sovereign authority by a State through
the realisation of effective actions is a necessary requirement. The ILC empha-
sises, however, that in addition to the internal aspect of usage of particular terri-
tory (“national usage”), there is also an external aspect (“international usage”).
In this instance, it becomes necessary to assess the role of third States in the for-
mation of historic title. In the ILC’s study, this was preliminary connected to the
concepts of “acquiescence” and recognition.52 However, after thorough analysis,
the ILC rejected such an approach. It should be emphasised that acquiescence as
a form of agreement enters into play particularly in situations where the legal title
to territory has been questioned or contested. Above all, this concerns situations
when the formation of an historic title is based on a separate form of legal title.
In such a case, qualified silence may become a form of sanctioning the effective-
ness of historic title, if of course the concept of historic title is applicable at all
to such disputes. For this reason, the Commission quite accurately observed that
“(i)f the continued exercise of sovereignty during a length of time had to be vali-
dated by acquiescence in the meaning of consent by the foreign States concerned,
the lapse of time, i.e., the historical element, would be immaterial.”53 In an effort
to reconcile these contradictory premises, the conception that reduces of acquies-
cence to “merely inaction or toleration”, which is not the same as agreement, was
proposed. This concept presupposes however that the lack of “inaction or tolera-
tion”, i.e. some form of interference on the part of a third State into the sovereign
powers asserted by a State over a particular territory during the formation of his-
torical title, would present a significant barrier to the recognition of such a title.
As a consequence the ILC posited that the best solution to construction of the
elements of historic title would be to eliminate the term “acquiescence” in favour
of “tolerance”.54
In the above context, a distinction should be made between the positive
aspect of qualified silence, which could indicate a State’s agreement to an exist-
ing state of affairs, and its negative aspect, which would not constitute agreement
but simply an acknowledgement that a State is aware of the issue. In this sense
the construction of historic title could be strengthened though reference to the
principles of good faith and legitimacy. The reaction of a third-party State in this
51
Y. Z. Blum, Historic Titles in International Law, M. Nijhoff, The Hague: 1965, pp. 53-5.
52
53
Ibidem, pt 107.
54
Ibidem, pts 109-10.
instance would not be regarded as a source of its consent but rather as potential
violation of good faith on the part of a state which asserts sovereign rights based on
historic title in part also in reliance on the reaction of third parties.55
According to the ILC, toleration of the effective and continued sovereignty
of a State over a given territory for a considerable length of time constitutes strong
basis for a claim of historic title. In this context, one also has to consider what ac-
tions of a third State would defeat or work against a claim of historic title. May the
isolated positions of a single state defeat a claim of historic title, or must there be
specific actions or patterns of action to defeat historical claims?56
The simplest way to create an obstacle to a claim of historical title would be
for a third state to lodge an official protest. The ILC stresses, however, that such
an act must unequivocally express effective and sustained opposition to the exer-
cise of sovereignty against specific actions undertaken by the State claiming sov-
ereignty over the area in question.57 It also emphasises that the opposition of only
a single State would rarely suffice to defeat a claim of historical title. The protest
against another State’s exercise of sovereignty must have a broader base, although
each act of opposition must be assessed according to the conditions prevailing in
each and every dispute.58 Thus, the opposition of Great Britain to the delimitation
practices of Norway on the North Sea could be assessed as significant, particularly
inasmuch as it had important interests in the disputed area, and the matter in
dispute concerned the restriction of its fishing rights.
ILC’s Study also indicates that the time of launching a protest is signifi-
cant, and that in order to be effective a protest should be launched during the
“formative period of the disputed title.” While the protest may be incremental
55
Strictly speaking, a State relying on historic title would have to strengthen its con-
struction by recalling the concept of estoppel, or good faith (protection of legitimate legal
expectations).
56
57
Ibidem, pt 115 (“More important than establishing a list of acts, is to emphasize
that whatever the acts they must effectively express a sustained opposition to the exercise of
sovereignty by the coastal State over the area in question. (…) Should despite the protest the
coastal State continue to exercise its sovereignty over the area, the opposition on the part of
the foreign State must be maintained by renewed protests or some equivalent action.”).
58
Ibidem, pt 116 (“If the total absence of opposition is not a necessary requirement
for the emergence of a historic right, it would seem to be a matter of judgement, subject to
the circumstances in the particular case, how widespread the opposition must be to prevent
the historic title from materializing.”); Ibidem, pt 119: (“The dispute would be most likely to
arise through the opposition of neighbouring States or of those States which have a particular
interest in the area.”).
76 Artur Kozłowski
in nature, it is important that it culminates before the final formation of histori-

cal title. The ILC posits that:
After a State has exercised sovereignty over a maritime area during a consider-
able time under general toleration by the foreign States, and an historic right
to the area has thus emerged, it is not possible for one or more States to
reverse the process by coming forward with a protest against the accom-
plished fact. The historic title is already in existence and stands despite the
belated opposition.59
ILC’s analysis also suggests that a kind of “race against time” may oc-
cur during the formation and consolidation of historic title, between the State
asserting sovereignty (in reliance on the toleration of third States) and the
State or States opposing the assertion. Each situation needs to be examined
individually.60
Calculation of the time lapse necessary to support a claim of historical ti-
tle should begin from the moment sovereignty is publicly exercised by the State
claiming the historic title. ILC’s Study appropriately emphasises that establish-
ment of the public nature, i.e. notoriety, of the exercise of sovereignty should suf-
fice to ascertain the moment at which other States are put on notice of the claim,
and that the open and public exercise of sovereignty is sufficient to impute actual
knowledge to third States.61
It is clear that third States, in order to block a claim of historical title, should
take affirmative action. An open and public exercise of sovereignty by a State over
a territory should provoke a reaction on the part of third States, especially those
with competing claims to the territory. As has been pointed out above, such an
open and public exercise of sovereignty imputes knowledge thereof to all third
States with competing claims or interests, hence the need for them to launch
a firm and clear protest. They cannot claim a lack of actual knowledge in order to
defeat the claim of historical title.
ILC’s analysis suggests that the fulfillment of three basic conditions will
support a claim of historical title: a) an open and effective exercise of sovereignty;
59
Ibidem, pt 121.
60
Ibidem, pt 131 (“There is no precise time limit for the lapse of time necessary to
allow the emergence of the historic right, and there is no precise measure for the amount of
opposition which is necessary to exclude ‘general toleration’.”).
61
Ibidem, pt 130 (“There seem to be strong reasons for holding that notoriety of
the exercise of sovereignty, in other words, open and public exercise of sovereignty, is re-
quired rather than actual knowledge by the foreign States of the activities of the coastal
States in the area.”).
b) a time sufficient to create a usage or right; and c) general toleration by the com-
munity of States.62 It appropriately emphasises that an assessment whether the
requirements have been fulfilled is a matter of judgement and appreciation in each
individual case.63
The analysis and requisites set forth in ILC’s elaborate Study, including
references to numerous practical examples, may be considered as the constitutive
elements of historic title. It should be noted, however, that those basic elements are
frequently claimed to be of a relative character. This is also reflected in the ILC’s
Study emphasising that their legal nature can only be determined by taking into
account all the conditions, i.e. particular circumstances, surrounding each and every
case. Among the particular circumstances noted by the ILC are the geographical
shape and form of the territory as well as the vital interests of the State parties in-
volved. It is a debatable issue whether the “particular circumstances” accompany-
ing the operative facts can be classified as another constitutive element of historic
title, or whether they are implied systemic components for construing the title.
It also appears that the legal consequences arising out of historic title are de-
pendent upon a certain amount of stability of its components. The Tribunal in the
case of Eritrea vs. Yemen expressed this viewpoint very clearly. Constant changes
of factual situation as well as location and shape of disputed territory can make
formation of historic title more difficult.64 It should be noted, however, that in
discussing the constitutive elements of historic title in that case, the judges found
that the waterless and uninhabitable nature of these islands, and islets and rocks
required the parties to demonstrate closer connections with the territory than
in the classical cases such as of Clipperton Island or Eastern Greenland. In those
verdicts, the courts found that disadvantageous terrain could in some instances
62
Ibidem, pt 132 (“The result of the discussion would seem to be that for such
a title to emerge, the coastal State must have effectively exercised sovereignty over the area
continuously during a time sufficient to create a usage and have done so under the general
toleration of the community of States.”).
63
Ibidem, p. 25, pt 187 (“It is apparent from this description of the requirements
which must be fulfilled for a title to ‘historic waters’ to emerge, that the existence of such
a title is to a large extent a matter of judgement. A large element of appreciation seems una-
voidable in this matter .…”).
64
Eritrea v. Yemen, p. 311, para. 449: (“In the end neither Party has been able to per-
suade the Tribunal that the history of the matter reveals the juridical existence of an historic
title, or of historic titles, of such long-established, continuous and definitive lineage to these
particular islands, islets and rocks as would be a sufficient basis for the Tribunal’s decision.
And it must be said that, given the waterless and uninhabitable nature of these islands, and
islets and rocks, and the intermittent and kaleidoscopically changing political situations and
interests, this conclusion is hardly surprising.”).
78 Artur Kozłowski
facilitate the exercise of sovereignty over them. This is clearly a contradiction,

which may be explained either by the particular circumstances that are taken into
account in cases involving historic title, or by the particular circumstances of the
Eritrea vs. Yemen case itself.
It would seem that a formalised approach to the question raised would re-
quire a concrete method or pattern for assessing the effect of this potential addi-
tional element on the three basic elements of historic title earlier outlined. On the
other hand, at the levels of construction of the title, as well as the need to resolve
territorial disputes, such a rigorous formal approach would seem unnecessary.
It may turn out that the geographical characteristics of a territory may, in one
case, weaken the need to show usage over a substantial period of time, and in
another strengthen the necessity, even to the point of requiring documentary pos-
session from time immemorial.
The ILC Study indicates that, regardless of whether historic title is consid-
ered an equal form of title or an exception to the general rules of international law,
the State claiming historic title must in each case prove the existence of the consti-
tutive elements in order for the dispute resolution organ to give proper legal effect
to the nature of the title. In this instance, it does not matter whether the party
bringing the case is the party claiming the title or arguing against it.65 In the latter
instance, the party opposing historical title must present sufficient facts and
evidence to show that the requisite constitutive elements have not been fulfilled.
For example, State A may argue that the international community has demon-
strated the requisite acquiescence or tolerance of a particular exercise of sovereign-
ty to support a claim of historic title, while State B attempts to show a lack of such
acquiescence of tolerance on the part of a sufficient number of third States.
3. SYSTEMIC DEVELOPMENTS IN THE CONSTRUCTION

OF HISTORIC TITLE
Even though the work of the ILC outlines the legal framework of historic
title and has a significant influence in terms of its construction, it does not
exhaust all the constructional issues associated with the issue of title. Several
65
Juridical Regime, p. 22, pt 158 (“The elements of the title have evidently to be
proved to the satisfaction of the arbitrator, otherwise he will not accept the title. And this
holds true whether or not the title is considered to be an exception to the general rules of
international law, so that burden of proof is not really a logical consequence of the allegedly
exceptional character of the title.”).
other additional, complementary concepts may condition the historical/legal cor-

rectness of an inquiry into historic title.
In the ICJ case of Maritime Delimitation and Territorial Questions between
Qatar and Bahrain, a dissenting opinion was filed by Judges Bedjoui, Ranjeva
and Koroma emphasising that a State claiming territorial sovereignty needed,
as a natural first step, to show “an original historical legal title”.66 However,
in the complicated process of proving its case by an interested party, the scope of
the available instruments is decidedly wider. Historic title is just one of the ele-
ments in an extensive model which allows for linking a particular State with a par-
ticular territory via the knot of sovereignty.67 In light of the wider range of options
available, a further system of relativisation becomes necessary.
One of the essential systemic elements is the need for the legal construction
of historic title to adhere to the rule of intertemporal law. This was recognised by
the arbitration tribunal in the case of Eritrea vs. Yemen. The tribunal pointed out
that Yemen’s historical arguments were incorrect inasmuch as they adopted a con-
cept of sovereignty which was inadequate to the time and place when the substan-
tial historic title was alleged to have formed. The concept of territorial sovereignty,
as understood in Western countries, began to be implemented in the area under
dispute only in the second half of the 19th century.68 Yemen attempted to argue
that manifestation of its sovereign authority over the disputed islands contributed
to the development of historic title that is still effective. The concept of sovereignty
was, however, assigned with the meaning unknown to both Yemen and the region
at the time it was alleged to have created the historic title.69 The tribunal thus
66
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, p. 152,
para. 14 (Diss. Op.): “[p]articularly where territorial disputes are concerned, the first intel-
lectual step normally undertaken is rather to seek an original historical legal title, irrespec-
tive of whether or not it is currently still effective.”
67
Suffice it to look, for example, at the section of Brownlie’s textbook concerning the
ways in which States can occupy territories (Brownlie, supra note 2, pp. 105-169).
68
Yemen v. Eritrea, p. 310, para. 444: (“Yemen’s argument is difficult to reconcile
with centuries of Ottoman rule over the entire area, ending only with the Treaty of Lausanne
(see chapter V). This is the more so because, under the principle of intertemporal law, the
Ottoman sovereignty was lawful and carried with it the entitlement to dispose of the terri-
tory. Accepting Yemen’s argument that an ancient title could have remained in effect over an
extended period of another sovereignty would be tantamount to a rejection of the legality of
Ottoman title to full sovereignty.”).
69
Ibidem, p. 245, para. 130: “The socio-economic and cultural patterns described
above were perfectly in harmony with classical Islamic law concepts, which practically ig-
nored the principle of ‘territorial sovereignty’ as it developed among the European powers
and became a basic feature of nineteenth century western international law”; Ibidem, p. 248,
para. 143 (“The concept of territorial sovereignty was entirely strange to an entity such
80 Artur Kozłowski
found Yemen’s claim to be an anachronism, separating the legal effects proposed

in its claim from the time and context of the events argued in support of its claim.
In a similar fashion, the representative of Singapore undermined Malaysia’s argu-
ments before the ICJ.70 This issue also appears in the individual opinion of Judge
Basdevant attached to the ICJ judgement in the case of Minquiers and Ecrehos.
When indicating the source of effective historic legal title on the side of the King
of England, Basdevant recalled actions that were directly related to the use of
force.71 As has been already indicated, from the point of view of contemporary
international law such a title could not be recognised. The prohibition on the use
of force in relations between States contained in the United Nations Charter in
principle would prohibit the formation of a sovereign right to territory obtained
by the use of force which, from a distant perspective, might otherwise look like
title based on historical conditions existing at the time.72
Thus, it would appear that the concept of sovereignty or use of force must,
in assessing historical title, in each case be given the meaning it had at the time
the title was forming. On the other hand, a later, secondary, confirmation of the
legal effects flowing from historical title would require that the evolution of var-
as medieval Yemen. Indeed, the concept of territorial sovereignty in the terms of modern in-
ternational law came late (not until the nineteenth century) to the Ottoman Empire, which
claimed, and was recognized as having, territorial sovereignty over the entire region.”);
Ibidem, p. 311, para. 446: (“There is a problem of the sheer anachronism of attempting to
attribute to such a tribal, mountain and Muslim medieval society the modern Western con-
cept of a sovereignty title, the particularly with respect to uninhabited and barren islands
used only occasionally by local, traditional fishermen.”).
70
CR 2007/20, p. 39, pt 9 (Chan) (“The second fact that Malaysia has glossed over is that
a traditional Malay sultanate, such as old Johor, had a different conception of sovereignty
from that of a modern territorial State. In a Malay sultanate, sovereignty was based on the
allegiance of subjects and not on the control of land. It was only at the end of the nineteenth
century that this concept began to evolve into the modern concept of territorial sovereignty.
For this reason, old Johor did not and could not have clear boundaries. This fact presents
a very serious obstacle in the way of Malaysia’s attempt to prove that Pedra Branca was part
of old Johor. Malaysia has not surmounted it.”).
71
Minquires and Ecrehos, p. 76 (“In the course of these events, the King of England
acquired jure belli and on his own behalf a title to the islands within his power, a title which
was later to be confirmed by certain treaties. He thus became substituted for the Duke of
Normandy in these islands. (…) The rights of the King of France over these islands disap-
peared. This Treaty [The Treaty of Calais or Brétigny of October 24th, 1360] renders un-
necessary further reference to the Treaty of 1259. It confirms the right which the King of
England had acquired jure belli.”).
72
Although one may consider in this context the use of force by a State in accordance
with allowable exceptions.
ious legal institutions be taken into account, including of course the evolutionary
changes in the way the concept of sovereignty was understood and the changes in
international law regarding the use of force. This intertemporal approach must be
applied to each of the elements of historic title, including both internal and exter-
nal factors, as well as to potential legal consequences flowing from past acts. The
validity and efficacy of historical title must be viewed individually in each case in
its proper legal and historical context.
The relative character of historic title, arising from its possible collision
with changing international norms, is well illustrated in the position of Judge ad
hoc Franck set forth in his individual opinion to the ICJ verdict in the dispute be-
tween Indonesia and Malaysia concerning the islands Pulau Ligitan/Pulau Sipadan
(in the phase of proceedings involving a request by the Philippines to participate in
the case as an intervening party). Judge Franck strongly emphasised that the right
of a people to self-determination must be taken into account in assessing the forma-
tion and scope of a claim of historic title to a particular territory,73 and unequivo-
cally stated that historic title cannot, as a matter of principle, override the right of
a people to self-determination.74 Of particular interest is the Judge’s opinion that
“[m]odern international law does not recognize the survival of a right of sovereign-
ty based solely on historic title.”75 One of the ways to defeat a claim of historic title
is certainly to claim that such a title is in contradiction to the right of people to
self-determination. This overriding right has made, as Franck affirmed, such an his-
toric title a “relic of another international legal era”.76 However, while it is true that
reliance on established norms of international law is a strong argument and instru-
ment in the relativisation of the legal effects of historic title, it should also be noted
that the right of people to self-determination may also in some instances be assigned
a relative character, for example when it collides with the recognised right to
73
Pulau Ligitan/Pulau Sipadan, p. 655, para. 9 (Sep. Op. Franck) (“In particular, the
infusion of the concept of the rights of a ‘people’ into this traditional legal scheme, notably
the right of peoples to self-determination, fundamentally alters the significance of historic
title to the determination of sovereign title.”).
74
Ibidem, p. 652, para. 2 (“It is this: historic title, no matter how persuasively claimed
on the basis of old legal instruments and exercises of authority, cannot - except in the most
extraordinary circumstances - prevail in law over the rights of non-self-governing people
to claim independence and establish their sovereignty through the exercise of bona fide self-
determination.”).
75
76
Ibidem (“Historic claims and feudal pre-colonial titles are mere relics of another
international legal era, one that ended with the setting of the sun on the age of colonial
imperium.”).
82 Artur Kozłowski
territorial integrity.77 In such circumstances, in the absence of an extraordinary

event, historic title connected with territorial integrity should prevail over the legal
effects connected with the people’s desire to assert their right to self-determination.
The issues of continuity and restoration of the historic title to a particular
territory following the elimination of certain obstacles, also falls within the systemic
context of relativisation of the effects of historic title. In this instance, we refer to
structural interconnection between the principle of continuity and historic title.
In the case Minquiers and Ecrehos, both sides contended the validity of
its historic title to the islands.78 France argued that it retained historic title by
“an effective exercise of her sovereignty” over the disputed islands, to the extent
allowable.79 The ICJ, however, strongly focused on the relative character of his-
toric title. It pointed out to France the moment (1204) when, it its opinion, it lost
its primary historic title to the islands situated in the Canal La Manche (English
Channel) and indicated that for France to regain sovereignty it would have had
to re-exercise sovereignty, for example by effective possession.80 The ICJ thus raised
the possibility that an historic title may be rendered null in light of changes in the
relationship between the parties in regard to disputed territory.81
The issue of the validity of historic title in connection with and in light of
the principle of continuity was presented in a very extensive fashion in the case
of Eritrea v. Yemen, a territorial dispute over islands in the Red Sea. Yemen’s line
of argumentation was designed to convince the Court to re-instate the validity of
Yemen’s historic title following the elimination of “obstacles” to its exercise (“Yem-
en’s theory of reversion” – a theory based on the principle of continuity).82 Yemen
argued that the source of its historic title had its origins in the relationship between
Yemen’s predecessor state in the Middle Ages (Bilad el-Yemen) and the disputed
77
See, Ch. J. Borgen, Introductory Note to Kosovo’s Declaration of Independence, Inter-
national Legal Materials, vol. 47 (2008), pp. 461-6.
78
Minquiers and Ecrehos, p. 53.
79
Ibidem, p. 51.
80
Ibidem, p. 56 (“Such an alleged original feudal title of the Kings of France in respect
of the Channel Islands could to-day produce no legal effect, unless it had been replaced by
another title valid according to the law of the time of replacement.”).
81
Ibidem (“The Court considers it sufficient to state as its view that even if the Kings
of France did have an original feudal title also in respect of the Channel Islands, such a title
must have lapsed as a consequence of the events of the year 1204 and following years.”).
82
Eritrea v. Yemen, p. 241, paras. 117-118 (“Yemen’s arguments on historic and an-
cient title touch upon several important historical considerations. One relates to the iden-
tity of historic Yemen and whether it comprised the islands in dispute. A second questions
the existence of a doctrine of reversion recognized in international law, and a third relates
to the place of continuity within a concept of reversion of ancient title.”).
islands, which was disrupted, in the legal sense, by the occupation of the Ottoman
Empire. This obstacle – Ottoman occupation – came to an end after World War
I, hence Yemen’s claimed for re-instatement of its historic title.83 In other words
Yemen argued that its forced incorporation into the Ottoman Empire could not
have the effect of invalidating its historic title to the disputed islands in the Red
Sea. As a result, Yemen argued, its historic title retained its validity and the disin-
tegration of the Ottoman Empire meant a return to the situation ante factum.84
In considering the validity of Yemen’s claims, however, the Tribunal empha-
sised that during Turkish occupation the Imam of Yemen was granted autonomy
within the Ottoman Empire and within that grant of autonomy did not exercise
any sovereignty over the Red Sea coastline nor over the off-shore islands. His au-
tonomy was limited to the mountain enclaves in the interior, without access to
the sea. The Yemen shoreline and islands in dispute belonged until 1917 to the
Turkish authorities.85 The Tribunal, in order to assess Yemen’s claim of historic
title, undertook an analysis of the connection between the continental lands and
the islands. In this analysis, it particularly emphasised the legal effect of Article
16 of the Treaty of Lausanne of 1923, in which Turkey (which ratified the Treaty
in 1924) surrendered its sovereignty over the islands in dispute. The form of the
Treaty constituted, for the arbitrators, strong evidence that Turkey was surren-
dering something which belonged to her.86 Such an approach, in their opinion,
logically and legally adversely affected Yemen’s claim to a pre-existing title.87
It should be noted, however, that the correctness of the arbitrators’ reasoning
turns on the assumption that Turkey, in signing the Treaty, was the material pos-
sessor of all sovereign power over the islands in such a fashion that its sovereignty
extinguished any historical claim by Yemen to the islands, and ergo any basis for
claiming historic title. Only by an acceptance of the relative character of historical
claims and historic title can the arbitrators’ decision be viewed as the correct one.
If historic title encompasses the principle of continuity as an essential element
of its construction, Turkey could not have surrendered a sovereign power which
it did not possess.88 The Tribunal found that, in accordance with the principle of
intertemporality, the sovereignty which Turkey exercised when it took control of
83
84
Ibidem, para. 32.
85
Ibidem, pp. 242-3, para. 122.
86
87
Ibidem.
88
Nemo plus iuris ad alium transfere potest quam ipse habet. This reasoning was empha-
sised in the case of Las Palmas (Miangas).
84 Artur Kozłowski
the islands was, according to the international law of the time, recognised as full
sovereignty.89 The Tribunal’s opinion made it clear that it questioned whether the
doctrine of reversion was part of international law at all, and even if so, it was certain-
ly, according to the arbitrators, not applicable in the case before it.90 The Tribunal
specifically determined that “No ‘reversion’ could possibly operate, since the
chain of titles was necessarily interrupted and whatever previous merits may
have existed to sustain such claim could hardly be invoked”.91 It thus appears that
a colonial occupation could operate as a legal basis for breaking a claim to chain of
title. The Tribunal indeed emphasised, which is of interest to us in our study, that
the disappearance of a colonial regime did not automatically signify a reversion
to status quo ante.92 Thus, a State seeking a historic title based on the doctrine of
89
Eritrea v. Yemen, p. 243, para. 125; see also L. Ehrlich, Prawo międzynarodowe [Inter-
national Law] (4th ed.), Wydawnictwo Prawnicze, Warszawa: 1958, p. 541 (“The point of
departure accepted above […] permits however the acceptance of the so-called ius postlimi-
nii as the return to a legal status, following either a long or short term administration by
a State in violation of another State’s rights, hence against its will, of the territory belonging
to such other state.”).
90
Eritrea v. Yemen, p. 243, para. 125 (“It has not been established in these proceed-
ings to the satisfaction of the Tribunal that the doctrine of reversion is part of international
law. In any event, the Tribunal concludes that on the facts of this case it has no applica-
tion.”). Cf. N. S. M. Antunes, The Eritrea-Yemen Arbitration: First Stage – the Law of Title
to Territory Re-Averred, 48 International and Comparative Law Quarterly 362 (1999), pp.
368-9.
91
Eritrea v. Yemen, p. 243, para. 125. See also the arguments of the representative of
Singapore (Chan) before the ICJ in the territorial dispute with Malaysia: “Malaysia hopes
that, by presenting new Johor as the continuator of old Johor, she can avoid the burden of
showing how old Johor’s alleged title to Pedra Branca was transmitted to Malaysia. Since
new Johor was a breakaway fragment, and not the continuator of old Johor, it is incumbent
on Malaysia to produce clear evidence not only to show when and how title to Pedra Branca
first came to be vested in old Johor, but also to show how the island came to be transmitted to
new Johor” (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge,
CR 2007/20, p. 49, pt 41).
92
Eritrea v. Yemen, p. 243, para. 125 (“As long as that colonial situation prevailed,
neither Ethiopian nor Yemen was in a position to demonstrate any kind of historic title that
could serve as a sufficient basis to confirm sovereignty over any of the disputed islands. Only
after the departure of the colonial powers did the possibility of a change in the status quo
arise. A change in the status quo does not, however, necessarily imply a reversion.”). Ibidem,
p. 310, para. 443 (“It is doubted by Eritrea whether there is such a doctrine of reversion in
international law. This doubt seems justified in view of the fact that very little support for
such a doctrine was cited by Yemen, nor is the Tribunal aware of any basis for maintaining
that reversion is an accepted principle or rule of general international law. Moreover, even
if the doctrine were valid, it could not apply in this case. That is because there is a lack of
continuity. It has been argued by Yemen that in the case of historic title no continuity need
be shown, but the Tribunal finds no support for this argument.”).
reversion probably needs to channel its historical claims into the contemporary
status of the territory in question and seek a separate legal title in order to succeed.
In its territorial dispute with Malaysia over islands located at the eastern
mouth of the Singapore Strait, Singapore argued that territorial rights based on an
historic title could become extinguished. The legal cause of such extinguishment
in this case was argued to be Malaysia’s total lack of activity in the territory in
question, leading to effective abandonment of the territory and turning it into no-
man’s land (terra nullius).93 Malaysia, on the other hand, argued that Singapore’s
alleged prescription was not sufficient to break or annul the legal consequences
of the historic title possessed by the Sultan of “old” Johor.94 In its verdict, the ICJ
expressed no doubt that, as a result of the evolution in the positions of both parties
and of the chain of events, Malaysia effectively surrendered its sovereignty over the
island Pedra Branca to Singapore.95 As regarding the other island, Middle Rocks,
the Court found that Malaysia’s historic title remained in effect in light of the lack
of evidence to the contrary.96 It should be noted, however, that some scholars have
expressed doubts about the Court’s reasoning, arguing that it failed to specify the
93
See, Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge, Judgment, p. 37, para. 123.
94
Ibidem, pp. 37-8, para. 124. It should be noted that also Singapore was not, in its
argumentation, very convinced about the doctrine of prescriptive acquisition.
95
Ibidem, para. 276 (“The Court is of the opinion that the relevant facts, including
the conduct of the Parties, previously reviewed and summarized in the two preceding para-
graphs, reflect a convergent evolution of the positions of the Parties regarding title to Pedra
Branca/Pulau Batu Puteh. The Court concludes, especially by reference to the conduct of
Singapore and its predecessors à titre de souverain, taken together with the conduct of Ma-
laysia and its predecessors including their failure to respond to the conduct of Singapore and
its predecessors, that by 1980 sovereignty over Pedra Branca/Pulau Batu Puteh had passed to
Singapore.”).
96
Ibidem, p. 78, para. 290 (“Since Middle Rocks should be understood to have had
the same legal status as Pedra Branca/Pulau Batu Puteh as far as the ancient original title
held by the Sultan of Johor was concerned, and since the particular circumstances which
have come to effect the passing of title to Pedra Branca/Pulau Batu Puteh to Singapore do not
apply to this maritime feature, original title to Middle Rocks should remain with Malaysia as
the successor to the Sultan of Johor, unless proven otherwise, which the Court finds Singa-
pore has not done.”). Cf B. Kwiatkowska, The Eritrea/Yemen Arbitration: Landmark Progress
in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation,
IBRU, Boundary and Security Bulletin, 2000, p. 78 (“the Award confirms the preeminence
of evidence of actual and effective occupation as a source of title to territory over claims of
historic title, as developed by the jurisprudence of the ICJ and other courts and tribunals.”).
86 Artur Kozłowski
legal mechanism and constitutive elements whereby such a transfer of sovereign

title could take place.97
Another issue connected with the permanency, and/or eventual loss of the
right to rely on historical title, is the issue of who may claim the potential legal
effects of historic title. In the British-French dispute discussed above, the ques-
tion of succession arose. Judge Basdevant emphasised in his individual opinion
that “for the French Republic to be able now successfully to rely upon the ancient
title of the King of France, it is necessary to show that this ancient title became
augmented as a result of the disappearance, from beneath the King of France and
in respect of the disputed islets, of the vassal, the Duke of Normandy.”98 It would
appear that the basic legal construction of historic title does not exclude the pos-
sibility of its transfer to a successor State. Such a transfer must, however, be con-
ditioned on the legal validity of the succession process.
In generalising the discussion of the continuity of historic title, it should be
noted that the legal value of historic title may be confronted with the existence of
other forms of territorial title, for example in the form of a treaty concerning the
disputed territory.99 In such a case, the two claims must be examined in parallel in
order to reach a uniform conclusion.100 Such analysis may lead to the conclusion
that the earlier historic title was extinguished and replaced by a new legal title,
comprised of elements of both legal and historical nature.101
97
D. A. Colson, B. J. Vohrer, Introductory Note to International Court of Justice: Sov-
ereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Sin-
gapore), International Legal Materials, vol. 47 (2008), p. 834 (“In the past, the historical
consolidation of title theory has been advanced as the appropriate legal theory under which
cases of this variety should be analyzed. The Court, however, did not take the opportunity to
breathe life into this theory, and instead used the term ‘tacit agreement’ to describe the legal
operation transferring title. That title can pass by agreement is obvious, and, conceptually,
there would seem to be no reason why title cannot pass by a tacit agreement. The Court,
however, provided sparse guidance as to the legal elements and factual showing required to
establish the transfer of territorial title under this theory. Neither did the Court analyze how
this theory differs from acquiescence or acquisitive prescription.”).
098
Minquiers and Ecrehos, p. 75 (Indiv. Op. Basdevant).
099
Op.), p. 176, para. 99 (“Over and above this juridical operation regarding the formation, con-
solidation or extinction of a “historical title” to a territory, the court may find that a ‘legal
title’ exists as well, created in most cases by a treaty relating to the territory in question.”).
100
Ibidem. With reference to the reasoning used by the ICJ in its decision in the ter-
ritorial dispute between Burkina Faso and Mali (Frontier Dispute, 1998).
101
Op.), p.188, para. 136 (“In conclusion to this analysis of the convergence of history and law,
we believe it apparent that, assuming that Bahrain had in the past held a historical title to
It seems obvious that limitations on the legal effects of historic title may occur
with the agreement of the State possessing such historic title. If a State concludes
a legally binding international agreement concerning its territorial sovereignty
over a defined territory, then either explicitly or implicitly, it has surrendered any
rights arising from its claim of historic title which are inconsistent with the terms
of the agreement.102 Similarly, parties to the Convention on the Law of the Seas
(1982) can raise claims of historic title to maritime areas only to the extent such
claims are consistent with the provisions of the Convention. Any aspects of his-
toric title which are codified a contrario must be considered to be extinguished, at
least as between the parties to the Convention. This principle does not, of course,
concern aspects of historic title not covered by the Convention.103
Once a State has surrendered the right to claim legal effects arising from
historic title, it may not later assert such claims falling within the same form and
scope. The legal construction of historic title does not allow for the creation of ab-
solute rights, not subject to any legal relativism. The creation of a subsequent legal
title in accordance with existing international law may, at a maximum, lead to the
complete extinguishment of contrary historic title.
It should be kept in mind, however, that while the principle of continui-
ty cannot override justifiable legal and/or factual obstacles which would render
a claim of continued historic title untenable, claims conditioned upon historical
rights may nonetheless directly influence both the argumentation of the parties
to a territorial dispute as well as the analysis adopted in resolving the dispute.
This is reflected in the reasoning of the arbitration tribunal in the dispute between
Eritrea and Yemen. The Tribunal concluded that “such historic rights provide
a sufficient legal basis for maintaining certain aspects of a res communis that has
the Havars, the Anglo-Bahraini and Anglo-Qatari treaties of 1868 established that it had
lost sovereignty over the Qatar peninsula. These agreements marked the end of one title and
the birth of another, belonging to Qatar, a new entity separate from Bahrain. Qatar’s title
was progressively strengthened, to such a degree that the 1916 treaty between Great Britain
and Qatar recorded the definitive consolidation of that title.”). See also the response of Keith
Highet before the ICJ in support of Salvador in its territorial dispute with Honduras: “even if
Honduras did have a technical historical title in 1821, which we deny, even if she did, that title
has long since been extinguished by the total inactivity of Honduras in respect of the islands”
(El Salvador v. Honduras: Nicaragua intervening), Verbatim Record of the public sitting,
30 May 1991, C 4/CR 91/35 – http://www.icj-cij.org/docket/files/75/5881.pdf).
102
See. B. T. Sumner, Territorial Dispute at the International Court of Justice, 53 Duke
Law Journal 1779 (2003-2004), p. 1782.
103
See Juridical Regime, pts 75-76. Of course the ILC’s treatise presented the concept
of interdependence based on the example of the Geneva Conventions of 1958 concerning the
Sea and Continental Shelf.
88 Artur Kozłowski
existed for centuries for the benefit of the populations on both sides of the Red
Sea.”104 The Tribunal relied on exchanges of a human and commercial nature from
time immemorial to conclude that the islands served as “way stations”105, and that
there was no evidence of or need for any specific authorisation from any State.106
The arbitrators’ reasoning appears to support the conclusion that while it rejected
historic title as a separate basis upon which to make a claim in the case before it,
it nevertheless took into account the fact that the State parties observed some
of the legal and factual elements comprising historic title, and concluded that
their behaviour could be factored into and effect the normative shape of subse-
quent titles and/or legal relations connected with the exercise of sovereignty over
the disputed territories.107
It would also appear that the relative weakness of historic title can be part-
ly explained by psychological reasons. The judges, having at their disposal more
contemporary facts concerning the exercise of sovereignty over the disputed ter-
ritories, may give such evidence greater weight and significance than the legal
effects arising from a distant past, often not accompanied by strong and con-
vincing evidence, especially where the legal relations of such distant past were
characterised by instability.108
Another trend associated with uncertainty surrounding historic title is the
strong contemporary tendency to bolster historical/legal arguments by examining
some additional categories.109 When Judge Basdevante completed his analysis of
the character of the respective historic titles claimed by France and Great Britain
104
105
Ibidem (“Since times immemorial, they were not only conducting exchanges of
a human and commercial nature, but they were freely fishing and navigating throughout the
maritime space using the existing islands as way stations (des iles relais) and occasionally as
refuge from the strong northern winds.”).
106
Ibidem (“These activities were carried out for centuries without any need to obtain
any authorizations from the rulers on either the Asian or the African side of the Red sea and
in the absence of restrictions or regulations exercised by public authorities.”).
107
See Antunes, supra note 90, pp. 371-2, 375.
108
Eritrea v. Yemen, p. 312, para. 450 (“It may be said at once that one result of the
analysis of the constantly changing situation of all these different aspects of governmental
activities is that, as indeed was so in the Minquiers and Ecrehos case where there had also
been much argument about claims to very ancient titles, it is the relatively recent history of
use and possession that ultimately proved to be a main basis of the Tribunal decisions.”). See
also Sumner, supra note 102, p. 1782.
109
Sumner, supra note 102, pp. 1779-80 (“In many cases, however, these bounda-
ries are subject to competing international territorial claims. Such claims can be generally
divided into nine categories: treaties, geography, economy, culture, effective control, history,
uti possidetis, elitism, and ideology. States have relied on all nine categories to justify legal
in their dispute over the islands in the Canal La Manche, he decided to strengthen
the force of conclusion reached by referring to the British administration of the
island of Jersey in the 19th and 20th centuries.110 Yemen made a similar argument
in its territorial dispute with Eritrea, relying on various manifestations of its sover-
eignty to confirm and supplement its claim to historic title.111
In light of the above, one may ask whether the facts examined and described
constitute conditions which must be met for the continued existence of historic
title, or whether they are a form of subsidiary considerations, without which the
historic title could produce legal effects anyway.112
This method of reasoning is susceptible to two interpretations. The first
would confirm the relative conceptual weakness of historic arguments. The
second, however, would place the concept of historic title among the range of
various principles, doctrines, and methods of legal reasoning available to judges
when resolving disputes over territorial sovereignty. The factual circumstances
surrounding such disputes are inherently complicated and multi-dimensional;
hence the concept of historic title may be considered to be one of the many avail-
able legal instruments which may be applied at various levels to reach a proper
resolution of the dispute.
If historical-legal arguments are not sufficient in a given case to be treated
as an independent determining factor, they nonetheless frequently thread their
way into arguments in support of other legal titles to territory. In terms of cases
before the ICJ, it may be assumed that such disputes will usually involve the nature
claims to territory before the International Court of Justice (ICJ). The most common claims
are cast in terms of effective control of the disputed territory, historical right to title, uti pos-
sidetis, geography, treaty law, and cultural homogeneity.”).
110
Minquiers and Ecrehos, p. 83 (Indiv. Op. Basdevante) (“From the facts thus alleged
and, in particular, from the action of the Jersey authorities, unimpeded by competing action on
the part of the French authorities, it is possible to deduce some ex post facto confirmation of the
reasonableness of the hypothesis previously stated, according to which the King of England,
who held the principal islands in 1360, was in a position to exercise power over the Ecrehos and
the Minquiers and that he held these islets within the meaning of the Treaty.”).
111
112
Compare Minquiers and Ecrehos, p. 82 (Indiv. Op. Basdevante) (“It thus becomes
necessary to enquire whether the facts invoked on either side are such as to confirm or in-
validate the interpretation according to which the medieval division resulted in the disput-
ed islets being included in the portion of the King of England. We are not here concerned
to seek the birth of any new title ensuring to him, but rather confirmation of the correctness
of a probable, though uncertain, interpretation of this division.”).
90 Artur Kozłowski
of titles based on treaties, application of the principle of uti possidetis, and effective
control over territory.113
Finally, it is worth noting that the potential effectiveness of historic title
as a legal argument increases in disputes involving territory which remains in
a specific socio-cultural relationship (homeland) with the inhabitants living there.
This becomes an important factor qualifying the effectiveness of the historical-
legal approach.114
4. CONSOLIDATION OF HISTORIC TITLE
The extensive and complicated system of relativisation of the legal elements

comprising historic title leads to a conceptual need for consolidation. The primary
impulse for such consolidation is attributed to Charles de Visscher.115 One of the
major reasons given for its usefulness is the need to overcome a series of thorny
problems connected with the traditional classifications of the legal methods for
States to obtain sovereign rights over territory.116 As Blum observes: “[h]istoric
rights are the product of a lengthy process comprising a long series of acts, omis-
sions and patterns of behaviour which, in their entirety, and through their cumu-
lative effect, bring such rights into being and consolidate them into rights valid
in international law.”117 Surya Sharma defines consolidation as an integral part of
the legal process whereby States may obtain sovereignty over a given territory.118
The idea of consolidation is also frequently assessed as an attempt to inject
genuine historical roots into the concept of historic title or historical rights.119
113
Sumner suggests that this triad forms the most common legal basis employed by
the ICJ to resolve territorial disputes. (Sumner, supra note 102, p. 1780).
114
Ibidem, p. 1790.
115
Ch. de Visscher, Théories et réalites en droit international public, A Pedone, Paris:
1953.
116
S. P. Sharma, Territorial Acquisition, Disputes and International Law, Kluwer Law
International, The Hague-London: 1997, p. 173.
117
Y. Z. Blum, Historic Rights, [in]: R. Bernhardt (ed.), Encyclopedia of Public In-
ternational Law, vol. II (1995), p. 711. See Legal Opinion on Guatemala’s Territorial Claim
to Belize (E. Lauterpacht, S. Schwebel, Sh. Rosenne, F. Orrega Vicuña), November 2001,
pp. 75-7 (http://www.belize-guatemala.gov.bz/legal-opinion.pdf).
118
Sharma, supra note 116, pp. 173-4.
119
Blum, supra note 117, p. 710 (“the term ‘historic rights’ denotes the posses-
sion by a State, over certain land or maritime areas, of rights that would not normally
accrue to it under general rules of international law, such rights having been acquired
by that State through a process of historical consolidation.”).
In addition, it seems to allow for the indirect incorporation of various threads

and conditions associated with the formation and continuing validity of this type
of legal title.120 Above all, this permits to distinguish between occupation and the
process of consolidating an historic title, and to reconciling the concept “posses-
sion from time immemorial” with an assertion of prescriptive (adverse) posses-
sion by a third State.121 Seen from this perspective, consolidation could be also
a way out of the paradox whereby an exercise of exclusive sovereignty over a given
territory is not only necessary to establish a claim of sovereignty, but also to main-
taining or manifesting such sovereignty over time. In theory, however, exclusive
sovereignty, once obtained, is not subject to any restriction or manifestation.122
The main problem with historic title lies in the difficulty in determining
whether it is a static and permanent title, or the result of a process connected with
the increasing and/or continuing exercise of sovereignty by a given State over
a given territory.123 This conditionality, contained in the association of historic ti-
tle with the idea of progressive consolidation or recognition, is reflected in the in-
dividual opinion attached to the ICJ judgement in the territorial dispute between
Qatar and Bahrain.124 According to some of the judges, the process of consolida-
tion of historic title in Qatar’s favour covered a period of about 45 years. It was
composed of indirect acts of recognition from Bahrain and third States that could
120
See, D. H. N. Johnson, Consolidation as a Root Title in International Law, 13 Cam-
bridge Law Journal 215 (1955), p. 223.
121
Ibidem (“Under the single heading of ‘consolidation’ it is now possible, as has just
been indicated, to include both ‘straightforward possession’ and ‘adverse possession’. As for
the expressions ‘acquisitive prescription’ and ‘prescription properly called’ the way is now
open either to abandon them altogether or else to confine them – as there has always been
a tendency to confine them – to cases of ‘adverse possession’.”).
122
Ibidem, p. 225 (“It is submitted that the process of ‘maintaining’ or ‘manifesting’
a title, to which reference has just been made [based on the examples of the Las Palmas and Clip-
perton islands], is in essence a process of ‘consolidation’, different in degree perhaps, though
certainly not in kind, from the ‘consolidation’ by which a title may sometimes be acquired
in the first place.”). According to Yemen activities confirming or supporting the existence of
a title such as, for example, the granting of concessions of oil rights, so differ from activities con-
stituting formal “occupation” which lead to the formation of an individual title, that in the case
of the former it is not necessary to demonstrate express, parallel activities to support formally
a claim. (Eritrea v. Yemen, p. 227, para. 55). Cf. Sumner, supra note 102, p. 1802.
123
See, Eritrea v. Yemen, p. 239, paras. 104-5.
124
Op.), p. 172, para. 85 (“… Qatar possesses a historical title to the Hawars that has been estab-
lished progressively, consolidated and recognized”); Ibidem, p. 174, para. 93 (“[T]he various
possible stages in the establishment of a title, such as its formation and subsequent consolida-
tion or disappearance”); Ibidem, p. 155, para. 24.
92 Artur Kozłowski
be deducted from their conduct, including international agreements concluded by

those countries.125 In this context, the concept of consolidation of legal title is based
on the elements of acquiescence, tolerance, and acceptance of the status quo.126
The difficulty associated with application of the concept of consolidation of
historic title, especially with identification of a moment of its materialization, is to
a large extent derived from the problem of legal character of other manifestations
of sovereignty over disputed territories. The same actions involving an exercise of
sovereignty can give rise to either the formation of an historic title, or be viewed as
favourable circumstances giving birth to another and independent legal title of
sovereignty. According to Yemen, these actions included economic and social ties
between its continental part and disputed islands, recognition by third-party States,
and even support and confirmation in legal doctrine for Yemen’s claims.127
As a consequence, even if a consideration of historical context does not lead
to the establishment of an historic title in the strictest sense of the term, particu-
lar events affecting the historical context may, as has been demonstrated, become
significant for the light they shed on international legal institutions which exist
at the time of deciding the dispute.128 In the dispute over the islands located in
the Red Sea, the arbitral tribunal delineated the boundary between historical
title senso strictu and historical claims which could, if accompanied by mani-
festations of sovereignty by a State over particular territories or other forms of
possession, lead to a process of gradual crystallisation of separate legal claims
other than historic title.
Thus, when a State party asserts claims of a historical nature, it is forced to
take a position on whether the actions underlying such claims lead to a process
of consolidation of historic title, or whether actions may constitute, for example,
125
Ibidem, p. 180, para. 109; p. 181, para. 112; p. 182, para. 116; p. 183, para. 120;
p. 184, paras. 122-3.
126
According to K. Highet (Land, Island and Maritime Frontier Dispute (El Salvador
v. Honduras: Nicaragua intervening) Verbatim Record of public sitting, 31 May 1991, CR
1991/37, pp. 23-24 (http://www.icj-cij.org/docket/files/75/5885.pdf)).
127
Eritrea v. Yemen (1998), p. 223, para. 36 (“… which it asserts may serve to confirm
and supplement the evidence of traditional or historic title, as well as constituting indepen-
dent sources of title”); cf also para. 106.
128
Ibidem, p. 247, para. 142 (“As will be expanded upon later, the allocation of ad-
ministrative powers over the Red Sea islands, whether by the Ottoman Empire acting as
sovereign power on both coasts or only as exercising jurisdiction from the Arabian Coast
alone, represents an historic fact that should be taken into consideration and given a certain
legal weight.”)
occupation or acquisitive prescription, since the same elements may appear in the
construction of these differing legal titles.129
In connection with the above, it should be pointed out that, in the context
of the unique nature of historic title, occupation is a normal process of the for-
mation of complete and exclusive sovereignty over a territory, and this exclusive
sovereignty need not be dependent upon some form of acceptance resulting from
acquiescence on the part of third States.130 Nonetheless, as has also been pointed out
earlier, an appeal to the construct of historic title does not require a unique legal
approach, but rather is based on the application of general principles. Thus, to
some extent occupation may constitute a source of historic title, since the physical
exercise of sovereignty is a necessary prerequisite to the formation of historic title.
The peaceful appropriation of “no-man’s land” may initiate the process, but in
the case of occupation the exercise of sovereign powers may be found to exist even
without reference to third-party States. In the event of competing claims, however,
the degree of effective occupation needs to be assessed for each claimant in order
to determine which of them may have created the conditions for the formation of
a legal title which, depending on the facts, may be considered as an historic title
if some form of acquiescence or toleration on the part of relevant third States can
be demonstrated.
The ILC, in analysing the substantive difference between prescriptive right
and historic title in relation to maritime territory came to the conclusion that pre-
scriptive right, as a legal title, relates only to territory in which certain defined
conditions are fulfilled over the course of time.131 It may be asserted with regard
to the possession of territory from time immemorial (immemorial possession),
as well as title which attains validity despite the fact that the possession, in its
early stages, does not fulfil the criteria of legal possession.132 The requirement that
such possession extend over a course of time may seem imprecise. On the other
hand, as correctly noted in ILC’s Study, the requirement is justified since, in the
case of possession from time immemorial, the choice of legal instruments available
to clarify and confirm title need not be so rigorous as in the case of a prescriptive
right, which by definition is an assertion of title against another sovereign State.133
If a State asserting historic title intends to show possession from time immemo-
rial, the uncertainty associated with such a claim justifies a parallel assertion of
129
See, Sharma, supra note 116, pp. 168-71.
130
Ibidem, pp. 170-1.
131
132
Ibidem.
133
Ibidem, pt 64.
94 Artur Kozłowski
acquisitive prescription. The uncertainty relating to determination of a precise

starting date for the acquisition of the sovereign right is characteristic feature of
both claims. Thus, it may be safely said that if a claim of prescriptive right in-
cludes an assertion of possession from time immemorial, then without great risk
the claim may be formulated as a claim of historic title.134 In the case, however,
where a claim of historic title refers to prescriptive possession, which is based
on defective or invalid legal title, a claim of historic title would constitute an
exception to the gene-rally applicable principle. The ILC regards such an approach
as inappropriate.135
In the case of appropriation of territory as the result of a peaceful occu-
pation, the legal element in common with historic title is the actual exercise of
effective sovereignty. Occupation is the primary mode of acquiring territory, and
consists of the exercise of sovereign authority by a State with the clear intention of
appropriation.136 A peaceful occupation by definition concerns a territory which
does not belong to any other legal entity. A claim of historic title is usually made
in order to strengthen the legal consequences of the occupation by affirming its
long time element, i.e., a sufficient course of time. According to the ILC, it would
be more appropriate in such a case to use the term ancient title.137 In any case, the
element common to both institutions is possession of the territory in question.
Territorial possession as a result of historical consolidation of a title may lead to
the formation of entitlement also in a situation when there are competing claims
or even an earlier legal title. This differs from prescriptive acquisition, which
is not associated in the case with territorial possession from time immemorial.
In the consolidation of an historic right, it cannot be clearly said that presented
titles are invalid or voidable, only that in the given factual circumstances one legal
title may be “better” or “worse” than another.
It should be noted that, given the systemic interdependence within the
concept of consolidation of a legal title, one more terminological issue has to be
decided. In the dispute over the sovereignty to islands between Yemen and Erit-
rea, Yemen’s historical claims were characterised by the terms of “original” as well
134
Ibidem, pt 66 (“It refers to a situation where the original title is uncertain and is
validated by long possession. It is approximately the same situation as in the case of ‘historic
waters’. If nothing more is implied in the term ‘prescriptive right’, its application to ‘historic
waters’ seems innocuous, although not particularly useful.”).
135
Ibidem, pt 68.
136
See, Sharma, supra note 116, pp. 61-3.
137
Cf. Juridical Regime, pt 71.
as “traditional”,138 and the term “original historic title” was also used.139 Different
views have appeared regarding terminology, and some scholars emphasise that the
differing terminology is an expression of differing historical realities. Barry Ruder-
man asserts that within the context of the law of the sea, the term “ancient title”
should be reserved for legal claims which stretch back in time before the sea was
transformed into res communis, while the term “historic title” refers to legal title
which arose after the concept of freedom of the seas became an accepted part of
international law.140 Such a division would, in effect, signify an acceptance of the
earlier expressed principle whereby historic title would constitute a form of excep-
tion to the general principles, requiring the fulfilment of more restrictive condi-
tions than a finding of “ancient title”.141 According to Ruderman, historical title
as a basis for claim would be very similar to prescription, while ancient title would,
in practice, be associated with discovery of a territory as well as appropriation via
occupation.142
It would appear that an examination of a claim of historic title as a self-ex-
isting norm being a source of sovereign authority and a basis for resolving ter-
ritorial disputes, would not require a particular differentiation between the vari-
ous specific forms of this title.143 In terms of systemic efficiency and coherence,
the more appropriate approach is to recognize that historic title constitutes legal
unity, although its meaning, importance and construction may undergo changes
in accordance with the principle of intertemporality. The use of varying termino-
logy would not then coincide with the creation of varying legal forms, but only be
a means of expression of the evolution of title over time. Thus, the terminological
issue should not lead to any breakdown of the concept of historic title, as claimed
by Norway in the ICJ in its dispute with Great Britain.
If we decide that “original title” is a synonym for historic title, then in ac-
cordance with the reasoning in the advisory opinion given by the ICJ in the matter
of Western Sahara, it would not be possible to connect the consolidation of historic
138
139
140
B. L. Ruderman, The Doctrine of Ancient Title: Unknown Origins, Uncertain Future,
24 San Diego Law Review (1987), pp. 780 and 785 (“The doctrine of ancient title derives
from this concept of the seas as sovereignless territory.”).
141
Ibidem, p. 782; p.788 (“Because ancient title is not an assertion of dominion over
waters which are the property of the community of states, a state making an ancient title
claim has a lesser burden than one asserting historic title.”).
142
Ibidem, pp. 783-6.
143
Ruderman, however, introduces a specific form of interdependence (“The legitimacy
of ancient title must derive, in part, from the acceptance of historic title,” Ibidem, p. 789).
96 Artur Kozłowski
title with the consequences of unilateral acts in the cases of territories inhabited
by tribes or peoples having certain form of a social and political organisation. The
ICJ concluded that such territories could not be regarded as terrae nullius, and
that in the case of such territories the acquisition of sovereignty was only pos-
sible through agreements concluded with local rulers.144 Such titles would then
be secondary titles (derivative roots of title).145 It would appear that this historical
qualification should be viewed in a colloquial sense. The reasoning of the ICJ once
again confirmed, albeit indirectly, the importance of intertemporality and flexibil-
ity in the construction of historic title. A State can rely on historic title regardless
of whether it is primary or secondary, depending on historical fact, the stage of
development of international law, and the existence, or not, of competing claims.
Thus the concept of historic title may be invoked as a legal basis for the exercise of
sovereignty over territory not previously subject to any authority (terra nullius),
and may equally be applied, via historical consolidation, to the formation of title
over territory already formally governed by another State.146 In this sense, historical
title takes on the character of a derivative title sanctioned by the international
community. It can thus be said that the international community–via its engage-
ment in the creation of international norms, rules, and principles, set together
with their axiology–opens the path to consolidation of historical title. Without
the input of the international community, the process of consolidation would be
either impossible or ineffective. Such an approach to the concept of consolidation
of historical title allows for the avoidance and overcoming of terminological issues
and problems associated with the historical-legal interpretation of title.
144
Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 39, para. 80 (“Whatever dif-
ferences of opinion there may have been among jurists, the State practice of the relevant period
indicates that territories inhabited by tribes or peoples having a social and political organiza-
tion were not regarded as terrae nullius. It shows that in the case of such territories the acquisi-
tion of sovereignty was not generally considered as effected unilaterally through ‘occupation’
of terra nullius by original title but through agreements concluded with local rulers.”).
145
Ibidem.
146
Compare, however, the declaration of the ICJ in the French-British dispute.
The Court stated that, since both parties were claiming historic title (original or ancient ti-
tle), the principles associated with the formation of title to no-man’s land (res nullius) could
thus not be applied.
5. LEGAL TITLES OF NATIVES (INDIGENOUS INHABITANTS)
The appropriateness of the construction of historic title taking into con-

sideration also its division into primary and derivative titles requires a summary
examination into the historical-legal treatment of the legal rights of the original
inhabitants (natives) of disputed territories. This question is highly significant
inasmuch as if natives were recognised as having a valid title under international
law to the territories they occupied, then by definition such historical title was,
during certain periods, ineffective in its application, which highlights the need for
modification of its construction.147
It seems that under current conditions the administration of territories by
original natives does not rise to the level of sovereignty. Under common law sys-
tems, the legal doctrine labelled as “aboriginal” (Canada) or “native” (Australia)
title148, or the doctrine of “indigenous title”149 all concern the sphere of restitution
for land claims brought by the legally recognised representatives of indige-nous
natives in accordance with national law.150 This doctrine recognizes that
those customary indigenous laws regarding land ownership which preceded
common law should be recognized as title generating. In doing so the com-
mon law doctrine raises fundamental issues about the legal repercussions
of the past. The recognition of indigenous peoples’ land rights through the
doctrine relies on the idea that the colonization of indigenous territories has
not completely “extinguished” indigenous peoples’ land rights, as such rights
have “survived” the colonial conquest. Therefore it recognizes indigenous
peoples’ contemporary land rights based on historical arguments that pre-
dated colonization.151
From the point of view of international law, one can only indicate the pos-
sible connection of such national law with the doctrine of protection of human
147
Cf. J. T. Gathii, Geographical Hegelianism in Territorial Disputes Involving Non-Eu-
ropean Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/
Namibia), 15 Leiden Journal of International Law 581 (2002), pp. 620-1.
148
J. Gilbert, Historical Indigenous People’s Land Claims: A Comparative and Interna-
tional Approach to the Common Law Doctrine on Indigenous Title, 56 International and Com-
parative Law Quarterly 583 (2007), p. 585.
149
Ibidem, p. 611.
150
Ibidem, p. 585; see also D. Brown, Native Title to Land in Colonised Nations, 21 Inter-
national and Comparative Law Quarterly 355 (1972).
151
Gilbert, supra note 148, p. 590 (“Aboriginal or native title is a right to land.
It is a collective title under which an indigenous community has the right to its use and
occupation.”).
98 Artur Kozłowski
rights, to the extent that property related rights can, at the normative level, be
regarded as human rights.152 Thus international law plays only a supporting role
in this sphere. It does not offer historical-legal rights which would give rise to
a construction of historic title, which would in turn allow for raising a claim of
sovereignty over a disputed territory.153 At best, it appears that the granting of
legal rights to indigenous native populations can prevent a territory from being
deemed no-man’s land (res nullius).154
If a given territory is occupied by people having a social organisation not
lower than that set forth by the ICJ in its advisory opinion concerning Western
Sahara, that would mean that such a territory could not be treated as res nullius.
In terms of historical-legal title, this does not mean that its formation is impos-
sible, but it does complicate matters.155 This connection is applicable as well in
the variant whereby a particular level of social ties leads to the direct granting to
a particular social group of the right to self-determination, taking into account
the relativisation of the construction of legal title as well as its intertemporality.
CONCLUSION
The strength of historical title as a source of a claim of sovereign rights to

a territory derives both from the specific nature of international law as well as
from the character of territorial disputes. It seems hard to disagree with the as-
sertion that the resolution of territorial disputes between States depends on the
determination of which State has “better title”.156 This determination has to take
into account many institutions, principles, and rules. The task of judges is to weigh
the strength of specific arguments and put them in the proper historical context,
152
One could also point to Article 27 of the International Covenant on Civil and
Political Rights (1966), which links the cultural protections of indigenous inhabitants with
certain traditions concerning the use of some types of territory (Ibidem, p. 598). See also:
G. Alfredsson, Indigenous Populations, Protection, [in:] R. Bernhardt (ed.), supra note 117,
pp. 947-8.
153
See e.g., G. Alfredsson, Treaties with Indigenous Populations, [in:] R. Bernhardt
(ed.), supra note 117, pp. 952-3.
154
Gilbert, supra note 148, p. 604.
155
In terms of the conventional terminology described earlier, this would be equiva-
lent to the replacement of ancient title with historic title. See also: Johnson, supra note 120,
pp. 218-220.
156
Op.), p. 153, para. 14 (“The science of international law does not have the rigour and logi-
cal certainty of the mathematical sciences, in which one line of reasoning must inevitably
the choice of which conditions reaching a proper decision. There is nothing to

indicate that, given appropriate circumstances, the source of title in a particular
dispute may not be based on the concept of historic title.157 Reliance on historic
title is aimed at connecting, via the application of legal norms, the administration
of a particular territory with a particular State.
It is also difficult to disagree with the assertion that “[i]nternational law
today possesses principles and rules whereby it can create a ‘framework’ for his-
torical facts–bring them under control, interpret them, give them a legal meaning
and draw from them all of the conclusions that they entail in law.”158 Reliance in
the first instance on historical context would seem to be a natural and “traditional
key to deciding territorial attribution”.159
The concept of historic title is a separate legal principle with its roots in cus-
tomary law, obviously with the caveat that it may be transferred to the level of agree-
ment by means of an international treaty. Taking into consideration its normative
character, reliance on the legal concept of historic title is capable in appropriate
cases of leading to an unequivocal and direct resolution of a territorial dispute.
In order to create an historic title however, certain defined criteria must be
met. The most important is that a State must demonstrate a continuous and ef-
fective exercise of sovereignty over a specific territory over a sufficient course of
time, simultaneous with the existence of the necessary acquiescence or tolerance
on the part of third States. In order to properly apply this legal construction, cer-
tain modifying factors must be taken into account. Primary among them is that the
geographical features of the disputed territory and vital interests of involved parties.
The systemic conditioning built into the concept of historic title requires that its
intertemporal aspect be taken into account, i.e. that historical facts be interpreted
taking into account the existing state of international law at the time they arose.
A claim of historic title is not a method that blocks the introduction of con-
trary evidence. It does not have a character of iuris ac de iure a presumption. His-
torical claims are also covered by succession. On the other hand, the legal concept
of reversion cannot be used to support a claim of historic title if, in accordance
with the principle of intertemporality, a State’s claim of sovereignty expired at
completely exclude or render superfluous any other. This is demonstrated by the fact that, in
international law, one does not halt at the first result in a territorial award, but then goes on
to see whether a ‘better title’ exists.”).
157
See e.g., Ibidem, p. 172, para. 86: (“… Qatar holds a better title, consisting of
its original title to the Hawars.”); Ibidem, p. 173, para. 90 (“absolutely crucial issue of
historical title”).
158
159
100 Artur Kozłowski
a given moment in the historical past. Sometimes thorny issues may arise between
the proper adjudication of recognised historical claims and the established legal
right of a people to self-determination. This leads us to the conclusion on the
relative character of legal effects arising out of historic title. In particular circum-
stances, the right of a people to self-determination may lead to the extinguishment
of an historic title.
Historic title is just one of many legal instruments which may be raised
by parties and used by judges to decide a territorial dispute. If a claim of historic
title in given circumstances may be deemed to have been extinguished as a result
of its relative weakness, the elements advanced in support of its construction, for
example uti possidetis or effective occupation, may be used to support other types
of legal claims.
Taking into account its construction and its systemic conditional criteria,
historical title gains maximum effectiveness when conditions exist which would
support a finding of its incremental consolidation. This involves a multi-dimen-
sional interpretation in reliance on particular elements which, taken together,
create a complicated factual state in a particular territorial dispute. On the other
hand, consolidation of historical title is not an argument which can be used by the
indigenous native inhabitants of a territory, since their arguments are not based
on claims of sovereignty.

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XXX POLISH YEARBOOK OF INTERNATIONAL LAW

THE LEGAL CONSTRUCT OF HISTORIC

in accordance with international legal standards, be recognised as a subject with

Norway characterised its claim of historical title to the disputed territories

It would appear that the reasoning applied by Norway is more convincing

2. CONSTITUTIVE ELEMENTS OF HISTORIC TITLE

When discussing historic title as a legal construction, one has to indicate

annexation, even if the annexation is classiﬁed as some form of sanction against

As Yehuda Blum stresses, the time factor in making a determination of historic

in nature, it is important that it culminates before the ﬁnal formation of histori-

facilitate the exercise of sovereignty over them. This is clearly a contradiction,

3. SYSTEMIC DEVELOPMENTS IN THE CONSTRUCTION

other additional, complementary concepts may condition the historical/legal cor-

found Yemen’s claim to be an anachronism, separating the legal eﬀects proposed

territorial integrity.77 In such circumstances, in the absence of an extraordinary

legal mechanism and constitutive elements whereby such a transfer of sovereign

4. CONSOLIDATION OF HISTORIC TITLE

The extensive and complicated system of relativisation of the legal elements

In addition, it seems to allow for the indirect incorporation of various threads

be deducted from their conduct, including international agreements concluded by

acquisitive prescription. The uncertainty relating to determination of a precise

5. LEGAL TITLES OF NATIVES (INDIGENOUS INHABITANTS)

The appropriateness of the construction of historic title taking into con-

The strength of historical title as a source of a claim of sovereign rights to

the choice of which conditions reaching a proper decision. There is nothing to

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