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Modes of acquiring territories: acquisition by prescription. ...

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2. Acquisition of Territory by Prescription Acquisition of territory by prescription is the peaceful and continuous exercise of sovereign activities for a long period of time over territory subject to the sovereignty of another state.In other words, it means a continued occupation over a long period of time by one state of territory actually and originally belonging to another state.1 Establishing title by way of prescription requires stricter proof and a longer period of the display of state authority as compared to establishing title by occupation. 2 There must be an intention to acquire the territory and an act intended to exercise sovereign authority. William Edward Hall and Alexander Pearce Higgins in the book ‘A treatise on International Law’, stated that the title by prescription arises out of a long-continued possession, where no original source or proprietary right can be shown to exist, or where possession in the first instance being wrongful, the legitimate proprietor has neglected to assert his right or has been unable to do so.3

A state may acquire a territory by prescription only when some conditions are fulfilled. The first condition is the possession must be exercised à titre de souverain. Possession à titre de souverain is the way a state claiming and exercising sovereignty over its territory. 4 It implies that a State that claims acquisition by prescription must act, with regard to the concerned territory, absolutely and without recognition or deference to the sovereignty of any other State over the same territory. For a State to fulfill this condition, it must manifest the intention and display the authority to do so. This can be seen in the case of Malaysia v. Singapore, (Case concerning the Sovereignty over Pedra Branca/Pulau Batu Puteh)5. In this case, a dispute arose between Malaysia and Singapore over the title to sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. Each State pointed to a number of activities that it undertook in respect of the disputed territory and which it believed constituted possession à titre de souverain. Singapore put forward such acts as investigating shipwrecks on the island, maintaining and operating a lighthouse, etc. Therefore, in respect of these facts, the court said that Singapore constituted possession à titre de souverain.

1 (Qadir, 2012) 2 (McHugo, 1998) 3 (Hall & Higgins, 1924) 4 ("On state’s acts à titre de souverain over territories and its implications in international law: with additional discussions on acts à titre de souverain issues relating to territorial disputes of China and its neighbours", 2015) 5 [2008] ICJ Rep 12

The second condition of prescription is that the possession must be peaceful and uninterrupted. Under this condition, there must be no active opposition by the State which has the original title to the territory to such activities by another State as impinge on its title. In other words, there must not be any protest or objection by the former sovereign. In the case of Cambodia v. Thailand (Case concerning the Temple of Preah Vihear)6, Thailand had acquiesced for many years through its failure to object to a map showing that the temple is on the Cambodian side. Thus, Thailand can be estopped from denying such fact. Besides, in the case of Netherland v. United States (the Island of Palmas case)7, the court held that the absence of protests by Spain against the exercise of territorial rights by Netherlands amounted to territorial acquisition. Similarly, in the case of Mexico v. United States (The Chamizal Arbitration)8, a dispute arose between USA and Mexico over Chamizal tract, which consisted of about 600 acres and lies between the old bed of Rio Grande. The USA argued that its claim by prescription arose by virtue of ‘undisturbed, uninterrupted, and unchallenged possession of territory since the treaty of 1848.” The tribunal rejected this argument. The Arbitral Panel held that the diplomatic protests by the Republic of Mexico prevented United States from acquiring its territory.

The third condition is that the possession must exist for a reasonable length of time. However, it is difficult to calibrate what constitutes a ‘reasonable time’ for the purpose of acquisitive prescription. Some writers have formulated various tests concerning the reasonable time. For Grotius, it has to be at least 100 years, for which he says: “Time beyond the memory of man (was not very different from a century) …because the common term of a human life is a hundred years, which commonly included three generations of men.”9 As the requirement of reasonable length of time for possession is concerned, there is no consensus on this regard. Thus, the reasonable length of time would be decided on a case by case basis.

BIBLIOGRAPHY Grotius, H., & Neff, S. (2001). Hugo Grotius On the Law of War and Peace. Kitchener: Botoche Books. 6 [1962] ICJ Rep 6 7 [1928] II RIAA 829 8 [1911] 11 RIAA 309 9 (Grotius & Neff, 2001)

Hall, W., & Higgins, A. (1924). The Treatise on International Law (8th ed., p. 143). Oxford: Clarendon Press. McHugo, J. (1998). How to Prove Title to Territory: A Brief, Practical Introduction to the Law and Evidence. Boundary and Territory Briefing , Volume 2 (No. 4), p.5. On state’s acts à titre de souverain over territories and its implications in international law: with additional discussions on acts à titre de souverain issues relating to territorial disputes of China and its neighbours.

(2015).

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http://jtp.cnki.net/bilingual/detail/html/DBYL201501007 Qadir, A. (2012). Acquisition of Territorial Sovereignty. Retrieved 8 December 2019, from http://internationallawu.blogspot.com...