Table Of ContentHISTORIC TITLES IN
INTERNATIONAL LAW
HISTORIC TITLES
IN
INTERNATIONAL LAW
by
YEHUDA Z. BLUM
M. JUR. (JERUS.), PH. D. (LOND.)
Lecturer in International Law, Hebrew University of Jerusalem
Assistant Legal Adviser, Israel Ministry for Foreign Affairs
Member of the Israel Bar
FOREWORD BY
D. H. N. JOHNSON
Professor of International and Air Law
University of London
MARTINUS NI]HOFF / THE HAGUE / 1965
ISBN 978-94-015-0201-6 ISBN 978-94-015-0699-1 (eBook)
DOl 10.1007/978-94-015-0699-1
Copyright, 1965, by Martinus Nijhoff, The Hague, Netherlands
Softeover reprint of the hardcover 1st edition 1965
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
To the memory
of my grandfather
JOSEPH DUX
who perished inJune 1944
in the German extermination camp of Auschwitz
at the age of 84
FOREWORD
The question of Historic Titles in International Law has been much
discussed in recent years. In particular, it was an issue of some im
portance in several international arbitrations, such as the Gulf of Fon
seca case, decided by the Central American Court ofJ ustice; the Island
of Palmas case, decided by Judge Huber as sole arbitrator, under the
auspices of the Permanent Court of Arbitration; the case concerning
the Legal Status rif Eastern Greenland before the Permanent Court of
International Justice; and, more recently still, the cases concerning
Fisheries (United Kingdom v. Norway); Minquiers and Ecrehos Islets
(U nited Kingdom v. France) ; Certain Frontier Land (Belgium v. N ether
lands); and Temple rif Preah Vihear (Cambodia v. Thailand), before the
International Court of Justice. Historic Titles are probably also a re
levant factor in a number of territorial disputes that have not yet been
submitted to arbitration or judicial settlement.
The recent controversies over the proper breadth for the territorial
sea and the exclusive fishing limits of coastal States have brought to
the fore new aspects of the problem. There is, for instance, the question
whether States, whose nationals have for a certain period of time been
accustomed to fish in areas of sea relatively close to the coasts of other
States, have acquired for those nationals a right, in the nature of an
historic right, to continue to fish in those areas, notwithstanding an
extension of their territorial sea and their exclusive fishing limits by
the coastal States concerned. There is also the question whether the
right of innocent passage, normally regarded as a right confined to the
territorial sea, may not also exist through the internal waters of certain
States where the States concerned have recently extended either their
internal or their territorial waters. Whether such an exception will be
permitted or not will almost certainly depend on historic factors. These
questions were much discussed at the United Nations Conferences on
the Law of the ,Sea, held at Geneva in 1958 and 1960.
vm FOREWORD
The question of historic titles is not new. But, in the past, there has
been a tendency not to see the problem as a whole. Writers have been
apt to treat the problem as one appertaining exclusively to maritime
territory e.g. the question of the so-called "historic bays" or "historic
waters." Alternatively, the problem has been regarded as merely in
cidental to the rather sterile controversy as to whether prescription
is or is not a recognised means of acquiring title to territory under inter
national law.
The decisions of international tribunals mentioned above, and dis
cussed at great length by Dr. Blum, show that, while the maritime
factors are important, the question of historic titles deserves to be con
sidered as a whole and not exclusively in the maritime context. It needs,
for instance, to be considered in conjunction with such associated
doctrines as acquiescence and estoppel. It needs to be considered too
in relation to the whole process whereby international customary law
is formed. Thus considered, the doctrine of historic titles can be shown
to play an intelligible and constructive role in international law.
It is my belief that Dr. Blum's book contributes greatly to the clarifi
cation of these, and many other, questions. I am therefore grateful to
have the opportunity in this Foreword to welcome it as a timely and
valuable contribution to the literature of international law.
D. H. N. JOHNSON
London, February 1965
PREFACE
This book, which has grown out of a Ph. D. thesis submitted to the
University of London in 1961, is a study of the Historic Title, one of the
titles to territory recognized by international law. During my two
years of study at the London School of Economics and Political Science
I had the privilege of working under the supervision of Professor D. H.
N. Johnson, Professor of International and Air Law in the University
of London. His personal interest in the progress of my work as well as
his constant guidance and encouragement carried me through the
difficulties well known to those who have engaged in research oft his kind.
Dr. D. W. Bowett, Fellow of Queen's College, Cambridge, external
examiner of the thesis, and Dr. Shabtai Rosenne, Legal Adviser to the
Israel Ministry for Foreign Affairs, Member of the International Law
Commission and Associate of the Institut de Droit International, have
read the manuscript and were kind enough to make valuable obser
vations on it. Needless to say, I alone bear responsibility for the views
expressed in the book.
I wish to thank the staff of the libraries of the London School of
Economics and of the Institute of Advanced Legal Studies, University
of London, for their patience and consideration.
I wish further to express my thanks to Mr. Henry Shaw, Director of
the B'nai B'rith Hillel Foundation in London, fOI his interest and the
assistance he rendered to me during my stay in London.
Thanks are also due to the publishers for their courtesy and for
bearance at all stages of the production of this book.
It is a time-honoured Jewish custom for an author, on completing his
work, to give thanks to the Almighty. This I do now in all humility,
especially as a survivor of the Bergen-Belsen concentration camp and
as one belonging to a generation of Jewish youth in Europe, few of
whom lived to see the end of the Second World War. This book is
dedicated to the memory of my grandfather who, together with some
x PREFACE
sixty members of his family, was among the victims of what Sir Winston
Churchill called "a monstrous tyranny, never surpassed in the dark,
lamentable catalogue of human crime" (House of Commons, May 13th,
1940).
It is my sincere wish that this book may make a modest contribution
to international law, which it is imperative to strengthen if we are
to save succeeding generations from catastrophes like that which so
recently threatened the very existence of humanity.
Hebrew University of Jerusalem,
Adar I, 5725 I February, 1965 Y. Z. B.
TABLE OF CONTENTS
Foreword by D. H. N. JOHNSON VII
Preface IX
Table of cases XV
List of abbreviations XXI
CHAPTER 1. INTRODUCTION
1. The acquisition of territory: the evolution of the modern
concept
2. The acquisition of territory: the differing approach of aca-
demic and practising lawyers 2
3. The various modes of acquiring territory - Classification 3
4. Plan of the work 4
CHAPTER II. PRESCRIPTION IN INTERNATIONAL
LAW 6
5. The distinction between acquisitive prescription and extinc-
tive prescription 6
6. Prescription as a private law concept 6
7. Private law concepts in international law 7
8. Divergence of the definition of prescription between the
continental and English legal systems 8
9. Prescription in municipal law - Roman law 9
10. Prescription in municipal law - English law 10
11. Prescription in municipal law - Conclusions 11
12. Doctrinal reasons for the existence of prescription in inter-
national law 12
xu TABLE OF CONTENTS
13. The existence of prescription in internationallaw - Opinions
of writers 15
14. The existence of prescription in international law - Judicial
decisions rendered by international tribunals 20
15. The existence of prescription in international law - Judicial
decisions rendered by municipal courts 29
16. The existence of prescription in international law - Practice
of States 34
CHAPTER III. ACQUIESCENCE AS THE JURIDICAL
BASIS OF AN HISTORIC TITLE 38
17. General 38
18. The creation of a customary rule of international law - The
generality of practice and the time element 39
19. The creation of a customary rule of international law - Opinio
juris and acquiescence 41
20. The consensual basis of customary international law 46
21. Recognition and acquiescence 49
22. The role of the time element in the creation of special custom-
ary or "historic" rights 52
23. Some historic rights viewed as remainders of more extensive
ancient rights 55
24. Non-exclusive historic rights 57
25. Acquiescence versus prescription as the legal basis of historic
rights 59
26. Acquiescence as the juridical basis of historic rights - Opinions
of writers 60
27. Acquiescence as the juridical basis of historic rights - Opinions
of learned bodies 65
28. Acquiescence as the juridical basis of historic rights - Deci-
sions of international tribunals 67
29. Acquiescence as the juridical basis of historic rights - Deci-
sions of municipal courts 78
30. Acquiescence as the juridical basis of historic rights - State
practice 81
31. Acquiescence and estoppel 90
