Chapter : S tate Jurisdiction over L and Territory
B. ACQUISITION OF TERRITORIAL SOVEREIGNTY THROUGH POLITICAL EVENTS
) The Relevance of Historical Context
Since its earliest days, international law has provided rules on what acts legitimately give a
people sovereignty over land. Classic “political” methods by which states have asserted legal
territorial sovereignty have included discovery (whether or not followed by eective occupa-
tion), eective occupation, prescription, cession, and conquest. While eective possession
or occupation has always been, and continues to be, the key basis in international law for
asserting sovereign title to land, it should be noted that the legal doctrines governing the
means by which this possession is established — and the nature and extent of the occupation
required or permitted — have shifted with time. However, as seen above, even those means
that are now discredited — such as discovery and conquest — continue to have relevance in
modern international law through application of the doctrine of intertemporal law. It is thus
necessary to understand both those bases of title that have been discredited in modern inter-
national law as well as those that today receive its approval. We review each in turn below.
Before doing so, it is important to recognize that most now-obsolete bases for assert-
ing sovereignty over territory were legally constructed in such a way as to legitimize land
acquisition by the powerful. This approach was abetted by a heavily ethnocentric approach
to dening the legal concepts of statehood and sovereignty. Consider, for example, the fol-
lowing comments on the early use of international law as a vehicle for colonialism in Africa:
Early international legal doctrine itself appeared to sanction colonization, the acquisition
of territory by a recognized state and the imposition of its sovereignty over such territory.
Such taking could occur as occupation, subjugation, or cession. In reality, the coloniz-
ation of Africa utilized any of the three methods, or a combination thereof, although
according to international law at the time only occupation was purportedly legal, since
no recognized states existed in Africa. . . .
Without much knowledge about the continent, early European jurists and publicists
had decided that much of Africa was a no-man’s land that could be brought under legal
occupation. Territories inhabited by “persons who are not recognized as belonging to the
great family of states to whom the international law applies,” or “savage, barbarous tribes”
belonged as of right upon discovery to the “civilized and Christian nation.” . . .
. . . Rules of “international law” exclusively crafted and employed by Europeans to
extend their domination of other parts of the world could not have any legality in Africa,
particularly if the eect of their application meant the loss of sovereignty. A Lagos paper
captured the African interpretation of the legality of the Act of Berlin in sharp condem-
natory language: “the world has, perhaps, never witnessed a robbery on so large a scale.
Africa is helpless to prevent it. . . . It is on the cards that this ‘Christian’ business can only
end, at no distant date, in the annihilation of the natives.”
Wars of conquest and fraudulent treaties with African rulers and societies were the
agencies for the eective imposition of European sovereignty. Occupation met with
“tough resistance” almost everywhere as wars of “invasion or pacication” were “dark
with slaughter and destruction.”
This legal heritage has had profound consequences for the structure of the international
community, and its reverberations continue to be felt to this day in the evolution of the rules
Makau W Mutua, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” () Mich J Int’l L
at and – [Mutua]. Reprinted with permission.