Following a Sigmoid Progression: Some Jurisprudential and Pragmatic Considerations regarding Territorial Acquisition among Nation-States
Duncan, John C., Boston College International and Comparative Law Review
Abstract: This article analyzes methods and doctrines used by States to acquire territories. The role of the United Nations in resolving disputes between nations and the inhabitants directly affected by the disputes is also addressed, including the jurisdictional, jurisprudential, and practical considerations of territorial acquisition. Finally, traditional territorial acquisition doctrines are applied to extraterrestrial and outer space acquisition. As Western civilization etched out territories and borders across its known world, international norms of diplomatic behavior appeared in the form of customs. These customs eventually grew into codifications, which in turn grew into the elaborate international system enjoyed and protested today. Laws emerged among international States to formalize the growing body of norms of interaction across them. Modern territorial sovereignty provides the State an "exclusive right" to perform State functions within that territory, but with a realization that no State may exercise its authority within the territorial limits of other States.
Before lands were "possessed" and nation-states emerged, there was territory. For millennia, people have organized themselves into groups, tribes, and nations for community-level protection, kinship, and com- mon identity.1 The laws that emerged in these high-context social struc- tures codified the accepted, informal standards of interaction.2 National boundaries, a relatively recent innovation in human history, character- ize the nation-state and organize the world as we know it; they are purely symbolic but strict limits on identity and connection to higher-order so- cial groups.3 Indeed, as fields of social regulation, both international relations and international law depend heavily on specific definitions in order to function in arenas of ambiguity and fluid inference.4
As Western civilization etched territories and borders across the known world, international norms of diplomatic behavior appeared in the form of customs.5 These customs were eventually codified and grew into the elaborate international system we know today.6 Eventually, laws emerged within societies to formalize this growing body of norms of international interaction.7 In the fourteenth century BC, for example, treaties between Egypt and its neighbors reveal that even hundreds of years ago principles of mutual sovereignty and equality among political entities were firmly entrenched.8 The Greeks developed a similarly complex system of international laws to regulate interactions among their city-states.9
International rules of territorial acquisition, in their modern form, are largely a product of the last five centuries.10 This history suggests their peculiarly European origins; indeed, modern international law of territorial acquisition is almost exclusively a product of Western civiliza- tion, rather than an equitable interaction among all civilizations.11 To be sure, the concept of diplomatic immunity was influenced by Islamic civilizations and the practices of the Ottoman empire, but this influ- ence registered relatively late in the evolution of established European rules of international conflict avoidance that formed during the peri- ods of most European expansion.12
Encounters between Europeans and the indigenous societies of the Americas did not immediately create the basis for determining the rules of intercivilizational interaction, but rather clarified for Europe- ans the need to establish rules for minimizing conflict among Euro- pean Powers.13 The European Powers thus adopted rationales that served their interests without regard for the rights or well-being of the indigenous societies that already occupied lands "discovered" by Euro- pean explorers.14 The Europeans' insistence on adopting universal rules of international interaction is therefore significant; it reflects a departure from the earlier practice of extending hegemony over for- eign peoples. …