extreme rigours of climate occupation in the technical sense may not be possible. Claims on the basis of geographical contiguity have occassionally been made but they have no sound footing. Expeditions have frequently been sponsored and encouraged by the states. The strategic importance of these regions is increasingly being felt. The 'sector principle' has been sought to be applied by different countries. The res communis formula for these regions as in the case of the high seas offers no practical solution. A new form of occupation is designed through the air bases and the weather stations built in different sectors. The question of rivalry regarding these regions may ruin interstate amity. The possibility of internationalization of these regions under some control or supervision of the U.N. should be explored,* though in the case of the Arctic regions the Sector principle on the basis of geographical propinquity has been sought to be applied.

CESSION:

42

Another important method of acquisition of title to territory is Cession. It is "the transfer of sovereignty over state territory by the owner state to another state". If title by occupation is akin to the conception of property ownership in private jurisprudence with the requirements of corpus and animus,15 cession as a mode would remind us of "title by deed of transfer in municipal law".46 The transfer of title by cession usually takes place through a treaty between the two parties, the ceding state and the acquiring state. The treaty of cession stipulates the exact extent of territory ceded and may also lay down the conditions of cession which would vary from case to case. The treaty rights of cession may be subject to constitutional restrictions the violation of which may invalidate the treaty of cession." The parties in a treaty of cession "must be states", and "only those cessions in which both subjects are states concern the Law of Nations".48

42 There is a growing volume of literature on the question of the Arctic and Antartic regions. Jessup-Sovereignty in Antartica. A.J.I.L., 1917; Oppenheim (Lauterpacht) Op. cit., I, F.N. 556-7; Daniel-Conflect of Sovereignties in the Antarctic, Year Book of World Affairs, 1949; Svarlien-Op. cit, pp 173-7; Two Articles by Hayton and Toma in A.J.I.L., 1956; Hyde- Op. cit., I pp. 347 355; Hackworth-Digest I, pp. 449 ff.

43

On the question whether the U.N. can exercise jurisdiction on the Antarctic region, see Lauterpacht-"Contemporary Practice af the United Kingdom in the field of International Law-Survey and Comment", only pp. 409-413 of this Article in International and Comparatiye Law Quurterly, 1956.

44 Oppeheim (Lauterpacht)-Op. cit., p. 547

45 Lauterpacht--Private Law sources and analogies of International Law (1927).

pp. 99-104.

46 Fenwick-Op. cit. p. 358.

47 See Oppenheim (Lauterpacht) Op. cit. § 497 for details. 48 Oppenheim (Lauterpacht)-Op. cit, p. 547.

There can be cession of a part of the territory or of the whole. In the latter case it becomes an instance of total merger. And the treaty of cession may be "the outcome of peaceable negotiations or of war'. The former is a case of voluntary cession, the latter of forced cession The motives in the case of voluntary cession may be gift or merger. And in the past during the days of absolutism there were cessions in marriage contracts or by testamentary disposi tions. For better frontier fixation exchanges of territory can also be found. And there have also been sales, pledge and lease.

Cession, it is argued, should be followed by physical possession of the ceded territory by the new owner state. But technically and formally the validity of cession does not depend on the act of possession, though that is necessary for the acquiring state to make its authority effective in the ceded area.

49

Third states normally can have no right to veto cession between other states. But exceptionally this right may emerge on account of the right of pre-emption of the vetoing state on the basis of a previous treaty, or if the cession is a forced one through unlawful war. But though not having a veto right third states, it is argued," can have a right to intervene in the interest of balance of power. It is doubtful if this stand will be accepted by all today in the U.N.' era where the 'balance of power' principle has been abandoned. The third state cannot have the freedom of unilateral intervention but may and should refer the case to the Security Council.50

Cessions involve transfer of territory and the inhabitants thereof to the sovereignty of the new owner state. The idea that men should not be tossed this way and that according to the mercy of the monarchs and the leaders has raised the question of plebiscite in the case of cession. Grotius 51 was in favour of plebiscite in a sense. But inspite of the support of Grotius the question of plebiscite was "abandoned by diplomats, condemned by the majority of writers on international law, and forgotten by the world at large”. Yet the issue came to the fore after the First World War in connection with the principle of self-determination." The greatest champion

of plebiscite was Woodrow Wilson himself who inimitably said that

49 Oppenheim (Lauterpacht)-Op. cit. p. 551; Q. Wright-A study of War (1942) Vol. II. p 772.

50 See my book-International Law Re-defined: Chapter on the Compulsive methods under the U.N. Charter.

51 De Jure Belli Ac Pacis. Eng. Trans Bk. II, Ch. VI. Sec. 4. p. 261-"That Sovereignty over a part of a people cannot be alienated by the people against the will of the part.' 52 Sarah Wambaugh--Plebiscites since the World War (1933) Vol. I. p. 3,

4-2016P-VI

"no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property".5 Actually several 19th century treaties of cession contained plebiscite as a condition of their validity. But inspite of these developments plebiscite as a condition of validity of cession has not been established under international law. In other words international law, as it is now, permits cession even without plebiscite.

54

If cession may comprise the totality of the territory of the ceding state and may amount to merger, a point may be raised if India's title to Kashmir may not be justified under the international law of cession The Instrument of Accession of an Indian native state could not be regarded as a Treaty before independence as the native states were not sovereign.55 But after transfer of power Kashmir regained its paramountcy and became a sovereign state 56 and in that capacity acceded to India. May not this accession be viewed as a kind of cession involving totality of territory and amounting to merger with the Indian Federation? The question of plebiscite, it has been seen, is not necessary to validate cession in International law, though necessities of international policy may on occasions demand it. The offer of plebiscite by India was just an extra legal de Locratic offer. And if India can thus claim a valid title to the territory of Kashmir on account of the voluntary cession of the latter, does not Pakistan become guilty of aggression and transgression of law from this standpoint also? And may it not be argued that people's will, for which plebiscite was offered and planned, has been already known through Constituent Assembly of Kashmir and hence plebiscite is now unnecessary? India's title to Kashmir can be justified along this line. But this stand may be open to challenge if plebiscite be viewed as a necessary condition of the legal validity of Kashmir's accession.

CONQUEST AND SUBJUGATION

Conquest with subjugation and annexation has been a traditional method of acquiring title." Title could be earned by this method

But

53 Quoted from the Congress Record 1917 in Hackworth-Digest I, p. 424. the Unites States opposed a plabiscite in the case of the Danish West Indies in 1916. See Hackworth--I. p. 422.

54 Oppenheim (Lauterpacht)-Op. cit. pp 551-2; Hall-International Law § 9; Fenwick--Op. cit, p. 363; Svarlien-Op. cit,, p. 180; Wambaugh --Op. cit., p. 491.

1947

55

56

K. T. Shah-Federal Structure (1937, p. 90

Lord Mountbatten's Address to the Conference of Princes and Ministers, July 25,

57 There is a difference between conquest and Subjugation-See Oppenheim.

as war was a legally valid weapon for both maintaining and changing rights. This right to title by conquest justified the charge againstinternational law as a law of power. With renunciation of war under the League Covenant, the Kellogg Pact and the U. N. Charter, title by conquest and subjugation loses validity over that wide range where use of force becomes illegal. And in this respect the U. N. Charter goes much further than the Covenant and the Kellogg Pact as it bans 'force-use and threat of force-and not simply 'war'. 58 There are gaps no doubt. But over that wide range where use of 'force' is illegal, no valid title through conquest and subjugation can accrue. It may still be theoretically valid for nonmembers of the U.N., though in practice the possibilities are limited. The mandates and Trusteeship system also refutes the theory of conquest and annexation.

It is in connection with this trend in law that the Stimson"" doctrine of non-recognition of January, 1932, becomes significant. It is a doctrine or a policy as the United States "does not intend to recognize" any situation etc. illegally brought about. It was reasserted in the League Special Assembly Resolution in March, 1932, which made it "incumbent upon the Members of the League of Nations not to recognize" any situation etc. brought about by illegal means. We find herein an attempt to transform "the Policy of non-recognition into an obligation of non-recognition." Such obligation of non-recognition was repeated again in Art. 2 of the AntiWar Treaty of Non-Aggression and Conciliation of 10th October, 1933, concluded between a nu nber of American States: in Article 11 of the Convention°1 on Rights and Duties of states signed at Montevideo on 26th December, 1933; and was forcefully reaffirmed at the Eighth International Conference of American states in 1938. In the U.N. era we find emphasis on this obligation of non-recognition in Article 11 of the Draft Declaration on Rights and Duties of states prepared by the International Law Commission in 1949.

60

62

This principle of non-recognition if elevated into a rule of positive international law may play a very important and creative

58 See my book-International Law Redefined, Chapter on Renunciation of War under the U.N. Charter.

59 Lauterpacht-Recognition in International Law (1947), pp. 415 ff. and Oppenheim (Lauterpacht)-Op. cit. I, pp. 142.5 for an important and analytical discussion of the

doctrine.

60 La terpacht-Recognition. p. 419.

61 Sohn-Cases on World Law (1950), pp.

269-270.

62 Report of the International Law Commission (First Session) 1949-General Assembly official Records: Fourth Session. Supplement No : 10 (A/925), pp. 7.10.

role. 63 It may, I believe, lend to international law a teleological element. "It prevents any law creating effect of prescription" born out of illegal acts. It may be weapon to undo the law creating effect of illegal and unjust facts. By not recognizing illegally and unjustly acquired title it may ultimately secure the elimination of that title and the triumph of the original title based on law and justice. Properly usel, judiciously applied, impartially formulated in the general interest of peace and world community it may be a very useful weapon for creating and enforcing a just law and thus lending to international law a functional character.

64

PRESCRIPTION

Prescription as a method of acquiring title has raised differences of opinion. Many defend it; others reject the same. It is in connection with prescription also that recognition becomes significant. It means the acquisition of sovereignty through "continuous and undisturbed exercise" of the same over the territory in question for a time long enough to create a 'general conviction' in its favour.

65

66

Two elements emerge as important-continuous and undisturbed exercise; and the length of time. The first element is illustrated in various cases and particularly in the Chamizal Arbitration7 case (1911) and the Palmas Island cases (1928). In the Chamizal Arbitration case a new element was laid down when the Commissioners argued that "another characteristic of possession serving as a foundation for prescription is that it should be peaceable, "and not only continuous and undisturbed." The other element relates to the question of length of time. There is no agreement on this. Grotius had objections to usucaption of Roman law but recognized prescription for a length of time "exceeding the memory of man"."9 Others talk of possession for "some length of time."

Prescription may be of two types-acquisitive and extinctive. Acqusitive prescription again may take two forms-one immemorial possession and the other a form of prescription akin to usucapio.70

63 For very good discussion of this aspect see Lauterpacht-Recognition §§ 119-124, 128(3), 129. 64 Grotius-De Jure Belli Ac Pacis Eng Tran. Bk. II., Ch., İV., Sec. 2, pp. 220-221 & Vattel, Wheaton, Phillimore, Hall and Many others- they even went beyond Grotius. 65 Oppenheim (Lauterpacht)-Op. cit, p. 576 for the definition of Prescription. See Hackworth-- Digest I, p. 432 ff.

Hackworth-Digest I, pp. 441-2 & pp. 411-413.

66

67

68

69

De Jure Belli Ac Pacis Eng. Trans., p. 224., Bk. II. Ch. IV., Sec. 7.

Green-Op. cit. p. 366.

70 Johnson-Acquisitive Prescription in International Law in B.Y. of I.L. 1950 pp. 332 ff for details; limited space does not permit discussion.