ACCRETION

The last method of acquiring title to territory is Accretion. It is "the name for increase of land through new formations "71 These new formations may be artificial through embankments, breakwaters. dykes etc. or natural. The scope of gaining new lands through artificial formations is limited by two considerations. The legitimate interests and rights of the neighbouring states must not be damaged by this policy. And there is again the question of securing permanent victory against the natural forces of water currents and flow.

Natural formations may take the shape of alluvions (slow and gradual process of formation of new land) or avulsions (sudden act of violence). There can again be the birth of new islands. If they rise in the maritime belt they obviously come under the sovereignty of that state and have the effect of extending the territorial waters as they would now be measured from the new point. If they rise on the high seas they become no man's land for the time being and fit objects for occupation.

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Accretion in the case of boundary rivers may lead to complications : If the boundary rivers change their bed and channel through natural gradual processes of erosion and accretion, the boundary follows the course of the stream. But if the change is through avulsion, the boundary remains in the middle of the old channel even if there be no water. This is the settled law72 and was upheld in many cases.' These are the main and basic principles of international law governing title to territory. These may be viewed as so so many analogies from private or municipal law." In the case of occupatidn the requirements of animus and corpus find parallel in the laws of private property. "The rules concernig accession (meaning accretion) have been retained in toto, and their application has been extended from fluvial accessions to those arising on the seashore." Acquisitive prescription is "without any doubt a general principle of law recognized by civilized nations."'75 Cession is akin to transfer of property in municipal law. The analogy to private law breaks down in the case of title by conquest and subjugation. State law is not a law of

71 Oppenheim Lauterpacht)—Op. cit. I., p. 563.

72 Hackworth Digest I., p. 417.

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Nebraska V. Iowa (1892); Chamizal Arbitration (1911)-The United States however did not accept this award as valid and binding-Hackworth, pp. 417-421; Kansas V. Missouri (1943) in Green-Op. cit. pp. 385-8.

74 Lauterpacht-Private Law Sources & Analogies, pp. 99 ff.

75 Johnson-Acquisitive Prescription in International Law, B.Y.1.L. 1950,

P 343.

Might, but international law is, if title by conquest is valid. But the rejection of this title in the League Covenant, the Kellogg Pact and the U. N. Charter brings the two systems closer and the analogies become prominent.

Hence the question may be asked as to whether these rules are derived by analogies from municipal law or they are autonomous rules born out of the peculiar conditions of interstate life. Prof. Schwarzenberger76 strongly attacks any analysis based on municipal law analogies. He contends that over-emphasis on private law analogies clouds the whole issue, makes it difficult to 'find the operative rules' in this connection, and tends "to attribute an inherently absolute character to rights which prima facie, are initially relative rights." And after discarding this analysis he declares that title to territory is governed primarily by the fundamental rules of international law, viz, sovereignty, recognition, consent, and good faith with the help of which the traditional rules can easily be explained and understood.

78

There is surely a very strong logic behind this stand, which is highly illuminating and analytical. Yet a reading of these rules in the light of private law analogies may be necessary and useful from several points of view. It It will be seen that the principle of private law analogies touches "almost every branch of the international law of peace", viz., Treaties, Responsibility, Servitudes, Succession, etc." If it be so there can be nothing peculiarly wrong in reading these rules on title to territory by reference to private law analogies. Moreover private law analogies might have been ridiculed by the opponents in the days of dominant positivism. But there has been of late a reaction against the purely positivist way of thinking. And with the weakening," if not burial, of positivism there is scope for the emergence of a teleological and functional international law which may supplement itself constantly by drawing on the municipal codes of the countries. This is not to say that the process is easy but this is simply to note the possibility. Again Article 38(1) (c) of the statute of the PCIJ and the ICJ has clearly recognized the significance of municipal law as a source of international law. The general principles of law recognized

76

Schwarzenberger-Title to Territory: Response to a challenge in A.J.I.L. 1957, pp. 308 ff. See also his Manual of International Law (1950) p. 48.

77 He refers to three other principles-self defence, international responsibility, and freedom of the seas.

78 Lauterpacht-Private Law sources and Analogies, p. 6.

79

See my book--International Law Re-defined. Ch. 1.

by civilized nations become a 'reserve store of principles's on which international law has been and will be in the habit of drawing. They indubitably banish non liquet'.81 And what is more "they threw out a challenge to the Doctrine of International Law to sail into new and unchartered seas," as Prof. Schwarzenbergers himself in some other context says. International law under this Article 38(1) (c) has a scope for projecting into now fields and thus playing a creative role. And the greater reliance of international law on the general principles of law recognized by civilived nations, the closer will be the affinity between the two systems of jurisprudence and the more rapid will be the transition of the world from the 'society' stage to the 'community' stage." This is not to ignore the handicaps, the dangers and the limitations of the scheme. Private law analogies

83.

may tempt us to read in them much more than what the international facts would warrant or imply. Attractive analogies may make us blind to the realities of inter-state life and may just border on imaginative speculation. From the point of view of inductive approach they are perhaps not very useful; but from the teleological and functional angle these analogies kept within limits may surely have some important role in lending to international law a dynamic and progressive character.

These traditional rules governing title to territory are put to severe strain when they are faced with challenge in connection with territorial disputes of a political nature. These disputes may involve demand for change of title and corresponding readjustment of territories. Many European powers acquired title to territories in Africa on the basis of the traditional law of occupation. In Europe portions again have been ceded without plebiscite. But people in South Africa may claim independence on the ground of selfdetermination. Men in the ceded portions of Europe may demand reunion with the original state or may demand self-rule. Will the traditional rules survive these challenges? Too rigid legal stand may imperil justice and peace. Hence either law should be changed or these political demands are to be ignored. Perhaps the former will be the saner course as the latter may put peace in peril. There

80

81

Brierly-The Law of Nations (1949) p. 63.

Store Legal Control of International Conflicts.

82 In his foreword to the book General Principles of Law (1953) by Cheng.

$3 See Dickinson-Law and Peace (1951), pp. 116-7, where he says that customary and Treaty Lav are "insufficient for a dynamic and changing worl."; in building peace we require "a vast deal of conscious law making." And he adds-"This is to say that a revitalized community of nations must exploit progressively an] to the full its equivalents of national law making processes."

should be possibilities of peaceful territorial change under law, otherwise law, standing divorced from justice, will commit itself by its own powerlessness. The United Nations may take the lead in correcting unjust anomalies created by traditional law whenever the affected parties would point them out. And under the 'dynamic, peace' formula84 of Article 14 of the Charter the General Assembly 'may recommend' territorial readjustments in the interest of general welfare and friendly relations and may thus seek to release the forces of justice and progress from the fetters of an unjust status quo and stability in the shape of a rigid territorial settlement.

84 See S. K. Mukherjee-"Peace : An Art and a Science under the U.N.Charter”—II— in Calcutta Review, August. 1957, particularly, pp. 166-170.

EARLY STAGES OF IDEALISM IN

MODERN ITALY

IRA DASGUPTA, M.A.

The picture of Italian philosophy, during the 19th century is somewhat different from the general picture of philosophy in other European countries at that time. During the first few decades of the 19th century Positivism and Scepticism had its sway upon the minds of the Italian thinkers. Catterneo, Ferrari and Morselli were all supporters of Positivism. But soon there was reaction. A number of NeoKantians, of whom Alfanso Testa (1784-1860) is most prominent, appeared. This was not enough-there was a positive trend towards Idealism of the Hegelian type. Three names stand out prominently in connection with the Hegelian movement in the 19th century Italy-they are Augusto Vera, Betrando Spaventa and F. De Sanctis.

In the 19th century, Hegelian Idealism was gradually making its headway in different parts of Europe and America, as a revolt against Empiricism and Positivism.. What Stirling, Caird and Green did in England, what Harris and his associates did in America was done by Vera, Spaventa and De Sanctis in Italy. They did pioneering work in introducing Hegelian Idealism in the 19th century-Italy.

The main features of Hegelian Idealism are:

(a) The entire universe is the unfoldment of the Absolute Spirit, so that the entire universe is spiritual in its essence.

(b) The one process moves on dialectically-from thesis to antithesis and then reconciled in some higher synthesis. In the evolutionary unfoldment there are triads after triads.

(c) There is no gap between thought and reality (as was wrongly presumed by Kant and others). To interpose a barrier between thought and reality is to make all knowledge impossible. In fact, in Hegel's opinion, human reason thinks dialectically; and the dialectical pattern according to which we think is also the pattern according to which the world system evolves. The world evolution is an objective repetition of the subjective movement of thought. It is in this sense that history is spiritual and not a collection of dry facts.

(d) The Absolute is not a pure Being-it is the highest synthesis— the synthesis of Being and Becoming. The world and the Absolute together form one concrete reality.

5--2016P-VI