Contracting States:

Sovereign Transfers in International Relations

prescription

a : the establishment of a claim of title to something under common law usually by use and enjoyment for a period fixed by statute

b : the right or title acquired under common law by such possession

2 the process of making claim to something by long use and enjoyment

3the action of laying down authoritative rules or directions

4 a : a written direction for a therapeutic or corrective agent; specifically : one for the preparation and use of a medicine

b : a prescribed medicine

c : something (as a recommendation) resembling a doctor's prescription <prescriptions for economic recovery>

5 a : ancient or long continued custom

b : a claim founded upon ancient custom or long continued use

6: something prescribed as a rule

prescription

noun (Concise Encyclopedia)

In property law, the effect of the lapse of time in creating and destroying rights. Acquisitive prescription allows an individual, after unequivocal possession for a specific period, to acquire an interest in real property, such as an easement, but not the property itself. See also adverse possession.

http://www.merriam-webster.com/dictionary/prescription

Prescription (sovereignty transfer)From Wikipedia, the free encyclopedia

In law, prescription is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private real-estate. Prescription involves the open encroachment by the new sovereign upon the territory in question for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign. This doctrine legalizes de jure the de facto transfer of sovereignty caused in part by the original sovereign's extended negligence and/or neglect of the area in question.

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Acquiring a piece of movable or immovable property by prescription is known as "acquisitive prescription" while losing property or a right is known as "extinctive prescription".

References

Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription."[1]

Adverse PossessionA method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law. Personal Property may also be acquired by adverse possession.

Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time. Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession.

Real Property

Title to land is acquired by adverse possession as a result of the lapse of the Statute of Limitations for Ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.

The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner.

Title by adverse possession may be acquired against any person or corporation not excepted by statute. Property held by the federal government, a state, or a Municipal Corporation cannot be taken by adverse possession. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession.

Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor.

Elements In order that adverse possession ripen into legal title, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a PREPONDERANCE OF THE EVIDENCE.

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Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A Trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute.

Open and Notorious An adverse possessor must possess land openly for all the world to see, as a true owner would. Secretly occupying another's land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant's possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

Exclusive Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession. Generally, EASEMENTS do not affect the exclusive possession by an adverse possessor. In some jurisdictions easements exercised by the public or railroad rights of way will destroy exclusive possession.

Hostile Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner's rights. There need not be a dispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the owner and all the world. Possession must be hostile from its commencement and must continue throughout the statutory period.

One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

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Continuous Adverse possession must be continuous for the full statutory period if title is to vest. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough. Continuity is sometimes explained as the daily control of the land by the adverse claimant for the length of the statutory period. If a person has continuously occupied only a part of all the land claimed under adverse possession, he or she will acquire title only to the occupied portion.

While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in Bankruptcy.

Tacking is permitted only when the possession by the prior occupant had been adverse or under color of title. If any time lapses between the end of one owner's possession and the start of another's occupation, there is no continuity, so tacking will not be allowed.

Interruption of continuous possession deprives the adverse possessor of the legal effect of his or her prior occupancy. The statute of limitations will begin to run again from the time he or she starts actual, open, hostile, notorious, and exclusive possession. The length of the interruption is insignificant as long as it disturbs continuous possession. At that time the law restores constructive possession of the land to the true owner.

The commencement of a lawsuit by the owner against the occupant over the right of ownership and possession of the land is one way to interrupt continuous possession. It may be an action to quiet title, for trespass, for an Injunction involving possessive rights, or to file a petition for registration of land title. Such lawsuits will destroy the continuity of possession only if successfully pursued to final judgments. If the owner chooses to abandon or settle a suit or if a court dismisses it, the continuity of possession is not breached.

The entry of the owner upon the land with the intent to repossess it is a clear exercise of ownership that disturbs possession. A survey of the land made at the request of the true owner does not interrupt possession unless the purpose is to help the true owner take possession. The owner's actions must be notorious and open so there can be no doubt as to what is intended. An accidental, casual, secret, or permissive entry is ineffective. While the entry must be notorious, it must also be peaceable to prevent violence and warfare, which might otherwise result.

The payment of real estate taxes by the owner, while demonstrating that he or she has not abandoned land, is not considered to have any impact on continuous possession.

The adverse claimant may destroy his or her continuous possession by abandoning the land or giving it to someone else, even the owner, before the time at which title to it would vest. It does not matter how long or brief the Abandonment is as long as it was intentional. A temporary absence from the land is not the same as an abandonment and has no effect on the occupancy, provided it is for a reasonable period of time.

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Statutory Period The time period of the statute of limitations that must expire before title can be acquired by adverse possession varies from state to state. No statute will begin to run until the adverse claimant actually possesses the property in question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuit against the possessor to recover the property.

The adverse possessor must occupy the property for the full statutory period. In jurisdictions that also require color of title, it must coexist with possession for the complete period.

If the statute of limitations has been suspended—for example, because there is a lawsuit pending between the owner and the claimant or the owner is insane, an infant, or serving in the armed services—that amount of time will not be counted toward the time necessary for the acquisition of title.

Acquired Title

Once adverse possession is completed, the claimant has full legal title to the property. The expiration of the statutory period eliminates any Cause of Action or liability for ejectment or trespass regarding the new owner's prior unlawful possession of the property. Once the time period is satisfied, the adverse possessor is considered the original owner of the land. He or she may use the land any way he or she sees fit provided it is lawful.

Personal Property

Ownership of personal property may be acquired by adverse possession if the same requisites are met. The claimant must possess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for the statutory period.

Further readings

Berger, Lawrence. 1999. "Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries." Nebraska Law Review 78 (winter): 1–17.

Bloch, David S., and James Parton III. 2001. "The Intent Theory of Extinguishment under California Law." Southwestern University Law Review 30 (winter): 221–52.

Gonski, Dennis M. 2001. "Disrupting More Than a Half Century of Accepted Law." New Jersey Law Journal (June 18).

Latovick, Paula R. 1998. "Adverse Possession of Municipal Land: It's Time to Protect This Valuable Asset." University of Michigan Journal of Law Reform 31 (winter): 475–513.

Spitler, William Hayden. 2000. "Over a Century of Doubt and Confusion: Adverse Possession in Arkansas, Intent to Hold Adversely and Recognition of Superior Title." Arkansas Law Review 53 (spring): 459–87.

Stake, Jeffrey Evans. 2001. "The Uneasy Case for Adverse Possession." Georgetown Law Journal 89 (August): 2419–74.

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Cross-references

Cause of Action; Color of Title; Easement; Real Property; Statute of Limitations; Title; Trespass.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

adverse possessionn. a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exits. This can arise when a rancher fences in a parcel contending he was to get title from some prior owner, and then grazes cattle on the property for many years without objection by the title holder. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period (varies by state) are evidence of adverse possession but cannot be used by a land grabber with no claim to title other than possession. (See: possession)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

adverse possessionnoun acquisition, assumption, attainment, obtainment, ownership, proprietorship, recovery, seizureAssociated concepts: adverse claim, adverse holding, adderse interest, adverse party, adverse user, adverse verdict, adverse witnessBurton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued, under an assertion or color of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364; 2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual possession is a pedis possessio which can be only of ground enclosed, and only such possession can a wrongdoer have. He can have no constructive possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.

     2. When the possession or enjoyment has been adverse for twenty years, of which the jury are to judge from the circumstances the law raises the presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.

     3. There are four general rules by which it may be ascertained that possession is not adverse; these will be separately considered.

     4.-1. When both parties claim under the same title; as, if a man seised of certain land in fee, have issue two sons and die seised, and one of the sons enter by abatement into the land,

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the statute, of limitations will not operate against the other son; for when the abator entered into the land of his father, before entry made by his brother, the law intends that he entered claiming as heir to his father, by which title the other son also claims. Co. Litt s. 396.

     5.-2. When the possession of the one party is consistent with the title of the other; as, where, the rents of a trust state were received by a cestui que trust for more than twenty years after the creation of the trust, without any interference, of the trustee, such possession being consistent with and secured to the cestui que trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee. 8 East. 248.

     6.-3. When, in contemplation of law, the claimant has never been out of possession; as, where Paul devised lands to John and his heirs, and died, and John died, and afterwards the heirs of John and a stranger entered, and took the profits for twenty years; upon ejectment brought by the devisee of the heir of John against the stranger, it was held that the perception of the rents and profits by the stranger was not adverse to the devisee's title; for when two men are in possession, the law adjudges it to be the possession of him who has the right. Lord Raym. 329.

     7.-4. When the occupier has acknowledged the claimant's titles; as, if a lease be granted for a term, and, after paying the rent for the land during such term, the tenant hold for twenty years without paying rent, his possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv. Inst. n. 2193-94, 2351.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

http://legal-dictionary.thefreedictionary.com/adverse+possession

Adverse Possession: When Trespassers Become Property Owners

A trespasser can sometimes gain legal ownership of land just by occupying it. Here's how.

Homeowners have the right to keep unwanted intruders off their property. People may do this with fences or with signs, or just by asking trespassers to stay away. In cases of serious, repeated annoyance or threatened harm, a land owner can call the police, who will usually warn the person to stay away and, if necessary, make an arrest.

Another kind of trespass is more permanent: using another’s property as an owner would use it. If someone drives across your land every day, it is a trespass unless you have granted permission or the driver has a legal right, called an easement, to use that part of your property. A neighbor who puts up a fence two feet over the boundary line is trespassing, as is one whose garage has been on your property for several years.

Definition of Adverse Possession

You may be surprised  to learn, that under certain circumstances, a trespasser can come onto your land, occupy it, and gain legal ownership of it. The legal term for this is "adverse possession."

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Through adverse possession, a trespasser can gain ownership of just a few feet of property or hundreds of acres. And the trespasser doesn’t need to intend to take the land by adverse possession. Sometimes it happens through an honest mistake—for example, a neighbor may have relied upon a faulty property description in a deed when building a fence on your property.

How Adverse Possession Claims End Up in Court

Questions about legal ownership of property may arise in various situations, such as in the sale of a house. For example, a title insurance company may refuse to issue insurance when a property is sold because the neighbor’s garage is found to be standing squarely on the property.

If questions about ownership of land arise in this type of situation, and the people involved cannot work something out, then the issue may end up in court. The property owner may sue the trespasser (for example, the neighbor whose garage is encroaching), or the trespasser may bring a lawsuit to “quiet title”—a request for the court to settle who owns what.

Legal Requirements for an Adverse Possession Claim to Land

When courts look at adverse possession claims, they apply a four-factor test. To qualify as adverse possession, the trespasser’s occupation of the land must be:

hostile actual open and notorious, and exclusive and continuous for a certain period of time.

This article discusses each of these elements in-depth.

See your state law on adverse possession for details on your state rules. In addition to the legal requirements discussed below, some states also require the trespasser to have paid the local property taxes on the land during a specified time period.

Hostile Claim

The word "hostile" doesn’t mean that the trespasser rides in on a horse with six-guns blazing. Instead, courts follow one of three legal definitions of "hostile" when it comes to adverse possession.

Simple occupation. This rule (followed by most states today) defines "hostile" as the mere occupation of the land. The trespasser doesn’t have to know that the land belongs to someone else. 

Awareness of trespassing. This rule requires that the trespasser be aware that his or her use of the property amounts to trespassing (meaning the trespasser has no legal right to be on the property).

Good faith mistake. A few states follow this rule, which requires the trespasser to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed.

Actual Possession of the Land

The second prong of the test that courts apply requires that the trespasser actually possess the property (be physically present) and treat it as if he or she were an owner. This can be established by documenting the trespasser's efforts to maintain and make improvements to the property.

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Open and Notorious Possession

"Open and notorious" means that it must be obvious to anyone -- including a property owner who makes a reasonable effort to investigate -- that a trespasser is on the land. Examples would be a neighbor who puts a fence up slightly on the next-door property or who poured a concreted driveway two feet over the boundary line.

Exclusive and Continuous Possession

The trespasser must possess the land exclusively (that means the trespasser cannot share possession with strangers or the owner) and without interruption for a certain period of time. (That means the trespasser cannot give up use of the property, return to it later, and try to count the time that the property was abandoned as part of the "continuous" possession time period.) The time period required varies by state.

How to Prevent Adverse Possession

If you are a landowner, keep an eye on your property. If you suspect that someone has a possible adverse possession claim, check property tax records to see if this person (or anyone else) has made tax payments on the property. To prevent a trespasser from gaining property ownership, you can take the following steps:

Post "no trespassing" signs and block entrances with gates. Keep in mind that this is a good way to deter trespassers, but in many states the fact that you have signs or gates won’t protect against a claim by a trespasser who takes possession of the land anyway.

Give written permission to someone to use your land, and get their written acknowledgement. For example, you could give someone permission to park on your land, use a shortcut across your property, or to garden or grow crops. This can not only defeat adverse possession claims, but also a claim to an easement (use permit) across your property.

Offer to rent the property to the trespasser. Call the police. Hire a lawyer. You may need to file a lawsuit to eject the trespasser from the landlord. Or you

may want a court to order a structure removed from your property. You must act before the trespasser has been on your land long enough, under your state’s law, to make a successful adverse possession claim.

Getting Help with Trespassers

To learn more about adverse possession, how to prevent it, and other issues involving your land, get Neighbor Law: Fences, Trees, Boundaries & Noise, by Cora Jordan and Emily Doskow (Nolo). If you suspect that someone is trespassing on your land and you want to consult with a lawyer, you can turn to Nolo’s trusted Lawyer Directory to find a lawyer near you.

Some states require the trespasser to have paid taxes on the property for the designated time period. Some states require that the trespasser have some kind of document that would indicate ownership of the property -- such as a deed or title -- even if the document is legally invalid. See your state law on adverse possession for details.

by: Emily Doskow, Attorney

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Acquisition of Territorial Sovereignty

Q What are the modes of acquiring territorial sovereignty?

Acquisition of Territorial SovereigntyInternational law generally recognizes five modes of acquiring territorial sovereignty by a state, they are

(1) Occupation: When a particular territory is not under the authority of any other state, a state can establish its sovereignty over such territory by occupation. The territory may never have belonged to any state, or it may have been abandoned by the previous sovereign. The PCIJ( permanent court of international justice) held that the occupation to be effective must consist of the following two elements(i) intention to occupy. Such intention must be formally expressed and it must be permanent.(ii) occupation should be peaceful, continuous.       There mere act of discovery by one state is not enough to confer a title by occupation. There are two requirements (i) the territory subject to claim must not be under the sovereignty of nay state ( terra nullius) (ii) the state must have effectively occupied the territory.

(2) Annexation: Annexation means to incorporate (territory) into the domain of a country. Annexation is a unilateral act where territory is seized by one state. It can also imply a certain measure of coercion, expansionism or unilateralism. e.g 1961 annexation of Goa. Annexation of Golan Heights by Israel in 1967.

(3) Accretion: Where a new territory is added mainly through natural causes to territory already under the sovereignty of a state, acquisition by accretion takes place. Accretion refers to the physical expansion of an existing territory through geographical process.

(4) Cession: When a state transfers its territory to another state, acquisition by cession takes place in favour of such later state. The cession of territory maybe voluntary or maybe under compulsion as a result of war. The act of cession maybe even in the nature of a gift, sale, exchange or lease. Cession is the transfer of territory usually by treaty from one state to another. e.g France cession of Louisiana to U.S in 1803.cession of Alaska. Purchases of Alaska by U.S (from Russia in 1867).

(5) Prescription: It means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. Requirements of prescription (i) the possession must be peaceful (b) the possession must be public (iii) the possession must be for a long period of time.     Prescription is the acquisition of territory which belonged to another state, where as occupation is acquisition of terra nullius. However, international law doesnot prescribe any fixed period for prescription.     The acquisition of territory by force was historically recognized as a lawful method for acquiring sovereignty, but has been illegal in international law since the U.N charter came into force.Posted 24th November 2012 by abdul qadir http://internationallawu.blogspot.no/2012/11/acquisition-of-territorial-sovereignty.html

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State Territory and Territorial Sovereignty

State Territory and Territorial Sovereignty

     As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of statehood.  Without a territory, an entity cannot be a State.[1]  The notion that a State occupies a definite portion of the earth within which it exercises, subject to the limitations of International Law, its exclusive authority to the exclusion of other States lies at the basis of International Law. [2]  The exercise of such a supreme authority by a State over its own territory is known in International Law as “territorial sovereignty”.

     Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”.  Some have used the two concepts interchangeably.  However, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise its authority and jurisdiction over the territory.  Jurisdiction justifies competence to affect peoples, properties and events within a territory.

     Because “territorial sovereignty” and “jurisdiction” are two legal concepts connected to territory and can only be understood in relation to territory, therefore, in the following two sections “territorial sovereignty” and modes of acquiring territory are dealt with.  While “jurisdiction” will be the subject of the next chapter.

Section 1:  Territorial Sovereignty

     Sovereignty in regard to a territory is known as territorial sovereignty.  Territorial Sovereignty is the right of a State to exercise over its own territory, to the exclusion of any other States, the functions of a State.[3]   It has a positive and a negative aspect.[4]  The first aspect relates to the exclusivity of the right of the State with regard to its own territory, while the second aspect refers to the obligation to protect the rights of other States.

      A State exercises its territorial sovereignty within its boundary.    Boundary is an imaginary line that delineates the territorial limit of a State.[5]  Boundaries are of three dimensions.[6]  They include the State land and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts.  Both types have equal legal effects and usually based upon treaties or historical title.

     The sovereignty of a coastal State extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive economic zone.  Moreover, the sovereignty of State whether coastal or land-locked extends over its national vessels.  The sovereignty of a State extends also to its national aircrafts.

     The right to territorial sovereignty enables a State to exercise the fullest measures of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and adjacent area.  In addition, it enables a State to exercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its territory.

     Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a State.  These duties involve the obligation to protect within its territory the rights of other States, together with the rights that each State may claim for its nationals in foreign territory.

     Many treaties and conventions have been concluded to regulate State sovereignty over land, sea, airspace and outer space.  Over airspace and outer space, there are the 1944 Convention on International Civil Aviation (the Chicago Convention),[7] the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, [8] and the 1967 Treaty on Principles

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Governing the Activities in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies (the Outer Space Treaty).[9]

     Over the sea, there is the 1982 Convention on the Law of the Sea,[10] which replaced the 1956 Conventions related to the Territorial Sea and the Contiguous Zone, the High Seas, the Continental Shelf, and Fishing and Conservation of living Resources of the High Seas.   In Addition, there is the 1959 Antarctica Treaty.[11]

     Since the rights generated from the concept of territorial sovereignty can only be exercised in relation to a territory, it is necessary to know how a territory can be acquired.

Section 2:  Acquisition of Territory [12]

     The international rules related to territorial sovereignty are rooted in the Roman Law provisions governing ownership and possession.  In addition, the classification of the different modes of acquiring territory is a direct descendant of the Roman rules dealing with property.[13]

     Territory is the space within which the State exercises sovereign authority.  Title to territory is acquired either through the claim of land not previously owned (terra nullius) or through the transfer of title from one State to another.[14]  Title acquired in the first category is called original title, while in the second category is called derivative title.  Modes of original acquisition of territory include occupation, prescription and accretion.  Derivative modes include cession (voluntary or forcible), and conquest and annexation.    All these modes are dealt with in the following.

(1)  Occupation

     Occupation is an original mode of acquisition by a State of a title to a territory.   It implies the establishment of sovereignty over a territory not under the authority of any other State ( terra nullius) whether newly discovered or abandoned by the State formerly in control (unlikely to occur).[15]

     For the title acquired through occupation to be final and valid under International Law, the presence and control of a State over the concerned territory must be effective. [16]   Effectiveness requires on the part of the Claimant State two elements: an intention or will to act as sovereign, and the adequate exercise of sovereignty.  Intention may be inferred from all the facts, although sometimes it may be formally expressed in official notifications to other States.  Adequate exercise of sovereignty must be peaceful, real, and continuous.   This element of physical assumption may be manifested by an explicit or symbolic act by legislative or administrative measures affecting the claimed territory, or by treaties with other States recognizing the sovereignty of the Claimant State over the particular territory or demarcating boundaries.

     Occupation was often preceded by discovery that is the realization of the existence of a particular piece of land.  In the early period of European discovery, in the Fifteenth and Sixteenth Centuries, the mere realization or sighting was sufficient to constitute title to territory.  As time passed, something more was required and this took the form of symbolic act of taking possession, whether by raising of flags or by formal declarations.   By the Eighteenth Century, the effective control came to be required together with discovery to constitute title to territory.[17]

(2) Prescription

     Prescription is a mode of establishing title to territory which is subject to the sovereignty of another State (not terra nullius) through peaceful exercise of de facto sovereignty over a long period of time.

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[18]  It is the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereignty.  It differs from occupation.  It relates to territory which has previously been under the sovereignty of another State.  However, both modes are similar since they require evidence of sovereignty acts by a State over a period of time.

     A title by prescription to be valid under International Law, it is required that the length of time must be adequate, and the public and peaceful exercise of de facto sovereignty must be continuous.  The Possession of Claimant State must be public, in the sense that all interested States can be made aware of it.  It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign.  Such consent may be express or implied from all the relevant circumstances.  This means that protests of whatever means by the former sovereign may completely block any claim of prescription.

     As the requirement of adequate length of time for possession is concerned, there is no consensus on this regard.  Thus, the adequacy of the length of period would be decided on a case by case basis.   All the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims will be taken into consideration.

(3)  Accretion

      Accretion is a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land.[19]  Examples of such a process are the creation of islands in a rive mouth, the drying up or the change in the course of a boundary river, or the emerging of island after the eruption of an under-sea volcano.  When the new land comes into being within the territory of a State, it forms part of its territory, and this causes no problem.   However, in case of a drying or shifting of a boundary river, the general rule of International Law is that if the change is gradual and slight, the boundary may be shifted, but if the change is violent and excessive, the boundary stays at the same point along the original riverbed.[20]

     Where a new territory is added, mainly through natural causes, to territory already under the sovereignty of the acquiring State, the acquisition and title to this territory need no formal act or assertion on part of the acquiring State.[21]

(4)  Cession

     Cession of territory is a transfer of sovereignty from one sovereign to another.[22]  Its basis lies in the intention of the concerned parties to transfer sovereignty over the territory in question, and it rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State.  It occurs by means of an agreement between the ceding and the acquiring States.   The cession may comprise a portion of the territory of the ceding State or the totality of its territory.  In the latter case, the ceding State disappears and merges into the acquiring State.[23]

     Cession of territory may be voluntary as a result of a purchase, an exchange, a gift, a voluntary merger, or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of force against the ceding State.[24]   History provides a great number of examples of cession.[25]  Examples of voluntary cession are the United States’ purchase of Alaska from Russia in 1867, the exchange of a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878, the France’s gift of Venice to Italy in 1866, and the voluntary merger of the Republic of Texas into the United States in 1795.  Examples of cession as a result of a war are the cession to Germany by France of the region of Alsace- Lorraine in 1871, and the merger of Korea into Japan in 1910.

13

(5)  Conquest and Annexation

     Conquest is an act of defeating an opponent State and occupying all or part of its territory. [26]  Annexation is the extension of sovereignty over a territory by its inclusion into the State.[27]  Under traditional International Law, conquest did not of itself constitute a basis of title to the land.   It was merely a military occupation.  If followed by a formal annexation of the conquered territory, then it was called subjugation and could be considered a valid derivative title to territory.  Accordingly, conquest followed by annexation constituted a mode to transfer the title of the conquered territory to the conqueror.[28] Like compulsory cession, conquest followed by annexation would transfer territory by compulsion, but unlike cession, it involved no agreement between the concerned parties.

     While the acquisition of territory through conquest followed by annexation was an accepted mode of acquiring title to territory under traditional International Law, it is no longer legal at modern times.  The acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of the United Nations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State.  This same principle is reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”.[29]  This Declaration adds that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition resulting from such act shall be recognized as legal.[30]

     Although today conquest is not a legal mode of acquiring title to territory, it does give the victor certain rights under International Law as regards the occupied territory, such as rights of belligerent occupation.[31]  The territory remains the legal possession of the ousted sovereign because sovereignty does not pass by conquest to the occupying State, although it may pass in certain cases where the legal status of the territory occupied is in dispute prior to the conquest.

     At present times, acquisition of territory following a war would require further international action in addition to internal legislation to annex.  Such further international action would be either a treaty of cession by the former sovereign or international recognition.[32]

     Modern examples of annexation following conquest are Israel’s annexation of the Golan Heights and the East Jerusalem, and Iraq’s annexation of Kuwait in 1990.  In case of the Iraqi annexation, the Security Council adopted the resolution 662 of 1990 declaring that this annexation “has no legal validity and is considered null and void”, and called upon all States not to recognize this annexation and to refrain from actions which might be interpreted as indirect recognition.[33]

     Corresponding the modes of acquiring territory, there are modes of losing it.  Territory may be lost by express declaration or conduct such as a treaty of cession or acceptance of cession, by conquest, by erosion or natural geographic activities, by prescription or by abandonment.[34]

https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/6-state-territory-and-territorial-sovereignty

Adverse Possession Boulder 2007

Don and Susie Kirlin, a Boulder couple forced to give up a third of their lot at the 2000 block of hardscrabble drive, stand on section of land that they still own. They are making a public issue of their case after they loss in court to get back the they once owned. (Post / RJ Sangosti)

A Definition

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended

14

period of time may be able to claim legal title to that land.

The real property is acquired without compensation.

The law of adverse possession is partly common law and partly statutory law.

The required period of uninterrupted possession arises out of a statutory limitation period (aka the “statute of limitations”). In Colorado, the statute of limitations is 18 years.

In English feudal society, possession gained credibility with the passage of time. Seisin was not ownership nor was it mere possession that could be established by the seizure of land. Seisin belonged to someone who used the land or exercised rights over it.

The person claiming ownership through adverse possession must show that its possession is

actual,

open,

notorious,

exclusive,

hostile,

under cover of claim or right, and

continuous and uninterrupted for the statutory period.

The person claiming ownership through adverse possession must show that its possession is

actual,

open,

notorious,

exclusive,

hostile,

under cover of claim or right, and

continuous and uninterrupted for the statutory period.

Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of "adverse possession" cannot be deemed "hostile" and thus fails.

Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, these acts were not sufficient to amount to acts suggesting a claim of ownership.

Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, others (usually the property owner) also used the property in a manner consistent with that of the landowner.

Insufficient Time - Even if various elements of adverse possession were met, the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.

Circumstances of the adverse possession determine the type of title acquired by the adverse possessor:

fee simple title,

15

mineral rights,

or another interest in real property

In England and Wales, adverse possession has been governed by the Limitation Act 1980.The limitation period for the adverse possession of land is 12 years.

But the position of a registered landowner has been greatly improved since the passage of the Land Registration Act 2002. Where land is registered, the adverse possessor may apply to be registered as owner after 10 years of adverse possession. The Land Registry must give notice to the true owner. This notification gives the land owner 65 business days to object to the adverse possession, after which the true owner will have a further two years in which to evict the adverse possessor. This effectively prevents the removal of a land owner's right to property without their knowledge.

Boulder Case 2007: https://la.utexas.edu/.../Adverse%20Possession.ppt

Contracting States:

Sovereign Transfers in International Relations

Alexander Cooley & Hendrik Spruyt

http://press.princeton.edu/chapters/s8932.html

Chapter 1

Incomplete Sovereignty and International Relations

Introduction

Territorial sovereignty presents us with a paradox. On the one hand, it forms the key constitutive rule in international relations.1 In strict terms it denotes that the people within recognized territorial borders are masters of their own fate. No higher juridical authority exists above that of the national government. And all states are equal in international law. Sovereignty is thus highly desired. As we have witnessed in the former Soviet Union and Yugoslavia, and many other parts of the world, nations vie for their own state, and people fight and die for that cause.

Yet on the other hand, the world is replete with instances where sovereignty appears fragile. Some observers claim that the territorial state is obsolete and in the process of being supplanted by other institutional forms.2 Others see territorial sovereignty solely as a juridical fiction. Although states are equal from an international legal perspective, they fail to capture the continued relevance of power, domination, and hegemony.3 Indeed, in the wake of American military action in Iraq and elsewhere, some argue that we are witnessing the resurrection of the study of empire and imperialism. Empire, thought to have become obsolete in the decades after World War II, has returned as an international reality.4 But many cases of sovereign relations do not comfortably fit these categories.

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Consider the following two cases. The first involved the evolution of sovereignty within Iraq itself. On June 28th, 2004, the United States transferred sovereignty to an interim government in Iraq, formally concluding a fifteen-month occupation that followed its military campaign to forcibly disarm the country and enact regime change.5 Even though the Coalition Provisional Authority led by Paul Bremer formally disbanded, the continued presence of over 120,000 American troops in Iraq led many analysts to question whether this handover was practically significant.6 Four years after the transfer the exact division of sovereignty between Iraq and the United States still remained ill defined and incomplete. The UN mandate authorizing the presence of the U.S.-led coalition mission in Iraq was extended through 2008. However, in 2007 the United States and Iraq agreed to negotiate a bilateral framework to govern critical future sovereign issues after 2008, including the role of U.S. forces, the legal status of military contractors in Iraq, and the future levels of U.S. economic and military assistance to the country. The politically thorny question of the likelihood of a permanent U.S. military basing presence in the country was also brought to the fore. Iraq had regained much of this sovereignty since the 2003 U.S. invasion, but many of these sovereign transfers happened gradually and remain open-ended.

Just one week before the 2004 formal transfer of sovereignty in Iraq, leaders of the (then) twenty-five members of the European Union (EU) agreed to adopt a common constitution that would consolidate previous agreements, clarify voting procedures, expand the role of the European parliament, and unify the foreign policy preferences and decision-making procedures of the member countries. Although leaders were relieved to have actually agreed upon a text for the accord, thereby avoiding the public embarrassment that followed the collapse of negotiations six months earlier, immediate concerns arose as to its future political viability. According to one observer, the accord was the product of “arm-twisting, obfuscation and opt-outs” that had papered over substantive disagreements over the future of the EU.7 One year later, the rejection of the constitution by the French and Dutch publics in national referenda indicated that the European Commission had not been able to guarantee to these skeptical publics that its authority would be restrained and accountable. It took three more years to allay the resistance among the French and Dutch citizens—at least for a majority—as many of the same provisions were included in the 2007 Lisbon Treaty, but even this accord was rejected by Irish voters in a June 2008 referendum. These rejections show how Europeans remain concerned about the exact future contours of the European project and the scope and momentum of ongoing European integration.

Despite their obviously contrasting regional settings and political processes—the disengagement of Iraq from American control and the continued integration of the EU countries—both of these cases highlight a number of common features and dilemmas surrounding the institution of state sovereignty in contemporary international politics. First, in both cases, the exact apportioning of sovereignty after these agreements, despite weeks of prior speculation and analysis, was unclear. Could Iraq truly claim to be a meaningfully sovereign country—despite the fact that it controlled the functions of twenty-six ministries—if American troops operating under their own command and control remained in the country for an indefinite period of time? Would the position of an EU foreign minister have any credibility or authority when individual member countries dissented from the external policy positions

17

of the EU? In both cases, sovereignty had been reapportioned across political actors, but the exact nature and boundaries of this sovereign authority was difficult to specify.

A second common feature of these agreements was the uncertainty surrounding their exact downstream distributional consequences. How would these accords affect the future relative bargaining power of these states? Would the handover of sovereignty give the Iraqi government real authority or even veto power over the United States and its military decisions? How would the new voting procedures affect the ability of the European “big three” to shape the European Community’s policy agenda? After the failed referenda, would the Commission try to “smuggle” in these constitutional changes through other established procedures and European agencies? Thus, not only were the particular contours of sovereign authority unclear, but the future consequences of these particular sovereign arrangements were also uncertain. Yet, even without being able to anticipate future power dynamics and distributional consequences, the various states involved in concluding these agreements had agreed, at least initially, to reapportion and transfer their sovereignty.

Finally, both of these agreements ignited renewed domestic political debates about the acceptability of altering the existing institutional scope of sovereignty. Would the Iraqi public be able to accept the continued presence of so many foreign troops now that they had regained their nominal sovereignty? Would U.S. policymakers call for the withdrawal of U.S. forces now that a major political disengagement had taken place? In the European case, the very ability of a member country to secure public acquiescence to greater integration was thrown into question. Thus, in both cases, new agreements over the scope of sovereign authority exacted a fresh set of domestic political costs and constraints.

These cases are but two examples of a much larger set of instances in which states negotiate about, bundle, or surrender their sovereign prerogatives. To be sure, territorial sovereignty remains a critically important institution in international relations. If it were merely organized hypocrisy, pace Stephen Krasner, how should we understand the desperate pursuit of that goal by so many nations?8

But sovereignty is rarely absolute. Rather, sovereignty consists of a bundle of rights and obligations that are dynamically exchanged and transferred between states.9 For example, decolonization and territorial partition do not always mean that the newly independent states acquire full sovereignty. Instead, nationalist leaders might be content to obtain partial sovereignty if it accelerates the process of imperial withdrawal. In other instances, elites might grant some sovereign rights to another state or international organization because of perceived gains from the transaction.10 Such forms of hybrid sovereign relations represent mixed forms of organizational governance that are neither purely “anarchical” nor “hierarchical.”11

In agreeing to such hybrid sovereign relations, leaders are rarely sure about the long-term consequences of the agreements they sign. Few European statesmen foresaw the expansion of the EU and the depth of integration of the Community today. When Algerian nationalists and the French

18

government agreed that France could maintain military bases and oil facilities after Algerian independence, they had no clear view of the durability of that agreement and the credibility of both parties to follow through. Who knows whether American-Iraqi agreements that authorize the presence of American troops in Iraq will stand the test of time?

What is noteworthy from our perspective is that states frequently contract with other international actors in both the economic and security spheres, despite the uncertainty and distributional pressures that the anarchic international system generates. As we shall see across the areas of international security and economy, states regularly and voluntarily divide and cede their sovereignty in both bilateral and multilateral settings.

Our book has two key aims. First, we wish to delineate how a particular sovereign governance structure emerges. Second, we will show how choices made at a given point in time have important downstream consequences that may not be readily apparent to the contracting parties at the time of the initial agreement.12

We argue that incomplete contracting theory can clarify how and why states choose to bundle and unbundle their sovereignty, what the dynamics will likely be of future renegotiation, why some agreements are more readily achieved than others, and why some of these incomplete contracts might unravel. Incomplete contracting theory can shed light on many diverse governance structures, and we will highlight the relevance of our theory by looking in depth at imperial and postcolonial relations, overseas military basing agreements, and regional integration.

The Importance of Incomplete Contracting in International Politics

Agreements such as the end of formal U.S. occupation of Iraq or the European Union’s draft constitution are incomplete contracts. Although both agreements transfer significant elements of sovereignty among international actors, many clauses of these treaties and accords remain initially unspecified or are deferred for future negotiation.

Theories of incomplete contracting are particularly instructive for explaining the organizational boundaries of the international system. Kenneth Waltz’s seminal work on international politics draws on the concept of market competition as an analogy for state competition,13 but the international system more closely resembles an imperfect market than a perfect market. In international relations, anarchy generates a tremendous degree of uncertainty and informational asymmetries about the actions and intentions of political actors.14 The lack of a central governing authority ensures that states must be wary of the long-term distributional consequences of their actions and be hesitant to commit to long-term agreements.15 Moreover, states cannot take for granted that other international actors will honor agreements, especially when they lack well-established domestic institutions such as constitutions or electoral systems that help establish this credibility.16 As David Lake notes,

19

“opportunism is ubiquitous in international relations.”17 This imposes significant costs on the actions of political actors. Even when ceding authority to an international institution, states consciously design rules and procedures for international institutions so that they can adapt to changing circumstances.18

In such an environment, incomplete contracts offer two important advantages for states. First, incomplete contracts delineate general principles and broad goals to which states can aspire. Given that actors cannot foresee, anticipate, or describe every possible contingency that may arise, general framing agreements are more likely to be initially accepted than a complete contract, and states will be willing to defer the negotiation of more intricate details to a later stage. Second, contractual renegotiation acts as an important institutional check on the future behavior of actors. As has been argued elsewhere in reference to international regimes, renegotiation increases the iteration among actors and ensures that problems of information and verification that pertain to the initial contract can be identified and resolved and/or redefined.19 Incomplete contracts also offer states added flexibility to correct for distributional asymmetries that may arise as the result of the initial agreement.20

In short, incomplete contracts between states are framework agreements that do not fully apportion sovereignty. Instead, such agreements make the distribution and allocation of sovereign rights a matter of ongoing negotiation between the contracting parties or between those parties and a third party, such as a supranational organization.

Hypocritical Agreements?

Existing theories of international relations are not particularly concerned with explaining the dynamics of such mixed forms of sovereignty and the political uncertainty generated by “incomplete” agreements. The prevailing view among international relations scholars is that such modified forms of sovereignty are largely insignificant and do not alter the fundamental capacities and preferences of states. Stephen Krasner perhaps best summarizes this consensus by arguing that the institution of sovereignty is given lip service by the international community but is consistently violated by powerful political actors.21 From this perspective, the nominal sovereignty of Iraq is of little practical consequence, as the United States is still able to exert its power and impose its preferences on the country. Similarly, the EU Constitution is relatively insignificant given that it still allows countries to opt out or veto EU decisions, especially in the realm of security policy. For skeptics of international institutions, contractual arrangements are secondary to the national interest and capabilities of the powerful actors entering these arrangements.22

But while sovereignty, at times, may seem like “organized hypocrisy,” its mere violation, erosion, or compromise does not necessarily diminish its causal significance. By thinking in the strict binary terms of “full sovereignty” or “violations of sovereignty”—or “autonomy” and “hierarchy”—scholars have neglected the many mixed forms of sovereignty, split property rights, and hybrid governance arrangements that have historically proliferated through the international system. While we agree with the aim of prevailing attempts to explain the dynamics of non-sovereign forms of governance such as supranationalism and empire with organizational theory, especially transaction costs theory and relational contracting, we regard the strict anarchy/hierarchy distinction as unable to capture many of

20

the nuanced forms of sovereignty that are critical for understanding many forms of international organization and governance.23

From a practical perspective, understanding the various ways in which sovereignty can be bundled and unbundled underscores how states can potentially develop creative and new non-conflictual institutional solutions to problems that surround their sovereignty such as territorial partition.24 Often the sovereignty-related underlying sources of conflicts among states—contested assets, territory, borders, and functions—can all be split, shared, and reapportioned in a mutually beneficial manner. States can agree to lease or use an asset or piece of territory for a specified duration or during a transitional period before exclusive sovereignty arrangements are finalized. Delegation of a certain state function to a third-party organization can bind both parties to a common set of principles and procedures. The malleability of sovereignty and partial sovereign arrangements may thus help foster stability and orderly arrangements in international politics. Forms of hybrid sovereignty may provide additional institutional solutions for competing states to avert the high costs of conflict.

Recasting Our Understanding of “Integration” and “Disintegration”

By focusing on the varied modes of contracting employed by states across a broad range of issue areas, we recast our understanding of the twin processes of “integration” and “disintegration” in international relations. Traditionally, scholars have examined integration as the aggregated transfer of sovereign assets or functions to another actor or organization, while disintegration is viewed as the process by which territories and functions are disengaged from a larger polity. However, our framework suggests that both integration and disintegration in their incompleteness involve the reconfiguration and re-bundling of assets and/or functions from one party to another. We show that all processes of sovereign transfer— including imperialism, supranationalism, decolonization, and overseas military basing agreements—involve the reapportioning of sovereign, rights, functions, and territories from one actor to another.25 For example, the loss of a state’s exclusive sovereignty over an area of economic governance to a regional organization also implies that regional organization’s gain of the governance of that same function. Similarly, the collapse of an empire or multinational state implies a transfer in sovereignty from a territorially greater polity to a newly independent state. Thus, both integration and disintegration involve sovereign gains, losses, and reconfigurations of assets and functions for the involved contracting parties. Accordingly, we believe that these different forms of sovereign transfers and their institutional dynamics can and should be studied within a common analytical framework despite their varying issue areas. From our perspective, the direction of these sovereign transfers matters less theoretically than the mode and contractual arrangements that govern their transfer and whether these arrangements are exclusive and complete or hybrid and incomplete.

The Argument in Brief: Incomplete Contracting and the Organizational Dynamics of Sovereignty

The Logic of Incomplete Contracting

The type of contracting employed by political actors during integration and disintegration has observable effects on various aspects of state sovereignty and institutional arrangements. Critical to our account is the distinction between complete contracts and incomplete contracts. Complete contracts describe and specify the full array of responsibilities and obligations of the contracting

21

parties, as well as anticipate every possible future contingency that may arise throughout the course of the exchange agreement.26 By contrast, incomplete contracts arise from the imperfections and transaction costs generated by the contracting environment that prevent actors from specifying complete contracts. Incomplete contracts arise for both “procedural” and “strategic” reasons.

Procedural incompleteness arises when contracting actors are unable to do the following: (1) anticipate the full array of contingencies that may arise in the future; (2) negotiate optimal agreements given the asymmetries of information that characterize the contracting environment; and/or (3) negotiate an agreement that is verifiable or enforceable by the parties themselves or an outside third party, such as a court system or central regime. As a result of these different transaction costs—“uncertainty,” “negotiating costs,” and “enforcement costs”—states, even if they prefer a complete contract, may not be able to anticipate all the possible transaction costs, exogenous events, and future bargaining positions that might arise throughout the course of an extended exchange.27

As a result, contracts will often specify the initial terms of the exchange (as in the complete contract), but will also neglect several contingencies. Consequently, the contract itself will have to make provisions for the process of renegotiation, revision, and adjustment that will likely be needed but cannot be accurately predetermined or specified ex ante by both par-ties—that is, the contract will be “incomplete.”28 Thus, the incomplete contract will provide the starting point but not necessarily the long-term specifics for the exchange relationship. In some extreme cases, such initial contracts that specify common goals and objectives as opposed to plans of action have been described as “framing agreements.”29

Contracts can also be left incomplete for strategic reasons—strategic incompleteness. When actors transact over specific assets, the incompleteness of a contract may arise not only from transaction costs and exogenous shocks but also from the strategic advantage gained by one of the parties from renegotiating the agreement at a later date. When assets are specific and transactions are frequent, the owners of these assets will have increased bargaining leverage or will be in a position to “hold up” the agreement and exchange.30 As a result, strategic incompleteness may be desirable for a party that feels it can extract a greater payoff or rent after renegotiations rather than as part of the agreement ex ante. Much as Barbara Koremenos, Charles Lipson, and Duncan Snidal argue about the rational design of institutions in general, states consciously design and incorporate incompleteness in their contracts in order to best pursue their interests.31

Analytic Categories of Incomplete Contracting Theory: Allocating Rights, Bargaining Power, Momentum for Integration, and Credibility of Commitment

Over the course of this book, we explore how both procedural and strategic incomplete contracts involve several distinct facets of state sovereignty: the distribution and governance of rights among parties; the relative bargaining power of the contracting members over time; the momentum for sovereign transfer (i.e., the evolution of the incomplete contract); and credibility of commitment.

22

Particularly when transaction-specific assets are at stake, the possibility of hold-up arises. Moreover, since bargaining power shifts to one power as time progresses, the disadvantaged party will require assurances from the other actor. In the following chapter we develop a causal model that incorporates these categories. Here we wish to highlight how these categories serve to differentiate complete from incomplete contracts.

First, incomplete contracts involve the division of property rights over sovereign issues and assets. Intermediary forms of hybrid governance can emerge as stable organizational solutions to contracting problems. Specifically, incomplete contracts allow sovereignty to be unbundled into various rights and then split or shared among contracting parties. Of these property rights, the most important distinction is that between “control rights” and “use rights.”32 Control rights allow a party to make decisions about how to use an asset, such as the right to lease, transfer ownership, or even destroy the asset. Use rights designate the right to incur the costs and reap the benefits from the use of an asset, usually for a finite period of time. By splitting the control rights and use rights of an important sovereign asset—such as a strategic installation or site-specific economic asset—incomplete contracts allow states to divide sovereign assets and territory in nonexclusive ways. Alternatively, states can also share sovereignty over an asset or function by creating joint production agreements, thereby jointly supplying the particular sovereign good.33 Rather than exclusively apportioning sovereignty to either state, incomplete contracts allow states to both split and share sovereignty over especially sensitive or important assets and functions.

Second, incomplete contracting affects the relative bargaining power of the contracting parties over time. As David Baldwin notes, power in international relations is a relative concept that must be specified in terms of scope and domain.34 The interactions and relative positions of contracting states change over time, and initial decisions made about contracting modes can have important downstream consequences. Specifically, the apportioning of property rights over a particular asset or territory at a given time t determines the threat point of subsequent renegotiations and bargaining games at t+1.35

Complete contracts involve one-time concerns regarding bargaining power. Bargaining asymmetries are clear and static. With incomplete contracts, by contrast, bargaining leverage may change over time and in unforeseen directions. In certain cases of incomplete contracting, such as contracting over natural resource use, the host country tends to gain more leverage as the foreign country (the investor) sinks more transaction-specific assets into such exploitation.36

Consequently, renegotiation is a critical juncture at which point relative bargaining power over sovereign issues can shift dramatically and in a way that does not correspond to contracting partners’ relative power capabilities.37 States that hold the residual rights of control over an asset will be empowered to appropriate any surplus rent or revenue stream at renegotiation, even if the other party remains more powerful absolutely.38 For example, Algerian ownership rights over the Saharan oil reserves gave the Algerian government increasing leverage over the French government and companies that were allowed to exploit such oil after Algerian independence in 1962. Thus, incomplete contracts alter the relative bargaining positions and change the distribution of benefits to

23

contracting parties over time. Most important, the holder of residual rights of control will be able to determine the future allocation ofsovereign rights that were not covered in the initial agreement.

Third, we argue that the particular sovereignty arrangement can affect the momentum for sovereign transfers. Complete contracts do not automatically have consequences for renegotiation and the forward momentum of further (dis)integration. Actors know the terms of the agreement, which is meant to be final and complete. Incomplete contracts, however, are based on the premise that future negotiations will be forthcoming and that the complementarity of assets and incentives for future iterative relations might change.

All other things being equal, actors will prefer to change incomplete contracts to complete ones to reduce the uncertainty that goes with renegotiations. However, an increase in the level of incompleteness of a contract expands the available continuation equilibria, thereby increasing the available ways in which an institutional arrangement can be maintained and, if necessary, amended.39 Since iteration itself may have positive distributional consequences, rational states may also use strategic incompleteness to continue to capture surpluses during multiple renegotiations.

Whether or not a hybrid sovereignty arrangement unravels will depend on the potential efficiencies and increasing returns from joint production.40 Further, how such renegotiations proceed will also depend on the availability of alternative contracting parties. Greater gains might be achieved by either party by violating the terms of the incomplete contract and seeking terms with other states. For example, U.S. displacement of the Netherlands as the primary investor in Indonesia greatly increased momentum toward the dismemberment of the incomplete contract between the Dutch and Indonesian governments regarding Dutch fixed assets.

All forms of contracting inevitably raise questions regarding the ability of actors to commit. But complete contracts address the issue in a different manner than do incomplete agreements. Complete contracts that involve transaction specificity increase the possibility of hold-up. Thus, partners to a complete contract will seek noncontingent solutions to the problem. Vertical integration will be the most preferred solution, thereby diminishing the issue of credibility of the contracting parties over time.

In contrast, incomplete contracts split ownership by allocating and dividing control rights and use rights. Given the incentives for actors to renegotiate or expropriate fixed assets, the credibility of the contracting parties will remain a continuous issue, but will fall especially on the shoulders of the party with the residual rights of control. What guarantees does one have that the distribution of rights will remain acceptable to both parties as time passes?

The Domestic Costs of Contracting for Sovereignty

24

All of these issues can of course impose domestic political costs for elites. Issues involving state sovereignty are often among the most contentious for state leaders, and bargaining over sovereignty can inflame nationalism and increase demands for intractability over certain sensitive issues. If cast in terms of complete contracts, the options will seem dichotomous and zero-sum. One party will gain full control over the assets at stake, which the other state will have to forego.

Incomplete contracting can mitigate such domestic political pressures in a number of ways. By splitting the property rights of certain sovereign territories, assets, or functions, bargaining states can find acceptable mixed governance arrangements short of exclusive sovereignty than can satisfy the immediate short-term needs of both parties. By specifying a time period and incorporating a renegotiation clause within an agreement about sovereignty, elites can reassure constituents that initial agreements are only temporary and will eventually revert to their desired payoff. For example, the Ukrainian government was able to absorb the domestic political costs and public criticisms of leasing the Crimean harbor facilities to Russia by specifying that the agreement be limited to a period of twenty years, after which it would be subject to renegotiation.41 Finally, the temporary duration of incomplete contracts can allow key domestic actors to modify their preferences. Assets or functions previously considered indispensable or integral to their operations might become less so at the contract’s renegotiation. In short, if actors can credibly commit to such incomplete contracts, this raises the possibility that the hold-up problem can be mitigated or solved, short of assigning exclusive sovereignty to one particular actor.

Scope of This Study

We argue that the principal advantage of our incomplete contracting approach over other institutional accounts of sovereignty lies in our ability to study many different types of political organizations, polities, and processes under a common theoretical framework. While scholars typically study many of these processes as distinct topics—for example, studies of supranational EU integration will rarely invoke the literature on imperialism, territorial disintegration, or overseas basing—we seek to show that their common organizational dynamics can be explained within a single theoretical framework. Nevertheless, there are some important limits to our study. Most notably, our incomplete contracting framework assumes that states, to some degree, can make voluntary choices about the nature and shape of their organizational boundaries.42 One might object that states do not always voluntarily choose institutional arrangements, even if they are framed in terms of treaties or contractual obligations. However, even formal empire often required the support of local elites.43 Moreover, one of the aims of our study is to show how, over time, coercion-based interactions can actually give way to the contractual-based dynamics described by our model. We explore this dynamic further in our empirical investigations of decolonization agreements and the evolution of U.S. military basing agreements. Furthermore, as empire has become highly contested, the contractual dynamics by which states seek to solve issues of asset allocation and reallocation of sovereign rights have become more important.44

Finally, since sovereignty has become an ever more entrenched principle of the international system, leaders will be reluctant to engage in complete contracts that fully allocate such rights to one of the parties. Put differently, even if joint production gains might be achieved by allocating authority to one

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of the contracting parties, each individual government will be reluctant to surrender control over “hot button” items as sovereign control over natural resources, or to yield use rights for some foreign-run military base.45 An incomplete contracting perspective is thus highly relevant to understanding interstate conduct today.

Chapter 2 lays out our approach in greater detail and compares our incomplete contracting approach with other organizational theories, most notably transaction costs approaches. We specify our theoretical model in greater detail and show how incomplete contracts affect the configuration of ownership rights over specific assets. The particular configuration of rights in turn affects the bargaining leverage of actors, as well as the momentum of integration and disintegration. We further discuss our methodological approach and the rationale behind our case selection. Finally, we offer a set of general hypotheses and propositions that frame the following case chapters. Each of the ensuing empirical chapters further specifies these hypotheses with regard to the cases at hand.

Chapters 3–5 apply the incomplete contracting approach to three distinct settings in international relations. In choosing our cases, we have selected topics that encompass both sovereign integration and disintegration, and issues that span the fields of both international security and international political economy as traditionally defined. Thus, like other recent works, we seek to show how organizational logics are common to sovereign transfers involving security and economy.46 Each of the case chapters examines the theoretical propositions developed in chapters 1 and 2, but also engages with the broader literatures on integration and sovereignty inherent in that particular topic or field.

Chapter 3 examines how hybrid sovereignty arrangements emerged following the decolonization of modern empires. We explore how leasing agreements, joint production arrangements, and other hybrid forms of sovereign governance designated over peripheral military installations and economic assets facilitated the disengagement of core powers in the British, Dutch, French, and Soviet empires. We show how explicitly splitting the control and use rights of key peripheral assets within the framework of incomplete contracts allowed new national elites to overcome domestic opposition and permit foreign agencies and multinational companies to use national assets in exchange for achieving independence. The chapter first clarifies how initial preferences, shifts in the balance of power, and the ability to commit influenced the choice for particular hybrid sovereignty arrangements. We subsequently chart how these agreements were renegotiated and explore how these host countries used the bargaining power afforded by their residual rights of control to secure more beneficial terms. Decolonization thus usually involved bilateral negotiation and the distribution of fixed assets. Bargaining leverage over time was likely to shift to the host country (the newly independent state). Momentum favored further specification of ownership rights in favor of the host country and full sovereignty. Consequently, credibility of the host country ex ante became a key issue for the successful conclusion of such incomplete contracts upon independence. Far from being peripheral arrangements, we show how the successful conclusion of such intermediate solutions was critically important to facilitating decolonization and sometimes averting or concluding violent conflict between former imperial metropoles and emerging independent states. Across these cases we observe considerable variation. The incomplete contracts between the Netherlands and Indonesia unraveled in short order, without being replaced. The French agreements with Algeria and Tunisia did not last either, but France continues to maintain a network of hybrid sovereignty arrangements with its

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overseas bases, which are not that different in nature from the types of agreements it concluded during the decolonization period. In the former Soviet space, Russia’s incomplete contracts with the “Near Abroad” continue to show a remarkable resilience. And, finally, the British, cautious about the bargaining leverage that flows to host countries holding residual rights, have retrenched to bases that they can hold outright without sovereign concessions.

Chapter 4 focuses on the various incomplete contracts that determined the sovereignty of U.S. overseas forward basing and security installations during the cold war. Military basing agreements provide a particularly powerful arena to test our claims, given that security considerations and relative power distributions should be paramount, yet we find that basing agreements were characterized by similar organizational logics as other sovereign transfers governed by incomplete contracts. We describe how the United States organized a network of overseas sites and outline the hold-up problem faced by U.S. planners when securing agreements to govern their important or specific installations. We explore how host countries strategically used their residual rights of control to periodically renegotiate these agreements to extract greater material and political concessions from the United States and restrict the scope of U.S. basing activities and use rights. We present more detailed accounts of the evolution of the agreements governing the use of the Subic Bay and Clark bases in the Philippines and the military installations on the Azores (Portugal). In both cases, we chart how incomplete contracts over these specific assets shifted bargaining strength away from the United States and toward the host countries despite these countries’ nominal power differentials and alliances with the United States. Finally, we explore how the U.S. Department of Defense’s recent global force restructuring plan is a partial response to the political problems created by the incomplete contracts governing the use of overseas military assets. By decreasing its forward presence in countries where its presence has become politically contentious and emphasizing flexibility and mobility in force posture, the Pentagon hopes to avoid cases of political hold-up and excessive quid pro quo demands by countries hosting overseas military assets. This chapter thus deals with bilateral negotiations in which states choose to bundle fixed assets.

Chapter 5 explores whether an incomplete contracting approach can shed light on the formation and deepening of regional economic integration, even if we relax our assumption of transaction specificity of assets, which we employed in chapters 3 and 4. It examines the institutional consequences of the incomplete contracting that governed European integration from the outset and compares this to the nature of contracting that governed the North American Free Trade Agreement (NAFTA). The chapter focuses specifically on the formation of the European Coal and Steel Community (ECSC) in 1951 and the European Economic Community (EEC) in 1957. The institutional choices made during that formative phase influenced the subsequent evolution of the European Union. We highlight how the European Commission and the European Court of Justice used their bargaining power and the control rights that were delegated to them to extend their jurisdiction over complementary issue areas and functions. We then contrast the incomplete contracting that has characterized European integration with the relatively complete contracts that typified NAFTA. Furthermore, we show how variations in the type of contracting correlated with differences in initial preferences, relative distribution of power, and ability to credibly commit. The variation in initial contracting subsequently affected the bargaining power of the international institutions that were created in these two cases of regional integration, as well as the momentum toward further integration. Finally, we argue that despite widespread discussion of the impending onset of economic regionalism, other regional organizations

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are unlikely to achieve the level of integration in the EU, especially as they continue to adopt a complete contracting approach to their negotiations.

In chapter 6, we recapitulate our central theoretical arguments and offer suggestions for further research. In addition to assessing the organizational boundaries of integration and contraction in the international system, we argue that the incomplete contracting/property rights model potentially offers new theoretical insights on many additional issues such as why federal arrangements may encourage stability in some multinational states more so than in others, how hybrid forms of governance over fixed assets has impacted Arab-Israeli peace negotiations, and what the logic of incomplete contracting suggests for international transitional administration in post-conflict territories such as Kosovo.

http://press.princeton.edu/chapters/s8932.html

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