Perolehan Wilayah Darat dan Teori serta Bentuk Pengakuan dalam Hukum Internasional

Summary

This lecture delves into the various mechanisms of territorial acquisition, both on land and sea, as outlined in international law. It covers methods like prescription, cession, and referendum, explaining the legal processes and key differences, such as the importance of recognition from the governing nation. The speaker highlights real-world examples, like the Rio Grande case and Timor Timur's separation from Indonesia, alongside the theory of state recognition. The lecture also touches on maritime zones under the United Nations Convention on the Law of the Sea (UNCLOS) and addresses the role of recognition in a nation's international legitimacy.

Takeaways

• 😀 Prescriptions in international law refer to acquiring territory through peaceful, continuous, and prolonged control over a region that is legally owned by another country.
• 😀 Occupation and prescription are similar, but the main difference lies in the status of the territory being occupied—prescription applies to a territory that belongs to another sovereign state, while occupation concerns terra nullius (land without a sovereign).
• 😀 Prescription can be invalidated if the country that owns the territory objects or protests against the claim, as international law stresses peaceful means of dispute resolution.
• 😀 An example of prescription failure is the U.S. attempt to claim the Rio Grande as its territory despite Mexico's continuous protests against the U.S. claims.
• 😀 Cession is a mechanism for territorial acquisition where one country transfers control of a territory to another, either voluntarily or through force, like post-WWII agreements involving Japan and the Allies.
• 😀 The concept of referendum in territorial acquisition is tied to the right to self-determination, where the people in a disputed region vote on whether to separate from their parent state, as seen in East Timor's independence process.
• 😀 Recognition in international law is crucial for a new state to gain membership in the international community and enjoy legal status as a subject of international law.
• 😀 Recognition can take various forms: collective recognition by multiple states, individual formal recognition, recognition through silent diplomatic relations, or conditional recognition with stipulations.
• 😀 The constitutive theory of recognition posits that a state only exists as a subject of international law once it is formally recognized by other states.
• 😀 The declaratory theory of recognition holds that a state exists as a matter of fact when it fulfills the necessary conditions, and recognition is a mere acknowledgment of this fact, not a creator of the state.

Q & A

What is the concept of 'prescription' in international law?

Prescription refers to the acquisition of territory by a state through the peaceful and continuous exercise of de facto sovereignty over a region that legally belongs to another state. It involves long-term control over a territory that was once under another state's sovereignty.

How does prescription differ from occupation in territorial acquisition?

Prescription and occupation both involve effective control over a territory. However, in prescription, the territory being acquired belongs to another sovereign state, whereas in occupation, the territory is terra nullius (land belonging to no one).

What are the key characteristics of prescription in international law?

The key characteristics of prescription include long-term and continuous control over the territory, the acquisition being done peacefully, and the territory being claimed openly. Additionally, the previous sovereign must either not contest the acquisition or must accept it formally.

What happens if the previous sovereign state contests a prescription?

If the previous sovereign state protests the prescription, the acquisition attempt fails. The protest must be peaceful and can be pursued through diplomatic channels or international legal means, such as the United Nations or international courts.

What is the process of 'cession' in territorial acquisition?

Cession involves the transfer of territory from one state to another, often through a treaty or agreement, and can occur voluntarily or as a result of military defeat. A state may cede territory after losing a war, as seen in the example of Japan after World War II, where they were required to cede territories.

Can you provide an example of cession involving a peace treaty?

An example of cession would be the Potsdam Agreement, where Japan, after losing World War II, was required to return territories such as Indonesia to the Netherlands under the agreement, even though Indonesia had declared its independence.

What is the principle of 'referendum' in territorial acquisition?

A referendum is a process by which the people of a territory vote to decide whether they wish to remain part of a country or seek independence. This principle stems from the right to self-determination, and it is monitored by international bodies to ensure fairness.

How does the international community oversee referendums for territorial acquisition?

International organizations, such as the United Nations, typically oversee referendums to ensure the process is fair, transparent, and free from coercion. An example is the independence referendum of East Timor, which was monitored by the United Nations Transitional Administration in East Timor.

What is 'recognition' in international law, and why is it important?

Recognition in international law refers to the acceptance of a new state or government by other states. It grants the new entity the status of a sovereign state and allows it to engage in international relations. Recognition is essential because it allows a new state to participate in international legal agreements and establish diplomatic relations.

What are the two main theories of recognition in international law?

The two main theories of recognition are the constitutive theory, which holds that a state is legally created only when recognized by other states, and the declaratory theory, which asserts that a state exists as a matter of fact once it meets certain criteria, regardless of recognition by other states.