Territorial Leasing in Diplomacy and International Law [1 ed.] 9789004293625, 9789004293618

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Territorial Leasing in Diplomacy and International Law

Territorial Leasing in Diplomacy and International Law By

Michael J. Strauss

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Strauss, Michael John, 1953–  Territorial leasing in diplomacy and international law / by Michael J. Strauss.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-29361-8 (hardback : alk. paper) — ISBN 978-90-04-29362-5 (e-book) 1. Leased territories. I. Title.  KZ4048.S77 2015  341.4’2—dc23 2015012306

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-29361-8 (hardback) isbn 978-90-04-29362-5 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface IX Introduction 1 1 Territorial Leases and Servitudes 5 Terminology in Disarray 5 Defining International Servitudes 9 Defining Territorial Leases 13 The Political Dimension 17 Variations in Territorial Leases 20 Why States Opt for Leases 23 2 Conceptual Sources 28 States and Territory 28 State-Territory Relationship Theories 30 Territorial Transactions as Property Transactions 34 The Components of State Territory as Property 36 The Duality of Territory as Property 38 Territory as Property—The Broader View 40 Title, Effective Control and Sovereignty 42 3 Historical Sources 51 The Origins of Territorial Leases 51 The First Known Lease: Babylonia 52 Medieval Leases in The Pyrenees 54 An Outpost of European Merchants: Macao 58 Leases with Territory as Collateral 62 Trading Companies and Leased Empires 64 Leases in Chinese Treaty Ports 67 4 Leases and Sovereignty Today 70 The Surge in Leasing Activity 70 Leased Territories in China 74 Coaling Stations and Maritime Trade 80 Systematic Leasing Programs 83 Challenges to the Lessor’s Sovereignty 86 The Theory of Disguised Cessions 89 The Qualities of Sovereignty 93

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Structural Components 97 Affirmation of Sovereignty 97 Assignment of Rights 102 Jurisdictional Rights 106 Obligations of the Parties 110 Duration of the Lease 113 Compensation to the Lessor 121 A Widening Field of Options 126

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Administration of Leased Territories 128 Management of the Lease 128 Compliance Procedures 133 Governing Leased Territories 135 Populations on Leased Territories 138 Managing International Obligations 142

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Problematic Provisions 147 Transfer of Rights 147 Duration of the Lease 152 Compensation Issues 154

8 Altering and Ending Leases 161 Durational Elasticity 161 When Leases End 164 State Succession and Leases 168 Termination Agreements 173 9 Post-Termination Issues 181 Formerly Leased Zones 181 Assimilation with the Lessee State 183 Accommodating an Altered Territory 186 10 War and Occupation 191 Leased Territories in War 191 Leased Territory as Occupied Territory 198 11 Modern Trends in Territorial Leasing 203 Involvement of Non-State Actors 203 Oil and Other Natural Resource Leases 206 The OTRAG Lease 208

Contents

Leases of Foreign Agricultural Land 211 Leases of Sovereign Airspace 215 Conclusion 218 The Future of Territorial Leases 218 Bibliography 221 Books, Articles and Research Documents 221 Interviews with the Author 239 Speeches 239 International Documents 239 Treaties and Conventions 240 Agreements between States and Non-State Actors 249 Cases Cited 249 Constitutions, Laws and Orders Cited 250 Index 253

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Preface This book is the product of a sequence of events that, like many such sequences, could not be foreseen. In a previous career as a journalist, before veering into international relations and its legal aspects, notably regarding territory, and a life in academia, I was stationed in Madrid as the bureau chief for a large international news agency. Its brief included the coverage of national politics and policies that were, at the time, being influenced by acts of terrorism carried out by certain supporters of Basque independence. After being transferred to London to lead another group of reporters, I had the opportunity to learn a little of the Basque language in a course taught by an expatriate—something I had wanted to do while in Madrid for professional reasons but never found the time for. Now it was a matter of pleasure, borne of the interest I had developed in the region. That course led to another one—on site this time, in the tiny village of Urepel, deep in the Pyrenees Mountains on the French side of the border, but just barely. It was there, through practicing some phrases with amazingly tolerant local inhabitants, that I learned of an area across the boundary in Spain that was leased by France almost 150 years earlier, for which France was still paying an annual rent to Spain, and where French citizens still had exclusive rights. Intrigued, I sought to find out more. What I found instead was that hardly anyone in the Spanish or French ministries of foreign affairs had ever heard of the arrangement. But a few did. It resolved a dispute about sovereignty over valuable pastures where several mountain valleys converged. When I returned to school to earn a doctorate in international relations (at the Centre d’Etudes Diplomatiques et Stratégiques in Paris, where I now teach), I recalled this novel way of resolving a sovereignty dispute and focused my research on the question of whether it had happened anywhere else. It turned out there were a couple of other cases, but in discovering this I learned how little literature existed at all about leases of territory between states more generally. Yet I needed to grasp the subject more broadly in order to understand leases made for a specific purpose in a specific geopolitical context, and over time I built up a stock of information that allowed this to occur. But it also led me in another unexpected direction: Guantanamo Bay. Thanks to a graduating law student at City University of New York who was also an editor of its law review, I was asked to write an article and chair a panel at the review’s 2007 colloquium on Guantanamo Bay because I knew something about leases of territory like the one for the naval base; apparently

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people like that were scarce in human rights circles. Although I had studied international law and had previously covered its development for a number of years as a journalist based at the United Nations in New York and later Geneva, my credentials were in international relations, so I felt a bit out of place—but it turned out I wasn’t. During the coffee breaks it became evident that people wanted to know about the legal phenomenon of leasing territory more than they already did, as the lease for Guantanamo Bay was at the heart of so many questions they were dealing with. The article about Guantanamo Bay led to a research visit there and a book about that lease, and then to other articles about a range of legal questions that have continued to spring from it. Over time, in examining different leases made for various purposes, I accumulated a body of knowledge about the practice of leasing territory that was both broad and specific, and that seemed sufficient to form the core of a book on the subject, although it would need some additional work to round out. Thanks to the indulgence of family, friends, colleagues and some very good espresso machines in Paris, Excelsior (Minn.) and Minsk—and I would like to express this thanks here—that has now been completed, and the pages that follow contain the result.

Introduction The leasing of territory by one state to another assumed a modest degree of prominence in international relations more than a century ago, although the concept as applied by governing authorities is far older than that. Today, the practice continues to exist and proliferate. But what, exactly, are territorial leases? Why do states create them? How is sovereignty applied in a leased area? Indeed, can sovereignty itself be affected by it? What sort of jurisdiction exists there? What rights and obligations do states have with respect to a leased zone? What happens to the territory and its population when the arrangement expires? And what about cases when it doesn’t? Questions like these warrant discussion because territorial leases often act as agents of change—for the territories under lease, for the states involved, and sometimes for states in general. They have long been treated as marginal aspects of state behavior and international law, but in fact they move those margins outward and broaden the range of matters that international law encompasses by providing a stream of new issues for it to address. When territory is placed under a bilateral lease arrangement, rights become altered, traditional state conduct toward territory gets distorted and states may be drawn into confronting challenges, both legal and geopolitical, relating to their existence and coexistence. Leases allow states to obtain varying degrees of control over territory located in other states through agreements that stop short of formal cessions. In doing this, they become important diplomatic mechanisms because they address a frequent situation that can, in the extreme, lead to war: the desire by more than one state to have rights on the same territory. Some leases have been instrumental in resolving conflicts over sovereignty by separating the legal fact of its existence from its operational aspect in a way that allows each party to possess, or to exercise, the type and degree of authority that satisfies its interests. Among nations that have settled disputes this way are Spain and France, with a 19th century lease that remains in effect today and gives France exclusive rights in a small part of Spain, while India and Bangladesh offer a modern case of the same type that local politicians have held up as a model to emulate. Yet the overall experience of states that have leased territory is decidedly mixed. Leases have acted as both positive and negative catalysts in international relations in addition to impacting matters at a domestic level in the states involved. Sometimes they enhance security and stability, as with

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Introduction

certain lease arrangements for military bases abroad, and with Israel’s leases of two small areas under Jordanian sovereignty, Naharayim/Baqura and Zofar/ Al-Ghamr. At other times they heighten the risk of conflict, as with Russia’s lease of a naval port in Sevastopol, Ukraine, that became a source of chronic tension between the states and was a factor in the events leading to Russia’s annexation of Crimea in 2014. Even old leases sometimes cause new problems, as has occurred between Malaysia and the Philippines over an arrangement between the predecessors of a British colony and the Sultanate of Sulu that once covered North Borneo—and, some argue, still does. Bilateral lease agreements have allowed some territories—like Hong Kong, the Panama Canal, Diego Garcia and Guantanamo Bay—to assume global economic, strategic or legal importance. They have caused others, such as the Saimaa Canal, leased by Finland from Russia, to quietly influence regional events. Occasionally, lease arrangements have led to shifts of title and sovereignty over the territories involved, but there also are numerous cases of leased territories reverting to the lessor state. And while a reversion may mark the end of the arrangement, it does not necessarily signal the end of its impact: public protests in Hong Kong against Chinese policy in 2014 were a direct outgrowth of the territory’s leased status between 1898 and 1997, and had international repercussions. Meanwhile, the practice of leasing territory keeps evolving, with international trends such as globalization and the privatization of state functions among the modern influences on this conduct: in the 1970s, Zaire leased a significant part of its territory to a private West German company that performed activities for which states have international legal responsibility, granting rights to the enterprise that were identical to those which in other situations comprise sovereignty. Today’s global rush to secure rights on vast areas of foreign farmland is another variation, in which states sometimes step out of their role as actors in international law to pursue conduct that is more aligned with the municipal laws they have created. But can a company become a state? And can states “opt out” of their international legal personality? International law repeatedly has been pulled forward by legal constructs that are products of diplomatic creativity, and leases of territory are among those that ensure the process will continue. Even when a lease does not present new issues of international law in itself, geopolitical events that later arise from its existence may do so. Gerald L. Neuman has written about Guantanamo Bay in describing what he calls an “anomalous zone,” a place where “certain legal rules, otherwise regarded as embodying fundamental policies of the larger legal system, are locally

Introduction

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suspended.”1 Indeed, all leased territories can be said to fall into this category relative to international law and also relative to the domestic legal systems of the states that created them. But it also can be argued that leases are not anomalous instruments in themselves. Over time, they have become relatively common mechanisms in territorial governance. Yet considering this activity to be part of normal state practice is something that is not often done. The leasing of territory has been largely an ad hoc process in which states have addressed a range of specific situations for which the conventional application of sovereignty was less advantageous or convenient. Although individual cases have occurred on every populated continent, they have differed widely in origin, purpose, implementation and even ter­ minology, and there has never been any clear template. Consequently, leasing has gone largely unexplored as part of the comportment of states, as an element of diplomacy or as a contributor to the development of international law. That is not to say that leases are ignored, as numerous scholars have studied individual cases—Hong Kong and Guantanamo Bay have been probed from many different angles in recent decades, to give just two prominent examples. But material about the broader phenomenon remains sparse, and some of what exists is more than a century old. This means that most leases of territory have been made by states with little detailed knowledge of, or regard for, the broader context in which they happen. Even when a state has engaged in some form of systematic leasing, as the United States has done with foreign military bases and Russia has done with strategic sites in former Soviet states, it has necessarily occurred in this vacuum. This book describes and assesses the leasing of territory as an aspect of state behavior from the perspective of international law and as an element of international relations. It draws its content from a wide range of sources that touch on the subject in various ways, ranging from treatises about international servitudes to studies of individual leases and clusters of leases—and of course, it draws on the leases themselves, which form the bedrock of the information presented herein. It aims to be a basic reference that can be consulted by researchers, diplomats, lawyers, journalists and others who seek information about the phenomenon whenever a lease is negotiated, terminated, thrust into prominence by events, or otherwise studied. In essence, it is intended to be the kind of book that the author would have found useful when he prepared his doctoral dissertation about whether 1  Gerald L. Neuman, “Anomalous Zones,” Stanford Law Review 48 (1996): 1197–1234.

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Introduction

leasing territory might be a viable means of resolving sovereignty disputes2— only to find how little existed on the subject. To the extent that it may be useful to others, it also must be considered as a starting point for additional research because each of the aspects discussed merits further exploration. In the words of one of the author’s university professors some years ago, providing advice in a journalism course about how to write articles, “You can’t say everything about anything.” 2  The answer is yes, but probably only when certain circumstances converge.

CHAPTER 1

Territorial Leases and Servitudes

Terminology in Disarray

It is not uncommon for states to exercise aspects of their sovereignty in designated areas of other states that consent to limit their own displays of authority there, often in exchange for some sort of gain. These situations might appear to undermine the notion of sovereignty by reallocating territorial control without causing boundaries to change, yet in preserving boundaries they also reinforce the territorial integrity that allows sovereignty to flourish. This may seem paradoxical from the perspective of international law, but when viewed in terms of pragmatic bilateral relations these arrangements can be viable means for addressing some territorial issues. Whatever inconvenience they cause for legal doctrines or principles may be accommodated by considering them as lex specialis,3 although acknowledging them as outside the mainstream of legal thought or state practice does not necessarily help us understand their character. Such arrangements do not follow a standard template because none exists, and there is no set of dedicated international legal norms to encompass them.4 There is also no uniform terminology, although the vocabulary of leases and servitudes is frequently applied in view of similarities between the arrangements and corresponding notions in private law. Consequently, what is conceptually the same legal construct at its core has many variations in detail, and according to its situation and circumstances has been described as an occupation and administration arrangement,5

3  This can involve individual cases or the practice more generally as a self-contained regime. See Report of the International Law Commission, 58th Session, U.N. General Assembly Doc. A/61/10, 2006, 408–412. 4  “As there is no general international law specifically regulating leaseholds, it is for the lessor State and the lessee State to agree the terms of each lease. Such leases being international agreements are governed by the law of treaties.” (Alina Kaczorowska, Public International Law, 4th ed. (Abingdon: Routledge, 2010), 300). 5  Convention of Defensive Alliance between Great Britain and Turkey (“Cyprus Convention”), June 4, 1878, Gr. Brit.-Turk., art. I, 69 British and Foreign State Papers 744.

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a concession,6 a disguised cession,7 a temporary cession,8 an unequal con­ dominium,9 a special regime,10 a status of forces agreement,11 an accommodation consignment agreement,12 a type of incomplete contract with respect to sovereignty,13 an investment14 and any number of other things in addition to a lease or a servitude. International law scholars have differed on the degree to which terms such as these are synonymous, or whether they are at all.15

6   L. Oppenheim, International Law: A Treatise, Vol. 1, 3rd ed., ed. Ronald P. Roxburgh (London: Longmans, Green, 1920), 310. “The theoretical distinction between a settlement and a concession lies in the methods by which the land in it is leased from the Chinese Government. In the concession, as a rule, the entire area is leased by a single foreign state which pays a rental for it; parcels of land are then subleased by the foreign state to private lessees. In the settlement there is no general lease undertaking by a foreign government, but private lessees obtain their properties directly from the local Chinese authorities” (Harold S. Quigley, “Foreign Concessions in Chinese Hands,” Foreign Affairs 7, no. 1 (1928): 150). 7   Louis Gérard, Des cessions déguisées de territoires en droit international public (Nancy: Imprimerie Nancienne, 1903). 8   Jean Perrinjaquet, Des cessions temporaires de territoires: Etude de droit international (Bordeaux: Imprimerie Commerciale et Industrielle, 1904). 9   Paul Pic, “Influence de l’établissement d’un protectorat sur les traités antérieurement conclus avec des puissances tierces par l’état protégé,” Revue Générale de Droit Interna­ tional Public 3, no. 6 (1896): 628–29; Vincent P. Bantz, “The International Legal Status of Condominia,” Florida Journal of International Law 12 (1998–2000): 102–103. 10   Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (“IsraelJordan Peace Treaty”), Oct. 26, 1994, Isr.-Jordan, annex I (a), (b), 34 I.L.M. 43 (1995). 11   R. Chuck Mason, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized? (Washington: Congressional Research Service, 2012). 12  “A no-cost land use agreement between the U.S. and Afghan governments for military purposes” that gives the United States “full use” of the designated land in Afghanistan. (Todd Lyman, “USACE TAN Real Estate Team Pros at Relationship Building,” Transatlantic Times, U.S. Army Corps of Engineers, June 2013: 4). 13   Alexander Cooley and Hendrik Spruyt, Contracting States: Sovereign Transfers in International Relations (Princeton: Princeton University Press, 2009), 7–11. 14  Convention d’investissement dans le Domaine agricole entre La République du Mali et La Grande Jamahiriya arabe Libyenne populaire et socialiste (“Malibya Convention”), May 9, 2008, Libya-Mali, http://farmlandgrab.org/wp-content/uploads/2010/07/Convention.pdf, accessed October 30, 2013. 15  See, e.g., Perrinjaquet, Des cessions temporaires, 267–68; Amos S. Hershey, The Essentials of International Public Law and Organization (New York: Macmillan, 1927), 282; Joseph Lazar, “The Status of the Leasehold in International Law” (PhD diss., University of Minnesota, 1965), v–vi.

Territorial Leases and Servitudes

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To some, this is a limited concern. “The word is of little importance to us when the thing is identical, constituting a temporary annexation, a contractual renunciation by a state of its rights on a part of its territory,” Jean Perrinjaquet wrote more than a century ago.16 A later publicist, Ferenc A. Váli, concurred that “the centre of gravity lies in the proper source of international legal relations and not in the name which has been conferred upon them.”17 Certainly the thing itself matters more than what it is called, but the lack of uniform terminology has been an obstacle to identifying cases, assessing the scope of the practice and determining its role in international relations and international law. These territorial arrangements have received little collective scrutiny and have been regarded as peripheral activities of states, yet they have been a persistent element of state conduct over many centuries and continue to proliferate today. They warrant attention because they have consequences that are legal, political and strategic. These consequences pertain to, inter alia, the rights and duties of states that are parties to such agreements toward third states with respect to the areas affected; to the attribution of legal responsibility for acts that occur in those areas; and sometimes even to the determination of effective control, title and sovereignty over them.18 They also can affect the conduct of third states toward the territories involved and toward the parties to the agreements more broadly. Additionally, these arrangements merit collective examination for a reason that is striking in its simplicity and importance to world order: when states redistribute rights on territory between themselves without transferring sovereignty, they engage in an alternative to more serious conflict, including war, in competing to have at least some authority over the same place.19 Nations in all parts of the world have divested or acquired territorial authority this way, showing it to be an effective mechanism for aligning the availability of “desired” territory with evolving national interests. The practice has yielded a distinct body of arrangements in which greater or lesser degrees of territorial control are reallocated, sometimes with substantial impact beyond the parties directly involved. Yet to ascertain its significance, individual cases 16  Perrinjaquet, Des cessions temporaires, 365. 17  F.A. Váli, Servitudes of International Law, 2nd ed. (London: Stevens & Sons, 1958), 63. 18  John Woodliffe, The Peacetime Use of Foreign Military Installations under Modern International Law (Dordrecht: Martinus Nijhoff, 1992), 114. 19  “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” (Cooley and Spruyt, Contracting States, 7).

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with superficial differences must be recognized as pertaining to an identifiable regime of state conduct, hence the importance of consistent terminology. As Joseph Lazar stated, Once the ‘operative’ fact has been determined—such as whether a writing is a ‘lease,’ or ‘deed,’ or ‘contract,’ for example—then the legal consequences of such operative fact come into play.20 The vocabulary of leases and servitudes seems appropriate to adopt in discussing these arrangements as it is used more frequently than other wording and the concepts it describes exist throughout the world. Moreover, terms like “lease,” “rent” and their derivatives are actually contained in the texts of a number of such agreements. Alternative names used for some accords are too vague, too narrow or too closely tied to specific objectives to adequately encompass the arrangements in all their variety. On this basis, we can define a territorial lease as a treaty or other agreement that involves the consent of both states21 and has certain characteristics: (1) it establishes rights for one state to display elements of its sovereign authority in a specified territory where another state has, and retains, de jure sovereignty; (2) it creates a relationship that emulates the one between a lessor and a lessee in private law; and (3) its structural elements are loosely similar to those in a private-law lease. The rights that are transferred by a territorial lease can be defined as a servitude that limits the active exercise of sovereignty by the lessor state and extends the sovereign competences of the lessee state on the territory involved. In calling the instrument of creation a lease and the rights it creates a servitude, we differentiate between these concepts and recognize them as having a complementary relationship in the present context. This requires some justification, however, because jurists and publicists who have used the terms “lease” or “servitude” have disagreed sharply on whether their features must be identical to their private-law counterparts in order to warrant these labels.22 20  Lazar, “The Status of the Leasehold,” 10. 21  This does not exclude coercion by the stronger state regarding the form or content of the arrangement. Louis Gérard noted that the lessee was consistently the stronger party in the cases he studied (Gérard, Des cessions déguisées, 256–57). 22  This controversy is compounded by differences in private law systems, in which a lease may be a personal right, as with a contract, or a real right associated with the property and surviving changes in ownership, and a servitude may be a personal or praedial servitude (see H. Lauterpacht, Private Law Sources and Analogies of International Law (1927; repr.,

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Moreover, those who contend that a complete match is unnecessary have divergent views themselves on how close the analogy should be. According to Lassa Oppenheim, The vast majority of writers and the practice of the States accept the conception of State servitudes, although they do not agree on its definition or extent, and are often divided as to whether a particular restriction upon territorial supremacy is or is not a State servitude.23 The precise sense of a word like “lease” or “servitude” varies among national systems of private law, so it is obvious that the same word cannot be applied in the sphere of international public law without a tolerance range. Because a more complex set of national and international legal relationships comes into play when the actors are states,24 the range must have the breadth to encompass them as well. Taking into account J.H.W. Verzijl’s observation that “leases of one State respecting land situated in another may be of different natures,”25 one must be guided by Ian Brownlie’s caution that the word “lease” is only “a superficial guide to the nature of the interest concerned.”26 These terms can therefore be seen as symbolic legal conceptions rather than representing what actually occurs within national private-law systems.27

Defining International Servitudes

The logic of using symbolic conceptions has not been universally accepted, which would matter little if the terminology issue were confined to academic debate. As can be seen from servitudes, however, it has had an impact on jurisprudence. Quite a few respected scholars have asserted that a servitude involving states must be entirely analogous to a private-law servitude, with the transferred Hamden, Conn.: Archon Books, 1970), 188–89; William Warwick Buckland, A Manual of Roman Private Law (1939; repr., Cambridge: Cambridge University Press, 2011), 110–11). 23  Oppenheim, International Law: A Treatise, 365. 24  Lazar, “The Status of the Leasehold,” 4. 25  J.H.W. Verzijl, International Law in Historical Perspective, Vol. 3 (Leiden: A.W. Sijthoff, 1970), 397. 26  Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008), 110–11. 27  For a discussion on this point, see Lazar, “The Status of the Leasehold,” 7–17.

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rights being tied to the territory in perpetuity and binding on any successor states. Short of this, Hersch Lauterpacht argued, “the term itself would otherwise serve no useful purpose, and would only encourage a laxity of language” in international law.28 According to Pitman B. Potter, international servitudes “were cast in the given forms of proprietary law because of their connection with the subject-matter of that law, which (. . .) referred rather to realty than to personalty.” Helen Dwight Reid wrote that “strictly, a relationship established for a limited term is not a servitude,” and that “there seems no legitimate reason for discarding so essential a characteristic when adapting the doctrine to the international field.”29 The result, according to Immanuel Clauss, is that “in state servitudes the right has acquired an existence independent of the agreement which created it.”30 The application of this view, which became known as the classical doctrine of servitudes, has led to situations in which successor states have been obliged to continue territorial arrangements created by their predecessors. This constraint has a certain practical worth, according to Peter Malanczuk: It would be highly inconvenient if such rights did not survive changes in sovereignty; where the population of a particular area is economically dependent on obtaining water, for instance, from a neighboring area, their livelihood ought not to be endangered by changes in sovereignty over either of the areas concerned.31 However, this conception of servitudes is disruptive to fundamental ideas that sustain the international system of states, as it prevents a servitude from being terminated or altered by a subsequent agreement—including between the same states that created it or by their successors. Creating an irrevocable servitude would relegate a territory to the sidelines of the system, making it a location where no state could ever again simultaneously have sovereignty and exercise its full sovereign authority. The creation of more servitudes over time with none being extinguished would progressively erode the concept of sovereignty as an ultimate form of authority. 28  Lauterpacht, Private Law Sources, 122. 29  Helen Dwight Reid, International Servitudes in Law and Practice (Chicago: University of Chicago Press, 1932), 20. 30  Ibid., 20, citing Immanuel Clauss, Die Lehre von den Staatsdienstbarkeiten historisch­ diplomatisch: historisch-dogmatisch entwickelt (Tübingen: H. Laupp, 1894). 31  Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed. (London: Routledge, 1997), 159.

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Faced with this conundrum, jurists accepting the classical doctrine have conceded with notable reluctance that servitudes between states can exist at all. This was seen clearly in the North Atlantic Coast Fisheries Case (1910), when the Permanent Court of Arbitration deemed an international servitude to be fully analogous to a private-law servitude but could not resist expressing disdain for what it described as this quasi-sovereignty with its incoherent attributes acquired at various times, by various means, and not impaired in its character by being incomplete in any one respect or by being limited in favour of another territory and its possessor.32 It viewed servitudes between states as being “little suited to the principle of sovereignty” but admitted the possibility that a servitude can exist as long as it is established “on the express evidence of an international contract”33— what is defined here as a lease. Opponents of a full analogy with private-law servitudes point to the practice of states in noting that rights transferred this way are, in fact, sometimes terminated. Pierre-Paul Fabre wrote that “servitudes are permanent or temporary, depending on the convention that created them,”34 and Georg Crusen agreed that the effects of the classical doctrine “are neither desirable nor do they conform to reality.”35 Pierre Labrousse enumerated several ways that servitudes between states had been extinguished in actual practice: by treaty, by renunciation on the part of the state that benefits from the rights, by determination of its incompatibility with international law, by constitutional modification and by consolidation of the states involved.36 Váli, too, contended that a servitude can have a limited duration, arguing that “while a ‘servitude’ should be a durable or permanent right, it need not be one which has been established in perpetuity.” Similarly, Boleslaw A. Boczek

32  North Atlantic Coast Fisheries (Gr. Brit. v. U.S.), 11 R.I.A.A. 167, 182 (1910). 33  Ibid., 182. 34  Pierre-Paul Fabre, Des servitudes dans le droit international public (Paris: Arthur Rousseau, 1901), 20. 35  Georg Crusen, “Les servitudes internationales,” in Recueil des cours de l’Académie de Droit International de La Haye, Vol. 22, 1928-II (Paris: Hachette, 1929), 22. 36  Pierre Labrousse, Des servitudes en droit international public (Bordeaux: Imprimerie Commerciale & Industrielle, 1911), 23–28.

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described an international servitude as an “ordinarily permanent” (and therefore not always permanent) right in rem.37 There is nonetheless an element of common ground amid the divergent views: the operational nature of the rights in a bilateral servitude involving territory is identical to that of the rights in a private-law servitude insofar as they cause part of one state to be at another state’s disposal to the extent stipulated in the lease. This aspect exists regardless of any other attributes that jurists or scholars attach to an international servitude, and it is not replicated in other types of arrangements; its presence can therefore be a way to identify a servitude between states amid the clutter arising from disagreements about a servitude’s other features. Meanwhile, the tendency among both states and scholars to use the term “servitude” loosely in the international sphere38 has been pushing its meaning in a legal context increasingly away from the classical doctrine’s mandate of real rights tied permanently to a given territory. This can have implications as customary international law evolves with respect to such matters. A series of judgments during the last century also may discourage the view that permanence is a feature of an international servitude. In the Island of Palmas Case (1928),39 the Eastern Greenland Case (1933)40 and the Minquiers and Ecrehos Case (1953),41 sovereignty over each of these disputed territories was awarded to the state that showed a greater association with it as evidenced by the exercise of sovereign rights over an extended period. None of these cases involved leases or servitudes, but the rulings heightened the risk that sovereignty over a territory that is subject to a servitude may shift from the lessor state to the lessee state if the lessee exercises comprehensive rights there and eventually claims to be the true sovereign on grounds of effective control. The relationship between a territorial lease and an international servitude is not a balanced one. A lease between states is the diplomatic and legal instrument through which an international servitude can be established;42 its purpose is always to create a servitude. An international servitude, however, 37  Boleslaw A. Boczek, International Law: A Dictionary (Lanham, Md.: Scarecrow Press, 2005), 247. 38  Some authors “indiscriminately throw almost every obligation imposed upon a State into the limbo of something which they call international servitudes” (Váli, Servitudes of International Law, 42). 39  Island of Palmas (or Miangas) (U.S. v. Neth.), 2 U.N. Rep. Int’l Arb. Awards 829 (1928). 40  Legal Status of Eastern Greenland (Den. v. Nor.), P.C.I.J. (ser. A/B) No. 53 (1933). 41  Minquiers and Ecrehos (Fr. v. U.K.), 1953 I.C.J. 47 (Nov. 17). 42  Dinh Nguyen Quoc, Patrick Daillier and Alain Pellet, Droit international public, 7th ed. (Paris: L.G.D.J., 2002), 486.

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can take many forms and often does not rely on a lease for its creation. It may involve an obligation by one state to take specified actions on its territory for the benefit of another, even without the other state’s physical presence there, as with a financial servitude that obliges a state to collect taxes or other revenue on the other’s behalf.43 A servitude also may entail territorial rights that are transferred to a group of states or to an intergovernmental organization,44 or that apply to all states, as with navigational servitudes.45

Defining Territorial Leases

A lease in private law can be a conveyance, a set of covenants, and/or a written instrument that incorporates the conveyance and obligations of the parties.46 It normally has three principal attributes: the transfer of rights to use an asset, the duration of the arrangement, and the consideration to be paid by the lessee to the lessor. A territorial lease between states is typically described as sharing these characteristics. Boczek defined it as an agreement, formalized in treaty form, whereby a state (lessor) leases part of its territory to another state (lessee), granting it, for a specified or non-specified period, more or less extensive rights, possibly including even the exercise of all sovereign rights, short of transfer of territorial sovereignty.47 While such a description is generally valid, attempts to achieve an exact match with private-law leases can be problematic even though, as with servitudes, some international law publicists have insisted it must done. As Min-Ch’ien T.Z. Tyau asserted,

43  This mechanism was used to ensure Greek debt payments to other states after the GrecoTurkish War (see, e.g., Nicolas Politis, La Guerre gréco-turque au point de vue du droit inter­ national (Paris: A. Pedone, 1898), 146–53). 44  Michael Ross Fowler and Julie Marie Bunck, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (University Park, Pa.: Pennsylvania State University Press, 1995), 99. 45  Ralph J. Gillis, Navigational Servitudes: Sources, Applications, Paradigms (Leiden: Martinus Nijhoff, 2007), 5–18. 46  Lazar, “The Status of the Leasehold,” 91–94. 47  Boczek, International Law, 229.

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Since the conveyance is a lease, there are various covenants which a lessee is bound to observe. Some of these covenants are express, and some are implied. The express covenants relate to the reservation of the lessor’s rights of sovereignty, the period of tenancy, the non-assignability of the lease, as well as other matters. (. . .) The second class of covenants are not expressly mentioned, but are implied and well understood. For example, the lessee must remain on good behaviour and conduct himself properly. He is to enjoy his right of possession quietly, and not commit any abuse or nuisance on the leased territory.48 It is logical that the use of the leasing terminology in territorial arrangements between states originated with leases in private law, as the parties share the same basic relationship—one controls an asset and the other is granted the right to use it.49 But, as with servitudes, defining a territorial lease as an exact replica of a private-law lease ignores the reality of how the term has been adapted in its application by states to territory.50 Perrinjaquet admitted that terms like “lease” and “rental” are used, including by himself, because they are simply “convenient,” even though “we do not give them the meanings that they have in private law.51 Similarly, T.J. Lawrence observed that a territorial lease between states “is not the commonplace and innocent affair we know so well in dealings with private property.”52 Deviations may be particularly evident when a territorial lease is seen from the perspective of a single domestic legal system, because national systems vary in how they view leasing and in what constitutes a lease contract. Parts of a lease that are deemed essential by one state may be optional, absent or outlawed in another, or may be defined, restricted or employed in a way that conflicts with how a different state’s laws deal with the same element. Consequently, many national systems prohibit leases with terms of perpetuity while some allow them;53 most require payment of a consideration while a few 48  Min-Ch’ien T.Z. Tyau, The Legal Obligations Arising out of Treaty Relations between China and Other States (Shanghai: Commercial Press, 1917), 70. 49  Lauterpacht, Private Law Sources, 188–89. 50  C. Walter Young commented that Tyau drew so closely upon the language of private law to describe an international situation that his conclusion of their exact equivalency was a reductio ad absurdum (C. Walter Young, The International Legal Status of the Kwantung Leased Territory (Baltimore: Johns Hopkins Press, 1931), 106). 51  Perrinjaquet, Des cessions temporaires, 268. 52  T.J. Lawrence, War and Neutrality in the Far East (London: Macmillan, 1904), 272. 53  Lauterpacht, Private Law Sources, 188.

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accommodate leases without compensation;54 and some automatically permit subletting unless a lease specifically denies this right while others automatically prohibit subletting unless a lease permits it.55 The expansive definition of a territorial lease employed here allows the inclusion of agreements such as the 1898 Convention of Peking,56 by which Great Britain obtained rights on most of Hong Kong from China. The treaty’s text referred to the arrangement as a lease, although it lacked any mention of British compensation to China. Our definition also encompasses the 1903 Hay-Bunau-Varilla Treaty,57 which gave the United States rights in Panama’s Canal Zone. Neither party considered it a lease,58 but it emulated one thoroughly and was viewed as a lease by legal and political scholars, not to mention the general public. And it covers the agreements by which parts of the Ottoman Empire stayed under its sovereignty while being administered and controlled by other states—Cyprus by Great Britain,59 and Bosnia and Herzegovina by AustriaHungary.60 Some publicists have described these and other “occupation and

54  Michael J. Strauss, The Leasing of Guantanamo Bay (Westport, Conn.: Praeger, 2009), 22, 172. 55  Lauterpacht, Private Law Sources, 188. 56  Convention Respecting an Extension of Hong Kong Territory (“Convention of Peking”), June 9, 1898, Gr. Brit.-China, 186 Consol. T.S. 310, 90 British and Foreign State Papers 17. 57  Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans (“Hay-Bunau-Varilla Treaty”), Nov. 18, 1903, U.S.-Pan., 33 Stat. 2234, T.S. No. 431. 58  “Panama and the United States both refused to recognise the treaties concerning the Panama Canal as leases (. . .) [but] by the fact that an annuity is paid by the United States and that the Hay-Varilla treaty did not in reality imply a cession of territory, the conventions concerning the Panama Canal could be regarded as constituting a lease,” according to Elie van Bogaert. “The United States received an abnormal extensive right and that seems to be the reason why both parties did not consider their juridical relation as a lease. It was stated by the Secretary of State, F. Dulles, in August 1956, that the United States considered the Canal Zone as being practically under their sovereignty. In an official note of January 3, 1923, the Panamanian Minister of Foreign Affairs wrote: ‘(. . .) the Canal Zone has not been leased to the United States because the annual payment of two hundred and fifty thousand dollars which it undertook to make under the Canal Treaty was not stipulated as a fee for the use of the zone.’ ” (Elie van Bogaert, “The Lease of Territory in International Law,” in Miscellanea—W.J. Ganshof van der Meersch, Vol. 1 (Brussels: Emile Bruylant, 1972), 321–22.) 59  Cyprus Convention, June 4, 1878, art. I. 60  Treaty of Berlin, July 13, 1878, Ger.-Aus. Hung.-Fr.-Gr. Brit.-Italy-Rus.-Turk., art. XXV, 3 Martens Nouveau Recueil (ser. 2) 449.

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administration” arrangements as leases,61 although they have also been called occupations, cessions and unequal condominia and the territories involved have been referred to as protectorates and mandated territories62—illustrating the degree to which the legal concepts underlying these terms have been unstable in their own right.63 Additionally, the definition covers arrangements in which the range of transferred rights falls short of a handover of complete control and jurisdiction. Most international law publicists who have written about territorial leases have focused on those that transfer comprehensive rights, yet there are many arrangements that involve more limited transfers and result in the lessee state obtaining rights to display only certain elements of sovereignty that the lessor suspends for itself. All of these arrangements are considered here as being on the same continuum. A broad definition is justified because a territorial lease is often part of a greater diplomatic whole—it can be essential to a larger political process whose other elements may compensate for any discrepancies that exist with private-law leases. The absence of a compensation clause, for example, does not necessarily mean there is no consideration paid by the lessee to the lessor; it may simply exist in another form elsewhere in the larger process, as a separate concession, undertaking or understanding with no obvious link to the lease, and it may not be monetary in nature. Indeed, a number of territorial leases are embedded in treaties that address a multitude of related concerns at the same time. Of course, only the text matters when a territorial lease is considered as an instrument that is interpreted and administered, so making conclusions about legal meanings in a lease that forms part of a broader treaty cannot be done on 61  Bogaert, “The Lease of Territory,” 317–18. 62  Pic, “Influence de l’établissement d’un protectorat,” 628–29. 63  This no doubt reflects the evolution—indeed, even distortion—of these concepts through the acceptance or rejection of characteristics that initially appeared in individual cases as the cumulative number of cases has grown over time. These characteristics, in turn, highlight that each territorial issue has unique aspects and that states sometimes resolve them by giving priority to practical measures over staying within the bounds of legal principles or accepted conceptual structures (lease, protectorate, etc.) as they exist at a given time. Thus, while Verzijl referred to an Anglo-Turkish Mixed Arbitral Tribunal judgment “erroneously” describing Cyprus during British occupation and administration as a “protectorate” (Verzijl, International Law, 409), T. Baty notes that “it will be found on examination that the conception of a Protectorate has virtually altered its character within our own memory” (T. Baty, “Protectorates and Mandates,” British Year Book of International Law 2 (1921–22): 109.

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the basis of other clauses that may nonetheless provide guidance in a political sense. As Lazar observed, the text is integral to determining the legal relationships associated with the lease, which may be in personam or in rem treaty relationships, political relationships or property relationships, among others.64 The text is where the sovereign rights to be transferred are elaborated, so when an international servitude is established by means of a territorial lease it can only reflect what the text contains. An extra-textual element of a territorial lease may therefore be irrelevant from a legal perspective, which is oriented toward precision and certainty, while being essential from a diplomatic one, which can depend on subtlety and ambiguity. This can result in divergent tracks for legal and political developments involving a lease and its associated servitude once they are created, but it does not mean the lease’s text is incomplete—what is incomplete is the conceptualization of a territorial lease as being only its text, because it is often a product of blending practical diplomacy with established law.

The Political Dimension

The reason why territorial leases and servitudes may differ from their privatelaw counterparts is quite straightforward: states have different interests than the owners and users of private property. States act with the motive of sustaining or strengthening their viability as entities that can permanently coexist with other states in an international system.65 This causes territorial leases to have a purely political dimension that is lacking in private-law leases, regardless of any other aspects that may be present in either type. This dimension is frequently visible through implementation; Alexander Cooley, for example, noted that Russia’s leases of territory from post-Soviet states where the Soviet

64  Lazar, “The Status of the Leasehold,” vi. 65  A lease allows a state to adjust the size and location of the geographic space where it exercises authority, one of the few alterations it can make vis-à-vis its territory to protect, sustain or enhance itself as the other characteristics of territory (e.g., topography, climate and the presence or absence of natural resources) are less amenable to being changed. Together, a state’s territorial characteristics can affect its security, economy, influence and dependence, and thus have a bearing on its relative strength or weakness in the international system (Michael J. Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Disputes (Paris: L’Harmattan, 2010), 18).

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Union had strategic installations “has helped (. . .) to preserve regional political stability.”66 The political aspect of a territorial lease is impossible to ignore because territorial leases are inherently political instruments—they are agreements between governments that act as agents of their states in the geopolitical sphere, and they have political consequences: a territorial lease establishes a geographic space where the servitude becomes a factor in the bilateral relations of the states that create it and can affect their relations with other states. As Váli observed, the political background of such situations is likely to overshadow considerations as to their legal character. Although their purposes may be different, in fact such grants involve the increase of the power of the grantee state and a diminution not only of prestige but also of strategical and economic advantages on the part of the grantor.67 Wariness about the potential for a lease to be detrimental for the lessor has led a handful of nations, such as Venezuela and Paraguay, to have constitutional prohibitions against leasing their sovereign territory,68 although the ambiguity that diplomacy can inject seems to permit arrangements that comply with the definition elaborated here. The United States, for example, acknowledged that Paraguay had allowed U.S. military troops to be stationed for a limited period in a zone where the United States was also granted certain jurisdictional rights, but called the idea of a U.S. base there a “myth” and a “theory.”69 Indeed, one reason for the fluid vocabulary of leasing arrangements is that attempts are sometimes made to obfuscate their nature and influence their political impact by using or avoiding certain terms, as was illustrated when Israel and Jordan negotiated a definitive boundary as part of their 1994 peace 66  Alexander Cooley, “Imperial Wreckage: Property Rights, Sovereignty, and Security in the Post-Soviet Space,” International Security 25, no. 3 (2000–01): 102. 67  Váli, Servitudes of International Law, 273. 68  Constitución de la República Bolivariana de Venezuela (1999), tit. II, ch. I, art. 13: “El territorio no podrá ser jamás cedido, traspasado, arrendado, ni en forma alguna enajenado, ni aun temporal o parcialmente, a Estados extranjeros u otros sujetos de derecho internacional.” Constitución de la República del Paraguay (1992), pt. II, tit. I, ch. IV, sec. I, art. 155: “El territorio nacional jamás podrá ser cedido, transferido, arrendado, ni en forma alguna enajenado, aún temporalmente, a ninguna potencia extranjera.” 69  U.S. Department of State, “United States Has No Plans for Military Base in Paraguay” (press release), Jan. 11, 2006.

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treaty. Israeli Prime Minister Yitzhak Rabin and Jordan’s King Hussein took part in resolving the issue of two small areas long-farmed by Israelis but that the proposed boundary would place inside Jordan;70 in discussing one of them, Rabin failed to convince the king to adjust the boundary to accommodate the Israeli farmers, but then proposed a solution that was agreed for both zones. A senior Jordanian negotiator, Munther J. Haddadin, recounted the conversation: “Why don’t you, Your Majesty, lease it to us for some time?” asked Rabin. “The notion of lease is not on the table,” said the King, “but for how long  do you want to stay in it?” “Say, 25 years, renewable by mutual consent.” “This sounds reasonable.”71 The arrangements for the areas, Naharayim/Baqura and Zofar/Al-Ghamr, were called “special regimes” in the treaty. Rabin said in reference to Naharayim/ Baqura that “this is not a leasing arrangement,”72 and Haddadin wrote in reference to Zofar/Al-Ghamr that “the deal was not that of a lease, it was a Jordanian permission.”73 Yet the twin arrangements fooled no-one; they appeared to be leases and were widely perceived as such, which had political consequences, as the New York Times reported: The leasing arrangements were seen by some as a possible precedent for Israel’s far more difficult negotiations with Syria on the future of the Golan Heights and Israeli settlements there. But President Hafez al-Assad of Syria threw ice water on that idea while visiting Cairo today. Not only did he once again rule out any compromise on a full Israeli withdrawal from the Golan but he also said “it would be blasphemy for any country to speak of leasing its land to other leaderships.”74 70  Munther J. Haddadin, Diplomacy on the Jordan: International Conflict and Negotiated Resolution (Boston: Kluwer, 2002), 394. 71  Ibid., 394. 72  Yitzhak Rabin, speech to the Israeli Knesset (parliament), Jerusalem, Oct. 25, 1994, http://mfa.gov.il/MFA/PressRoom/1994/Pages/PM%20RABIN%20AT%20KNESSET%20 DEBATE%20ON%20THE%20APPROVAL%20OF%20ISRA.aspx, accessed Nov. 6, 2013. 73  Haddadin, Diplomacy on the Jordan, 394. 74  Clyde Haberman, “At the Jordan Border, Israeli Farmers Hail the Peace Accord,” NY Times, Oct. 19, 1994, A12.

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The attempts to portray the arrangements as something other than leases soon diminished, and within a year one Israeli government minister referred to them as “a land-lease model.”75

Variations in Territorial Leases

Some scholars categorize territorial leases between states as different types of arrangements depending on their objective (economic, military, etc.),76 on the scope of territorial rights that are transferred or on variables in their other features. Lauterpacht, for instance, distinguishes between “international leases of a purely private law type,” which generally involve small areas, grant limited rights to the lessee and have a strictly legal character “unobscured by political interpretations,” and “political leases,” in which the lessee state obtains wideranging rights to display aspects of its sovereignty on the leased territory.77 An insightful master’s thesis by Raymond Elvin separated territorial leases that are perpetual from those that are not, in view of the implications that perpetuity has for the final disposition of the leased territory.78 This can be useful in understanding the breadth and depth of the practice, although these classifications may fail to convey the full nature of the arrangements. The fact is that Lauterpacht’s leases of a private-law type are also political leases because both types have a political character—the variable being the degree to which it is evident in its text. It may be minimal or unstated, in which case the text may resemble a private-law contract and be interpreted and implemented as such, but it is never absent as long as the arrangement is between two political actors.79

75  The phrase was used by agriculture Minister Ya’akov Tzur in a newspaper interview. See Dalia Mazori, “So, What Have We Achieved: Agriculture and Water,” Ma’ariv, Business Supplement, July 25, 1995. 76  Charles Rousseau, Cours de droit international public (Paris: Les Cours de Droit, 1956), 114–37. 77  Lauterpacht, Private Law Sources, 183–87. 78  Raymond Elvin, “The Status of Leased Territories in China in International Law” (master’s thesis, University of Minnesota, 1931), 22. 79  According to Pitman B. Potter, territorial leases between states can be considered as both political and technical agreements rather than as one or the other alone. He maintained that both aspects exist even if only one is displayed at a given time: “The making of law may be carried on in a very technical way, with close and expert calibration to the subject in question rather than by free caprice, while administration of the law may become very

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This point is illustrated by one of Lauterpacht’s own examples of a lease (actually two simultaneous leases) that he considered as being of the privatelaw type, involving two small territories in western Africa that France leased from Great Britain in 190380 pursuant to an 1898 treaty that mandated the creation of the leases.81 Citing the treaty, Lauterpacht said the arrangements would be “for the purposes of landing, storage, and transhipment of goods,”82 and the leases’ texts duly reflected this. Yet the leases were vital to the treaty’s objective, which was purely political—delimiting the two nations’ spheres of influence in the region. In addition, the leases and the treaty were mutually dependent: the leases allowed France to accept British control of the area where the staging sites would be located in the knowledge that the sites would let France supply provisions to the areas under its control.83 Variations among territorial leases reflect the fact that each lease (or related cluster of leases, e.g., as with a state that leases multiple sites abroad for military bases) addresses one or more specific issues involving the territorial interests of the states involved. Although the history of territorial leases predates the existence of modern states, no single lease has ever become a widely accepted precedent, with the result that each lease or cluster has its own unique elements that reflect its objectives, the amount of territory involved, the type of territory (land, water, etc.), and the nature and extent of the rights that comprise the servitude it establishes. While each element of a territorial lease can be manifest in different ways, it is also possible to distinguish a number of features that leases (and the political and capricious” (Pitman B. Potter, “Note on the Distinction between Political and Technical Questions,” Political Science Quarterly 50, no. 2 (1935): 270). 80  Lease by the British Government to the French Government of a Piece of Land Situated at the Junction of the Doko with the Niger (Badjibo) (“Arenberg Lease”), May 20, 1903, Gr. Brit.-Fr., 2 Hertslet, The Map of Africa by Treaty, 3rd ed. 812 (H.M. Stationery Office 1909); Lease by the British Government to the French Government of a Piece of Land Situated at the Mouth of the Niger known as the Forcados River (“Forcados Lease”), May 20, 1903, Gr. Brit.-Fr., ibid., 814. The leased areas became known as the Arenberg and Forcados Enclaves. 81  Convention between the United Kingdom and France for the Delimitation of their Respective Possessions to the West of the Niger, and of their Respective Possessions and Spheres of Influence to the East of that River (“Niger Convention”), June 14, 1898, U.K.-Fr., art. VIII and annex 4, 30 Martens Nouveau Recueil (ser. 2) 249. 82  Lauterpacht, Private Law Sources, 183, citing ibid., annex 4. 83  For a history, see Kenneth Lupton, “The Partitioning of Borgu in 1898 and the French Enclaves in Nigeria, 1900–1960,” Journal of the Historical Society of Nigeria, 12, nos. 3–4 (1984–85): 77–94.

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servitudes they create) have in common, observable by their presence in the practice of states: 1 2. 3.

4. 5. 6. 7. 8.

9.

Components – A territorial lease involves two states and a defined area of territory. Interests – Each state involved in a lease has an interest in the territory concerned, e.g., a claim of sovereignty or a desire for rights there. Benefits – Each state derives a benefit from the arrangement. The lessee can display sovereign authority on additional territory. The benefit for the lessor is usually non-territorial, although occasionally there have been reciprocal leases in which each state leases an area under its sovereignty to the other.84 Boundaries – A territorial lease does not alter the boundaries of the states involved. Location – The territory involved in a lease is entirely within the lessor state. Size – The territory covered by a lease is normally smaller than, but may in theory be equal to, the territory of the lessor state. Legitimacy – For each state involved, a territorial lease confirms or creates a legal connection with the area it covers. Sovereignty issues – The lessor state’s sovereignty over a leased territory is affirmed explicitly or implicitly, usually in the lease’s text, while the lessee state is entitled to display a defined range of sovereign competences on that territory. Mutual will – A territorial lease involves the consent of both states. Reid claimed that the resulting servitudes “are not necessarily, nor even usually, burdens laid upon one nation by another, solely for the latter’s benefit; they are rights, often of great mutual value, and freely granted by one nation to another,”85 although Cooley was more historically accurate in noting that lease agreements may be voluntary or coerced by the stronger state.86

84  Great Britain and the Congo Free State, for example, had reciprocal leases of territory in Africa at the end of the 19th century (Agreement between Great Britain and His Majesty King Leopold II, Sovereign of the Independent State of the Congo, relating to the Spheres of Influence of Great Britain and the Independent State of the Congo in East and Central Africa (“British-Congolese Leases”), May 12, 1894, Gr. Brit.-Congo, art. II, III, 86 British and Foreign State Papers 19). 85  Reid, International Servitudes, xxi. 86  Cooley, “Imperial Wreckage,” 104.

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10. Character – A lease normally creates a “negative” servitude insofar as it restricts the lessor state’s display of sovereignty on part of its territory. 11. Creation – The agreement that establishes a lease is usually a treaty but may be any type of agreement between states, such as an executive agreement or an exchange of diplomatic notes. 12. Duration – A lease may exist for a limited period, fixed or indefinite, or it may be permanent, with the duration usually specified in the lease’s text. 13. Onward transfer of rights – A lessee state may, within the scope of its authority on the leased territory, assign some of its rights to another state or back to the lessor.87

Why States Opt for Leases

The leasing of territory, Elie van Bogaert wrote, seems “the practical formula for covering a diversity of situations.”88 Yet leases have never been a primary method for dealing with territorial issues, which raises the question of why states decide to create them as opposed to pursuing their territorial objectives through more conventional means. The reasons are not always discernable from publicly available information, although historical and anecdotal records pertaining to a number of cases allow us to conclude that the range of motivations is quite broad. They also show that the idea of leasing sometimes emerges from a structured process of negotiation and at other times reflects diplomatic creativity, and that the leases themselves can take years to negotiate or may be drafted extremely rapidly (the leases in the Israel-Jordan Peace Treaty were made under such time pressure; the issues they addressed were the last items still unresolved when work on the treaty was otherwise finished).89 These variations help explain why some territorial leases between states are meticulously detailed while others are very brief with language that is general, even vague. What becomes evident through examining many cases is that leases reflect the pragmatic behavior of states. A formal transfer of sovereignty may be 87  Strauss, The Leasing of Guantanamo Bay, 24–25. The leases created through the Niger Convention allowed France, the lessee, to assign its rights to third parties by subletting (Niger Convention, annex 4). The United States, while leasing the Canal Zone from Panama, granted certain rights there to Panama (Treaty of Mutual Understanding and Cooperation (“Remon-Eisenhower Treaty”), Jan. 25, 1955, U.S.-Pan., 6 U.S.T. 2273). 88  Bogaert, “The Lease of Territory,” 316. 89  Strauss, The Viability of Territorial Leases, 175–76, 183.

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considered too disproportionate relative to the importance of the territorial issue at hand, or too definitive relative to its anticipated duration, whereas a lease is a less extreme option.90 At times a lease is used in resolving a territorial issue when other potential solutions prove too difficult to negotiate, in which case it can be either a solution in its own right (a term of perpetuity may indicate this intent)91 or a temporary measure to buy time until the issue dissipates or diminishes in importance or until conditions become more favorable for achieving a different type of settlement. Thus, in assessing Russia’s lease of a port at Sevastopol, Ukraine, for its Black Sea naval fleet after the breakup of the Soviet Union,92 Cooley observed: Despite criticism on both sides, the treaty does seem, for the time being, to have brought a stable resolution to what was once thought to have been an intractable problem.93 When states consider leasing as an option for resolving a territorial issue, they change its nature from being about “all-or-nothing” sovereignty into being about specific attributes of sovereignty,94 and thereby open new channels for negotiating its resolution. A lease can thus keep a potentially contentious

90  Ibid., 88. 91  This was the case when Spain granted a perpetual lease of Quinto Real Norte (Pays Quint Septentrional) to France in 1856 after prolonged talks about a French purchase or exchange of territory proved fruitless. A French military general dispatched to the region had reported back that French attempts to negotiate control of the land might be achievable by means of, “if one could not do it otherwise, a payment of an indemnity or annual rent” (ibid., 139, citing a letter from General Harispe to the Minister of War, Aug. 6, 1847). For the lease, see Treaty Delimiting the Frontier from the Mouth of the Bidassoa to the Point where the Department of Basses-Pyrenees Adjoins Aragon and Navarra (“Treaty of Bayonne”), Dec. 2, 1856, Spain-Fr., art. 15–19, 1142 U.N.T.S. 318, trans., 371. 92  Agreement between the Russian Federation Government and the Ukrainian Government on Mutual Settlements Associated with the Division of the Black Sea Fleet and the Russian Federation Black Sea Fleet’s Presence on Ukrainian Territory (“Sevastopol Lease”), June 7, 1997, Russ.-Ukr., trans., http://zakon.nau.ua/eng/doc/?uid=3016.169.0, accessed Nov. 13, 2013; renewed by Угода між Україною та Російською Федерацією з питань перебування Чорноморського флоту Російської Федерації на території України [Agreement between Ukraine and the Russian Federation about the Russian Federation’s Black Sea Fleet on Ukrainian Territory] (“Sevastopol Lease Renewal”), Apr. 21, 2010, Ukr.Russ., http://zakon.nau.ua/doc/?uid=1079.4819.0, accessed Nov. 13, 2013. 93  Cooley, “Imperial Wreckage,” 120. 94  Strauss, The Viability of Territorial Leases, 281.

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matter from escalating into an armed conflict95 or alleviate a dispute that has reached that point already,96 or it may avert recourse to an international legal process. (At the same time, a lease may address a territorial question in such a way that it generates other legal or political issues for the nations involved and for international law more generally.)97 Territorial lease agreements also can serve political objectives. A lease can, for example, allow each party to publicly assert that it has a degree of control in a contested territory. In a similar vein, the leases of parts of China’s sovereign territory by European powers at the end of the 19th century were partially driven by a common diplomatic concern: to control key locations in a way that would save face for China as a sovereign state weakened by war.98 In the context of the European nations’ own competition for power, some historians argue that the leases prevented the disappearance of China as a state, which could have occurred had the European powers demanded cessions of title and sovereignty instead.99 A different political motive was behind the Soviet Union’s initiative to lease part of the Saimaa Canal to Finland.100 While Finland would gain 95  The Niger Convention, which produced the leases of the Forcados and Arenberg Enclaves, was credited with averting a war between Great Britain and France over west Africa (see, e.g., Claire Hirschfield, “British Policy on the Middle Niger, 1890–1898,” in Diplomacy in an Age of Nationalism, ed. Nancy N. Barker and Marvin L. Brown, Jr. (The Hague: Martinus Nijhoff, 1971), 192). 96  The lease of Tin Bigha by Bangladesh from India in 1992 established a corridor that linked Bangladesh to a large enclave surrounded by Indian territory, ending a situation that had caused periodic fighting between both nations’ military forces in the area. See Willem van Schendel, “Stateless in South Asia: The Making of the India-Bangladesh Enclaves,” Journal of Asian Studies 61, no. 1 (2002): 137–38; Terms of Lease in Perpetuity of Tin Bigha—Area (“Tin Bigha Lease”), Oct. 7, 1982, India-Bangl., http://www.hcidhaka.org/terms_lease .php, accessed Nov. 14, 2013; Letter of Foreign Secretary of India Implementing Tin Bigha Lease (“Tin Bigha Implementation Agreement”), Mar. 26, 1992, India-Bangl., http://www .hcidhaka.org/letter_sc.php, accessed Nov. 14, 2013. 97  See generally Strauss, The Leasing of Guantanamo Bay. 98  Carol G.S. Tan, British Rule in China: Law and Justice in Weihaiwei, 1898–1930 (London: Wildy, Simmonds & Hill, 2008), 78–79. 99  See, e.g., Westel Woodbury Willoughby, Foreign Rights and Interests in China (Baltimore: Johns Hopkins Press, 1920), 269; Peter Wesley-Smith, “Cultural Problems in Negotiation of the Convention of Peking, 1898,” in Cultural Factors in International Relations, ed. R.P. Anand (New Delhi: Abhinav, 1981), 116–17. 100  Agreement between the Republic of Finland and the Union of Soviet Socialist Republics concerning the Lease to the Republic of Finland of the Soviet Part of the Saimaa Canal and Maly Vysotsky Island (“Saimaa Canal Treaty”), Sept. 27, 1962, Fin.-U.S.S.R., 479

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economically by having a link between its network of inland waterways and the Baltic Sea, the Soviet aim was to enhance what we would call today its “soft power.” As Ronald A. Helin wrote: It appears fairly obvious that a desire to polish and promote before the world the carefully cultivated image of the Soviet Union as a great power governed by leaders who are ever respectful of the wishes and vital interests of smaller, less powerful neighbors enjoyed high precedence among the motives that led Soviet officials to support the treaty. To quote the sentiment of one Soviet commentator, “For the first time in the world, a great power is leasing part of its territory to a small country. This runs diametrically opposite to normal practice. The temporary transfer of the Soviet part of the Saimaa Canal to Finland illustrates the goodwill and sincere trust that govern relations between our neighboring countries. It confirms that fraternal collaboration between countries with different social systems can take forms unprecedented in international relations when both parties subscribe to the principle of peaceful coexistence.”101 According to Helin, Soviet officials also may have supported the idea of a lease in the hope that an arrangement of this type would “strengthen and supplement the numerous geographically conditioned ties that already obligated Finland to the Soviet Union.” He ruled out a financial motive for the Soviets (“the rental fees and lump-sum compensations are too small to have had practical significance for the leaders of a country with so large a national budget”), but speculated that restoring the dormant canal to use might have economic benefits such as reviving a nearby port and allowing forests in the region to be exploited.102 At the opposite extreme, Reid asserted that a servitude created by a territorial lease can remove an issue from the political sphere by virtue of the U.N.T.S. 122; renewed by Договор между Российской Федерацией и Финляндской Республике об аренде Финляндской Республикой российской части Сайменского канала и прилегающей к нему территории и об осуществлении судоходства через Сайменский канал [Agreement between the Russian Federation and the Republic of Finland on Finland’s Lease of the Russian Part of the Saimaa Canal and the Adjacent Area and on the Implementation of Navigation through the Saimaa Canal] (“Saimaa Canal Renewal Agreement”), May 27, 2010, Russ.-Fin., Бюллетень международных договоров [Bulletin of International Treaties] 2012, no. 5. 101  A. Helin, “Finland Regains an Outlet to the Sea: The Saimaa Canal,” Geographical Review 58, no. 2 (1968): 193–94. 102  Ibid., 193–94.

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27

agreement’s similarity to a private-law contract, as the resulting connotations may keep matters that arise from its interpretation or implementation politically benign. She gave the example of a servitude created in 1816 that involved Dutch mining rights in Prussia, noting that no diplomatic involvement was necessary when a dispute occurred because it was resolved in a commercial context: When litigation arose nearly a century after the creation of the right, it was not in the form of an international dispute, and the decision rendered was by the court of one contracting party.103 Some states have engaged in territorial leasing repeatedly over extended periods, and a few have been on both sides of these transactions, acting as the lessee in some cases and the lessor in others.104 This suggests that the accumulated experience of engaging in such arrangements, or simply deriving benefits from them, also plays a role in prompting states to consider leasing as a way to resolve some of their territorial concerns.

103  Reid, International Servitudes, 57–58. 104  Russia, for example, is concurrently the lessor of the Saimaa Canal to Finland and the lessee in other leases, e.g., one in which it obtained rights in the zone of the Baikonur space complex from Kazakhstan (On Basic Principles and Terms of the Utilization of the Baikonur Cosmodrome Agreement between the Russian Federation and the Republic of Kazakhstan (“Baikonur Lease”), Mar. 28, 1994, Russ.-Kaz., trans. Maria Bjornerud, in Maria Bjornerud, “Baikonur Continues: The New Lease Agreement between Russia and Kazakhstan,” Journal of Space Law 30 (2004): 26–31; revised and prolonged by Agreement between the Russian Federation and the Republic of Kazakhstan on the Cooperation in the Effective Use of the Baikonur Facility (“Baikonur Lease Prolongation”), Jan. 9, 2004, Russ.-Kaz., trans. Maria Bjornerud, in ibid., 32–34).

CHAPTER 2

Conceptual Sources

States and Territory

Despite strains and challenges, the international system of states that emerged from the Treaties of Westphalia in 1648 remains a coherent structure grouping the principal actors of international relations and international law. A critical factor in its endurance is the relationship between the states that comprise the system and the territory associated with them. Territory is fundamental to a state’s existence,105 and a state’s relationship with territory is fundamental to its viability. Throughout its history, the system has shown itself to be consistently strong and resilient by means of this relationship: territory associated with unsustainable states rapidly becomes associated with successor states, whether the successors are new states (e.g., through decolonization or a political breakup) or already existing states (e.g., through annexation).106 When a state ceases to

105  According to the Montevideo Convention’s widely accepted definition, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states” (Convention on Rights and Duties of States (“Montevideo Convention”), Dec. 26, 1933, art. 1, 165 L.N.T.S. 19, 49 Stat. 3097). Some scholars do not consider the last attribute essential (e.g., Nguyen Quoc, et al., Droit international public 408–19), but the requirements of population, territory and government are generally unchallenged. Nonetheless, the hypothesis that a state might exist without territory has persisted for years (H. Lauterpacht, “Recognition of States in International Law,” Yale Law Journal 53, no. 3 (1944): 412) and is revived occasionally, e.g., with the issue of global warming (Selma Oliver, “A New Challenge to International Law: The Disappearance of the Entire Territory of a State” International Journal on Minority and Group Rights 16 (2009): 209–43) or that of the status of Palestine (General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer State’ Status in United Nations, U.N. General Assembly Doc. GA/11317, Nov. 29, 2012). 106  As examples in recent years, all of the territory comprising the former Soviet Union and the former Yugoslavia became associated with successor states. Similarly, scenarios for a potential future breakup of Belgium involve Flanders and Wallonia becoming new states, or Wallonia being annexed by France (Bernard Demonty, “Le rattachement à la France a cessé d’être un tabou,” Le Soir, July 29, 2008, 2).

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004293625_004

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exist, none of the territory associated with it is abandoned by the system in the sense of reverting to terra nullius.107 To have territory is to have resources for self-preservation and geopolitical power, and the unequal distribution of territory among states has generated countless conflicts. “Territory remains at the center of states’ concerns,” wrote Giovanni Distefano.108 Indeed, the striving to create new states out of available territory remains a considerable force, as evidenced by the body of political behavior and international law that has developed around the principle of selfdetermination: liberation groups that seek to break away from existing states always do so in a territorial sense in addition to a political or social sense, with the goal being statehood for “their” territory. Likewise, newly created states tend to seek legitimacy for their territorial presence by securing recognition from other states, and through acts such as joining international organizations. Statehood has thus proven to be a workable means of ordering the world’s territory, surviving even monumental challenges such as war—wherever it occurs and regardless of its destructive power, states are what exist both before and afterward. Today, the features of statehood are well-established, and its rules, embodied by international law and observed in international relations, are highly sophisticated. With states covering all inhabited parts of the earth for at least the last two centuries, it can be said that the territory of every new state has been associated with at least one state previously. The institutions of statehood thus adapt to new situations but no longer must be developed from zero for any territory. All of this indicates that the international system remains a healthy phenomenon whose attributes can sustain it for the foreseeable future. The relationship between state and territory is thus of overwhelming importance to the existence of the international order, yet the nature of this relationship has never been fully resolved. Different theories have emerged, sometimes overlapping in time and influence, and the resulting picture is that of a stable international system—stable in that it remains intact despite the coming and going of individual states—built on an unstable intellectual foundation. But there is a likely explanation: at the time the system was taking shape, there was no theoretical basis to rely on; this foundation only developed later as scholars sought to explain what they observed. And what they observed, in effect, was pragmatic behavior by the entities that became 107  Although it could happen, “a case of that kind has never as yet occurred” (Summary Record of the 1504th Meeting, Yearbook of the International Law Commission, 1978, Vol. 1, U.N. Doc. A/CN.4/SER.A/1978 (1979), 161). 108  Giovanni Distefano, L’ordre international entre légalité et effectivité: Le titre juridique dans le contentieux territorial (Paris: A. Pedone, 2002), 9.

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identified as states, as evidenced by their actions vis-à-vis territory, inhabitants and each other. This pragmatism has arguably been a prevalent force within the Westphalian system and a major contributor to its adaptability and durability.

State-Territory Relationship Theories

The theories that became prominent in attempting to explain the relationship between state and territory are credited mainly to European legal thinkers of the 19th and early 20th centuries. Incorporating and sometimes mingling notions of imperium (authority) and dominium (ownership), they view territory variously as the state itself, as external to the state but belonging to it, or as the geographic space where the state has authority.109 1. The “subject theory” (Eigenschaftstheorie or territoire-sujet theory) considers territory to be a feature of the state’s very being—“the state personified,”110 or “the state itself in what is called its territorial aspect.”111 It equates the personality of a state with a territorial area that cannot be altered without the state itself being transformed,112 drawing criticism from theorists who viewed a state as having the capability to evolve territorially. According to Eelco Nicolaas van Kleffens, “if the territory of a state is of its essence, any modification of that territory would result in the state losing its identity.”113 Charles Rousseau noted that the theory was ill-adapted to the realities of state behavior, as it failed to rationally explain territorial cessions and the sharing of competences by more than one state or within a federal state.114 As Charles G. Fenwick observed, “changes in the area of a state, due to annexation of additional territory or to voluntary or forced cessions, do not affect its

109  For extended discussions of the historical development of these theories, see Julio Barberis, “Les liens juridiques entre l’Etat et son territoire: perspectives théoriques et évolution du droit international,” Annuaire français de droit international 45 (1999): 132–47; Mónica García-Salmones Rovira, The Project of Positivism in International Law (Oxford: Oxford University Press, 2013), 189–97. 110  Rousseau, Cours de droit international public, 17. 111  Eelco Nicolaas van Kleffens, “Sovereignty in International Law,” in Recueil des cours de l’Académie de Droit International de La Haye, Vol. 82, 1953-I, (Leiden: A.W. Sijthoff, 1954), 95. 112  Distefano, L’ordre international, 37. 113  Van Kleffens, “Sovereignty in International Law,” 96. 114  Charles Rousseau, Droit International Public, Vol. 2 (Paris: Sirey, 1974), 47–48.

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international personality.”115 The subject theory ultimately lost favor for this reason; the practice of states showed not only that states could survive the addition or subtraction of territory, but also that this was a fairly common occurrence within the international system rather than an exceptional situation that might have allowed the theory’s essential idea to stay valid. 2. The “object theory” (Eigentumstheorie or territoire-objet theory) views territory as the property of a state and the object of its power and exercise of sovereignty—in other words, what a state has rather than what a state is. This theory grew out of Roman law that shaped concepts of land ownership in medieval times,116 and it achieved broad acceptance for many decades spanning the second half of the 19th century and the first half of the 20th century. Lauterpacht asserted in the 1920s that it was still the dominant theory at the time, “owing to its intrinsic merits” in the face of newer theories,117 but by the 1950s Van Kleffens claimed that the object theory had few adherents left.118 Likewise, Nguyen Quoc et al. dismissed the object theory as obsolete.119 Distefano acknowledged that the theory does capture part of the truth of the state-territory relationship by providing a plausible conceptual explanation of the activities that a state exercises on its territory, such as acquisition, cession and administration, while noting its inadequacy in explaining the state-territory relationship in a broader sense.120 Krystyna Marek remarked that as property is external to its owner, “the logical result of the conception of territory as the ‘property’ of the state would be that even a total and final loss of territory would in no way interfere with the State’s continued existence.” She attributed the theory’s demise to the contradiction between this and the inherent necessity for a state to be associated with territory.121 3. In the “limit (territoire-limite) theory,” territory is the bordered area where a state exercises exclusive governmental power.122 It won adherents by highlighting the link between territory and government,123 while detractors 115  Charles G. Fenwick, International Law (New York: Appleton-Century-Crofts, 1948), 105. 116  Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (Leiden: Martinus Nijhoff, 2006), 67. 117  Lauterpacht, Private Law Sources, 93. 118  Van Kleffens, “Sovereignty in International Law,” 94–95. 119  Nguyen Quoc et al., Droit international public, 413–14. 120  Distefano, L’ordre international, 35–37, 39. 121  Krystyna Marek, Identity and Continuity of States in Public International Law, 2nd ed. (Geneva: Droz, 1968), 18–20. 122  Georges Scelle, Droit international public, 3rd ed. (Paris: Les Cours de Droit/DomatMontchrestien, 1946–47), 96–97. 123  Nguyen Quoc et al., Droit international public, 414.

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criticized it for treating territory as a restrictive concept that did not account for a state’s extraterritorial actions124 or the competences it has outside of its boundaries as the result of its authority on territory inside them.125 4. The “space theory” (Raumtheorie) considers territory to be the geographic space where a state has jurisdiction, notably over persons, rather than the area that is directly subject to its power (as in the limit theory). Georg Jellinek called territory “the indispensable spatial basis” for a state to exercise power indirectly through its subjects.126 As stated succinctly by Lauterpacht, “the state rules within the territory, not over it.”127 This theory did not appear to have much influence beyond the early decades of the 20th century, as evidenced by its disappearance from susbsequent literature. 5. The “living space” theory (Lebensraum or espace vital theory) equates the state with the territory necessary for the preservation and development of its population.128 It allows for the territorial area of a state to evolve with these needs, but it effectively lost its validity through its aggressive execution by Germany during World War II129 and the strengthening of the principle of territorial integrity. The theory, elaborated by Friedrich Ratzel,130 is noteworthy for having provided an intellectual justification for states to try to alter their territorial dimensions. 6. The “competence theory” (Kompetenztheorie), also called the “jurisdictional theory,” makes the state-territory relationship one of spatial legal authority and progressively displaced the object theory to become the prevalent one today. Elaborated by Ernst Radnitzky at the start of the 20th century131 and subsequently developed by others, notably Hans Kelsen and Alfred Verdross, it came to equate territory with what Kelsen described as “the territorial sphere of validity of the legal order called State.”132 124  Rousseau, Cours de droit international public, 28–29; Rousseau, Droit International Public, 50. 125  Rousseau, Droit International Public, 51. 126  Georg Jellinek, L’Etat moderne et son droit, Vol. 2, trans. Georges Fardis (Paris: M. Giard & E. Brière, 1913), 22–24. 127  Lauterpacht, Private Law Sources, 93. The italics are his. 128  Woodruff D. Smith, “Friedrich Ratzel and the Origins of Lebensraum,” German Studies Review 3, no. 1 (1980): 53–55. 129  Rousseau, Cours de droit international public, 32–34. 130  Friedrich Ratzel, La Géographie politique: Les concepts fondamentaux, trans. François Ewald (Paris: Fayard, 1987), 105–15. 131  Julio Barberis, “Les liens juridiques entre l’Etat et son territoire,” 139, citing Ernst Radnitzky, “Die rechtlicht Natur des Staatsgebietes,” Archiv für öffentliches Recht 20 (1906): 313–55. 132  Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (1945, repr., Clark, N.J.: Lawbook Exchange, 2009), 208.

Conceptual Sources

33

Early criticism of the competence theory (in the 1920s, Lauterpacht asserted that it was “unrelated (. . .) to the practice of States”)133 led to its evolution. Benedetto Conforti wrote that while it did not at first seem aligned with the ways that states treated territory as an object, this was addressed to some extent by further developing the theory to include, among the state’s competences, a territorial competence by which a state could “renounce its normal spatial competence.”134 Van Kleffens called it “undoubtedly the most satisfactory legal theory with regard to territory,”135 and Nguyen Quoc et al. deemed it “perfectly compatible with all aspects of the territorial grasp of the state.136 Despite the competence theory’s current dominance, some of the other theories have not been entirely discarded. Nguyen Quoc et al. insisted that accepting the competence theory also demands the retention of the limit theory as well, because a state’s right to act on territory must have geographical limits.137 Meanwhile, the continued relevance of the object theory cannot be discounted because state practice provides ample evidence of its application. This is seen in a multitude of ways that, taken together, suggest this theory warrants renewed attention: – The conclusion of territorial transactions between states that closely emulate, in both concept and form, the treatment of property in private law. – The creation of contractual obligations pertaining to territories involved in these transactions (e.g., rent) or the transfer between states of existing obligations (e.g., debts), and the ongoing compliance with obligations created or acquired in past transactions. – The terminology used by states in describing their own relationships with territory over which they have sovereignty or some degree of control. – The proliferation of concepts regarding territory in international law that derive from Roman property law (e.g., “title to territory” and the principle of uti possidetis juris).

133  Lauterpacht, Private Law Sources, 94. 134  Benedetto Conforti, “The Theory of Competence in Verdross,” European Journal of International Law 5, no. 1 (1994): 71–72, citing Alfred Verdross, Die Verfassung der Volkerrechtsgemeinschaft (1926), 184 et seq., and Volkerrecht, 3rd ed. (1955), 192 et seq. 135  Van Kleffens, “Sovereignty in International Law,” 96. 136  Nguyen Quoc et al., Droit international public, 414. 137  Ibid., 414.

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The fact that states routinely dispose of the physical elements that constitute territory—natural resources over which they have sovereignty— by treating them as property. The current writings of international law scholars, as well as others ranging from political scientists to sociologists, who refer to territory as being the property of a state.

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Territorial Transactions as Property Transactions

As the international system of states developed and spread, control over territory became equated with possession. Although possession and ownership are not the same in law, both refer to property and they can coincide, and by this route the various rights associated with the ownership of property in private law flowed into the sphere of states. As Enrico Milano summarized it: It is clear that possession, which in the very origin of Roman law was identified with property, became a just title to acquire property in the case of land belonging to nobody, and its theory was transposed to international territorial acquisitions. Possession stressed the role of effective occupation on a certain land. The material rather than the psychological element in the classic Roman doctrine emphasised its fundamental function, since the animus, the consciousness of a certain possessory relationship was the natural consequence of a factual situation. Yet the re-elaboration of the original material by medieval lawyers brought a transformation by emphasising the psychological element and giving it complete autonomy and sometimes pre-eminence over the material element. Occupation of terra nullius became doctrine in the 16th and 17th century Roman law, conceived as a pure psychological status opposable erga omnes. This historical context inevitably influenced the fathers of international law, who dealt at the same time with individual property and territorial sovereignty, often making no distinction between them.138 According to Lauterpacht, nothing suggests that international law will discard the conceptual commingling between property ownership in private law and the sovereignty of states. “The reaction of patrimonial ideas cannot obliterate the fact that the two notions are essentially analogous on account of the exclusiveness of enjoyment and disposition which is in law the main formal 138  Milano, Unlawful Territorial Situations in International Law, 81.

Conceptual Sources

35

characteristic of both private property and territorial sovereignty. They belong, in juridical logic, to the same class of rights.”139 Eugène Ortolan, writing in 1851, noted that all of the characteristics of private property ownership are equally applicable for states. As private property is the exclusive attribution of property to someone with the requirement that others respect this attribution, so an obligation exists among states to respect the actions of each one’s population on its territory, he said, in asserting that the rights of a state with respect to territory are “entirely analogous” to rights involving private property: It is always the case that, considered as a whole, the state has toward other states the rights of an owner with respect to its territory: to use it, cultivate it, harvest its fruits, modify it, dispose of it; and all others are obliged to respect the action that it takes in this regard, be it exercised by individuals or through collective efforts.140 There are various ways that territory associated with one state can become associated with another through property-like transactions. During the 19th century a number of states sold and purchased territory; the geographic dimensions of France, Russia and the United States changed dramatically through the sales of Louisiana in 1803 and Alaska in 1867. As the practice of selling territory waned, leasing grew more widespread, and by the early 20th century many of the world’s states had concluded leases—the United States, Great Britain, France, Germany, Spain, Belgium, Russia, Panama, Cuba and China, to name a few. The practice has continued to expand and flourish until the present time. Since World War II, a number of military bases have been established this way.141 Such transactions show that when governments, acting as agents of states, actually put into practice their notion of the state-territory relationship, that notion is one of property—even if it is not exclusively so. This is further confirmed by the routine adherence by the acquiring state to commitments of a private-property nature, typically financial obligations, that arise from these

139  Lauterpacht, Private Law Sources, 95–96. 140  Eugène Ortolan, Des Moyens d’Acquérir le Domaine International ou Propriété d’Etat entre les Nations, d’Après le Droit des Gens Public, Comparés aux Moyens d’Acquérir la Propriété entre Particuliers, d’Après le Droit Privé; et suivis, de l’examen des principes de L’Equilibre Politique (Paris: Amyot, 1851), 18–20. 141  Váli, Servitudes of International Law, 208.

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transactions, even though there is no universal rule of international law that dictates such adherence.142 Thus, it has been state practice to assume the debt obligations incurred by a previous sovereign for an acquired territory, at least if the debts were incurred for the general good.143 Similarly, France continues to pay more than 70,000 € annually in rent to Spain for exclusive rights on a small territory in the Pyrenees called Quinto Real Norte, under terms of a lease that was concluded more than 150 years ago so French shepherds could have access to vital pasturelands.144 The sale and lease of territory could not happen, and today’s compliance with past agreements of this nature would not occur, if states did not view territory as being subject to practices and rules that were conceived for property in private law.

The Components of State Territory as Property

The four components of territory that have come to be legally associated with a state in its exercise of sovereign authority are land, water (internal and adjacent), airspace and subsoil.145 Each of these may have political, economic or social value, and a state’s sovereignty includes authority over the attributes that give it this value—as is seen most clearly in the way that sovereignty relates to natural resources. The connection was made explicit in U.N. General Assembly Resolution 626 in 1952, which referred to “the sovereignty of any State over its natural 142  James V. Feinerman, “Odious Debt, Old and New: The Legal Intellectual History of an Idea,” Law and Contemporary Problems 70 (2007): 195; Robert Howse, The Concept of Odious Debt in Public International Law, Discussion Paper 185, U.N. Conference on Trade and Development Doc. UNCTAD/OSG/DP/2007/4, 2007, 4. 143  Other debts incurred for strengthening a government’s power over its population were deemed not transferable to a successor state under the doctrine of odious debt, which developed after the United States won control of Cuba from Spain in the war of 1898; the United States refused to assume the debts that Spain had incurred to suppress insurrections there despite Spanish arguments that such assumption was inherent in a change of sovereignty (Damian Isern, Del Desastre Nacional y sus Causas (Madrid: Viuda de M. Minuesa de los Ríos, 1899), 518–20; M.H. Hoeflich, “Through a Glass Darkly: Reflections upon the History of the International Law of Public Debt in Connection with State Succession,” University of Illinois Law Review 1982, no. 1 (1982): 51–56; Howse, The Concept of Odious Debt, 10–11). 144  Strauss, The Viability of Territorial Leases, 137–91. 145  Brownlie, Principles of Public International Law, 105.

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resources,”146 and it was refined in Resolution 3171 in 1973, which “[s]trongly reaffirms the inalienable rights of States to permanent sovereignty over all of their natural resources, on land within their international boundaries, as well as those in the sea-bed, in the subsoil thereof, within their national jurisdiction and in the superjacent waters.”147 During the interim period, Resolution 1515 in 1960 considered natural resources as being external to the state in the sense that property is external to its owner (“the sovereign right of every State to dispose of its wealth and its natural resources”).148 Finally, the Charter of Economic Rights and Duties of States, contained in Resolution 3281 in 1974, brought these notions together: “Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.”149 In other words, natural resources as physical elements of territory are as much subject to a state’s sovereignty as territory itself as a sum of its elements, but when a resource is exploited and/or extracted it assumes the conceptual and legal status of property. The transfer of ownership of an extracted mineral is not considered a cession of territory, and can be subject to private rather than public law.150 Moreover, if a natural resource is considered property during and/or after its extraction, it is logical to perceive it as property before its extraction, a 146  U.N.G.A. Res. 626 (VII), Dec. 21, 1952 (“Right to Exploit Freely Natural Wealth and Resources”). 147  U.N.G.A. Res. 3171 (XXVIII), Dec. 17, 1973 (“Permanent Sovereignty over Natural Resources”). 148  U.N.G.A. Res. 1515 (XV), Dec. 15, 1960 (“Concerted Action for Economic Development of Economically Less Developed Countries”). 149  Charter of Economic Rights and Duties of States, art. 2, para. 1, U.N.G.A. Res. 3281 (XXIX), Dec. 12, 1974. 150  The precise conditions by which an element of territory can lose the status of “territory” subject to public law and become “property” subject to private law have not been determined, nor has the point at which this shift occurs. State behavior suggests the status of territory may be lost through events that introduce a significant difference between territorial matter in its original situation and in a subsequent situation—a change in physical location (e.g., extraction, transportation), a physical transformation (e.g., processing) or other factors, the number and strength of which may be determinants (Michael J. Strauss, “The State that Ate Europe! Iceland’s Volcanic Ash Cloud and Sovereignty over Mobile Territory” (paper presented at the Border Regions in Transition XI conference, Geneva/ Grenoble, Sept. 6–9, 2011)). For a summary of an on-line legal discussion that addressed the transition from natural resource to tradable product, see Melaku Desta, “To what extent are WTO rules relevant to trade in natural resources?” World Trade Organization, http://www.wto.org/english/res_e/publications_e/wtr10_forum_e/wtr10_desta_e.htm, accessed Dec. 19, 2013.

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conclusion that is in harmony with perceiving territory in its more general sense as property. This may justify a state’s own activity as the extractor, a practice that is particularly common with energy resources; in the case of Ecuador, where oil found within the territory is produced by a state-owned company, former President Jamil Mahuad explained that “the oil is the property of the state.”151 Viewing territory as property because it is made of property finds expression in domestic legal systems as well. The law that pertains to mineral lands and mining in the United States, for example, reads in part: Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.152 While the law had its origins in legislation enacted during the period when the object theory was widely accepted, its terminology reflects the continued use of language that has clear ties to the notion of territory as property: “belonging to,” “purchase” and “possession”153 appear with some frequency. (These terms are being singled out for their clear connotation of territory as property. Other terms that may be used as a convenient way to describe territory associated with a state, such as “a state’s territory” or “territory of the state” may not necessarily intend to imply it has the character of property.)

The Duality of Territory as Property

This example makes it evident that states are able to consider territory as property within their municipal legal systems—with the state as the original title 151  Jamil Mahuad, “The Ethics of Governance” (lecture given at the Markkula Center for Applied Ethics, Santa Clara University, Calif., Jan. 12, 2005), http://www.scu.edu/ethics/ practicing/focusareas/global_ethics/laughlin-lectures/ethics-governance-mahuad.html, accessed Jan. 10, 2014. 152  Lands Open to Purchase by Citizens, 30 U.S.C. § 22 (2006). 153  Locators’ Rights of Possession and Enjoyment, 30 U.S.C. § 26 (2006).

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holder—because they take a broader view of territory as property in a conceptual sense. This finds expression in various national constitutions, such as that of Mexico: Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transmit title thereof to private persons, thereby constituting private property.154 While the notion of territory as property thus exists at two different levels, they are often commingled, as in the U.S. Constitution: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.155 Rulings by the U.S. Supreme Court took this to mean that territory was property within the context of the U.S. legal system. In Butte City Water Co. v. Baker (1905), it said that “Congress is the body to which is given the power to determine the conditions upon which the public lands shall be disposed of. The nation is an owner, and has made Congress the principal agent to dispose of its property.”156 That the United States held title at this level was clear from Canfield v. United States (1897): “The government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers. It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.”157 Meanwhile, the conceptual view of territory as property is reflected in U.S. laws and regulations that refer to “U.S. possessions.” The U.S. Internal Revenue Service defined some of these as “islands owned by the United States which

154  Constitución Política de los Estados Unidos Mexicanos (1917), art. 27 (trans. Organization of American States). 155  U.S. Const., art. IV, § 3, cl. 2. 156  Butte City Water Co. v. Baker, 196 U.S. 119, 126; 25 S. Ct. 211, 213 (1905). 157  Canfield v. United States, 167 U.S. 518, 524; 17 S. Ct. 864, 866 (1897).

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are not States of the United States,”158 and a U.S. Senate report on taxation in these areas began with the explanation: “Following common current and historical usage, this document uses the term ‘possessions’ interchangeably with ‘territories.’”159 Title 48 of the U.S. Code, entitled “Territories and Insular Possessions,” actually views territory as property at both levels in referring to “title of the United States to lands in any territory or possession or place or territory under the jurisdiction or control of the United States.”160 Indeed, it is not uncommon for countries to use the term “possessions” for territories they control. In the United Kingdom, for example, the Interpretation Act of 1978 contains the following definition: “British possession” means any part of Her Majesty’s dominions outside the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.161 The term also appears in international legal instruments, e.g., the Four-Power Treaty of 1921, in which the United States, Great Britain, France and Japan agreed to respect each other’s territorial claims in the Pacific: “The high contracting parties agree as between themselves to respect their rights in relation to their insular possessions and insular dominions in the region of the Pacific Ocean.”162

Territory as Property—The Broader View

The idea of territory as property is reflected in terminology scattered throughout international law, such as “title to territory,” the conceptual instrument that formalizes the factual relationship between a state and the territory on which 158  “Persons Employed in U.S. Possessions,” U.S. Internal Revenue Service, http://www.irs .gov/businesses/small/international/article/0,,id=105253,00.html, accessed May 27, 2008. 159  U.S. Congress, Joint Committee on Taxation, Federal Tax Law and Issues Related to the United States Territories, JCX-41-12, May 14, 2012, 1. 160  Loss of Title of United States to Lands in Territories through Adverse Possession or Prescription Forbidden, 48 U.S.C. § 1489 (2006). 161  Interpretation Act 1978, 1978 ch. 30, sched. 1. 162  Insular Possessions and Dominions in the Pacific (“Four-Power Treaty”), Dec. 13, 1921, U.S.-Gr. Brit.-Fr.-Japan, art. I, 43 Stat. 1646, T.S. No. 669.

Conceptual Sources

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it is located, and the principle of uti possidetis juris, in which newly formed states retain the boundaries they previously had as territorial entities pertaining to other states. It also is reflected with some regularity in the writings of modern publicists, as the following examples illustrate: “State territory, also known as territorial property of a State, is essentially a term of public law” (P.K. Menon).163 “The analogy between sovereignty and ownership is evident and, with certain reservations, useful” (Ian Brownlie).164 “One way in which the international legal system has clarified ownership of territory is through its rules on the acquisition of territory” (Robert McCorquodale).165 “In international law a change in ownership of a particular territory involves also a change in sovereignty” (Malcolm N. Shaw).166 Still, there are jurists who insist that it is patently incorrect to conclude that territory is owned by the state. Judge Mahomed Ali Currim Chagla, dissenting in the Right of Passage Case, asserted: There can be no comparison between private property and territorial sovereignty nor can there be any comparison between a citizen and a sovereign State. A sovereign State can pass any legislation affecting private property. It can compel the owner of land to cede any right to neighboring owners. But that surely cannot be true of territorial sovereigns. Portugal cannot compel India to cede any right to her nor can India be placed under any obligation because Porgtual is under a necessity to have access to her enclaves. Further, such a rule would obviously be in contradiction with the one undisputed, well-established principle of international law, namely territorial sovereignty, and therefore there is no scope for importing this principle of municipal law into the domain of international law.167 163  P.K. Menon, “Title to Territory: Traditional Modes of Acquisition by States,” Revue de Droit International 72, no. 1 (1994): 2. 164  Brownlie, Principles of Public International Law, 106. 165  Robert McCorquodale, “International Law, Boundaries, and Imagination,” in Boundaries and Justice: Diverse Ethical Perspectives, eds. David Miller and Sohail H. Hashmi (Prince­ ton: Princeton University Press, 2001), 141. 166  Malcolm N. Shaw, International Law, 5th ed. (Cambridge: Cambridge University Press, 2003), 411. 167  Right of Passage over Indian Territory (Preliminary Objections) (Port. v. India), 1957 I.C.J. 125, 178 (Nov. 26) (Chagla, J., dissenting).

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And there are others, like Allen Buchanan, who accept territory as property but reject the notion that the state is its owner; in this view, the people own the territory and the state is their agent, but the state’s sovereignty does not constitute a property right.168 Yet the weight of the cumulative evidence makes it arguable that scholars who discarded the object theory did so prematurely. As Nathalie Merley observed in examining territory in France from legal, administrative and political perspectives, “the conception of a territory as an object of property still characterizes the State’s rapport with territory.”169 Thus, the expansion of the competence theory to accommodate the object theory’s premise may not sufficiently describe the magnitude of its ongoing importance. The two theories may best exist as equals, or as two parts of a greater whole, to explain the nature of the state-territory relationship more comprehensively.

Title, Effective Control and Sovereignty

A state’s relationship with territory becomes meaningful through sovereignty, the supreme and exclusive authority it has inside the borders of the area where it exists. Sovereignty gives each state an association with a defined area from which it draws its identity in the international system, and it is reliant on two other concepts, title to territory and effective control. Territorial title derives from the notion of titulus in Roman law, the means by which the owner of a property was established.170 In the context of international law, a state’s title has come to refer to the right to be sovereign on territory or the facts on which such a right is based, or other evidence that establishes the existence or source of such a right.171 Title serves as a bridge between the de facto situation of a state’s presence on territory and the de jure situation of its sovereignty over that territory. There 168  Michael Freeman, “The Priority of Function over Structure: A New Approach to Secession,” in Theories of Secession, ed. Percy B. Lehning (London: Routledge, 1998), 24, citing Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991). 169  Nathalie Merley, Conception et administration du territoire en France métropolitain (Aixen-Provence: Presses universitaires d’Aix-Marseille, 1998), 47. 170  Ana Gemma López Martín, El territorio estatal en discusión: la prueba del título (Madrid: McGraw-Hill, 1999), 9; Distefano, L’ordre international, 71–76. 171  Joshua Castellino and Steve Allen, Title to Territory in International Law: A Temporal Analysis (Aldershot, U.K.: Ashgate, 2003), 151–55. See also, e.g., Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 564 (Dec. 22).

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are various routes by which title may be acquired or confirmed—customary international law, international consensus or agreement, or rulings by international tribunals or arbitrators in cases where sovereign authority in a territory is disputed. Specific acts that create title have included (1) the occupation of terra nullius, in conjunction with the exercise of state functions and the will to act as sovereign;172 (2) the transfer of territory between states through an orderly and peaceful cession that can take various forms, e.g., a relinquishing of territory by treaty to a victor in war, or a sale, exchange or gift of territory;173 (3) prescription, or adverse possession, which entails a durable display of effective control on territory subject to another state’s claim;174 (4) the conquest of another state’s sovereign territory, a once-common method that is outlawed today by the prohibition of the use of force contained in the Charter of the United Nations;175 and (5) the completion of an inchoate title, such as by displaying effective control on territory initially claimed through a symbolic act.176 In addition, states may obtain title to territory through certain natural changes, e.g., a gradual shift in the course of a river that forms a boundary,177 the depositing of silt carried downstream to a river’s mouth178 or the creation of a volcanic island within a state’s territorial waters.179 Effective control is the measure by which a state’s right to territorial title is assessed. It is the state’s ongoing peaceful exercise of authority over a territory, either as the existing sovereign with de jure title or as the would-be sovereign through effective occupation and activity of a sovereign nature.180

172  Surya P. Sharma, Territorial Acquisition, Disputes and International Law (The Hague: Martinus Nijhoff, 1997), 61–66; Distefano, L’ordre international, 267–77. See also, e.g., Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 38–39 (Oct. 16). 173  Shaw, International Law, 421–22; Menon, “Title to Territory,” 18. 174  Shaw, ibid., 426–27; Distefano, L’ordre international, 292–313. 175  Shaw, Ibid., 422–24; Malanczuk, Akehurst’s Modern Introduction, 151–54. 176  López Martín, El territorio estatal en discussion, 16; Giovanni Distefano, “La notion de titre juridique et les différends territoriaux dans l’ordre international,” Revue Générale de Droit International Public 100 (1995): 346; Menon, “Title to Territory,” 10. 177  This is called accretion and results from land being eroded elsewhere along the river’s banks. Abrupt changes, called avulsion, generally do not cause territorial title to change (Shaw, International Law, 419–20). 178  Accreted territory need not consist of solid rock (The Anna, 5 C. Rob. 373, 385d (1805)). 179  As the island is already within the state’s sovereign territory, its presence allows the state to extend the limit of its territorial waters outward. 180  Shaw, International Law, 441.

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Brownlie noted that effective occupation can range from “simply proof of possession” of territory to having the strongest engagement in state activities, particularly administrative, of any competing claimant for the territory.181 Lea Brilmayer and Natalie Klein wrote that “the single most important indicator of legal title to land is possession—a consistent history of physical power over it.”182 Effective occupation does not necessarily require the settlement of the territory or a physical presence on all parts of it, but it must be sound enough to affirm a state’s right to title when no treaty, judgment or system of registration exists to formalize it.183 Rulings by arbitrators and tribunals have shown that “the extent or degree of display of state power required may vary according to the type of territory in question.”184 Relevant factors can include a territory’s size, location, climate and inhabitants.185 The acceptance by other states of a state’s title to territory creates the condition of territorial stability for that state, at least in a nominal way, and allows its government to focus on the state’s preservation and enhancement through its exercise of sovereign authority. Sovereignty once existed by virtue of power alone—initially that of individual rulers, and later that of states.186 As the concept evolved, it came to be equated with legitimate power over territory, and territorial title represents this legitimacy. When a state has sovereignty, it benefits from the principle of equality that gives it the same legal status as other states in the international system: the characteristics of its territory (size, geographic location, topography, climate, etc.) make it unique, but the fact that it has territory makes it equivalent to other states, and through this equivalence it can maintain diplomatic relations, conclude treaties and other agreements, participate in international organizations, assume reciprocal responsibilities, enjoy certain immunities of legal jurisdiction and have its sovereignty respected.187 It also benefits from the principle of non-intervention by which states mutually refrain from involving themselves in the affairs of other states. 181  Brownlie, Principles of Public International Law, 133–35. 182  Lea Brilmayer and Natalie Klein, “Land and Sea: Two Sovereignty Regimes In Search of a Common Denominator,” NYU Journal of International Law and Politics 33 (2000–01): 714. 183  Brownlie, Principles of Public International Law, 133; Georg Schwarzenberger and E.D. Brown, A Manual of International Law, 6th ed. (Milton, U.K.: Professional Books, 1976), 97. 184  Martin Dixon, Textbook on International Law, (Oxford University Press, 2013) 163. 185  Schwarzenberger and Brown, A Manual of International Law, 97. 186  Fowler and Bunck, Law, Power, and the Sovereign State, 11–12, 21–22. 187  Jean-Jacques Roche, Relations internationales, 2nd ed., (Paris: L.G.D.J., 2001), 87–91.

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Although this principle may not constitute a jus cogens norm and has numerous qualifications,188 it nonetheless represents the prevalent conduct of states toward each other and, as such, it acts as a reinforcing mechanism for sovereignty. While international legal rulings have been oriented toward accepting that sovereignty relies on title and that title relies on effective control, all three concepts are mutually dependent and reciprocally reinforcing. This can be seen in the Island of Palmas judgment, which noted that territorial title is able to confer sovereignty,189 but also that displays of sovereignty can be grounds for establishing title.190 Publicists have been divided on whether sovereignty is an absolute and indivisible construct or consists of a collection of rights and competences.191 At first glance, the difference might seem critical with respect to putting into practice the idea of territory as property: if sovereignty is an all-or-nothing concept, any transfer of rights would necessarily entail the whole of sovereignty itself (in other words, a cession), but if sovereignty is comprised of a set of individual rights, a state may assign a given range of them to other parties without losing sovereignty over the territory where the rights apply. Consequently, actions such as leasing territory, which depends on transferring rights, would appear to be accommodated by only the latter view—yet in fact it is accommodated by both. Scholars who accept sovereignty as monolithic, in aligning this idea with the pragmatic conduct of states, have distinguished the exercise of sovereignty from the fact of sovereignty. In the absence of any basis for requiring the exercise to be as unitary as sovereignty itself, the indivisible becomes divisible.192 Through its supreme authority on its territory, a state may allow other states, individually or collectively, to display aspects of their own sovereignty there; this is one of the numerous ways that sovereignty manifests an external dimension in addition to the internal one that is inherent to the concept. Alexander 188  Anthony D’Amato, “There is No Norm of Intervention or Non-Intervention in International Law,” Working Paper 80 (Northwestern University School of Law, 2010): 1–4. 189  The award by the arbitrator, Max Huber, referred to “the title by which territorial sovereignty was validly acquired” (Island of Palmas, 839) and “even if such a title ever conferred territorial sovereignty” (ibid., 846). 190  Huber also referred to “the continuous and peaceful display of territorial sovereignty” being “as good as a title” (ibid., 839), and to “title founded on continuous and peaceful display of sovereignty” (ibid., 869). 191  Wiktor Sukiennicki, La Souveraineté des Etats en Droit International Moderne (Paris: A. Pedone, 1927), 85; Van Kleffens, “Sovereignty in International Law,” 85–87. Fowler and Bunck, Law, Power, and the Sovereign State, 64–82. 192  Van Kleffens, ibid., 87.

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Cooley and Hendrik Spruyt, describing what Cooley had called a “property rights theory of sovereignty,”193 said: Usually, sovereignty can be divided into “control rights,” the formal ownership and right to transfer or sell an asset, and “use rights,” the right to derive the benefits and incur the costs from using the asset. By dividing the “control rights” and “use rights” of an asset or territory, states can reach mixed governance arrangements, such as a leasing agreement, short of exclusive hierarchy.194 Granting rights to another state does not necessarily erode the internal sovereignty of the state where the rights are exercised. The granting state may make such an arrangement in exchange for a benefit that enhances its ability to display effective control over its territory.195 Moreover, as Cooley and Spruyt argued, even if the granting state is the weaker of the two, it may gain a bargaining advantage over time through its residual control rights in the event the arrangement is revised or renegotiated.196 The exercise of sovereignty strengthens the nominal territorial stability that states have through title. This stability reinforces the international system of 193  Cooley, “Imperial Wreckage,” 103–07. 194  Cooley and Spruyt, Contracting States, 34. 195  This can occur in various ways, e.g., a state may grant rights on its territory in order to receive monetary compensation, military equipment, transfers of technology or infrastructure investments that can strengthen its economy or security; or it may grant rights in exchange for a political gain, as occurred with the territorial leases that were incorporated into the Israel-Jordan Peace Treaty in 1994 (see Strauss, The Viability of Territorial Leases, 174–91, 251). 196  The state granting the rights can draw lessons during the arrangement’s implementation that can be used in narrowing the user’s rights (Cooley and Spruyt, Contracting States, 36–38). Nonetheless, this potential is conditioned by factors such as the specifics of the power relationship between the parties, the evolution of their bilateral relations while the arrangement is in effect, political pressures, and the range of rights granted to the user (in some cases the user’s rights have been so comprehensive as to constitute de facto sovereignty, e.g., U.S. rights in Panama’s Canal Zone). Thus, a user state might succeed in resisting the host state’s desire to reclaim the use of a leased territory (e.g., the continued U.S. presence at Guantanamo Bay was characterized by Cuba as an illegal occupation after the Cuban revolution in 1959; see Strauss, The Leasing of Guantanamo Bay, 98–103, 170–75). A user state might even seize de jure sovereignty over a territory where it has such rights (e.g., Great Britain’s annulment of the Cyprus Convention and assumption of sovereignty over Cyprus on Nov. 5, 1914; see “Annexation of Cyprus by Great Britain,” American Journal of International Law 9, no. 1 (1914): 204).

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states as a whole, but it is both beneficial and problematic for the states within it because each state is a dynamic system in its own right—its demographic, economic and political situations are in constant evolution, and over time its territory may no longer be deemed satisfactory relative to its interests; left unchecked, and multiplied by the number of states in the world, this can constitute a threat to the international system. Nations routinely confront this paradox by engaging in activities outside of their borders to reinforce their sovereignty inside them. This used to involve settling, conquering, colonizing, purchasing, or otherwise acquiring additional territory to bring them into the sphere of their internal sovereignty. Today, states have fewer options to increase their territorial space—generally speaking, a state can only add to its own sovereign territory at the expense of another state (this is the fact that proved fatal to Ratzel’s theory of Lebensraum and led to today’s international legal obstacles to conquest and subjugation). Terrorial leases are among the diplomatic alternatives to this dilemma— they amount to de facto reallocations of territory for purposes of adjusting the exercise of sovereign authority while leaving formal boundaries and legal spaces of sovereignty unchanged. Leases thus assume the role of a “safety valve” in the system of states, simultaneously reaffirming the de jure link between states and the territories where they are sovereign while providing an acceptable mechanism for deviating from that link at the operational level. Of course, leases are not the only means by which traditional manifestations of sovereignty have been altered. Statehood itself accommodates many variations in detail, and numerous types of territorial entities have appeared around its margins, some obviously states and others questionably so, that have been anchored in the concept of the state. They often have been repositories of sovereignty or sovereign rights in a de jure or de facto sense, giving them international legal personality. A rough typology includes the following examples: Federacy—a territory that has some internal sovereignty and is linked to a state that displays external sovereignty on its behalf.197 (Example: Puerto Rico.) Associated state ( free associated state)—a state with both internal and external sovereignty that has a close relationship with, and practical dependency on, a larger state while retaining a large degree of internal power.198 (Example: Monaco.)

197  Ron Watts, “International Examples of Political Partnerships,” Policy Options, Mar. 1998, 47. 198  Shaw, International Law, 214.

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Protected state—a state that has arranged with another state, the protector, to represent it in its international relations199 and that may grant it some sovereign competences within its territory without reciprocity.200 The arrangement is established by treaty,201 providing continued evidence of the sovereignty of the protected state.202 (Example: Brunei, 1888.) Protectorate—a non-state entity with an arrangement similar to that of a protected state, with the protector handing both its external relations and internal affairs; it is a subject of international law,203 especially in its relations with the protector state,204 and is thus distinguished from a colony (Example: Morocco, 1912.) Colony—a separate territory over which a state exercises effective control and for which it displays internal and external sovereign competences. Mandated territory—typically a colony of a state defeated in World War I that was placed under the control of a sovereign state by the League of Nations205 but not annexed by the controlling state. Rousseau has noted that it was a matter of debate where sovereignty resided—with the League of Nations, the state that controlled it on the League’s behalf or the mandated territory itself.206 (Example: South West Africa.) Trust territory—the conceptual successor to the mandated territory under the United Nations. As sovereignty was never resolved for a mandated territory by the time the League of Nations disbanded, the problem persisted. “Quite who held sovereignty in such territories was the subject of extensive debates over many decades,” noted Shaw.207 (Example: Trust Territory of the Pacific.)

199  James Crawford, The Creation of States in International Law (Oxford: Clarendon, 1979), 187. 200  Nguyen Quoc et al., Droit international public, 487. 201  Rousseau, Cours de droit international public, 68. 202  The retention of sovereignty in such cases has been affirmed by classical international law publicists such as Hugo Grotius (The Rights of War and Peace (1625; trans. 1738; repr., Clark, N.J.: Lawbook Exchange, 2004), 92–98 [book 1, ch. 3, § XXI]) and in more modern applications such as the British view of its protected states, e.g., India before 1947, as foreign states (Rousseau, ibid., 78; “Protectorates and Protected States,” U.K. Home Office, http:// www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstruc tions/nisec2gensec/pandpstates?view=Binary, accessed Jan, 9, 2014. 203  Shaw, International Law, 194–95. 204  Crawford, The Creation of States, 188. 205  Shaw, International Law, 201. 206  Rousseau, Cours de droit international public, 81. 207  Shaw, International Law, 202.

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Occupied state—a state occupied militarily by another state. The occupier has sovereign competences on the occupied state’s territory but does not annex it, while the occupied state retains its sovereignty but with a diminished range of competences.208 (Example: Germany, 1945.) Divided state—the splitting of a single sovereign state into two or more units, each displaying the characteristics of a state209 and often recognized by other states. Each unit has internal and external sovereignty while simultaneously considering the division to be provisional pending an eventual reunification; it may consider itself sovereign over the other, but displays of sovereignty over the other are restricted or nonexistent. (Example: Korea.) Breakaway state—an entity that has seceded from another state with the aim of permanent independence. It may develop internal sovereignty, but its external sovereignty may be restricted if other states deny it recognition; the state from which it had split away may refuse to accept the secession.210 (Example: Northern Cyprus.) Merged state—the fusion of two or more states into a single unitary or federal state.211 The internal and external sovereignty of each component is dissolved and reconstituted as competences of the new state. (Example: Yemen.) Reunified state—a previously divided state that undergoes a voluntary or forced merger. Sovereignty may be dissolved and reconstituted as above, or the dominant component’s sovereignty may continue while the weaker one’s is dissolved. (Example: Vietnam.) Condominium—a territory in which two or more states share internal and external sovereign competences equally and collaboratively.212 Rousseau has called this situation co-sovereignty, adding that a condominium is indivisible, with no state having exclusive sovereignty over any part of it.213 (Example: New Hebrides until independence.) Vassal state—an entity in transition, once part of a larger state or empire but not yet displaying full sovereign competences. The entity is considered to be in the process of becoming a sovereign state, and during this period it is not subject to the effective control of another state.214 (Example: Turkey, 1856–1878.) 208  Ibid., 163–64. 209  Jean-François Guilhaudis, Relations internationales contemporaines (Paris: Litec/Juris Classeur, 2002), 78. 210  Ibid., 69. 211  Ibid., 70. 212  Nguyen Quoc et al., Droit international public, 487–88. 213  Rousseau, Cours de droit international public, 112. 214  Guilhaudis, Relations internationales contemporaines, 111.

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Free city—a city exempt from the effective control of states but sometimes under international control. A free city is characterized by political neutrality215 and may have a large degree of internal sovereignty but little or no external sovereignty. (Example: Danzig.) Joint management zone—an area where two or more states exercise some joint sovereignty (e.g., over natural resources) but that is divided for other purposes (e.g., administration, defense).216 (Example: Kuwait-Saudi Arabia Partitioned Zone.) Besides these entities, degrees of sovereignty exist in maritime zones (where coastal states exercise progressively diminishing gradations of sovereign competence), international territories that do not pertain to states but where states have some competences (e.g., the high seas and Antarctica), demilitarized zones (e.g., between North and South Korea) and quasi-states such as the Holy See.217 Each type of entity was deemed to have certain attractions relative to the situation it addressed. Some have been replicated and others have not. What appears to make leases attractive in the circumstances where they are established is their ability to accommodate the pragmatic conduct of states without the constraints of customary practice that has become enshrined in legal norms. A lease is both formal and informal—it is a legal agreement, but redistributes territorial control with no transfer of title. It confirms the sovereign state’s underlying authority in a territory, but provides the lessee with a sufficient range of operational control to satisfy the reasons it sought a presence there. In essence, a lease is further evidence that sovereignty is concrete while flexible, able to be molded to suit the interests of the states that benefit from having it.

215  Ibid., 80–81; Nguyen Quoc et al., Droit international public, 457–58. 216  Agreement Between the State of Kuwait and the Kingdom of Saudi Arabia relating to the Partition of the Neutral Zone, July 7, 1965, Kuwait-Saudi Arabia, 4 I.L.M. 1134. 217  Strauss, The Viability of Territorial Leases, 43–45.

CHAPTER 3

Historical Sources

The Origins of Territorial Leases

Being associated with territory was central to the development of early social and political entities. A population used its territory for its sustenance, and as its needs evolved it would expand into more territory or migrate into other areas. When the territories of two populations overlapped, conflicts would occur to establish dominance, and in most cases territorial authority would be consolidated in the single victorious group. Occasionally, however, the leaders of populations opted for other solutions that involved some form of sharing territorial control. Possibly motivated by stalemates in fighting or victories that were perceived as not being durable, these arrangements had the character of reasoned decisions and suggested a view toward the future. A few were analogous to modern leases, although as conceptual precedents they were largely undetected and ignored outside the areas where they occurred. With no evidence of inter-regional propagation, one must conclude that until recent centuries the leasing of territory was the product of localized strategic and diplomatic thought, and that its replication in disparate situations and locations was coincidental. Yet this observation is relevant to understanding how it later became a more common occurrence: it revealed that leases had a potentially broad scope of application as a modus vivendi between political entities whose territorial interests brought them toward the same physical place. The configuration of the world’s territory into sovereign states gave an impulse to the practice. Not only did it accommodate this activity, but more importantly it provided a structure in which it could spread and a reason for it to do so. Concluding lease arrangements as an exception to the rule of the Westphalian order reinforced the system by alleviating, in a punctual way, pressures to disturb the existing distribution of territorial sovereignty at any given time. It is logical that the earliest known territorial leases occurred in frontier zones where adjacent populations met, overlapped, interacted and fought. The socio-political dynamics that existed in these areas caused the exercise of authority there to deviate from the ways it was manifest elsewhere. “Power

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may be everywhere, but it is most clearly contested at the margin,” wrote Alan Hudson.218 Moreover, observed Carlos Fernández de Casadevante Romani, “[t]he border not only separated the territorial competences of neighboring states but also pushed them to cooperate to resolve the problems arising from this part of their territory.” Leases that were created as a result of this cooperation were aspects of state conduct that became integrated into broader relations of voisinage.219 Later, as the more powerful states spread their influence and authority to other parts of the world, the leasing of territory was no longer confined to zones of sovereign adjacency. Justified by an expanding range of state activities and emerging objectives that ranged from military and economic to diplomatic, states began to make leasing arrangements far from their core territories to satisfy a variety of interests. The historical emergence of territorial leases can be illustrated through several cases that highlight the variety of circumstances in which they arose, and the different motivations and processes that led to their creation before the concept was adopted more broadly by modern states in the late 19th century.

The First Known Lease: Babylonia

The first arrangement that can be identified as a lease of territory between two governing authorities dates from around 2500 BC and involved Lagash and Umma, adjacent city-states in Babylonia, part of ancient Mesopotamia. They had been engaged in chronic wars to control the agricultural land outside of their urban centers, and a particular source of conflict was an area in their frontier zone called Gu’edena,220 which was roughly 10 kilometers long by 4 kilometers wide.221 Inscriptions from the period, which come primarily from Lagash and reflect its perspective, showed that a boundary between the two city-states was established in Gu’edena through the intervention of the King of Kish, Mesalim, who 218  Alan Hudson, “Beyond the Borders: Globalisation, Sovereignty and Extraterritoriality,” Geopolitics 3, no. 1 (1998): 97. 219  Carlos Fernández de Casadevante Romani, La frontière franco-espagnole et les relations de voisinage (Bayonne: Editions Harriet, 1989), 33. 220  Jerrold S. Cooper, Reconstructing History from Ancient Inscriptions: The Lagash-Umma Border Conflict (Malibu: Undena, 1983), 7–9, 23. 221  Giovanni Pettinato, “Il conflitto tra Lagaš ed Umma per la ‘Frontiera Divina’ e la sua soluzione durante la terza dinastia di Ur,” Mesopotamia 5–6 (1970–71): 306.

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exercised hegemonic authority over Babylonia.222 The arrangement assigned Gu’edema to Lagash, while Umma was allowed to use a section of it223 as long as it compensated Lagash by giving it a portion of the grain it grew there.224 Interpretations differ as to whether these were simple usufruct rights for which payment was in grain,225 or whether the grain that Umma supplied to Lagash was repayment for unfulfilled past obligations.226 Mesalim imposed the solution as an arbitrator, but it proved difficult to enforce as the city-states gained and lost power relative to each other and also relative to Babylonia’s rule (their frequent wars had shown the limits of Babylonia’s ability to control events there). Umma sent troops across the boundary during a period of strength and destroyed the stones that marked it, but later, when the balance of power swung back to Lagash, the boundary, together with Umma’s cultivation rights and its obligation to compensate Lagash, were restored—this time by an agreement between the two city-states that was dictated by Lagash.227 Umma’s ability to retain the use of the land suggests that it still had some residual power, even while Lagash had never stopped claiming the whole of Gu’edema on behalf of its local god, Ningirsu. This claim was repeated in an inscription by Enmetena, the ruler of Lagash in around 2450 BC, who described the area used by Umma as belonging to Lagash.228 Jerrold S. Cooper summarized the situation as follows:

222  Ibid., 7. 223   The part of Gu’edena under Umma’s administration was 10.45 square kilometers (Pettinato, “Il conflitto tra Lagaš ed Umma,” 306, citing a text from Umma). An inscription from Lagash suggested that the strip of land was more than 1 kilometer wide (Cooper, Reconstructing History, 28). 224  Cooper, Reconstructing History, 49–50. The inscriptions refer to the payments as “interest.” A study of the language usage indicated that crops used in payment were described as being able to “to yield interest” and “this idiom also seems to have had the sense ‘to yield rent’ ” (Piotr Steinkeller, “The Renting of Fields in Early Mesopotamia and the Development of the Concept of ‘Interest’ in Sumerian,” Journal of the Economic and Social History of the Orient 24, no. 2 (1981): 144–45. 225  Pettinato, “Il conflitto tra Lagaš ed Umma,” 290–91. 226  Amnon Altman, “Tracing the Earliest Recorded Concepts of International Law: The Early Dynastic Period in Southern Mesopotamia,” Journal of the History of International Law 6 (2004): 171. 227  Maurice Lambert, “Une Histoire du conflit entre Lagash et Umma,” Revue d’Assyriologie et d’Archéologie Orientale 50, no. 3 (1956): 142. 228  Altman, “Tracing the Earliest Recorded Concepts,” 171.

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The rationalization that allowed Lagash to accept the fact that part of the god Ningirsu’s land was occupied by the forces of another god’s city, was that this occupation was really a lease arrangement: Ningirsu’s grain could be cultivated by Umma, but part of that grain was to be returned in the form of rent and interest. In addition to making an unpleasant status quo palatable, this theoretical construct had some other advantages. When Lagash was strong, it might turn theory into fact and collect tribute from Umma. When, after a period of weakness, Lagash sought to regain part of the disputed territory from Umma, there was always a ready excuse to send ultimatums and finally resort to arms: Umma had failed to pay the requisite duties, or had exceeded its allotted acreage and transgressed the boundary.229 Amnon Altman, citing an interpretation of Enmetena’s inscription, wrote that Lagash considered the lease arrangement to have a fixed duration of 40 years, which ultimately revived the conflict between the two city-states. Lagash had not wanted to prolong the arrangement “lest it would constitute a basis for an Ummaite claim to the right of possession over the territory considered.”230

Medieval Leases in The Pyrenees

Some leased territories are known from the medieval period in places where political control over land and prevailing regimes of land ownership were not tied to the system of feudalism that had become dominant in much of Europe. One area where a number of leases occurred from the 12th century onward was the central and western Pyrenees mountains.231 The valleys of the Pyrenees were isolated from the kingdoms that had nominal control over them prior to the formation of modern France and Spain,232 but they interacted with each other and evolved into a system of largely similar political entities with democratic governing structures and more or less complete autonomy—to the point that legal and political historians have referred to them as de facto republics. Their actions were acknowledged and respected 229  Cooper, Reconstructing History, 23. 230  Altman, “Tracing the Earliest Recorded Concepts,” 172, citing G. Steiner, “Der Grenzvertag zwischen Lagaš und Umma,” Acta Sumerologica, Japan 8 (1986): 239–46. 231  Daniel Alexander Gómez-Ibañez, The Western Pyrenees: Differential Evolution of the French and Spanish Borderland (Oxford: Clarendon, 1975), 31. 232  Primarily Navarra and Aragon.

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by the kingdoms,233 causing Jacques Descheemaeker to assess them as having international legal personality234 as “juridical entities that exercised sovereign competences.”235 The interactions between the valleys were not always harmonious due to their principal economic activity, livestock farming, and the fact that their governing bodies, known as syndicates, owned and managed their pastures as communal land. Local microclimates made some valleys drier than others,236 and it was typical for the herds of one valley to be led into a neighboring valley to graze. When conflicts arose, the parties were the valleys themselves as the use of communal land was at stake. By the 12th century, these tensions had led the syndicates to develop what grew into a network of agreements—“veritable international treaties”237— that sought to establish more peaceful relations by regulating political and economic interchanges, usually bilaterally but sometimes multilaterally and at times involving nearby communities. These accords, known as faceries, lies or passeries in French and facerías in Spanish, were freely negotiated at the valleys’ initiative238 and became increasingly sophisticated over time. They entailed pledges of peace, demarcations of borders, mutual aid arrangements, rules for trade and transit fees for goods, procedures for carrying out justice and arbitrating commercial differences,239 and any number of other clauses, but at their core was the management of livestock herds—the source of their disputes—and many faceries established grazing rights for one valley’s animals in the other valley’s pastures in exchange for what was, in effect, rent: The pastoral treaties varied from place to place, but most established zones of compascuity along the boundary where livestock from either 233   Paul de la Pradelle, La Frontière: Edude de Droit International (Paris: Editions Internationales, 1928), 251. 234  Jacques Descheemaeker, “Une frontière inconnue, les Pyrénées de l’océan à l’Aragon,” Revue Générale de Droit International Public 49, no. 2 (1941–45): 240–41. 235  Ibid., 275. 236  Ibid., 258. 237  La Pradelle, La Frontière, 251. 238  Descheemaeker, “Une frontière inconnue,” 260. The valleys sometimes appointed arbitrators when negotiations proved difficult, e.g., the facerie between the valleys of Roncal and Barétous in 1375 resulted from such arbitration (Henri Cavaillès, “Une Fédération pyrénéenne sous l’ancien régime: Les traités de lies et de passeries,” in Lies et Passeries dans les Pyrénées, ed. J.-F. le Nail (Tarbes: Société d’Etudes des Sept Vallées, 1986), 12). 239  Christian Desplat, La guerre oubliée: Guerres paysannes dans les Pyrénées (XIIe–XIXe siècles) (Biarritz: J&D Editions, 1993), 128–29.

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side might graze together. (. . .) Sometimes the privileges were not reciprocal, that is, the herders from one valley used the pastures of the other but not vice versa. In such cases a grazing fee had to be paid, although fees might also be required even in cases of reciprocal privilege.240 The faceries specified the payment amounts and procedures as well as the rights that were transferred (e.g., permitting some types of livestock but not others in a pasture, stating the maximum number of animals allowed, specifying whether they could graze there at all times or only during daylight hours, designating the springs where they could drink, and stating whether the pastures would be for their exclusive use or shared with livestock from the host valley).241 The rent was frequently symbolic and not always monetary:242 In compensation, and doubtless to signal that they did not have anything but a simple usage right on the Navarra side, the people of Béarn committed to pay an annual tribute of “three two-year-old female calves.” (. . .) The tribute of three cows, in sum, is nothing other than the price of leasing the grasslands and waters, simply the rent on territory for which the treaty recognizes the people of Béarn’s right to use.243 The faceries and the leases they contained were often long-term arrangements, either for a fixed number of years such as 101244 or 150,245 or in perpetuity,246 although many of the accords were revised or replaced after shorter periods.247 France and Spain eventually attempted to assert their authority in the Pyrenees as the faceries had strengthened the valleys’ solidarity with each other at the expense of their allegiances to the states.248 The Treaty of Elizondo, 240  Gómez-Ibañez, The Western Pyrenees, 45. 241  Cavaillès, “Une Fédération pyrénéenne,” 12. 242  Desplat, La guerre oubliée, 128. 243  Cavaillès, “Une Fédération pyrénéenne,” 12, referring to the facerie of 1375 between Roncal, in Navarra, and Barétous, in Béarn. 244  E.g., a facerie made in 1390 between the valleys of Barègas and Broto. 245  E.g., a facerie made in 1338 between the valley of Ossau and the communities of Morlaàs and Bernadets. 246  Ibid., 126. E.g., faceries made in 1243 between the valley of Ossau and the community of Lascar, and in 1328 between the valleys of Ossau and Teña. 247  Jacques Descheemaeker, “Les faceries pyrénéennes et du pays basque,” Eusko-Jakintza 3–4 (1947): 378. 248  Gómez-Ibañez, The Western Pyrenees, 45.

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signed in 1785,249 abolished the faceries but recognized the valleys’ economic reliance on each other’s land and allowed the continuation of the leases that addressed this: It is agreed that the frontier inhabitants of one and the other nation will have the ability to lease their pastures, not only to inhabitants of their dominion, but also to those of the neighboring nation; in this latter case, they will be subject to the following rules (. . .)250 The operative rule limited the contracts to one year at a time and required them to specify the land involved, the number and types of foreign live­stock that would use the pastures and the rent to be paid for them to graze there.251 Because this entailed communal land, the treaty effectively sanctioned the concept of cross-border territorial leases between governmental units— the valleys.252 The treaty was ratified in 1786253 but was never implemented amid opposition from the valley authorities and intervening events, including the French revolution and another Franco-Spanish war.254 The faceries thus remained in force, and in 1856 France and Spain placed them into the realm of international law through the Treaty of Bayonne,255 which established their current boundary in the western Pyrenees. The treaty preserved two perpetual faceries with medieval origins while invalidating the others,256 although it permitted the valleys to replace them with new ones limited to five years at a time.257 It also created a perpetual facerie between 249  Traité définitif de limites entre la France et l’Espagne, pour établir une ligne divisoire aux Aldudes ou Quint-Royal et Val-Carlos, et pour déterminer les limites des deux monarchies dans cette partie des Pyrénées [Definitive Boundary Treaty between France and Spain to Establish a Dividing Line in the Aldudes or Quint-Royal, and to Determine the Boundary of the Two Monarchies in This Part of the Pyrenees] (“Treaty of Elizondo”), Aug. 27, 1785, Fr.-Spain, art. V, Chr. Koch, Table des traités entre la France et les puissances étrangères, suivie d’un Recueil de traités et actes diplomatiques qui n’ont pas encore vu le jour, Vol. 2 (Basel: J. Decker, 1802), 477–91. 250  Ibid., art. V. 251  Ibid., rule 2. 252  Strauss, The Viability of Territorial Leases, 136. 253  Fernando de Arvizu, La solución institucional del conflicto de los Alduides (Pirineo Navarro), (León: Universidad de León, 1997), 57. 254  Strauss, The Viability of Territorial Leases, 131. 255  Treaty of Bayonne, Dec. 2, 1856. 256  Ibid., art. XIII. 257  Ibid., art. XIV.

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the states themselves, expressed through a territorial lease that was patterned on those made centuries earlier. Acting for their respective valleys, France obtained exclusive rights to use pastures in a 25-square-kilometer area that fell on Spain’s side of the boundary, Quinto Real Norte (Pays Quint Septentrional), in exchange for an annual rent of 8,000 francs.258 The lease remains in effect today.

An Outpost of European Merchants: Macao

From the early 16th century onward, European merchants began to develop regular trade between the continent’s maritime powers and other parts of the world. Some of their distant outposts in the Far East and the New World became established settlements where business could be done on a more permanent basis, and as part of this trend Portuguese traders had built a presence in several port towns in southern China. They abandoned most of them following conflicts with local inhabitants but stayed in one location, Macao, through a lease whose origins are murky and variously described. Léon Yang noted that there is no surviving text,259 and it is probable that none existed publicly as the arrangement lacked official sanction by China’s Ming government, being rather the product of collusion between the Portuguese merchants and local functionaries.260 According to Yang, the merchants made an agreement with these officials in 1535 to lease Macao for an annual rent of 20,000 taels.261 Other sources called the payment a customs duty262 or a bribe,263 and the historian Harry G. Gelber referred to a combination of payments: The Portuguese hoped to set up a permanent trading base at Macao, but the Chinese were none too keen on the idea. Not until 1535 did the 258  Ibid., art. XV. The rent was also expressed as representing 30,400 Spanish reales. 259  Léon Yang (Yang Lieou-Fong), Les Territoires à bail en Chine: Etude d’Histoire diplomatique et de Droit international (Paris: Presses Universitaires de France, 1929), 11–12. 260  Ibid., 12. 261  Ibid., 12. A tael was a Chinese currency unit with a value based on a weight of silver, approximately 1.33 ounces but with local variations in weight and fineness (Dickson H. Leavens, Silver Money (Bloomington, Ind.: Principia Press, 1939), 87–88, 91–95). 262  T’ien-Tzê Chang, Sino-Portuguese Trade from 1514 to 1644: A Synthesis of Portuguese and Chinese Sources (Leiden: Brill, 1934), 87. 263  Jaw-Ling Joanne Chang, “Settlement of the Macao Issue: Distinctive Features of Beijing’s Negotiating Behavior,” Case Western Reserve Journal of International Law 20 (1988): 255.

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Portuguese bribe their way to official permission to live and trade there. They agreed to pay rent, and customs duties on ships and commodities, with Chinese sovereignty remaining unaffected.264 Through this payment, the Portuguese, acting on their own account as an organized group, were allowed to be in Macao and conduct trade there,265 and thus had rights on the territory that exceeded the simple entry of their goods into China. This arrangement was superseded by another in 1557, this time between the states themselves, in which China authorized the Portuguese to settle in and administer Macao in exchange for an annual rent of 500 taels. It, too, lacks surviving documentation; Werner Breitung noted that “it was not meant as a transfer of territory or sovereignty. Therefore, no treaty was signed to specify any boundaries.”266 The date at which the rent was set at 500 taels is unclear; it is commonly reported as being in 1557,267 although Yang said the original 20,000-tael rent was reduced to 500 taels in 1582268 and others reported that a revised agreement in 1582 transformed the rent from gifts paid every three years to a monetary amount paid at that interval, then annually.269 A report in 1584 by a Spanish official in Macao noted that the Portuguese community there was paying 500 taels annually to the Chinese government by then, and also that the Portu­ guese had jurisdiction over civil and criminal matters involving Portuguese citizens while China assumed jurisdiction in cases between Portuguese and Chinese citizens.270 The 500 taels was also described as a base rent to which surcharges were added: 264  Harry G. Gelber, The Dragon and the Foreign Devils: China and the World, 1100 BC to the Present (London: Bloomsbury, 2007), 98. 265  Hon-Keung Wong, Economy of Macao, trans. Weiwen Huang (Macao: Va Kio, 1988), 3. 266  Werner Breitung, “Macau in the Eyes of a Border Scholar,” The Newsletter [International Institute for Asian Studies] 64 (2013): 24. 267  See, e.g., Marc Alfonsi, Les Cessions à Bail en Chine: Histoire diplomatique et de droit international public (Paris: Domat-Montchrestien, 1940), 60–61; A.W. Ward, G.W. Prothero and Stanley Leathes, eds., The Cambridge Modern History, Vol. 6 (1909; repr., New York: Macmillan, 1934), 506–07. 268  Yang, Les Territoires à bail en Chine, 11–12. 269  Andrew Ljungstedt, An Historical Sketch of the Portuguese Settlements in China; and of the Roman Catholic Church and Mission in China (Boston: James Munroe, 1836), 76; “Historical Landmarks of Macao,” Chinese Recorder and Missionary Journal 18, no. 5 (1887): 181. 270  J.-B. Román, “Relation de la Chine,” in Archives de voyages, ou Collection des anciennes relations inédits ou très-rares, ed. H. Ternaux-Compans (Paris: Arthus Bertrand, 1840), 94–95.

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The instability of court affairs at that time, in China; the danger that the envoy might be, by the invading Tartars or their adherents, apprehended, induced probably the Chinese Government, to commute the usual present into a regular sum of silver, yearly paid into the Imperial treasury, as the safest measure that could be adopted. The Portuguese of Macao having, in 1651, acknowledged the supremacy of the actually reigning Ta-Tsing family, Shan-che, the first Manchou sovereign over China, was pleased to remit for three years the ground rent, being then, it appears, one thousand taels, equal, I suppose, to the third part of the triennial tribute. His son, Kang-he, the theo-philosophic, required from 1691 no more than 600 taels; a standard to which the recognized annual payment of 500 taels, by sundry additional charges is still raised. The sum of 500 taels is, in the beginning of every year, delivered, by the Procurator of the Senate [of Macao] to the Mandarin of Heang-shan, on his presenting a discharge, signed by the Imperial Treasurer at Canton.271 Starting in 1557, Macao was governed by an official appointed by Portugal’s monarch.272 The merchants’ jurisdictional rights had paved the way for Portuguese legal concepts to be applied, and the result was a dual system “according to which the Chinese community employed Chinese law and the Portuguese community used Portuguese law” for nearly 300 years, according to Dan Wei.273 In the late 1840s, the newly appointed governor of Macao, Joao Maria Ferreira Amaral, stopped paying the rent, having been given a mandate to assert Portugal’s sovereignty there.274 Portugal had claimed the territory as its own in 1822275 but did not pursue it at the time and continued to pay the annual rent to China.276 Once it became active with its claim, Portugal’s displays of authority intensified through the application of colonial policies in Macao.277

271  Ljungstedt, An Historical Sketch, 76. 272  Zhidong Hao, Macao History and Society (Hong Kong: Hong Kong University Press, 2011), 33. 273  Dan Wei, “Macao’s Legal System under Globalization and Regional Integration: Between Tradition and Evolution,” paper presented at the Cambridge Journal of International and Comparative Law annual conference, Cambridge, May 18–19, 2013. 274  Hao, Macao History and Society, 40–41. 275  Constituição Politica da Monarchia Portugueza (1822), art. 20, § IV. 276  Hao, Macao History and Society, 31. 277  Wei, “Macao’s Legal System.”

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In 1862 Portugal and China signed a treaty to clarify Macao’s legal status,278 although China refused to ratify it amid concerns about the implications for its sovereignty there.279 Then, in 1887, the two states signed the Treaty of Peking,280 which recognized “the perpetual occupation and government of Macao by Portugal”281 while not explicitly transferring sovereignty over the territory. China’s underlying authority was reflected in a Portuguese obligation to not transfer the area onward without agreement from China282 and by the fact that still no boundary was created to identify Macao as a distinct territorial entity.283 Portugal’s revolution of 1974 led to the gradual end of its presence in Macao through decolonization. In 1979 a secret agreement with China confirmed Macao as “a Chinese territory under Portuguese administration,”284 and in 1987 the countries agreed that Portugal would return control of Macao to China in 1999.285 When this occurred, Macao became an autonomous Special Administrative Region within China.286 As a postscript to this arrangement, Macao itself became a lessee of territory in 2009, when China granted it a 50-year renewable lease of nearby Hengqin Island to expand the University of Macao. Under the lease, which involved a payment equivalent to $150 million, Macao’s legal system has jurisdiction on 1.1 square kilometers of Chinese territory.287

278  Tratado de Amizade e Commercio entre sua majestade fidelissima El Rei de Portugal e sua majestade O Imperador Da China [Treaty of Amity and Commerce], Aug. 13, 1862, Port.-China, 55 British and Foreign State Papers 790. 279  U.S. Department of State, Catalogue of Treaties: 1814–1918 (Washington: Government Printing Office, 1919), 65. 280  Tratado de Amizade e Commercio entre Portugal e a China [Treaty of Amity and Commerce] (“Treaty of Peking”), Dec. 1, 1887, Port.-China, 78 British and Foreign State Papers 521. 281  Ibid., art. II. 282  Ibid., art. III. 283  Ming K. Chan and Shiu-hing Lo, The A to Z of the Hong Kong SAR and the Macao SAR (Lanham, Md.: Scarecrow Press, 2006), 283. 284  Ming K. Chan, “Different Roads to Home: The Retrocession of Hong Kong and Macao to Chinese Sovereignty,” Journal of Contemporary China 12, no. 36 (2003): 498. 285  Joint Declaration on the Question of Macao, Apr, 13, 1987, Port.-China, 1498 U.N.T.S. 195. 286  中華人民共和國澳門特別行政區基本法 [Basic Law of the Macao Special Administrative Region of the People’s Republic of China] (1993) (China), trans., http:// bo.io.gov.mo/bo/i/1999/leibasica/index_uk.asp, accessed Apr. 8, 2014. 287  Simon Ho, “Achieving the Unthinkable: University of Macau in Hengqin,” China Daily, Hong Kong ed., Aug. 23, 2013: 9.

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Leases with Territory as Collateral

During the first half of the 1700s, the Republic of Genoa repeatedly relied on France to send troops to put down public uprisings on the Genovese island of Corsica. When the Seven Years’ War broke out in 1756, both states signed a treaty that gave France the right to control three forts on Corsica in an effort to prevent a potential British invasion.288 Once the war ended, France was called on again to send troops to Corsica to restore public order, resulting in a new treaty in 1764 that authorized the presence of French forces in five towns on the island—Bastia, Ajaccio, Calvi, Algajola and St. Florent.289 By this treaty, France obtained more expansive rights to exercise police authority and limited legal jurisdiction there for four years, while sovereignty and the bulk of jurisdictional authority remained with Genoa.290 In exchange for securing these rights, France provided a service—maintaining order. The prospect that unrest would resume at the end of the arrangement led to another treaty in 1868 that sharply expanded French authority on Corsica by allowing France to “exercise all the rights of Sovereignty” throughout the island,291 with such rights being “entire and absolute,” although France could not transfer them to a third party without Genoa’s consent.292 France was to hold these rights as collateral until Genoa could repay the expenses that France had incurred in ensuring order on Corsica,293 and was obliged to make an annual rental payment to Genoa of 200,000 livres tournois for a period of 10 years.294 As Genoa was never expected to reach the point of adequately controlling Corsica’s internal unrest or repaying France, the treaty became a framework for the cession of Corsica to France: the lease was a transitional mechanism and the cumulative rental payments were the price. As described by Philip Dwyer, Genoa signed a treaty at Versailles allowing the French to militarily occupy the island and exercise sovereign power over its people. In return, 288  Alfonsi, Les Cessions à Bail en Chine, 21–22. 289  Convention entre la France et la République de Gènes, touchant l’Ile de Corse (“Treaty of Compiègne”), Aug. 6, 1764, Fr.-Genoa, art. I, 1 Martens Recueil 265. 290  Ibid., art. II–III. 291  Convention entre la France et la République de Gènes, touchant l’Ile de Corse (“Treaty of Versailles”), May 15, 1768, Fr.-Genoa, art. I–II, 1 Martens Recueil 591. 292  Ibid., art. III. 293  Ibid., art. III–IV. 294  Ibid., supp. art. II.

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France was to pay Genoa the annual sum of 200,000 livres for ten years. The shame felt by the Italian republic in renouncing its right to the island was covered by a clause in the treaty that gave Genoa the opportunity to take the island back at some later stage after recompensing France for the cost of the operation. Given the state of Genoese finances, however, there could be no mistake—France had bought Corsica outright.295 In 1789 France decreed Corsica to be an integral part of its sovereign territory, and Genoa, after an initial protest, acquiesced.296 In a similar case, Sweden granted to the Grand Duchy of MecklenburgSchwerin “all of the rights of sovereignty (. . .) without any exception” in the city of Wismar and its surroundings in 1803 for a period of 100 years in exchange for up-front payments totaling 1,250,000 Reichstaler.297 The territory in this case, too, acted as collateral, as the treaty creating the arrangement referred to the amount paid as a mortgage loan against which Mecklenburg-Schwerin would control Wismar. However, it allowed that Sweden may not repay the funds at the end of 100 years, in which case the arrangement would be renewed for another century.298 In theory, such renewals could have recurred at subsequent 100-year intervals,299 transforming the arrangement into an open-ended lease for which the compensation to Sweden was the initial payment. In the event, Sweden ceded sovereignty over Wismar to Mecklenburg-Schwerin in 1903, at the end of the initial term.300 295  Philip Dwyer, Napoleon: The Path to Power, 1768–1799 (New Haven: Yale University Press, 2008), 19–21. 296  Charles Guérin, La Corse aux états généraux de 1789 (Ajaccio: G. Marchi, 1864), 23–24, 39–53. 297  Vergleich zwischen Seiner Majestät dem Könige von Schweden und Seiner Durchlaucht dem Herzoge von Mecklenburg-Schwerin über die Stadt und Herrschaft Wismar [Treaty between His Majesty the King of Sweden and His Most Serene Highness the Duke of Mecklenburg-Schwerin respecting the Town and Domain of Wismar] (“Treaty of Malmö”), June 26, 1803, Swed.-Mecklenburg-Schwerin, art. II, VI, 3 Martens Supplément au Recueil des principaux Traités (1807) 488. The payments were to be finalized by 1805 (ibid., art. VII). 298  Ibid., art. III. 299  Rousseau, Cours de droit international public, 115. 300  Convention to Cancel the Treaty of Malmö concerning the Cession to Meklenburg of the City and Domain of Wismar (“Treaty of Stockholm”), June 20, 1903, MecklenburgSchwerin-Swed., 31 Martens Nouveau Recueil (ser. 2) 572. The cession required Germany’s approval, which occurred in the simultaneous Convention concerning the Confirmation of the Treaty between Mecklenburg-Schwerin and Sweden on the subject of the Cession

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Trading Companies and Leased Empires

Several powerful states that amassed territorial empires between the seventeenth and nineteenth centuries accomplished some of this by means of statechartered trading companies that were authorized to govern and exercise jurisdiction in the regions where they conducted business. The companies had monopolies to operate politically as agents of their states and commercially in their own interests, and their external policies and actions were routinely facilitated by, and coordinated with, state authorities. The overall success of these entities depended on their business success, injecting a mercantile motive into their political behavior. This created a channel for commercial practices to be adapted to territorial governance, so it is perhaps not surprising that some of these companies engaged in leasing areas that were desired for supporting their business activities. Trading companies acted both as lessees and lessors of territory. Among the most prolific in both governing and leasing was the British East India Company, chartered in 1600. It had legislative and judicial powers in areas where it operated,301 collected taxes and maintained an army,302 and in many locations in southern Asia the rights to use this authority was obtained through leases from local rulers. A number of these territories later became British colonies. The company leased as many as 20 locations near Madras and Bombay (Mumbai) from the Mughal emperor by 1700,303 including one at Bombay from King Charles II of England in 1668 in return for a loan of £50,000 and an annual rent of £10.304 In 1786 it leased Penang Island in what is now Malaysia from the Sultan of Kedah;305 the lease was made in perpetuity with an annual rent of 6,000 local dollars.306

to Mecklenburg of the City and Domain of Wismar, June 20, 1903, Swed.-Ger., 31 Martens Nouveau Recueil (ser. 2), 574. 301  Muhammad Munir, “The Judicial System of the East India Company: Precursor to the Present Pakistani Legal System,” Annual Journal of International Islamic University 13–14 (2005–06): 53–54. 302  Timothy H. Parsons, The British Imperial Century, 1815–1914: A World History Perspective (Lanham, Md.: Rowman & Littlefield, 1999), 35. 303  Ibid., 35. 304  Krishna K. Tummala, Public Administration in India (Mumbai: Allied Publishers, 1996), 19. 305  Justin Corfield, Historical Dictionary of Singapore (Lanham, Md.: Scarecrow Press, 2011), 205. 306  “A Chat about Perak,” Hazell’s Magazine 7 (1893): 156.

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In North America, two trading entities—the Hudson’s Bay Company and the Russian American Company—controlled most of the northern tier of the continent on behalf of their respective governments in Great Britain and Russia. The Hudson’s Bay Company received a British royal charter in 1670 that made it the proprietor of western and northern Canada, the equivalent of around 40% of Canada’s current territory:307 In all the vast area, lying westward of Hudson’s Bay and extending to the Columbia River to the Arctic Ocean, the Hudson’s Bay Company was the only representative of British sovereignty. (. . .) Throughout the entire region the government was in the hands of the governor of the company and a council composed of its chief factors who made ordinances and directed the territorial affairs. Justice was administered in accordance with the laws of England.308 The Russian American Company was founded in 1799 by the Russian czar and was granted rights that gave it the same character in Alaska and other Russian territory in North America—“de facto poltical authority and a monopoly on trade.”309 Business-driven territorial interests led to the 1825 treaty between Great Britain and Russia that defined the boundary separating their North American territories.310 For the British government, the Hudson’s Bay Company was substantially the directing power in the negotiations which related to the boundary and which resulted in Articles III and IV of the treaty of 1825.311

307  “Hudson’s Bay Company History,” Hudson’s Bay Company Archives, https://www.gov .mb.ca/chc/archives/hbca/about/hbca_history.html, accessed Mar. 5, 2014. 308  U.S. Senate, Alaskan Boundary Tribunal: Proceedings of the Alaskan Boundary Tribunal, Vol. IV, Doc. 162 (Washington: Government Printing Office, 1903), 50. 309  “Records of the Russian-American Company,” Records of Former Russian Agencies, U.S. National Archives, http://www.archives.gov/research/guide-fed-records/groups/261.html, accessed Mar. 5, 2014. 310  Convention between Great Britain and Russia Concerning the Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean (“Treaty of St. Petersburg”), Feb. 16, 1825, Gr. Brit.-Russ., 75 Consol. T.S. 95. 311  U.S. Senate, Alaskan Boundary Tribunal, 49.

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The treaty gave Russia a strip of land about 50 kilometers wide extending southward from the main part of Alaska, along the coast of the Pacific Ocean (the Alaska Panhandle), while Great Britain had the inland region to the east with rights of passage through the strip to have access to the Pacific. Plans by the Hudson’s Bay Company to build a trading post just inside British territory near the strip prompted the Russian American Company to block the British traders from exercising their passage rights in 1834 out of concern that the trading post would siphon off some of its business. This triggered a dispute that was settled in 1839 with a 10-year lease in which Hudson’s Bay Company obtained rights to control a section of the coastal strip in exchange for an annual payment of 2,000 otter skins. The arrangement also gave the Russian American Company the right to buy up to 5,000 additional skins from the Hudson’s Bay Company at specified prices,312 and obliged the Hudson’s Bay Company to furnish the Russian American Company with foodstuffs and to transport British manufactured goods to it at a fixed shipping fee of £13 per ton.313 As a result, wrote J.W. Shelest, The Hudson’s Bay Company (. . .) obtained effective control of a portion of Russian territory. The RAC achieved its goals as well; it obtained needed supplies on a regular basis and the HBC was made responsible for the administration of a portion of Russian territory which the RAC did not have the resources to protect from Indian or non-Indian interests.314 The lease was renewed in 1849 for another 10 years, without the obligation for the Hudson’s Bay Company to sell the additional otter skins to the Russian American Company. In 1859 it was renewed for a further three years with the rental payment converted to cash (the amount was £1,500 per year),315 and

312  Claus-M. Naske and Herman E. Slotnick, Alaska: A History of the 49th State, 2nd ed. (Norman, Okla.: University of Oklahoma Press, 1987), 47–48. The additions skins included up to 2,000 pelts from the western slope of the Canadian Rocky Mountains at 23 shillings each, and up to 3,000 from the eastern slope at 32 shillings each. 313  John S. Galbraith, The Hudson’s Bay Company as an Imperial Factor, 1821–1869 (Berkeley: University of California Press, 1957), 124. 314  J.W. Shelest, “The Dryad Affair: Corporate Warfare and Anglo-Russian Rivalry for the Alaskan Lisière” (paper presented at the Borderlands Conference, Whitehorse, Yukon, June 2–4, 1989). 315  U.K. House of Commons, Testimony by Sir George Simpson, Governor of the Hudson’s Bay Company, Feb. 26, 1857, in Report from the Select Committee on the Hudson’s Bay Company (London: 1857), 59.

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the lease was renewed subsequently for periods of one or two years until 1867, when the United States acquired title to Alaska by purchasing it from Russia.316

Leases in Chinese Treaty Ports

A different outgrowth of the colonial process was the creation of numerous “treaty ports,” mostly in China but with a handful in Japan and Korea, for trading purposes.317 This practice, which emerged in the early 1840s, involved arrangements through which foreign colonial powers obtained rights in port cities and towns on the host state’s territory. While their details varied, many created zones administered by the foreign state where its nationals could reside and conduct trade under that state’s full or partial jurisdiction, with the host state retaining sovereignty but having limited or sometimes no jurisdiction there.318 Great Britain was the first state to obtain rights in China this way. Its victory in the First Opium War (1839–42) led to the Treaty of Nanking in 1842,319 in which China agreed to create five treaty ports—Shanghai, Canton, Foochow, Amoy and Ningpo—in addition to ceding the island of Hong Kong to Great Britain. By 1917 the number of Chinese treaty ports involving various foreign states had risen to 92, of which there were 16 that contained areas reserved for nationals of those states.320 Unlike lease agreements in which both states obtain some sort of benefit, the treaties creating these rights were mostly one-sided in favor of the foreign state and were later widely regarded as unequal treaties.321 As Dong Wang noted, 316  Naske and Slotnick, Alaska, 49–50. 317  Three “treaty ports” that existed in Ireland between 1922 and 1938 were not part of this group; they were sites that Great Britain retained as military bases when the Irish Free State was created. 318  For variations in jurisdictional and other aspects of these arrangements, see, e.g., William C. Johnstone, “The Status of Foreign Concessions and Settlements in the Treaty Ports of China,” American Political Science Review 31, no. 5 (1937): 942–48. 319  Treaty of Peace, Friendship, Commerce, Indemnity, &c, between Great Britain and China (“Treaty of Nanking”), Aug. 29, 1842, Gr. Brit.-China, 93 Consol. T.S. 467. 320  Denis Twitchett and John K. Fairbank, eds., The Cambridge History of China, Vol, 12 (Cambridge: Cambridge University Press, 1983), 129. 321  Dong Wang, China’s Unequal Treaties: Narrating National History (Oxford: Lexington Books, 2005), 1–2. China was not entirely opposed to the idea of treaty ports. “While foreigners took the treaties as an indication of their privileges, the Chinese viewed them

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Chinese emperors and imperial negotiators were led or compelled to grant these special rights in the form of treaties couched in evasive and sophisticated language that was generally incomprehensible to them.322 Nonetheless, some Chinese treaty port arrangements accommodated true bilateral leases of territory for which China received compensation: The foreign residential areas at Tientsin, Hankow and Canton, for example, were ‘concessions’. In these places entire areas were expropriated or purchased by the Chinese government and leased in perpetuity to particular powers (Great Britain, France, Germany, Japan, Russia, Belgium, Italy and Austria-Hungary at Tientsin; Great Britain, France, Germany, Japan and Russia at Hankow; Great Britain and France at Canton). The consul of the nation holding the concessional lease, aided sometimes by a municipal council, was the chief official of each concession through whom individual foreigners obtained sub-leases to particular pieces of property.323 In Shanghai, this was elaborated in a code of land regulations that was agreed in 1845 among the British, French and American consuls and the Chinese government. It stipulated that when land within the treaty port was rented to a foreign merchant, the appropriate consul became responsible for it vis-à-vis the Chinese government. Among other things, the regulations required the consul’s involvement in measuring the leased area and marking its boundaries, and fixed the rent to be paid to the Chinese government at a standardized rate of “fifteen hundred cash per mow.”324 Under this system, the lease of land by the foreign state to a merchant caused a simultaneous lease to come into existence at a higher level for the same land, this time between the state and the Chinese government, effectively making the state’s transaction with the merchant one of subletting. as limiting what the foreigners could do” (Stephen D. Krasner, Power, the State, and Sovereignty: Essays on International Relations (Abingdon: Routledge, 2009), 218). China even created some treaty ports at its own will (G.C. Allen and Audrey G. Donnithorne, Western Enterprise in Far Eastern Economic Development (Abingdon: Routledge, 1954), 14). 322  Wang, China’s Unequal Treaties, 10. 323  Twitchett and Fairbank, eds., The Cambridge History of China, 129. 324  En-Sai Tai, Treaty Ports in China: A Study in Diplomacy (New York: Columbia University Press, 1918), 11–12, citing “Land Regulation 1845,” North China Herald, Jan. 17, 1852. These features were retained in a revised Code of Municipal and Land Regulations in 1854 (ibid., 13, citing North China Herald, July 8, 1854). A mow is a Chinese unit of land measurement.

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The system of treaty ports lasted until the 1940s, when it ended through the impetus of termination treaties that the United States and Great Britain signed with China in 1943 in the context of their alliance against Japan during World War II.325 325  Treaty Between the United States of America and the Republic of China for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters (“Sino-American New Equal Treaty”), Jan. 11, 1943, U.S.-China, 57 Stat. 767, T.S. No. 984; Treaty Between His Majesty in Respect of the United Kingdom and India and His Excellency the President of the National Government of the Republic of China for the Relinquishment of Extra-Territorial Rights in China and the Regulation of Related Matters (“Sino-British New Equal Treaty”), Jan. 11, 1943, Gr. Brit.-China, Gr. Brit. T.S. 2/1943. These led to similar treaties between other countries and China.

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Leases and Sovereignty Today

The Surge in Leasing Activity

The modern era of territorial leases began with a surge of activity in the late 19th century that gave the practice international prominence as a diplomatic mechanism for allocating territorial rights. This proliferation of agreements, concentrated during a 25-year period from 1878 to 1903, mostly involved European nations and the United States as lessees, and can be attributed to a convergence of factors. One was the decline of the Ottoman Empire, which resulted in two territories under its sovereignty being leased to foreign powers in 1878 through what were termed “occupation and administration” arrangements. In the first arrangement, Great Britain obtained governing rights in Cyprus through a defense treaty, the Cyprus Convention, in return for deterring Russia from attacking Ottoman territory in the Middle East: (I)n order to enable England to make necessary provision for executing her engagement, His Imperial Majesty the Sultan further consents to assign the Island of Cyprus to be occupied and administered by England.326 The lease remained in force until 1914, when the British annexed Cyprus following Turkey’s decision to join the Central Powers against Great Britain and the other Allied Powers in World War I.327 At the time Cyprus was leased, the Ottoman Empire was nearing defeat in the latest in a series of Russo-Turkish wars. At the end of that conflict, AustriaHungary obtained governing rights in Bosnia and Herzegovina through a similar arrangement contained in the Treaty of Berlin328—a reward for staying

326  Cyprus Convention, June 4, 1878, art. I. 327  Cyprus (Annexation) Order, Nov. 5, 1914, 108 British and Foreign State Papers 165; Treaty of Peace with Turkey (“Treaty of Sèvres”), Aug. 10, 1920, Allied Powers-Turk, art. 116, 113 British and Foreign State Papers 652 (did not enter into force); Treaty of Peace with Turkey (“Treaty of Lausanne”), July 24, 1923, Allied Powers-Turk., art. 20, 28 L.N.T.S. 11. 328  Treaty of Berlin, July 13, 1878, art. XXV.

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neutral, which had facilitated Russia’s victory against the Ottoman forces.329 Austria-Hungary annexed Bosnia and Herzegovina in 1908.330 These leases were subsequently emulated in other cases; among them, Great Britain leased the Khyber and Michmi Passes from Afghanistan in 1879;331 and Chile leased several areas from Peru—the provinces of Tacna and Arica for 10 years and the Lobos islands for the time necessary to mine 1 million tons of guano—in the 1883 peace treaty that ended a war between the two states.332 Changes in the territorial demands of colonialism also spurred numerous leases to be created during this time period. For European nations that relied on colonial resources for their economic and military strength, the options to further expand their colonial reach had narrowed sharply. The supply of desirable terra nullius was virtually exhausted, and the cessions of Louisiana and Alaska to the United States had removed huge swathes of territory from colonial domination, diminishing the amount that might still be ceded through sale and creating the conditions for such transactions to be more costly. The conquest of existing sovereign nations remained an option, but this, too, entailed the potential for high costs, financial and otherwise, as well as risks. The strengthening of the notion of sovereign equality during the second half of the 19th century333 became part of the ambient legal background that guided states in their behavior relative to each other’s territory by the time the century was ending. Coinciding with the then-dominant notion of territory as a state’s property, the climate was ripe for heightened respect for the principle of territorial integrity and thus for the state as a legal construct. As the economic dynamics of the industrial age made it attractive for European nations to keep expanding their geographic control over raw materials, the leasing of territory became a viable alternative for colonial growth. In eastern Africa, this involved the creation of enterprises to colonize and develop trade. The European powers had divided the region into spheres of influence and recognized local rulers as legitimate authorities for entering into agreements with the companies. Some of these enterprises obtained leases 329  W.N. Medlicott, The Congress of Berlin and After: A Diplomatic History of the Near Eastern Settlement, 1878–1880, 2nd ed. (Abingdon: Frank Cass, 1963), 2. 330  Proclamation, Oct. 6, 1908, trans., U.S. Department of State, Papers Relating to the Foreign Relations of the United States 1908 (Washington: Government Printing Office, 1912), 38. 331  Treaty of Peace (“Treaty of Gandamak”), May 26, 1879, Afg.-Gr. Brit., art. 9, 4 Martens Nouveau Recueil (ser. 2) 536. 332  Tratado de Paz y Amistad entre Chile y el Perú [Treaty of Peace and Friendship Between Chile and Peru] (“Treaty of Ancón”), Oct. 20, 1883, Chile-Peru, art. 3, 9, 162 Consol. T.S. 453. 333  Abdelhamid El Ouali, Territorial Integrity in a Globalizing World: International Law and States’ Quest for Survival (Heidelberg: Springer, 2012), 208.

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that were then assumed by the European states themselves through arrangements with the rulers or by nationalizing the companies. Examples included Zanzibar’s leases of territory to Great Britain, Italy and Germany. In 1887 the British East Africa Association, a group of merchants, obtained a 50-year lease from Zanzibar’s sultan for a section of coastal territory on the mainland of Africa.334 The lease remained in force after the merchants’ group was transformed into a state-chartered company, the Imperial British East Africa Company, in 1888.335 Additional territory was added to the company’s lease in 1890,336 and the term of the lease was changed to perpetuity in 1891 with an annual rent of $80,000.337 In 1895 the British government acquired the company for £250,000 and assumed control of the leased territory, making it a protectorate and committing to paying an annual rent of £11,000 to Zanzibar.338 The Italian government sublet some of the territory from the British state company in 1889,339 and in 1892 this arrangement was converted to a direct lease of that area by Zanzibar to Italy.340 This arrangement had a 25-year term,

334  Concession granted by the Sultan of Zanzibar to the British East Africa Association, May 24, 1887, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 339 (Frank Cass 1967) (1909). 335  Concession given by His Highness the Sayyid Khalifa, Sultan of Zanzibar, to the Imperial British East Africa Company, Oct. 9, 1888, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 350 (Frank Cass 1967) (1909). 336  Concession by the Sultan of Zanzibar to the British East Africa Company of certain Islands, and of certain places on the Benadir Coast, Mar. 4, 1890, trans., 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 362 (Frank Cass 1967) (1909). 337  Supplementary Agreement concluded between His Highness Seyyid Ali, G.C.S.I., Sultan of Zanzibar, and Mr. George McKenzie, Director and Acting Administrator-in-Chief of the Imperial British East Africa Company, March 5, 1891, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 365 (Frank Cass 1967) (1909). 338  U.K. House of Commons, Statements by Sir Edward Grey, Undersecretary of State for Foreign Affairs, June 13, 1895, in Hansard, Ser. 4, Vol. 34 (London: 1895), 1087–92; Charles Eliot, The East Africa Protectorate (London: Edward Arnold, 1905), 29. 339  Agreement between the British East Africa Company and the Italian Government, respecting the proposed Concession by the Sultan of Zanzibar to the Company of Territories, &c, on the East African Coast, including Kismayu, Brava, Muerka, Mogadisho, and Warsheikh, and the Transfer of Those Territories to Italy, Aug. 3, 1889, trans., 1 Hertslet, The Map of Africa by Treaty, 2nd ed. 137 (H.M. Stationery Office 1896). 340  Concession of Benadir Ports granted by the Government of His Highness the Sultan of Zanzibar to the Government of His Majesty the King of Italy, Aug. 12, 1892, Zanzibar-Italy, 2 Hertslet, The Map of Africa by Treaty, 2nd ed. 950 (H.M. Stationery Office 1896).

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although after 13 years Italy acquired title to the leased area by purchasing it from Zanzibar for £144,000.341 Similarly, the Deutscheostafrikanische Gesellschaft (German East Africa Company) obtained a 50-year lease from Zanzibar in 1888 for another section of coastal territory.342 Before long, the company faced financial problems and an uprising from local inhabitants, and became “more and more identified with the German government,”343 which took it over in 1891 and assumed direct responsibility for the territorial arrangement.344 In western Africa, the leasing of the Arenberg and Forcados Enclaves345 by Great Britain to France allowed for a satisfactory allocation of territory along the Niger River as the rivalry between the states for colonial influence there had been escalating toward war. The leases were mandated by the Niger Convention,346 in which the upriver section of the contested area (part of today’s Benin) went to France and the downriver section (part of today’s Nigeria) to Great Britain; France’s right to lease two downriver sites in the British section as staging points for goods in transit eliminated the logistical disadvantage that had made the upriver area less attractive. The leases were concluded in 1903 and took effect retroactively, starting in 1900, and limited France to building and maintaining shipping and storage facilities in the territories involved. France had the right to sublet the territories, provided that any sublessees used them for the same purposes, while the United Kingdom retained legal jurisdiction in both locations. Each lease had an initial fixed term of 30 years, after which it would stay in force indefinitely but could be terminated with one year’s notice by either state. France paid a token rent of one franc per year for each territory. In the event, France made 341  Agreement between Great Britain and Italy, respecting the Benadir Coast and Jurisdiction in Zanzibar, Jan. 13, 1905, Gr. Brit.-Italy-Zanzibar, 3 Hertslet, The Map of Africa by Treaty, 3rd ed. 954 (H.M. Stationery Office 1909). The agreement was concluded through an exchange of notes in which Great Britain acted in the name of the Sultan of Zanzibar. 342  Küstenvertrag. Seine Hoheit Seyyid Khalifa ben Said, Sultan von Zanzibar, und die Deutsche-Ostafrikanische Gesellschaft [Coastal Contract between His Highness Seyyid Khalifa ben Said, Sultan of Zanzibar, and the German East Africa Company], Apr. 28, 1888, trans., in Bruno Kurtze, Die Deutsche-Ostafrikansche Gesellschaft (Jena: Gustav Fischer, 1913), 183–87. 343  Harry H. Johnston, A History of the Colonization of Africa by Alien Races, 2nd ed. (Cambridge: Cambridge University Press, 1913), 410. 344  Roland Oliver and G.N. Sanderson, eds., The Cambridge History of Africa, Vol. 6 (Cambridge: Cambridge University Press, 1985), 568. 345  Arenberg Lease, May 20, 1903; Forcados Lease, May 20, 1903. 346  Niger Convention, June 14, 1898.

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little use of the two sites after the first few years.347 Neither state acted to end the arrangements, and they stayed in effect until Nigeria became an independent state in 1960.348

Leased Territories in China

In Asia, the European colonial powers perceived an opportunity to build their presence in a weakened China after its defeat in the Sino-Japanese War of 1894–95. Their desire to maintain the balance of power among themselves made them hesitant to claim sovereignty there349 and steered them toward establishing mutually tolerated areas of involvement through leases along the Chinese coast. The colonizers’ rise as naval powers was tied to this process, as they sought locations for military as well as commercial activities. Despite the obvious coercion that occurred with their displays of naval might, all of the leases were negotiated as bilateral treaties that reaffirmed Chinese sovereignty in the affected areas, either explicitly or implicitly. They varied in their terms and stopped short of having features that would make them tantamount to territories occupied in wartime, for which the Hague Regulations established a set of conditions very soon thereafter.350 The leases in this group, all concluded in 1898, were: – Kiaochow, on the Shantung Peninsula, which was leased to Germany for a period of 99 years.351 The leased area comprised Kiaochow Bay and the land on both sides of its entrance, and the treaty creating it also granted rights to Germany in an additional zone surrounding the bay. The murder of two German priests near Kiaochow by Chinese nationals in 1897 had prompted 347  Maurice Zimmerman, “La Mission Lenfant à Say et la navigabilité du Bas Niger,” Annales de geographie 10, no. 54 (1901): 473; France: Ministère des Colonies, Direction des Affaires Politiques, “Note sur un terrain situé sur la rive gauche d’une des embouchures du Niger,” June 28, 1928, Dossier 169, Archives Nationales d’Outre-Mer. 348  Lupton, “The Partitioning of Borgu,” 91. 349  Alfonsi, Les Cessions à Bail en Chine, 3. 350  Convention (II) with Respect to the Laws and Customs of War on Land and Annex: Regulations respecting the Laws and Customs of War on Land, July 29, 1899, art. 42–56, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol. T.S. 429. 351  Treaty between China and Germany respecting the Lease of Kiao-Chau to Germany (“Kiaochow Convention”), March 6, 1898, China-Ger., trans., 1 Hertslet’s China Treaties, 3rd ed. 350 (H.M. Stationery Office 1908).

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Germany to quickly seize the area by naval force, and its intent to retain control of it—ostensibly to protect Germans living there but also with the aim of having an economic foothold—led to the negotiations that produced the lease,352 which allowed Germany to engage in mining and to construct a railway.353 In 1914, after the outbreak of World War I, Japanese forces seized Kiaochow from Germany, and the following year Japan signed a treaty with China that allowed it to continue using the territory.354 The transfer of German rights at Kiaochow to Japan was reaffirmed in the Treaty of Versailles in 1919.355 The lease lasted until 1922, when China regained control of the territory.356 – Kwantung, an area at the tip of the Liaodong Peninsula that included the port towns of Port Arthur357 and Dalien,358 which was leased to Russia for 25 years.359 The lease was created within weeks of the Kiaochow lease, illustrating how quickly a chain reaction occurred among the colonizing states to rectify the power disequilibrium it caused in the region.360 The Kwantung lease granted to Russia the use of the land and adjacent waters,361 including rights to fortify and defend the territory, although Russia’s administrative rights had modest restrictions: it was required to let Chinese nationals remain as inhabitants, and while Russia would have jurisdiction over them in civil matters they would be subject to Chinese justice in criminal cases; in addition, the city of Kinchow would be jointly administered by Russia and China.362 After Russia was defeated in the Russo-Japanese War of 1904–05, its rights in Kwantung were transferred to Japan in the Treaty of Portsmouth, which established the terms of peace:

352  Yang, Les Territoires à bail en Chine, 24–36; Alfonsi, Les Cessions à Bail en Chine, xxii–xxiv. 353  Kiaochow Convention, § II, III. 354  Treaty Respecting the Province of Shantung, May 25, 1915, China-Japan, trans., 10 A.J.I.L. Supp. 1. 355  Treaty of Peace between the Allied and Associated Powers and Germany (“Treaty of Versailles”), June 28, 1919, Allied Powers-Ger., 225 Consol. T.S. 188, art. 156–58. 356  Treaty between Japan and China for the Settlement of Outstanding Questions relative to Shantung, Feb. 4, 1922, Japan-China, trans., 16 A.J.I.L. Supp. 84. 357  Also known as Lushun. 358  Also known as Darien, Talien, Talienwan and Dalny. 359  Convention between Russia and China for the Lease to Russia of Port Arthur, Talienwan, and the Adjacent Waters (“Kwantung Lease”), Mar. 27, 1898, Russ.-China, trans., 4 A.J.I.L. Supp. 289. 360  Lazar, “The Status of the Leasehold,” 159. 361  Kwantung Lease, art. 2. 362  Young, The International Legal Status, 18–21.

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The Imperial Russian Government transfers and assigns to the Imperial Government of Japan, with the consent of the Government of China, the lease of Port Arthur, Talien and the adjacent territory and territorial waters, and all rights, privileges and concessions connected with or forming part of such lease, and it also transfers and assigns to the Imperial Government of Japan all public works and properties in the territory affected by the above-mentioned lease (. . .)363 China gave its consent by treaty,364 and Japan remained in Kwantung until 1945, when the Soviet army seized the area from Japanese forces in the latter days of World War II.365 Russia then resumed its role as the territory’s lessee through revised agreements with China that entailed the sharing of various aspects of control and a new lease for Dalien.366 A subsequent agreement in 1954 allowed China to recover full control of the territory in 1955.367 – Kuang-chou Wan, which was leased to France for 99 years.368 The lease covered the bay of Kuang-chou Wan, on the eastern side of the Leichou Peninsula, and its islands, and stipulated that the arrangement “shall not offset the sovereign rights of China over the territory ceded.”369 It granted to France the rights to establish a naval installation370 and to build a railway 363  Treaty of Peace (“Treaty of Portsmouth”), Sept. 5, 1905, Japan-Russ., art. V, 199 Consol. T.S. 144. 364  Treaty between China and Japan respecting Manchuria (“Treaty of Peking”), Dec. 22, 1905, China-Japan, art. I, trans., 1 Hertslet’s China Treaties, 3rd ed. 391 (H.M. Stationery Office 1908). 365  David M. Glantz, August Storm: The Soviet 1945 Strategic Offensive in Manchuria, (Fort Leavenworth, Kans.: U.S. Army Combat Studies Institute, 1983), 173–77. 366  Treaty of Friendship and Alliance, Aug. 14, 1945, China-U.S.S.R., trans., 40 A.J.I.L. Supp. 51; Agreement Concerning Dairen, Aug. 14, 1945, China-U.S.S.R., trans., 40 A.J.I.L. 55; Protocol to the Agreement on Dairen, Aug. 14, 1945, trans., 40 A.J.I.L. 55; Agreement on Port Arthur, Aug. 14, 1945, trans., 40 A.J.I.L. 56; and Appendix to “Agreement on Port Arthur, Aug. 14, 1945, trans., 40 A.J.I.L. 57. See also Dieter Heinzig, The Soviet Union and Communist China, 1945–1950: The Arduous Road to the Alliance (trans.), Armonk, N.Y.: M.E. Sharpe, 2004), 54–69. 367  “On October 12, both sides declared in a joint communiqué that in view of the end of the Korean War, the restoration of peace in Indochina, and the improvement of the defensive capabilities of the People’s Republic of China, they had agreed that the Soviet troops would be withdrawn from Port Arthur by May 31, 1955” (Heinzig, ibid., 356). 368  Convention for the Lease of Kuang-chou Wan (“Kuang-Chou Wan Lease”), May 27, 1898, Fr.-China, trans., 4 A.J.I.L. Supp. 293. 369  Ibid., art. I. 370  Ibid., art. I.

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across the peninsula on land to be provided by China,371 and ensured that Chinese inhabitants of the leased zone would retain their rights to property and employment.372 Control of Kuang-chou Wan was returned to China by a treaty concluded in 1945.373 – Most of the Kowloon Peninsula, which was leased to Great Britain for 99 years.374 This territory was made part of its Hong Kong colony and was by far the largest element of it, accounting for 90% of its total area of 1,104 square kilometers.375 Known as the New Territories, it was the colony’s third territorial component, the first two being the island of Hong Kong, acquired through cession in 1842,376 and a small part of the Kowloon Peninsula together with Stonecutters Island, leased to Great Britain in perpetuity in 1860377 and then transferred more definitively by cession later that year.378 Under the lease, China retained jurisdiction within the city of Kowloon except where it might interfere with British military requirements for the defense of the colony, while Great Britain had sole jurisdictional rights throughout the rest of the leased zone. In the order enlarging the colony to include the newly leased area, the British government declared: The territories within the limits and for the term described in the said Convention shall be and the same are hereby declared to be part and parcel of Her Majesty’s Colony of Hongkong in like manner and for all intents and purposes as if they had originally formed part of the said Colony.379 371  Ibid., art. VII. 372  Ibid., art. III. 373  Convention between the National Government of the Republic of China and the Provisional Government of the French Republic for the Return of the Leased Territory of Kwang-chow-wan, Aug. 18, 1945, China-Fr., trans., 14 U.N.T.S. 483. 374  Convention of Peking, June 9, 1898. 375  “Hong Kong—The Facts,” Hong Kong Special Administrative Region Government, http:// www.gov.hk/en/about/abouthk/facts.htm, accessed Mar. 30, 2014. 376  Treaty of Nanking, Aug. 29, 1842, art. III. 377  Deed of Lease, Mar. 20, 1860, Gr. Brit.-China. Lease of Kowloon, Historical Laws of Hong Kong Online, http://oelawhk.lib.hku.hk/items/show/1014, accessed Apr. 8, 2014. 378  Convention of Peace and Friendship between Great Britain and China (“Convention of Peking”), Oct. 24, 1860, Gr. Brit-China, art. VI, 123 Consol. T.S. 73. 379  Order in Council providing for the Administration of the Territories adjacent to Hongkong acquired by Her Majesty under the Anglo-Chinese Convention of June 9, 1898 [1], Oct. 20, 1898. Kowloon Order in Council, Historical Laws of Hong Kong Online, http://oelawhk.lib .hku.hk/items/show/1016, accessed Apr. 8, 2014.

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This was followed by an order in 1899 that revoked China’s jurisdictional authority within the city of Kowloon.380 Thus, while the colony comprised territory over which Great Britain had title and sovereignty through the 1842 and 1860 treaties as well as territory it controlled through the 1898 lease, the entire area was governed as a single unified entity.381 The sovereign and leased areas were indistinguishable from each other in the eyes of the colony’s legal system and administration, and Great Britain acted as the sovereign everywhere in Hong Kong. This was evidenced not only by its termination of China’s residual jurisdiction in Kowloon, but also by the fact that Great Britain continued to hold onto the colony long after China had recovered its rights on the other territories it had leased to European powers. According to Peter Wesley-Smith, the British attitude toward the 1898 lease convention was explained by the geopolitical imbalance between Great Britain and China: Although no force was used, and no specific threat to use force was made, China had no choice. Its bargaining position was totally inferior to that of Britain. It received no advantage from the Convention. It was an unequal treaty. This must be taken into account when assessing both the Chinese attitude and the British attitude to the agreement: the talents of China’s negotiators had only limited scope, whereas the British were so superior that they paid little attention to the precise wording of the Convention or to the provisions it contained or omitted. The lease was assumed by the British to be a perpetual cession; the treaty’s terms would thus be of minor significance, and inconvenient Chinese claims based on them in the future could be ignored.382 The lease had no clause stipulating a rent or other tribute that Great Britain would pay to China with respect to the New Territories; this arguably added to 380  Order in Council revoking Article 4 of the Order of October 20th, 1898, providing for the Jurisdiction of Chinese Officials in Kowloon, Dec. 27, 1899. Kowloon City Order in Council, Historical Laws of Hong Kong Online, http://oelawhk.lib.hku.hk/items/ show/1020, accessed Apr. 8, 2014. 381  Suzanne Pepper, Keeping Democracy at Bay: Hong Kong and the Challenge of Chinese Political Reform (Lanham, Md.: Rowman & Littlefield, 2008), 8. It was designated as a Crown Colony, then as a British Dependent Territory (Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, Rev. ed. (Philadelphia: University of Pennsylvania Press, 1990), 130). 382  Wesley-Smith, “Cultural Problems in Negotiation of the Convention of Peking, 1898,” 118.

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the perception that that the British relationship to Hong Kong was one of sovereignty, as such a payment would have signaled British acknowledgment of China as the higher authority. Interestingly, it was China that declined to raise the payment issue because of its weak position, as recounted by Jen-Huong Wang: According to the opinion of the British negotiator, [Claude] McDonald, no rent was asked for the lease because the Chinese negotiators were afraid lest they should lay themselves open to the charge of betraying their country.383 Chinese resentment of the British presence in Hong Kong, and its view that it was legally invalid because the three agreements that established it were unequal treaties, intensified in the years following the Communist Revolution in 1949. As the result of an agreement in 1984 between the British and Chinese governments,384 control over the entire colony reverted to China in 1997 upon the expiration of the 99-year lease for the New Territories, and China designated the area as a largely autonomous Special Adminsitrative Region after the retrocession.385 – Wei-hai-wei, which was leased to Great Britain “for so long a period as Port Arthur shall remain in the occupation of Russia”386—a duration that highlighted the intent to maintain the balance of power.387 This lease included the bay of Wei-hai-wei and its islands, including Liu Kung, and a 70-mile-long strip of coast surrounding the bay that extended 10 miles inland.388 Great Britain was obliged to allow Chinese inhabitants to remain and to not expropriate their property, but obtained “sole jurisdiction” throughout the territory except within the walled city of Wei-hai-wei, where China retained jurisdiction 383  Jen-Huong Wang, “Some Cultural Factors Affecting Chinese in Treaty Negotiation,” in ibid., 109. 384  Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (“Sino-British Joint Declaration on Hong Kong”), Dec. 19, 1984, U.K.-P.R.C., 1399 U.N.T.S. 61. 385  Ibid., annex I. 386   Convention between Great Britain and China respecting Weihaiwei (“Wei-hai-wei Lease”), July 1, 1898, Gr. Brit.-China, 1 Hertslet’s China Treaties, 3rd ed. 122 (H.M. Stationery Office 1908), Gr. Brit. T.S. 14/1898. 387  Kao Yin-T’ang, “The Lease Conventions in China,” Chinese Social and Political Science Review 12 (1928): 524. 388  Wei-hai-wei Lease, July 1, 1898, para. 2.

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in matters other than those associated with British military requirements for defending the leased area.389 Unlike the other leases in this group, the Weihai-wei lease did not refer directly to China’s retention of sovereignty, although this was implied by factors such as the time limit and the lease’s treatment of jurisdiction, which, as Lazar noted, related only to the municipal legal system: Thus, China may be deemed to have parted with no powers or rights on the plane of the international legal system, and consequently she retained her entire legal status over the leased territory in the international legal system. If so, it was unnecessary for China to reserve her “sovereignty.”390 When Russia’s rights in Kwantung were transferred to Japan in 1905, Great Britain asserted that its lease at Wei-hai-wei would continue in effect because it interpreted “Russia” in the termination clause to mean more broadly “a foreign power.” This ran counter to the ideas of international legal publicists at the time regarding rights comprising international servitudes, which favored interpreting such rights strictly so as not to further prejudice the state that had sovereignty over the territory where they were exercised.391 That state was usually the geopolitically weaker party to leases made during this period, as China was. In the case of Wei-hai-wai, the British interpretation prevailed. Control of the territory was returned voluntarily to China in 1930,392 although it took most of the preceding decade for the details to be agreed; these included the creation of a new 30-year lease to Great Britain covering designated lands and buildings within the previously leased area unless China were to create its own naval base there.393

Coaling Stations and Maritime Trade

Four of the leased zones in China—Kiaochow, Kuang-chow Wan, Hong Kong and Wei-hai-wei—were used by the lessee states as coaling stations for their naval fleets, illustrating another factor behind the proliferation of leases 389  Ibid., para. 4. 390  Lazar, “The Status of the Leasehold,” 175. 391  Yang, Les Territoires à bail en Chine, 166–67, citing William Edward Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon, 1924). 392  Convention for the Rendition of Weihaiwai, Apr. 18, 1930, Gr. Brit.-China, Apr. 18, 1930, 112 L.N.T.S. 49. 393  Ibid., art. 18.

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during this period: coal had become the dominant boiler fuel in naval vessels and merchant ships, providing greater efficiency than wood and more flexibility and mobility than ships could achieve with wind power. A disadvantage was that ships could not stray far from coal supplies for extended missions, prompting Europe’s emerging naval powers and the United States to make arrangements with other nations to install coal depots on their territory where military vessels could refuel.394 The rights in these areas were often acquired by lease. As the naval powers competed for global influence, their governments were under pressure to secure such locations, as described in 1891 by The New York Times: .

The importance of securing coaling stations for vessels of the United States was never so urgent as at the present moment. The majority of the new war ships have little or no sail power. They depend almost entirely for motive power on their machinery. Let one of these new cruisers run short of coal and have no means of obtaining a fresh supply and her condition is at once little short of helpless. (. . .) No nation is so well supplied with coaling stations as Great Britain. They cover the entire globe. Every cruising war ship Great Britain builds carries sufficient coal to admit of her running the greatest distance between stations. (. . .) One thing is certain, Great Britain is determined that when one of her war ships leaves home she shall be independent of foreign ports. In the face of England’s policy, the spectacle is presented of the new American war ships being compelled to barter for fuel from port to port, paying exorbitant sums of money to foreigners, and obtaining, usually, a quality so inferior as to seriously cripple the fighting efficiency of the vessels.395 The scramble to obtain territory for coaling stations resulted in leases for some that were never developed or used only sporadically. An early lease of a site by the United States from the kingdom of Hawaii in 1860 was not immediately followed by others as the coaling station there “practically fell into disuse shortly after it was built due to the policy that required warships to use sail

394  Strauss, The Leasing of Guantanamo Bay, 62. 395  “A Great Need of the Navy: Coaling Stations Required in Certain Localities,” New York Times, Dec. 6, 1891.

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power whenever possible.”396 However, the lease remained in force until 1898, when the United States annexed Hawaii, and as coal had replaced wind power by then the coaling station was reactivated and expanded.397 The United States also leased a site from the Kingdom of Tonga for a coaling station in 1886,398 but as late as 1930 it was reported that “so far as can be ascertained no use has yet been made by the United States of the privilege thus acquired.”399 Among other territories leased for coaling and naval stations by the United States were two from Cuba in 1903, Guantanamo Bay and Bahia Honda;400 the latter was never used and reverted to Cuban control by 1916.401 As they sought their own leases, the naval powers sometimes tried to block each other from leasing territory for coal depots. Thus, the Sultan of Muscat leased a small territory to France for a coaling station in 1898, but Great Britain forced him to cancel the arrangement on grounds of a pact in 1891 in which Muscat had become a British protectorate402 and had pledged never to cede, to sell, to mortgage, or otherwise give for occupation, save to the British Government, the dominions of Muskat and Oman or any of their dependencies.403

396  U.S. Navy, Fourteenth Naval District, Administrative History of the Fourteenth Naval District and the Hawaiian Sea Frontier, Vol. 1 (Hawaii, U.S. Department of the Navy, 1945), http:// www.history.navy.mil/docs/wwii/pearl/hawaii-3.htm, accessed Apr. 15, 2014. 397  Ibid. 398  Treaty of Amity, Commerce and Navigation between the United States of America and the King of Tonga, Oct. 2, 1886, U.S.-Tonga, art. VI, 25 Stat. 1440, T.S. No. 357, 11 Bevans 1043. The treaty was denounced by Great Britain on behalf of the King of Tonga on July 28, 1919 except for art. VI, which remained in effect (11 Bevans 1043). 399  Edward M. Douglas, Boundaries, Areas, Geographic Centers and Altitudes of the United States and the Several States, 2nd ed. (Washington: Government Printing Office, 1930), 57–58. 400  Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations (“Guantanamo Lease”), Feb. 23, 1903, U.S.-Cuba, T.S. No. 418; Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (“Guantanamo Treaty”), July 2, 1903, U.S.-Cuba, T.S. No. 426. 401  Strauss, The Leasing of Guantanamo Bay, 60–61. 402  Joseph A. Kechichian, Oman and the World: The Emergence of an Independent Foreign Policy (Santa Monica: Rand, 1995), 126–28. 403  Declaration between Great Britain and the Sultan of Muskat and Oman providing for the Non-cession of Territory except to Great Britain, Mar. 20, 1891, Gr. Brit.-Muscat, 6 Martens Nouveau Recueil (ser. 3) 287.

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Meanwhile, Germany’s rapid expansion as a naval power led the United States to oppose presumed German arrangements to lease the Margarita Islands from Venezuela in 1901; amid Germany’s aggressive quest for territorial footholds in the region, President Theodore Roosevelt became convinced “that German actions were aimed at converting a Venezuelan harbor into a Caribbean Kiauchau.”404 As powerful naval forces were deemed essential to the security and growth of commercial maritime shipping and thus to economic expansion,405 the facilitation of trade also became a reason for leasing territory. The most prominent case arising from this motivation was the U.S. lease of the Canal Zone from Panama in 1903.406 The lease, originally made in perpetuity, was revised by a new treaty in 1977 that stipulated the termination of the lease arrangement and the full return of control over the canal and the zone to Panama at the end of 1999.407

Systematic Leasing Programs

So many leases were created between 1878 and 1903 that they could no longer be considered unusual or anomalous in international relations. Their visibility offered precedents and their variety offered models, and eventually two states—the United States and Russia—began leasing territory on a systematic basis. The United States resorted to leases in developing much of its worldwide network of military sites, particularly after Europe’s traditional military powers were weakened by the Second World War. In more recent years, security concerns related to international terrorism provided a fresh impetus. C.T. Sandars attributed what he called the U.S. “leasehold empire” to the absence of an extensive colonial structure: For the first time in history, the dominant world power had to maintain the peace largely without the benefit of overseas military bases under its 404  Daniel Joseph Costello, “Planning for War: A History of the General Board of the Navy” (PhD diss., Fletcher School of Law and Diplomacy, 1968), 310–14. 405  Peter Karsten, The Military in America: From the Colonial Era to the Present, rev. ed. (New York: Free Press, 1986), 250–51. 406  Hay-Bunau-Varilla Treaty, Nov. 18, 1903. 407  Panama Canal Treaty, Sept. 7, 1977, U.S.-Pan., 33 U.S.T. 39, T.I.A.S. No. 10030. The treaty entered into force in 1979.

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sovereign control. The United States was therefore obliged to build up her global security system through a variety of bilateral and multilateral arrangements concluded, for the most part, with other sovereign nations. Apart from the few areas where the United States was able to station troops on her own overseas territories, she was compelled to negotiate basing rights with previous wartime partners, former colonial or quasicolonial possessions, countries which she had occupied, either singly or with her allies, at the end of the war and a number of other nations with whom she had hitherto had no direct security relationship. In each case, the relationship between host nation and visiting American forces was different and consequently the political constraints on the use of US troops stationed abroad varied from country to country. In many, but not all, cases the United States leased the military facilities she required overseas from the host nation.408 The United States has categorized many of its leases for military sites abroad as “status of forces agreements” (SOFAs). The terms of SOFAs vary widely according to circumstances, such as whether the arrangement is meant to accommodate a comprehensive military facility over an extended period or a limited range of activities related to a single military operation. Built around securing rights on the territory of other states, they became an effort to harmonize the way similar legal issues were addressed in different leases. According to the U.S. Army, Scant formal international law governed the stationing of friendly forces on a host nation’s territory. Most frequently, the law of the flag was applied, which basically held that since the friendly forces were transiting a host nation’s territory with (its) permission, it was understood that the nation whose forces were visiting retained jurisdiction over its members. After World War II, with the large increase in the number of forces stationed in friendly countries, more formal SOFAs were deemed necessary to address the many and diverse legal issues that would arise, and to clarify the legal relationships between the countries.409

408  C.T. Sandars, America’s Overseas Garrisons: The Leasehold Empire (Oxford: Oxford University Press, 2000), v. 409  U.S. Army, Operational Law Handbook (Charlottesville, Va.: Judge Advocate General’s Legal Center and School, 2013), 120.

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Besides specifying how the territory may be used and how jurisdiction there is allocated, many of these agreements cover rights such as the entry and exit of people, imports and exports, licences and permits, legal claims, property ownership within the leased area, and the types of military activities that may occur there.410 Nonetheless, noted John Woodliffe, It is unusual in a bilateral defense agreement to find provisions directly concerned with the issue of the host state’s consent to the stationing of the sending nation’s forces. Instead, consent is to be inferred from clauses in the agreement such as those authorising forces of the sending state to make use of facilities in the host state.411 Woodliffe added that “the precise juridical character of rights and duties established by military base agreements remains unclear and indeterminate.”412 Thus, it took 31 years for Cuba’s muncipal legal system to establish the meaning of the “soberanía definitiva” that Cuba retained when it leased Guantanano Bay to the United States,413 and more than a century for the U.S. legal system to decide the meaning of its “complete jurisdiction and control” there with respect to the application of U.S. municipal law,414 while questions of international law regarding rights and duties on the leased territory remained unresolved.415 The other major systematic territorial leasing program emerged when Russia sought to use a number of areas in former Soviet Union (FSU) states during the 1990s. As described by Cooley: Across such different FSU states as Georgia, Belarus, Azerbaijan, Latvia, Kazakhstan, and Ukraine, Russia has concluded a series of bilateral contractual agreements with its post-imperial peripheries to lease assets such as communications installations, harbor facilities for the Black Sea Fleet, military bases, and the Baikonur cosmodrome (the site of Sovietera space and satellite launches). In exchange for the use of these 410  Ibid., 120. 411  Woodliffe, The Peacetime Use of Foreign Military Installations, 35. 412  Ibid., 127. 413  In re Guzman & Latamble, 7 Ann. Dig. (I.L.R.) 112, 112 (1934) (Cuba). The Spanish text of the lease used the term “soberanía definitiva.” 414  Boumediene v. Bush, 553 U.S. 723 (2008). 415  See, e.g., Michael J. Strauss, “Cuba and State Responsibility for Human Rights at Guantanamo Bay,” Southern Illinois University Law Journal 37, no. 3 (2013): 533–50.

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facilities, Russia has offered an annual rental payment and explicit acknowledgments that these assets formally belong to the post-imperial states. Strikingly, these leasing arrangements are remarkably similar in their form, regardless of the different power asymmetries, degree of economic ties, and/or ethnic antagonisms that each of these FSU states has with Russia.416 The desire by these states to assert their sovereignty had made leasing a logical path by which Russia could achieve the continued use of former Soviet facilities located there. As Cooley noted, “the explicit recognition of the host country’s legal jurisdiction over the asset satisfied enough parliamentarians to attain ratification in each of the host countries.”417

Challenges to the Lessor’s Sovereignty

The spread of territorial leasing during the 20th century, accelerated by the U.S. and Russian leasing programs, increasingly brought the practice into alignment with Stephen D. Krasner’s description of an international regime— “implicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”418 Such regimes are a source of customary international law,419 and by this route territorial leases have assumed acceptance and legitimacy in international law more generally. As diplomatic mechanisms they violate no legal norms; rather, they expose and exploit gaps in their underlying concepts, of which sovereignty is the most prominent. Because the assigned rights are associated with sovereignty, their transfer may be associated with the cession of sovereignty, particularly if they are sufficient for the lessee state to achieve dominant control of the territory. The lessor normally has no intention of ceding sovereignty at the time a lease is created, even when it assigns extensive rights to the lessee, but sometimes this occurs, as certain cases mentioned here showed.

416  Cooley, “Imperial Wreckage,” 101. 417  Ibid., 117. 418   Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” in International Regimes, ed. Stephen D. Krasner (Ithaca, N.Y.: Cornell University Press, 1983), 2. 419  Shaw, International Law, 70.

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A lease can become a conduit for the possible transfer of title by establishing a regime that replaces the exclusive exercise of sovereign rights by a single state. It is one of various constructs that place territory into a legally murky zone where sovereignty is not absent but normal displays of it are. Some, such as condominiums and trusteeships, have had greater uniformity in detail across cases and the relationships of sovereign authority are generally clear. Others, such as military occupations, have been subject to dedicated consideration and rules. International law brings no such order to leased territories. So while condominiums show that sovereignty can be shared and occupations show it can be preserved when separated by force from control, leases make us ask if sovereignty may also be temporary, or suspended, or split, or even refused. Or, as Lazar asked, If a subject of international law is party to a “lease” of territory, and such a party is endowed with “sovereignty,” does the “sovereign” party preserve, by definition of “sovereignty,” all of its “sovereignty” despite the lease? Or are its “sovereign” characteristics subject to modification to the point of elimination? Is “sovereignty” destructible by “lease” or vice-versa?420 Such questions have been addressed only sporadically for leases and without clear resolution. Cooley and Spruyt noted that “(e)xisting theories of international relations are not particularly concerned with explaining the dynamics of such mixed forms of sovereignty,” and added that scholars tend to consider them “largely insignificant” as they do not disrupt the prevailing world order.421 Yet the characteristics of sovereignty have consequences throughout the breadth of international law, making their clarification important. Any aspect that is unclear is ripe for exploitation as states pursue their interests. As David A. Lake remarked, states are opportunistic, and commitments that occur over time (as opposed to immediate exchanges) offer the most potential to display opportunistic behavior.422 Leases, by their nature, are in this category: each has a time element and signals the lessee’s desire to have at least some control on territory outside of its sovereign space. When circumstances arising through a lease offer the chance to make that control more complete, it is logical to expect that sometimes states will seize it.

420  Lazar, “The Status of the Leasehold,” 57. 421  Cooley and Spruyt, Contracting States, 6. 422  David A. Lake, Entangling Relations: American Foreign Policy in its Century (Princeton: Princeton University Press, 1999), 52–53.

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Consequently, a lease of territory normally contains restrictive aspects that act as safeguards of the lessor’s sovereignty. These can establish limits for the lessee state, such as a specific range of assigned rights or a period of years in which the rights may be exercised, or they may create obligations toward the lessor that reconfirm the latter’s continued sovereignty over the leased zone, such as an annual rental payment. The more there are restrictive factors, the more the lessor state remains actively involved—we might say “actively sovereign”—in the leased territory. Nonetheless, in many leases of territory such safeguards are tenuous. States “cannot foresee, anticipate, or describe every possible contingency that may arise,” and a lease may be little more than a framework within which specific issues regarding sovereign rights can be addressed later.423 This can be seen in numerous leases through the use of language that is intentionally vague or sweepingly broad. A lease that grants comprehensive rights can create the illusion that the lessee state has sovereignty in the leased zone, particularly if the lessor displays its own sovereignty less vigorously there or not at all. In this situation, a claim to title by the lessee may carry weight on the basis of a convincing show of effective control and sovereign behavior over time. There have, in fact, been cases when a lessee obtained complete or nearly complete rights in the leased area, acted like the sovereign there to the exclusion of the lessor state because the arrangement explicitly authorized this, and did so for an extended period of years. The text of the Canal Zone lease, for example, stated: The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.424 The fact that sovereignty over the Canal Zone remained with Panama and that sovereignty over Hong Kong remained with China, both of which recovered control of the leased zones, while sovereignty over Cyprus shifted 423  Cooley and Spruyt, Contracting States, 6. 424  Hay-Bunau-Varilla Treaty, Nov. 18, 1903, art. 3.

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to Great Britain, may say more about the absence or presence of the lessee’s desire to annex the territory than about the lessee’s prospects to successfully pursue a sovereignty claim. The United States has had “complete jurisdiction and control”425 on the leased territory of Guantanamo Bay in Cuba for more than a century and might reasonably assert that it is the true sovereign there by prescription, but it has not done so; in recent years, it has considered control without sovereignty to be an asset that it has employed in pursuing its national interests, and has continuously affirmed Cuba’s sovereign status in the territory.426

The Theory of Disguised Cessions

Soon after the European colonial powers obtained leases of Chinese territory in 1898, a number of international law publicists considered that a territorial lease could be described more accurately as a “disguised cession” in which the form of the transaction was simply a façade for the actual transfer of sovereignty. This theory, elaborated by several French international law scholars and embraced by more than a few publicists elsewhere in Europe and in the United States, was drawn from assessing what actually occurred to the sovereignty of leased territories over time. Sovereignty over Corsica and Wismar had shifted to the states that initially controlled them through leases. Great Britain had annexed Cyprus, and Austria-Hungary had annexed Bosnia and Herzegovina. The United States had assumed sovereignty over Hawaii just as its lease of the coaling station there became important. The territories that Zanzibar initially leased had been brought under the sovereignty of Great Britain, Germany and Italy. And there were other such cases. Albert de Pouvourville, in 1899, asserted that a lease was a bilateral convention with the appearance of a normal treaty that was freely agreed, but that stripped the sovereign, as the weaker party, of the right to exercise its sovereignty in the leased area without explaining how it would eventually recover that authority. He postulated that leases were attractive diplomatic mechanisms because the state that loses all but legal title could save face by appearing to not to cede the territory, and by not actually ceding it in a legal sense,

425  Guantanamo Lease, Feb. 16, 1903, art. 3. 426  Michael J. Strauss, “Perspectives on the Future of Guantanamo Bay,” Cuba in Transition 19 (2009): 227.

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while the state that gains the territory retains its respectability by not assuming title right away. The transfer is facilitated by the fact that it occurs over time.427 A pair of doctoral dissertations on the theme that appeared several years later examined the practice critically and gave the disguised cession theory heightened prominence and academic legitimacy, while also reinforcing the notion that leases were deceptive and unscrupulous aspects of diplomacy. One of the authors, Louis Gérard, concluded that the practice was able to flourish with little juridical difficulty “given that we find ourselves in the presence of formal treaties, all formed in the same mold.”428 The other, Jean Perrinjaquet, deemed that leases had the hidden goal of peaceful territorial conquest.429 As the theory’s influence spread in the first decades of the 20th century, it was adopted by scholars such as Oppenheim, who noted that cession may (. . .) take place under the disguise of an agreement according to which territory comes under ‘administration’ or under the ‘use, occupation, and control’ of a foreign State.430 Most publicists at the time agreed.431 Thus, Ellery C. Stowell wrote that “to avoid irritating national susceptibilities and arousing international jealousies through a cession or annexation, acquisition of territory is sometimes disguised as a lease,”432 and J.L. Brierly said that for leases with a political character, it was usual to regard the use of the term ‘lease’ as no more than a diplomatic device for rendering a permanent loss of territory more palatable to the dispossessed state by avoiding any mention of annexation and holding out the hope of eventual recovery.433 But Brierly also saw weaknesses in the theory that had become evident through the leases in China: 427  Albert de Pouvourville, “Les fictions internationals en extrême-orient,” Revue Générale de Droit International Public 6 (1899): 118–19. 428  Gérard, Des cessions déguisées, 319. 429  Perrinjaquet, Des cessions temporaires, 387. 430  Oppenheim, International Law: A Treatise, 379. 431  Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge, Mass.: Harvard University Press, 2013), 288. 432  Young, The International Legal Status, 143, citing Ellery C. Stowell, International Law: A Restatement of Principles in Conformity with Actual Practice (New York: Henry Holt, 1931), 341. 433  J.L. Brierly, The Law of Nations (Oxford: Clarendon, 1928), 97.

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Not only did China by the terms of the leases themselves retain and actually exercise more than a nominal sovereignty over the leased territories, but, even if the lessee states intended the leases as disguised cessions, this was certainly not the intention of the lessor, China, and we are not entitled to estimate the legal character of a transaction by conjecturing the undisclosed intentions of one of the parties only.434 There were other weaknesses as well. The theory was based on examining arrangements that gave the lessee more or less comprehensive rights in the leased zone, but there were other leases that entailed much more limited rights, such as the French-Spanish lease of Quinto Real Norte. While the major difference was the scope of rights granted to the lessee, it is possible that these were not considered “leases” by supporters of the theory, given the historical lack of coherence in the term’s definition. The most obvious flaw, however, was the existence of “retrocessions” in which control over leased territories reverted to the sovereign lessors upon termination of the leases or as the result of evolving geopolitical circumstances that caused the lessees to relinquish control. This occurred with all of the territories that were leased in China in 1898. Other prominent cases included Macao, which reverted to Chinese control; the Canal Zone, which reverted to Panama; and two military bases that the United States leased in the Philippines, Clark and Subic Bay, which reverted to Philippine control in 1991 and 1992 respectively. While the disguised cession theory has been discredited by such events, it was important for revealing how a lease of territory does have the potential to establish a set of conditions that can facilitate a transfer of title and sovereignty, such as another state’s physical presence and wide-ranging authority on the lessor’s territory over an extended period. Such conditions can make the lessee appear to be the sovereign. As Bernhard Hofstötter observed, leases “have often served to pave the way for annexation.”435 This continues to occur today, as seen from Russia’s annexation of Crimea in 2014. The operative transfer of sovereignty from Ukraine occurred after armed troops sympathetic to Russia seized power in Crimea, declared independence and asked for Russia’s annexation. Importantly, this occurred while Russia’s lease of a naval base in the Crimean port of Sevastopol faced a political threat 434  Ibid., 97. 435  Bernhard Hofstötter, “Cyprus Under British Rule: An International Law Analysis of Certain Land Surveys and Land Assignments Between 1878 and 1955,” Chinese Journal of International Law 7, no. 1 (2008): 165.

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in the form of a new Ukrainian government that was expected to be hostile to the lease. The government had been installed to replace leaders who were driven from power by popular protests, and those leaders had renewed the lease in 2010, reversing the policy of the preceding government to not prolong it beyond its initial term. The possibility that Ukraine’s new government might abrogate the lease by invoking the rebus sic stantibus principle or by simple denunciation could not be ruled out.436 Russia’s annexation of Crimea allowed it to preserve its base at Sevastopol, which it considered strategically important for reasons beyond its location on the Black Sea: The Sevastopol base is not only a leased zone but also a comfort zone for Russia in terms of food security. In years with poor crops, it has relied on Ukrainian grain to feed its population. The intimidation potential arising from the simple presence of its navy at Sevastopol likely made it more palatable for Russia to depend on a state that was legally and functionally independent from it.437 The fact that Russia had leased the Sevastopol port allowed it to maintain a substantial military presence there, impeding efforts by Ukraine to retain control of Crimea. Lauterpacht criticized the theory of disguised cessions for, among other reasons, having an “undue concentration on a political interpretation of legal phenomena.”438 Nonetheless, political factors have been pivotal in annexations of leased territories by lessee states, even when other factors were involved. Each annexation was a legal phenomenon that resulted from a policy change toward the leased territory—a political decision—made on the basis of a geopolitical opportunity. Other states’ recognition of the assumption of sovereignty over a territory, whether by means of a lease or otherwise, also is a legal decision that can be founded on a political one, as Anthony J. Colangelo related in discussing how the United States has resolved such issues: 436  A similar scenario was elaborated with respect to Guantanamo Bay after Cuba’s revolution in 1959, when the United States developed a legal argument to counter a potential rebus sic stantibus abrogation of the lease by Cuba (Strauss, The Leasing of Guantanamo Bay, 114–19, 239–45). 437  Michael J. Strauss, “Ukraine Naval Base: Russia’s Guantanamo?” Star Tribune (Minneapolis, Minn.), Mar. 12, 2014. 438  Hersch Lauterpacht, International Law: Collected Papers, Vol. 1, ed. E. Lauterpacht (Cambridge: Cambridge University Press, 1977), 372.

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The doctrine that sovereignty determinations are political questions appeared early in [U.S.] Supreme Court history. As Justice Story and Chief Justice Marshall explained “[n]o doctrine is better established,” and when it comes to sovereignty questions, “the court will only observe, that such questions are generally rather political than legal in their character.” A major reason such determinations traditionally were deemed political was that the federal government, acting mainly through the President, needed exclusive and unified power to recognize or not to recognize new nations.439

The Qualities of Sovereignty

Each party to a lease must determine the relationship that its municipal legal system has with the leased territory, and their assessments have given momentum to the idea that sovereignty can be split into de jure and de facto aspects. Colangelo described how this occurred in Boumediene v. Bush, when the U.S. Supreme Court determined that habeas corpus rights in the U.S. Constitution applied at Guantanamo Bay: (T)he Court disaggregated the concept of sovereignty into a series of partial, overlapping sovereignties, each with a different name and character. It used these different sovereignties to devise what is basically a doctrine of concurrent sovereignty: multiple sovereignties simultaneously exist over Guantanamo. Cuba’s sovereignty in the lease the Court labeled “formal” or “de jure sovereignty,” and, the Court acknowledged, is a political question. But the Court then defined an alternative type of sovereignty that is not a political question, and that is properly subject to judicial inquiry. This alternative type of sovereignty, the Court explained, is a “practical sovereignty,” to be measured by the “objective degree of control the Nation asserts over foreign territory.” After distinguishing these two types of sovereignty, and explaining its competence to inquire into the practical type, the Court accepted the government’s determination that Cuba “retains de jure sovereignty over Guantanamo,” but “t[ook] notice” that the United States “maintains de facto sovereignty” over that territory. The Court then rejected “de jure sovereignty” as the proper marker for the geographic scope of habeas and anchored its conclusion 439  Anthony J. Colangelo, “ ‘De facto sovereignty’: Boumediene and Beyond,” George Washington Law Review 77 (2008–09): 644.

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to each part of the opinion’s argument about why habeas constitutionally extends to noncitizens at Guantanamo: common law history, precedent, and separation of powers principles. In short, the Court avoided the government’s political question challenge by finding concurrent sovereignties over Guantanamo and holding that the more important sovereignty for habeas purposes was the kind that belonged to the United States, not Cuba.440 International law has implicitly rejected the notion that sovereignty has a de facto aspect that can reside in a state other than that which has legal sovereignty there. Legal rules pertaining to military occupation, for example, make it clear that only the de jure sovereign has sovereignty of any sort in an occupied territory, regardless of the state that has control there. Similarly, a de facto government is one that is not viewed by other states as legitimate, “the words ‘de facto’ signifying the regime’s factual control but illegal (or extralegal) foundations.”441 On the other hand, territorial leases are founded on agreements and no dedicated set of legal norms pertain to them—and these facts represent substantial differences from situations of belligerent occupation. Leased territories may have more in common with condominiums, for which international law accepts that sovereignty is something that can be shared. Leases that transfer comprehensive territorial rights to the lessee and that are not perpetual suggest that sovereignty also may exist in a temporary form. This notion, too, is discouraged by the law of occupation. Although there are occasional references to the idea of temporary sovereignty in international law, usually in discussions about belligerent occupation or international trusteeships, it does not appear to have been subject to a full examination. Regarding leased territories, J.G. Starke accepted that sovereignty can be temporary in writing that a lease establishes the “temporary sovereignty of the lessee state and sovereignty in reversion of the lessor state,”442 but this question was left without elaboration. A counter-argument would be that if sovereignty can truly be temporary, it must be indistinguishable from “permanent” sovereignty during its period of existence, with all aspects residing in the same state— although this seems impossible, as the temporary version would be identifiable by the advance knowledge of its eventual end, even if the timing of its

440  Colangelo, “ ‘De facto sovereignty’, 624–25. 441  Jonte van Essen, “De Facto Regimes in International Law,” Utrecht Journal of International and European Law 28, no. 74 (2012): 32–33. 442  J.G. Starke, Introduction to International Law, 9th ed. (London: Butterworths, 1984), 153.

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termination may not be known;443 without such knowledge, the transfer of sovereignty would have to be deemed permanent and therefore constitute a cession. The notion that sovereignty can be temporary implies that it also can be suspended or relinquished with the promise of its future return. In the case of a territorial lease, the lessor would be left with nothing other than that promise. This would seem a notion of doubtful validity, however, because the sovereignty acquired by the receiving state would include the right to not return the territory or to dispose of it through cession to a third state. Equally intriguing is the question of whether sovereignty over territory may be refused by a state that is deemed by other states to have it—the “flip side” to the recognition of a state as a sovereign entity. A lease of territory can give rise to this scenario if the lessee considers control without sovereignty to have value as an aspect of the arrangement, as the United States did with its lease of Guantanamo Bay. If the legal threshold for a transfer of title by prescription is met in all respects except one—the will of the state with effective control to claim title—and if no other state has actively exercised authority on the territory in question, can sovereignty be imposed on the unwilling lessee? If so, by what right or mechanism? And if not, what is the international legal status of the lessee’s role vis-à-vis the territory? Numerous aspects of international law, especially those pertaining to the rights, obligations and responsibilities of states with respect to territory, would be affected by the way such a question is resolved. There is, of course, the traditional argument that a lessor state’s sovereignty remains whole regardless of any agreement to make it less so, as its sovereign authority ultimately allows it to withdraw from restrictive arrangements. This was perhaps best described by Westel Woodbury Willoughby in 1911: Theoretically, the State may go to any extent in the delegation of the exercise of its powers to other public bodies, or even to other States; so that, in fact, it may retain under its own direction only the most meagre complement of activities, and yet not impair its Sovereignty. The State’s essential unity is not thus destroyed, for in all such cases the other public bodies or States, to which have been delegated the exercise of these powers, act but as the agents of the State in question, and the original

443  This would be the case with leases that are renewable, or whose termination is contingent on events that are not fixed in time.

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State still possesses the legal power, at least, of again drawing to itself the actual exercise of the powers thus granted.444 Since then, the Vienna Convention on the Law of Treaties has limited the acceptable reasons for unilateral denunciations,445 reinforcing the sanctity of treaties under the pacta sunt servanda principle.446 Despite this, states have at times denounced treaties that were no longer aligned with their vital interests.447 Thus, Yogesh Tyagi called a change in interests “a catalyst for denunciation,”448 and Andrew Guzman wrote that states are never truly locked into an agreement. As a practical matter, sovereign states are able to denounce a treaty and cease performing at any time, regardless of the legal allocation of rights.449 He added that this can entail consequences,450 and in the case of territorial leases a lessor may be reticient to terminate the rights of a more powerful lessee because of the consequences that the former might suffer. Indeed, there have been cases in which a lessor has refused to renew an unwanted lease,451 but premature termination through a lessor’s unilateral denunciation has not been known to occur. 444  Westel Woodbury Willoughby, An Examination of the Nature of the State: A Study in Political Philosophy (New York: Macmillan, 1911), 196. 445  Vienna Convention on the Law of Treaties, May 23, 1969, art. 56, 1155 U.N.T.S. 331; Theodore Christakis, “1969 Vienna Convention: Article 56,” in The Vienna Convention on the Law of Treaties: A Commentary, Vol. 2, ed. Olivier Corten and Pierre Klein (Oxford: Oxford University Press, 2011), 1261–66. 446  “Denouncing a treaty is a highly destabilizing act, because it can undermine the entire network of treaties;” even during the Cold War the United States and the Soviet Union “scrupulously observed all treaties that were in force between the two superpowers” (Anthony D’Amato, International Law and Political Reality: Collected Papers, Vol. 1 (The Hague: Kluwer, 1995), 147–48). 447  Andrew Guzman, How International Law Works: A Rational Choice Theory (Oxford: Oxford University Press, 2008), 148. 448  Yogesh Tyagi, “The Denunciation of Human Rights Treaties,” in The British Yearbook of International Law 2008 (Oxford: Oxford University Press, 2009), 104. 449  Guzman, How International Law Works, 148. 450  Ibid., 148–49. 451  E.g., A treaty to renew U.S. leases of territory in the Philippines for two military bases (Clark Air Force Base and Subic Bay Naval Base) was signed on Aug. 27, 1991, but failed to win ratification in the Philippine Senate, and the United States subsequently closed the bases (Rafael A. Porrata-Doria, Jr., “The Philippine Bases and Status of Forces Agreement: Lessons for the Future,” Military Law Review 137 (1992): 67).

CHAPTER 5

Structural Components

Affirmation of Sovereignty

One of the early building blocks of international law was the principle that a sovereign state may grant rights on its territory to another state.452 Leases of territory are based on this rule and act as affirmation that sovereignty in a leased zone resides in the lessor state. Every territorial lease is contingent on both parties’ acceptance of this fact as a source of the rights that are transferred and the authority to assign them. The lessor’s sovereignty usually reflects prior recognition of the lessor’s title to the territory, although sometimes it is established simultaneously with the lease.453 The affirmation of sovereignty is one of several features of a territorial lease that comprise what may be considered its structural components—the elements that leases have in common and that occur together, even when one or another element is implicit or absent from the text itself. The others include the rights and obligations elaborated in the lease, the duration of the arrangement and the compensation or other consideration. As a prerequisite rather than an operative aspect of a lease, the affirmation of sovereignty may or may not appear among its provisions. When it does, the reason is often diplomatic rather than legal, although its legal value is evident. A common motive in leases of the late nineteenth century was saving face for the lessor when it was the weaker party.454 A clause that mentions the lessor’s sovereignty also may reassure the lessor (and alleviate concerns among other states) about the lessee’s ultimate intentions regarding the territory, with the aim of pre-empting or minimizing problems of a political nature that might affect the lease’s successful implementation or otherwise negatively impact relations between the parties. 452  “There exists no reason why a nation, or a sovereign if authorized by the laws, may not grant various privileges in their territories to another nation” (Emmerich de Vattel, The Law of Nations, or Principles of the Law of Nature, trans. (London: G.G. and J. Robinson, 1797), 168. 453  E.g., when the lease is part of a broader arrangement to resolve contested sovereignty in a frontier zone (Treaty of Bayonne, Dec. 2, 1856; Israel-Jordan Peace Treaty, Oct. 26, 1994; et al.). 454  Perrinjaquet, Des cessions temporaires, 261.

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The U.S. lease of the Canal Zone from Panama in 1903 took such sensitivities into account when it referred to “the sovereignty of such territory being actually vested in the Republic of Panama”455 while granting the United States the exclusive right to engage in sovereign activities.456 As described by William Howard Taft, It is peculiar in not conferring sovereignty directly upon the United States, but in giving the to United States the powers which it would have if it were sovereign. This gives rise to the obvious implication that a mere titular sovereignty is reserved in the Panamanian Government. Now, I agree that to the Anglo-Saxon mind a titular sovereignty is like what Governor Allen, of Ohio, once characterized as a “barren ideality,” but to the Spanish or Latin mind poetic and sentimental, enjoying the intellectual refinements, and dwelling much on names and forms it is by no means unimportant.457 A lease thus acknowledges the de jure situation of the leased territory not only relative to both parties but also relative to the sovereign activities carried out in the leased area. Particularly when the lessor’s sovereignty is affirmed in the lease’s text, it distinguishes the agreement as not being a cession of sovereignty and title, however it may appear, including to other states, if the lessee visibly engages in sovereign behavior in the leased zone. The affirmation also establishes a supplemental legal hurdle to any future challenge to the lessor’s title there. While estoppel has not been a rigid principle of international law, it often is a relevant one in cases involving territorial claims.458 A situation of estoppel created by both parties’ confirmation that the lessor state is sovereign can discourage the lessee from claiming title over the leased area as the national interests of both parties and/or their bilateral relationship change over time. In at least one case—the reciprocal leases of 455  Hay-Bunau-Varilla Treaty, Nov. 18, 1903, pmbl. 456  Ibid., art. 3. 457  U.S. Senate Committee on Oceanic Canals, Testimony by William Howard Taft, Apr. 18, 1906, in Investigation of Panama Canal Matters, Vol. 3 (Washington: Government Printing Office, 1906), 2527. At the time, Taft was the U.S. Secretary of War and oversaw the Panama Canal’s construction. The italicized words were emphasized in the source. 458  Jan Klabbers, The Concept of Treaty in International Law (The Hague: Kluwer, 1996), 93–94; Shaw, International Law, 439–40; Alexander Ovchar, “Estoppel in the Jurisprudence of the I.C.J.: A Principle Promoting Stability Threatens to Undermine It,” Bond Law Review 21, no. 1 (2009): art. 5, 3–6. See also, e.g., Legal Status of Eastern Greenland; Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 6 (June 15).

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African territory between Great Britain and the Congo Free State in 1894—the parties explicitly committed themselves to such restraint: His Majesty King Leopold II, Sovereign of the Independent Congo State, recognizes that he neither has nor seeks to acquire any political rights in the territories ceded to him under lease in the Nile Basin other than those which are in conformity with the present Agreement. Similarly, Great Britain recognizes that she neither has, nor seeks to acquire, any political rights in the strip of territory granted to her on lease between Lake Tanganika and Lake Albert Edward other than those which are in conformity with the present Agreement.459 There are wide variations in how the lessor’s sovereignty is acknowledged when it is done within the text of the lease. Frequently it is clearly stated and unambiguous, as when France leased Kuang-chou Wan from China in 1898: The Chinese Government, in consideration of its friendship for France, has given by a lease for 99 years Kuang-chou wan to the French Govern­ ment to establish there a naval station with coaling depot, but it is understood that this shall not offset the sovereign rights of China over the territory ceded.460 This was also the case when the United States leased the Indian Ocean island of Diego Garcia from the United Kingdom in 1966: The Territory shall remain under United Kingdom sovereignty.461 At times, the fact of sovereignty is affirmed without the term “sovereignty” appearing at all. Russia’s lease of the Baikonur Cosmodrome from Kazakhstan in 1994 used the language of property ownership: Considering the fact that the facilities of the cosmodrome and the City of Leninsk, located on the territory of the Republic of Kazakhstan, together

459  British-Congolese Leases, May 12, 1894, art. IV. 460  Kuang-Chou Wan Lease, May 27, 1898, art. I. 461  Agreement Concerning the Availability for Defense Purposes of the British Indian Ocean Territory (“Diego Garcia Lease”), Dec. 30, 1966, U.K.-U.S., para. 1, 603 U.N.T.S. 273.

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with real and transportable property are the property of the Republic of Kazakhstan (. . .)462 The U.S. lease of Bagram Airfield from Afghanistan in 2006 also referred to sovereignty this way: The Minister of Defense hereby warrants and guarantees that the Host Nation is the sole owner of the Premises and/or has the right, without any restrictions, to grant the use of the Premises.463 Nonetheless, affirming sovereignty while establishing an unconventional application of it can undermine its clarity as a concept, even while not disturbing the fact that sovereignty resides in the lessor state. The Guantanamo Bay lease’s separation of “complete jurisdiction and control” (granted to the United States) from “ultimate sovereignty” (retained by Cuba)464 challenged the notion of sovereignty to the point where national courts in both states were called upon to address the question. The U.S. lease of Great Corn Island and Little Corn Island from Nicaragua in 1914 was similarly erosive of the idea: The Government of the United States shall have the option of renewing for a further term of ninety-nine years the above leases and grants upon the expiration of their respective terms, it being expressly agreed that the territory hereby leased and the naval base which may be maintained under the grant aforesaid shall be subject exclusively to the laws and sovereign authority of the United States during the terms of such lease and grant and of any renewal or renewals thereof.465 At first glance, such wording might seem to force the parties to give practical effect to the questions of whether sovereignty is divisible into de jure and de facto forms or can be temporary. However, there is no indication that lease 462  Baikonur Lease, Mar. 28, 1994, pmbl. 463  Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield between the Islamic Republic of Afghanistan, represented by His Excellency General Abdul Rahim Wardak, Minister of Defense of the Office of the Ministry of Defense, and the United States of America (“Bagram Lease”), Sept. 28, 2006, Afg.-U.S., Doc. DACA-AED-5-06-6559. 464  Guantanamo Lease, Feb. 16, 1903, art. 3. 465  Convention on Interoceanic Canal (“Bryan-Chamorro Treaty”), Aug. 5, 1914. art. II. U.S.Nicar., 39 Stat. 1661, T.S. No. 624, 10 Bevans 379.

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agreements are made with the intent to reshape international legal concepts; to the extent it occurs, it is a byproduct of attempts to pragmatically address bilateral matters. With the Guantanamo Bay lease, for example, a modus vivendi regarding issues of sovereignty developed and evolved over a century on a piecemeal basis through a series of decisions, rulings and legislation, some bilateral and others unilateral, concerning specific matters that arose during the lease’s implementation.466 These decisions may nonetheless inform international law and vice versa. A lessor that grants all but de jure sovereign rights over a leased area was once considered to have no authority at all; Perrinjaquet criticized this, asserting that it put the law into opposition with the facts it represented.467 Yet international law itself has evolved to make sovereignty “in name only” more consequential by endowing it with substance. It can be inferred, for example, from the arbitral award in the Aramco Case that a lessor state’s sustained sovereignty while a lease is in force prevents the rights it transfers to the lessee from being extinguished during the lease’s duration: By reason of its very sovereignty within its territorial domain, the State possesses the legal power to grant rights which it forbids itself to withdraw before the end of the Concession. (. . .) Nothing can prevent a State, in the exercise of its sovereignty, from binding itself irrevocably by the provisions of a concession and from granting to the concessionaire irretractable rights.468 Moreover, international law has been moving toward allocating at least some responsibility to states that allow their sovereign territory to be used by other states whose activities on the territory cause responsibility to be generated. Thus, a lessor that suspends its active involvement with a leased territory while retaining nominal sovereignty there shares liability if the lessee uses the territory to launch a space object that subsequently causes damage in a third

466  Gary L. Maris, “International Law and Guantanamo,” Journal of Politics 29 (1967): 270–72; Strauss, The Leasing of Guantanamo Bay, 143–44. 467  Perrinjaquet, Des cessions temporaires, 259. 468  Saudi Arabia v. Arabian American Oil Co. (“ARAMCO Case”), 27 I.L.R. 117 (1963). The recipient of the rights was not a state and the transferred rights were not sovereign rights, but the assessment is relevant as the rights that a state may grant include sovereign rights and the recipient may be another state.

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state;469 similarly, the de jure sovereign may be shown to share responsibility under certain conditions when a lessee’s activities on the territory constitute internationally wrongful acts.470 An affirmation of the lessor’s sovereignty also may take the form of an obligation created for the lessee toward the lessor, such as the payment of rent or other compensation, or the requirement to engage in (or refrain from) certain conduct on the lessor’s behalf, such as that stipulated in the Soviet Union’s lease of the Saimaa Canal to Finland in 1962: Finland shall, within five years and at its own expense, widen and deepen the Soviet part of the Saimaa Canal, re-equip the locks, build bridges having a load capacity not less than the present ones, construct other necessary installations on the Canal and dredge a new fairway in Zashchitnaya Bay (Suomenvedenpohja) and Vyborg Bay. In addition, Finland shall, within time limits to be agreed upon by the Contracting Parties and at its own expense, set up storage areas and construct trans-shipment facilities on Maly Vysotsky Island.471

Assignment of Rights

Rights associated with sovereignty form the core of every territorial lease and can be split into two general types—those assigned to the lessee in order to achieve the lease’s desired objective, and jurisdictional rights that establish the legal framework for implementing the arrangement in relation to both parties’ respective legal systems. The transfer of rights related to the objective can range from comprehensive to narrow. When the transfer is comprehensive, the lessee obtains more or less complete operational control of the territory, while in a narrower transfer the lessee obtains control of, or assured access to, one or more specified assets that the territory contains. The objectives of territorial leases can be found throughout the entire range of state activities. They frequently reflect political motives, such as exercising

469  Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”), Jan. 27, 1967, art. 7, 610 U.N.T.S. 205; Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, art. I, 961 U.N.T.S. 187. 470  Strauss, “Cuba and State Responsibility,” 547–49. 471  Saimaa Canal Treaty, Sept. 27, 1962, art. 4.

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power or influence abroad;472 ending a conflict over territory that had been subject to competing claims;473 or correcting an unfavorable situation arising from the location of national borders, such as ensuring unhindered access between a state’s mainland territory and an enclave.474 Many territorial leases can be attributed to economic motives, such as exploiting a resource or using agricultural or fishing areas;475 creating a zone with special business, tax or trade rules;476 operating a port or a staging area for the transit of goods;477 or having control over a vital route for trade.478 Leases also are made for strategic or scientific objectives, such as maintaining a military base;479 having a firing range for weapons;480 maintaining a radar station;481 or having a launching site for space vehicles.482 472  E.g., Great Britain’s lease of the New Territories (Hong Kong) from China (Convention of Peking, June 9, 1898). 473  E.g., France’s lease of Quinto Real Norte from Spain (Treaty of Bayonne, Dec. 2, 1856). 474  E.g., Bangladesh’s lease of the Tin Bigha corridor from India (Tin Bigha Lease, Oct. 7, 1982). 475  E.g., Libya’s lease of farmland near Mecina from Mali (Malibya Convention, May 9, 2008). 476  E.g., Bolivia’s lease of an area near Ilo from Peru (Convenio Marco del Proyecto Binacional de Amistad, Cooperación e Integración “Gran Mariscal Andrés de Santa Cruz” [Framework Agreement for the Binational Friendship, Cooperation and Integration Project “Grand Marshal Andrés de Santa Cruz”] (“Boliviamar Agreement”), Jan. 24, 1992, Bol.-Peru; Protocolo Complementario y Ampliatorio a los Convenios de Ilo suscritos entre Bolivia y Perú [Supplementary Protocol Expanding the Ilo Conventions signed by Bolivia and Peru] (“Boliviamar Supplementary Protocol”), Oct. 19, 2010, Bol.-Peru. 477  E.g., France’s lease of two small areas along the Niger River from Great Britain (Niger Convention, June 14, 1898). 478  E.g., the U.S. lease of the Canal Zone from Panama (Hay-Bunau-Varilla Treaty, Nov. 18, 1903), and Finland’s lease of the Saimaa Canal from Russia (Saimaa Canal Treaty, Sept. 27, 1962). 479  E.g., the U.S. lease of Guantanamo Bay from Cuba (Guantanamo Lease, Feb. 16, 1903). 480  E.g., the U.S. lease of a missile proving ground in the Bahamas from Great Britain (Agreement for the Establishment in the Bahama Islands of a Long-Range Proving Ground for Guided Missiles (“Long-Range Proving Ground Agreement”), July 21, 1950, U.S.-U.K., 1 U.S.T. 545, T.I.A.S. 2099, 97 U.N.T.S. 193). 481  E.g., Russia’s lease of a zone at Gabala from Azerbaijan (Соглашение между Российской Федерацией и Азербайджанской Республикой о статусе, принципах и условиях использования Габалинской радиолокационной станции (РЛС “Дарьял”) [Agreement between the Russian Federation and the Republic of Azerbaijan on the Status, Principles and Conditions of Use of the Gabala Radar Station (“DTV” Radar)] (“Gabala Radar Station Lease”), Jan. 25, 2002, Russ.-Azer., Consultant Plus database, http://base.consultant.ru/ cons/cgi/online.cgi?req=doc;base=INT;n=11685, accessed Aug. 21, 2014. 482  E.g., Russia’s lease of an area at Baikonur from Kazakhstan (Baikonur Lease, Mar. 28, 1994).

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While the objectives are normally determined by the lessee, it is not out of the question for a lease to result from diplomatic initiatives by the lessor. A state might seek to improve its financial position or geopolitical circumstances by leasing part of its territory to another state483 in the same way that cessions of territory sometimes have occurred for such reasons.484 When the transfer of rights is comprehensive, the lessee can emulate the sovereign state in the leased zone by engaging in activities that normally would be performed by that state and by having the associated international rights and obligations. Historically, when leases have led to transfers of title and sovereignty, they would involve this type of arrangement: the shift is made relatively seamless by the continuity of the leased zone’s governance, and by other states already being accustomed to interacting with the lessee as the party that conducts the territory’s international relations. This is a characteristic vulnerability of leases that entail comprehensive transfers of rights: the only legal obstacle that stands between such a lease and an actual cession may be the intent for the arrangement to not be perpetual. Maintaining this intent over time depends on the will of the parties, particularly that of the lessee, and on opportunities that may arise through the ebb and flow of national strength and bilateral relations. Among leases that involved comprehensive transfers of rights was the one for Wismar and its surroundings in 1803, in which Sweden transferred to Meklenburg-Schwerin the full and entire usufructuary possession of the Town and Lordship of Wismar, of the Bailiwicks of Poel and of Neukloster and of their dependencies, to enjoy without interruption during the prescribed term.485 Similarly, when France leased Kuang-chou Wan from China, the transfer of rights was made comprehensive to prevent the potential for disputes to arise: 483  Michael J. Strauss, “Would Greece Benefit by Ceding Control over Some of its Territory?” Global Minds Blog, Global Journal, Oct. 5, 2011, http://www.theglobaljournal.net/article/ view/234/, accessed Aug. 11, 2014. 484  E.g., France ceded Louisiana to Spain in 1863 after the territory had become “a source of infinite trouble and expense” (Binger Hermann, The Louisiana Purchase and Our Title West of the Rocky Mountains, with a Review of Annexation by the United States (Washington: Government Printing Office, 1898), 18). After securing its return, France then sold Louisiana to the United States in 1803 in the context of “the languishing state of French finances” (Madison to Robert R. Livingston and James Monroe, Mar. 2, 1803, in The Papers of James Madison, Vol. 7, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1908), 11. 485  Treaty of Malmö, June 26, 1803, art. 1.

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The territory shall be governed and administered during the 99 years of the lease by France alone, so that all possible misunderstanding between the two countries shall be obviated.486 Rights also were transferred comprehensively in the leases for Cyprus, Bosnia and Herzegovina, the Canal Zone, and numerous other locations. In particular, leases for military installations often have entailed comprehensive transfers; the sensitive and often confidential nature of activities conducted at such sites may even result in the lessor being explicitly prohibited from having any involvement with the territory while the arrangement is in force, as in the Bagram Airfield lease: The Host Nation [Afghanistan] covenants and warrants that the United States shall have exclusive, peaceable, undisturbed and uninterrupted possession of the Premises during the existence of this agreement. The United States shall hold and enjoy the Premises during the period of this agreement without any interruption whatsoever by the Host Nation or its agents.487 Leases that entail the transfer of narrower rights can be quite detailed in limiting the breadth of the lessee’s activities. The lease of Quinto Real Norte by Spain to France in 1856 granted French livestock farmers the exclusive use of pastures in the leased zone but restricted them to activities associated with raising and herding livestock: (I)t is hereby agreed that exclusive and perpetual grazing rights on the land in question shall entitle the inhabitants of Baigorry [France] to take their livestock there freely, and without paying any duty, and to keep them there throughout the year if they so wish. It shall also entitle them to build wooden huts there, with planks or branches, to provide shelter for wardens, herdsmen and their herds and flocks, in accordance with local custom. In order to build these huts and for their everyday needs, French wardens and herdsmen shall have the right to cut all the wood they need on this land, without, however, removing, trading or exporting the wood they have cut.488 486  Kuang-Chou Wan Lease, May 27, 1898, art. III. 487  Bagram Lease, Sept. 28, 2006, art. 9. 488  Treaty of Bayonne, Dec. 2, 1856, art. 16.

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Similarly, the twin leases of two small territories along the Niger River in western Africa by Great Britain to France in 1903 limited France to using them as staging points for goods transported between the river’s mouth, under British colonial rule, and the upriver area where France had its colonial presence. As stated in one of the leases: A portion of the land so leased, which shall not exceed 10 hectares in extent, shall be used exclusively for the purposes of the landing, storage, and transhipment of goods, and for such purposes as may be considered subsidiary thereto, and the only permanent residents shall be the persons employed in the charge and for the security of such goods, with their families and servants.489 (. . .) The Government of the French Republic, or its sublessees or agents, shall have the right to build on the said portion of land warehouses, houses for offices and any other buildings necessary for the operations of landing, storing and transhipping goods, and also to construct, on that part of the foreshore of the Niger comprised in the lease, quays, bridges, and docks, and any other works required in connection with the said operations, provided that the designs of all works so to be constructed on the foreshore of the river be furnished to the British authorities for examination, in order to ascertain that these works would not in any way inconvenience the navigation of the river or be in conflict with the rights of third parties or with the customs system.490

Jurisdictional Rights

The other broad category of rights in a territorial lease are jurisdictional rights. These may be assigned to the lessee, but they also may be retained by the lessor or shared between them through a division of responsibility defined in the lease. The jurisdictional rights establish a legal environment that is specific to the leased zone and that forms the basis for handling and administering any legal issues that arise. When the lessee state obtains comprehensive rights related to the objective of a lease, it also tends to secure complete or nearly complete jurisdictional rights in the leased zone. The Guantanamo Bay lease typifies this situation by 489  Arenberg Lease, May 20, 1903, art. 4. 490  Ibid., art. 5 (d).

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granting the United States “complete jurisdiction and control” while de jure sovereignty stayed with Cuba. At the other extreme are cases in which the lessor state retains all or most jurisdictional authority, as with the 1962 lease of the Saimaa Canal to Finland: Soviet law shall apply and Soviet authorities shall have jurisdiction in the leased territories, subject to appropriate exceptions which shall not, however, affect the interests or sovereignty of the USSR.491 It often occurs that a shared jurisdictional regime is agreed upon. There are various ways this authority can be allocated, and two different methods were seen in the leases of territory by China at the end of the 19th century. The arrangement for Kwantung gave Russia jurisdiction everywhere within the leased zone but excluded criminal matters, which were reserved for China: Should any criminal cases occur, the criminal is to be handed over to the nearest Chinese official to be punished according to law, in accordance with the arrangement laid down by the VIIIth Article of the RussianChinese Treaty of the 10th year of Hsien Feng (1860).492 By contrast, when Great Britain obtained leases in the Kowloon Peninsula and Wei-hai-wei, its jurisdiction covered the entire range of legal affairs, including crimes, but was limited geographically to exclude certain locations: Notwithstanding anything herein contained, the Chinese officials now stationed within the City of Kowloon shall continue to exercise jurisdiction therein except in so far as may be inconsistent with the military requirements for the defence of Hong Kong.493 It is also agreed that within the walled city of Wei-hai Wei, Chinese officials shall continue to exercise jurisdiction except so far as may be inconsistent with naval and military requirements for the defence of the territory leased.494

491  Saimaa Canal Treaty, Sept. 27, 1962, art. 13. 492  Kwantung Lease, Mar. 27, 1898, art. IV. 493  Convention of Peking, June 9, 1898, para. 3. China’s jurisdictional authority was revoked the following year (Order in Council, Dec 27, 1899). 494  Wei-hai-wei Lease, July 1, 1898, para. 4.

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In the lease of Tin Bigha by Bangladesh from India, the terms agreed in 1982 divided jurisdiction on the basis of nationality when persons from either state were involved in incidents, while Indian law applied in all other respects: In the event of any Bangladesh/Indian national being involved in an incident in the leased area, constituting an offence in law, he shall be dealt with by the respective law enforcing agency of his own country in accordance with its national laws. In the event of an incident in the leased area involving nationals of both countries, the law enforcing agency on the scene of the incident will take necessary steps to restore law and order. At the same time immediate steps will be taken to get in touch with the law enforcing agency of the other country. In such cases, any Indian national apprehended by a Bangladeshi law enforcing agency shall be handed over forthwith to the Indian side and any Bangladeshi national apprehended by an Indian law enforcing agency shall be handed over forthwith to the Bangladeshi side. India will retain residual jurisdiction in the leased area.495 Similarly, Israel was granted jurisdiction in situations involving its nationals in two areas it leased from Jordan in 1994, Naharayim/Baqura and Zofar/ Al-Ghamr, while Jordanian law otherwise prevailed: a. Subject to this Annex, Jordanian law will apply to this area. b. Israeli law applying to the extra territorial activities of Israelis may be applied to Israelis and their activities in the area, and Israel may take measures in the area to enforce such laws. c. Having regard to this Annex, Jordan will not apply its criminal laws to activities in the area which involve only Israeli nationals.496 An arrangement for concurrent jurisdiction was elaborated in the 1941 lease by the United States of sites for military bases in the British Transatlantic Territories of Antigua, Bermuda, British Guiana, Jamaica, Newfoundland, Saint Lucia and Trinidad. The United Kingdom retained jurisdiction in these places through the territories’ legal systems, but in the case of a British or other nonU.S. national being charged with an crime within any of the leased sites, or of

495  Tin Bigha Lease, Oct. 7, 1982, art. 9. The lease did not enter into force until 1992, when a supplemental agreement on modalities was reached. 496  Israel-Jordan Peace Treaty, Oct. 26, 1994, annex I (b), para. 4; ibid., annex I (c), para. 4.

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a U.S. national being charged with a crime either within or outside the leased sites, the United States shall have the absolute right in the first instance to assume and exercise jurisdiction with respect to such offence.497 A more complex form of shared jurisdiction was established in the lease of Diego Garcia, also for use as a U.S. military installation. The United Kingdom retains jurisdiction through the British Indian Ocean Territory’s legal system, which applies to the entire island, including the U.S. base, although the United States also has jurisdiction over persons subject to U.S. military law. A set of rules establishes the primary right of jurisdiction in situations where both states have concurrent rights, and allows for jurisdictional authority to be exchanged between the parties in circumstances when the state without the primary right requests it. Meanwhile, each party has exclusive jurisdiction in situations that the other’s laws do not address.498 Jurisdiction in a leased territory occurs at more than one level. The lease agreement concerns only the bilateral relationship—it goes no further than determining which state has jurisdictional authority, either entirely or in defined circumstances. At the national level, the state with jurisdiction on the leased territory may consider the area as tantamount to its own sovereign territory, as foreign territory, or as something else for purposes of applying its domestic legal system. Thus, a state that has, at the bilateral level, the right to exercise jurisdiction in the leased zone may deem, at the state level, that its legal system applies differently there than on other territory under its sovereignty or control, or that a separate legal system applies in the zone. Moreover, as M. Cherif Bassiouni has noted in regard to leased territories, Even though a state enjoying special status rights over a given territory can exercise its jurisdiction within the framework of the agreement between respective states, it does not have to exercise it. These situations can result in a subsidiary feature of a territorial lease: a gap in jurisdictional authority. At Guantanamo Bay, for example, the United States had full and exclusive jurisdictional rights through the lease, but legislation 497  Agreement Between the United States of America and Great Britain Respecting Leased Naval and Air Bases (“Atlantic Leased Bases Agreement”), Mar. 27, 1941, U.S.-Gr. Brit., art. IV, para. 1 (c), 55 Stat. 1560, E.A.S. No. 235. 498  Diego Garcia Lease, Dec. 30, 1966, annex II, art. 1.

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and court rulings at the national level over many years precluded it from exercising jurisdiction on the leased territory as fully as it did on U.S. sovereign territory. Cuba, through its own interpretation of the lease, was enjoined from exercising any jurisdiction that the United States deemed it did not have.499 While this so-called “legal black hole” was an inadvertent product of the lease combined with the evolution of law in both states, its potential to occur is not necessarily limited to Guantanamo Bay.500 The leases of U.S. military sites in the British Transatlantic Territories and on Diego Garcia take the prospect of a jurisdictional gap into consideration in situations of concurrent jurisdiction. According to the Diego Garcia lease: If the authorities having the primary right decide not to exercise jurisdiction, they shall notify the other authorities as soon as practicable.501 More common are leases that mandate or encourage cooperation between the lessee and lessor when issues arise in which both states have a jurisdictional interest, and situations of ad hoc cooperation regarding legal matters in a leased territory. An example of such cooperation followed the stabbing death in 2010 of a Russian military officer at the Gabala radar station site, leased by Russia from Azerbaijan.502 Officials of the Russian military prosecutor’s office and the Azerbaijani military prosecutor’s office jointly carried out the investigation.503

Obligations of the Parties

Leases of territory typically specify obligations as well as rights. The lessee state, for example, may be obliged to maintain the territory in good condition or to make material improvements to it. Russia’s lease of the Saimaa Canal to Finland contained both of these obligations: 499  Although Cuba is sovereign over Guantanamo Bay, its Supreme Court ruled that the Cuban legal system must regard it as foreign (In re Guzman & Latamble). 500  Strauss, The Leasing of Guantanamo Bay, 78–98; Michael J. Strauss, “The Creation and Evolution of the Legal Black Hole at Guantánamo Bay,” Cuba in Transition 20 (2010): 286–93. 501  Diego Garcia Lease, Dec. 30, 1966, annex II, art. 1 (c) (iii). 502  Gabala Radar Station Lease, Jan. 25, 2002. 503  Azerbaijan Press Agency, “Body of Russian officer killed in Gabala RLS sent to Russia,” Jan. 12, 2011, http://en.apa.az/news/138160, accessed Aug. 14, 2014.

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Finland undertakes to maintain the aforementioned part of the Canal and the installations and equipment thereon in proper condition for normal operation.504 Finland shall, within five years and at its own expense, widen and deepen the Soviet part of the Saimaa Canal, re-equip the locks, build bridges having a load capacity not less than the present ones, construct other necessary installations on the Canal and dredge a new fairway in Zashchitnaya Bay (Suomenvedenpohja) and Vyborg Bay. In addition, Finland shall, within time limits to be agreed upon by the Contracting Parties and at its own expense, set up storage areas and construct transshipment facilities on Maly Vysotsky Island.505 The same lease also imposed obligations on the lessor: The Soviet Union shall construct at Finland’s expense the necessary engineering works (railway bridge, road bridge having a load capacity of sixty to sixty-five tons, embankments for these bridges and a road) to enable rail and road traffic to cross Kivisillansalmi Strait.506 The Soviet Union shall, in return for a special payment and upon conditions to be determined by special agreement, supply Finland with electricity on Maly Vysotsky Island.507 The lessor also may be obliged to ensure that the leased area remains capable of satisfying the lessee’s objective. The lease of Quinto Real Norte, for example, required Spain, as the lessor, to guarantee the conduct of the governments of the local valleys that were the legal owners of the pastures leased by France: In order to ensure that these wardens and herdsmen always have the wood they need for the purposes referred to above, the valleys owning the land on which grazing rights are granted shall be required to regulate the use of the woodland they own there in accordance with Spanish law and in such a way that this woodland is at all times sufficient for the everyday needs of the wardens and herdsmen and that livestock have the necessary shelter from inclement weather or the sun.

504  Saimaa Canal Treaty, Sept. 27, 1962, art. 3. 505  Ibid., art. 4. 506  Ibid., art. 5. 507  Ibid., art. 6.

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(. . .) The Spanish inhabitants of the valleys owning this land shall be required, for their part, to make no changes in the current condition of this pastureland, and to refrain from clearing or cultivating the land or carrying out any construction on this pastureland or in the woodland.508 Another obligation accruing to the lessor may be to facilitate the presence of the lessee state’s nationals in the leased zone, and to provide the lessee with the means to carry out any jurisdictional rights it may have there. The twin leases of Naharayim/Baqura and Zofar/Al-Ghamr elaborate a series of obligations that Jordan, as the lessor, must undertake to facilitate the use of the areas by Israelis, such as ensuring their unimpeded entry and exit from the areas and providing Israeli police with access to the zones for purposes of exercising authority vis-à-vis Israeli citizens there. (Israel, as the lessee, also has obligations: to restrict the entry of weapons and the dumping of waste in the leased zones, and to forbid any conduct there that may prejudice Jordanian peace or security.)509 The maintenance of infrastructure pertaining to the boundary and structures within the leased area also is a common obligation found in territorial leases. The Guantanamo Bay arrangement, for example, obliged the United States, as the lessee, to pay for building and maintaining fences along the perimeter of the leased area.510 A similar obligation with more detailed terms was imposed on France when it leased its two small territories along the Niger River from Great Britain: The Government of the French Republic binds itself: (a) To fence in that portion of said land referred to in Art. 4 of this lease (with the exception of the side which faces the Niger), by a wall, or by a stockade, or by any other sort of continuous fence, which shall not be less in height than 3 metres; there shall be one door only on each of the three sides of the fence.511

508  Treaty of Bayonne, Dec. 2, 1856, art. 16. 509  Israel-Jordan Peace Treaty, Oct. 26, 1994, annex I (b), para. 2–3; ibid., annex I (c), para. 2–3. 510  Guantanamo Treaty, July 2, 1903, art. 2. 511  Arenberg Lease, May 20, 1903, art. 5; Forcados Lease, May 20, 1903, art. 5.

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In the lease of Tin Bigha, by contrast, it was the lessor, India, that had obligations of this nature: Landscaping (horticulture) protected by fencing, on both sides, of the proposed road, is to be carried out and maintained by India, so as to prevent the possibility of encroachment and infiltration, keeping adequate provision for drains, laying of cables, water-supply etc., in future.

Duration of the Lease

A lease of territory between two states always has a specified duration, although this does not necessarily mean it will end on a foreseeable date. The duration may reflect the parties’ perceptions of the amount of time necessary to satisfy the lease’s objective, but it also can be shaped by other diplomatic objectives, geopolitical situations, private-law influences or practical needs. The practice of states has shown several ways of establishing a lease’s duration: Fixed term. This type of arrangement, relatively common in bilateral leases, is made for a finite period and contains an expiration date on which the lessee’s rights in the territory are automatically extinguished and revert to the lessor. Such a lease may be prolonged only through a new agreement between the parties.512 Fixed-term leases often have been made for periods of 25, 50 or 99 years,513 figures that reflect common standards or maximum allowable durations for long-term leases that some countries stipulate in their private municipal law. From a practical standpoint, a definitive expiration date allows both states to prepare in advance for life after the lease. For the lessee, this can mean developing other means to satisfy the objective it sought to achieve through its rights in the leased zone, and for the lessor it can mean resuming some or all aspects of its governance, with the associated costs and benefits, in areas where it had been suspended. The lessor also may prepare to accommodate a loss in revenue to the extent that it derives income from the lessee state’s rental

512  Depending on the factors involved (whether the lease is comprehensive, whether its objective is military, etc.), a lessee’s refusal to relinquish its rights at the expiration of the lease may transform the legal status of the territory into one in which the law of occupation applies. 513  Rousseau, Cours de droit international public, 114.

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payments, and both states could develop plans for managing the transition as it pertains to inhabitants or business entities that are present in the territory. Given the obligation of states to adhere to the principle of pacta sunt servanda, a fixed term offers the means for a state that no longer desires to be a party to a territorial lease to anticipate a future end to its involvement—terminating it would not require a new agreement to that effect, nor would it entail a unilateral abrogation. This was the case with the 99-year lease of Hong Kong’s New Territories: while the United Kingdom wanted to retain rights in Hong Kong beyond the lease’s expiration date of 1997, China did not,514 a position that allowed it to recover control of Hong Kong that year. A fixed term may be established even when the initial intent is for a lease to have the potential to last longer, as it forces the parties to review the continued relevance of the arrangement and its terms at a specified future date when the parties’ interests and the nature of their bilateral relations may be different. The impending expiration of a lease can prompt the states to evaluate its benefits against the desirability of letting it terminate, much like a “sunset clause” does in municipal law.515 Finland’s lease of the Saimaa Canal from Russia was prolonged this way; the original agreement in 1962 stipulated a 50-year term,516 and a new agreement with revised conditions was concluded in 2010 for another 50 years.517 Another example was Russia’s lease of a naval port at Sevastopol, Ukraine, in 1997; its term was limited to 20 years, but in 2010 a new agreement was made amid different geopolitical circumstances to renew the lease with various changes for a further 25 years beyond the original expiration.518 (The lease was terminated by Russia in 2014 after it annexed Crimea, where Sevastopol is located.)519 Fixed term with automatic renewal. A fixed-term lease may include a provision for its automatic renewal or prolongation in the absence of positive action 514  Ross H. Munro, “Who Lost Hong Kong?” Commentary, December 1990, 33–39; James McCall Smith, “One Sovereign, Two Legal Systems: China and the Problem of Commitment in Hong Kong,” in Problematic Sovereignty: Contested Rules and Political Possibilities, ed. Stephen D. Krasner (New York: Columbia University Press, 2001), 105–12. 515  Sunset clauses generally are motivated by a desire for improved governance; while they have a mixed record of success, they can promote political compromise and foster policymaking based on evidence of a law’s performance (see Bastian Jantz and Sylvia Veit, “Sunset Legislation and Better Regulation: Empirical Evidence from Four Countries,” research paper (Gütersloh, Germany: Bertelsmann Stiftung, 2010)). 516  Saimaa Canal Treaty, Sept. 27, 1962, art. 19. 517  Saimaa Canal Renewal Agreement, May 27, 2010. 518  Sevastopol Lease Renewal, Apr. 21, 2010. 519  Kathrin Hille, Neil Buckley and Jack Farchy, “Putin Tears Up Lease for Sevastopol Naval Base,” Financial Times, Apr. 2, 2014.

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by either party to terminate it. Such a lease may specify a period of time prior to its scheduled expiration during which one of the parties may act to stop it from continuing in force, and it may detail the type of action required. This type of arrangement has the potential to be continued in perpetuity; it may be deemed desirable if there is no particular intent for the lease to expire, or if the states do not agree on when its expiration should occur. The fact of having a defined term allows the parties to keep their diplomatic options open in the future while evading the issue of permanence and thereby avoiding any political or legal consequences that may arise from it. The term also creates regular points throughout the time the lease is in effect when the states may periodically reflect on its continuation, or on possible revisions to its other provisions. The lease of Diego Garcia is one that contains an automatic prolongation clause: The United States Government and the United Kingdom Government contemplate that the islands shall remain available to meet the possible defense needs of the two Governments for an indefinitely long period. Accordingly, after an initial period of 50 years this Agreement shall continue in force for a further period of twenty years unless, not more than two years before the end of the initial period, either Government shall have given notice of termination to the other, in which case this Agreement shall terminate two years from the date of such notice.520 Another case involves the Israeli leases of Naharayim/Baqura and Zofar/ Al-Ghamr from Jordan: Without prejudice to private rights of ownership of land within the area, this Annex will remain in force for 25 years, and shall be renewed automatically for the same periods, unless one year prior notice of termination is given by either Party, in which case, at the request of either Party, consultations shall be entered into.521 Indefinite term. The duration of a territorial lease may be indefinite, with its termination being contingent on the occurrence of an event or circumstance described in the lease. The triggering situtation may or may not come to pass, and if it does it may be impossible for the parties to estimate when it might

520  Diego Garcia Lease, Dec. 30, 1966, art. 11. 521  Israel-Jordan Peace Treaty, Oct. 26, 1994, annex I (b), para. 6; ibid., annex I (c), para. 6.

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occur. The contingency reflects the expectation that it would cause, or be a consequence of, a change in the political, geopolitical, economic or other underlying context in which the lease was made, and that this change would diminish the importance of the lease’s objective to the point that maintaining the territorial arrangement itself is no longer worthwhile. The reciprocal leases of territory between Great Britain and the Congo Free State entailed this type of duration in two respects—part of Great Britain’s lease of African territory to the Congo Free State was to terminate upon the occurrence of an event that was certain to happen (the end of a king’s reign), and the termination of another part was contingent on whether the Congo Free State’s legal status changed at some future point: This lease shall remain in force during the reign of His Majesty Leopold II, Sovereign of the Independent Congo State. Nevertheless, at the expiration of His Majesty’s reign, it shall remain fully in force as far as concerns all the portion of the territories above mentioned situated to the west of the 30th meridian east of Greenwich, as well as a strip of 25 kilom. in breadth, to be delimited by common consent, stretching from the watershed between the Nile and the Congo up to the western shore of Lake Albert, and including the port of Mahagi. This extended lease shall be continued so long as the Congo territories as an Independent State or as a Belgian Colony remain under the sovereignty of His Majesty and His Majesty’s successors.522 Another lease of this type was the one for Guantanamo Bay: The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water situated in the Island of Cuba.523 The lease in 1905 of a small zone in Kismayu, in the British East Africa Protectorate, from Great Britain to Italy for purposes of a warehouse for trade and related facilities had a sliding duration linked to the amount Italy spent in building the facilities: The lease shall be in force for thirty-three years from the present date, but if the Italian Government shall show to the satisfaction of His Britannic Majesty’s Government that the amount spent within ten years from this 522  British-Congolese Leases, May 12, 1894, art. II. 523  Guantanamo Lease, Feb. 23, 1903, art. I.

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date on the erection of the pier and buildings exceeds 5,000 £.s, then the lease shall be in force for sixty-six years; or if the amount so shown to be spent exceeds 10,000 £.s, then the lease shall be in force for ninety-nine years.524 Perpetuity. A territorial lease made in perpetuity reflects the intent of the parties to establish a permanent arrangement that precludes any prospect of termination. This distinguishes it from some of the preceding durational forms that allow for the possibility of either permanence or termination. There is little in the documentation pertaining to individual leases made in perpetuity to suggest the motives for binding the parties in this way, but as these leases appear with some regularity in the course of state practice one can surmise some potential reasons based on their other details or geopolitical context. A perpetual term may be chosen because the objective of the lease has no foreseeable ending point. It also might signal an expectation that the arrangement, as an element of bilateral cooperation, can last forever, and can be meant to encourage future state conduct that supports this. Nationalism or an emotional attachment to the territory within the lessor state might yield a perpetual lease in order to minimize potential obstacles to the arrangement (it has been noted in reference to private-law leases that perpetuity “might be motivated by a sentimental unwillingness to part with the land”).525 It is also possible that the parties consider the servitude created by the lease to be inherently permanent, in accordance with the classical doctrine of servitudes. From the perspective of international law, a perpetual lease can be problematic when it assigns to the lessee all or nearly all of the rights associated with sovereignty, including jurisdictional rights; it is this type of arrangement that raises questions about whether it is a lease or a true cession of territory because it implicates the lessor’s acceptance that it will never recover its rights. A perpetual lease that transfers a more limited set of rights may be less risky for the lessor in this regard but is not necessarily immune to such questions. Determining which state holds the title to territory where the lessee has de facto sovereignty in perpetuity can depend on various factors; these include, inter alia, evidence of effective control, the lessor’s conduct relative to residual

524  Accordo fra l’Italia e la Gran Bretagna per l’affitto al Governo italiano di un territorio vicino a Kisimaio [Agreement between Italy and Great Britain for the Lease to the Italian Government of a Territory Near Kismayu] (“Kismayu Lease”), Jan. 13, 1905, Italy-Gr. Brit., art. IV, 17 Trattati e Convenzioni 488. The currency is British pounds sterling. 525  William Berg Jr., “Long-Term Options and the Rule against Perpetuities—Part I,” California Law Review 37, no. 1 (1949): 24.

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international obligations and responsibilities as the de jure sovereign, and the other provisions in the lease. In the event, there have been few legal cases in which this issue has arisen. In one adjudicated in Great Britain in 1941, the Judicial Committee of the Privy Council held on appeal that a perpetual lease of territory in 1903 by the Khanate of Kalat526 to British India, in which Kalat assigned to India its sovereign rights in Niabat, a subdivision of Nasirabad, did not constitute a formal cession of the territory: ‘Cedes in perpetuity (. . .) the entire management of the Nasirabad Niabat absolutely and with all the rights and privileges, state or personal, as well as full and exclusive revenue, civil and criminal jurisdiction and all other powers of administration’ are words creating rights between two sovereign States which were never yet found in any mere commercial agreement. It is true that the right ceded is the entire ‘management’, and the consideration is an annual rent; and, as is made clearer in para. 4 of the treaty, the transaction is in fact a perpetual lease of the territory at a quitrent. Nevertheless, the sovereign of Kalat made over to the British State the whole of his sovereign rights, though as the cession takes the form of a lease the territory does not pass so as to become part of the British Dominions, but still remains Kalat territory.527 Another case that occurred within India’s municipal legal system involved a challenge to India’s perpetual lease of Tin Bigha, a small area situated between Bangladesh and an enclave divided into two political units that was surroun­ ded by Indian territory. The lease, which allocated limited rights to Bangladesh, was the product of three agreements—one in 1974 which mandated that India “will lease in perpetuity to Bangladesh” the area concerned,528 one in 1982 that elaborated the lease’s terms529 and one in 1992 on the modalities that allowed it to come into force.530 According to the 1982 agreement: 526  A khanate was a princely state in the Asian subcontinent, ruled by a khan. The Khanate of Kalat was annexed by (West) Pakistan in 1955 and became a district of the province of Balochistan. 527  Secretary of State for India v. Sardar Rustam Khan and Ors. (1941), A.C. 356, 10 I.L.R. 98. 528  Agreement between the Government of the People’s Republic of Bangladesh and the Government of the Republic of India concerning the demarcation of the land boundary between Bangladesh and India and related matters (“Land Boundary Agreement”), May 16, 1974, Bangl.-India, art. 1, item 14 (Berubari). Bangladesh Gazette (Extraordinary), Nov. 28, 1974, 6274–77. 529  Tin Bigha Lease, Oct. 7, 1982. 530  Tin Bigha Implementation Agreement, Mar. 26, 1992.

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The lease in perpetuity of the aforementioned area shall be for the purpose of connecting Dahagram and Angarpota with Panbari Mouza (P.S. Patgram) of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota.531 Opponents of this agreement claimed that the lease was an unconstitutional cession of territory, but the sitting judge in the Calcutta High Court found otherwise in a ruling that was upheld in two subsequent appeals:532 There is no question of transfer of sovereignty, wholly or partially, in respect of the said area. What has merely been done is to enable the Government of Bangladesh and its nationals to exercise certain rights in respect of the said area which otherwise they would not have been entitled to do. Only certain privileges have been conferred on the Bangladesh Government and its nationals which otherwise they would not have been entitled to enjoy. (. . .) As these two enclaves are to remain as part of Bangladesh territory, these two agreements have made some provisions to enable Bangladesh to exercise its sovereignty in full over these two enclaves. This is also clear by 1982 Agreement. In my opinion the implementation of these two Agreements, so far as Teen Bigha is concerned, does not amount to cession of the said territory or transfer of sovereignty in respect of the same and does not require any constitutional Amendment. In spite of such Agreements, India would still retain its sovereignty, ownership and control of Teen Bigha.533 In particular, the judgment noted that the provision allowing Bangladesh to exercise jurisdition over its nationals had to be seen in the context of the entire lease: This amounts to conferment of a very important power and giving up of a very important right. When it is said that a particular State is independent, in a concrete way it is attributed to that State a number of rights, powers and privileges at International Law. One of the examples of the rights associated with a State’s independence is the sole jurisdiction over 531  Tin Bigha Lease, Oct. 7, 1982, art. 1. 532  For a descriptive summary, see Brendan R. Whyte, “Waiting for the Esquimo: An Historical and Documentary Study of the Cooch Behar Enclaves of India and Bangladesh,” Research Paper 8 (University of Melbourne, School of Anthropology, Geography and Environmental Studies, 2004), 135–39. 533  Sugandha Roy v. Union of India (UOI) and Ors. (1983), A.I.R. 1983 (Cal.) 468.

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crimes committed within its territory. If Clause 9 is implemented then India shall not have the jurisdiction over Bangladeshi nationals in respect of any crime committed in the area concerned. However, having regard to the other provisions of this Agreement, I am of the opinion that conferment of this power on Bangladesh and abdication of such power by India cannot by itself amount to transfer of sovereignty in respect of this area.534 Underpinning a lease in perpetuity is an essential factor: the lessee’s intent not to claim title and sovereignty over the leased zone must also be perpetual. Although this may be the hope when the lease is made and may be reinforced through the pacta sunt servanda principle while the lease is in effect, it ultimately is impossible to predict how the lessee’s state interests will evolve in the long term and how it will behave relative to those interests at any given point. Consequently, more than a few perpetual leases have been terminated by later agreements between the parties as the arrangements became unnecessary or undesirable. One case involved China’s lease of the Meng-Mao Triangular Area (also called the Namwan Assigned Tract) to Great Britain as part of an 1897 treaty that settled some sovereignty issues along the China-Burma boundary at a time when Burma was under British control. The treaty designated China as the sovereign over Meng-Mao and created a lease for the area that stated: In the whole of this area China shall not exercise any jurisdiction or authority whatever. The administration and control will be entirely conducted by the British Government, who will hold it on a perpetual lease from China, paying a rent for it, the amount of which shall be fixed hereafter.535 In 1960, Burma (now independent) and China concluded a new boundary treaty that terminated the lease and made Burma, the lessee, the sovereign over Meng-Mao in exchange for other territory that Burma ceded to China. In another case, the Canal Zone lease of 1903, also made in perpetuity, was replaced by a fixed-term lease through a treaty between the United States and

534  Ibid., referring to art. 9. 535  Agreement between Great Britain and China, Modifying the Convention of March 1, 1894, Relative to Burmah and Thibet (“Sino-British Boundary Treaty”), Feb. 4, 1897, Gr. Brit.China, art. II., 89 British and Foreign State Papers 25.

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Panama in 1977.536 This time it was the lessor, Panama, that recovered control of the leased zone and ultimately the canal itself by the end of 1999.537 Regardless of the type of duration stipulated in a lease of territory, international law offers options for terminating it in the presence of appropriate circumstances; these include the emergence of a peremptory norm that is incompatible with the arrangement, the implied right of denunciation when there is no provision for termination or withdrawal, the principle of rebus sic stantibus, or a material breach of the lease’s provisions.538

Compensation to the Lessor

A final element common to the structure of territorial leases is the compensation that the lessee provides to the lessor in exchange for the transferred rights. As with a lease’s other features, this can take different forms—state practice has shown that it may be monetary or non-monetary, and its magnitude may be related to factors such as the perceived value of the territory, the objective of the lease or the affirmation of the lessor’s sovereignty. The compensation may be tangible, as with the payment of rent, but it also may be intangible, such as an improvement in the lessor’s position in bilateral political or trade relations. Several general types of compensation can be identified in the practice of territorial leasing: Value-based rent. Some territorial leases stipulate a periodic rental payment based on the economic value of the territory, or on the political or strategic value of the benefits that accrue to the lessee as the result of the rights it may exercise there. The payment is typically annual. When it is based on economic value, this may become the rental amount but it also may act as a reference point from which the rental amount is determined. Negotiators of the Quinto Real Norte lease used a formula to establish the territory’s economic value when they determined the annual rent that France would pay to Spain for the rights it obtained on behalf of French citizens:539 The inhabitants of Baigorry shall obtain exclusive and perpetual use of this pastureland in return for an annual rent of 8,000 francs, representing, 536  Panama Canal Treaty, Sept. 7, 1977. 537  Ibid., art. II, para. 2. 538  Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 56, 60, 62. 539  Jean Sermet, “Le statut original du Pays Quint,” Pyrénées 183–84 (1995): 293; Strauss, The Viability of Territorial Leases, 150–51.

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at an exchange rate of 19 reales to 5 francs, an amount of 30,400 reales de vellón.540 In the Guantanamo Bay lease, the stipulated rent of $2,000 per year to be paid by the United States541 entailed a premium to the prevailing market value of land in that part of Cuba in 1903, sweetening the terms of an arrangement that Cuba accepted grudgingly as a condition for obtaining its independence.542 In the lease of the Saimaa Canal, the Soviet Union allowed Finland to collect tolls from ships that pass through the canal,543 and set the amount of rent on a sliding scale in accordance with the volume of freight traffic that would generate income for Finland: From the time when the Soviet part of the Saimaa Canal is put into operation, the Republic of Finland shall pay the Union of Soviet Socialist Republics an annual rental for the use of the Soviet part of the Saimaa Canal and the other leased territories in accordance with the following scale: For a freight turnover of less than 1.0 million tons, 180,000 roubles; For a freight turnover between 1.0 and 1.5 million tons, 210,000 roubles; For a freight turnover between 1.5 and 2.0 million tons, 240,000 roubles; For a freight turnover of more than 2.0 million tons, 260,000 roubles.544 In another case, Russia agreed to provide Ukraine with an annual rent equaling $97–98 million when it leased the naval port of Sevastopol in 1997 for 20 years.545 The lease was controversial in Ukraine and its renewal became a divisive political issue; when an extension was agreed in 2010 for another 25 years starting in 2017, the amount of compensation surged to the equivalent of at least $1.6 billion per year through the granting of discounts on the price of Russian natural gas imported by Ukraine.546 A news report quoted Russia’s 540  Treaty of Bayonne, Dec. 2, 1856, art. 15. 541  Guantanamo Treaty, July 2, 1903, art. 1. 542  Strauss, The Leasing of Guantanamo Bay, 126–27. The rent originally was compensation for leasing Guantanamo Bay plus a second, much smaller area, Bahia Honda, but the amount stayed unchanged after the United States never used the latter zone and allowed its rights there to revert to Cuba. 543  Saimaa Canal Treaty, Sept. 27, 1962, art. 3. 544  Ibid., art. 10. 545  Sevastopol Lease, June 7, 1997. Details about the rent were not disclosed; it has been described both as payments and as writedowns of Ukraine’s debts to Russia. 546  Sevastopol Lease Renewal, April 21, 2010, art. 2.

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then-prime minister, Vladimir Putin, as equating this amount with the value of “a breakthrough in ties with Ukraine” that would have strategic importance: “The proposed price seemed absolutely exorbitant,” he said, saying the discount amounted to $40 billion to $45 billion in savings for Ukraine. “It would be possible to build several bases with this money, but for us, this is an issue of cooperation with Ukraine rather than just the financial aspect.”547 Symbolic rent. A number of territorial leases have required the lessee to pay a periodic symbolic rent that is unrelated to the value of the territory or the rights involved. The rent in these cases is a nominal amount and has the effect of affirming the lessor’s sovereignty over the leased zone: the payment serves as a recurring display of the lessee’s recognition of the lessor’s title. Examples of leases with symbolic rents include those in which France obtained rights on two small territories along the Niger River from Great Britain in 1903 (one French franc per year for each zone);548 the lease of a small zone in Kismayu, in the British East Africa Protectorate, from Great Britain to Italy in 1905 (one British pound sterling per year);549 and the lease in perpetuity of port sites in Dar-es-Salaam and Kigoma, Tanganyika, by Great Britain to Belgium in 1921 (one Belgian franc per year for the two zones).550 The 1982 agreement for the lease of Tin Bigha also stipulated a symbolic rent equivalent to less than $1 per year. Its role in affirming India’s sovereignty was highlighted by its placement in the same clause as the affirmation itself, which deemed the presence of the rent, and not the act of payment, to be sufficient: Sovereignty over the leased area shall continue to vest in India. The rent for the leased area shall be Bangladesh Tk. 1/- (Bangladesh Taka One) only per annum. Bangladesh shall not, however, be required to pay the said rent and the Government of India hereby waives its right to charge such rent in respect of the leased area.551 547  Philip P. Pan, “Ukraine’s extension of Russian base’s lease may challenge U.S. goals in region,” Washington Post, Apr. 28, 2010. 548  Arenberg Lease, May 20, 1903, art. 6; Forcados Lease, May 20, 1903, art. 6. 549  Kismayu Lease, Jan. 13, 1905, art. 3. 550  Convention between Great Britain and Belgium with a View to Facilitating Belgian Traffic Through the Territories of East Africa (“Belbase Agreement”), Mar. 15, 1921, Gr. Brit.-Belg., art. 5, 1921 Gr. Brit. T.S. No. 11, Cmnd. 1327. 551  Tin Bigha Lease, Oct. 7, 1982, art. 2.

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Non-monetary compensation. The consideration to be provided by the lessee, whether value-based or symbolic, does not always take the form of a monetary payment. It is not unusual for a lease to specify one-time or recurring com­ pensation in the form of goods or services, or in the form of financial concessions such as the discount on gas prices that Russia granted to Ukraine when the Sevastopol lease was extended in 2010. The practice of non-monetary compensation dates back to the Babylonian lease in which Umma was obliged to pay grain to Lagash in return for the right to cultivate crops on the latter’s territory. An example from the 19th century is the lease of Kashmir by Great Britain to the Maharajah Golab Sing in 1846, which required the regional ruler to make both an initial monetary payment and a recurring symbolic payment in goods: In consideration of the transfer made to him and his heirs by the provisions of the foregoing Articles, Maharajah Golab Sing will pay to the British Government the sum of seventy-five lakhs of rupees (Nanuk­ shahee), fifty lakhs to be paid on ratification of this Treaty, and twentyfive lakhs on or before the 1st October of the current year, A.D. 1846.552 Maharajah Golab Sing acknowledges the supremacy of the British Government and will in token of such supremacy present annually to the British Government one horse, twelve shawl goats of approved breed (six male and six female) and three pairs of Cashmere shawls.553 More recently, numerous leases of sites for military installations have entailed non-monetary compensation. In the exchange of diplomatic notes in 1940 through which the United States secured Great Britain’s agreement to lease sites for military bases in the British Transatlantic Territories, the United States agreed to provide the lessor with military equipment: The Government of the United States will immediately transfer to His Majesty’s Government fifty United States Navy Destroyers generally referred to as the twelve-hundred type.554 Leases for military uses in particular may have strategically or politically sensitive features that are kept confidential (indeed, the lease itself may be a 552  Treaty between the British Government and Maharajah Golab Sing of Jummoo (“Treaty of Amritsar”), Mar. 16, 1846, Gr. Brit.-Jummoo (Jammu), art. 3, 9 Aitchison’s Treaties 353. 553  Ibid., art. 10. 554  Cordell Hull to the Marquess of Lothian, exchange of notes (“Destroyers for Bases Agreement”), Sept. 2, 1940, U.S.-Gr. Brit., E.A.S. No. 235.

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secret agreement).555 In the case of the Diego Garcia lease, the text suggested that no consideration was involved: The required sites shall be made available to the United States authorities without charge.556 It later emerged that the arrangement entailed secret compensation by the United States to the United Kingdom that took several different forms. One was to partly offset the British costs of making Diego Garcia available by subsidizing research charges that the British had committed to pay when it purchased Polaris submarine missiles from the United States: The agreement with the British provides for U.S. use for 50 years with an option for an additional 20 years. The cost of the agreement to the U.S. was one-half of the detachment costs ($14 M) which was funded by offsetting British Polaris R&D charges.557 Another element of the U.S. compensation was to build an airport capable of handling large military aircraft in the Seychelles, which was then part of the British Indian Ocean Territory. A U.S. ambassador to the Seychelles after its independence later stated: To make a long story short, we had a trade-off with the British. The British basically gave us access to Diego Garcia, in return for which we agreed, among other things, to build an airport on the Seychelles.558

555  It has been persistently reported since the 1990s that China maintains military sites on territory leased from Burma on Hainggyi Island, on Great Coco Island and in other locations. China and Burma have denied this. Neither position could be independently verified. “Accurate information about security developments in Burma has always been difficult to obtain. Such issues are invariably cloaked in official secrecy and confused by countless rumours” (Andrew Selth, “Chinese Military Bases in Burma: The Explosion of a Myth,” Griffith Asia Institute Regional Outlook Paper 10, (Nathan, Qld: Griffith University, 2007): 22). 556  Diego Garcia Lease, Dec. 30, 1966, art. 3. 557  “Diego Garcia—Background and Status,” Paper Prepared in the Office of the Chief of Naval Operations (Moorer), Feb. 11, 1970, in U.S. Department of State, Foreign Relations of the United States 1969–1976, Vol. 24, eds. Linda W. Qaimmaqami and Adam M. Howard (Washington: U.S. Government Printing Office, 2008), 126. 558  David J. Fischer, interview by Charles Stuart Kennedy and Robert S. Pastorino, Mar. 6, 1998, Foreign Affairs Oral History Project, Association for Diplomatic Studies and Training, 93.

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Similarly, Russia agreed to a wide range of non-monetary compensation when it renewed its lease of a military base in Tajikistan for 29 years in 2012. The agreement was the product of diplomatic compromise, as Tajikistan had wanted Russia to pay rent while Russia had sought to avoid such payments. Details of the arrangement were confidential, but one report cited Russian officials as indicating that the compensation included providing military equipment and training to Tajikistan, removing duties on light oil products exported by Russia to Tajikistan, improving the terms for work permits issued to Tajik migrant workers in Russia, supplying funds for Tajikistan’s fight against illegal narcotics, and investing in the country’s energy and mining sectors.559 Unspecified compensation. A territorial lease sometimes does not require the lessee state to compensate the lessor for the rights that are transferred in the leased area. This can occur, for example, if the lease is part of a broader bilateral agreement or a set of agreements in which there is a compensatory aspect elsewhere. It also may occur because the lease is one strand of a larger web of formal and informal arrangements and activities that cumulatively make up the entirety of two states’ bilateral relations, and seemingly unrelated aspects of these relations can render unnecessary the inclusion of a clause that specifies compensation in the lease itself. The compensation element of a territorial lease also may be implied and intangible, such as the prospect for the lease to generate improved political or economic relations between the states. The lease of Hong Kong’s New Territories by Great Britain from China in 1898 was one that made no mention of compensation in any form. The twin leases of Naharayim/Baqura and Zofar/Al-Ghamr by Israel from Jordan are other examples.

A Widening Field of Options

State practice has shown that each structural component of a territorial lease can be formulated in multiple ways. This finds parallels in the varying degrees of detail contained in these arrangements and in their length as legal instruments—some are as brief as a page while others consume 10–20 pages. It is thus easy to see why a given arrangement may be difficult to place into the broader practice, why a lease is sometimes referred to as an original solution to For other aspects of non-monetary compensation, see Rasul B. Rais, The Indian Ocean and the Superpowers (Totowa, N.J.: Barnes & Noble, 1987), 77–80. 559  Alexander Sodiqov, “Russia Keeps Military Base in Tajikistan until 2042,” Analyst, Central Asia-Caucasus Institute, Oct. 17, 2012.

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a territorial issue and why potential precedents can go undetected.560 The diplomatic creativity behind these numerous forms of leases may have obscured the phenomenon itself, although it has resulted in a widening field of options for constructing these arrangements—a veritable cafeteria from which different combinations of features may be used in addressing territorial issues in this manner. 560  Strauss, The Viability of Territorial Leases, 239–41.

CHAPTER 6

Administration of Leased Territories

Management of the Lease

As an instrument that modifies the normal application of sovereignty, a lease introduces anomalies into how each party relates to the leased zone in terms of governance. The lease inevitably creates divergences from the structural, procedural and practical aspects of governing that exist elsewhere on each state’s sovereign territory because the rights on which they are based in the leased area are no longer those linked to exclusive authority. These differences must be accommodated for a lease to perform adequately vis-à-vis a number of factors simultaneously—the objective of the arrangement, the bilateral relations between the parties, any relationships that third states have with the leased territory, and the concerns of inhabitants and entities in the leased zone. These factors, moreover, must stay accommodated throughout the term of the lease as they evolve independently through different dynamics. The text of a lease may be limited to provisions that pertain to the use of the territory for a specific objective; they are not necessarily coordinated with legal or political rules that exist at the domestic level, and may not foresee or address the lease’s potential impact on other aspects of either state’s governance. This allows situations to arise like the one at Guantanamo Bay, in which the parties anticipated the need for jurisdiction in the leased zone and allocated it between themselves, but did not consider how its exercise within the context of that allocation would be limited by domestic legal constraints. Thus, a lease of territory can yield benefits and problems at the same time for either or both states. Moreover, the situations that occur may be unpredictable and outside the range of issues that states manage in the rest of their territory where the “normal” exercise of sovereignty prevails. Because a lease establishes an ongoing project with characteristics that are not replicated in other forms of bilateral cooperation, situations at the international level may be unique as well. Sometimes a lease has a dedicated mechanism—a bilateral agency or a set of procedural rules, for example—to facilitate the administration of matters that arise through its implementation. This mechanism may be established by the lease itself or created in response to the issues it generates, and may

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operate in conjunction with bodies at the regional or local level that handle minor issues or day-to-day affairs. The Quinto Real Norte lease between Spain and France is instructive in this regard as it produced bilateral, national and local situations that all had to be managed. The lease was incorporated into a broader boundary treaty in 1856561 and addressed an intractable and periodically violent local conflict about rights to use the area’s pastures. The transfer of rights by Spain to France was done for the benefit of local authorities and inhabitants, and the lease entailed commitments regarding their activities. Neither the lease nor the treaty established a mechanism or procedures for implementing the arrangement, apart from a supplemental convention that detailed how the annual rent should be paid;562 all other matters that arose at any level were left to be resolved within each state’s existing administrative structures. The lease ultimately succeeded in its objective—bringing peace to the area with a stable and respected boundary—but for decades it generated significant political, economic and other challenges, including resistance to the arrangement by local authorities that resented the states’ interference in “their” affairs. Resolving these issues while ensuring that local interests complied with the states’ bilateral obligations required more dedicated administrative efforts, and matters involving the zone were eventually placed within the competence of the International Pyrenees Commission, a joint entity created by France and Spain in 1875 to resolve a separate problem elsewhere along the boundary.563 The Commission’s responsibilities were widened in 1887 to cover the entire length of the Pyrenees frontier,564 and within several years Quinto Real Norte had become a primary focus of its activity.565

561  Treaty of Bayonne, Dec. 2, 1856. 562  Convention Supplementary [to the Treaty of Bayonne, Dec. 2, 1856], Dec. 18, 1858, Spain-Fr., annex I, 1142 U.N.T.S. 332, trans., 378. 563  This involved the Bay of Figuier (Higuer), where the Treaty of Bayonne had left the boundary unclear; see Jacques Poumarède, “Gérer la frontière: La Commission Internationale des Pyrénées (1875–1900),” in La frontière franco-espagnole—Lieu de conflits interétatiques et de collaboration interrégionale, (Bordeaux: Presses Universitaires de Bordeaux, 1998), 77–78. 564  Exchange of notes between Spain and France expanding and clarifying the powers of the Commission, Apr. 7, 12 and 24, 1887 (excerpts), in Emile Charveriat, “La Commission des Pyrénées: Ses origines, son histoire, sa compétence” (unpublished report, France Ministry of Foreign Affairs, 1929), ch. 4: 13–16. 565  Poumarède, “Gérer la frontière,” 82–83.

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The Commission’s composition and functioning adapted to evolving demands566 and it was able to interact with authorities in Spain and France at all relevant levels. Through its management, the issues pertaining to the leased zone gradually diminished in frequency and intensity, and the Commission met progressively less often.567 At the local level, the Spanish government’s regional forestry office568 managed day-to-day affairs in Quinto Real Norte (pastures, forests, access routes, etc.) until 1974, when the state devolved this responsibility to the government of the Navarra region, where the local governments of the valleys of Baztán and Erro, the legal owners of the leased pastures, created a joint entity569 that has managed day-to-day affairs in the zone since 1991. As the result of arrangements made between Spain and France, police and forest rangers from both states patrol Quinto Real Norte; France provides electric power, postal service, telephone service and road maintenance,570 and the territory’s inhabitants, all French, pay taxes on their property to Spain.571 The Saimaa Canal lease between the Soviet Union and Finland mandated the creation of a state agency by the lessee state to ensure the zone’s governance: For the purposes of the operation of the Saimaa Canal and the administration of the Canal and the leased territories, the Finnish authorities shall establish a special “Saimaa Canal Administrative Committee” with headquarters in Finnish territory. The head of the Administrative Committee shall also be the plenipotentiary of Finland referred to in article 14 of this Agreement.572

566  Carlos Fernández de Casadevante Romani, La cooperación transfronteriza en el Pirineo (Oñati, Spain: Instituto Vasco de Administración Publica, 1990), 162. 567  The Commission met 57 times in its first 20 years of having competence over the entire border, including Quinto Real Norte (1887–1907); a century later it was meeting roughly once every two years (Charveriat, “La Commission des Pyrénées,” annex II: 1–2; France Ministry of Foreign Affairs, “Données générales et relations bilatérales avec l’Espagne,” http://www.france.diplomatie.fr/actu/impression.asp?ART=23923, accessed Mar. 28, 2003). 568  Distrito Forestal de Navarra y Vascongadas. 569  Mancomunidad de Montes Kintoa/Quinto Real. 570  These were functions of the state at the time the arrangements were made. Today, some have been partially or wholly privatized. 571  Jean-Pierre Erreca, untitled booklet on the history of Quinto Real Norte (Urepel, France: “Imprimerie spéciale,” 1993), 17. 572  Saimaa Canal Treaty, Sept. 27, 1962, art. 15.

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It also established a three-stage process to deal with issues arising from the lease: a settlement procedure would be used in the first instance, then the matter would be elevated to a bilateral agency if necessary, and finally another procedure—diplomacy—would be the last resort: Each Contracting Party shall appoint a plenipotentiary to investigate and settle such matters connected with the application of this Agreement as affect both Parties. All decisions taken by the plenipotentiaries must be unanimous.573 Any disputes concerning the interpretation or application of this Agreement which cannot be settled by the plenipotentiaries referred to in article 14 of this Agreement shall be settled by a Mixed Commission, to which Finland and the USSR shall each appoint two members. If the Mixed Commission does not reach unanimous agreement, the dispute shall be settled through the diplomatic channel.574 The lease for Tin Bigha, created amid lingering political tensions between the parties, anticipated that disagreements might arise between authorities charged with jointly managing the territory and set a procedure for their resolution: Differences, if any, regarding modalities for implementing the terms of lease will be resolved in the first instance through consultations between the Deputy Commissioner of Cooch Behar (India) and the Deputy Commissioner of Lalmonirhat (Bangladesh). Remaining differences, if any, will be referred to their respective Governments for resolution.575 A three-track bilateral management structure emerged for the twin leases of Naharayim/Baqura and Zofar/Al-Ghamr, created by the Israel-Jordan peace treaty. A liaison group drawn from personnel in the armed forces of Israel and Jordan acts as a permanent mechanism to handle issues related to the leased territories; a bilateral “border committee” that meets once annually to resolve matters relating to the boundary also deals with some that involve the leased territories;576 and each state’s Ministry of Foreign Affairs has an internal­ 573  Ibid., art. 14. 574  Ibid., art. 16. 575  Tin Bigha Implementation Agreement, Mar. 26, 1992, art. 9. 576  Telephone conversation between the author and Gideon Behar, Israel Ministry of Foreign Affairs, Jordan Division, July 13, 2005.

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unit—the Jordan Division (Israel) and the Peace Coordination Office (Jordan)—that focuses on relations with the other state, including issues involving the leases.577 The latter two bodies were brought into the process once the leases became effective, while the liaison group was established by the treaty: An Israeli-Jordanian Liaison Committee is hereby established in order to deal with all matters arising under this Annex.578 As many local issues that arise among inhabitants in and around the leased zones are resolved informally at that level, only some of the matters regarding the lease’s implementation are elevated to the level of the two states’ governments.579 These include situations that can impact bilateral relations more broadly; a prominent case handled by the states occurred in 1997, when a Jordanian soldier shot and killed a group of Israelis who were visiting Naharayim/Baqura.580 The management of leases at the bilateral level frequently occurs in the absence of any dedicated structure, and is carried out on an ad hoc basis through interactions between the two parties’ relevant government ministries, departments or other agencies. Sometimes this occurs within the framework of a general obligation created by the lease, such as that contained in the U.S. lease of territory in the Bahamas from the United Kingdom for use as a missile testing site: The Government of the Bahama Islands and the Government of the United States of America respectively will do all in their power to assist each other in giving full effect to the provisions of this Agreement according to its tenor and will take all appropriate steps to that end.581 Cooperation between the lessor and the lessee can be particularly important when the rights transferred to the lessee are not comprehensive and both states have a role in governing the leased zone. As a lease creates a long-term territorial partnership, at least some coordination between the parties may be 577  Telephone conversation between the author and the Secretary to the Minister, Jordan Ministry of Foreign Affairs, July 10, 2005. 578  Israel-Jordan Peace Treaty, Oct. 26, 1994, annex I (a) para. 8; annex I (b), para. 8. 579  Behar conversation, July 13, 2005. 580  Jack Katzenell, “Jordanian Soldier Fires on Israeli Schoolchildren,” Associated Press, Mar. 13, 1997. 581  Long-Range Proving Ground Agreement, July 21, 1950, art. XXV, para. 1.

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required from time to time even when the rights allocated to the lessee are complete, or when the lease survives a diplomatic rupture between the states (which are nonetheless required by the pacta sunt servanda principle to continue implementing the arrangement in the absence of legal grounds for terminating it). Both circumstances converged to produce ongoing but informal cooperation between the United States and Cuba regarding the Guantanamo Bay lease. Half a century after the two states severed formal relations with each other, meetings between their military and diplomatic personnel were being held regularly to discuss matters related to the leased territory and its immediate surroundings; the process has been described as “a vital forum for averting misunderstandings that could lead to disaster.”582 A former U.S. commander at the base noted that “(b)oth sides have tried to make it as local and geographically focused as possible. (. . .) It’s not a forum for national issues.”583

Compliance Procedures

A territorial lease that establishes an obligation by one party toward the other sometimes specifies the procedure for fulfilling it; this can be to regulate or facilitate compliance or, when the obligation is a symbolic affirmation of the lessor’s sovereignty, to give its fulfillment a ceremonial quality. In many leases the procedure pertains to the compensation that the lessee pays to the lessor. For Quinto Real Norte, the process was agreed in the convention that supplemented the treaty creating the lease: In order to implement Article 15 of the Bayonne Treaty of 2 December 1856 in respect of the sum of 8,000 francs, or 30,400 reales de vellón, that the Emperor’s Government undertakes to pay and the French Treasury will have to remit annually to the inhabitants of the Baigorry valley in return for the permanent lease of the grasslands and waters of the Spanish part of the northern slope of the Pays-Quint, the Plenipotentiaries of the two states have agreed that the representative of the Imperial Government shall make this payment at Bayonne, to the authority representing the

582  Carol J. Williams, “At Guantanamo, a Cross-the-Fence Chat,” Los Angeles Times, October 20, 2006. 583  Mark Leary, cited in ibid.

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owners of the land, after the end of each calendar year, during the month of January following the end of the year in question.584 During the century and a half since the lease entered into force, the legal ownership of the pastures in Quinto Real Norte changed several times among public sector actors at different levels within Spain—the valleys of Baztán and Erro, the region of Navarra and the state itself—and the procedure for paying the rent was sometimes adjusted for this. The International Pyrenees Commission became the venue for such agreements. Thus, in 1911, after Spain assumed ownership of the pastures, the two states’ delegations to the Commission agreed that France would make the annual payment to the Spanish Embassy in Paris.585 Ownership of the pastures has since returned to the valleys, but the Spanish government still receives the rent from France and channels it through the regional government of Navarra for payment to the valleys.586 In the lease of Kashmir, no procedure was given for Maharajah Golab Sing to carry out the obligation to acknowledge British sovereignty through an annual tribute of a horse, goats and shawls, but one can imagine that any procedure would have been cumbersome and the tribute was eventually revised: In March 1884 it was arranged by mutual consent that in future the Maharajah should present, instead of 12 goats, 10 lbs. of pashm in its natural state as brought from Kashmir to Leh, 4 lbs. of picked and assorted black wool, 4 lbs. ditto ditto grey wool, 4 lbs. ditto ditto white wool, and 1 lb of each of the three best qualities of white yarn.587 Similarly, with the lease of Tin Bigha, it was apparent from the start that formally administering Bangladesh’s annual payment of a tiny sum to India 584  Convention Supplementary [to the Treaty of Bayonne], Dec. 18, 1858, annex I. 585  Arrangement concernant le paiement du prix du bail des herbages et eaux du versant septentrional du Pays-Quint, diplomatic note, Dec. 15, 1911, Spain-Fr., France Ministry of Foreign Affairs, Archives diplomatiques, http://www.doc.diplomatie.fr/BASIS/pacte/ webext/bilat/DDD/19110008.pdf, accessed July 7, 2003.; R. Vignau, “Aspect historique et juridique du Pays-Quint,” Traditions des Aldudes (monograph edition of Gure Herria, Nos. 4–5) (Ustaritz, France: Editions Gure Herria, 1964), pp. 84–85; Strauss, The Viability of Territorial Leases, 151. 586  Gobierno de Nararra, “Los ayuntamientos de Baztán y Erro reciben del Gobierno de Navarra 72.022 euros por el canon anual de aprovechamiento de pastos de Quinto Real,” press release, May 2, 2013. 587  9 Aitchison’s Treaties 354 (note relating to Treaty of Amritsar, Mar. 16, 1846, art. 10). Pashm is an animal’s underfur.

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would have been more trouble than it was worth, so the symbolic gesture was accompanied in the lease by a provision that waived the requirement for actual payment.588 The importance to a lease of administering an obligation is that the obligation may be a material element of the arrangement, or it may assume political importance. When France inadvertently failed to pay Spain the annual rent for using Quinto Real Norte in 1919–1921, Spanish authorities did not raise the issue and the cumulative amount due was quickly paid once accountants at the French foreign ministry discovered the omission.589 But in the 1930s, during the Spanish Civil War, Quinto Real Norte came under control of General Francisco Franco’s troops while the French government still recognized the Republican government in Madrid and kept paying the rent to it. Franco’s forces threatened to expel the French and their livestock from the leased zone unless they received the rental payment—a demand meant to bolster their claim of legitimacy—and France complied, paying a second time.590 Finally, in the numerous cases where no process is specified for complying with an obligation, the parties to a lease often develop one informally. In this manner, the United States began paying to Cuba the annual rent for Guantanamo Bay by July 2 of each year, the anniversary date of the treaty that formed the second part of the lease agreement. Another procedural aspect, the payment method, shifted from gold coins to checks after the United States and other nations went off the gold standard in 1933.

Governing Leased Territories

To complement the bilateral aspects of administering a lease of territory, each party typically has its own internal structures with responsibility for its operation and compliance with its terms. These can take the form of government agencies or departments that carry out obligations arising from the lease or engage in tasks associated with its functioning, such as maintaining infrastructure in the leased zone.

588  Tin Bigha Lease, Oct. 7, 1982, art. 2. 589  Strauss, The Viability of Territorial Leases, 153, citing France Ministry of Foreign Affairs, Service de la Comptabilité, “Note pour la Direction des Affairs Politiques et Commerciales (Sous-Direction d’Europe)” memorandum, 1922, Série Compyr, Sous-série 1895–1930, Carton 19, Archive du Ministère des Affaires Etrangères, Paris. 590  Erreca, untitled booklet, 8.

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Depending on the scope of transferred rights, the size of the zone, the nature of the lessee’s activity or the presence of inhabitants, governing the leased area may require only minor adjustments of existing state structures or warrant the installation of a separate government; the latter frequently occurs when comprehensive rights are transferred and the territory is populous. How the leased zone is governed may be entirely at the lessee’s discretion, shaped by the legal and administrative relationship that the lessee has with the territory—and also by its political philosophy. Thus, the leased area’s government may be based on an entirely different system than that which existed for the zone prior to the lease. This can be seen from the lease of Kiaochow, in which China agreed to abstain from exercising sovereignty there in favor of Germany for the duration of the lease.591 The result was that Germany could govern the territory as it saw fit. As described in a memorandum by the U.S. State Department at the time: (I)t is provided that China shall have no voice in the government or administration of the leased territory, but that it shall be governed and administered during the whole term of the lease by Germany; that Germany is at liberty to enact any regulation she desires for the government of the territory.592 Similarly, the government established by the United States for the Canal Zone, leased from Panama, was developed entirely at the discretion of the United States, which gave it a structure based on that of the U.S. government itself, with executive, legislative and judicial branches, although with some differences: for example, the Canal Zone had a limited version of the U.S. Constitution’s Bill of Rights that provided persons in the leased area with many, but not all, of the protections afforded to persons on U.S. sovereign territory.593 Often a leased territory is governed as a distinct political or functional unit of the lessee state—a department, a “possession,” a military installation, etc. In the case of Hong Kong, the territory had the status of colony in the British system, with its own government headed by an appointed governor. Initially 591  Kiaochow Convention, March 6, 1898, art. III. 592  Frederick Van Dyne, Office of the Solicitor, U.S. Department of State, memorandum, Jan. 27, 1900, cited in U.S. Naval War College, International Law Situations with Solutions and Notes, 1907 (Washington: Government Printing Office, 1908), 14. 593  Panama Canal Act (“Spooner Act”), June 28, 1902, 32 Stat. 481; Act providing for temporary government in the Canal Zone, Apr. 28, 1904, 33 Stat. 429 (see George W. Goethals, Government of the Canal Zone (Princeton: Princeton University Press, 1915), 11–18; Robert W. Aguirre, The Panama Canal (Leiden: Martinus Nijhoff, 2010): 193–97).

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having limited competences, its authority expanded as the territory’s population increased: (The growing population) meant the government had to increase in size just to keep up with discharging its established duties. Advancing modernity also required the Hong Kong government to take on new responsibilities and roles whatever its avowed policy. As Hong Kong evolved into a modern community its government had to assume more and more regulatory roles, be they over the banking and finance sectors or over conditions for workers in factories, or school curricula.594 Hong Kong was an extreme case among leased territories because it was granted a large degree of autonomy by the United Kingdom. This made its governance two steps removed from that of China, the de jure sovereign, and it came to emulate a sovereign state in many aspects of its conduct, not only internally but also vis-à-vis the United Kingdom itself 595 as well as internationally, particularly in the economic and financial sphere. Although the United Kingdom represented Hong Kong in the United Nations, Hong Kong became a contracting party to the General Agreement on Tariffs and Trade (GATT) and a member of other intergovernmental organizations such as the Asian Development Bank while the lease was in effect596 and could “effectively claim to have an international legal personality and its corresponding rights and obligations.”597 Hong Kong’s situation was unusual only in degree, however. More commonly, the government of a leased territory, as a unit of the lessee state’s government, has direct relations with the lessor and sometimes with third states, but it acts on behalf of the lessee and not itself. In the city of Baikonur (Leninsk), which Russia leases with the associated cosmodrome from Kazakhstan, local authorities routinely interact with foreign officials—but when these interactions are 594  Steve Tsang, Governing Hong Kong: Administrative Officers from the Nineteenth Century to the Handover to China, 1862–1997 (London: I.B. Tauris, 2007), 139. 595  “It has even been said that the discussions between the metropolitan and Hong Kong were sometimes much more like diplomatic negotiations between two sovereigns, and not like the subservient relations that the relevant constitutional documents would suggest” (Lorenz Langer, “Out of Joint? Hong Kong’s International Status from the SinoBritish Joint Declaration to the Present,” Archiv des Völkerrechts 46 (2008): 316. 596  Ibid., 316–19. 597  Roda Mushkat, “Hong Kong as an International Legal Person,” Emory International Law Review 6 (1992): 105.

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not arranged by Russia they occur on a strictly informal basis.598 Likewise, military officers charged with the administration of bases on leased territories frequently liaise with the lessor states or host visiting officials from third states or international organizations, but in doing so they perform activities that are assigned to them by their hierarchies.599

Populations on Leased Territories

In the administration of a leased territory that harbors a population, the nationality of its inhabitants becomes a fundamental issue. This is a matter regulated by states as part of their sovereign authority, but it is anything but routine in this situation. As a starting point, the determination of nationality in cases of state succession can provide general guidance, although it is not entirely consistent in its own right: The law of state succession generally leaves the issue of nationality to states’ domestic law. The nationality of a territory’s inhabitants (. . .) will normally fall under the domestic laws of the successor state, while the laws of the predecessor state will determine whether those individuals also retain that state’s nationality. There may, though, be international obligations relating to the prevention of statelessness. Individuals could lose their nationality through succession but not gain the nationality of the successor state, rendering them stateless. This may also be a timing issue. The grant of nationality by the successor state might not coincide with the date of succession or the rescinding of nationality by the predecessor state. There is a presumption, supported by considerable practice, that the nationality of inhabitants changes with sovereignty of territory on the date of succession. However, as the ILC Commentary600 notes, this

598  E.g., Kazakhstan Today, “The Ambassador of China Visited Baikonur,” Gazeta.kz Internet Agency, Aug. 29, 2003, http://engnews.gazeta.kz/art.asp?aid=294632, accessed Aug. 31, 2014. 599  Author’s conversations with officers at Guantanamo Bay, January 2008. 600  Draft Articles on Nationality of Natural Persons in Relation to Succession of States, in Yearbook of the International Law Commission, 1999, Vol. 2, Part 2, U.N. Doc. A/CN.4/ SER.A/1999/Add.1 (Part 2), 23–47.

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is a rebuttable presumption. States can agree on the transfer of nationality with a treaty.601 A territorial lease injects the complication that sovereign authority assigned to the lessee reverts to the lessor when a lease is terminated. This may occur generations in the future, and its occurrence (much less its timing) is not a certainty when a lease has an automatic renewal clause, or is renewed by agreement, or becomes a conduit for the transfer of title and sovereignty to the lessee. Even leases made in perpetuity are not shielded from this dilemma, as a significant proportion of them prove to be not perpetual at all. The issue of nationality in a leased territory can be distinct for different groups of persons. These include: – Nationals of the lessor state who are legal residents of the leased territory at the time the lease takes effect; – Nationals of the lessee state who are legal residents of the leased territory at the time the lease takes effect; – Nationals of third states who are legal residents of the leased territory at the time the lease takes effect; – Nationals of the lessor state who become legal residents of the leased territory once the lease is already in effect; – Nationals of the lessee state who become legal residents of the leased territory once the lease is already in effect; – Nationals of third states who become legal residents of the leased territory once the lease is already in effect; – Persons with links to the leased territory through parentage or ethnicity; – Persons born in the leased territory while the lease is in effect; and – Persons in any of these categories who remain in the leased area after the termination of the lease. Moreover, nationality in a leased zone is not necessarily that of the lessor or the lessee in its “standard” form. Like legal jurisdiction in a leased territory, it may be subject to separate rules: the rights and obligations it confers may be diminished or enhanced or otherwise different relative to other nationals of the state that has the authority through the lease to grant nationality. The inhabitants of the leased zone also may have the right to decide which nationality to assume. Additionally, a lease may allow both states to have this 601  James Summers, Peoples and International Law, 2nd ed. (Leiden: Martinus Nijhoff, 2014), 480.

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authority, which can result in persons in the zone having dual nationality and a combination of rights and obligations vis-à-vis each state. International practice shows that leases differ widely in their treatment of this issue, and many do not treat it at all, leaving the matter to the parties’ laws pertaining to nationality, assumptions or informal arrangements. The lease of Wismar and its surroundings by Sweden to Mecklenburg-Schwerin freed the zone’s inhabitants of their Swedish nationality but did not confer that of the lessee: Upon the effective cession taking effect, it is understood that in general all of the native inhabitants of Wismar, its Bailiwicks and dependencies, are no longer bound to their oath of loyalty to His Swedish Majesty; and that in particular the public servants who enter into the service of His Serene Highness the Duke of Mecklenburg-Schwerin are freed from their duties and previous obligations.602 The inhabitants assumed Mecklenburg-Schwerin’s nationality in a de facto sense and were not treated as stateless,603 and their status was formalized through the transfer of title to the territory a century later. Similarly, the lease of Corsica by Genoa to France did not address nationality but both states considered the Corsicans to have become French.604 In Quinto Real Norte, only persons with French nationality were allowed to inhabit the pasturelands that France leased from Spain.605 By contrast, when Turkey leased Cyprus to Great Britain and Bosnia and Herzegovina to AustriaHungary, the inhabitants retained Ottoman nationality—although men from Bosnia and Herzegovina were subject to conscription into Austria-Hungary’s army.606 The leases of Chinese territory to European powers in the late 19th century generally allowed existing Chinese inhabitants to remain, but their continued Chinese nationality was assumed rather than explicitly stated; in the case of Hong Kong, the most durable of these leases, nationality eventually became codified. It also assumed political and economic overtones in the years leading up to the end of the lease, and remained an issue after its expiration:

602  Treaty of Malmö, June 26, 1803, art. XXV (a). 603  Perrinjaquet, Des cessions temporaires, 309. 604  Ibid., 309–10. 605  Treaty of Bayonne, Dec. 2, 1856, art. 16. 606  Perrinjaquet, Des cessions temporaires, 309–15.

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The concern was that the 2.6 million Hong Kong Chinese population would leave and come to the UK when Hong Kong returned to China. There was however an alternative worry, namely that plans agreed with the Chinese government for Hong Kong’s continuance as a financial trading centre would be jeopardized if the most powerful businesspeople involved left, as they would be well placed to do. Accordingly 50,000 ‘key’ people were given British citizenship, as insurance that, if they stayed, their personal position would not be compromised; they could leave later for the UK if it became necessary. A further interim provision under Article 4 of the Hong Kong (British Nationality) Order 1986 created the British National (Overseas) category of citizenship. Under this, applicants (mostly ethnically Chinese and therefore also Chinese citizens) could obtain rights similar to those which Hong Kong BDTCs [British Dependent Territories Citizens] had in any event under § 4(1) BNA [British Nationality Act] 1981 in relation to obtaining British citizenship after residence in the UK. Following § 14 NIAA [Nationality, Immigration and Asylum Act] 2002, no-one could register as a BOTC [British Overseas Territories Citizen] by virtue of a connection with Hong Kong. It was only after much pressure that those persons ordinarily resident in Hong Kong but left legally adrift—who were not entitled to Chinese nationality by reason of ethnicity, who held a form of British nationality that did not carry the right of abode, or were British Protected Persons—were entitled to register as British citizens. A discretionary right to register was also given to Hong Kong war widows.607 Meanwhile, China’s Nationality Law of 1980 considered Chinese inhabitants of Hong Kong to have Chinese nationality. This gave them dual nationality with the United Kingdom if they already held some form of British nationality, although for legal purposes within China exclusive of Hong Kong such persons were considered to have Chinese nationality only.608

607  Gina Clayton, Textbook on Immigration and Asylum Law, 6th ed. (Oxford: Oxford University Press, 2014), 80. The categories of British nationality mentioned are among six that exist, each associated with a different set of rights (U.K. Government, “Types of British Nationality,” https://www.gov.uk/types-of-british-nationality/overview, accessed Sept. 4, 2014). 608  Nationality Law of the People’s Republic of China (1980), art. 3–5, Falü Huibian 200, cited in Richard Plender, ed., International Migration Law, 2nd ed. (Dordrecht: Martinus Nijhoff, 1988), 38.

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In the Canal Zone, U.S. and Panamanian inhabitants retained their respective nationalies, while anyone born in the leased zone was automatically a U.S. national if at least one parent had U.S. nationality.609 An issue related to managing a leased area’s population is the legal treatment of persons who are not necessarily residents but are present in the zone for reasons such as employment or education. Labor and social laws and regulations pertaining to a leased territory are those of the state with the corresponding jurisdictional authority and, like other laws and regulations there, may differ from those that apply on the rest of its sovereign territory. Here, too, their administration does not occur in a vacuum but in the context of broader social and political realities created by the lease. The labor historian Jana Lipman described how this was handled at Guantanamo Bay during the period when Cuban nationals were employed there: Although operating in Cuban territory, the U.S. Navy recognized that it was against U.S. interests to follow any Cuban laws on the base. There was power in jurisdiction. Conceding to Cuban labor demands could create a slippery slope and erode U.S. authority. As one base commander stated, if Cuban labor laws applied to workers on the base, it “might easily progress to the application of other Cuban laws” on GTMO. He feared that any adherence to Cuban law would “nullify” the United States’ “complete jurisdiction.” Still, the base was clearly in Cuba, and officials had to recognize Cuban workers’ expectations and the local political economy. The U.S. Navy’s strategy for navigating between U.S. law and Cuban workers’ demands was to grant the substance of the demands without conceding to the letter of Cuban law.610

Managing International Obligations

A state’s international obligations normally apply throughout its sovereign territory—the space where it exercises the authority necessary to comply with its duties and responsibilities. Some exceptions to this principle exist; for example, the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts absolve a state of responsibility 609  Persons Born in the Canal Zone or the Republic of Panama On or After February 26, 1904, 8 U.S.C. § 1403 (2006). 610  Jana K. Lipman, Guantánamo: A Working-Class History Between Empire and Revolution (Berkeley: University of California Press, 2008), 71.

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when such acts occur on part of its territory where it has lost control through a situation of force majeure.611 A lease of territory can produce a similar loss of the sovereign’s active control on part of its territory, but as an agreed arrangement rather than an imposed one it does not automatically shield the lessor from its international obligations. The force majeure provision does not apply if the lessor assumes the risk that the lessee may act wrongfully,612 and as all states have the potential to engage in wrongful conduct that risk is inherent in a lease that allows the lessee to exercise the full range of sovereign behavior. The effect of a lease on either party’s agreed obligations toward third states has long been problematic in international law. According to Perrinjaquet, one can argue that a lessor state may not impose on the lessee the obligation to comply with the lessor’s prior international obligations arising from the leased zone when the transfer of these obligations is not agreed as part of the lease.613 Such agreed transfers are rare in leases but are not unknown; the lease of Wismar and its surroundings, for example, obliged Mecklenburg-Schwerin to comply with Swedish treaties and agreements that involved Wismar.614 Yet this may not resolve the matter, Perrinjaquet said: (I)f the treaty (. . .) contains a formal clause stipulating the substitution of the lessee state for the lessor, this stipulation does not bind third states, and they are not obliged to accept the transfer that is made. The contrary result would have the nature of disturbing the harmony of international relations and of upsetting the established regime.615 Even if both parties to a lease are amenable to such a transfer, it can be difficult to determine which of the lessor state’s obligations pertain specifically to the leased zone. This can be seen with respect to administrative matters such as debts incurred by the lessor, for which international law provides imperfect guidance as relevant aspects of its development have focused on state succession and thus definitive transfers of territorial title and sovereignty. Separating part of a state’s territory from the rest of the state for purposes of determining the treatment of obligations is done, for example, in Article 37 of the Vienna 611  Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 23, para. 1, in Yearbook of the International Law Commission, 2001, Vol. 2, Part 2, U.N. Doc A/CN.4/ SER.A/2001/Add.1 (Part 2), 27. 612  Ibid., art. 23, para. 2. 613  Perrinjaquet, Des cessions temporaires, 331–32. 614  Ibid., 333. 615  Ibid., 333.

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Convention on Succession of States in Respect of State Property, Archives and Debts (which has not entered into force): 1. 2.

When part of the territory of a State is transferred by that State to another State, the passing of the State debt of the predecessor State to the successor State is to be settled by agreement between them. In the absence of such an agreement, the State debt of the predecessor State shall pass to the successor State in an equitable proportion, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt.616

Except when a debt is incurred by the state specifically for the zone affected,617 determining what constitutes an “equitable proportion” can be difficult enough in a clear case of succession, whatever methodology is used in measuring it (the size of the zone relative to the size of the state, its contribution to the state’s economy, etc.);618 doing it for a leased zone entails added complications because the scope of transferred rights and the duration of the lease are relevant factors. Consequently, proportional allocations of state obligations are virtually unknown in territorial leases; the prospects for inequitable handling are substantial, and can negatively affect the performance of the lease and be harmful to bilateral relations between the parties more generally. An analogous situation can be created when a lessee state incurs a continuing obligation relating to the leased territory during the period of the lease; the 616  Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 8, 1983, art. 37, U.N. Doc. A/CONF.117/14 (1983), 22 I.L.M. 306. 617  Known as a “localized” debt, as opposed to a “local” debt incurred by a governmental unit within the state (see Ninth Report on Succession of States in Respect of Matters Other Than Treaties, in Yearbook of the International Law Commission, 1977, Vol. 2, Part 1, U.N. Doc. A/CN.4/SER.A/1977/Add.1 (Part 1), 51–53 (para. 7–29); P.K. Menon, “The Succession of States and the Problem of State Debts,” Boston College Third World Law Journal 6, no. 2 (1986), 113–15. 618  “State practice (. . .) showed how difficult it was to make a distinction between the debts of a dependent territory and those of the administering Power. On the one hand, there were the debts contracted by the administering Power through its own central organs, on behalf and for the account of the dependent territory, and, on the other hand, the debts proper to the dependent territory, contracted by a local organ of the territory. Between these two extremes, however, there ranged many forms of intervention by the administering Power.” (1443rd meeting, June 20, 1977: Succession of states in respect of matters other than treaties (continued), in Yearbook of the International Law Commission, 1977, Vol, 1, U.N. Doc. A/CN.4/SER.A/1977, 147 (para. 9)).

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lessor is not necessarily bound by it upon resuming control over the zone when the lease terminates, unless it agrees to be so bound. In the case of Hong Kong, its membership in the GATT and its successor, the World Trade Organization (WTO), was based on the autonomy as a customs territory that Hong Kong was granted by the United Kingdom. This status, the criterion for membership, was retained by China, allowing Hong Kong to stay in the WTO and comply with its associated international obligations after the British lease expired in 1997, even while China itself did not join the WTO until 2001. As explained by Hong Kong: The Basic Law, the constitutional document of the HKSAR [Hong Kong Special Administrative Region], sets out the way in which the HKSAR is to be administered. Under its provisions, the HKSAR shall remain a free port, a separate customs territory and may, on its own, using the name “Hong Kong, China,” maintain and develop relations and conclude and implement agreements with foreign states and regions and international organisations in the appropriate fields including the economic and trade fields, and participate in international organisations and conferences not limited to states. This provides the very foundation for our separate membership in the World Trade Organisation (WTO).619 Determining responsibility can be problematic even when both the lessor and the lessee independently have an identical obligation, such as compliance with a jus cogens norm or a multilateral convention to which both are parties. The Guantanamo Bay lease can be used once again to illustrate this due to allegations that the United States violated the human rights of prisoners detained there since 2002 in its fight against terrorism. The lease’s grant of “complete jurisdiction and control” to the United States does not necessarily prevent Cuba, through its retained de jure sovereignty, from having some international responsibility for any violations. Such a determination would depend on numerous factors besides the terms of the lease itself; these include the rules of state responsibility for wrongful acts, whether the legal norm allegedly violated has a higher place in the hierarchy of norms than the treaty law governing the lease, whether the leased zone can be considered occupied territory, the evolution of human rights law (for example, with regard to the responsibility to protect), as well as Cuba’s knowledge of the 619  Hong Kong Special Administrative Region Government, “Trade Policy Review: Hong Kong, China: Report by the Government,” World Trade Organization Doc. WT/TPR/G/109, Nov. 18, 2002.

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alleged violations, its behavior relative to them, and geopolitical realities that may have influenced its conduct.620 Administering a territorial lease can therefore require the ongoing participation of both parties regardless of how fully the arrangement transfers the right to display sovereign authority to the lessee; in so doing, it provides yet another distinction between a lease and a true cession of territory. 620  Strauss, “Cuba and State Responsibility,” 542.

CHAPTER 7

Problematic Provisions

Transfer of Rights

The object and purpose of a treaty usually entail regulating some aspect of state conduct, but a lease of territory goes further and tampers with the rights that form the foundations of sovereignty. If title to a leased territory occasionally passes to the lessee, it is because the lease agreement provides the legal framework in which political and administrative forces can develop and subsist to produce this result. Other consequences of a territorial lease may be equally dramatic, such as a shift in the leased zone’s social or economic situation that occurs through the lessee’s activity; at times this can transform the territory into something far different than what either state envisioned when entering into the agreement. A lease can change the quality of the relationship between the parties through the lessee’s presence on more territory than it has under its sovereignty and the diminution of the lessor’s operational authority in part of its geographic space. The conduct of third states toward both parties may adapt accordingly if the lease produces a tangible strengthening or weakening of either party. The ample potential for a lease to have an impact beyond its objective suggests that lease agreements, perhaps more than most treaties, must be drafted with vision and managed carefully. State practice has shown this occurs sometimes, but not all the time. Many lease arrangements have an ad hoc nature and appear drafted to resolve an immediate territorial issue without much regard to other consequences that may directly result from its implementation. Some can rightly be criticized as instruments of dubious diplomatic quality. Often a lease will be negotiated with little or no reliance on, or detailed knowledge of, previous agreements of this type.621 Even when the negotiators are aware of other territorial leases (including those involving the same state in other circumstances), the fact that the practice has been widely ignored as a field of study has allowed lessons that might be gleaned from it to stay undetected. As altering territorial rights can be both legally and politically sensitive, leases of territory can take several years to negotiate, and often do—and 621  Sermet, “Le statut original du Pays Quint,” 263–94; Strauss, The Viability of Territorial Leases, 239–41.

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sometimes they take much longer; the lease for Tin Bigha required 18 years of intermittent talks. But many other leases are rushed to completion in less-thanoptimal circumstances or for reasons that transcend the specific goal of the lease itself. This occurred, for example, when the European states scrambled to conclude lease treaties with China at the end of the 19th century: obtaining control of parts of Chinese territory by this means was not a priority for any nation until it became one for Germany, and then it suddenly became a priority for other states that sought to maintain a balance of strategic and economic power which was, for the most part, manifest elsewhere. More recently, the twin leases in the Israel-Jordan Peace Treaty were negotiated and drafted in a single day amid pressure to resolve lingering issues that were holding up the treaty’s completion.622 Leases between states also vary enormously in detail; some are many pages long and take a wide range of situations into account; the U.S. lease of territory in the Bahamas from the United Kingdom for testing missiles, for example, contained 26 articles that appeared to cover every contingency its negotiators could think of.623 Other leases are extremely brief; when Austria-Hungary obtained rights from the Ottoman Empire to exercise authority in Bosnia and Herzegovina, the entire grant was contained in one paragraph of the Treaty of Berlin. Apart from mentioning one right that would be deferred for negotiation at a later time—that of maintaining garrisons and roads in Bosnia—the lease was compressed into a single sentence: “The provinces of Bosnia and Herzegovina shall be occupied and administered by Austria-Hungary.”624 While the amount of detail itself does not make for a “good” lease, it can impact the way the transferred rights are interpreted and exercised, and thus the disposition of the leased zone. When the rights are elaborated clearly, the chances improve for both states to implement the arrangement in accordance with a shared sense of each party’s limitations. The degree of clarity also is critical for determining how the rights are aligned with the municipal legal system of each state, an essential factor in the lease’s administration. Problems can arise if the transferred rights are defined inadequately or too rigidly. A right that is elaborated in vague terms naturally introduces a greater risk of divergent interpretations. At times this may be the only way the lease’s negotiators can arrive at a commonly acceptable text, but it carries the prospect of generating future tensions between the parties. By contrast, a right that is described in very specific terms may protect the lessor to the extent that it 622  Haddadin, Diplomacy on the Jordan, 394–96. 623  Long-Range Proving Ground Agreement, July 21, 1950. 624  Treaty of Berlin, July 13, 1878, art. XXV.

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discourages the lessee from any future attempts to endow it with a wider meaning, but this also can prevent the lease from adapting to evolving circumstances, with the risk that it may lose some of its value as an instrument for the objective it was meant to achieve. This dilemma is illustrated by leases made in the second half of the 19th century and in the early 20th century by the world’s major naval powers for the purpose of establishing fuel depots for their ships. Coal had become the dominant fuel used by naval fleets at the time, and because the operational range of a fleet was limited by its distance from readily available coal supplies a number of countries—including Great Britain, Germany, France, the United States, Russia and Japan625—concluded lease agreements that allowed them to use foreign locations for the storing and loading of coal. Often these leases allowed them to engage in supplemental activities such as ship maintenance or the stationing of military vessels and crews. By 1910, the naval powers began to convert their ships to use oil, a process that was essentially complete by the 1930s, and throughout the world coaling stations had been replaced by oil depots. But on a territory leased specifically for a coaling station this change depended on how that term was defined. At Guantanamo Bay, for example, the United States converted its coaling station to an oil depot in a climate of friendly relations in which Cuba generally acquiesced to the demands of its powerful neighbor. Many decades later, in 2004, the United States acknowledged that it interpreted “coaling station” by the facility’s purpose rather than its character: (T)he base was established in 1903 as a coaling station and to this day abides by the original treaty as a support point for refueling ships.626

625  Japan leased territory for coaling stations on the Korean islands of Yeongdo (Chul Yong) (Se Eung Oh, Dr. Philip Jaisohn’s Reform Movement, 1896–1898: A Critical Appraisal of the Independence Club (Lanham, Md.: University Press of America, 1995), 73, 87) and Wolmi (Bruce Cumings: Korea’s Place in the Sun: A Modern History, 2nd ed. (New York: W.W. Norton, 2005), 126), and during the Russo-Japanese War it seized a coaling station in China (“Russia Loses Coal Station; Japanese Have Occupied Ching-hai-Wen, Near Ma-sam-pho,” New York Times, Feb. 15, 1904). Japan also reportedly leased a coaling station in Mexico: “Through the great government-owned steamship line, the Toyo Kisen Kaisha, the Japanese Government controls the land for a Japanese coaling station at Manzanilla” (Horst von der Goltz, My Adventures as a German Secret Agent (New York: Robert M. McBride, 1917), 249). 626  Randy B. Frye, “Naval Station Guantanamo Bay Fuel Summit Held,” Fuel Line 2 (2004): 26.

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Yet this allowed the risks associated with the lease to become entirely different from those that were deemed acceptable when the lease was made. Both coal and oil are hydrocarbon fuels but their divergent physical characteristics require different infrastructure and handling procedures. Additionally, the risk of an attack on a leased naval facility during wartime carries far greater consequences for the lessor state if the fuel stored there by the lessee is oil, which can explode and pollute waters that flow beyond the leased zone.627 Moreover, the logic of the U.S. interpretation would cause the term “coaling station” to extend to nuclear fuel for submarines, for which the physical risks to Cuba’s territory and population include radioactive contamination (and for which there could be geopolitical implications as well; it was the removal of Soviet nuclear weapons from Cuba that ended the 1962 missile crisis). Thus, the lessor may have an interest in interpreting “coaling station” narrowly while it may be in the lessee’s interest to view the rights expansively. In view of the prospect for the rights in a lease to become obsolete, as with a coaling station when a narrow definition is used, it is interesting that there appears to be no lease agreement that requires the lessee state to actually exercise the rights it obtains. This is not inherently undesirable; it is arguably necessary for the lessee to have the flexibility to use its rights in proportion to its needs and interests at any given time, and also to adapt their exercise to its own political and legal systems to the extent these differ from the lessor’s. A lessee may refrain from using its rights in part or in whole because of evolving state interests, an inability to exercise them or the emergence of alternate means for achieving the lease’s objective—while it continues to comply with its obligations, such as paying an annual rent to the lessor, and thereby retains the option to exercise its rights more fully at a later time. The non-use of rights nonetheless can create a problematic situation for the territory affected. Depending on the range of rights transferred and the extent to which the lessee does not use those it obtains, governance of the leased zone can disappear in some measure—or entirely. The lessee state’s continued adherence to its obligations would keep the lease in force, obliging the lessor to refrain from filling any governance gap, and, if that gap is total, preventing the leased area from reverting to terra nullius. An early case in which this situation arose was the unused coaling station site at the port of Honolulu, Hawaii, that the United States leased from

627  Strauss, The Leasing of Guantanamo Bay, 64.

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the kingdom in 1860 and then hardly used during the next four decades.628 The absence of U.S. activity there apparently had no significant consequences because Hawaii leased another site at Pearl Harbor to the United States for a coaling station in 1884.629 The Honolulu site was ultimately activated in 1898, the year that the U.S. annexation of Hawaii made the leases redundant.630 In a similar case, the lease that gave the United States complete control of Guantanamo Bay in 1903 extended to a second, smaller zone in Cuba called Bahia Honda, which the United States never developed as a naval or coaling station as specified in the arrangement. The only use it made of Bahia Honda was in diplomatic bargaining a decade later, when the United States agreed to return it to Cuban control in exchange for an expansion of Guantanamo Bay in a 1912 treaty that was not ratified: The United States of America hereby relinquishes all rights over and upon, and the Republic of Cuba hereby releases the United States of America from all duties and obligations connected with and concerning the areas of land and water at Bahia Honda as established by the cession in lease by the Republic of Cuba to the United States of America under the agreements of February 16/23 and July 2, 1903.631 By 1934 a bilateral treaty that reaffirmed the lease at Guantanamo Bay made no mention of Bahia Honda, signalling the return of control of the latter to Cuba. Another case in which rights were not exercised involved the leases of the Arenberg and Forcados Enclaves, in which France obtained from Great Britain the authority to use these zones as staging points for goods in transit on the Niger River. Several years after the lease was agreed in 1903, France stopped using the zones, having found them poorly suited for the objective, but it did

628  U.S. Navy, Fourteenth Naval District, Administrative History of the Fourteenth Naval District. 629   Supplementary Convention to Limit the Duration of the Convention Respecting Commercial Reciprocity between the United States of America and the Hawaiian Kingdom, Dec. 6, 1884, U.S.-Hawaii, art. II, 25 Stat. 1399, T.S. No. 163, 8 Bevans 878. 630  U.S. Navy, Fourteenth Naval District, Administrative History of the Fourteenth Naval District. 631  Treaty for the Enlargement of the Guantanamo Naval Station, Dec. 27, 1912, U.S.-Cuba, art. IV, F.R.U.S. 1912, 295–97. Neither state’s legislators brought the treaty to a ratification vote within the six-month time limit that the treaty stipulated, and the project was allowed to expire (Strauss, The Leasing of Guantanamano Bay, 55–56).

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not renounce the arrangements and they remained in force until the region where they were located, today’s Nigeria, was granted independence in 1960.632 The leases inadvertently placed all of these areas into a sort of legal limbo while the lessees did not exercise their rights. The consequences were minimal as the leased zones had no inhabitants (apart from “only a caretaker and his family” who remained at the Arenberg Enclave)633 or any significant prior economic or military activity, and the governance gaps were tolerated. However, it is entirely possible for the lessee of a larger territory that is populated and economically active to refrain from exercising its rights for reasons such as those noted here. It may therefore be justified for a lease to specify minimum performance requirements on the lessee’s part and the automatic reversion of authority to the lessor in the case of non-performance over a defined period, although to date there are no known examples of this.

Duration of the Lease

Many leases of territory are long-term arrangements. Often this is because the objective itself is a long-term one or has no foreseeable endpoint, or because it may take time to install the infrastructure necessary for the objective to be achieved; the Panama Canal, for example, required 10 years to build and make ready for traffic.634 A long-term lease also may be meant to signal the quality of trust or friendship in the parties’ bilateral relations, or it may simply be made to emulate long-term leases that exist in the context of private law. At times a territorial lease is made for a shorter term if the objective is limited, or if there is a hesitancy to engage in a long-term commitment. There may be discomfort with a longer-term arrangement because of the importance that states place on sovereign rights, and a duration that is short can aid the lessor in protecting its title to the leased zone by not allowing the lessee to become too entrenched. A short-term lease also may address an internal political situation such as public opposition to the arrangement. Russia leased territory in the 1990s and early 2000s from other states that previously comprised the Soviet Union so it could retain control of former Soviet military sites, but these leases were exceptionally short as the lessor states were reticent to have a Russian military presence on their territory; 632  Lupton, “The Partitioning of Borgu in 1898,” 91. 633  Ibid., 89. 634  Mohamed Y. Olwan, “International Canals,” in International Law: Achievements and Prospects, ed. Mohammed Bedjaoui (Paris: UNESCO, 1991), 1008.

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that they did so at all reflected the geopolitical realities of the region in the years following the Soviet Union’s breakup, when the lessor states still were largely dependent on their economic links with Russia. Thus, Russia’s lease of the Gabala radar station site from Azerbaijan in 2002 was limited to 10 years;635 Russia sought to renew it but the negotiations were not successful and it withdrew from the site when the lease ended in 2012.636 Its lease of the naval port at Sevastopol from Ukraine in 1997 was only for 20 years, the time deemed necessary for Russia to build an alternate port on its own territory for its Black Sea naval fleet; as it became evident that the alternate site would not be ready in 2017, Russia’s desire to prolong the lease generated considerable public opposition in Ukraine but the arrangement was extended nonetheless for a further 25 years once a Ukrainian government that favored its extension assumed office in 2010 in exchange for a much higher level of compensation.637 It was terminated in 2014 when Russia annexed Crimea.638 Leases of territory for any duration may have drawbacks or benefits that result from events which are not foreseen at the time the duration is determined, and the magnitude of these events can make the agreed period no longer desirable to either or both parties. It also may be that the parties to a lease miscalculate the amount of time necessary for its objective to be met, if it is not an ongoing one, because the time necessary may only become evident once the lease is in force.639 If only one party is unhappy with the duration, it is obliged by the pacta sunt servanda principle to continue abiding by its commitment to the other; this can become a negative factor in relations, although if the dissatisfied party is the lessee and it deems the duration too long it is entirely likely that the lessor state would welcome the opportunity to resume control over the territory. When both parties deem the lease to be too long or too short, the matter can be resolved by a new agreement. This was seen when the U.S. lease of the Canal Zone from Panama, originally made in perpetuity, was shortened to a limited period as the result of political conditions that emerged half a century after the lease took effect; this was done through a new treaty that gave the lease a fixed termination date.640 A lease 635  Gabala Radar Station Lease, Jan. 25, 2002, art. 2. 636  David M. Herszenhorn, “Russia to Close Radar Station in Azerbaijan,” New York Times, Dec. 11, 2012. 637  Sevastopol Lease Renewal, Apr. 21, 2010. 638  Hille, Buckley and Farchy, “Putin Tears Up Lease for Sevastopol Naval Base.” 639  Strauss, The Viability of Territorial Leases, 260–62. 640  Panama Canal Treaty, Sept. 7, 1977, art. II.

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that is considered too short may be renewed with the same terms or prolonged with different terms through the conclusion of a new agreement, as occurred with Russia’s lease of the port of Sevastopol from Ukraine in 2010. Likewise, Finland’s 50-year lease of the Saimaa Canal from Russia in 1962, which gave Finland’s network of inland waterways a connection to the Baltic sea, proved too brief in actual practice; a decade before its expiration, uncertainty about the future of Finnish rights on the canal had caused investments in transportation on the inland waterways to come to a stop. The lease was then renewed, albeit for exactly the same term of 50 years, with a higher annual rent.641 The problem with any lease’s duration is that it must be decided on the basis of expectations and projections rather than firm knowledge of how matters that affect the arrangement will develop—in part because the lease’s very existence can influence the course of events. Sometimes, as with the leases for Diego Garcia, Naharayim/Baqura and Zofar/Al-Ghamr, this is addressed with an automatic renewal clause that allows a lease to terminate after a fixed period if one party gives advance notice that it does not want it to continue, even though the states still must decide on an initial period and renewal i­ntervals.642 By requiring no action to renew the arrangement and positive action to end it, the lease can be considered a long-term agreement with an early-termination option that allows room for its duration to be adjusted.

Compensation Issues

It is observed from state practice that when a territorial lease stipulates a rental payment, it usually establishes a monetary amount that is payable annually and that is meant to prevail throughout the period of the lease. The possibility of future adjustments to the amount does not seem to be taken into account, and thus no mechanism for it is included in the lease’s text. This is the case regardless of the basis on which the payment amount is determined, and it is surprising in view of known economic and financial forces that can allow a divergence to develop over time between the amount of the rent and the value it is supposed to represent. While this may be of no particular concern if the amount is very small or if the lease is relatively short in duration, it is another matter when the arrangement is created for a longer period and the compen641  Saimaa Canal Renewal Agreement, May 27, 2010. 642  These periods for Naharayim/Baqura and Zofar/Al-Ghamr were set at 25 years to reflect “the normal economic life assumed for agricultural projects” (Haddadin, Diplomacy on the Jordan, 394.

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sation is either related to the value of the territory or consists of something greater than a symbolic sum. The value of the leased zone itself is an obvious variable, whether one views it from a theoretical standpoint (the value of property evolves, so one might expect the same when considering territory as a state’s property and usufruct rights as a function of this) or from a practical one. Territorial value can be calculated in financial, economic, strategic or political terms, and a rent amount that is based on it may reflect one or more of these measures. Indeed, a change in one measure can produce changes in the others, as when a new technology permits the discovery of a natural resource that the lessee has the right to exploit, or causes the lessee to alter the way it conducts its activity on the territory. Currency rates are another variable. Except in rare cases when both parties to a lease use the same currency,643 every lease involves states with different monetary systems and thus two distinct currencies whose values relative to each other can change through national monetary policy decisions, notably including devaluations and revaluations, and through the separate evolution of each currency’s value in the international market. Most leases involving rent designate the lessee state’s currency as the currency of payment. If the value of a leased territory increases while the amount of rent remains the same, or if the value of the lessee’s currency declines substantially relative to that of the lessor, or if both of these occur in tandem, the provision that stipulates the rent can diminish in importance as a factor in the overall lease agreement—at least in a financial sense, although this in turn can heighten its political importance. The economic consequences for the lessor, which no longer receives a rent commensurate with the value it was meant to represent, may be a source of discord between the two parties where there previously was none. There can be an important legal consequence as well: if the change transforms the rent from a material element of the lease into a marginal one, the lessor may lose a legal justification afforded by the Vienna Convention on the Law of Treaties to end the lease prematurely if the lessee does not pay the rent.644 Particularly in today’s context of a globalized economy, it is common for states to apply economic pressure as a means to influence the conduct of other states, and the materiality of the rent in a territorial lease can affect the risk the lessee would bear in delaying or withholding payment for such a reason. 643  This has been the case with the Quinto Real Norte lease since 2002, when both Spain and France began using the euro. 644  Vienna Convention on the Law of Treaties, May 23, 1969, art. 60.

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With Spain’s perpetual lease of Quinto Real Norte to France, the rent of 8,000 francs was based on the territory’s economic value as estimated in 1856, but without a provision for adjustment it remained at that level for more than nine decades. During this time, the Spanish real was replaced by the peseta, and in the 1890s the peseta’s value plunged against the franc; this was followed by half a century of volatility between the two currencies, largely because the franc became highly unstable in its own right, resulting in a series of devaluations. The rent Spain received in exchange for the rights it granted to France, while stable as a monetary amount, shrank in value to only a tiny fraction of what the rights were originally deemed to be worth.645 By 1949, Spain was effectively giving away the rights on its territory and it proposed that the lease be terminated. France’s resistance led to negotiations that produced an agreement to retain the lease but with an increase in the annual rent to 2,750,000 francs.646 While the lease was saved, however, the problem remained: the 1949 agreement did not accommodate the possibility that the same thing could recur in the future. This indeed happened, and the amount of rent was changed several times subsequently through bilateral agreements that took the form of diplomatic notes. Finally, 128 years after the lease was created, a mechanism was established: since 1984 the rent has been based on a mathematical formula, and since 1991 the amount has been revised every three years;647 both states began using the euro as their common currency in 2002, and the amount of the rent in 2013 was 72,022€.648 In the case of Guantanamo Bay, the lease required the United States to pay an annual rent of “two thousand dollars, in gold coin of the United States.” It had no provision for revising either the amount or the form of payment, but in 1933, during the Great Depression, the United States abandoned the gold standard and stopped the use of gold as payment, as did many other states, and it devalued the dollar. In 1934, with Cuba’s assent, the United States began paying its annual rent by check in the amount of $3,386.25 to represent the official value of gold in the coins whose face value was $2,000. Additional devaluations of the dollar in 1972 and 1973 resulted in further changes in the rent amount to $3,676.50 and $4,085.00 respectively, with the latter rate prevailing until the present.649 The last revision was explained in a U.S. diplomatic cable that instructed the payment for 1974 to be made: 645  Strauss, The Viability of Territorial Leases, 149–50. 646  Sermet, “Le statut original du Pays Quint,” 293. 647  Fernández de Casadevante Romani, La cooperación transfronteriza en el Pirineo, 182. 648  Gobierno de Navarra, “Los ayuntamientos de Baztán y Erro.” 649  Strauss, The Leasing of Guantanamo Bay, 130–31.

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Enclosed is U.S. treasury check in amount $4,085.00 repeat $4,085.00 which represents annual rental payment due July 2, 1974 under agreement signed July 2, 1903 covering lease to U.S. by Cuba of land and water for naval and coaling station in Guantanamo. Amount is tendered as present equivalent in lawful money of U.S. of gold coin referred to in agreement. From 1934, when gold coinage was discontinued in the U.S., until May 8, 1972 value of old U.S. gold dollars was fixed at $1.693125 in lawful money of U.S. On May 8, 1972 value of old U.S. gold dollars was adjusted to $1.83825 in lawful money of U.S. A further adjustment was made October 18, 1973, fixing the value of old U.S. gold dollars at $2.04250 in lawful money of U.S.650 While this resolved the changes in the dollar’s value relative to gold, it did not take into account how the dollar’s value changed relative to the peso used in Cuba. In addition, the amount still represented the rent set in 1903, a level substantially higher than the market value of the territory at the time, in recognition that Guantanamo Bay also had strategic and political value for the United States. This allowed the financial aspect of the lease to go from being substantial to being insignificant, losing any material status it had in this regard. Although it may be argued that even a symbolic rent remains important in affirming Cuban sovereignty, it no longer qualifies as “a provision essential to the accomplishment of the object or purpose of the treaty”651—the legal threshold for materiality. Indeed, Cuba recognizes this by not cashing the U.S. checks to protest the continued U.S. presence at Guantanamo Bay, thereby blocking the United States from complying with its annual payment obligation.652 When leases of territory have entailed alternatives to an annual rent based on the territory’s value—such as a symbolic rent that is financially inconsequential, or a one-time payment made when the lease is created, or no rent at all—the parties have avoided problems relating to compensation. Nonetheless, while states with value-based leases have not addressed the change in the leased territory’s value itself through any formula, a relatively simple means of addressing changes in relative currency values was adopted for the lease of the Canal Zone by the United States from Panama: the rent amount was denominated in the lessor state’s currency instead of the lessee’s. 650  U.S. Department of State, Cable to the U.S. Embassy in Paris, U.S. Embassy in Bern et al., May 8, 1974, U.S. National Archives, Record Group 59, File Unit Electronic Telegrams 1/1/1974–12/31/1974, Doc. No. 1974STATE094834. 651  Vienna Convention on the Law of Treaties, May 23, 1969, art. 60, para. 3 (b). 652  Strauss, The Leasing of Guantanamo Bay, 135–37.

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This caused the lessee rather than the lessor to absorb the impact of currency rate ­variations—the lessor would receive a stable amount of rent in its own currency, or the equivalent thereof in the lessee’s currency; while the lessee’s cost as measured in its own currency would be whatever amount is necessary each year to arrive at that total. Even so, this formula only emerged after the Canal Zone lease had problems of its own arise through the compensation aspect. The original agreement in 1903 had stipulated the rent in U.S. dollars: As the price or compensation for the rights, powers and privileges granted in this convention by the Republic of Panama to the United States, the Government of the United States agrees to pay to the Republic of Panama the sum of ten million dollars ($10,000,000) in gold coin of the United States on the exchange of the ratification of this convention and also an annual payment during the life of this convention of two hundred and fifty thousand dollars ($250,000) in like gold coin, beginning nine years after the date aforesaid.653 When the United States abandoned payments in gold coin, it did not adjust the Canal Zone rent payments as it did for Guantanamo Bay, even though the two leases were seen as substantially identical from the perspective of U.S. municipal law.654 It continued to pay Panama at the rate of $1.00 per gold dollar instead of the $1.693125 received by Cuba.655 The payments to Panama in the devalued dollars led to a dispute that was only resolved two years later in a new treaty that revised the amount and changed its payment to be in the lessor’s currency or equivalent: Beginning with the annuity payable in 1934 the payments under Article XIV of the Convention of November 18, 1903, between the United States of America and the Republic of Panama, shall be four hundred thirty thousand Balboas (B/430,000.00) as defined by the agreement embodied in an exchange of notes on this date. The United States of America may discharge its obligation with respect to any such payment, upon payment in any coin or currency, provided the amount so paid is 653  Hay-Bunau-Varilla Treaty, Nov. 18, 1903, art. XIV. 654  Sedgwick W. Green, “Applicability of American Laws to Overseas Areas Controlled by the United States,” Harvard Law Review 68 (1955): 792. 655  John M. Mathews, “Roosevelt’s Latin-American Policy,” American Political Science Review 29 (1935): 805. It is unclear why different payment policies existed for the two leases.

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the equivalent of four hundred thirty thousand Balboas (B/430,000.00) as so defined.656 Addressing the currency issue this way made the annual rent payments stable from Panama’s perspective, but the treaty still did not address the evolving value of the leased zone, forcing the matter to be revived once again two decades later, when the amount of rent was raised to 1,930,000 Balboas though a new treaty in 1955.657 While the compensation issue has been particularly troublesome for leases in terms of “getting it right,” some problems arising from it are due simply to faults in the quality of the diplomacy that produced the agreements. Negotiators of the Quinto Real Norte lease, for example, would have been aware that French and Spanish currency values might change relative to each other (certainly over a period of perpetuity) because they had changed in the past, including in the recent past—and even within the period when the treaty that embodied the lease was being negotiated.658 The Guantanamo Bay lease contained a diplomatic error that might have proved contentious in the lease’s administration, given the substantial level of the rent at the time the lease was made. The English text specified payment in dollars: The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement.659 But the Spanish text, which was Cuba’s official legal instrument, specified the rent amount as 2,000 pesos while making dollars the currency of payment: Los Estados Unidos de América acuerdan y estipulan pagar a la República de Cuba la suma anual de dos mil pesos en monedas de oro de los Estados

656  Friendship and Cooperation Treaty (“Hull-Alfaro Treaty”), Mar. 2, 1936, U.S.-Pan., art. VII, 53 Stat. 1807, T.S. No. 945, 10 Bevans 742. 657  Remon-Eisenhower Treaty, Jan. 25, 1955, art. 1. 658  Strauss, The Viability of Territorial Leases, 152. 659  Guantanamo Treaty, July 2, 1903, art. I.

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Unidos, durante todo el tiempo que éstos ocuparen y usaren dichas áreas de terreno en virtud del mencionado Convenio.660 This was a major difference, as the peso then in use was valued at 60 U.S. cents at the time; the United States had devalued it upon assuming temporary control of Cuba after the war with Spain in 1898.661 The problem for the lease evidently was avoided because the United States, in compliance with its obligation in the English text, paid 2,000 dollars, which meant that Cuba received the equivalent of 3,333 pesos each year. It should be noted that when a compensation clause in a territorial lease does not stand the text of time, there may be consequences that extend beyond the compensation itself and threaten the future of the arrangement as a whole. It is observable in diplomacy that the buildup of pressure to revise an outdated or otherwise inappropriate aspect of a treaty entails the risk that addressing the problem can result in the entire treaty being called into question, or that its other content will be subject to potential revision as well.

660  Convenio reglamentando el arrendamiento de las Estaciones Navales y Carboneras, hecho por el de 16/23 de febrero, in República de Cuba, July 2, 1903, Cuba-U.S., art. I [Spanish text of Guantanamo Treaty], Colección Legislativa: Secretaría de Estado y Justicia, Departamento de Estado, de 20 de mayo de 1902 á 30 de junio de 1905, Vol. 2 (Havana: Rambla y Bouza, 1906), 201–04. 661  “Cuban Coin Values Fixed,” New York Times, Dec. 30, 1898.

CHAPTER 8

Altering and Ending Leases

Durational Elasticity

The intrusion of geopolitics into international law rarely is seen more consistently than in the distortions it creates for the duration of territorial leases. It is so routine for the longevity of a lease to deviate from the duration stipulated in its original text that cases when a lease expires as initially planned appear as exceptions rather than the rule, and one might ask why any duration is stipulated at all. One reason, of course, is that a stated duration distinguishes a lease from a cession of territory, and when the two appear operationally similar it can deter any challenge to the lessor’s sovereignty over the leased area. Yet there is no evidence that a duration is included for this purpose alone, only to be disregarded if no challenge arises, as this would violate the principle of good faith that is essential to treaties; rather, it appears that the parties do attempt to establish a duration they consider realistic or diplomatically satisfactory, but have difficulty foreseeing with any precision how long a leasing arrangement should last relative to its objective. Circumstances that evolve after a lease’s creation, notably state interests and bilateral relations, and national or international events that affect one or both parties, commonly cause the length of time mandated for the lease’s existence to be mismatched to the realities confronted by the states. Leases for military bases “are especially vulnerable to sudden political and economic changes,” notes Woodliffe.662 Durational adjustments in a lease most often occur by agreement between the lessor and lessee states, although historically a lease’s longevity sometimes has been influenced by territorial occupations during wartime or state successions. Through these various means, many longterm leases have been brought to an early end, while perpetual leases have been assigned fixed termination dates and leases with relatively short terms have been prolonged. Four of the five leases of Chinese territory to the European powers in 1898 underwent such changes, influenced by power shifts and other dynamics of the Russo-Japanese War and both World Wars. The 99-year leases of Kiaochow to Germany and Kuang-chou Wan to France were terminated after 24 years and 47 years respectively, while the areas leased for shorter durations of 25 years 662  Woodliffe, The Peacetime Use of Foreign Military Installations, 312.

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remained under foreign control for longer periods—China recovered control of Wei-hai-wei from Great Britain after 32 years and Kwantung from Russia after 57 years. More recent leases that were prolonged through new agreements after their initial fixed terms were deemed too short include the 50-year lease of the Saimaa Canal by Finland from Russia in 1962, for which a second 50-year lease was agreed in 2010; and the 20-year lease of the Sevastopol naval port by Russia from Ukraine in 1997, which was extended for a further 25 years by a new agreement that also occurred in 2010—although that agreement was then annulled four years later when Russia annexed Crimea. Among perpetual leases that proved to be otherwise was that in which China granted rights on part of the Kowloon Peninsula and Stonecutters Island to Great Britain in 1860; the lease was converted into a cession within a year, and the areas were later incorporated by Great Britain into its Hong Kong colony. The 1887 treaty in which China recognized Portugal’s lease of Macao as perpetual ultimately gave way to Portugal’s return of control over Macao to China in 1999. That same year ended with control of another territory initially leased in perpetuity, the Canal Zone, being returned to Panama by the United States after the original 1903 lease was transformed into a fixed-term arrangement by the Panama Canal Treaty of 1977. These situations warrant mentioning not only because they are representative of numerous others, but also because renegotiating the duration of a territorial lease offers an opening for the parties to review and adjust other parts of the arrangement as well. This has resulted in many leases being brought more broadly into alignment with the changing bilateral and international contexts in which they exist. Through this mechanism, even a long-standing lease may be among the most up-to-date of treaties relative to its geopolitical environment and objective. Perhaps no lease underwent a greater sequence of durational adjustments than the arrangement that was first made in 1947 through which the Philippines granted broad rights in multiple locations on its territory to the United States for 99 years for use as military facilities.663 The sites included two large areas that that housed Clark Air Base and Subic Bay Naval Station. The treaty’s first major revision, in 1959, terminated U.S. rights in several of the leased zones and included a commitment to reduce the original term of the overall 1947 arrange-

663  Agreement between the United States of America and the Republic of the Philippines concerning Military Bases (“Military Bases Agreement”), Mar. 14, 1947, U.S.-Phil., 61 Stat. 4019, T.I.A.S. No. 1775.

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ment from 99 years to 25 years.664 Another bilateral accord in 1965 terminated U.S. rights in a number of additional zones that were included in the lease.665 A year later, in 1966, the parties formalized the commitment to reduce the lease’s term to 25 years and made it effective from that point, establishing 1991 as the year in which U.S. rights on all remaining sites would expire.666 The changes these agreements brought to the lease extended to other aspects besides its duration, such as limiting certain U.S. activities and revising jurisdictional rights in the leased zones.667 A process of systematically reviewing the duration and all other elements of the lease was introduced through yet another agreement concluded in 1979 that required the arrangement to be measured against existing bilateral interests every five years with a view toward making changes if needed: In every fifth anniversary year from the date of this modification and until the termination of the Agreement, there shall be begun and completed a complete and thorough review and reassessment of the Agreement, including its objectives, its provisions, its duration, and the manner of implementation, to assure that the Agrement continues to serve the mutual interest of both parties.668 As the expiration of the lease approached in 1991, the United States and the Philippines were negotiating a 10-year extension for Clark Air Base and Subic Bay, but when the Clark site was damaged by the volcanic eruption of Mount Pinatubo, ending its usefulness relative to U.S. objectives,669 the United States opted to allow its rights there to expire, and the new treaty covered only Subic

664  Relinquishment of Olangapo and Adjacent Areas (“Bohlen-Serrano Agreement”), Dec. 7, 1959, U.S.-Phil., 10 U.S.T. 2169, T.I.A.S. No. 4388. 665  Military Bases in the Philippines—Relinquishment of Certain Base Lands; Use by the United States of Certain Other Areas, Dec. 22, 1965, U.S.-Phil., T.I.A.S. No. 5924. 666  Agreement between the United States of America and the Philippines amending the Agreement of March 14, 1947, as amended, effected by an exchange of notes signed at Washington, Sept. 16, 1966, U.S.-Phil., 17 U.S.T. 1212, T.I.A.S. No. 6084. 667  Cooley and Spruyt, Contracting States, 116–22. 668  Agreement amending the Agreement of March 14, 1947, as amended, concerning military bases, with implementing arrangements, Jan. 7, 1979, U.S.-Phil., 30 U.S.T. 863, T.I.A.S. No. 9224, para. 6. 669  Alexander Cooley, Base Politics: Democratic Change and the U.S. Military Overseas (Ithaca, N.Y.: Cornell University Press, 2008), 81.

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Bay.670 The treaty failed to win ratification by the Philippine Senate, triggering the termination of the 1947 lease in its entirety, and by 1992—with less than half of the original 99-year term having passed—the Philippines recovered all remaining rights that it had allocated to the United States.671 A new lease agreement in 2014 authorized the United States to use “agreed locations” in the Philippines as military bases for a 10-year period that would then automatically continue indefinitely unless either party gives one year’s prior notice of termination.672 It was reported that Clark and Subic Bay were among the sites that the United States sought to use.673

When Leases End

The expiration of a lease at the end of its agreed term is, according to Yang, the most common way for such an agreement to terminate. While renewing or otherwise prolonging an expiring lease requires the will of both parties, the decision to let a lease expire in accordance with its initial or revised duration requires only one party: Even with a clause that foresees the possibility of a renewal, the lessor state has the right to refuse a new lease and the lessee state cannot force its hand juridically.674

670  Treaty of Friendship, Cooperation and Security, Aug. 27, 1991, U.S.-Phil., not ratified (“U.S.-Philippine Treaty,” statement released by the Office of the Assistant Secretary/ Spokesman, Aug. 27, 1991, U.S. Department of State Dispatch 2, No. 35, Sept. 2, 1991). Prior to Mount Pinatubo’s eruption, the Philippines had offered to renew the lease for both bases (Philip Shenon, “U.S. and Manila Agree on Terms for 10-Year Lease of Subic Bay,” New York Times, July 18, 1991. 671  John Whiteclay Chambers II and Timothy J. Lynch, “Bases, U.S. Military, Domestic and Foreign,” in The Oxford Encyclopedia of American Military and Diplomatic History, Vol. 1, ed. Timothy J. Lynch (New York: Oxford University Press, 2013), 100. 672   Agreement between the Government of the Republic of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (“Enhanced Defense Cooperation Agreement”), Apr. 28, 2014, Phil.-U.S., http://www .philembassy.no/sites/default/files/downloads/edca.pdf, accessed Oct. 13, 2014. 673  Manuel Mogato, “Philippines to Give U.S. Forces Access to Up to Five Military Bases,” Reuters, May 2, 2014. 674  Yang, Les Territoires à bail en Chine, 152.

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This holds true even in leases with automatic renewal clauses; in each known case where this exists, either party is able to prevent a renewal by stating its opposition within the parameters—the form or timing—that are stipulated for this action. The lessee nonetheless may control the duration of a lease from which it benefits if the arrangement has an indefinite duration and expires on the basis of a contingency. Oppenheim notes that such a lease “shall at once expire with the occurrence of certain circumstances”675—but it may be up to the lessee to declare whether those circumstances exist. An example is found in the lease of Guantanamo Bay: The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water situated in the Island of Cuba: (. . .)676 Only the United States can determine how long it may require the territory, and the criteria it uses may change over time, for example through the evolving functions of a “naval station.” In such a case, the lessor state bears the risk that the arrangement may last longer than it had envisioned. The Guantanamo Bay lease also illustrates another way for a lease to ­terminate—through the lessee’s abandonment of the leased zone when it is deemed no longer suitable or necessary. This is how control over Bahia Honda, the small secondary territory that was included in the lease, reverted to Cuba—and the 1934 treaty that reaffirmed the Guantanamo Bay arrangement specifically mentioned abandonment as a way for the lease to end: (. . .) So long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.677 As noted earlier, a leased territory that becomes disused by the lessee state is not necessarily abandoned; the lessee may continue to fulfill its obligations to the lessor and retain the option to resume its activity at a later time. Moreover,

675  Oppenheim, International Law: A Treatise, 687. 676  Guantanamo Lease, Feb. 23, 1903, art. I (emphasis added). 677  Treaty of Relations, May 29, 1934, U.S.-Cuba, art. III, 48 Stat. 1682, T.S. No. 866.

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a lease that makes abandonment a trigger for termination must be supported by the mutual acceptance of what legally constitutes abandonment. There are various other ways that a lease of territory may be legally terminated regardless of its stipulated duration. Some are sanctioned by international legal principles and detailed in instruments such as the Vienna Convention of the Law on Treaties. The emergence of a peremptory norm, the implied right of denunciation when a lease has no provision for termination or withdrawal, the doctrine of unequal treaties, the commission of a material breach by one of the parties and—as with abandonment—circumstances authorized by the lease agreement itself all may become reasons for a lease to be ended if the appropriate circumstances exist.678 The principle of rebus sic stantibus, too, may cover circumstances that lead to the termination of a lease agreement. It is not known to have been invoked for ending an arrangement of this type, and the threshold for using it with legal validity has been set rather high, although Woodliffe notes that leases of military bases sometimes contain their own provisions of this nature,679 as did a 1983 lease for U.S. military sites in Greece: Nothing in this agreement shall be in derogation of the inherent right of the Government of the Hellenic Republic under international law to take immediately all appropriate restrictive measures required to safeguard its vital national security interests in an emergency.680 During the Cold War years some international law scholars postulated that Cuba could have legally abrogated the Guantanamo Bay lease on the basis of this principle; the Cuban revolution alone was not considered sufficient, but it was thought that its alliance with the Soviet Union and the shift toward hostile U.S.-Cuban relations might have tipped the scale. Indeed, Cuba did give this options some consideration:681

678  Vienna Convention on the Law of Treaties, May 23, 1969, art. 54–64. 679  Woodliffe, The Peacetime Use of Foreign Military Installations, 293. 680  Agreement on Defense and Economic Cooperation between the Government of the United States of America and the Government of the Hellenic Republic, Sept. 8, 1983, U.S.-Greece, art. VII, para. 1, 35 U.S.T. 2641, T.I.A.S. No. 10814, cited in ibid., 293. 681  Cuba Ministry of Foreign Relations, Guantánamo, base naval yanqui de crímenes y provocaciones: Nueve años de continuas agresiones, la base y el derecho internacional, posición de Cuba (Havana: Instituto del Libro, 1970), 33–36.

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The reason for the transaction having disappeared (since the naval station is used to threaten the security and independence of the Republic of Cuba), Cuba has the right to ask for the application of the clause of “rebus sic stantibus.”682 The end of a lease also may come about through the lessee’s assumption of title and sovereignty over the leased zone. At times, the conditions might represent the fundamental change in circumstances that rebus sic stantibus requires; one can cite in this regard the shift in sovereignty over Cyprus, which occurred when the lessee, Great Britain, declared war on Turkey, the lessor, amid the expansion of World War I in 1914, and simultaneously annulled the Cyprus Convention that set forth the terms of the lease: From and after the date hereof the said island shall be annexed to and form part of His Majesty’s Dominions, and the said island is annexed accordingly.683 Other circumstances also have led to leases being terminated by the lessee’s assumption of sovereignty over the leased territory, such as the extinguishing of a financial obligation (as with Mecklenburg-Schwerin’s annexation of Wismar from Sweden in 1903) and the acquisition of title to a larger territory in which the leased zone is situated (as with the U.S. annexation of Hawaii in 1898 and, to the extent it is considered a transfer of title, Russia’s annexation of Crimea in 2014).684

682  Ibid., 42. 683  Order in Council, Nov. 5, 1914, cited in “Annexation of Cyprus by Great Britain,” American Journal of International Law 9, No. 1 (1915): 204. 684  The events in both cases had many parallels, although the matter of Russian title to Crimea probably will stay unresolved for some years; most other states do not recognize Crimea as being under Russian sovereignty but its annexation by Russia was widely acknowledged as a de facto situation that is unlikely to be reversed (this assessment, for example, was expressed informally by numerous attendees at the Workshop on International Law Aspects of the Crimean Crisis, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Sept. 2–3, 2014). After the annexation of Crimea, Russia cancelled its lease at Sevastopol (Hille, Buckley and Farchy, “Putin Tears Up Lease for Sevastopol Naval Base”).

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State Succession and Leases

The disappearance of a state that is a party to a territorial lease is another route by which an arrangement of this type can be terminated, although international law allows this to occur only under limited conditions, reflecting the persistent influence of the classical doctrine of servitudes in situations such as the North Atlantic Coast Fisheries Case and in the International Law Commission’s observation that the weight of opinion amongst modern writers supports the traditional doctrine that treaties of a territorial character constitute a special category and are not affected by the succession of States.685 The Vienna Convention on Sucession of States in respect of Treaties, which grew out of the ILC’s work, stipulates: A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question.686 (. . .) The provisions of the present article do not apply to treaty obligations of the predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates.687 The discomfort expressed by the Permanent Court of Arbitration when it accepted this notion of servitudes in the North Atlantic Coast Fisheries Case had a certain resonance in the Vienna Convention’s exception for military installations—it was founded not on the legal nature of a servitude but rather on its objective, which is a function of the lease that created it and thus independent from the servitude as a legal construct. 685  International Law Commission, “Succession of States in respect of Treaties,” commentary on art. 12, Report of the I.L.C., 26th Session, in Yearbook of the International Law Commission, 1974, Vol. 2, Part 1, U.N. Doc. A/CN.4/SER.A1974/Add.1 (Part 1) (1975), 197. 686  Vienna Convention on Succession of States in respect of Treaties, Aug. 23, 1978, 1946 U.N.T.S. 3, art. 12, para. 1. 687  Ibid., art. 12, para. 3.

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Although this leaves an opening for the numerous publicists who contend that permanence is not an inherent feature of a servitude at the level of states, history shows there have been few attempts by successors of lessor states to unilaterally cancel leases of territory that were made by their predecessors— and when it has occurred, it generally has not gone smoothly with respect to their political relations. Tanzania’s attempt to terminate the “Belbase” leases of port sites in Dar-es-Salaam and Kigoma, made in perpetuity by Great Britain to Belgium in 1921, was a case in point: On the eve of independence [in 1960], the Tanganyika Government informed the United Kingdom that it intended to treat both Agreements as void and to resume possession of the sites. (. . .) In the National Assembly Prime Minister Nyerere explained that in Tanganyika’s view: “A lease in perpetuity of land in the territory of Tanganyika is not something which is compatible with the sovereignty of Tanganyika when made by an authority whose own rights in Tanganyika were for a limited duration.” After underlining the limited character of a mandate or trusteeship, he added: “It is clear, therefore, that in appearing to bind the territory of Tanganyika for all time, the United Kingdom was trying to do something which it did not have the power to do.” When in 1962 Tanganyika gave notice of its request for the evacuation of the sites, Zaire (Congo (Leopoldville)), Rwanda and Burundi, which had all now attained independence, countered by claiming to have succeeded to Belgium’s rights under the Agreements. Tanganyika then proposed that new arrangements should be negotiated for the use of the port facilities, to which the other three successor States assented.688 The parties agreed to a treaty in 1970 in which the lessor—now Tanzania, after Tanganyika merged with Zanzibar in 1964—would acquire the assets of the leased sites and pay compensation to Zaire, Rwanda and Burundi. The treaty did not receive the necessary ratifications, and in 1971 Tanzania nationalized the leased areas under terms less favorable for Belgium’s former African ­colonies.689 Negotiations about compensating them still were occurring in the 1980s, and although the lease had ended in a de facto sense, the World Bank

688  International Law Commission, “Succession of States in respect of Treaties,” commentary on art. 12, 202–03. 689  Douglas G. Anglin, “The Politics of Transit Routes in Land-Locked Southern Africa,” in Land-Locked Countries of Africa, ed. Zdenek Červenka (Uppsala: Scandinavian Institute of African Studies, 1973), 104.

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reported as late as 1990 that “the current legal status of Belbase is unclear,” causing a reluctance to finance rehabilitation and improvement works.690 While the legal rules and practice of state succession may be straightforward regarding areas subject to the normal exercise of sovereignty, the Belbase situation showed how it can turn messy when a leased territory is concerned; the process of succession for such a zone may have to accommodate legal anomalies, political sensitivities and geopolitical concerns in conjunction with the peculiarities of the lease and its history. A dispute about sovereignty over North Borneo, an area incorporated into the Malaysian state of Sabah but also claimed by the Philippines, exemplifies this with a supplemental factor, the inconsistent terminology historically employed in the practice of territorial leasing, compounded by conflicting translations. At issue is whether the assignment of rights on the territory in 1878 was a lease and, if so, whether it was terminated. Malaysia’s claim stems from its role as successor to British North Borneo, which itself was the colonial successor to a state-chartered company (the British North Borneo Company) that had acquired the rights granted to two individuals by the Sultanate of Sulu in 1878 to govern North Borneo in perpetuity in return for an annual payment to the sultanate.691 The 1878 agreement was drafted in the Malay language and written in Arabic script, and the grant of rights—a word transliterated as pajak or padjak—has been translated by scholars variously as a cession and as a lease.692 (Based on the definition used here, it was a lease.) Relying on these translations, Malaysia contends that the grant was a cession; it has been argued that this intent was indicated by its perpetual term.693 The Philippines, as successor to the Sultanate of Sulu, considers the arrangement to be a lease because of the weight of its characteristics, with its perpetual term not disqualifying it from that status: 690  World Bank, Africa: The Great Lakes Corridor Study, Doc. No. 8694-AFR (1990), 34. 691  For two translations of the treaty, see Lela Garner Noble, Philippine Policy Toward Sabah: A Claim to Independence (Tucson: University of Arizona Press, 1977), 255–57. These are: Grant by Sultan of Sulu of Territories and Lands on the Mainland of the Island of Borneo, Jan. 22, 1878, trans., Treaties and Engagements Affecting the Malay States and Borneo, ed. William George Maxwell and William Sumner Gibson (London: Jas. Truscott and Sons, 1924), 158–60 [translation in support of Malaysia’s claim]; Grant by the Sultan of Sulu of a Permanent Lease covering his Lands and Territories on the Island of Borneo, Jan. 22, 1878, trans., Philippines Department of Foreign Affairs, Philippine Claim to North Borneo, Vol. 1 (Manila: Bureau of Printing, 1965), 63–64 [translation in support of the Phillipines’ claim]. 692  S. Jayakumar, “The Philippine Claim to Sabah and International Law,” Malaya Law Review 10, no. 2 (1968), 310–11. 693  Ibid., 312–13.

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Internal analysis of the Deed of 1878 itself reveals strong and valid reasons to hold that it was a lease, although a lease in perpetuity.694 One international law publicist also noted that the term padjak translated into Spanish, “arrendamiento,” has been used to support the argument that the arrangement is a lease, but cautioned: A general but important observation to be made in this connection is that terms such as “lease” or “cession” were used loosely in this region in the nineteenth century—a factor which ought to discourage any attempt to ascertain the nature of rights granted by only inquiring whether “lease” or some other label was employed.695 Despite claiming title to North Borneo since becoming an independent state in 1963, Malaysia has been making annual payments to the heirs of the Sultan of Sulu in connection with the territory but has asserted that they are not rent associated with a lease.696 In 2013, after an invasion of the area by armed supporters of the Sultan’s heirs, a Malaysian government minister called for an end to the payments, referring to them as “cession money,” a “tribute” and a “stipend” paid for humanitarian reasons.697 As of this writing, the matter remains unresolved. Decades before the Vienna Convention on state succession and treaties was agreed, Yang asserted that the disappearance of a lessee state automatically causes a lease to end because it loses its raison d’être: The lease in this case must naturally terminate and the lessor state recover, completely and entirely, the exercise of its sovereign rights on the territory that was leased. This does not, however, take into account the possibility that a lessee’s successor may desire to continue the lease, or that the lessor itself may wish to do so for the benefits it may receive from the arrangement. The Vienna 694  Pacifico A. Ortiz, Legal Aspects of the North Borneo Question (Manila: Bureau of Printing, 1964), 33. 695  Jayakumar, “The Philippine Claim to Sabah and International Law,” 312. 696  Paul Pryce, “The Sabah Conflict: Grim Vision for ASEAN Security Community?” China International Studies 39 (2013), 140–41. 697  “Attorney General’s Chambers Urged to Expedite Study on Sabah Cession Payment,” Bernama News Agency, Mar. 12, 2013.

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Convention accommodates this by restricting the legal right of either party’s successor to end a territorial lease. Yang’s comments with regard to a lessor’s successor, meanwhile, were aligned with the prevalent thinking about servitudes—but with an important proviso that retains its validity even in the face of the Vienna Convention: The state that absorbs the lessor state must take it such as it is in all respects. And while it is always possible for it to request that the lessee state cancel the existing lease of a portion of the territory that it has newly acquired, the cancellation of the lease is not automatic. The lessee state is within its rights to continue the lease until the expiration of its term.698 Yang recognized, albeit obliquely, that state succession entails a geopolitical change which can trigger a desire by at least one party to end a territorial lease—and that when the successor to either party inherits a predecessor’s rights and obligations with respect to a given territory, it also obtains the sovereign authority to enter into bilateral agreements that can affect that territory. It was in this context that Burma and China agreed in 1960 to terminate the lease of the Meng-Mao Triangular Area (the Namwan Assigned Tract), which Great Britain had leased from China in perpetuity for Burma’s use when Burma was a British colony.699 The termination occurred through a boundary treaty that, according to Chinese Premier Zhou En-Lai, was negotiated in recognition of (t)he fundamental changes of historic importance that have taken place in China and Burma respectively, that is, China has cast away its semicolonial status and Burma its colonial status and both have become independent and mutually friendly countries.700

698  Yang, Les Territoires à bail en Chine, 156. 699   D.P. O’Connell, “Independence and Succession to Treaties,” British Yearbook of International Law 38 (1962), 101–03. 700   Cited by Wang Tieya, “International Law in China: Historical and Contemporary Perspectives,” in Collected Courses of the Hague Academy of International Law, Vol. 221 (The Hague: Kluwer, 1991), 351.

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The treaty transferred sovereignty over the leased area to Burma in exchange for China’s assumption of sovereignty over a similar amount of Burmese territory.701

Termination Agreements

Although a new bilateral agreement is not essential for the allocated rights to revert to the lessor state when a lease expires or otherwise ends on the basis of previously agreed terms, an accord may be concluded in order to address practical issues that can arise from the transfer of authority back to the lessor. An end-of-term agreement can be as simple as covering procedural matters related to the reversion of rights to the lessor, but it may go beyond that and establish a transition process to avoid or minimize social, economic or other disruptions that might occur as the result of the transfer. Sometimes an agreement relating to the return of rights can entail policy commitments for the post-reversion period so the nature of governance during this period can be anticipated and accommodated, both within the territory if it is populated and also by the international community more generally. Additionally, such an agreement may serve to recognize the symbolic importance of the reversion of rights; this can be particularly significant when the rights are comprehensive, providing diplomatic closure to a period of territorial history when the elements constituting de facto sovereignty are handed back to the de jure sovereign. An example of a procedural agreement was the 1906 treaty that cancelled most of the lease of territory in east Africa by Great Britain to the Congo Free State, part of what was originally a reciprocal leasing arrangement. The portion of the lease that the treaty did not cancel would expire at the end of King Leopold II’s reign, and the treaty specified the actions to be taken to implement its termination when the time arrived: The lease of the territories granted by Great Britain to His Majesty King Leopold II, Sovereign of the Independent State of the Congo, by Art. II of the Agreement signed at Brussels on the 12th May, 1894, is hereby annulled. No claims shall be put forward by either Party in connection with this lease, or with any other right derived therefrom. His 701  Boundary Treaty between the Union of Burma and the People’s Republic of China, Oct. 1, 1960, Burma-P.R.C., 1010 U.N.T.S. 111.

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Majesty King Leopold shall (. . .) continue during his reign to occupy, on the same conditions as at present the territory now held by him, and known as the Lado Enclave. Within six months of the termination of His Majesty’s occupation the Enclave shall be handed over to the Soudanese Government. Officials shall be appointed by the Soudanese and Congo State Governments to assess the value of such houses, stores, and other material improvements as may, by common agreement, be handed over with the Enclave.702 The procedure proved effective: King Leopold II died in late 1909, and within six months Great Britain and Belgium signed a treaty that formally ended the lease and caused the territory to return to British control within weeks of the treaty being made.703 A more recent agreement that focused purely on procedural matters was made in 2012 when negotiations to renew the Russian lease of the Gabala radar station site in Kazakhstan were abandoned after the two states could not agree on a new rental amount704 and the lease was left to expire at the end of its 10-year term. In this case, neither party had planned for the termination; Russia informed Kazakhstan by diplomatic note that it would no longer use the site after the expiration date, and because this left practical matters unresolved the two states initiated talks shortly thereafter to agree on the withdrawal of Russian personnel and material.705 The result was a two-stage process: Firstly, we were to realize [an] inventory check; we’ve completed this phase. The second phase comprises [the] full handover process, [the] withdrawal of the property belonging to Russia, [and the] solution of the issues connected with [the] departure of the staff and their family members.

702  Agreement between Great Britain and the Independent State of the Congo, modifying the Agreement signed at Brussels, 12th May 1894, May 9, 1906, Gr. Brit.-Congo, art. I, 2 Hertslet, The Map of Africa by Treaty, 3rd ed. 584 (Routledge 1967) (1909). 703  Agreement between Great Britain and Belgium Settling the Boundary between Uganda and the Congo, May 14, 1910, Gr. Brit.-Belg., 107 British and Foreign State Papers 348. 704  Kazakhstan sought to increase Russia’s annual rent from $7 million to $300 million (Hershenhorn, “Russia to Close Radar Station in Azerbaijan”). The collapse of renewal talks over this issue illustrates the extent to which compensation can be a material aspect of a territorial lease. 705  “Ministry: Parameters of Removing Russian Property from Gabala Coordinated with Azerbaijani Defense Ministry,” Trend InfoService, Feb. 7, 2013.

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The Azerbaijani side has carried out all the appropriate activities and officialised all the documents related to the handover process. The station has already suspended its operation; the property to be sent to Russia has already been placed in the storage facilities and the Russian side is taking steps for withdrawal of this property.706 This reflects the obvious fact that it takes time for a lessee to remove relevant physical assets and personnel from a territory at the end of a lease, and that it cannot be expected to do so while the lease remains in force as the assets and personnel may be required for the lessee to exercise its rights until the lease terminates. Woodliffe notes with regard to the existence of a period for removing property at the expiration of a lease that “(t)his rule can safely be implied even when there is no express provision” in the arrangement. He adds that in one U.S.-Libyan agreement it was stipulated that Libya would assume ownership of movable property if it is not removed by the United States at the end of the lease in a reasonable time.707 A contingency plan developed by the U.S. government for closing the Clark and Subic Bay bases in the Philippines included a one-year period for the closure process “as a basic assumption.”708 A broad-ranging termination agreement was made by Great Britain and China in 1984 to address the British return of control over all of Hong Kong in 1997 upon the expiration of the 99-year lease of the New Territories, which comprised most of Hong Kong’s total area. The agreement elaborated a series of policies that China would adopt for Hong Kong once it recovered control of the territory; this was done partly to ensure a smooth transition for its large population but also to alleviate international concerns about the territory’s future as a major global financial center, a status it developed during the period of the lease: As the core of the agreement, the Chinese policy commitments were stated as follows: 1. Upholding national unity and territorial integrity and taking account of the history of Hong Kong and its realities, the People’s Republic of China has decided to establish, in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, a 706  “Khalaf Klalafov: ‘Work Within Framework of Commissions on Handover Process of Gabala RS Has Been Completed,’ ” Azerbaijan State Telegraph Agency, Apr. 6, 2013. 707  Woodliffe, The Peacetime Use of Foreign Military Installations, 306. 708  Larry Jerome Steckler, “The United States Government Withdrawal and Subsequent Closure of the United States Naval Complex at Subic Bay, Republic of the Philippines: A Management Case Study” (master’s thesis, Naval Postgraduate School, 1992), 4–5.

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Hong Kong Special Administrative Region upon resuming the exercise of sovereignty over Hong Kong. 2. The Hong Kong Special Administrative Region will be directly under the authority of the Central People’s Government of the People’s Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government. 3. The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged. 4. The Government of the Hong Kong Special Administrative Region will be composed of local inhabitants. The chief executive will be appointed by the Central People’s Government on the basis of the results of elections or consultations to be held locally. Principal officials will be nominated by the chief executive of the Hong Kong Special Administrative Region for appointment by the Central People’s Government. Chinese and foreign nationals previously working in the public and police services in the government departments of Hong Kong may remain in employment. British and other foreign nationals may also be employed to serve as advisers or hold certain public posts in government departments of the Hong Kong Special Administrative Region. 5. The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law. 6. The Hong Kong Special Administrative Region will retain the status of a free port and a separate customs territory. 7. The Hong Kong Special Administrative Region will retain the status of an international financial centre, and its markets for foreign exchange, gold, securities and futures will continue. There will be free flow of capital. The Hong Kong dollar will continue to circulate and remain freely convertible. 8. The Hong Kong Special Administrative Region will have independent finances. The Central People’s Government will not levy taxes on the Hong Kong Special Administrative Region.

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9. The Hong Kong Special Administrative Region may establish mutually beneficial economic relations with the United Kingdom and other countries, whose economic interests in Hong Kong will be given due regard. 10. Using the name of “Hong Kong, China”, the Hong Kong Special Administrative Region may on its own maintain and develop economic and cultural relations and conclude relevant agreements with states, regions and relevant international organisations. The Government of the Hong Kong Special Administrative Region may on its own issue travel documents for entry into and exit from Hong Kong. 11. The maintenance of public order in the Hong Kong Special Administrative Region will be the responsibility of the Government of the Hong Kong Special Administrative Region. 12. The above-stated basic policies of the People’s Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, by the National People’s Congress of the People’s Republic of China, and they will remain unchanged for 50 years.709 The agreement served an important international legal purpose as well because the matter at hand was more than a simple return of rights granted by the lease of 1898—it also was the simultaneous cession to China of the small parts of Hong Kong where Great Britain had obtained title and sovereignty through earlier Chinese cessions of these areas: Hong Kong island in 1842, and part of the Kowloon Peninsula with Stonecutters Island in 1860. Indeed, it was this matter that made the talks complicated. Although China’s post-1949 government had questioned the validity of those cessions, it had not impeded British control there, and the legal foothold they offered to Great Britain mitigated what was otherwise a weak negotiating position: The negotiation process was hampered by British and Chinese intransigence over the basic issues of sovereignty and future administration, which the Chinese insisted be agreed upon prior to the start of substantive talks. The Chinese insisted upon two major points: that the sovereignty of Hong Kong belonged to China and that the expiration of the lease in 1997 would mark the end of colonial rule not only in the leased territory but the entire colony. The British maintained that sovereignty 709  Sino-British Joint Declaration on Hong Kong, Dec. 19, 1984, art. 3.

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of the ceded territories (Hong Kong Island, Kowloon and Stonecutters Island) belonged to the United Kingdom, and that there is a need for continued British rule or guidance for the good of the people. All of these problems existed under the shadow of impending seizure of the territory by the People’s Republic of China in 1997 and with the understanding that Hong Kong was militarily indefensible, having survived since 1949 at the sufference of the Chinese.710 An equally comprehensive but entirely different type of agreement covering the termination of a territorial lease was the Panama Canal Treaty of 1977, in which the United States and Panama altered the lease from a perpetual arrangement to one that would expire at the end of 1999. Unlike the agreement for Hong Kong, this treaty established a transitional process that would occur during the 23 years between the treaty’s signing and the date it established for termination. A series of actions were thus mandated by the treaty prior to the lease’s end. These included a progressive transfer of control over the area to Panamanian nationals through a new bilateral agency created for its governance, the Panama Canal Commission: The United States of America shall employ a national of the United States of America as Administrator of the Panama Canal Commission, and a Panamanian national as Deputy Administrator, through December 31, 1989. Beginning January 1, 1990, a Panamanian national shall be employed as the Administrator and a national of the United States of America shall occupy the position of Deputy Administrator. Such Panamanian nationals shall be proposed to the United States of America by the Republic of Panama for appointment to such positions by the United States of America.711 In addition to the participation of Panamanian nationals at high management levels of the Panama Canal Commission, as provided for in paragraph 3 of this Article, there shall be growing participation of Panamanian nationals at all other levels and areas of employment in the aforesaid commission, with the objective of preparing, in an orderly and efficient fashion, for the assumption by the Republic of Panama of full responsibility for the management, operation and maintenance of the Canal upon the termination of this Treaty.712 710  Charles Weston Cunningham, “The Retrocession of Hong Kong” (master’s thesis, Naval Postgraduate School, 1985), 32–33. 711  Panama Canal Treaty, Sept. 7, 1977, art. III, para. 3 (c). 712  Ibid., art. III, para. 8.

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The United States of America will establish training programs for Panamanian employees and apprentices in order to increase the number of Panamanian nationals qualified to assume positions with the Panama Canal Commission, as positions become available.713 The Parties agree to establish a system whereby the Panama Canal Commission may, if deemed mutually convenient or desirable by the two Parties, assign certain employees of the Panama Canal Commission, for a limited period of time, to assist in the operation of activities transferred to the responsibility of the Republic of Panama as a result of this Treaty or related agreements. The salaries and other costs of employment of any such persons assigned to provide such assistance shall be reimbursed to the United States of America by the Republic of Panama.714 The transitional period also addressed jurisdictional issues: The Republic of Panama shall reassume plenary jurisdiction over the former Canal Zone upon entry into force of this Treaty and in accordance with its terms. In order to provide for an orderly transition to the full application of the jurisdictional arrangements established by this Treaty and related agreements, the provisions of this Article shall become applicable upon the date this Treaty enters into force, and shall remain in effect for thirty calendar months. The authority granted in this Article to the United States of America for this transition period shall supplement, and is not intended to limit, the full application and effect of the rights and authority granted to the United States of America elsewhere in this Treaty and in related agreements.715 The treaty gave the United States and Panama concurrent jurisdiction during the transition period prior to termination; it stipulated the circumstances in which each state would have primary jurisdictional rights716 and allowed for joint police patrols and the continuation of the U.S. legal system in connection with applications of U.S. jurisdiction.717 Finally, it established the process for transferring the management and ownership of the territory’s physical assets:

713  Ibid., art. X, para. 3 (b). 714  Ibid., art. X, para. 8. 715  Ibid., art. XI, para. 1. 716  Ibid., art. XI, para. 2. 717  Ibid., art. XI, para. 3–8.

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1. Upon termination of this Treaty, the Republic of Panama shall assume total responsibility for the management, operation, and maintenance of the Panama Canal, which shall be turned over in operating condition and free of liens and debts, except as the two Parties may otherwise agree. 2. The United States of America transfers, without charge, to the Republic of Panama all right, title and interest the United States of America may have with respect to all real property, including non-removable improvements thereon (. . .)718 The reversion to Panama of major elements of control over the leased zone while the lease remained in force had benefits for both parties as well as other states that relied on the Panama Canal. It assured a transitional period with mechanisms to smooth the implementation of governance changes, rather than the usual situation in which a lessor recovers all of the allocated rights at once upon the expiration of the lease.719 For the lessee, it ensured a participatory role in the transition with the potential to influence transitional events within the parameters set by the treaty.720 For the lessor, it provided a framework for the capacity-building deemed necessary to exercise the rights it would reassume and it simplified the range of post-termination tasks related to reintegrating those rights into its broader governance activities. For other states, it allowed legal control over the zone to change upon the lease’s expiration without an abrupt change in the nature of authority exercised there. 718  Ibid., art. XIII. 719  This suggests that a transitional period also is possible after a lease’s termination through an agreement that stipulates a prolonged role for the lessee and its retention of certain rights during this period. China’s 50-year policy commitments for Hong Kong in the 1984 Sino-British Joint Declaration could be seen as conceptually similar to this, with the difference that China would emulate British governance rather than allow Great Britain to retain any governance rights itself in Hong Kong. 720  By contrast, the agreement for Hong Kong stated that Great Britain would continue to exclusively govern Hong Kong during the 13 years until the end of the lease, while China would “give its cooperation in this connection” (Sino-British Joint Declaration on Hong Kong, Dec. 19, 1984, art. 4.). The two states also established a Joint Liaison Group that would operate both before the lease’s expiration and afterward until Jan. 1, 2000 (ibid., annex II, art. 8), but stipulated that “the Joint Liaison Group shall be an organ for liaison and not an organ of power. It shall play no part in the administration of Hong Kong or the Hong Kong Special Administrative Region. Nor shall it have any supervisory role over that administration” (ibid., annex II, art. 6).

CHAPTER 9

Post-Termination Issues

Formerly Leased Zones

It is observed in state practice that whenever a lease of territory ends, the rights in the leased area either revert to the lessor state (or its successor), or are ceded through a transfer of sovereignty to the lessee state (or its successor). The history of territorial leases is void of cases in which a lease terminates through the transformation of the leased zone into an independent state.721 In theory, it can occur—the fact that Hong Kong was granted much autonomy by a lessee state with de facto sovereignty showed that a leased area, like any territorial space capable of harboring inhabitants and a governing structure, might be viable as a state in its own right. Yet in practice, such an outcome has not been seen despite all of the potential opportunities over the last few centuries. This suggests that something inherent in the practice of leasing territory may act as a deterrent. A possible explanation is that the totality of de jure plus de facto sovereign authority over any leased area is necessarily held by two states, regardless of how they allocate it between themselves. When the arrangement ends, one party relinquishes the aspects of authority vested in it (the lessee’s by the lease, and the lessor’s by having title) to the other party. The only way a territory can go directly from a being under lease to being a state would be for it to become independent from what is essentially a closed system involving both parties, which may be a formidable political hurdle even if international law presents no obstacle. Another type of closed system, a condominium, has seen this transformation in the case of the New Hebrides; it became the state of Vanuatu when France and Great Britain, the co-sovereigns, jointly made it independent in 1980. Yet with a condominium, both states have full and equal sovereignty and may exercise the entire range of authority; and coordinated acts are essential to its governance. This is not the case with a lease, in which

721  This refers to the moment of termination. A territory previously subject to a lease may retain its character as a discrete geographic and political construct (it could have been one historically, and the lease itself may have reinforced its distinct status) and become independent at a later point—as occurred with Cyprus in 1960 and with Bosnia and Herzegovina in 1991–92.

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the rights may not overlap, one party can be dominant in exercising them and coordination can be absent. Another possible reason is the instrument itself: by being a lease, it commits both states to anticipating the eventual reversion of all authority in the territory to the lessor if the arrangement is one that envisions termination. Thus, even at its creation, the lease entails a predetermined post-lease status. For a lease made in perpetuity, the matter does not arise at first but would do so later if its duration is altered. Whatever the explanation, the options for a leased territory when the arrangement ends appear limited to a continued relationship with one of the two parties. Even if sovereignty over it changes through its termination due to circumstances not foreseen when the lease was made, that shift will be in favor of the lessee. This has relevance for the parties to a lease because whichever state exercises full sovereign rights on the territory after the arrangement ends must extend aspects of its existing governance to the area, and experience has shown this to be easier said than done in some situations. Numerous factors can affect the process as well as the time it may require: the objective of the lease, the range and nature of rights that were allocated to the lessee, how long the lease existed, which state obtained full authority over the territory when the lease ended, the degree to which that state desires to integrate (or re-integrate) the area with the rest of the geographic space under its sovereign control, its capability to do so through internal and external resources at its disposal, and the interests of other states relative to the final disposition of the zone. Moreover, the process must consider that changes within the leased area while the arrangement was in force may be irreversible. In the early 20th century, while some international law publicists were asserting that leases of territory actually were disguised cessions, others were convinced that their nature as leases meant the allocated rights eventually would revert to the sovereign—and that when this occurred the lessee state would be obliged by what Tyau called an “implied covenant” to ensure that the zone is in good condition, taking into account the equivalent of what a private-law lease would consider normal wear and tear arising from its agreed use.722 The proponents of this idea held the view that a lease of territory is fully analogous to a private-law lease in all respects. As with the theory of disguised cessions, this has proved incorrect as a generalization even if it may apply to specific cases. 722  Tyau, The Legal Obligations Arising out of Treaty Relations, 70.

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Sometimes a territory is leased with the express purpose of being used the same way as it had been previously, with the lessee seeking to exploit an asset that already was exploited or developed by the lessor. Examples go as far back as the Babylonian case of Gu’edema, which was leased by Lagash to Umma for its farmland; more recently, the Quinto Real Norte lease by Spain to France also was made for agricultural purposes. Similarly, the leases by Finland from Russia of the Saimaa Canal, which had been built a century earlier, as well as Russian leases of territories in states that were once part of the Soviet Union, were made in order to continue activities that already were occurring in these places. These included the space operations in Baikonur, the radar site in Gabala and the naval port at Sevastopol. Regardless of whether the transferred rights revert to the lessor or pass to the lessee upon termination of the lease, the adjustments necessary for their absorption are minimized by the similarity between the physical and operational aspects of these territories during the lease and before it. In these cases, the zone remains in the condition it was in. When control of Gabala was handed back to Azerbaijan, the site closely resembled the way it was prior to the lease, just as activities at Sevsatopol continued as before when Russia ended the lease and absorbed the site through its annexation of Crimea. In some cases where the activities on the territory are unchanged by the lease, the range of rights transferred to the lessee is limited to those necessary to carry out those activities. More generally, it is observed that leases which allocate a narrow range of sovereign rights to the lessee state are less likely to act as paths by which sovereignty is transferred to it once the lease ends. The limitations on the lessee’s activities also can make the territory easier for a lessor to reintegrate once the rights revert to it.

Assimilation with the Lessee State

Besides the scope of rights the lessee had, the length of time it was able to exercise them also can influence the ease or difficulty with which the territory can be fully assimilated with either state once the lease terminates. A relatively short lease may prevent the lessee’s institutions from becoming sufficiently established for their presence to persist after the lease ends, but if a lease involves comprehensive rights, lasts a number of decades or longer and covers a zone that has a significant population, these institutions, with their various systems and regimes, can become more firmly implanted. Even the simple fact of generational change in the overall populations of both states can result in the leased territory’s status quo being considered as

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always having existed—it becomes the only type of governance for the territory that anyone in either state has experienced. This can make the lessor’s eventual reabsorption of the zone more complex a task than the lessee’s absorption of it, and generate pressure for the latter to occur. Perrinjaquet notes that a leased territory grows closer to the lessee and more distant from the lessor through the rights that are exercised on it:723 (A)t the end of the lease, the lessee has much more of an interest than the lessor in the territory that was leased: it has made improvements and it has incurred expenses that will not yield a profit except in what may be the distant future.724 Naturally, the scope of allocated rights can affect the degree to which this happens. In extreme cases, the leased area may be completely associated with the lessee by parties to the lease and by other states that have interactions with the leased territory. Thus, within the United States, the Panama Canal “was popularly perceived as ‘American territory’ ” by the time the 1977 treaty to return it was negotiated, generating opposition among the U.S. public that authorities had to overcome in order for the treaty to be ratified and the lease to be ended.725 The same perception can even affect how a leased territory is treated within the domestic legal system of each party to it, which can have consequences for the legal status of the territory vis-à-vis each state and also for how and when the lease terminates and the territory’s subsequent disposition. A clear illustration of this can be found in legal judgments involving the lease of Guantanamo Bay. Cuba’s Supreme Court ruled in 1934 that the territory “is for all legal effects regarded as foreign” in a case that affirmed Cuba’s right to levy import duties on goods brought by Cubans from the leased territory into a neighboring part of Cuba (the defendents unsuccessfully argued that the goods already were on Cuban sovereign territory while at Guantanamo Bay);726 Cuba has not contradicted this ruling, applying its legal system only on the rest of the island until the present time. Meanwhile, as Jonathan Hafetz observes:

723  Perrinjaquet, Des cessions temporaires, 369–72. 724  Ibid., 372. 725  Joseph Smith, Historical Dictionary of United States-Latin American Relations (Lanham, Md.: Scarecrow Press, 2007), xlv. 726  In re Guzman & Latamble.

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Over time, Guantánamo became part of the United States in all but name. In 1953, Guantánamo’s commander announced that the naval base “for all practical purposes, is American territory.”727 Meanwhile, the U.S. Supreme Court’s ruling in Boumediene v. Bush in 2008 referred to the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.728 With the United States exercising all of the sovereign rights that have been displayed there for more than a century and Cuba exercising none, the only thing that prevents the United States from acquiring title to Guantanamo Bay through prescription may be an absence of political will to make such a claim. In both the Canal Zone and Hong Kong, the lessee’s rights also were so comprehensive as to constitute de facto sovereignty, but unlike at Guantanamo Bay the lessee in each case substantially developed or otherwise significantly altered the territory during the period of the lease. By the time control of each zone reverted to the lessor state, the character of the territory had changed so dramatically that it became impossible to either make it resemble its prior circumstances or to turn it into anything that approached the situation that existed elsewhere on the lessor’s sovereign territory at the time it resumed control. Woodliffe has noted that several principles regarding the restoration of rights apply when a territory is leased for a military installation, regardless of whether the lease specifically states them: (O)wnership of ‘all movable property’ provided by the sending state and located in the receiving state remains with the former state, which, in the event of the base agreement terminating, is entitled to remove or freely dispose of the property. (. . .) A second principle commonly found in base agreements absolves the sending state from any obligation to restore the installations, facilities or land on which they are sited to the condition in which they were at the time the land was made available. Nor is the sending state under an 727  Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New Global Detention System (New York: New York University Press, 2011), 28. 728  Boumediene v. Bush., 553 U.S. 723, at 754.

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obligation to compensate the receiving state in lieu of such restoration. A third principle, the obverse of the latter, removes any obligation on the part of the receiving state to compensate the sending state for any improvements made to the installations and facilities or to the buildings or structures left thereon. Unless agreed otherwise, such buildings and structures become the property of the receiving state.729

Accommodating an Altered Territory

The cases of the Canal Zone and Hong Kong both show that when the rights in a leased territory revert to the lessor, that state may not necessarily want the territory back the way it was when the lease was made. Not only might it be willing to accept changes that far exceed normal wear and tear, it may even encourage those changes, for example when it does not have the resources to make them itself but deems them beneficial for its interests. Indeed, the lease of the Canal Zone was made with the intent of physically transforming the leased area into a site of economic and strategic importance to the lessee. After 1999, once the rights in the zone reverted to Panama, the income from the canal’s existence and utilization provided it with financial resources that it could use to further its interests; as it is typical for a state’s interests to be oriented toward enhancing its development as well as its position and strength in the international system, the reversion of rights after the lease ended could be seen as offering long-term geopolitical benefits to the former lessor. By contrast, the development of Hong Kong into an international economic and financial center in the second half of the 20th century was not in the least anticipated by either China or Great Britain when the New Territories were leased in 1898; it occurred more as a function of opportunity and was likely exaggerated by the sharp differences that emerged between the Chinese and British political and economic systems following the Chinese revolution in 1949, as China’s relative isolation in the international economy heightened the opportunity for Hong Kong to develop a leading position as an Asian center for finance and trade: The People’s Republic of China assumed an inward policy direction in the three decades after 1949 that cut Hong Kong adrift from a dependence on entrepot trade. Hong Kong’s relationship to the Mainland shifted as 729  Woodliffe, The Peacetime Use of Foreign Military Installations, 306.

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the People’s Republic of China struggled to create new political and economic forms over the course of its first three decades. (. . .) A Hong Kong identity was created in the 1970s. It was built upon the conditions surrounding the creation of the vibrant manufacturing economy that emerged in the 1950s and 1960s, an important feature of which was that it constantly recast itself.730 Under the lease, China accepted the nature of British activity in Hong Kong, but by the time negotiations began toward the reversion of rights, China was deriving substantial benefits from it. Hong Kong’s place in the global economy had become strongly established by then, and China recognized the value this could have for its overall economy—and by extension its strength as a state at a time when it faced the rise of potential rivals—notably Japan, South Korea and India—as regional powers, and was continuing to press its claim to sovereignty over Taiwan. As T.E. Vadney observed, It was hardly in China’s interest to jeopardize Hong Kong’s role as one of the world’s great entrepots and the gateway to the southern economic zones (. . .) while the successful integration of Hong Kong as a special administrative region might provide a model for the return of Taipei.731 At the same time, a lease for an extended period can create difficulties for the lessor in reintegrating the leased area’s population. While this may be no different from the situation faced by a state that acquires another’s territory through cession, the population of the formerly leased area has the peculiarity of emanating from the same state that is reintegrating it, but with social and cultural differences accrued during the period of the lease. The intent of British authorities at the time they leased the New Territories in 1898 was for its inhabitants to become British for the period of the lease, and then revert (in a subsequent generation) to being Chinese. As stated at the time by the British government’s Law Officers, who considered the lease to be a standard cession but with a temporary character:

730   Graham E. Johnson, “Degrees of Dependency, Degrees of Interdependency: Hong Kong’s Changing Links to the Mainland and the World,” in Hong Kong Reintegrating with China: Political, Cultural and Social Dimensions, ed. Pui-tak Lee (Hong Kong: Hong Kong University Press, 2001), 83. 731  T.E. Vadney, The World Since 1945, 3rd ed. (London: Penguin, 1998), 500.

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We have (. . .) the honour to report: (T) That the persons inhabiting the new territory who were before the cession Chinese Subjects are to be regarded as British Subjects for all purposes as from the 16th April last. Cession of territory effects a change in the nationality of the inhabitants. This territory has been ceded; it is British territory, and the fact that the cession is for a term of years only does not affect the conclusion that by the cession the inhabitants become for that term British Subjects. (2) Persons born in the territory during the continuance of the Lease must be regarded as British Subjects.732 The administrative transition of Hong Kong’s mostly ethnic Chinese population to Chinese nationality after the lease expired was relatively seamless as China had already considered the residents of Chinese descent to be Chinese nationals while the lease was in force. The “one country, two systems” policy elaborated in the 1984 agreement offered a framework for their reintegration that was acceptable to the Chinese and British governments, although the population’s divergence with Chinese systems and values during British rule made this aspect of reintegration problematic. Resistance to Chinese efforts to display aspects of its resumed authority led to mass protests among Hong Kong inhabitants on a number of occasions, creating challenges to Beijing’s control that led it to withdraw a proposed state security law in 2003 and to negotiate with protestors in 2014.733 This echoes Perrinjaquet’s warning of what can happen when a lessor reassumes control: The populations of a leased territory would come under the authority of a State for which they no longer had sympathies, with which the national ties had been broken for perhaps thirty or fifty years: never would the lessor state nor the populations of the leased territory consent peacefully 732  Letter from the Law Officers to the Colonial Office, Sept. 27, 1899, cited in Steve Tsang, ed., Government and Politics: A Documentary History of Hong Kong (Hong Kong: Hong Kong University Press, 1995), 37. 733  See, e.g., Alvin Y. So, “Social Conflict in Hong Kong after 1997: The Emergence of a Postmodern Mode of Social Movements?” in China’s Hong Kong Transformed: Retrospect and Prospects Beyond the First Decade, ed. Ming K. Chan (Hong Kong: City University of Hong Kong Press, 2008), 240–44; Malcolm Cook, “China’s Hong Kong: One Country, Two Incompatible Systems,” China Spectator, Oct. 3, 2014, http://www.businessspectator.com .au/article/2014/10/3/china/chinas-hong-kong-one-country-two-incompatible-systems, accessed Oct. 14, 2014.

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and without constraints to the destruction of the work that was created, to the dismemberment of the homeland.734 The end of a lease also can be followed by other consequences for a lessor state if its security or economic activity was enhanced by the lessee’s exercise of the rights allocated to it. In the case of military bases, both consequences may be felt together. During the failed U.S. effort to seek a prolongation of its leases of military bases in the Philippines in 1991, U.S. Ambassador Nicholas Platt had argued that they contributed to regional stability and had become an integral part of the Philippine economic structure, adding about 28 million pesos a day to the local economy, employing about 68,500 Filipinos, and benefiting hundreds of thousands of others.735 Indeed, the impact of the U.S. departure in subsequent years contributed to the will to have a new lease agreement in 2014 in which the United States could resume its military presence in the Philippines, which was negotiated amid increasing concerns in the Philippines about China’s conduct regarding maritime areas claimed by both states. As one news report stated, Manila would welcome the return of a U.S. military presence to deter China’s ambitions in the South China Sea, and to help provide humanitarian assistance during natural disasters. “It will not stop China from its bullying tactics, but it will become more cautious and might exercise self-restraint due to the U.S. presence,” Rommel Banlaoi, an analyst at Philippine Institute of Peace, Violence and Terrorism Research, said.736 When a state engages in a lease of territory, either as lessor or lessee, it embarks on a route that can at times be almost impossible to predict from the standpoint of its future relationship with that territory. The determining factors are numerous and highly varied, some arising from the lease and 734  Perrinjaquet, Des cessions temporaires, 371. 735  Nicholas Platt, Foreword, in United States Information Service, Background on the Bases: American Military Facilities in the Philippines, 2nd ed., (Manila: United States Information Service, 1988), cited in Donald Kirk, Looted: The Philippines after the Bases (Basingstoke: Macmillan, 1998), 11. 736  Manuel Mogato, “Philippines Offers U.S. Forces Access to Military Bases,” Reuters, Mar. 14, 2014.

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others from f­actors that the lease may take into account but that may exist on the territory in any case, such as its population or the nature of economic activity there. Any of these can be critical, either individually or in combination with others. The lessor state must be prepared for the eventuality that even if it recovers its rights on the territory, the area may be permanently different from the rest of the area under its sovereignty. Moreover, while changes that occur within a leased territory may reflect the state with the predominance of rights there, they also may cause the zone to have characteristics that differ from those manifest elsewhere on the territory of either party to the lease. These can become evident while the lease is in effect and may influence when and how it terminates, after which they may set the tone for how the territory is brought into the sovereign fold of the state that exercises full rights there.

CHAPTER 10

War and Occupation

Leased Territories in War

War is intricately linked to territory, which is both the object of contested control and the location where the fight for that control takes place. Advanced technologies and strategies do not alter the fact that war is, at its core, a territorial activity; one specialist in electronic warfare observes that this modern technique cannot by itself eliminate an adversary; without physical combat as well, “cyberwar cannot lead to the occupation of territory.” When a state is at war, the whole of its sovereign territory is subject to potential involvement—as a location for a battle, as a site from which to launch weapons or as a place that may be attacked. Although international law specifies what is legal and what is not in terms of armed conflict in general and “legitimate targets” in particular, a state may use any part of its sovereign territory as a site for military and other strategic installations, and it might occur that some or all of this territory is seized by an adversary and occupied militarily. A territory leased between states can be subject to the same activity and potential consequences, even when the range of rights allocated by the arrangement is limited. If the development of international law remains largely incomplete with respect to leased territories, it is even more so regarding situations that arise from their existence, including those involving their role in wartime. Yet leased zones sometimes are critical to the future of states because of that role: many territories today are leased specifically for the purpose of hosting military facilities of the lessee state, and by implication for assuming an active role in the event of war. Many more have economic or other objectives that are strategically important to the lessee. The consideration received by the lessor may be equally strategic, whether in financial terms or otherwise, and may have direct military benefits for it. In the Diego Garcia lease, the United Kingdom, as lessor, obtained favorable terms for acquiring military equipment from the lessee, the United States; while the 2014 agreement to revive the U.S. leasing of military bases in the Philippines was deemed attractive to the lessor for purposes of enhancing its own security. In essence, a lease of territory can support the viability or enhancement of the states involved, even if the lessee normally is the greater beneficiary by this measure as the leased zone becomes a source of additional strength

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that it cannot derive from the geographic space where it is sovereign. As noted earlier, a leased zone often is viewed as being part of the lessee’s territory, even if it does not enjoy de jure status as such. In the case of a comprehensive lease where the lessee is the de facto sovereign, there may no operational distinction between a state’s sovereign territory and a leased area that is under its control. At the same time, the leased zone remains part of the lessor state, even if its sovereign status is in name only. This can make a leased territory particularly susceptible to the effects of war because it can be drawn into a military conflict in which either party to the lease is a participant. The potential role that a lease of territory can play in wartime became evident to international law publicists when the European states concluded their leases with China in 1898, as these were made in the context of maintaining a power relationship and had an obvious military component. Indeed, it took only a few years before this became an acute source of international legal issues through the Russo-Japanese War of 1904–05, in which Japan defeated Russia and, in the process of doing so, seized Kwantung, the territory that Russia had leased in China. As Lawrence described in 1904, after the Japanese attacked the zone and laid siege to it before finally capturing it: It is worthy of remark that, though [Russia] denounced Japan’s first attempt on Port Arthur as treacherous, she never maintained that the place, and the leased territory generally, were free from attack, as being under the sovereignty of China and therefore neutral ground. There can be no doubt that the whole world looks on Port Arthur and Dalny as Russian territory; and unless the whole world is wrong, Russia was right in filling the district and its waters with troops and warships, and Japan was right in doing her utmost to destroy or capture them.737 The Japanese seizure of Chinese sovereign territory leased by Russia occurred without regard to China’s neutral stance in the war, and made it evident that a leased zone is not necessarily rendered neutral in the eyes of a belligerent by the simple fact of one party to the lease being uninvolved in the conflict. If anything, the military adversary of the belligerent party in a territorial lease may consider the other party to the lease, even though a non-belligerent, complicit with the belligerent by providing support to it through the arrangement (in the form of rights on the territory, if the lessor; and consideration, if the lessee). In this way, a lease might act as a conduit by which a conflict can spread to include a non-belligerent state that is the other party to the lease, even if 737  Lawrence, War and Neutrality in the Far East, 274.

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that state has no direct interest in the dispute. That did not happen in the case described here, as Japan treated China as neutral in other respects—but the episode prompted publicists to draw lessons from what occurred and apply them to other leases, as George Grafton Wilson did for Guantanamo Bay: It is evident that for purposes of war the responsibility for acts committed within the area must be either in the granting [lessor] or in the holding [lessee] State. If the responsibility is in the granting State, and that State is neutral, then the use of the area for a naval or coaling station would involve a failure to observe neutral obligations. If the responsibility is in the holding State, and that State is at war, the use of the station would be an act in the ordinary course of war, and the station would be liable to attack or to other treatment to which enemy territory might be liable. It is also evident that such treatment will be logical, as the agreements by which stations are granted look specially to a condition of war. The territory which is leased for a coaling or naval station gains no immunity from the consequences of war in which the lessee is engaged from the fact that the terms of the lease may specify that the sovereignty over the leased territory remains in the lessor. Practice in recent years has shown that, as in the case of Port Arthur leased by China, the lessor’s neutrality may be recognized even when the leased territory may be the scene of hostilities.738 In other words, a lease of territory can become a means through which the sovereign territory of a non-belligerent state can become a legitimate military target in wartime—a legal exception to the principle of territorial integrity— although Wilson observes that the lessor is aware of this when making the lease, suggesting its implicit acceptance of the risk. Why the lessor might do this may be related to the relative power relationship between the lessor and lessee states, the nature and amount of compensation received by the lessor or the protection it can expect to receive from the presence of a foreign military base on its territory. Whatever the reason, other international law publicists concur that when this type of situation exists it can become legally permissible in wartime for a belligerent to attack the sovereign territory of a state that is not involved in the conflict. Whether non-involvement in a conflict equals neutrality thus becomes a question when the state that is not a party to the war is a party to a territorial lease in which its counterparty is a belligerent. 738  U.S. Naval War College, International Law Situations with Solutions and Notes, 1912 (Washington: Government Printing Office, 1912), 96–97.

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This is closely tied to another question: whether the leased territory itself is to be considered a neutral zone if one party to the lease is engaged in war but the leased area itself is not directly involved in its war efforts. Richard Berridale Keith examined this in 1907, interestingly using the example of Cyprus, which was then still under lease to Great Britain from the Ottoman Empire: The question is sometimes raised as to the exact status of these territories in case of war. If England were at war it is argued that the island of Cyprus might be an enemy so far as England was concerned, and a neutral as regards Turkey, and vice versa. Similarly, with Bosnia and Herzegovina. There can hardly, however, be any real doubt as to the case. If England were at war her enemy could treat Cyprus as if it were part of English territory and seize Cypriot ships. If Turkey were at war England would never permit Cypriot ships to be seized, although they fly the Turkish flag, or permit Cyprus to be invaded. It is similar with Bosnia and Herzegovina, and there can still be less question in the cases of Crete, Kowloon, WeiHai-Wei, and Kiao-Chau, in all of which Turkey or China possesses a nominal sovereignty.739 This, of course, became irrelevant for Cyprus less than a decade later when the lessor and lessee of the island opposed each other during the first World War, leading to the British annexation of the island from Turkey—a situation that, considered in a generic sense, appears to have been foreseen only by Wilson among publicists of the time: It is conceivable that a State which has made a lease of a part of its territory to a foreign State might go to war with the State which held the lease (. . .).740 Cyprus showed how a leased territory can be readily subject to a change of title and sovereignty if the parties to the lease are at war with each other; the fact that the lessee state already may control the territory and have welldeveloped institutions there arguably makes a leased area particularly vulnerable to such an outcome. This stands in contrast to the Japanese takeover of Kwantung. Given China’s neutral stance in the Russo-Japanese War, Japan did not seek to annex the area; 739  Richard Berriedale Keith, The Theory of State Succession with Special Reference to English and Colonial Law (London: Waterlow and Sons, 1907), 89–90. 740  U.S. Naval War College, International Law Situations, 1912, 105.

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doing so would have certainly provoked China’s ire, although as an option it could not be ruled out as it was obvious at the time that China was in no position to contest such a move militarily. Japan simply occupied the zone upon taking it over, then formally assumed Russia’s role as lessee through the Treaty of Portsmouth in 1905. The Soviet Union’s capture of Kwantung from Japan in 1945, again a wartime event, led to a revised lease by China to the U.S.S.R. that covered Dalien, within the originally leased zone. The divergent treatment of Cyprus and Kwantung by the capturing states reflected the different situations of a lessor as a belligerent vis-à-vis the lessee and a lessor that is neutral in a war between the lessee and a third state, although cases of this nature have not been sufficiently frequent to establish firm patterns of conduct. Indeed, there are no universally accepted criteria for determining a lessor’s neutrality. Wilson sought to develop the notion by commenting on the relevance of two factors—the use that the lessor makes of the territory, which is a function of the lease’s objective; and the circumstances in which the arrangement was made: In the event of [the lessor’s] neutrality, (. . .) the leased territory under the jurisdiction of the belligerent would, according to its character, be liable to the consequences of war. If the leased territory was merely for the purpose of a scientific experiment station, a hospital, or lighthouse, it would be liable to treatment as such; if a naval base or fortification, its liability would correspond. If the lease was made in good faith and not during a war, with the purpose of furnishing the belligerent with a base, the lessor State would not be violating any obligation.741 In the absence of an international consensus on criteria for determining the neutrality of a lessor state, or of a leased territory, when the lessee state is at war, the operative determination becomes that of the lessee’s adversary as the party whose acts—attacking, occupying or annexing—may dictate the fate of the leased territory. Its determination may be purely functional and depend on its perception of whether the leased territory is providing material or other relevant support to the lessee as its enemy, regardless of how innocuous the lessee’s rights or activities on the territory might have been at the time the lease was created (assuming it was in peacetime), or how they may appear to actors that are not involved in the conflict.

741  Ibid., 105.

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Váli notes the persistent difficulty that has existed in trying to reconcile the notion of neutrality in international law with the situations arising from international servitudes: It has been demonstrated that some of these rights may assume in time of war a most strategical importance. Should the grantee power [lessee] be involved in a war, is it justified in utilizing a previously granted right of transit for the dispatch of troops and ammunition, or in using for the same purpose its national zone in the harbour of a neutral State? This question has now assumed a tremendous importance owing to the military bases dispersed by some powers all over the world. What would be the legal position as far as neutrality is concerned if either the grantor power (territorial state) alone, or the grantee power (state maintaining a base in foreign territory) alone, is involved in hostilities? The question may be put in a general way, whether a State burdened with an international servitude may continue to fulfill obligations resulting from the servitude which offer great military advantages to the grantee State without a breach of its duties as a neutral. At present no definitive answer is deducible from the practice of States. Nevertheless, whether the answer be in the positive or in the negative, it would involve the establishment of a special set of rules in connection with rights in foreign territory. The answer can be one of three alternatives: first, that the grantor State is freed from its obligations as a neutral as far as they are contrary to its previous obligations of a territorial character; secondly, that the grantor State is freed from its obligations resulting from the right in foreign territory during the time of war as far as they are contradictory to the obligations of neutrality; or, thirdly, that the opponent of the grantee State is justified in undertaking military action against the troops or ammunition depots of the enemy even in the territory of the neutral State, without a breach of its obligations toward neutrals. Whatever the solution of this question may be, it has been shown that rights in foreign territory require to be regulated in time of war in a manner different from that accepted in connection with ordinary conventional relationships.742 As a leased territory is subject to acts of war when either party is engaged in a military conflict with a third party, one also must consider the impact on 742  Váli, Servitudes of International Law, 323–24.

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activities in the leased zone. If the lessor is at war and the lessee is not, the war may threaten the lessee’s activities on the territory and the benefits it derives from exercising its rights there. If the territory is occupied or annexed by the lessor’s adversary, the future of the lease itself may be in doubt. In cases of territorial succession through war, a lessor state that loses sovereignty over a leased zone to an adversary that annexes it no longer is in a position to exercise rights or carry out obligations to the lessee in that area, even if it continues to exist as a state with ongoing rights and obligations more generally. If it is the lessee that is at war, any action taken by its adversary against the leased territory short of seizing and annexing it may affect the lessor as well, so long as the lessor still exercises rights on the territory. Acts by the lessee’s enemy also may affect the territory’s physical assets—destroying a canal, for instance—in a way that can prejudice the condition of the territory at the time the lease terminates and the lessee’s rights revert to the lessor. One also cannot rule out the possibility that a leased territory itself may become a belligerent in a military conflict in which neither the lessor nor the lessee is actively, or at least overtly, involved. This cannot occur without the leased territory having a sufficient degree of governing autonomy plus the means to carry out military activity, but each of these elements has been present separately in different leased territories—and it is possible that in the case of Sevastopol, both were present simultaneously for a brief time prior to Russia’s annexation of Crimea in 2014. Military conflicts between states often result from the escalation of political or economic disputes that are not resolved through diplomacy or recourse to established legal procedures for conflict resolution, so it should not be ignored that Hong Kong, while a leased territory and member of the GATT/WTO, was involved in several trade disputes (these were, in the event, settled through the organization’s procedures).743 Naturally, the autonomous involvement of a leased territory in a dispute at any level with a third state can draw the lessor or lessee, or both, into conflict with the third state and complicate relations among the actors in the lease itself—not only those between one or both parties to the lease on one hand and the governing body of the leased zone on the other, but also between the 743  United States—Import Prohibition of Certain Shrimp and Shrimp Products (The ShrimpTurtle Case), WTO Cases 58/61, Nov. 6, 1998; Turkey—Restrictions on Imports of Textile and Clothing Products (Turkey Quantitative Restrictions (Quota) Case), WTO Dispute DS34, July 6, 2001; and United States—Sections 301–310 of the Trade Act 1974 (U.S. Section 301 Case), WTO Dispute DS152, Jan. 27, 2000 (see David Little, “WTO Dispute Resolution System: Does It Work?—WTO Dispute Settlement: A Hong Kong Perspective” (paper presented at the Inter-Pacific Bar Association Conference, Vancouver, 2000)).

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parties to the lease themselves if, for example, the lessor is drawn into the conflict with the third state because of acts that are indirectly attributable to the lessee through the government it installed in the leased territory.

Leased Territory as Occupied Territory

As the lessee typically is the stronger state when an imbalance of power exists between parties to a lease, one might ask whether a leased territory might at times be considered an occupied territory. This question can be especially pertinent if the lessee uses the leased zone to maintain a military base or has at least some military presence there, as it may seem that the only difference between a territory that is leased and one that is occupied is that the former results from an agreement and the latter is imposed. From the standpoint of international law, distinguishing between the two is important because it determines whether treaty law or the law of occupation is the applicable regime. C. Walter Young, writing about Russia’s lease of Kwantung in 1898, argues that the area could not be considered occupied either militarily or in the sense of original occupation: The use of the term “occupied territory” to describe the Kwantung lease is faulty, principally for two reasons: it tends to confuse the situation here under analysis with non-analogous situations; and it leads to the danger of presuming that rules of international law applicable to certain cases of occupation are likewise applicable to Kwantung. Occupation usually refers to military occupation of a territory in time of war, to temporary occupation of territory by one state to prevent external aggression or internal disturbance, and may thus relate to intervention, while it may also describe actual control of a territory, as of hitherto unsettled or socalled “uncivilized” areas without the benefit of a contractual arrangement with the state or territory thus occupied. The case of Kwantung satisfies none of these descriptions. The status of Kwantung leased territory has been determined by an agreement between two sovereign states; the territory was already settled and in full possession of China before 1898; and it is evident that the juridical status of a belligerent state in occupation of a territory of another in time of war is quite different, and governed by an entirely distinct body of rules of international law, from that which exists vis-à-vis Kwantung.744 744  Young, The International Legal Status, 135.

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The conduct of states regarding territorial leases has borne this out, notably with Kwantung itself: it did become an occupied territory when Japan seized the area from Russia in the Russo-Japanese War of 1904–05, but this status lasted only briefly as it reverted to a territory under lease through the Treaty of Portsmouth, in which Russia gave over its rights in the lease to Japan with the consent of China, a bystander in the war but the lessor in the arrangement.745 The question of occupation also arises when a lessee that is permitted to maintain a military base on the leased territory does not relinquish its rights to the lessor when the latter deems the lessee’s presence no longer desirable, or when the lease expires. This may be due to a sharp deterioration in bilateral relations while the lease is in effect, or to the lessee’s unilateral prolongation of its presence in the leased zone, without annexing it, after the lease’s termination date—the equivalent to overstaying its welcome, or squatting. In each case, the resulting situation might appear consistent with occupied territory in the sense that one state would be exercising control of part of another state’s sovereign territory through a military presence against the wishes of the other state. The first of these situations is illustrated by the Guantanamo Bay lease, which Cuba has denounced on numerous occasions since its 1959 revolution but which the United States maintains is a valid agreement under the pacta sunt servanda principle.746 Although Cuba has not acted to terminate the lease unilaterally through any means that might be afforded by international law, its assertion that Guantanamo Bay is “illegally occupied territory”747 draws support from certain facts that are suggestive of occupation: a hostile military presence, preparations for war that have occurred while the lease has been in effect and the laying of landmines on both sides of the fence separating the leased territory from the rest of the island.748 Even the legal definition of occupied territory contained in the Hague Regulations appears to fit:

745  Treaty of Portsmouth, Sept. 5, 1905, art. V. 746  Memo from Leonard C. Meeker, Deputy Legal Adviser, Department of State, to Dean Rusk, Secretary of State. Feb. 2, 1962, National Security Archive, Cuban Missile Crisis Collection, Document CC00160, ProQuest LLC and The National Security Archive. 747  Cuba Ministry of Foreign Relations, “Guantanamo Bay Naval Base: Statement by the Government of Cuba to the National and International Public Opinion,” Jan. 11, 2002, citing the Cuban government’s Pledge of Baraguá, Feb. 19, 2000, http://anterior.cubaminrex .cu/English/Guantanamo/Articulos/Prision/02-01-11-Government-Cuba.html, accessed Oct. 29, 2014. 748  The United States removed the mines from its side of the fence in the 1990s (Rhem, “From Mayberry to Metropolis”).

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Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.749 The Hague Regulations involve a presumption that the hostile forces obtain this territorial authority through acts in wartime, although this is not a stated requirement nor is it explicit. At Guantanamo Bay, the U.S. forces were not hostile at the time their authority was conferred through the lease and became hostile in situ as U.S.-Cuban relations crumbled more than half a century later.750 It sometimes is argued, for example by Charles de Visscher, that a situation of occupation is recognizable by the fact that constitutes it,751 indicating that at least some publicists view the observed result as sufficient to establish that a territory is occupied regardless of the means by which it came about. At the same time, it can be argued that the situation at Guantanamo Bay is not one of occupation because because the U.S. presence there, while being military, is consistent with the type of presence agreed in the lease and inconsistent with key requirements of occupation; for example, the Hague Regulations require the occupier to maintain the sovereign state’s legal system and other institutions in the occupied zone, but the terms of the lease agreement precludes Cuba’s legal system and other institutions from existing at Guantanamo Bay and they have not done so since the lease took effect in 1903. The factor of Cuba’s consent to the U.S. use of Guantanamo Bay as a military site in the lease, and its reconfirmation of this consent in the 1934 Treaty of Relations,752 cannot be discounted in this respect. Vaios Koutroulis observes that in the case of Democratic Republic of the Congo v. Uganda, which involved Ugandan troops on Congolese territory after D.R. Congo had withdrawn its previous consent to their presence, the International Court of Justice refrained from concluding that the withdrawal of consent ipso facto caused a situation of occupation to exist.753 While the court did determine that Uganda had occu-

749  Convention (IV) respecting the Laws and Customs of War on Land (“Hague Regulations”), Oct. 18, 1907, annex, art 42, 36 Stat. 2277, 205 Consol. T.S. 277. 750  Strauss, The Leasing of Guantanamo Bay, 88–89. 751  Charles de Visscher, “L’Occupation de guerre,” The Law Quarterly Review 34 (1918), 74. 752  Treaty of Relations, May 29, 1934, art. III. 753  Vaios Koutroulis, Le début et la fin de l’application du droit de l’occupation (Paris: Pedone, 2010), 87.

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pied part of D.R. Congo, it based its finding on an examination of the situation vis-à-vis the Hague Regulations’ criteria.754 Russia’s lease of the Sevastopol naval port from Ukraine had threatened to become an example of the second situation noted above—a state’s military forces overstaying their welcome on the lessor state’s territory after the end of a lease, when the lessor no longer desired their presence. While this was averted, its potential to have occurred makes the issue one that merits consideration with respect to the question of occupation. Prior to 2010, Ukraine’s government had stated that it would not prolong the lease beyond 2017, when the 20-year term would have expired, and was adamant that Russia’s fleet must leave Sevastopol at that point. Russia had been considering alternatives in the event the lease was not renewed755 but was pressing for its prolongation because Sevastopol had both physical and strategic advantages that it sought to maintain,756 and it indicated that it did not intend to leave despite Ukraine’s opposition. As related by Sergiy Glebov at the time: Objectively, Ukraine remains part of the Russian sphere of influence, which is how the Kremlin wants it to remain. This was reaffirmed in July 2007 by Admiral Igor Kasatonov, the first deputy of the Russian navy from 1992–99, when he said, “Sevastopol will remain the Black Sea Fleet’s main base even after 2017. In my opinion this is beyond doubt, even although the lease for Sevastopol runs out that year. The contract will be extended. The Black Sea Fleet will remain in Sevastopol for as long as Russia requires it.” Similar statements are being made by many Russians, despite Ukraine having already made it clear it has decided not to extend the lease beyond 2017; indeed, in 2007 an exasperated Volodymyr Ohryzko, Ukraine’s deputy foreign minister, said, “I have lost count of how many times the president of Ukraine, the Ukrainian foreign minister, the

754  Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda), 2005 I.C.J. 168 (Dec. 19), para. 172–80. 755  “Russia Eyes Mediterranean as Alternative to Sevastopol Naval Base,” RIA Novosti, Sept. 15, 2008; Kathrin Hille, “Ukrainian Port is Key to Russia’s Naval Power,” Financial Times, Feb. 27, 2014. 756  John C.K. Daly, “Militarily Defining Post-Soviet Space,” International Relations and Security Network, Swiss Federal Institute of Technology, May 3, 2010, http://www.isn.ethz .ch/Digital-Library/Articles/Detail/?lng=en&id=115693, accessed Oct. 29, 2014.

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­ inister of defence and other senior officials with responsibility for this m matter have said there will be no extension of the lease beyond 2017.”757 In 2010 a new government was elected in Ukraine that favored renewing the lease, and an agreement that year prolonged the arrangement for a further 25 years after 2017. Thus, the Russian overstay did not occur, but had it done so in the absence of an extension agreement it would have emulated occupied territory and arguably could have been considered as such. James Crawford, in the Second Report on State Responsibility, notes that: consent to a visiting force on the territory of a State may be qualified (e.g., by a requirement to pay rental for the use of facilities) but the nonpayment of the rental, while it would no doubt be wrongful in itself and might have further legal consequences, would not automatically transform the visiting force into an army of occupation.758 The rent in this example would constitute part of a broader situation of agreed consent. By noting that non-payment would not “automatically” cause occupation to exist, Crawford implies that it might do so nonetheless when other factors are considered—such as whether the rent was material or otherwise of particular importance to the overall consent. What matters, however, is that the consent must be broader for the breach of an element of it to not constitute occupation. In the case of Sevastopol, the expiration of the lease in 2017 without prolongation would have removed the agreed consent as a factor in the presence of Russian forces in the territory.

757  Sergiy Glebov, “The Russian Black Sea Fleet and Ukraine’s Security Strategy: Agenda 2017,” in Military Bases: Historical Perspectives, Contemporary Challenges, ed. Luis Rodrigues and Sergiy Glebov (Amsterdam: IOS Press, 2009), 184. 758  James Crawford, Second Report on State Responsibility—Addendum, International Law Commission, U.N. General Assembly Doc. A/CN.4/498/Add.2, Apr. 30, 1999, 14, para. 240 (d).

CHAPTER 11

Modern Trends in Territorial Leasing

Involvement of Non-State Actors

The latter part of the 20th century was marked by a number of intertwined economic trends that included the growth of international trade, the liberalization of capital flows, the globalization of business activity and efforts by virtually all nations to enhance their domestic strength and international standing through economic development. Investments from abroad became increasingly sought for these purposes, and many states came to treat aspects of their sovereignty as assignable assets that could be used in attracting this form of external participation. The resulting arrangements often would entail the granting of rights on territory to foreign entities, emulating in structure and at times in impact the bilateral leases of territory that states make directly between themselves. Sometimes called leases in their own right, they have many similarities with the historic leases of territory made by state-chartered companies for colonization or economic exploitation, although the rights involved are often more limited. These arrangements are not based on state-to-state leases as models, but in effect they constitute a version of the practice that reflects the adaptation of states’ territorial governance to the modern political and economic context. The lessor in this type of arrangement typically is the state, while the lessee may be a non-state actor or a wholly or partially state-owned enterprise with a distinct legal personality that can place it—and its activities on the territory—outside the realm of public international law to a greater or lesser extent. Adding complexity to the phenomenon is the trend toward privatizing state activities that has spread internationally since the 1980s, as the boundary between the public sector and the private sector has never been well-defined in a legal sense, nor has it been conceptualized uniformly by states. The result is that an enormous number of arrangements now exist around the world in which states have granted varying degrees of territorial a­uthority—“rights inherent in (. . .) sovereignty,” as described by Nico Schrijver—to foreign private persons, private or state-owned companies or consortia.759 These arrangements also can have a completely private legal 759  Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press, 2008), 174–75.

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c­ haracter in which both the lessor and the lessee are private-sector entities that act on behalf of their respective states and in furtherance of state interests, and that may receive compensation or incentives from the states for doing so (this has occurred most notably with leases of foreign agricultural land for purposes such as enhancing the food security of the state where the investing party is based).760 These lease agreements frequently are made for the exploitation of a natural resource or farming and entail only the right to perform that activity in the territory it covers, but sometimes they involve a broader range of rights and on rare occasions the scope is so great as to approach de facto sovereignty on the territory covered. Most are made within the municipal legal system of the state where the territory is located; even when a state is the direct lessee, it steps out of its role as an actor in public international law and engages in a territorial transaction governed by the lessor state’s municipal laws regarding property and contracts and subject to that state’s regulations regarding the activity carried out on the territory—even if the lessee retains certain international rights as a state such as sovereign immunities that apply throughout the territory of the lessor state, including in the zone covered by the arrangement.761 International law is not necessarily absent from these arrangements, ­however. Its application can depend on such factors as whether the non-state party has governmental authority and, if so, the application of rules of attribution to its conduct in that capacity.762 States also have international legal obligations pertaining to certain activities that occur on their territory regardless of whether it is the state or a private party that carries them out.763 In addition, judgments in cases involving contracts between states and non-state actors have brought international law to apply when the contracts are considered long-term development agreements, and agreements of this type sometimes include grants of territorial authority. Thus, one finds determinations such as that made by the arbitral tribunal in the Aramco Case: 760  E.g., tax benefits that South Korea offers to companies investing in foreign farmland (“South Korea to Encourage Farming Abroad,” Oryza Rice News, Apr. 8, 2009). 761  Verzijl, International Law in Historical Perspective, 397. 762  For discussions of this theme with references to cases, see, e.g., Materials on the Responsibility of States for Internationally Wrongful Acts, United Nations Legislative Series, Book 25, U.N. Doc. ST/LEG/SER.B/25 (New York: United Nations: 2012), 27–96; Michael Feit, “Responsibility of the State Under International Law for the Breach of Contract Committed by a State-Owned Entity” Berkeley Journal of International Law 28, No. 1 (2010), 142–77. 763  E.g., Outer Space Treaty, Jan. 27, 1967, art. VI.

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The Aramco Concession Agreement signed by the Government of Saudi Arabia and an American corporation has, because of its Parties and its ramifications, an international character.764 The logic behind this was explained more fully in reference to a later arbitral award in the Revere Copper Case:765 In such cases, the question of breach is not left to the determination of municipal courts applying municipal law. The reason for this is that such contracts, while not made between governments and therefore wholly international, are basically international in that they are entered into as part of a contemporary international process of economic development, particularly in the less developed countries. The very reason for their existence is that the private parties entering into such agreements and committing large amounts of capital over a long period of time require contractual guarantees for their security; governments of developing countries in turn are willing to provide such guarantees in order to promote much needed economic development. Moreover, while the agreements are entered into between governments and private parties, the governments of such parties are very much interested in such agreements and in promoting their conclusion. In this instance the government of the investor provided its own guarantee for the investment in addition to the contractual guarantee furnished by the foreign government.766 Although the Revere Copper Case did not involve a lease-like agreement (it pertained to an industrial investment in Jamaica), the judgment gave sharper focus to the role of international law in contracts between states and non-state entities. Those that do involve territorial authority and emulate leases vary widely in their provisions and terms in addition to the legal personalities of their participants. In view of their parallels with “classic” state-to-state leases, several aspects of the practice are briefly described below.

764  Aramco Case, 166. 765  Revere Copper and Brass, Inc. v. Overseas Private Investment Corp. (“Revere Copper Case”), 56 I.L.R. 258 (American Arbitration Association, 1978). 766  Mark Kantor, Michael D. Nolan and Karl P. Sauvant, ed., Reports of Overseas Private Investment Corporation Determinations (New York: Oxford University Press, 2011), 752–53.

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Oil and Other Natural Resource Leases

The rise of petroleum as a major international fuel during the 20th century can be attributed in large part to energy companies that obtained exclusive rights from states to engage in oil exploration and production in designated sections of the states’ territory under arrangements that usually had fixed durations and became known as concessions, licenses or leases.767 Initially, these arrangements sometimes “amounted to sovereignty over the resources and area in question,”768 although at other times the rights were limited to those relating to finding, producing and marketing the oil but “often covered an entire country and lasted several decades” and gave the party holding the rights full authority over the resource itself and its disposition.769 The extent to which states are direct actors in the exploitation of natural resources on their territory or divest such rights to non-state entities is a matter for municipal legal systems,770 whose authority stems from the universal acceptance of the notion that the sovereignty of a state extends to these ­resources.771 A series of U.N. General Assembly resolutions on permanent sovereignty over natural resources772 and the Charter of Economic Rights and Duties of States773 are among various United Nations instruments that affirm this. The Charter, for example, asserts that “(e)very State has, and shall freely exercise, 767  Yinka Omorogbe and Peter Oniemola, “Property Rights in Oil and Gas under Domanial Regimes,” in Property and the Law in Energy and Natural Resources, ed. Aileen McHarg, Barry Barton, Adrian Bradbrook and Lee Godden (Oxford: Oxford University Press, 2010), 125. “The terms ‘licence’ and ‘lease’ are often used interchangeably. Thus, a licence in one jurisdiction can confer the same rights as a lease in another jurisdiction. In some jurisdictions a lease gives more power to a lessee than does a licence” (ibid., 127). 768  Ibid., 122. 769  Ernest E. Smith, “From Concessions to Service Contracts,” Tulsa Law Journal 27, No. 4 (1991), 493. 770  Catherine Redgwell and Lavanya Rajamani, “Energy Underground: What’s International Law Got to Do With It?” in The Law of Energy Underground: Understanding New Developments in Subsurface Production, Transmission, and Storage, ed. Donald N. Zillman, Aileen McHarg, Lila Barrera-Hernandez and Adrian Bradbrook (Oxford: Oxford University Press, 2014), 118. 771  Gheorghe Elian, The Principle of Sovereignty over Natural Resources, trans. Andrei Bantaş (Alphen aan den Rijn, Netherlands: Sijthoff and Noordhoff, 1979), 11–13. 772  U.N.G.A. Res. 1803 (XVII), Dec. 14, 1962; U.N.G.A. Res. 2158 (XXI), Nov. 25, 1966; U.N.G.A. Res. 2386 (XXIII), Nov. 19, 1968; U.N.G.A. Res. 2692 (XXV), Dec. 11, 1970; U.N.G.A. Res. 3016 (XXVII), Dec. 18, 1972; U.N.G.A. Res. 3171 (XXVIII), Dec. 17, 1973. 773  U.N.G.A. Res. 3281 (XXIX), Dec. 12, 1974 (“Charter of Economic Rights and Duties of States”).

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full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities,”774 and, as Richard B. Bilder observes, This rule is now so strongly established that territorial sovereignty and sovereignty over resources present within a nation’s territory usually are linked inseparably in peoples’ minds.775 As this notion became firmly embedded in international law, the leases granted by states expanded in breadth to encompass other mineral and energy resources while at the same time they became increasingly restrictive in terms of the scope of rights allocated. Current leases generally cover smaller areas— known as “blocks” when the resource is oil or natural gas—than many earlier leases, and the range of rights allocated by them is narrower; a lessee may have exploration rights while production rights are granted in a separate lease, possibly to a different lessee. Despite this, the zones they cover remain large enough, and the range of rights and other provisions attractive enough, for states to secure the outside investments that may be necessary for developing these resources.776 The technological advances that have allowed natural resources to be produced from locations where it was previously impossible or uneconomic have led a number of coastal states to conclude leases in which rights are granted in their exclusive economic zones in addition to any leases that cover parts of the territory where they exercise full sovereignty. Combined with the reduction in size of leased blocks and the narrowing of rights granted in the leases, this has led to a progressively greater number of these arrangements being concluded between states and outside actors. The exploitation of natural resources through this practice may entail a lessor that is comprised of more than one state. Areas where resources exist or are likely to be found can become places where sovereignty is contested between neighboring states, and on occasion these disputes have been settled through agreements in which both states jointly exercise rights in these locations, either equally or through a proportional formula. In one such arrangement, Saudi Arabia and Sudan agreed in 1974 to create a “Common Zone” in part of the Red Sea where minerals had been found; both states equally share 774  Ibid., art. 2, para. 1. 775  Richard B. Bilder, “International Law and Natural Resource Policies,” Natural Resources Journal 20 (1980), 453–54. 776  Smith, “From Concessions to Service Contracts,” 505–06.

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sovereign rights to the resources and a joint commission has the authority to grant concessions for producing the minerals.777 In another case, a 1976 treaty between Great Britain and Norway declared the Frigg natural gas field in the North Sea “shall be exploited as a single unit” in which the lessees have obligations toward both states.778

The OTRAG Lease

A case in which a state allocated to a non-state entity virtually all rights comprising de facto sovereignty on part of its territory occurred in 1976 with Zaire as the lessor and a German private-sector company, Orbital Transport- und Raketen-Aktiengesellschaft (OTRAG), as the lessee. At the time, Zaire faced a dire financial situation with heavy debts, social turmoil and widespread starvation among its population, and there was little prospect of a near-term solution as prices of its main export, copper, were depressed on the world market.779 OTRAG, established to develop and launch rockets for commercial use, sought rights on Zaire’s territory with the objective of using the area for testing and launching facilities. Zaire’s geographic location, straddling the equator, was favorable for launches that would put satellites into a geostationary orbit with minimal maneuvering,780 and the state was eager to host Africa’s first rocket launching site.781 The lease, initially secret but later confirmed by Zaire after press reports about it emerged, “has all the forms of an international commitment without 777  Albert E. Utton and Paul D. McHugh, “On an Institutional Arrangement for Developing Oil and Gas in the Gulf of Mexico,” Natural Resources Journal 26 (1986), 729, citing Agreement Relating to the Joint Exploitation of the Natural Resources of the Sea-Bed and Sub-Soil of the Red Sea in the Common Zone, May 16, 1974, Sudan-Saudi Arabia, in United Nations, National Legislation and Treaties Relating to the Law of the Sea, (New York: United Nations, 1976), 452. 778  Ibid., 370, citing Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, May 10, 1976, U.K.-Nor., 1098 U.N.T.S. 3, art. 1. 779  Kallu Kalamiya, “Rape of Sovereignty: OTRAG in Zaire,” Review of African Political Economy, No. 14 (1979), 19–20. 780  Bruno Pattan, Launch Systems: Principles and Technologies (New York: Chapman & Hall, 1993), 99. 781  Stanley Cohn, “What’s Going Up in Zaire? OTRAG’s Rocket Base in Shaba,” Munger Africana Library Notes, No. 49 (Pasadena: California Institute of Technology, 1979), 5–6.

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being an international treaty,”782 and at least two successive texts existed. The first agreement was concluded in 1976 and made retroactive to 1975,783 allowing Zaire to obtain the annual rent for that year, and the second agreement, apparently similar in all main respects, was agreed in 1978.784 The lease’s text defined the territory by describing the geographic coordinates of its boundaries, and while its size has been subject to various estimates they are all indicate a large area, the most credible being about 100,000 square kilometers. The lease assigned to OTRAG the right to “exclusive”785 and “complete”786 use of the territory “without any restriction”787 until the end of 2000, after which the arrangement would have automatic 10-year renewals unless either party decided to terminate it.788 The lease gave OTRAG the right to determine who may be allowed within the territory and to expel its existing inhabitants, with Zaire being “compelled, should O.T.R.A.G. so request, to evacuate from the territory all other persons and keep them out of the territory.”789 The lease included an annual rent of 25 million Zaires ($12.5 million at the time) to be paid by OTRAG to Zaire until the launch of the first commercial rocket,790 and upon receipt of payment for that launch a new rent would be established by common agreement.791 Additional compensation would take the form of infrastructure development792 and a discount on the launching of a satellite for Zaire.793 Other provisions in the arrangement obliged Zaire to provide protection for the leased territory,794 and obliged OTRAG to not interfere with Zaire’s

782  Gundolf Fahl, “Note sur le contrat du 20 octobre 1978 entre la République de Zaïre et l’OTRAG,” Annuaire française de droit international 24 (1978), 921. 783  Contract Entered Between the Zaire Republic and the O.T.R.A.G. (Orbital Transport- und Raketen-Aktiengesellschaft) Regarding the Complete Tenure of a Territory (“OTRAG Lease”), Mar. 26, 1976, trans., in Cohn, “What’s Going Up in Zaire?” 20–27. The agreement had a retroactive effective date of Dec. 6, 1975 (ibid., art. VIII). 784  Fahl, “Note sur le contrat du 20 octobre 1978,” 920. 785  OTRAG Lease, art. VI, para. 1. 786  Ibid., art. I, para. 1. 787  Ibid., art. I, para. 2. 788  Ibid., art. VI, para. 1. 789  Ibid., art. III, para. 1, 2. 790  Ibid., art. V, para. 1. 791  Ibid., art. V, para. 2. 792  Ibid., art. I, para. 3. 793  Ibid., art. V, para. 6. 794  Ibid., art. III, para. 2.

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­security.795 Zaire’s municipal legal system would prevail in the zone but would not necessarily be applied as the result of exclusions specified by the lease: the area would be free of Zaire customs duties and taxes;796 and OTRAG personnel and their families were granted immunity from prosecution by Zaire for actions that occur in the exercise of their functions, although OTRAG was obliged to expel from the area anyone who violated Zaire’s laws.797 The lease was subject to international law through the nature of OTRAG’s activity in the territory, as it drew Zaire into having international responsibility through the Outer Space Treaty of 1967: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. (. . .)798 This was reinforced by the Convention on International Liability for Damage Caused by Objects Launched into Outer Space, which makes the launching state “absolutely liable” for damage from a space object elsewhere on earth or to aircraft in flight.799 As Gregory Townsend notes, “under regimes in which states retain ultimate supervisory functions, states remain responsible for all acts of persons.”800 The OTRAG lease was controversial for its nature, its objective and its provisions, and it aroused suspicions in the Soviet Union that activities on the territory could have purposes other than peaceful ones. OTRAG denied any military intent and the West German government denied any involvement with the company,801 but when it appeared that OTRAG might launch a surveillance 795  Ibid., art. II, para. 1. 796  Ibid., art. II, para. 1 (2.3, 2.4). 797  Ibid., art. II, para. 2 (2.5). The lease did not specify a process for establishing that a violation has occurred. 798  Outer Space Treaty, Jan. 27, 1967, art. VI. 799  Convention on International Liability for Damage caused by Space Objects, Mar. 29, 1972, art. II. 800  Gregory Townsend, “State Responsibility for Acts of De Facto Agents,” Arizona Journal of International and Comparative Law 14, No. 3 (1997), 677. 801  Cohn, “What’s Going Up in Zaire?” 12.

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s­ atellite for Zaire “the Soviet Union applied such pressure on West Germany and Zaire that OTRAG was forced to cancel its agreement,”802 which it did in 1979.803

Leases of Foreign Agricultural Land

Many states routinely import large quantities of agricultural products, but their dependence on international markets was brought into question when global prices of food commodities surged higher in 2007–08 with unprecedented severity, and importing states sought alternate ways to obtain stable flows of foreign farm products with less price risk. One result was a movement to secure long-term rights on farmland abroad, and this rapidly developed into a large-scale international scramble to purchase or lease sometimes vast areas of foreign land.804 The trend, often derided as a “land grab,” nonetheless attracted the eager participation of many states where the land is located, particularly developing countries, because it offered a new source of investment income and held the promise of strengthening their agricultural sectors.805 The land subject to these arrangements is typically purchased or leased in accordance with the laws of the host nation, and when leases are involved they are generally for extended periods.806 Because these contracts tend to be of a private or partially private nature, even when the lessee or the lessor is a state, there is little transparency about their number and details, although in 2009 the U.N. special rapporteur on the right to food estimated that more 802  Arthur M. Dula, “Regulation of Private Commercial Space Activities,” Jurimetrics Journal 23, No. 2 (1983), 176. 803  Jean-François Poncet, response to question from Louis Odru, Mar. 24, 1980, “Débats parlementaires—Assemblée nationale: Reponses des Ministres aux questions ecrites,” Journal officiel de la République Française, Apr. 28, 1980, 1707. 804  Michael J. Strauss, “Redistribuer le territoire des états pour éviter les pénuries alimentaires,” in Enjeux Diplomatiques et Stratégiques 2010, ed. Pascal Chaigneau (Paris: Economica, 2010), 161. 805  Julian Lampietti, Nicholas Magnan, Sean Michaels, Alex McCalla, Maurice Saade and Nadim Khouri, Improving Food Security in Arab Countries (Washington: World Bank, 2009), 48–49. 806  Lorenzo Cotula, Sonja Vermeulen, Rebeca Leonard and James Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa (London: International Institute for Environment and Development, Food and Agriculture Organization and International Fund for Agricultural Development, 2009), 8–9, 74, 87.

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than 30 million hectares had become subject to such agreements.807 By 2012 the practice had spread further and was summed up as follows by an advisory group to the European Commission: Most typically land is rented for a long period of time (from 25 up to 99 years). In the target countries, the land is often in public ownership, and it can easily be rented by weakly controlled public authorities in countries with poorly developed democracy. The tenant can be a private person or company, a publicly controlled semi-private company or a public authority. It is difficult to find complete information on acquisitions of agricultural land, but several estimations indicate that the total area of international leases of agricultural land amounts up to 85 million hectares as of today. That is nearly three times the agricultural area of France.808 The size of the area covered by a lease agreement for foreign farmland often is quite substantial in order for the arrangement to be sufficiently worthwhile to the state that will import the crops or the goods produced from them. Fragmented land ownership can draw states to become involved in private transactions, for example by facilitating leases involving private parties through a bilateral agreement that acts as a framework, making the overall project subject to a mixture of treaty law and municipal law. This was the intent when Libya and Ukraine made a group of agreements in 2009, one of which involved the Libyan lease of 100,000 hectares of Ukrainian territory for growing wheat, for which the framework provided the means for financing the leases: (Ukrainian) officials and analysts said the agreement, which is still to be signed, faced many obstacles including the acquisition of leased land. (. . .) Farm Minister Yuri Melnyk said any deal was subject to finding attractive terms for landowners. “The land would have to be provided for leasing by its owners. Any investor, Ukrainian or Libyan, would have to produce a proposal of interest to an owner,” Melnyk told reporters.809

807  Mark Rice-Oxley, “G8: Does World Need New Rules on Food Security?” Christian Science Monitor, July 8, 2009. 808  Jyri Ollila, Background Note/Seminar Briefing Paper: Agricultural and Food Policies— New Conceptions on Food Security, European Commission Bureau of European Policy Advisers, Jan. 23, 2012, 7–8. 809  “Libya agrees deal to grow wheat in Ukraine,” Reuters, May 27, 2009.

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Although the parties involved may not be the states themselves, the states can be affected in much the same ways as when they conclude a bilateral lease of territory by treaty, as well as in other ways. In a positive sense, relations between the states may be enhanced through the benefits that each derives from the lease; besides increased food security or investment income, there can be the development of a large, stable and long-term bilateral trade flow. On the negative side, issues arising from the arrangement may become sources of conflict between the states involved, as might occur during a drought when water must be allocated; in a 2008 treaty between Libya and Mali by which Mali leased 100,000 hectares of farmland for 50 years to a company created by both states for purposes of growing crops for Libya, Mali was obliged to permit the Société Malibya agricole to use the quantity of water necessary, without restriction, for the project during the period from June to December of each year.810 Situations also may emerge that the lease does not anticipate; some of these may be apparent only in the long-term, such as a negative impact on the food security of the state where the territory is located.811 In the event of a military conflict between the state that benefits from using the land and a third state, the “host” state with sovereignty over the land can face greater risks than when it leases its territory to another state for a military base: There are several reasons for this. First, a military base normally occupies a very limited portion of the host state’s territory, but a farmland agreement must entail a large enough area to justify another country’s interest in using it for food security. Second, a military base normally has armed forces and military equipment stationed on-site and is prepared to deter or counter attacks. This is not the case with farmland used by foreign states. In view of the amount of land they cover, agricultural arrangements can expose far greater areas, and much larger proportions of a host state’s total territory, to actions by an adversary of the state with farming 810  Malibya Convention, May 9, 2008, art. 8, para. 1. Water intake equipment for the project could more than double the quantity of water diverted from the Niger River for irrigation in the region (Fred Pearce, “Africa’s Flourishing Niger Delta Threatened by Libya Water Plan,” Yale Environment 360, Feb. 3, 2011, http://e360.yale.edu/feature/africas_flourishing_ niger_delta_threatened_by_libya_water_plan/2366/, accessed Nov. 6, 2014). 811   Strauss, “Redistribuer le territoire des états,” 163–64; Cotula, et al., Land Grab or Development Opportunity?, 7, 87, 90–91.

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rights there. Third, an attack on a military base is an obvious event, but an attack against agriculture may be far less obvious because of the ways it can be carried out.812 The enemy of a state that benefits from farmland abroad also can seek to influence political events in the host state to neutralize what it may consider support for its adversary. A preliminary agreement in 2008 between a South Korean company, Daewoo Logistics Corp., and the state of Madagascar gave Daewoo the right to lease 1.3 million hectares of agricultural land for 99 years in exchange for at least $6 billion, but after a coup d’état in Madagascar in 2009 812  These include biological weapons such as naturally occurring fungi, bacteria and viruses that can induce crop disease and that may be released into the air upwind from a crop by an enemy of the state for which the crop is being grown; nearby agricultural land in the host state also may be affected by such an attack. (Michael J. Strauss, “Prospects for Conflict to Spread through Bilateral Land Arrangements for Food Security,” in Food in Zones of Conflict: Cross-Disciplinary Perspectives, ed. Helen Macbeth and Paul Collinson (Oxford: Berghahn, 2014), 199). This makes it possible that “a biological agent can be disseminated without immediate and obvious signs that an attack is underway” (Graham S. Pearson, “The Threat of Deliberate Disease in the 21st Century,” in Biological Weapons Proliferation: Reasons for Concern, Courses of Action, ed. A.E. Smithson (Washington: Henry L. Stimson Center, 1998), 22). “From 1945 to the present day a number of nations have devoted considerable resources to the development of [biological weapons] in order to bring about the destruction, for hostile purposes, of the plant resources of an adversary” (Simon M. Whitby, “Anticrop Biological Weapons Programs,” in Deadly Cultures: Biological Weapons Since 1945, ed. Mark Wheelis, Lajos Rózsa and Malcolm Dando (Cambridge, Mass.: Harvard University Press, 2006), 223). Current farming practices can heighten the potential for this to occur: “Modern agricultural methods dictate that large areas be planted with genetically identical crops. This genetic homogeneity leaves entire regions susceptible to attack with an antiplant agent to which the crop is not resistant” (Lester C. Caudle III, “The Biological Warfare Threat,” in Medical Aspects of Chemical and Biological Warfare, ed. Frederick R. Sidell, Ernest T. Takafuji and David R. Franz (Washington: Office of the Surgeon General, 1997), 460). International law prohibits the use of biological weapons (Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (“Geneva Protocol”), June 17, 1925, 94 L.N.T.S. 65), but there has been no consensus on whether this pertains only to human targets or to plants as well. It also prohibits starving civilians or attacking or destroying crops (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, art. 54, para. 1–2, 1125 U.N.T.S. 3), but according to the U.N. Food and Agriculture Organization “the use of hunger as a weapon is widespread in present-day conflicts” and crop destruction is among the means still used to achieve this (Slobodanka B. Teodosijević, “Armed Conflicts and Food Security,” ESA Working Paper 03–11 (Food and Agriculture Organization, 2003), 17–18).

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its new ­government aborted the agreement. The lease would have increased the amount of farmland available to South Korea by more than 50%, sharply enhancing its food security, while its cancellation had strategic advantages for North Korea, a state at war with its neighbor and familiar with food shortages. North Korean officials would have had a profound appreciation of the role that food security plays as a factor in the strength of a state. (. . .) There are no known reports of a North Korean role [in the coup], although it would have been logical for the country’s strategists to view Madagascar’s farmland as a source of material support for its enemy, as if it were South Korea’s own territory.813 Regardless of whether any intervention occurred, North Korea was a beneficiary of the coup, illustrating the broader geopolitical impact that a lease of territory can have, even when one party is a non-state actor.

Leases of Sovereign Airspace

No leases of airspace are known to have been made by one state to another at this point, but trends involving the use of airspace suggest a likelihood for this to happen in the years ahead, and no aspect of international law exists to discourage it. The notion of territory itself, originally associated with land and water, has evolved in line with the ability to control and exploit it, and the application of sovereignty has expanded to the subsoil and airspace in line with the development of means for using them (the subsoil for its resources, and airspace for its military and transportation potential). The exact vertical extent of states’ sovereignty nonetheless remains undetermined except for scattered claims by individual nations; there is no multilateral agreement on the lower limit of sovereignty in the subsoil, nor is there one that sets the upper limit of sovereignty in the air apart from the Bogotá Declaration of 1976,814 in which eight states along the equator claimed sovereignty up to 35,871 kilometers—the altitude

813  Strauss, “Prospects for Conflict to Spread,” 204. 814  Declaration of the First Meeting of Equatorial Countries (“Bogotá Declaration”), Dec. 3, 1976, Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, Zaire, I.T.U. Doc. WARC-BS (1977) 81-E, Jan. 17, 1977.

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of the geostationary orbit.815 (The ultimate vertical limit is outer space, where states are prohibited from claiming sovereignty by the Outer Space Treaty,816 but neither the treaty nor any other international agreement sets the altitude at which outer space begins.) Exploitable territory has value, and the value of airspace to states is both strategic and economic. These already are being exploited, and either can provide a motive for one state to desire ensured access to a specific portion of another’s airspace by means of a lease. At present, most states charge fees to the operators of aircraft in exchange for rights to fly within their airspace.817 Conceptually, such an arrangement is similar to a very short-term lease, with the fee representing the rent; procedures vary by state, with payment determined by the number of flights and/or the period in which flights occur.818 Rights in airspace are already leased by governments in some places at the sub-state level. In the United States, this occurs with airspace over highways and other public-sector lands. Under the state code in Virginia, for example, “certain cities and counties may sell or lease airspace over public streets;”819 similarly, the state of California leases airspace over highways to generate funds for state transportation projects.820 Meanwhile, the concept of assigning rights in airspace is facilitated by its legal assimilation with other forms of territory where rights are assignable by lease; in Canada, for example, the Air Space Act of the province of New Brunswick states that “Air space constitutes land and may be dealt with as land,”821 and that “An air space parcel (. . .) may be conveyed or otherwise dealt with in the same manner and form as other land.”822 In all of these cases, the airspace in question is near the surface and the typical use of the rights is to construct buildings and install communica815  Satellites in this orbit stay in place above the same location on earth. The rationale for the territorial claim is that the orbit is a physical fact linked to the land below it, making it a type of natural resource that derives from the land (ibid., art. 1). 816  Outer Space Treaty, Jan. 27, 1967, art. II. 817  Susan Carey, “Calculating Costs in the Clouds: How Flight-Planning Software Helps Airlines Balance Fuel, Distance, Wind, ‘Overfly’ Fees,” Wall Street Journal, Mar. 6, 2007. 818  See, e.g., Nav Canada, “Customer Guide to Charges,” Nov. 15, 2013, http://www.navcanada .ca/EN/media/Publications/Customer-Guide-Charges-EN.pdf, accessed Nov. 8, 2014. 819  Thomas C. Daniel, “Legal Aspects of the Utilization of Highway Airspace,” Virginia Highway and Transportation Research Council, Nov. 1974, 11, citing Va. Code §15.1–376.1. 820  California Department of Transportation, “Airspace and Telecommunications Licensing,” http://www.dot.ca.gov/hq/row/rps/airspace.htm, accessed Nov. 9, 2014. 821  Air Space Act, R.S.N.B. 2011, ch. 109, art. 2. 822  Ibid., art. 6 (1).

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tions infrastructure; their relevance with respect to states and airspace in a broader and higher sense is that they place the concept of leasing parts of the sky into the range of activities that comprise territorial governance. As human activity in the air becomes increasingly common and occurs at higher and higher altitudes, events are bound to occur that require jurisdiction to be determined, which can increase pressure on states to determine vertical limits to their sovereign territory either through individual claims or a multilateral convention. One reason that some states have been reluctant to do this is that their technological capabilities are still developing, and the height of the area they are able to control is still increasing: (V)irtually no state would consider it in its interest to set premature limits on the potential geographic extent of its sovereignty. Moreover, a state that adopts a maximum height boundary at an altitude that another state can already surpass opens the possibility for the other state to immediately claim sovereignty in the area of the sky above that boundary, extending its airspace laterally at that height. While such a scenario may seem implausible, it could be brought toward reality as vertical limits to sovereignty are addressed because confronting the issue will inevitably spur further conceptual reconsideration of the physical space of state sovereignty.823 A state that resists pressure to establish an upper limit to sovereignty because it is not capable of controlling or using all of its airspace nonetheless may lease the portion it is unable to manage, allowing it to recover control over that portion at a later time when it may have the necessary capability.

823  Michael J. Strauss, “Boundaries in the Sky and a Theory of Three-Dimensional States,” Journal of Borderlands Studies 28, No. 3 (2013): 376.

Conclusion

The Future of Territorial Leases

Every territorial lease created between states addresses a situation in which the very essence of sovereignty—the exclusivity of the territorial authority it embodies, which makes the international system of states possible—is deemed the less desirable response to an issue that arises in connection with the territory. By readjusting the distribution of rights so that more than one state has a direct stake in the authority over a given zone, the practice of leasing appears to expose sovereignty, a fundamental attribute of states and a pillar of international law, as unable to satisfy the full range of state interests that can emerge in the realm of territorial control. While this might seem to say that leases of territory can bring sovereignty into question, however, that is not what is happening. Rather, leases are active components of the continual process of giving more precision to what the notion of sovereignty entails. After all, a lease of territory is a product of sovereignty: it can only have the attributes it has because sovereignty exists as the prevailing force in the system of states and in international law. The rights that are allocated between states through a lease are rights associated with sovereignty, and the context in which they are exercised is established through the sovereign authority of the states that are parties to the arrangement. While a lease is in effect, all of the territory’s legal and political relationships are defined by the sovereignty that surrounds it; and when a lease terminates, conventional sovereignty is its replacement. A lease, therefore, might best be considered as a subsidiary feature of sovereignty—an aspect that by its nature excludes any possibility of competing with it as a framework for territorial control. Whatever the objectives of a territorial lease, whatever territory it applies to and whatever specific elements it may contain, such an arrangement can be seen as a constructive factor that reinforces the principle of territorial integrity by introducing a flexibility to allow controlled deviations in the course of its operation. While the concept of sovereignty may face challenges on other fronts, leases suggest that sovereignty will remain strong as a force that underpins the world order—which in turn suggests that leases of territory, by having a role in this process, will continue to be created, flourish and expire in order to adjust the application of sovereignty for periods of time in places when situations dictate that a substitute for its conventional exercise is warranted in furthering state interests.

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The absence of dedicated international legal norms to deal with territorial leases undoubtedly will give rise to future cases and judgments arising from circumstances that are generated by their existence. Through these, such norms eventually may come into being and give leases a certain legal status in the overall scheme of international jurisprudence—or it may be that international law simply continues to accommodate their existence without the need for a distinct regime. In the meantime, the territories placed under bilateral leases are locations that are bound to continue acting as laboratories for state conduct, and where rights, duties, obligations and issues of responsibility at the international level are increasingly aligned with their presence.

Bibliography Books, Articles and Research Documents “A Chat about Perak.” Hazell’s Magazine 7 (1893): 156–60. “A Great Need of the Navy: Coaling Stations Required in Certain Localities.” New York Times, Dec. 6, 1891. Aguirre, Robert W. The Panama Canal. Leiden: Martinus Nijhoff, 2010. Alfonsi, Marc. Les Cessions à Bail en Chine: Histoire diplomatique et de droit international public. Paris: Domat-Montchrestien, 1940. Allen, G.C., and Audrey G. Donnithorne. Western Enterprise in Far Eastern Economic Development. Abingdon: Routledge, 1954. Altman, Amnon. “Tracing the Earliest Recorded Concepts of International Law: The Early Dynastic Period in Southern Mesopotamia.” Journal of the History of International Law 6 (2004): 153–72. Anglin, Douglas G. “The Politics of Transit Routes in Land-Locked Southern Africa.” In Land-Locked Countries of Africa, edited by Zdenek Červenka, 98–133. Uppsala: Scandinavian Institute of African Studies, 1973. “Annexation of Cyprus by Great Britain.” American Journal of International Law 9, no. 1 (1914): 204–05. Arvizu, Fernando de. La solución institucional del conflicto de los Alduides (Pirineo Navarro). León: Universidad de León, 1997. “Attorney General’s Chambers Urged to Expedite Study on Sabah Cession Payment.” Bernama News Agency, Mar. 12, 2013. Azerbaijan Press Agency. “Body of Russian officer killed in Gabala RLS sent to Russia,” Jan. 12, 2011. http://en.apa.az/news/138160, accessed Aug. 14, 2014. Bantz, Vincent P. “The International Legal Status of Condominia.” Florida Journal of International Law 12 (1998–2000): 77–152. Barberis, Julio. “Les liens juridiques entre l’Etat et son territoire: perspectives théoriques et évolution du droit international.” Annuaire français de droit international 45 (1999): 132–47. Baty, T. “Protectorates and Mandates.” British Year Book of International Law 2 (1921– 22): 109–21. Berg, William, Jr. “Long-Term Options and the Rule against Perpetuities—Part I.” California Law Review 37, no. 1 (1949): 1–37. Berriedale Keith, Richard. The Theory of State Succession with Special Reference to English and Colonial Law. London: Waterlow and Sons, 1907.

222

Bibliography

Bilder, Richard B. “International Law and Natural Resource Policies.” Natural Resources Journal 20 (1980): 451–86. Bjornerud, Maria. “Baikonur Continues: The New Lease Agreement between Russia and Kazakhstan.” Journal of Space Law 30 (2004): 13–36. Boczek, Boleslaw A. International Law: A Dictionary. Lanham, Md.: Scarecrow Press, 2005. Bogaert, Elie van. “The Lease of Territory in International Law.” In Miscellanea—W.J. Ganshof van der Meersch, Vol. 1, 315–27. Brussels: Emile Bruylant, 1972. Breitung, Werner. “Macau in the Eyes of a Border Scholar.” The Newsletter [International Institute for Asian Studies] 64 (2013): 24–25. Brierly, J.L. The Law of Nations. Oxford: Clarendon, 1928. Brilmayer, Lea, and Natalie Klein. “Land and Sea: Two Sovereignty Regimes In Search of a Common Denominator.” NYU Journal of International Law and Politics 33 (2000–01): 703–31. Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Oxford University Press, 2008. Buckland, William Warwick. A Manual of Roman Private Law. 1939. Reprint, Cambridge: Cambridge University Press, 2011. California Department of Transportation. “Airspace and Telecommunications Licensing.” http://www.dot.ca.gov/hq/row/rps/airspace.htm, accessed Nov. 9, 2014. Carey, Susan. “Calculating Costs in the Clouds: How Flight-Planning Software Helps Airlines Balance Fuel, Distance, Wind, ‘Overfly’ Fees.” Wall Street Journal, Mar. 6, 2007. Caudle, Lester C., III. “The Biological Warfare Threat.” In Medical Aspects of Chemical and Biological Warfare, edited by Frederick R. Sidell, Ernest T. Takafuji and David R. Franz, 451–66. Washington: Office of the Surgeon General, 1997. Cavaillès, Henri. “Une Fédération pyrénéenne sous l’ancien régime: Les traités de lies et de passeries.” In Lies et Passeries dans les Pyrénées, edited by J.-F. le Nail, 1–67. Tarbes: Société d’Etudes des Sept Vallées, 1986. Chambers, John Whiteclay II, and Timothy J. Lynch. “Bases, U.S. Military, Domestic and Foreign.” In The Oxford Encyclopedia of American Military and Diplomatic History, Vol. 1, edited by Timothy J. Lynch, 97–101. New York: Oxford University Press, 2013. Chan, Ming K. “Different Roads to Home: The Retrocession of Hong Kong and Macao to Chinese Sovereignty.” Journal of Contemporary China 12, no. 36 (2003): 493–518. Chan, Ming K., and Shiu-hing Lo. The A to Z of the Hong Kong SAR and the Macao SAR. Lanham, Md.: Scarecrow Press, 2006. Chang, Jaw-Ling Joanne. “Settlement of the Macao Issue: Distinctive Features of Beijing’s Negotiating Behavior.” Case Western Reserve Journal of International Law 20 (1988): 253–78.

Bibliography

223

Chang, T’ien-Tzê. Sino-Portuguese Trade from 1514 to 1644: A Synthesis of Portuguese and Chinese Sources. Leiden: Brill, 1934. Charveriat, Emile. “La Commission des Pyrénées: Ses origines, son histoire, sa compétence.” Unpublished report. France Ministry of Foreign Affairs, 1929. Christakis, Theodore. “1969 Vienna Convention: Article 56.” In The Vienna Convention on the Law of Treaties: A Commentary, Vol. 2, edited by Olivier Corten and Pierre Klein, 1251–76. Oxford: Oxford University Press, 2011. Clayton, Gina. Textbook on Immigration and Asylum Law, 6th ed. Oxford: Oxford University Press, 2014. Cohn, Stanley. “What’s Going Up in Zaire? OTRAG’s Rocket Base in Shaba.” Munger Africana Library Notes, No. 49. Pasadena: California Institute of Technology, 1979. Colangelo, Anthony J. “ ‘De facto sovereignty’: Boumediene and Beyond,” George Washington Law Review 77 (2008–09): 623–76. Conforti, Benedetto. “The Theory of Competence in Verdross.” European Journal of International Law 5, no. 1 (1994): 70–77. Cook, Malcolm. “China’s Hong Kong: One Country, Two Incompatible Systems.” China Spectator, Oct. 3, 2014. http://www.businessspectator.com.au/article/2014/10/3/ china/chinas-hong-kong-one-country-two-incompatible-systems, accessed Oct. 14, 2014. Cooley, Alexander. Base Politics: Democratic Change and the U.S. Military Overseas. Ithaca, N.Y.: Cornell University Press, 2008. ———. “Imperial Wreckage: Property Rights, Sovereignty, and Security in the PostSoviet Space.” International Security 25, no. 3 (2000–01): 100–27. Cooley, Alexander, and Hendrik Spruyt. Contracting States: Sovereign Transfers in International Relations. Princeton: Princeton University Press, 2009. Cooper, Jerrold S. Reconstructing History from Ancient Inscriptions: The Lagash-Umma Border Conflict. Malibu: Undena, 1983. Corfield, Justin. Historical Dictionary of Singapore. Lanham, Md.: Scarecrow Press, 2011. Costello, Daniel Joseph. “Planning for War: A History of the General Board of the Navy.” PhD diss., Fletcher School of Law and Diplomacy, 1968. Cotula, Lorenzo, Sonja Vermeulen, Rebeca Leonard and James Keeley. Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa. London: International Institute for Environment and Development, Food and Agriculture Organization and International Fund for Agricultural Development, 2009. Crawford, James. The Creation of States in International Law. Oxford: Clarendon, 1979. Crusen, Georg. “Les servitudes internationals.” In Recueil des cours de l’Académie de Droit International de La Haye, Vol. 22, 1928-II, 19–30. Paris: Hachette, 1929.

224

Bibliography

Cuba Ministry of Foreign Relations. Guantánamo, base naval yanqui de crímenes y provocaciones: Nueve años de continuas agresiones, la base y el derecho internacional, posición de Cuba. Havana: Instituto del Libro, 1970. ———. “Guantanamo Bay Naval Base: Statement by the Government of Cuba to the National and International Public Opinion,” Jan. 11, 2002. http://anterior.cubamin rex.cu/English/Guantanamo/Articulos/Prision/02-01-11-Government-Cuba.html, accessed Oct. 29, 2014. “Cuban Coin Values Fixed.” New York Times, Dec. 30, 1898. Cumings, Bruce. Korea’s Place in the Sun: A Modern History, 2nd ed. New York: W.W. Norton, 2005. Cunningham, Charles Weston. “The Retrocession of Hong Kong.” Master’s thesis, Naval Postgraduate School, 1985. D’Amato, Anthony. International Law and Political Reality: Collected Papers, Vol. 1. The Hague: Kluwer, 1995. ———. “There is No Norm of Intervention or Non-Intervention in International Law.” Working Paper 80, Northwestern University School of Law, 2010. Daly, John C.K. “Militarily Defining Post-Soviet Space.” International Relations and Security Network, Swiss Federal Institute of Technology, May 3, 2010, http://www .isn.ethz.ch/Digital-Library/Articles/Detail/?lng=en&id=115693, accessed Oct. 29, 2014. Daniel, Thomas C. “Legal Aspects of the Utilization of Highway Airspace.” Virginia Highway and Transportation Research Council, Nov. 1974. Demonty, Bernard. “Le rattachement à la France a cessé d’être un tabou.” Le Soir, July 29, 2008. Descheemaeker, Jacques. “Les faceries pyrénéennes et du pays basque.” Eusko-Jakintza 3–4 (1947): 355–93. ———. “Une frontière inconnue, les Pyrénées de l’océan à l’Aragon.” Revue Générale de Droit International Public 49, no. 2 (1941–45): 239–77. Desplat, Christian. La guerre oubliée: Guerres paysannes dans les Pyrénées (XIIe-XIXe siècles). Biarritz: J&D Editions, 1993. Desta, Melaku. “To what extent are WTO rules relevant to trade in natural resources?” World Trade Organization. http://www.wto.org/english/res_e/publications_e/ wtr10_forum_e/wtr10_desta_e.htm, accessed Dec. 19, 2013. Distefano, Giovanni. L’ordre international entre légalité et effectivité: Le titre juridique dans le contentieux territorial. Paris: A. Pedone, 2002. ———. “La notion de titre juridique et les différends territoriaux dans l’ordre international.” Revue Générale de Droit International Public 100 (1995): 335–66. Dixon, Martin. Textbook on International Law. Oxford University Press, 2013. Douglas, Edward M. Boundaries, Areas, Geographic Centers and Altitudes of the United States and the Several States. 2nd ed. Washington: Government Printing Office, 1930.

Bibliography

225

Dula, Arthur M. “Regulation of Private Commercial Space Activities.” Jurimetrics Journal 23, No. 2 (1983): 156–89. Dwyer, Philip. Napoleon: The Path to Power, 1768–1799. New Haven: Yale University Press, 2008. El Ouali, Abdelhamid. Territorial Integrity in a Globalizing World: International Law and States’ Quest for Survival. Heidelberg: Springer, 2012. Elian, Gheorghe. The Principle of Sovereignty over Natural Resources. Translated by Andrei Bantaş. Alphen aan den Rijn, Netherlands: Sijthoff and Noordhoff, 1979. Eliot, Charles. The East Africa Protectorate. London: Edward Arnold, 1905. Elvin, Raymond. “The Status of Leased Territories in China in International Law.” Master’s thesis, University of Minnesota, 1931. Erreca, Jean-Pierre. Untitled booklet on the history of Quinto Real Norte. Urepel, France: “Imprimerie spéciale,” 1993. Essen, Jonte van. “De Facto Regimes in International Law.” Utrecht Journal of International and European Law 28, no. 74 (2012): 31–49. Fabre, Pierre-Paul. Des servitudes dans le droit international public. Paris: Arthur Rousseau, 1901. Fahl, Gundolf. “Note sur le contrat du 20 octobre 1978 entre la République de Zaïre et l’OTRAG.” Annuaire française de droit international 24 (1978): 920–26. Fauchille, Paul. Traité de droit international public, Vol. 1. 8th ed. Paris: Rousseau & Cie., 1922. Feinerman, James V. “Odious Debt, Old and New: The Legal Intellectual History of an Idea.” Law and Contemporary Problems 70 (2007): 193–219. Feit, Michael. “Responsibility of the State Under International Law for the Breach of Contract Committed by a State-Owned Entity.” Berkeley Journal of International Law 28, No. 1 (2010): 142–77. Fenwick, Charles G. International Law. New York: Appleton-Century-Crofts, 1948. Fernández de Casadevante Romani, Carlos. La cooperación transfronteriza en el Pirineo. Oñati, Spain: Instituto Vasco de Administración Publica, 1990. ———. La frontière franco-espagnole et les relations de voisinage. Bayonne: Editions Harriet, 1989. Fischer, David J. Interview by Charles Stuart Kennedy and Robert S. Pastorino. Mar. 6, 1998. Foreign Affairs Oral History Project. Association for Diplomatic Studies and Training. Fowler, Michael Ross, and Julie Marie Bunck, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty. University Park, PA: Pennsylvania State University Press, 1995. France Ministère des Colonies, Direction des Affaires Politiques, “Note sur un terrain situé sur la rive gauche d’une des embouchures du Niger,” June 28, 1928, Dossier 169, Archives Nationales d’Outre-Mer.

226

Bibliography

France Ministry of Foreign Affairs. “Données générales et relations bilatérales avec l’Espagne.” http://www.france.diplomatie.fr/actu/impression.asp?ART=23923, accessed Mar. 28, 2003. Freeman, Michael. “The Priority of Function over Structure: A New Approach to Secession.” In Theories of Secession, edited by Percy B. Lehning, 13–31. London: Routledge, 1998. Frye, Randy B. “Naval Station Guantanamo Bay Fuel Summit Held.” Fuel Line 2 (2004): 26. Galbraith, John S. The Hudson’s Bay Company as an Imperial Factor, 1821–1869. Berkeley: University of California Press, 1957. García-Salmones Rovira, Mónica. The Project of Positivism in International Law. Oxford: Oxford University Press, 2013. Gelber, Harry G. The Dragon and the Foreign Devils: China and the World, 1100 BC to the Present. London: Bloomsbury, 2007. Gérard, Louis. Des cessions déguisées de territoires en droit international public. Nancy: Imprimerie Nancienne, 1903. Gillis, Ralph J. Navigational Servitudes: Sources, Applications, Paradigms. Leiden: Martinus Nijhoff, 2007. Glantz, David M. August Storm: The Soviet 1945 Strategic Offensive in Manchuria. Fort Leavenworth, Kans.: U.S. Army Combat Studies Institute, 1983. Glebov, Sergiy. “The Russian Black Sea Fleet and Ukraine’s Security Strategy: Agenda 2017.” In Military Bases: Historical Perspectives, Contemporary Challenges, edited by Luis Rodrigues and Sergiy Glebov, 181–87. Amsterdam: IOS Press, 2009. Gobierno de Nararra. “Los ayuntamientos de Baztán y Erro reciben del Gobierno de Navarra 72.022 euros por el canon anual de aprovechamiento de pastos de Quinto Real.” Press release, May 2, 2013. Goethals, George W. Government of the Canal Zone. Princeton: Princeton University Press, 1915. Gómez-Ibañez, Daniel Alexander. The Western Pyrenees: Differential Evolution of the French and Spanish Borderland. Oxford: Clarendon, 1975. Green, Sedgwick W. “Applicability of American Laws to Overseas Areas Controlled by the United States.” Harvard Law Review 68 (1955): 781–812. Grotius, Hugo. The Rights of War and Peace. 1625. Translation, 1738. Reprint, Clark, N.J.: Lawbook Exchange, 2004. Guérin, Charles. La Corse aux états généraux de 1789. Ajaccio: G. Marchi, 1864. Guzman, Andrew. How International Law Works: A Rational Choice Theory. Oxford: Oxford University Press, 2008. Haberman, Clyde. “At the Jordan Border, Israeli Farmers Hail the Peace Accord.” NY Times, Oct. 19, 1994.

Bibliography

227

Haddadin, Munther J. Diplomacy on the Jordan: International Conflict and Negotiated Resolution. Boston: Kluwer, 2002. Hafetz, Jonathan. Habeas Corpus after 9/11: Confronting America’s New Global Detention System. New York: New York University Press, 2011. Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Rev. ed. Philadelphia: University of Pennsylvania Press, 1990. Heinzig, Dieter. The Soviet Union and Communist China, 1945–1950: The Arduous Road to the Alliance. Translation. Armonk, N.Y.: M.E. Sharpe, 2004. Helin, Ronald A. “Finland Regains an Outlet to the Sea: The Saimaa Canal.” Geographical Review 58, no. 2 (1968), 167–94. Hermann, Binger. The Louisiana Purchase and Our Title West of the Rocky Mountains, with a Review of Annexation by the United States. Washington: Government Printing Office, 1898. Hershey, Amos S. The Essentials of International Public Law and Organization. New York: Macmillan, 1927. Hirschfield, Claire. “British Policy on the Middle Niger, 1890–1898.” In Diplomacy in an Age of Nationalism, edited by Nancy N. Barker and Marvin L. Brown, Jr., 192–208. The Hague: Martinus Nijhoff, 1971. Herszenhorn, David M. “Russia to Close Radar Station in Azerbaijan.” New York Times, Dec. 11, 2012. Hille, Kathrin. “Ukrainian Port is Key to Russia’s Naval Power.” Financial Times, Feb. 27, 2014. “Historical Landmarks of Macao.” Chinese Recorder and Missionary Journal 18, no. 5 (1887): 175–82. Ho, Simon. “Achieving the Unthinkable: University of Macau in Hengqin,” China Daily, Hong Kong ed., Aug. 23, 2013: 9. Hoeflich, M.H. “Through a Glass Darkly: Reflections upon the History of the International Law of Public Debt in Connection with State Succession.” University of Illinois Law Review 1982, no. 1 (1982): 39–70. Hofstötter, Bernhard. “Cyprus Under British Rule: An International Law Analysis of Certain Land Surveys and Land Assignments Between 1878 and 1955.” Chinese Journal of International Law 7, no. 1 (2008): 159–96. Hong Kong Special Administrative Region Government. “Hong Kong—The Facts.” http://www.gov.hk/en/about/abouthk/facts.htm, accessed Mar. 30, 2014. ———. “Trade Policy Review: Hong Kong, China: Report by the Government.” World Trade Organization Doc. WT/TPR/G/109, Nov. 18, 2002. Howse, Robert. The Concept of Odious Debt in Public International Law. Discussion Paper 185. U.N. Conference on Trade and Development Doc. UNCTAD/OSG/ DP/2007/4, 2007.

228

Bibliography

Hudson, Alan. “Beyond the Borders: Globalisation, Sovereignty and Extraterritoriality.” Geopolitics 3, no. 1 (1998): 89–105. Hudson’s Bay Company Archives. “Hudson’s Bay Company History.” https://www.gov .mb.ca/chc/archives/hbca/about/hbca_history.html, accessed Mar. 5, 2014. Isern, Damian. Del Desastre Nacional y sus Causas. Madrid: Viuda de M. Minuesa de los Ríos, 1899. Jantz, Bastian, and Sylvia Veit. “Sunset Legislation and Better Regulation: Empirical Evidence from Four Countries.” Research paper. Gütersloh, Germany: Bertelsmann Stiftung, 2010. Jayakumar, S. “The Philippine Claim to Sabah and International Law.” Malaya Law Review 10, no. 2 (1968): 306–35. Jellinek, Georg. L’Etat moderne et son droit, Vol. 2. Translated by Georges Fardis. Paris: M. Giard & E. Brière, 1913. Johnson, Graham E. “Degrees of Dependency, Degrees of Interdependency: Hong Kong’s Changing Links to the Mainland and the World.” In Hong Kong Reintegrating with China: Political, Cultural and Social Dimensions, edited by Pui-tak Lee, 81–96. Hong Kong: Hong Kong University Press, 2001. Johnston, Harry H. A History of the Colonization of Africa by Alien Races. 2nd ed. Cambridge: Cambridge University Press, 1913. Johnstone, William C. “The Status of Foreign Concessions and Settlements in the Treaty Ports of China,” American Political Science Review 31, no. 5 (1937): 942–48. Journal officiel de la République Française, Apr. 28, 1980. Kaczorowska, Alina. Public International Law. 4th ed. Abingdon: Routledge, 2010. Kalamiya, Kallu. “Rape of Sovereignty: OTRAG in Zaire.” Review of African Political Economy, No. 14 (1979): 16–35. Kantor, Mark, Michael D. Nolan and Karl P. Sauvant, ed. Reports of Overseas Private Investment Corporation Determinations. New York: Oxford University Press, 2011. Karsten, Peter. The Military in America: From the Colonial Era to the Present. Rev. ed. New York: Free Press, 1986. Katzenell, Jack. “Jordanian Soldier Fires on Israeli Schoolchildren.” Associated Press, Mar. 13, 1997. Kazakhstan Today. “The Ambassador of China Visited Baikonur.” Gazeta.kz Internet Agency, Aug. 29, 2003. http://engnews.gazeta.kz/art.asp?aid=294632, accessed Aug. 31, 2014. Kechichian, Joseph A. Oman and the World: The Emergence of an Independent Foreign Policy. Santa Monica: Rand, 1995. Kelsen, Hans. General Theory of Law and State. Translated by Anders Wedberg. 1945. Reprint, Clark, N.J.: Lawbook Exchange, 2009. “Khalaf Klalafov: ‘Work Within Framework of Commissions on Handover Process of Gabala RS Has Been Completed.’ ” Azerbaijan State Telegraph Agency, Apr. 6, 2013.

Bibliography

229

Kirk, Donald. Looted: The Philippines after the Bases. Basingstoke: Macmillan, 1998. Klabbers, Jan. The Concept of Treaty in International Law. The Hague: Kluwer, 1996. Koutroulis, Vaios. Le début et la fin de l’application du droit de l’occupation. Paris: Pedone, 2010. Krasner, Stephen D. Power, the State, and Sovereignty: Essays on International Relations. Abingdon: Routledge, 2009. ———. “Structural Causes and Regime Consequences: Regimes as Intervening Variables.” In International Regimes, edited by Stephen D. Krasner, 1–21. Ithaca, N.Y.: Cornell University Press, 1983. La Pradelle, Paul de. La Frontière: Edude de Droit International. Paris: Editions Internationales, 1928. Labrousse, Pierre. Des servitudes en droit international public (Bordeaux: Imprimerie Commerciale & Industrielle, 1911. Lake, David A. Entangling Relations: American Foreign Policy in its Century. Princeton: Princeton University Press, 1999. Lambert, Maurice. “Une Histoire du conflit entre Lagash et Umma.” Revue d’Assyriologie et d’Archéologie Orientale 50, no. 3 (1956): 141–44. Lampietti, Julian, Nicholas Magnan, Sean Michaels, Alex McCalla, Maurice Saade and Nadim Khouri. Improving Food Security in Arab Countries. Washington: World Bank, 2009. Langer, Lorenz. “Out of Joint? Hong Kong’s International Status from the Sino-British Joint Declaration to the Present.” Archiv des Völkerrechts 46 (2008): 309–44. Lauterpacht, H. Private Law Sources and Analogies of International Law. 1927. Reprint, Hamden, Conn.: Archon Books, 1970. ———. “Recognition of States in International Law.” Yale Law Journal 53, no. 3 (1944): 385–458. Lauterpacht, Hersch. International Law: Collected Papers, Vol. 1. Edited by E. Lauterpacht. Cambridge: Cambridge University Press, 1977. Lawrence, T.J. War and Neutrality in the Far East. London: Macmillan, 1904. Lazar, Joseph. “The Status of the Leasehold in International Law.” PhD diss., University of Minnesota, 1965. Leavens, Dickson H. Silver Money. Bloomington, Ind.: Principia Press, 1939. “Libya agrees deal to grow wheat in Ukraine.” Reuters, May 27, 2009. Lipman, Jana K. Guantánamo: A Working-Class History Between Empire and Revolution. Berkeley: University of California Press, 2008. Little, David. “WTO Dispute Resolution System: Does It Work?—WTO Dispute Settlement: A Hong Kong Perspective.” Paper presented at the Inter-Pacific Bar Association Conference, Vancouver, 2000. Ljungstedt, Andrew. An Historical Sketch of the Portuguese Settlements in China; and of the Roman Catholic Church and Mission in China. Boston: James Munroe, 1836.

230

Bibliography

López Martín, Ana Gemma. El territorio estatal en discusión: la prueba del título. Madrid: McGraw-Hill, 1999. Lupton, Kenneth. “The Partitioning of Borgu in 1898 and the French Enclaves in Nigeria, 1900–1960.” Journal of the Historical Society of Nigeria 12, nos. 3–4 (1984–85): 77–94. Lyman, Todd. “USACE TAN Real Estate Team Pros at Relationship Building.” Transatlantic Times, U.S. Army Corps of Engineers, June 2013: 4. Madison, James. The Papers of James Madison, Vol. 7. Edited by Gaillard Hunt. New York: G.P. Putnam’s Sons, 1908. Malanczuk, Peter. Akehurst’s Modern Introduction to International Law. 7th ed. London: Routledge, 1997. Marek, Krystyna. Identity and Continuity of States in Public International Law. 2nd ed. Geneva: Librairie Droz, 1968. Maris, Gary L. “International Law and Guantanamo.” Journal of Politics 29 (1967): 261–86. Mason, R. Chuck. Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized? Washington: Congressional Research Service, 2012. Mathews, John M. “Roosevelt’s Latin-American Policy.” American Political Science Review 29 (1935): 805–20. McCorquodale, Robert. “International Law, Boundaries, and Imagination.” In Boundaries and Justice: Diverse Ethical Perspectives, edited by David Miller and Sohail H. Hashmi, 136–63. Princeton: Princeton University Press, 2001. Medlicott, W.N. The Congress of Berlin and After: A Diplomatic History of the Near Eastern Settlement, 1878–1880, 2nd ed. Abingdon: Frank Cass, 1963. Meeker, Leonard C. Memo to Dean Rusk, Feb. 2, 1962. National Security Archive, Cuban Missile Crisis Collection, Doc. CC00160, ProQuest LLC and The National Security Archive. Menon, P.K. “The Succession of States and the Problem of State Debts.” Boston College Third World Law Journal 6, no. 2 (1986): 111–41. ———. “Title to Territory: Traditional Modes of Acquisition by States.” Revue de Droit International 72, no. 1 (1994): 1–54. Merley, Nathalie. Conception et administration du territoire en France métropolitain. Aix-en-Provence: Presses universitaires d’Aix-Marseille, 1998. Milano, Enrico. Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy. Leiden: Martinus Nijhoff, 2006. “Ministry: Parameters of Removing Russian Property from Gabala Coordinated with Azerbaijani Defense Ministry.” Trend InfoService, Feb. 7, 2013. Mogato, Manuel. “Philippines Offers U.S. Forces Access to Military Bases.” Reuters, Mar. 14, 2014.

Bibliography

231

———. “Philippines to Give U.S. Forces Access to Up to Five Military Bases.” Reuters, May 2, 2014. Munir, Muhammad. “The Judicial System of the East India Company: Precursor to the Present Pakistani Legal System.” Annual Journal of International Islamic University 13–14 (2005–06): 53–68. Munro, Ross H. “Who Lost Hong Kong?” Commentary, December 1990: 33–39. Mushkat, Roda. “Hong Kong as an International Legal Person.” Emory International Law Review 6 (1992): 105–70. Naske, Claus-M., and Herman E. Slotnick. Alaska: A History of the 49th State. 2nd ed. Norman, Okla.: University of Oklahoma Press, 1987. Nav Canada, “Customer Guide to Charges,” Nov. 15, 2013, http://www.navcanada.ca/EN/ media/Publications/Customer-Guide-Charges-EN.pdf, accessed Nov. 8, 2014. Neuman, Gerald L. “Anomalous Zones.” Stanford Law Review 48 (1996): 1197–1234. Noble, Lela Garner. Philippine Policy Toward Sabah: A Claim to Independence. Tucson: University of Arizona Press, 1977. Nguyen Quoc, Dinh, Patrick Daillier and Alain Pellet. Droit international public. 7th ed. Paris: L.G.D.J., 2002. O’Connell, D.P. “Independence and Succession to Treaties.” British Yearbook of International Law 38 (1962): 84–180. Oh, Se Eung. Dr. Philip Jaisohn’s Reform Movement, 1896–1898: A Critical Appraisal of the Independence Club. Lanham, Md.: University Press of America, 1995. Oliver, Selma. “A New Challenge to International Law: The Disappearance of the Entire Territory of a State.” International Journal on Minority and Group Rights 16 (2009): 209–43. Ollila, Jyri. Background Note/Seminar Briefing Paper: Agricultural and Food Policies— New Conceptions on Food Security. European Commission Bureau of European Policy Advisers, Jan. 23, 2012. Olwan, Mohamed Y. “International Canals.” In International Law: Achievements and Prospects, edited by Mohammed Bedjaoui, 999–1015. Paris: UNESCO, 1991. Omorogbe, Yinka, and Peter Oniemola. “Property Rights in Oil and Gas under Domanial Regimes.” in Property and the Law in Energy and Natural Resources, edited by Aileen McHarg, Barry Barton, Adrian Bradbrook and Lee Godden, 115–39. Oxford: Oxford University Press, 2010. Oppenheim, L. International Law: A Treatise, Vol. 1. 3rd ed. Edited by Ronald P. Roxburgh. London: Longmans, Green, 1920. Ortiz, Pacifico A. Legal Aspects of the North Borneo Question. Manila: Bureau of Printing, 1964. Ortolan, Eugène. Des Moyens d’Acquérir le Domaine International ou Propriété d’Etat entre les Nations, d’Après le Droit des Gens Public, Comparés aux Moyens d’Acquérir la

232

Bibliography

Propriété entre Particuliers, d’Après le Droit Privé; et suivis, de l’examen des principes de L’Equilibre Politique. Paris: Amyot, 1851. Ovchar, Alexander. “Estoppel in the Jurisprudence of the I.C.J.: A Principle Promoting Stability Threatens to Undermine It.” Bond Law Review 21, no. 1 (2009): art. 5. Pan, Philip P. “Ukraine’s extension of Russian base’s lease may challenge U.S. goals in region.” Washington Post, Apr. 28, 2010. Parsons, Timothy H. The British Imperial Century, 1815–1914: A World History Perspective. Lanham, Md.: Rowman & Littlefield, 1999. Pattan, Bruno. Launch Systems: Principles and Technologies. New York: Chapman & Hall, 1993. Pearce, Fred. “Africa’s Flourishing Niger Delta Threatened by Libya Water Plan.” Yale Environment 360, Feb. 3, 2011. http://e360.yale.edu/feature/africas_flourishing_ niger_delta_threatened_by_libya_water_plan/2366/, accessed Nov. 6, 2014. Pearson, Graham S. “The Threat of Deliberate Disease in the 21st Century.” In Biological Weapons Proliferation: Reasons for Concern, Courses of Action, edited by A.E. Smithson, 10–36. Washington: Henry L. Stimson Center, 1998. Pepper, Suzanne. Keeping Democracy at Bay: Hong Kong and the Challenge of Chinese Political Reform. Lanham, Md.: Rowman & Littlefield, 2008. Perrinjaquet, Jean. Des cessions temporaire de territoires: Etude de droit international. Bordeaux: Imprimerie Commerciale et Industrielle, 1904. Pettinato, Giovanni. “Il conflitto tra Lagaš ed Umma per la ‘Frontiera Divina’ e la sua soluzione durante la terza dinastia di Ur.” Mesopotamia 5–6 (1970–71): 281–320. Pic, Paul. “Influence de l’établissement d’un protectorat sur les traités antérieurement conclus avec des puissances tierces par l’état protégé.” Revue Générale de Droit Inter­ national Public 3, no. 6 (1896): 613–47. Plender, Richard, ed. International Migration Law, 2nd ed. Dordrecht: Martinus Nijhoff, 1988. Politis, Nicolas. La Guerre gréco-turque au point de vue du droit international. Paris: A. Pedone, 1898. Porrata-Doria, Jr., Rafael A. “The Philippine Bases and Status of Forces Agreement: Lessons for the Future.” Military Law Review 137 (1992): 67–102. Potter, Pitman B. “Note on the Distinction between Political and Technical Questions.” Political Science Quarterly 50, no. 2 (1935): 264–71. Poumarède, Jacques. “Gérer la frontière: La Commission Internationale des Pyrénées (1875–1900).” In La frontière franco-espagnole—Lieu de conflits interétatiques et de collaboration interrégionale, 71–94. Bordeaux: Presses Universitaires de Bordeaux, 1998. Pouvourville, Albert de. “Les fictions internationals en extrême-orient.” Revue Générale de Droit International Public 6 (1899): 113–25. Pryce, Paul. “The Sabah Conflict: Grim Vision for ASEAN Security Community?” China International Studies 39 (2013): 140–54.

Bibliography

233

Quigley, Harold S. “Foreign Concessions in Chinese Hands.” Foreign Affairs 7, no. 1 (1928): 150–55. Rais, Rasul B. The Indian Ocean and the Superpowers. Totowa, N.J.: Barnes & Noble, 1987. Ratzel, Friedrich. La Géographie politique: Les concepts fondamentaux. Translated by François Ewald. Paris: Fayard, 1987. Redgwell, Catherine, and Lavanya Rajamani. “Energy Underground: What’s International Law Got to Do With It?” In The Law of Energy Underground: Understanding New Developments in Subsurface Production, Transmission, and Storage, edited by Donald N. Zillman, Aileen McHarg, Lila Barrera-Hernandez and Adrian Bradbrook, 101–23. Oxford: Oxford University Press, 2014. Reid, Helen Dwight. International Servitudes in Law and Practice. Chicago: University of Chicago Press, 1932. Rhem, Kathleen T. “From Mayberry to Metropolis: Guantanamo Bay Changes.” American Forces Press Service News Articles. U.S. Department of Defense, Mar. 3, 2005. Rice-Oxley, Mark. “G8: Does World Need New Rules on Food Security?” Christian Science Monitor, July 8, 2009. Roche, Jean-Jacques. Relations internationals. 2nd ed. Paris: L.G.D.J., 2001. Román, J.-B. “Relation de la Chine.” In Archives de voyages, ou Collection des anciennes relations inédits ou très-rares, edited by H. Ternaux-Compans, 77–95. Paris: Arthus Bertrand, 1840. Rousseau, Charles. Cours de droit international public. Paris: Les Cours de Droit, 1956. ———. Droit International Public, Vol. 2. Paris: Sirey, 1974. Ruskola, Teemu. Legal Orientalism: China, the United States, and Modern Law. Cambridge, Mass.: Harvard University Press, 2013. “Russia Eyes Mediterranean as Alternative to Sevastopol Naval Base.” RIA Novosti, Sept. 15, 2008. “Russia Loses Coal Station; Japanese Have Occupied Ching-hai-Wen, Near Ma-sampho.” New York Times, Feb. 15, 1904. Russian Presidential Executive Office. “President Vladimir Putin and President Heydar Aliyev signed an agreement on the status and principles and terms of using the Daryal-type radar in Gabala.” Press release, Jan. 25, 2002. http://eng.kremlin.ru/ news/16231, accessed Aug. 14, 2014. Sandars, C.T. America’s Overseas Garrisons: The Leasehold Empire. Oxford: Oxford University Press, 2000. Scelle, Georges. Droit international public. 3rd ed. Paris: Les Cours de Droit/DomatMontchrestien, 1946–47. Schendel, Willem van. “Stateless in South Asia: The Making of the India-Bangladesh Enclaves.” Journal of Asian Studies 61, no. 1 (2002): 115–47.

234

Bibliography

Schrijver, Nico. Sovereignty over Natural Resources: Balancing Rights and Duties. Cambridge: Cambridge University Press, 2008. Schwarzenberger, Georg, and E.D. Brown. A Manual of International Law. 6th ed. Milton, U.K.: Professional Books, 1976. Selth, Andrew. “Chinese Military Bases in Burma: The Explosion of a Myth.” Griffith Asia Institute Regional Outlook Paper 10. Nathan, Qld: Griffith University, 2007. Sermet, Jean. “Le statut original du Pays Quint.” Pyrénées 183–84 (1995): 263–94. Sharma, Surya P. Territorial Acquisition, Disputes and International Law. The Hague: Martinus Nijhoff, 1997. Shaw, Malcolm N. International Law. 5th ed. Cambridge: Cambridge University Press, 2003. Shelest, J.W. “The Dryad Affair: Corporate Warfare and Anglo-Russian Rivalry for the Alaskan Lisière.” Paper presented at the Borderlands Conference, Whitehorse, Yukon, June 2–4, 1989. Shenon, Philip. “U.S. and Manila Agree on Terms for 10-Year Lease of Subic Bay.” New York Times, July 18, 1991. Smith, Ernest E. “From Concessions to Service Contracts.” Tulsa Law Journal 27, No. 4 (1991): 493–524. Smith, James McCall. “One Sovereign, Two Legal Systems: China and the Problem of Commitment in Hong Kong.” In Problematic Sovereignty: Contested Rules and Political Possibilities, edited by Stephen D. Krasner, 105–40. New York: Columbia University Press, 2001. Smith, Joseph. Historical Dictionary of United States-Latin American Relations. Lanham, Md.: Scarecrow Press, 2007. Smith, Woodruff D. “Friedrich Ratzel and the Origins of Lebensraum.” German Studies Review 3, no. 1 (1980): 51–68. So, Alvin Y. “Social Conflict in Hong Kong after 1997: The Emergence of a Post-modern Mode of Social Movements?” In China’s Hong Kong Transformed: Retrospect and Prospects Beyond the First Decade, edited by Ming K. Chan, 233–51. Hong Kong: City University of Hong Kong Press, 2008. Sodiqov, Alexander. “Russia Keeps Military Base in Tajikistan until 2042.” Analyst, Central Asia-Caucasus Institute, Oct. 17, 2012. “South Korea to Encourage Farming Abroad.” Oryza Rice News, Apr. 8, 2009. Starke, J.G. Introduction to International Law. 9th ed. London: Butterworths, 1984. Steckler, Larry Jerome. “The United States Government Withdrawal and Subsequent Closure of the United States Naval Complex at Subic Bay, Republic of the Philippines: A Management Case Study.” Master’s thesis, Naval Postgraduate School, 1992. Steinkeller, Piotr. “The Renting of Fields in Early Mesopotamia and the Development of the Concept of ‘Interest’ in Sumerian.” Journal of the Economic and Social History of the Orient 24, no. 2 (1981): 113–45.

Bibliography

235

Strauss, Michael J. “Boundaries in the Sky and a Theory of Three-Dimensional States.” Journal of Borderlands Studies 28, No. 3 (2013): 369–82. ———. “Cuba and State Responsibility for Human Rights at Guantanamo Bay.” Southern Illinois University Law Journal 37, no. 3 (2013): 533–50. ———. “Perspectives on the Future of Guantanamo Bay.” Cuba in Transition 19 (2009): 220–28. ———. “Prospects for Conflict to Spread through Bilateral Land Arrangements for Food Security.” In Food in Zones of Conflict: Cross-Disciplinary Perspectives, edited by Helen Macbeth and Paul Collinson, 197–207. Oxford: Berghahn, 2014. ———. “Redistribuer le territoire des états pour éviter les pénuries alimentaires.” In Enjeux Diplomatiques et Stratégiques 2010, edited by Pascal Chaigneau, 159–66. Paris: Economica, 2010. ———. “The Creation and Evolution of the Legal Black Hole at Guantánamo Bay.” Cuba in Transition 20 (2010): 286–93. ———. The Leasing of Guantanamo Bay. Westport, Conn.: Praeger, 2009. ———. “The State that Ate Europe! Iceland’s Volcanic Ash Cloud and Sovereignty over Mobile Territory.” Paper presented at the Border Regions in Transition XI conference, Geneva/Grenoble, Sept. 6–9, 2011. ———. The Viability of Territorial Leases in Resolving International Sovereignty Disputes. Paris: L’Harmattan, 2010. ———. “Ukraine Naval Base: Russia’s Guantanamo?” Star Tribune (Minneapolis, Minn.), Mar. 12, 2014. ———. “Would Greece Benefit by Ceding Control over Some of its Territory?” Global Minds Blog, Global Journal, Oct. 5, 2011. http://www.theglobaljournal.net/article/ view/234/, accessed Aug. 11, 2014. Sukiennicki, Wiktor. La Souveraineté des Etats en Droit International Moderne. Paris: A. Pedone, 1927. Summers, James. Peoples and International Law, 2nd ed. Leiden: Martinus Nijhoff, 2014. Tai, En-Sai. Treaty Ports in China: A Study in Diplomacy. New York: Columbia University Press, 1918. Tan, Carol G.S. British Rule in China: Law and Justice in Weihaiwei, 1898–1930. London: Wildy, Simmonds & Hill, 2008. Teodosijević, Slobodanka B. “Armed Conflicts and Food Security.” ESA Working Paper 03–11. Food and Agriculture Organization, 2003. The Cambridge History of Africa, Vol. 6. Edited by Roland Oliver and G.N. Sanderson. Cambridge: Cambridge University Press, 1985. The Cambridge History of China, Vol. 12. Edited by Denis Twitchett and John K. Fairbank. Cambridge: Cambridge University Press, 1983. The Cambridge Modern History, Vol. 6. Edited by A.W. Ward, G.W. Prothero and Stanley Leathes. 1909. Reprint, New York: Macmillan, 1934.

236

Bibliography

Tieya, Wang. “International Law in China: Historical and Contemporary Perspectives.” In Collected Courses of the Hague Academy of International Law, Vol. 221, 195–369. The Hague: Kluwer, 1991. Timasheff, N.S. “A Study in the Theory of Territorial Settlement.” The Review of Politics 6, no. 2 (1944): 175–92. Townsend, Gregory. “State Responsibility for Acts of De Facto Agents.” Arizona Journal of International and Comparative Law 14, No. 3 (1997): 635–78. Tsang, Steve. Governing Hong Kong: Administrative Officers from the Nineteenth Century to the Handover to China, 1862–1997. London: I.B. Tauris, 2007. ———, ed. Government and Politics: A Documentary History of Hong Kong. Hong Kong: Hong Kong University Press, 1995. Tummala, Krishna K. Public Administration in India. Mumbai: Allied Publishers, 1996. Tyagi, Yogesh. “The Denunciation of Human Rights Treaties.” In The British Yearbook of International Law 2008. Oxford: Oxford University Press, 2009. Tyau, Min-Ch’ien T.Z. The Legal Obligations Arising out of Treaty Relations between China and Other States. Shanghai: Commercial Press, 1917. U.K. Government. “Types of British Nationality.” https://www.gov.uk/types-of-britishnationality/overview, accessed Sept. 4, 2014. U.K. House of Commons. Statements by Sir Edward Grey, Undersecretary of State for Foreign Affairs, June 13, 1895. In Hansard, Ser. 4, Vol. 34. London: 1895. ———. Testimony by Sir George Simpson, Governor of the Hudson’s Bay Company, Feb. 26, 1857. In Report from the Select Committee on the Hudson’s Bay Company, 44–77. London: 1857. U.S. Army. Operational Law Handbook. Charlottesville, Va.: Judge Advocate General’s Legal Center and School, 2013. U.S. Congress. Joint Committee on Taxation. Federal Tax Law and Issues Related to the United States Territories. JCX-41-12. May 14, 2012. U.S. Department of State. Cable to the U.S. Embassy in Paris, U.S. Embassy in Bern et  al., May 8, 1974. U.S. National Archives, Record Group 59, File Unit Electronic Telegrams 1/1/1974–12/31/1974, Document No. 1974STATE094834. ———. Catalogue of Treaties: 1814–1918. Washington: Government Printing Office, 1919. ———. Foreign Relations of the United States 1969–1976, Vol. 24. Edited by Linda W. Qaimmaqami and Adam M. Howard. Washington: U.S. Government Printing Office, 2008. U.S. Internal Revenue Service. “Persons Employed in U.S. Possessions.” http://www.irs .gov/businesses/small/international/article/0,,id=105253,00.html, accessed May 27, 2008. U.S. National Archives. Records of Former Russian Agencies. “Records of the RussianAmerican Company.” http://archives.gov/research/guide-fed-records/groups/261 .html, accessed Mar. 5, 2014.

Bibliography

237

U.S. Naval War College. International Law Situations with Solutions and Notes, 1907. Washington: Government Printing Office, 1908. ———. International Law Situations with Solutions and Notes, 1912. Washington: Government Printing Office, 1912. U.S. Navy, Fourteenth Naval District. Administrative History of the Fourteenth Naval District and the Hawaiian Sea Frontier, Vol. 1. Hawaii: U.S. Department of the Navy, 1945), , accessed Apr. 15, 2014. U.S. Senate. Alaskan Boundary Tribunal: Proceedings of the Alaskan Boundary Tribunal, Vol. IV. Document 162. Washington: Government Printing Office, 1903. U.S. Senate Committee on Oceanic Canals. Testimony by William Howard Taft, Apr. 18, 1906. In Investigation of Panama Canal Matters, Vol. 3. Washington: Government Printing Office, 1906. Utton, Albert E., and Paul D. McHugh. “On an Institutional Arrangement for Developing Oil and Gas in the Gulf of Mexico.” Natural Resources Journal 26 (1986): 717–32. Vadney, T.E. The World Since 1945, 3rd ed. London: Penguin, 1998. Váli, F.A. Servitudes of International Law. 2nd ed. London: Stevens & Sons, 1958. Van Kleffens, Eelco Nicolaas. “Sovereignty in International Law,” in Recueil des cours de l’Académie de Droit International de La Haye, Vol. 82, 1953-I, 1–131. Leiden: A.W. Sijthoff, 1954. Vattel, Emmerich de. The Law of Nations, or Principles of the Law of Nature. Translation. London: G.G. and J. Robinson, 1797. Verzijl, J.H.W. International Law in Historical Perspective, Vol. 3. Leiden: A.W. Sijthoff, 1970. Vignau, R. “Aspect historique et juridique du Pays-Quint.” Traditions des Aldudes (monograph edition of Gure Herria, Nos. 4–5), 65–87. Ustaritz, France: Editions Gure Herria, 1964. Visscher, Charles de. “L’Occupation de guerre.” The Law Quarterly Review 34 (1918): 72–81. Von der Goltz, Horst. My Adventures as a German Secret Agent. New York: Robert M. McBride, 1917. Wang, Dong. China’s Unequal Treaties: Narrating National History. Oxford: Lexington Books, 2005. Wang, Jen-Huong. “Some Cultural Factors Affecting Chinese in Treaty Negotiation.” In Cultural Factors in International Relations, edited by R.P. Anand, 97–112. New Delhi: Abhinav Publications, 1981. Watts, Ron. “International Examples of Political Partnerships.” Policy Options, Mar. 1998: 47–49. Wei, Dan. “Macao’s Legal System under Globalization and Regional Integration: Between Tradition and Evolution.” Paper presented at the Cambridge Journal of International and Comparative Law annual conference, Cambridge, May 18–19, 2013.

238

Bibliography

Wesley-Smith, Peter. “Cultural Problems in Negotiation of the Convention of Peking, 1898.” In Cultural Factors in International Relations, edited by R.P. Anand, 113–28. New Delhi: Abhinav Publications, 1981. Whitby, Simon M. “Anticrop Biological Weapons Programs.” In Deadly Cultures: Biological Weapons Since 1945, edited by Mark Wheelis, Lajos Rózsa and Malcolm Dando, 213–23. Cambridge, Mass.: Harvard University Press, 2006. Whyte, Brendan R. “Waiting for the Esquimo: An Historical and Documentary Study of the Cooch Behar Enclaves of India and Bangladesh.” Research Paper 8, University of Melbourne, School of Anthropology, Geography and Environmental Studies, 2004. Williams, Carol J. “At Guantanamo, a Cross-the-Fence Chat.” Los Angeles Times, October 20, 2006. Willoughby, Westel Woodbury. An Examination of the Nature of the State: A Study in Political Philosophy. New York: Macmillan, 1911. ———. Foreign Rights and Interests in China. Baltimore: Johns Hopkins Press, 1920. Wong, Hon-Keung. Economy of Macao. Translated by Weiwen Huang. Macao: Va Kio, 1988. Woodliffe, John. The Peacetime Use of Foreign Military Installations under Modern International Law. Dordrecht: Martinus Nijhoff, 1992. Yang, Léon (Yang Lieou-Fong). Les Territoires à bail en Chine: Etude d’Histoire diplomatique et de Droit international. Paris: Presses Universitaires de France, 1929. Yin-T’ang, Kao. “The Lease Conventions in China.” Chinese Social and Political Science Review 12 (1928): 516–42. Young, C. Walter. The International Legal Status of the Kwantung Leased Territory. Baltimore: Johns Hopkins Press, 1931. Zhidong, Hao. Macao History and Society. Hong Kong: Hong Kong University Press, 2011. Zimmerman, Maurice. “La Mission Lenfant à Say et la navigabilité du Bas Niger.” Annales de geographie 10, no. 54 (1901): 473–74.

Bibliography

239

Interviews with the Author Officers at U.S. Naval Station Guantanamo Bay, January 2008. Gideon Behar (by telephone), Israel Ministry of Foreign Affairs, Jordan Division, July 13, 2005. Secretary to the Minister, Jordan Ministry of Foreign Affairs (by telephone), July 10, 2005.

Speeches Mahuad, Jamil. “The Ethics of Governance.” Lecture given at the Markkula Center for Applied Ethics, Santa Clara University, Calif., Jan. 12, 2005. http://www.scu.edu/ ethics/practicing/focusareas/global_ethics/laughlin-lectures/ethics-governancemahuad.html, accessed Jan. 10, 2014. Rabin, Yitzhak. Speech to the Israeli Knesset (parliament). Jerusalem, Oct. 25, 1994. http://mfa.gov.il/MFA/PressRoom/1994/Pages/PM%20RABIN%20AT%20 KNESSET%20DEBATE%20ON%20THE%20APPROVAL%20OF%20ISRA.aspx, accessed Nov. 6, 2013.

International Documents Crawford, James. Second Report on State Responsibility—Addendum. International Law Commission. U.N. General Assembly Doc. A/CN.4/498/Add.2, Apr. 30, 1999. Draft Articles on Nationality of Natural Persons in Relation to Succession of States, in Yearbook of the International Law Commission, 1999, Vol. 2, Part 2, U.N. Doc. A/CN.4/ SER.A/1999/Add.1 (Part 2), 23–47. Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Yearbook of the International Law Commission, 2001, Vol. 2, Part 2, U.N. Doc A/CN.4/SER.A/2001/ Add.1 (Part 2), 20–30. International Law Commission, “Succession of States in respect of Treaties,” Report of the I.L.C., 26th Session, in Yearbook of the International Law Commission, 1974, Vol. 2, Part 1, U.N. Doc. A/CN.4/SER.A1974/Add.1 (Part 1) (1975), 162–269. International Law Commission, 1443rd meeting, June 20, 1977: Succession of states in respect of matters other than treaties (continued), in Yearbook of the International Law Commission, 1977, Vol. 1, U.N. Doc. A/CN.4/SER.A/1977, 146–52. General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer State’ Status in United Nations. U.N. General Assembly Doc. GA/11317, Nov. 29, 2012.

240

Bibliography

Materials on the Responsibility of States for Internationally Wrongful Acts. United Nations Legislative Series, Book 25. U.N. Doc. ST/LEG/SER.B/25. New York: United Nations: 2012. Ninth Report on Succession of States in Respect of Matters Other Than Treaties, in Yearbook of the International Law Commission, 1977, Vol. 2, Part 1, U.N. Doc. A/CN.4/ SER.A/1977/Add.1 (Part 1), 45–117. Report of the International Law Commission, 58th Session, U.N. General Assembly Doc. A/61/10, 2006. U.N. General Assembly Resolution 626 (VII), Dec. 21, 1952 (“Right to Exploit Freely Natural Wealth and Resources”). U.N. General Assembly Resolution 1515 (XV), Dec. 15, 1960 (“Concerted Action for Economic Development of Economically Less Developed Countries”). U.N. General Assembly Resolution 1803 (XVII), Dec. 14, 1962 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 2158 (XXI), Nov. 25, 1966 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 2386 (XXIII), Nov. 19, 1968 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 2692 (XXV), Dec. 11, 1970 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 3016 (XXVII), Dec. 18, 1972 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 3171 (XXVIII), Dec. 17, 1973 (“Permanent Sovereignty over Natural Resources”). U.N. General Assembly Resolution 3281 (XXIX), Dec. 12, 1974 (“Charter of Economic Rights and Duties of States”). World Bank, Africa: The Great Lakes Corridor Study, Doc. No. 8694-AFR (1990).

Treaties and Conventions Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield between the Islamic Republic of Afghanistan, represented by His Excellency General Abdul Rahim Wardak, Minister of Defense of the Office of the Ministry of Defense, and the United States of America (“Bagram Lease”), Sept. 28, 2006, Afg.U.S., Doc. DACA-AED-5-06-6559. Accordo fra l’Italia e la Gran Bretagna per l’affitto al Governo italiano di un territorio vicino a Kisimaio [Agreement between Italy and Great Britain for the Lease to the Italian Government of a Territory Near Kismayu] (“Kismayu Lease”), Jan. 13, 1905, Italy-Gr. Brit., 17 Trattati e Convenzioni 488.

Bibliography

241

Agreement amending the Agreement of March 14, 1947, as amended, concerning military bases, with implementing arrangements, Jan. 7, 1979, U.S.-Phil., 30 U.S.T. 863, T.I.A.S. No. 9224. Agreement between Great Britain and Belgium Settling the Boundary between Uganda and the Congo, May 14, 1910, Gr. Brit.-Belg., 107 British and Foreign State Papers 348. Agreement between Great Britain and China, Modifying the Convention of March 1, 1894, Relative to Burmah and Thibet (“Sino-British Boundary Treaty”), Feb. 4, 1897, Gr. Brit.-China, 89 British and Foreign State Papers 25. Agreement between Great Britain and Italy, respecting the Benadir Coast and Jurisdiction in Zanzibar, Jan. 13, 1905, Gr. Brit.-Italy, 3 Hertslet, The Map of Africa by Treaty, 3rd ed. 954 (H.M. Stationery Office 1909). Agreement between Great Britain and the Independent State of the Congo, modifying the Agreement signed at Brussels, 12th May 1894, May 9, 1906, Gr. Brit.-Congo, art. I, 2 Hertslet, The Map of Africa by Treaty, 3rd ed. 584 (Routledge 1967) (1909). Agreement between the British East Africa Company and the Italian Government, respecting the proposed Concession by the Sultan of Zanzibar to the Company of Territories, &c, on the East African Coast, including Kismayu, Brava, Muerka, Mogadisho, and Warsheikh, and the Transfer of Those Territories to Italy, Aug. 3, 1889, trans., 1 Hertslet, The Map of Africa by Treaty, 2nd ed. 137 (H.M. Stationery Office 1896). Agreement between the Government of the People’s Republic of Bangladesh and the Government of the Republic of India concerning the demarcation of the land boundary between Bangladesh and India and related matters (“Land Boundary Agreement”), May 16, 1974, Bangl.-India, Bangladesh Gazette (Extraordinary), Nov. 28, 1974, 6274–77. Agreement between the Government of the Republic of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (“Enhanced Defense Cooperation Agreement”), Apr. 28, 2014, Phil.-U.S., http:// www.philembassy.no/sites/default/files/downloads/edca.pdf, accessed Oct. 13, 2014. Agreement between the Republic of Finland and the Union of Soviet Socialist Republics concerning the Lease to the Republic of Finland of the Soviet Part of the Saimaa Canal and Maly Vysotsky Island (“Saimaa Canal Treaty”), Sept. 27, 1962, Fin.U.S.S.R., 479 U.N.T.S. 122; renewed by Договор между Российской Федерацией и Финляндской Республике об аренде Финляндской Республикой российской части Сайменского канала и прилегающей к нему территории и об осуществлении судоходства через Сайменский канал [Agreement between the Russian Federation and the Republic of Finland on Finland’s Lease of the Russian Part of the Saimaa Canal and the Adjacent Area and on the Implementation of

242

Bibliography

Navigation through the Saimaa Canal] (“Saimaa Canal Renewal Agreement”), May  27, 2010, Russ.-Fin., Бюллетень международных договоров [Bulletin of International Treaties] 2012, no. 5. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, May 10, 1976, U.K.-Nor., 1098 U.N.T.S. 3. [Agreement between the Russian Federation and the Republic of Azerbaijan on the Status, Principles and Conditions of Use of the Gabala Radar Station (“DTV” Radar)]. Соглашение между Российской Федерацией и Азербайджанской Республикой о статусе, принципах и условиях использования Габалинской радиолокационной станции (РЛС “Дарьял”) (“Gabala Radar Station Lease”), Jan. 25, 2002, Russ.-Azer., Consultant Plus database, http://base.consultant.ru/cons/ cgi/online.cgi?req=doc;base=INT;n=11685, accessed Aug. 21, 2014. Agreement between the Russian Federation Government and the Ukrainian Government on Mutual Settlements Associated with the Division of the Black Sea Fleet and the Russian Federation Black Sea Fleet’s Presence on Ukrainian Territory (“Sevastopol Lease”), June 7, 1997, Russ.-Ukr., trans., http://zakon.nau.ua/eng/ doc/?uid=3016.169.0, accessed Nov. 13, 2013; renewed by Угода між Україною та Російською Федерацією з питань перебування Чорноморського флоту Російської Федерації на території України [Agreement between Ukraine and the Russian Federation about the Russian Federation’s Black Sea Fleet on Ukrainian Territory] (“Sevastopol Lease Renewal”), Apr. 21, 2010, Ukr.-Russ., http://zakon.nau .ua/doc/?uid=1079.4819.0, accessed Nov. 13, 2013. Agreement Between the State of Kuwait and the Kingdom of Saudi Arabia relating to the Partition of the Neutral Zone, July 7, 1965, Kuwait-Saudi Arabia, 4 I.L.M. 1134. Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations (“Guantanamo Lease”), Feb. 23, 1903, U.S.-Cuba, T.S. No. 418. Agreement Between the United States of America and Great Britain Respecting Leased Naval and Air Bases (“Atlantic Leased Bases Agreement”), Mar. 27, 1941, U.S.-Gr. Brit., 55 Stat. 1560, E.A.S. No. 235; preceded by Cordell Hull to the Marquess of Lothian, exchange of notes (“Destroyers for Bases Agreement”), Sept. 2, 1940, U.S.-Gr. Brit., E.A.S. No. 235. Agreement between the United States of America and the Philippines amending the Agreement of March 14, 1947, as amended, effected by an exchange of notes signed at Washington, Sept. 16, 1966, U.S.-Phil., 17 U.S.T. 1212, T.I.A.S. No. 6084. Agreement between the United States of America and the Republic of the Philippines concerning Military Bases (“Military Bases Agreement”), Mar. 14, 1947, U.S.-Phil., 61 Stat. 4019, T.I.A.S. No. 1775.

Bibliography

243

Agreement Concerning Dairen, Aug. 14, 1945, China-U.S.S.R., trans., 40 A.J.I.L. 55. Agreement Concerning the Availability for Defense Purposes of the British Indian Ocean Territory (“Diego Garcia Lease”), Dec. 30, 1966, U.K.-U.S., 603 U.N.T.S. 273. Agreement for the Establishment in the Bahama Islands of a Long-Range Proving Ground for Guided Missiles (“Long-Range Proving Ground Agreement”), July 21, 1950, U.S.-U.K., 1 U.S.T. 545, T.I.A.S. 2099, 97 U.N.T.S. 193. Agreement on Defense and Economic Cooperation between the Government of the United States of America and the Government of the Hellenic Republic, Sept. 8, 1983, U.S.-Greece, 35 U.S.T. 2641, T.I.A.S. No. 10814. Agreement on Port Arthur, Aug. 14, 1945, trans., 40 A.J.I.L. 56; and Appendix to “Agreement on Port Arthur, Aug. 14, 1945, trans., 40 A.J.I.L. 57. Agreement Relating to the Joint Exploitation of the Natural Resources of the Sea-Bed and Sub-Soil of the Red Sea in the Common Zone, May 16, 1974, Sudan-Saudi Arabia, in United Nations, National Legislation and Treaties Relating to the Law of the Sea, (New York: United Nations, 1976), 452. Arrangement concernant le paiement du prix du bail des herbages et eaux du versant septentrional du Pays-Quint, diplomatic note, Dec. 15, 1911, Spain-Fr., France Ministry of Foreign Affairs, Archives diplomatiques, http://www.doc.diplomatie.fr/ BASIS/pacte/webext/bilat/DDD/19110008.pdf, accessed July 7, 2003. Boundary Treaty between the Union of Burma and the People’s Republic of China, Oct. 1, 1960, Burma-P.R.C., 1010 U.N.T.S. 111. Concession by the Sultan of Zanzibar to the British East Africa Company of certain Islands, and of certain places on the Benadir Coast, Mar. 4, 1890, trans., 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 362 (Frank Cass 1967) (1909). Concession given by His Highness the Sayyid Khalifa, Sultan of Zanzibar, to the Imperial British East Africa Company, Oct. 9, 1888, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 350 (Frank Cass 1967) (1909). Concession granted by the Sultan of Zanzibar to the British East Africa Association, May 24, 1887, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 339 (Frank Cass 1967) (1909). Concession of Benadir Ports granted by the Government of His Highness the Sultan of Zanzibar to the Government of His Majesty the King of Italy, Aug. 12, 1892, ZanzibarItaly, 2 Hertslet, The Map of Africa by Treaty, 2nd ed. 950 (H.M. Stationery Office 1896). Convenio Marco del Proyecto Binacional de Amistad, Cooperación e Integración “Gran Mariscal Andrés de Santa Cruz” [Framework Agreement for the Binational Friendship, Cooperation and Integration Project “Grand Marshal Andrés de Santa Cruz”] (“Boliviamar Agreement”), Jan. 24, 1992, Bol.-Peru; revived and expanded by Protocolo Complementario y Ampliatorio a los Convenios de Ilo suscritos entre

244

Bibliography

Bolivia y Perú [Supplementary Protocol Expanding the Ilo Conventions signed by Bolivia and Peru] (“Boliviamar Supplementary Protocol”), Oct. 19, 2010, Bol.-Peru. Convenio reglamentando el arrendamiento de las Estaciones Navales y Carboneras, hecho por el de 16/23 de febrero, July 2, 1903, Cuba-U.S. [Spanish text of Guantanamo Treaty, July 2, 1903], República de Cuba, Colección Legislativa: Secretaría de Estado y Justicia, Departamento de Estado, de 20 de mayo de 1902 á 30 de junio de 1905, Vol. 2 (Havana: Rambla y Bouza, 1906), 201–04. Convention between Great Britain and Belgium with a View to Facilitating Belgian Traffic Through the Territories of East Africa (“Belbase Agreement”), Mar. 15, 1921, Gr. Brit.-Belg., 1921 Gr. Brit. T.S. No. 11, Cmnd. 1327. Convention between Great Britain and China respecting Weihaiwei (“Wei-hai-wei Lease”), July 1, 1898, Gr. Brit.-China, 1 Hertslet’s China Treaties, 3rd ed. 122 (H.M. Stationery Office 1908), Gr. Brit. T.S. 14/1898. Convention between China and Great Britain respecting an Extension of Hong Kong Territory, June 9, 1898 (“Convention of Peking”), China-Gr. Brit., 186 Consol. T.S. 310, 90 British and Foreign State Papers 17. Convention between Great Britain and Russia Concerning the Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean (“Treaty of St. Petersburg”), Feb. 16, 1825, Gr. Brit.-Russ., 75 Consol. T.S. 95. Convention (II) with Respect to the Laws and Customs of War on Land and Annex: Regulations respecting the Laws and Customs of War on Land, July 29, 1899, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol. T.S. 429. Convention between Russia and China for the Lease to Russia of Port Arthur, Talienwan, and the Adjacent Waters (“Kwantung Lease”), Mar. 27, 1898, Russ.-China, trans., 4 A.J.I.L. Supp. 289. Convention between the National Government of the Republic of China and the Provisional Government of the French Republic for the Return of the Leased Territory of Kwang-chow-wan, Aug. 18, 1945, China-Fr., trans., 14 U.N.T.S. 483. Convention between the United Kingdom and France for the Delimitation of their Respective Possessions to the West of the Niger, and of their Respective Possessions and Spheres of Influence to the East of that River (“Niger Convention”), June 14, 1898, U.K.-Fr., art. VIII and annex 4, 30 Martens Nouveau Recueil (ser. 2) 249. Convention concerning the Confirmation of the Treaty between MecklenburgSchwerin and Sweden on the subject of the Cession to Mecklenburg of the City and Domain of Wismar, June 20, 1903, Swed.-Ger., 31 Martens Nouveau Recueil (ser. 2), 574. Convention d’investissement dans le Domaine agricole entre La République du Mali et La Grande Jamahiriya arabe Libyenne populaire et socialiste (“Malibya Convention”),

Bibliography

245

May 9, 2008, Libya-Mali, http://farmlandgrab.org/wp-content/uploads/2010/07/ Convention.pdf, accessed October 30, 2013. Convention for the Rendition of Weihaiwai, Apr. 18, 1930, Gr. Brit.-China, Apr. 18, 1930, 112 L.N.T.S. 49. Convention entre la France et la République de Gènes, touchant l’Ile de Corse (“Treaty of Compiègne”), Aug. 6, 1764, Fr.-Genoa, 1 Martens Recueil 265. Convention entre la France et la République de Gènes, touchant l’Ile de Corse (“Treaty of Versailles”), May 15, 1768, Fr.-Genoa, art. I-II, 1 Martens Recueil 591. Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans (“Hay-Bunau-Varilla Treaty”), Nov. 18, 1903, U.S.-Pan., 33 Stat. 2234. Convention for the Lease of Kuang-chou Wan, May 27, 1898, Fr.-China, trans., 4 A.J.I.L. Supp. 293. Convention of Defensive Alliance between Great Britain and Turkey (“Cyprus Convention”), June 4, 1878, Gr. Brit.-Turk., 69 British and Foreign State Papers 744. Convention of Peace and Friendship between Great Britain and China (“Convention of Peking”), Oct. 24, 1860, Gr. Brit-China, 1 Hertslet’s China Treaties, 3rd ed. 48 (H.M. Stationery Office 1908). Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187. Convention on Interoceanic Canal (“Bryan-Chamorro Treaty”), Aug. 5, 1914, U.S.-Nicar., 39 Stat. 1661, T.S. No. 624, 10 Bevans 379. Convention on Rights and Duties of States (“Montevideo Convention”), Dec. 26, 1933, 165 L.N.T.S. 19, 49 Stat. 3097. Convention Respecting an Extension of Hong Kong Territory (“Convention of Peking”), June 9, 1898, Gr. Brit.-China, 90 British and Foreign State Papers 17. Convention (IV) respecting the Laws and Customs of War on Land (“Hague Regulations”), Oct. 18, 1907, annex, art 42, 36 Stat. 2277, 205 Consol. T.S. 277. Convention to Cancel the Treaty of Malmö concerning the Cession to Meklenburg of the City and Domain of Wismar (“Treaty of Stockholm”), June 20, 1903, MecklenburgSchwerin-Swed., 31 Martens Nouveau Recueil (ser. 2) 572. Declaration between Great Britain and the Sultan of Muskat and Oman providing for the Non-cession of Territory except to Great Britain, Mar. 20, 1891, Gr. Brit.-Muscat, 6 Martens Nouveau Recueil (ser. 3) 287. Declaration of the First Meeting of Equatorial Countries (“Bogotá Declaration”), Dec. 3, 1976, Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, Zaire, I.T.U. Doc. WARC-BS (1977) 81-E, Jan. 17, 1977. Deed of Lease, Mar. 20, 1860, Gr. Brit.-China. Lease of Kowloon, Historical Laws of Hong Kong Online, http://oelawhk.lib.hku.hk/items/show/1014, accessed Apr. 8, 2014.

246

Bibliography

Friendship and Cooperation Treaty (“Hull-Alfaro Treaty”), Mar. 2, 1936, U.S.-Pan., 53 Stat. 1807, T.S. No. 945, 10 Bevans 742. Grant by Sultan of Sulu of Territories and Lands on the Mainland of the Island of Borneo, Jan. 22, 1878, trans., Treaties and Engagements Affecting the Malay States and Borneo, ed. William George Maxwell and William Sumner Gibson (London: Jas. Truscott and Sons, 1924), 158–60; Grant by the Sultan of Sulu of a Permanent Lease covering his Lands and Territories on the Island of Borneo, Jan. 22, 1878, trans., Philippines Department of Foreign Affairs, Philippine Claim to North Borneo, Vol. 1 (Manila: Bureau of Printing, 1965), 63–64. Insular Possessions and Dominions in the Pacific (“Four-Power Treaty”), Dec. 13, 1921, U.S.-Gr. Brit.-Fr.-Japan, art. I, 43 Stat. 1646, T.S. No. 669. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (“Sino-British Joint Declaration on Hong Kong”), Dec. 19, 1984, U.K.-P.R.C., 1399 U.N.T.S. 61. Joint Declaration on the Question of Macao, Apr, 13, 1987, Port.-China, 1498 U.N.T.S. 195. Küstenvertrag. Seine Hoheit Seyyid Khalifa ben Said, Sultan von Zanzibar, und die Deutsche-Ostafrikanische Gesellschaft [Coastal Contract between His Highness Seyyid Khalifa ben Said, Sultan of Zanzibar, and the German East Africa Company], Apr. 28, 1888, trans., in Bruno Kurtze, Die Deutsche-Ostafrikansche Gesellschaft (Jena: Gustav Fischer, 1913), 183–87. Lease by the British Government to the French Government of a Piece of Land Situated at the Junction of the Doko with the Niger (Badjibo), May 20, 1903, Gr. Brit.-Fr., 2 Hertslet, The Map of Africa by Treaty, 3rd ed. 812 (H.M. Stationery Office 1909). Lease by the British Government to the French Government of a Piece of Land Situated at the Mouth of the Niger known as the Forcados River, May 20, 1903, Gr. Brit.-Fr., 2 Hertslet, The Map of Africa by Treaty, 3rd ed. 814 (H.M. Stationery Office 1909). Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (“Guantanamo Treaty”), July 2, 1903, U.S.-Cuba, T.S. No. 426. Military Bases in the Philippines—Relinquishment of Certain Base Lands; Use by the United States of Certain Other Areas, Dec. 22, 1965, U.S.-Phil., T.I.A.S. No. 5924. On Basic Principles and Terms of the Utilization of the Baikonur Cosmodrome Agreement Between the Russian Federation and the Republic of Kazakhstan, Mar.  28, 1994, Russ.-Kaz., trans. Maria Bjornerud, in Maria Bjornerud, “Baikonur Continues: The New Lease Agreement between Russia and Kazakhstan,” Journal of Space Law 30 (2004): 26–31; revised and prolonged by Agreement between the Russian Federation and the Republic of Kazakhstan on the Cooperation in the Effective Use of the Baikonur Facility, Jan. 9, 2004, Russ.-Kaz., trans. Maria Bjornerud, in ibid., 32–34.

Bibliography

247

Panama Canal Treaty, Sept. 7, 1977, U.S.-Pan., 33 U.S.T. 39, T.I.A.S. No. 10030. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (“Geneva Protocol”), June 17, 1925, 94 L.N.T.S. 65. Protocol to the Agreement on Dairen, Aug. 14, 1945, trans., 40 A.J.I.L. 55. Relinquishment of Olangapo and Adjacent Areas (“Bohlen-Serrano Agreement”), Dec. 7, 1959, U.S.-Phil., 10 U.S.T. 2169, T.I.A.S. No. 4388. Supplementary Agreement concluded between His Highness Seyyid Ali, G.C.S.I., Sultan of Zanzibar, and Mr. George McKenzie, Director and Acting Administratorin-Chief of the Imperial British East Africa Company, March 5, 1891, 1 Hertslet, The Map of Africa by Treaty, 3rd ed. 365 (Frank Cass 1967) (1909). Supplementary Convention to Limit the Duration of the Convention Respecting Commercial Reciprocity between the United States of America and the Hawaiian Kingdom, Dec. 6, 1884, U.S.-Hawaii, 25 Stat. 1399, T.S. No. 163, 8 Bevans 878. Terms of Lease in Perpetuity of Tin Bigha—Area (“Tin Bigha Lease”), Oct. 7, 1982, India-Bangl., http://www.hcidhaka.org/terms_lease.php, accessed Nov. 14, 2013; and Letter of Foreign Secretary of India Implementing Tin Bigha Lease, Mar. 26, 1992, India-Bangl., http://www.hcidhaka.org/letter_sc.php, accessed Nov. 14, 2013. Traité définitif de limites entre la France et l’Espagne, pour établir une ligne divisoire aux Aldudes ou Quint-Royal et Val-Carlos, et pour déterminer les limites des deux monarchies dans cette partie des Pyrénées [Definitive Boundary Treaty between France and Spain to Establish a Dividing Line in the Aldudes or Quint-Royal, and to Determine the Boundary of the Two Monarchies in This Part of the Pyrenees] (“Treaty of Elizondo”), Aug. 27, 1785, Fr.-Spain, art. V, Chr. Koch, Table des traités entre la France et les puissances étrangères, suivie d’un Recueil de traités et actes diplomatiques qui n’ont pas encore vu le jour, Vol. 2 (Basel: J. Decker, 1802), 477–91. Tratado de Amizade e Commercio entre Portugal e a China [Treaty of Amity and Commerce] (“Treaty of Peking”), Dec. 1, 1887, Port.-China, 78 British and Foreign State Papers 521. Tratado de Amizade e Commercio entre sua majestade fidelissima El Rei de Portugal e sua majestade O Imperador Da China [Treaty of Amity and Commerce], Aug. 13, 1862, Port.-China, 55 British and Foreign State Papers 790. Tratado de Paz y Amistad entre Chile y el Perú [Treaty of Peace and Friendship Between Chile and Peru] (“Treaty of Ancón”), Oct. 20, 1883, Chile-Peru, 162 Consol. T.S. 453. Treaty between China and Germany respecting the Lease of Kiao-Chau to Germany (“Kiaochow Convention”), March 6, 1898, China-Ger., trans., 1 Hertslet’s China Treaties, 3rd ed. 350 (H.M. Stationery Office 1908).

248

Bibliography

Treaty between China and Japan respecting Manchuria (“Treaty of Peking”), Dec. 22, 1905, China-Japan, trans., 1 Hertslet’s China Treaties, 3rd ed. 391 (H.M. Stationery Office 1908). Treaty Between His Majesty in Respect of the United Kingdom and India and His Excellency the President of the National Government of the Republic of China for the Relinquishment of Extra-Territorial Rights in China and the Regulation of Related Matters (“Sino-British New Equal Treaty”), Jan. 11, 1943, Gr. Brit.-China, Gr. Brit. T.S. 2/1943. Treaty between Japan and China for the Settlement of Outstanding Questions relative to Shantung, Feb. 4, 1922, Japan-China, trans., 16 A.J.I.L. Supp. 84. Treaty Between the United States of America and the Republic of China for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters (“Sino-American New Equal Treaty”), Jan. 11, 1943, U.S.-China, 57 Stat. 767, T.S. 984. Treaty Delimiting the Frontier from the Mouth of the Bidassoa to the Point where the Department of Basses-Pyrenees Adjoins Aragon and Navarra (“Treaty of Bayonne”), Dec. 2, 1856, Spain-Fr., 1142 U.N.T.S. 318, trans. 371; Convention Supplementary to the Above-Mentioned Treaty, Dec. 28. 1858, Spain-Fr., 1142 U.N.T.S. 332, trans. 378. Treaty of Amity, Commerce and Navigation between the United States of America and the King of Tonga, Oct. 2, 1886, U.S.-Tonga, 25 Stat. 1440, T.S. 357, 11 Bevans 1043. Treaty between the British Government and Maharajah Golab Sing of Jummoo (“Treaty of Amritsar”), Mar. 16, 1846, Gr. Brit.-Jummoo (Jammu), 9 Aitchison’s Treaties 353. Treaty for the Enlargement of the Guantanamo Naval Station, Dec. 27, 1912, U.S.-Cuba, F.R.U.S. 1912, 295–97. Treaty of Berlin, July 13, 1878, Ger.-Aus. Hung.-Fr.-Gr. Brit.-Italy-Rus.-Turk., 3 Martens Nouveau Recueil (ser. 2) 449. Treaty of Friendship and Alliance, Aug. 14, 1945, China-U.S.S.R., trans., 40 A.J.I.L. Supp. 51. Treaty of Friendship, Cooperation and Security, Aug. 27, 1991, U.S.-Phil., not ratified (“U.S.-Philippine Treaty”), statement released by the Office of the Assistant Secretary/ Spokesman, Aug. 27, 1991, U.S. Department of State Dispatch 2, No. 35, Sept. 2, 1991. Treaty of Mutual Understanding and Cooperation (“Remon-Eisenhower Treaty”), Jan. 25, 1955, U.S.-Pan., 6 U.S.T. 2273, T.I.A.S. No. 3297. Treaty of Peace (“Treaty of Gandamak”), May 26, 1879, Afg.-Gr. Brit., 4 Martens Nouveau Recueil (ser. 2) 536. Treaty of Peace (“Treaty of Portsmouth”), Sept. 5, 1905, Japan-Russ., 199 Consol. T.S. 144. Treaty of Peace between the Allied and Associated Powers and Germany (“Treaty of Versailles”), June 28, 1919, Allied Powers-Ger., 225 Consol. T.S. 188. Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (“Israel-Jordan Peace Treaty”), Oct. 26, 1994, Isr.-Jordan, 34 I.L.M. 43 (1995).

Bibliography

249

Treaty of Peace, Friendship, Commerce, Indemnity, &c, between Great Britain and China (“Treaty of Nanking”), Aug. 29, 1842, Gr. Brit.-China, 93 Consol. T.S. 467. Treaty of Peace with Turkey (“Treaty of Sèvres”), Aug. 10, 1920, Allied Powers-Turk, 113 British and Foreign State Papers 652 (did not enter into force). Treaty of Peace with Turkey (“Treaty of Lausanne”), July 24, 1923, Allied Powers-Turk., 28 L.N.T.S. 11. Treaty of Relations, May 29, 1934, U.S.-Cuba, 48 Stat. 1682, T.S. No. 866. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”), Jan. 27, 1967, 610 U.N.T.S. 205. Treaty Respecting the Province of Shantung, May 25, 1915, China-Japan, trans., 10 A.J.I.L. Supp. 1. Vergleich zwischen Seiner Majestät dem Könige von Schweden und Seiner Durchlaucht dem Herzoge von Mecklenburg-Schwerin über die Stadt und Herrschaft Wismar [Treaty between His Majesty the King of Sweden and His Most Serene Highness the Duke of Mecklenburg-Schwerin respecting the Town and Domain of Wismar] (“Treaty of Malmö”), June 26, 1803, Swed.-Mecklenburg-Schwerin, 3 Martens Supplément au Recueil des principaux Traités (1807) 488. Vienna Convention on Succession of States in respect of Treaties, Aug. 23, 1978, 1946 U.N.T.S. 3. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 8, 1983, art. 37, U.N. Doc. A/CONF.117/14 (1983), 22 I.L.M. 306.

Agreements between States and Non-State Actors Contract Entered Between the Zaire Republic and the O.T.R.A.G. (Orbital Transportund Raketen-Aktiengesellschaft) Regarding the Complete Tenure of a Territory (“OTRAG Lease”), Mar. 26, 1976, trans., in Stanley Cohn, “What’s Going Up in Zaire? OTRAG’s Rocket Base in Shaba.” Munger Africana Library Notes, No. 49. Pasadena: California Institute of Technology, 1979, 20–27.

Cases Cited International (including advisory opinions) Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda), 2005 I.C.J. 168 (Dec. 19). Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554 (Dec. 22).

250

Bibliography

Island of Palmas (or Miangas) (U.S. v. Neth.), 2 U.N. Rep. Int’l Arb. Awards 829 (1928). Legal Status of Eastern Greenland (Den. v. Nor.), P.C.I.J. (ser. A/B) No. 53 (1933). Minquiers and Ecrehos (Fr. v. U.K.), 1953 I.C.J. Rep. 47 (Nov. 17). North Atlantic Coast Fisheries (Gr. Brit. v. U.S.), 11 R.I.A.A. 167 (1910). Revere Copper and Brass, Inc. v. Overseas Private Investment Corp. (“Revere Copper Case”), 56 I.L.R. 258 (American Arbitration Association, 1978). Right of Passage over Indian Territory (Preliminary Objections) (Port. v. India), 1957 I.C.J. 125 (Nov. 26). Saudi Arabia v. Arabian American Oil Co. (“ARAMCO Case”), 27 I.L.R. 117 (1963). Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 6 (June 15). The Anna, 5 C. Rob. 373, 385d (1805). Turkey—Restrictions on Imports of Textile and Clothing Products (Turkey Quantitative Restrictions (Quota) Case), WTO Dispute DS34, July 6, 2001. United States—Import Prohibition of Certain Shrimp and Shrimp Products (The ShrimpTurtle Case), WTO Cases 58/61, Nov. 6, 1998. United States—Sections 301–310 of the Trade Act 1974 (U.S. Section 301 Case), WTO Dispute DS152, Jan. 27, 2000. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16). Cuba In re Guzman & Latamble, 7 Ann. Dig. (I.L.R.) 112, 112 (1934) (Cuba). India Sugandha Roy v. Union of India (UOI) and Ors. (1983), A.I.R. 1983 (Cal.) 468. United Kingdom Secretary of State for India v. Sardar Rustam Khan and Others (1941), A.C. 356, 10 I.L.R. 98. United States Boumediene v. Bush, 553 U.S. 723 (2008). Butte City Water Co. v. Baker, 196 U.S. 119, 25 S. Ct. 211 (1905). Canfield v. United States, 167 U.S. 518, 17 S. Ct. 864 (1897).

Constitutions, Laws and Orders Cited Austria-Hungary Proclamation, Oct. 6, 1908, trans., U.S. Department of State, Papers Relating to the Foreign Relations of the United States 1908 (Washington. D.C.: Government Printing Office, 1912), 38.

Bibliography

251

Canada Province of New Brunswick, Air Space Act, R.S.N.B. 2011, ch. 109. China: 中華人民共和國澳門特別行政區基本法 [Basic Law of the Macao Special Administrative Region of the People’s Republic of China] (1993) (China), trans., http://bo.io.gov.mo/bo/i/1999/leibasica/index_uk.asp, accessed Apr. 8, 2014. Nationality Law of the People’s Republic of China (1980), Falü Huibian 200. Mexico Constitución Política de los Estados Unidos Mexicanos (1917, as amended through 2013). Paraguay Constitución de la República del Paraguay (1992). Portugal Constituição Politica da Monarchia Portugueza (1822). United Kingdom British Nationality Act 1981. Cyprus (Annexation) Order, Nov. 5, 1914, 108 British and Foreign State Papers 165. Hong Kong (British Nationality) Order 1986. Interpretation Act 1978, 1978 ch. 30. Nationality, Immigration and Asylum Act 2002. Order in Council, Nov. 5, 1914. Cited in “Annexation of Cyprus by Great Britain,” American Journal of International Law 9, No. 1 (1915): 204–205. Order in Council providing for the Administration of the Territories adjacent to Hongkong acquired by Her Majesty under the Anglo-Chinese Convention of June 9, 1898 [1], Oct. 20, 1898. Kowloon Order in Council, Historical Laws of Hong Kong Online, http://oelawhk.lib.hku.hk/items/show/1016, accessed Apr. 8, 2014. Order in Council revoking Article 4 of the Order of October 20th, 1898, providing for the Jurisdiction of Chinese Officials in Kowloon, Dec. 27, 1899. Kowloon City Order in Council, Historical Laws of Hong Kong Online, http://oelawhk.lib.hku.hk/items/ show/1020, accessed Apr. 8, 2014. United States Act providing for temporary government in the Canal Zone, Apr. 28, 1904, 33 Stat. 429. Constitution of the United States (1787). Lands Open to Purchase by Citizens, 30 U.S.C. 22 (2006). Locators’ Rights of Possession and Enjoyment, 30 U.S.C. 26 (2006).

252

Bibliography

Loss of Title of United States to Lands in Territories through Adverse Possession or Prescription Forbidden, 48 U.S.C. 1489 (2006). Panama Canal Act (“Spooner Act”), June 28, 1902, 32 Stat. 481. Persons Born in the Canal Zone or the Republic of Panama On or After February 26, 1904, 8 U.S.C. § 1403 (2006). Venezuela Constitución de la República Bolivariana de Venezuela (1999).

Index Administration 5, 16, 20 n. 79, 31, 50, 53 n. 223, 61, 66, 70, 78, 90, 118, 120, 128, 130, 136, 138, 142, 148, 159, 177, 180 n. 720 Affirmation of sovereignty 97–102 Afghanistan 6 n. 12, 71, 100, 105, 240 Airspace 36, 215–217, 222, 224 Alaska 35, 65–67, 71 Annexation of leased territory 70–71, 82, 89–92 Antigua 108 Aramco Case 101, 204 Arenberg and Forcados Enclaves 21, 25 n. 95, 73, 151–152 Arica 71 Assignment of rights 102–106, 170 Austria-Hungary 15, 68, 70–71, 89, 140, 148, 250 Azerbaijan 85, 103 n. 481, 110, 153, 175, 183, 242 Babylonia 52–54, 124, 183 Bagram Airfield 100, 105, 240 Bahamas 103 n. 480, 132, 148 Bahia Honda 82, 122 n. 542, 151, 165, 246 Baikonur Cosmodrome 27, 85, 99, 246 Bangladesh 1, 25 n. 96, 108, 118–120, 123, 131, 134, 241 Bases, military 2–3, 21, 35, 67, 83, 85, 91, 96 n. 451, 108, 124–125, 161, 164, 166, 168, 175, 189, 191, 196 Basic Law (Hong Kong) 145, 177 Belarus 85 Belbase 169–170 Belgium 28 n. 106, 35, 68, 123, 169, 174 Bermuda 108 Bosnia and Herzegovina 15, 70–71, 89, 105, 140, 148, 181 n. 721, 194 Boumediene v. Bush 85 n. 414, 185 n. 728 Boundaries 5, 22, 32, 37, 39, 41, 47, 59, 68, 82, 209 British East Africa Company 72, 241, 243 British East Africa Protectorate 116, 123 British East India Company 64 British Guiana 108

British Indian Ocean Territory 99 n. 461, 109, 125 British North Borneo Company 170 Burma 120, 125 n. 555, 172– 173 Butte City Water Co. v. Baker 39 Canada 65, 216 Canal Zone 15, 23 n. 87, 83, 88, 91, 98, 103 n. 478, 105, 120, 136, 142, 153, 157–158, 162, 179, 185–186 Canfield v. United States 39 Cession of leased territory 15 n. 58, 16, 30–31, 37, 43, 71, 77–78, 98, 104, 117–119, 146, 151, 161, 170–171, 177, 182, 187–188 Cession, disguised 89–92, 182 Cession, temporary 6, 187 Chile 71 China 15, 25, 35, 58–61, 68–69, 74–80, 88, 90–91, 99, 104, 107, 114, 120, 125–126, 136–137, 138 n. 598, 141, 145, 148, 149 n. 625, 162, 172–173, 175–178, 180, 186–189, 192–195, 198–199 China treaty ports 67–69 Clark Air Base 162–163 Coaling stations 80–83, 149 Collateral 62–63 Common Zone, Saudi Arabia-Sudan 207 Compensation 15–16, 26, 46 n. 195, 56, 63, 68, 97, 102, 121–126, 133, 153, 157–160, 169, 193, 174 n. 704, 193, 204, 209 Compensation, symbolic 124 Compensation, value-based 124 Competence (jurisdictional) theory 32–33, 42 Compliance 33, 36, 133, 135, 145, 160 Components 22, 36, 97, 218 Concession 6, 16, 68, 72 nn. 334–336, 339–340, 76, 101, 124, 205–206, 208 Condominium, unequal 6, 49, 87, 94, 181 Conflicts, sovereignty 1 Congo Free State 99, 116, 173 Convention of Peking 15, 77 n. 374, 107 n. 493 Corsica 62–63, 89, 140

254 Crimea 2, 91–92, 114, 153, 162, 167 n. 684, 183, 197 Cyprus 15, 16 n. 63, 46 n. 196, 70, 88–89, 105, 140, 167, 181 n. 721, 194–195 Cyprus Convention 15 n. 59, 46 n. 196, 70, 167 Daewoo Logistics Corporation 214 Dalien 75–76, 195 Diego Garcia 2, 99, 109–110, 115, 125, 154, 191 Duration 11, 13, 23–24, 79, 97, 101, 113, 115–116, 121, 136, 144, 152–154, 161–165, 182, 206 Duration, fixed term 23, 73, 113–114, 120, 153, 161–162 Duration, indefinite 23, 115, 165 Duration, perpetual 117, 170 Eastern Greenland Case 12 Ecuador 38, 215 n. 814 Effective control 7, 12, 42–43, 45–46, 48–50, 66, 88, 95, 117 Faceries 55–57 Finland 2, 25–26, 27 n. 104, 102, 103 n. 478, 107, 110–111, 114, 122, 130–131, 154, 162, 183 France 21, 23 n. 87, 24 n. 91, 25 n. 95, 28 n. 106, 35–36, 40, 42, 56–58, 62–63, 68, 73, 76, 82, 99, 103 n. 477, 104–106, 111–112, 121, 123, 129–130, 134–135, 140, 149, 151, 155 n. 643, 156, 161, 181, 183, 212 Gabala 103 n. 481, 110, 153, 174, 183 Genoa 62–63, 140 Georgia 85 German East Africa Company 73 Germany 32, 35, 63 n. 300, 68, 72, 74–75, 83, 89, 136, 148–149, 161, 211 Great Britain (see United Kingdom)  Great Corn Island 100 Greece 166 Gu’edena 52, 53 n. 223 Guantanamo Bay 2–3, 46 n. 196, 82, 92 n. 436, 93, 95, 100–101, 103 n. 479, 106, 109–110, 112, 116, 122, 133, 135, 138 n. 599, 142, 145, 149, 151, 156–159, 165–166, 184–185, 193, 199–200

Index Hawaii 81–82, 89, 150–151, 167 Hay-Bunau-Varilla Treaty 15, 83 n. 406, 98 n. 455, 158 n. 653 Hengqin Island 61 Hong Kong 2–3, 15, 67, 77–80, 88, 107, 114, 126, 136–137, 140–141, 145, 162, 175–178, 180 nn. 719–720, 181, 185–188, 197 Hudson’s Bay Company 65–66 India 1, 25, 41, 48 n. 202, 69 n. 325, 103 n. 474, 108, 113, 118–120, 123, 134, 187 Island of Palmas Case 12 Israel 2, 18, 108, 112, 126, 131 Italy 68, 72–73, 89, 116, 123 Jamaica 108 Jordan 18–19, 108, 112, 115, 126, 131–132 Jurisdiction 1, 16, 32, 37, 40, 44, 59, 61–62, 64, 67, 73, 75, 77–80, 84–86, 89, 107–110, 118–120, 128, 139, 142, 179, 185, 195, 206 n. 767, 217 Kalat, Khanate of 118 Kashmir 124, 134 Kazakhstan 27 n. 104, 85, 99–100, 137, 174 Khyber Pass 71 Kiaochow 74–75, 80, 136, 161 Kismayu 72 n. 339, 116, 123, Kowloon Peninsula (see Hong Kong) Kuang-chou Wan 76–77, 99, 104, 161 Kwantung 75–76, 80, 107, 162, 192, 194–195, 198–199 Lagash 52–54, 124, 183 Land transactions, international 211–215, 223 Latvia 85 Lease, common features 8, 12, 20–21, 74, 97, 109, 121, 124, 127, 169, 187 Lease, political v. private law type 20–21 Leasing, reasons for 83 Lebensraum 32, 47 Leninsk 99, 137 Libya 175, 212–213 Little Corn Island 100 Lobos Islands 71 Louisiana 35, 71

Index Macao 58–61, 91, 162 Madagascar 214–215 Madras 64 Maharajah Golab Sing 124, 134 Malaysia 2, 64, 170–171 Mali 213 Malibya 213 Margarita Island 83 Mecklenburg-Schwerin 63, 140, 143, 167 Meng-Mao Triangular Area 120, 172 Mexican Constitution 39 Michmi Pass 71 Minquiers and Ecrehos Case 12 Muscat 82 Naharayim/Baqura 2, 19, 108, 112, 115, 126, 131–132, 154 Namwan Assigned Tract (see Meng-Mao Triangular Area) Navarra 56, 130, 134 New Territories (see Hong Kong) Newfoundland 108 Niabat 118 Nicaragua 100 Niger Convention 73 Nigeria 73–74, 152 Non-state actors 204 North Atlantic Coast Fisheries Case 11, 168 North Borneo 2, 170–171 North Korea 215 Norway 208 Objectives 8, 21, 23, 25, 52, 102–104, 113, 163, 191, 218 Occupied territory 94, 145, 198–199, 202 Oil leases 206–207 OTRAG 208–211 Ottoman empire 15, 70, 140, 148, 167, 194 Pacta sunt servanda principle 96, 114, 120, 133, 153, 199 Panama 23 n. 87, 35, 83, 88, 121, 158–159, 178–180, 186 Panama Canal 2, 15, 46 n. 196, 83, 88, 91, 98, 136, 152–153, 157, 162, 178–180, 184 Paraguay 18 Perpetual lease (see Duration, perpetual)

255 Peru 71 Philippines 2, 91, 162–164, 170, 175, 189, 191 Population 1, 10, 28 n. 105, 32, 35–36, 51, 92, 137–138, 141–142, 150, 175, 183, 187–188, 190, 208 Population, nationality of 138 Port Arthur 75–76, 79, 192–193 Portugal 41, 60–61, 162 Pyrenees 36, 54, 56–57, 129, 134 Quinto Real Norte 24 n. 91, 36, 58, 91, 105, 111, 121, 129–130, 133–135, 140, 155 n. 643, 156, 159, 183 Rebus sic stantibus principle 92, 121, 166–167 Rent ix, 8, 33, 36, 54–60, 64, 68, 72–73, 78–79, 102, 118, 120–123, 126, 129, 134–135, 150, 154–159, 171, 202, 209, 216 Revere Copper Case 205 Right of Passage Case 41 Rights and obligations, international 1, 97, 104, 137, 139–140, 172, 197 Russia 2–3, 17, 24, 27 n. 104, 35, 65–68, 70–71, 75–76, 79–80, 83, 85–86, 91–92, 99, 107, 110, 114, 122, 124, 126, 137–138, 149, 152–154, 162, 167, 174–175, 183, 192, 195, 197–199, 201 Russian American Company 65–66 Russo-Japanese War 75, 149 n. 625, 161, 192, 194, 199 Saimaa Canal 2, 25–26, 27 n. 104, 102, 107, 110–111, 114, 122, 130, 154, 162, 183 Saint Lucia 108 Saudi Arabia 50, 205, 207 Servitude 3, 5–6, 8–14, 17–18, 21–23, 26–27, 80, 117, 168–169, 172, 196 Servitude, classical doctrine 10, 117, 168 Servitude, navigational 13 Sevastopol 2, 24, 91–92, 114, 122, 124, 153–154, 162, 167 n. 684, 183, 197, 201–202 Sino-Japanese War 74 SOFA (see Status of forces agreement) South Korea 50, 187, 204 n. 760, 215 Sovereignty over natural resources 206 Sovereignty, de facto 46 n. 196, 93, 117, 173, 181, 185, 204, 208

256 Sovereignty, de jure 8, 46 n. 196, 93, 107, 145 Sovereignty, property rights theory 46 Spain 1, 24 n. 91, 35–36, 54, 56–58, 105, 111, 121, 129–130, 134–135, 140, 155 n. 643, 156, 160, 183 State succession 138, 143, 161, 168, 170–172 States, types of 116, 178 Status of forces agreement 6, 84 Subic Bay Naval Station 162–164, 175 Sudan 207 Sulu, Sultanate of 2, 170 Sweden 63, 104, 140, 167 Tacna 71 Tajikistan 126 Tanganyika 123, 169 Termination 69, 78, 80, 83, 91, 95–96, 115–117, 121, 139, 153, 161, 163–164, 166, 172–175, 178, 180–183, 199, 204–205 Terminology 3, 5, 7–9, 14, 33, 38, 40, 170 Territory as property 36, 38–40, 42, 45 Territory, relationship to states 28, 30–32, 35, 42 Territory, title to 33, 40, 42–43, 44, 117 Tin Bigha 25 n. 96, 108, 113, 118, 123, 131, 134, 148 Tonga 82 Treaty of Bayonne 57 Treaty of Elizondo 56 Treaty of Malmö 63 n. 300 Treaty of Portsmouth 75, 195, 199 Treaty ports (see China treaty ports) Trinidad 108 Turkey (see Ottoman Empire) 15, 70, 140, 148, 167, 194

Index U.S. Code 40 Ukraine 2, 24, 85, 91–92, 114, 122–124, 153–154, 162, 201–202, 212 Umma 52–54, 124, 183 Union of Soviet Socialist Republics 122 United Kingdom 40, 73, 99, 108–109, 114–115, 125, 132, 137, 141, 145, 148, 169, 177–178, 191 United States 3, 15, 18, 35, 36 n. 143, 38–40, 67, 69–71, 81–85, 88–89, 91–95, 98–100, 105, 107–110, 112, 115–116, 120, 122, 124–125, 132–133, 135–136, 142, 145, 149–151, 156–160, 162–165, 175, 178–180, 184–185, 189, 191, 199, 216 United States Constitution 39, 93, 136 Uti possidetis juris principle 33, 41 Venezuela 18, 83 Vienna Convention on Succession of States in respect of Treaties 166, 168, 171–172 Vienna Convention on the Law of Treaties 96, 155 War, territorial leases in 191 Wei-hai-wei 79–80, 107, 162, 194 Wismar 63, 89, 104, 140, 143, 167 Zaire 2, 169, 208–209, 210–211 Zanzibar 72–73, 89, 169 Zofar/Al-Ghamr 2, 19, 108, 112, 115, 126, 131, 154