23 Aug When is a Treaty Ceding Territory Not a Treaty Ceding Territory?
I am not sure if it is a trend, but recently several nations have raised dubious legal claims over territory that was ceded away by treaty. For instance, Spain has zero legal claim to Gibraltar, as far as I can tell, unless the 1713 Treaty of Utrecht ceding it to Britain “in perpetuity” can be wished away. Bolivia has zero legal claim to the port it seeks from Chile, unless the 1904 treaty ceding it to Chile can be ignored as well. And in the latest example, Nicaragua is raising a claim to portions of territory it ceded to Costa Rica, despite having signed a clear treaty of cession doing so.
The problem with this trend is obvious. If treaties can’t settle territorial claims because they can always be reopened later, then the utility of having the treaty in the first place is decreased substantially. This poses a danger to the whole point of having international law for defining territorial boundaries. I expect and hope the ICJ will reject these silly but dangerous claims in the Bolivia case. But the broader international law community should be worried about this trend as well.
In the Spain-Gibraltar case, Spain argues that in the Treaty of Utrecht it only ceded the property over the territory, but not its sovereignty. Is property the same as sovereignty when it comes to international law? That’s an interesting discussion. Do not forget to consider that the treaty is from 1713.
In principle the claim makes a little bit of sense, since if you review the text of the Treaty of Utrecht you will find that it says that the property is ceded “without territorial jurisdiction”. Besides, Spain ceded the territory imposing several conditions to which Great Britain agreed, namely: (i) that the practice of Catholicism be allowed in Gibraltar; and (ii) that if Great Britain decided to further on cede or sell the territory, Spain will have a preferential right to acquire back the territory.