Question 1

Background
Aurora and Bafra have long disputed the sovereignty of the Henriette Island group

400 nautical miles off their respective coasts. As Aurora has been gained

independence in 1995 from Bafra, it was agreed that negotiations about the issue of

sovereignty over the Henrietta Islands would be continued between the parties until

the issue was resolved.

The Henrietta Islands have a rich breeding ground for fisheries. It was discovered in

1695 by Bafra, with a flag raised by the Bafra captain of a visiting ship to claim

sovereignty. But no further contact from then on. By contrast, the peoples of colonial

Aurora had frequently visited the island over the last 300 years and on independence

Aurora enacted legislation in 1995 licensing the fishing activities of its nationals in

the area.

Since both Aurora and Bafra have accepted the compulsory jurisdiction of the

International Court of Justice (ICJ) under Article 36 (2) of the Statute of the Court,

they should follow the judgment delivered by ICJ. Some international legal issues

raised by these facts and some relevant principles of law which should be referred to

in resolving the dispute will be discussed as follow.

Sovereignty
The conflict between Aurora and Bafra is the sovereignty dispute of the Henrietta

Islands. Sovereignty is the quality of having supreme, independent authority over a

geographic area, such as a territory1. It is namely the exclusive authority exercised by

the State over its territory, to the exclusion of other State but not international law. It

1
Sovereignty (politics), Britannica Online Encyclopedia, Retrieved 5 August 2010,
http://www.britannica.com/EBchecked/topic/557065/sovereignty, viewed 5 May, 2011.
also sounds like independence. In this case, the dispute of sovereignty is equal to the

territory entitlement issue of the Henrietta Islands.

Territory entitlement
The United Nations Conference in the Law of the Sea (UNCLOS) III, the 1982

Convention on the Law of the Sea (CLS) give the definition to the territorial sea.

Article 2-3 states that States have the “right to claim sovereignty over territorial sea

up to 12 nautical miles measured from appropriately drawn baseline”. Contiguous

zone may extend up to 24 miles from the baselines. Furthermore, the Exclusive

Economic Zone (EEZ), which is an area beyond and adjacent to the territorial sea,

shall not extend beyond 200 nautical miles from the baselines2. Obviously, neither

Aurora nor Bafra possess the maritime space around the Henrietta Islands in nature.

However, “international law recognized conquest, cession and occupation of territory

that was terra nullius as three ways of acquiring sovereign territory.” 3 In the case of

Henrietta Islands, effective occupation and prescription is the only way for Aurora or

Bafra to possess it as their own territory.

Then, four conditions must be fulfilled to enable possession by a State to mature a

prescriptive title of Henrietta Islands, in addition of sufficient evidence of

acquiescence and recognition4:

1. Peaceful and uninterrupted (exclusive).

2. Public.

3. Must endure for a certain length of time (continuous).

4. Must be possession by the State, as a State in the exercise of state authority (a

titre de soverain).

2
Art. 57 Convention of the Law of the Sea.
3
Mabo v Queensland (No 2).
4
Namibia case.
  There must a public display of State authority.

 There must be Intention and will to act as sovereign.

In this case, Bafra discovered the island group in 1695 with a flag rising to claim

sovereignty and a map depicting. But no further contact or any State authority

displayed with Henrietta Islands. It seems that Bafra cannot fulfill the four conditions

above to mature a prescriptive title of Henrietta Islands.

In addition, discovery provides only the basis or starting point for building title to

territory. It is an inchoate claim which must later be perfected by continuing

occupation. Such as the Island of Palmas Case (Netherlands v US) (1928), although

Spanish claim to Philippines territory prior to 1889 based on discovery in the early

16th, Netherlands title of sovereignty acquired by continuous, peaceful and

uncontested display of State authority from 1700 to at least 1889. Unfortunately, in

this case, Bafra did not take a continuous State authority on Henrietta Islands after the

discovery. As a result, Bafra is hard to assert the title to territory of the island group.

By contrast, the people of colonial Aurora had frequently visited the Henrietta islands

over the last 300 years. Furthermore, when Aurora gained independence in 1995, an

legislation was enacted to license the fishing activities of its nationals in the area, even

the new Aurora Head of State assured the Bafra diplomatic representative in Aurora

that the legislation was ‘without prejudice’ to the position of both parties in the

negotiations over sovereignty over the Henrietta Islands. It seems that this authority

action and the continuous visiting made Autora’s claim more relative.

Both Island of Palmas case 1928 and Clipperton Island case 1931 show evidence that

“Title is relative not absolute”. When disputes over territory arise, the role of the court

is not to decide the correct or rightful holder of title, but to decide which State has the

better claim relative to any contending claim at the critical date. The critical date is
the date that two or more claims to title come into conflict. It is the relevant data for

determining the relative strength of conflicting claims. In this case, the dispute about

sovereignty of the island group had existed for a long time. And it was agreed that

negotiations would be continued between the parties after Aurora’s independent in

1995. so, the critical date could be the year 2005 when the negotiations between

Aurora and Bafra over sovereignty of the Henrietta Islands broke down altogether.

From the year 1695, when the Henrietta Islands were discovered, to the year 1995, the

people of Aurora had frequently visited the islands for fishing. After the year 1995 till

2005, Aurora exercised long and continuous authority about fishing measurement

over the island group publicly. It is the intention and will to act as sovereign and some

actual exercise or display of such authority, even the legislation is only simply taking

the measures necessary to enable fishing by Aurora’s fishing families to continue.

Island Palmas, Clipperton Island and Eastern Greenland cases all concerned

acquisition of title to terra nullius from the same point.

Furthermore, the surrounding circumstances of each claim may be taken into account

to resolve close claims to title, including the special interests of a territorial claimant

economic or strategic, geographic ties etc. Anglo-Norwegian Fisheries Case (UK

Norway 1951) indicates the importance of economic interests evidenced over a long

period. The maritime delimitation decrees consistently applied. However, it was

approved that fishing and other activity by private individuals even if proved from

pre-historic times is no evidence of sovereignty in the meantime. Aurora need to

testify that their fishing activity from 1995 to 2005 is not only a private individual

behavior, and the economic interests earned by the State.

In summary, Aurora has the better claim relative to acquire the title to territory of

Henrietta Islands at the critical date, as its longtime and continuous authority on

islands and special economic interests earned from fishing. While, Bafra did not have
any contact with the island group after discovered them.