Which is to prevail in a territorial dispute between the legal title of the one state and the actual display of sovereignty by the other? In the absence of any conventional or customary rule on point, Hersch Lauterpacht would have urged recourse to analogy with municipal private law. But the structural difference between the international and municipal legal orders and the availability of several pertinent private law analogies have complicated the answer to whether what is known as prescription finds a place in public international law. The recent resolution of the question highlights both the utility of and the risk of doctrinal imprecision involved in recourse by the international adjudicator to private law analogies.
Legal title versus effectivités: prescription and the promise and problems of private law analogies
O'Keefe, Roger
2011
Abstract
Which is to prevail in a territorial dispute between the legal title of the one state and the actual display of sovereignty by the other? In the absence of any conventional or customary rule on point, Hersch Lauterpacht would have urged recourse to analogy with municipal private law. But the structural difference between the international and municipal legal orders and the availability of several pertinent private law analogies have complicated the answer to whether what is known as prescription finds a place in public international law. The recent resolution of the question highlights both the utility of and the risk of doctrinal imprecision involved in recourse by the international adjudicator to private law analogies.
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