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Leases and Sovereignty Today

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Leases and Sovereignty Today CHAPTER 4 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 ter- ritories 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 fol- lowing 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, Austria- Hungary obtained governing rights in Bosnia and Herzegovina through a sim- ilar 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. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004�936�5_006 Leases and Sovereignty Today 71 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 desir- able terra nullius was virtually exhausted, and the cessions of Louisiana and Alaska to the United States had removed huge swathes of territory from colo- nial 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 eco- nomic 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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