Public international law seems to recognize five ways to acquire insular areas. These are 1) cession, 2) occupation, 3) accretion, 4) subjugation and 5) prescription. [Raphael Perl, The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcebook (New York: Oceana Publications, Inc., 1983)(hereinafter cited as Perl ) 12-13.] By cession or occupation, the United States has acquired the sixteen insular areas presently under its sovereignty.
Cession occurs when the acquiring sovereign derives its title to a new insular area by the ceding sovereign's transferring to it the supreme power over that insular area. Sovereigns can effect cession only in a treaty between the ceding and acquiring sovereigns. Cession requires possession or occupation by the acquiring sovereign. When such occupation takes place, the subjects domiciled in the newly acquired insular area become nationals of the acquiring sovereign. [Perl at 13.] The United States acquired title to the following insular areas by cession:
Occupation is the act of appropriation of an insular area that is not under the supreme power of another sovereign, i.e., a terra nullius. Once occupied, such a terra nullius, if later abandoned, would again be vulnerable for occupation by another sovereign. Occupation must be effective for a sovereign to acquire an insular area in this way. It must both possess and administer the insular area. Possession requires the presence of a settlement coupled with a formal act, e.g. raising the sovereign's flag, proclamation by the sovereign that it intends to keep the insular area under its supreme power. A sovereign maintains sufficient administration when it sets up some sort of supervision that exercises the functions of government. [Perl at 14.] Under the terms of the Guano Islands Act of August 18, 1856, as amended (Title 48, U.S. Code, sections 1411-19; Volume 11, Statutes-at-Large, page 119), the United States acquired title by occupation to:
On January 17, 1899, the U.S.S. Bennington, commanded by Commander Edward D. Taussig, U.S.N., acting on orders from the Federal Government, "took possession of the atoll known as Wake for the United States of America." [This is an extract from the inscription on the brass plate affixed to the base of the first flagpole erected in the atoll by Commander Taussig.] The atoll had been named in 1796 by Captain William Wake, R.N., of the British schooner Prince William Henry. At the time of the United States' taking possession of the atoll, Wake did not have any indigenous population.
Midway Atoll was formally occupied by Captain William Reynolds, U.S.N., of the U.S.S. Lackawanna, on August 28, 1867. An account of this occupation is given in Senate Ex. Doc. No. 79, Fortieth Congress, second session, and Senate Report No. 194, Fortieth Congress, third session. Further information in regard to the occupation of Midway may be found in a January 27, 1888, message to the U.S. Senate of the Honorable Grover Cleveland (1837-1908), President of the United States (1885-89 and 1893-97), who sent this message in response to a Senate resolution calling for correspondence touching the occupancy of the Midway Atoll harbor.
Accretion signifies an increase in existing land masses by new geological changes, e.g. the formation of a new island in a river. [Perl at 15.] The U.S. obtained no islands through accretion.
Subjugation takes place if a sovereign firmly establishes a conquest and follows this by a formal annexation. In order for subjugation to be effective, sovereigns must end their state of war either formally by a peace treaty or simply by ceasing hostilities. Annexation during a war does not constitute a firmly established conquest, which is a sine qua non for acquisition of title by subjugation. [Id.] The U.S. obtained no islands through subjugation.
Prescription is the acquisition of an insular area subject to the supreme power of another sovereign through the continuous and undisturbed exercise of that supreme power during such period as is necessary to create, under the influence of historical development, the general conviction that the present condition of things is in conformity with international order. [Id., quoting L. Oppenheim, 1 International Law (London: H. Lauterpacht ed., 1955) 546, 563.] A sovereign may perfect its title to an insular area by exercising peaceful and effective jurisdiction over the insular area for a prolonged period. By the rules governing the principle of good faith, prolonged inaction on the part of other sovereigns which at one time might have been in a position to contest the claims of the prescribing sovereign gradually comes to be viewed as acquiescence. Such other sovereigns are estopped from contesting the prescribing sovereign's title. [Perl at 16, quoting G. Schwarzenberger, A Manual of International Law (1976), 35-36, 98.] The U.S. obtained no islands through prescription.
Source: Joseph McDermott, OIA 2003