Posted by: Chris | February 5, 2012

Law and Condominiums

My new favorite blog has a great post up about condominiums.  He’s not refering to domiciles like the Ashbrook Ashram (the law of which Todd Taylor needs to brush up on), but to arrangements wherein two countries hold joint sovereignty over a territory.  These situations involve some interesting wrinkles for ILaw, most notably which country has primary jurisdiction over crimes committed in the condominium.  The case law is currently unsettled. For instance, in a narrow Schengen-gri-La on a river jointly held between Luxembourg and Germany thanks to the Congress of Vienna, the ownership of the bridges is currently in dispute:

In 1884, a German court ruled that bridges were not an extension of the river, hence that the border was a median line across the bridge. But this reversal of cujus est solum [15] was undone by the German-Luxembourg Border Treaty of 1984. Which means that if you stand on the bridge between, for example, Echternach in Luxembourg and Echternacherbrücke in Germany, you’re in both countries at the same time.

So what if you commit a crime on that bridge now? And how far up the riverbanks does the condominium extend? And what if grand engineering projects alter the course of the river?

None of these questions were answered sytematically by the 1984 border treaty. Which means that Germany and Luxembourg need informal, ad hoc agreements covering every potential area of legal dispute.

A French and Spanish condominium on Pheasant Island avoids this dilemma by alternating control of the island every 6 months and forbidding anyone from stepping foot on the island, apparently unless they are sovereigns interested in exchanging broads or sheathing broadswords:

For centuries, the island, less than an acre in size, was a favorite royal meeting place, often serving as a bridal exchange. In 1615, Louis XIII of France and Philip IV of Spain first met their wives — each other’s sisters — on the island, after having married them by proxy [5]. Later that century, Pheasant Island would be the place where both Louis XIV of France and Charles II of Spain first laid eyes on their respective brides

Two more tidbits.  First, the Luxembourgers used some brazen treaty law to thwart Hitler’s designs on their condominium:

Condominiums are usually temporary, and continue to exist only by the goodwill of both parties involved. In the 1930s, Nazi Germany evidenced its lack of appetite for international cooperation by proposing to end the condominium. Luxembourg bravely countered that this would require the permission of all parties to the Vienna Treaty.

Second, Jacobs suggests the employment of a condominium to solve one of the Lure’s favorite ongoing territorial disputes:

Thus, even though it is the rarest of border arrangements, a condominium has its advantages. For its rarity stems not from its lack of success, but rather from the continued need for pragmatism over dogmatism.

Denmark and Canada, take note. Both countries are normally known for being boringly sensible, but have repeatedly exchanged harsh words over Hans Island, near Greenland, which is a part of the Kingdom of Denmark. Officials of both countries have visited the island, waving and planting their respective flags.

Hans is a barren rock in Nares Strait, and has the impertinence to lie exactly on the border that separates Canada’s Ellesmere Island from Greenland. Since the melting of Arctic ice has opened the region to valuable shipping and resource extraction, neither of the Arctic powers is willing to relinquish the island to the other.

Three options present themselves: a war between Denmark and Canada; a militarized border across the frozen island; or a condominium. The first two are impractical and unlikely. The latter solution would ensure that nothing would happen to the island (or to resource exploration around it) without the permission of both countries. Would this not ensure that the most sensible, and most equitable proposals would prevail?

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