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Territory Problem Question & Essay Notes

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Territory PQ & Essay Notes 1 Introduction
(i)

Importance of 'Territory'

The State is a territorial juridical entity: the very concept of a State is rooted in the idea of control over territory. Thus, it has been said that a 'State without territory is not possible'
(Oppenheim's International Law, 563).
Territory refers to the geographical areas over which the State has sovereignty. As stated by
Arbitrator Max Huber in Island of Palmas (1928) 2 RIAA 829, at 838: "Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a
State. […] this principle of the exclusive competence of the State in regard to its own territory [is] the point of departure in settling most questions that concern international relations".
When speaking of 'acquiring territory', we are referring to the acquisition of that extensive bundle of rights which we describe as territorial sovereignty in relation to a particular piece of land.
The extent of a State's competence is usually limited to its territory.
 Art 29 VCLT (23 May 1969) 1155 UNTS 331:Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.
Recall from previous lectures that a State's enforcement jurisdiction is generally confined to its sovereign territory.
(ii)

What is territory

Small maritime features? Article 121(1) UNCLOS: 'An island is a naturally formed area of land, surrounded by water, which is above water at high tide'.37 That Article goes on to add that 'Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf'. Low-tide elevations? Maritime Delimitation and Territorial Questions between Qatar and
Bahrain: "It is thus not established that...low-tide elevations can...be fully assimilated with islands or other land territory". So it is not territory per se. But it is clear that a coastal State has sovereignty over low-tide elevations situated within its territorial sea, since it has sovereignty over the territorial sea itself.
The court in Pedra Branca did not answer the question (of whether low-tide elevations outside one's territorial waters could be the subject of sovereignty).
(iii)

Scope of State Territory

Internal waters
Comprising saltwater and freshwater areas inside a State's territory, such as rivers and lakes and (exceptionally) archipelagic waters.
Art 8(1) UNCLOS: "1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State."
Territorial sea
The territorial sea is a maritime area adjacent to a State's coast. Its maximum breadth is of 12
NM from the baselines determined in accordance with the law of the sea (Art 3 UNCLOS);
normally, the baseline is the low-water mark along the coast (Art 5 UNCLOS). Sovereignty extends to the bed-soil and airspace above the territorial sea (Art 2(2) UNCLOS).
Airspace.
Arts 1-2, Chicago Convention on Civil Aviation (7 December 1944) 15 UNTS 295: "'The
Contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.'"
Maritime Spaces
The State possesses certain rights (but not sovereignty) over other adjacent (or appurtenant)
maritime spaces: the Exclusive Economic Zone (EEZ) and the continental shelf.
EEZ. A maritime zone beyond and adjacent to the territorial sea (Art 55 UNCLOS),
extending up to 200 NM from the baselines (Art 57 UNCLOS). The coastal State has rights of exploration, exploitation, conservation and management of natural resources in the superjacent

waters,

the

seabed

and

its

subsoil.

Continental shelf. The continental shelf comprises the seabed and subsoil of the submarine areas beyond the territorial sea. It extends to 200 NM from the baselines or to the outer edge of the continental margin as defined in Art 76 UNCLOS. The coastal State has rights of exploration and exploitation of natural resources (Art 77 UNCLOS).
(iv)

Non-Sovereign Spaces

Certain territories are (or were) not subject to the sovereignty of any State or States.

1. Trust territories: formerly, territories administered by overseas governments to

prepare them for exercising the right of their inhabitant peoples to self-determination
(Chapter XIII of the UN Charter). eg former South West Africa (see Status of South West
Africa, 1950 ICJ Rep 128), Nauru (see Certain Phosphate Lands in Nauru, 1992 ICJ Rep.
240). Today all trust territories have attained self-government or independence.

2. Terrae nullius: land not under the sovereignty of any State;

3. Territories under international administration: eg UN Interim Administration Mission

in Kosovo (UNMIK).

4. Res communis or global commons: areas which are not susceptible to sovereign

control or lie beyond the limits of national jurisdiction. There are various types of global commons: high seas, the seabed, the polar regions, the atmosphere and outer space.

5. High seas: under UNCLOS, all states enjoy the freedom of the high seas, but may

only use the high seas for peaceful purposes. States may not purport to subject any part of the high seas to its sovereignty.

6. Seabed: as the seabed is part of the common heritage of mankind, there is shared

control of the resources it contains and equitable sharing of the benefits derived therefrom.
The International Seabed Authority regulates all mineral-related activity in the seabed area beyond the limits of national jurisdiction.

7. Polar regions: a.

The continent of Antarctica is regulated by the Antarctic Treaty

System (1959), which seeks to ensure "in the interests of all mankind that
Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord." To this end it prohibits military activity, except in support of science; prohibits nuclear explosions and the disposal of nuclear waste; and promotes scientific research and the exchange of data. Related treaties regulate the conservation of living resources in the Antarctic. The states parties to the ATS have agreed to freeze their claims to territorial sovereignty. The ATS is an objective regime; as such,
it affects non-parties.
b.

The Arctic is not subject to a sui generis treaty regime; rather, it is

subject to the general rules of international law (including the law of the sea and the law of territory: see the Ilulissat Declaration 2008). In 1996 the Arctic states created the Arctic Council, which is an intergovernmental forum promoting cooperation, coordination and interaction among the Arctic States
(and observers).

8. Outer space: international law, including the UN Charter, applies to outer space and

celestial bodies (see UNGA Resolution 1721 (XVI) 1961 on International Co-operation in the
Peaceful Uses of Outer Space). There are two other important treaties: the Outer Space
Treaty 1967 and the Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies 1979. These instruments place restrictions on the military use of space, and confirm that the moon and its natural resources are the common heritage of mankind, and so cannot be subject to appropriation by any state.
5 Classical Doctrine: the Five Modes of Acquisition of Territory
Comparisons with Private Law
When Grotius laid the foundations of modern international law, state territory was still, as in the Middle Ages, more or less identified with the private property of the monarch of the state.
Grotius and his followers applied, therefore, the rules of Roman law concerning the acquisition of private property to the acquisition of territory by states. Faced with the question whether the effective display of sovereignty in territory by one state can in law trump another state's prior definitive title to the same expanse, international courts and tribunals have drawn inspiration from analogy with the private law doctrines of acquisitive prescription (from the civil law) and adverse possession (from the common law).
O'Keefe: There was a temptation to liken the acquisition of territorial sovereignty to the acquisition of immovable property.
The context in which this transposition occurred is telling. Ratner: This law developed when only European states had standing as full subjects of international law, and their use of force against each other and indigenous peoples was regarded as lawful.' A territory was open to acquisition through occupation if it was terra nullius- "belonging" to no one at the time.' The law evolved to require effective occupation, not mere discovery, for a state to maintain territorial sovereignty over the land.' Indigenous peoples seemed to qualify as "no one," if not legally-which would open up their land to lawful occupation then at least effectively- as
Europeans acquired their land through pacts forced upon them.
Acquisition of territorial sovereignty could occur through one of five modes.
Cession
Consensual transfer of territory from one State to another, with the intention of passing sovereignty.
Cessions are effected through agreement, normally taking the form of treaties. For e.g.,
 Purchase of Louisiana from France by the United States, 30 April 1803
 Sale of Alaska by Russia to the US in 1867 (for 7.2 million USD in gold, circa 2 billion USD today)
 UK's cession of Hong Kong to China. In 1842 the UK acquired rights over HK and surroundings territories through the Treaty of Nanking. In 1997, the UK and China agreed for the latter to be given back the territory of HK. The UK had acquired perennial rights with respect to the city of HK itself by treaty.
 Belgium and Netherlands swapping land by the Meuse river in 2016/7
 India and Bangladesh exchange of sovereignty over 160+ enclaves in 2016
Since cession entails a derivative title, the acquiring State may not possess more rights over the land than its predecessor (nemo dat quod non habet).
 Island of Palmas Case (1928), RIAA, 2 Facts: Spain ceded the Island of Palmas to the US in the Treaty of Prais. Shortly after, the
Netherlands, which then had control over Indonesian territory, claimed sovereignty over the island.
At 842: "The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region...It is evident that Spain could not transfer more rights than she herself possessed."
(Effective) occupation
Acquisition of sovereignty by taking possession of territory. This is not the same as subjugation/conquest.
Only territory which is terra nullius is susceptible to acquisition by occupation.
 Western Sahara Advisory Opinion, ICJ Reports 1975, 3
Facts: In 1884 Spain seized control over Western Sahara and declared it a Spanish protectorate. In the late 1950s Morocco and then also Mauritania claimed the territory.
Spain agreed to decolonize by way of referendum, but Morocco still claimed the territory.
There were two issues in question. 1) Was the territory terra nullius when it was colonised by Spain? 2) What were the legal ties between the territory and Morocco and Mauritania?
Verdict: 1) It was not terra nullius as it was occupied by tribes, which constituted social and political organisations. 2) While there were legal ties between the territory and the two States, this did not imply sovereignty or ownership over the territory
At para 80: "the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers....On the contrary, such agreements with local rulers, whether or not considered as an actual
"cession" of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius." It is now understood that most inhabited territories, at least in Africa and Asia, were not acquired by effective occupation, but were brought under European control through agreements with local chiefs Accordingly, effective occupation as a mode of acquisition now no longer in use, as generally no terra nullius left.
How does effective occupation arise?
 Legal Status of Eastern Greenland, (1933) PCIJ
Facts: In 1931, Norway proclaimed that it was occupying and placing under its sovereignty an area in Eastern Greenland called Eris Raudes Land. They submitted this was terra nullius. Denmark argued it was not, and that its sovereignty extended to all of
Greenland. Denmark argued it had valid title.
Principle: '[A] claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: [1] the intention and will to act as sovereign, and
[2] some actual exercise or display of such authority
Verdict: the intention and will of Denmark to act as sovereign and Denmark's exercise and display of authority, such as the establishment of a trade monopoly for the whole island and the granting of trade and mining concessions, were sufficient evidence of
Danish possession.
 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea, para. 172.
 Western Sahara (Advisory Opinion)
The court had to decide if the Kingdom of Morocco had exercised effective occupation over Western Sahara.
It reiterated the two elements from Eastern Greenland: a claim to sovereignty based upon continued display of authority involved the two elements of 'intention and will to act as sovereign' and 'some actual exercise or display of such authority'. These criteria were not fulfilled by Morocco.
Discovery or merely symbolic acts of occupation are insufficient to acquire sovereignty, but those acts may confer an 'inchoate title' on the discovering State, by which that State is accorded priority in time for the necessary subsequent process of acquiring sovereignty by

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