Territory PQ & Essay Notes

1 Introduction

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.

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).

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).

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:

   1. 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;...

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