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Territory Notes

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I.

INTRODUCTION

A.

THE CONCEPT OF 'TERRITORY'

1. What counts as 'Territory'?
States have (territorial) sovereignty over their territory. Island of Palmas (1928) 2 RIAA 829, 838-39."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"

The components of a state's 'territory' include: emerged land, internal waters (such as rivers and lakes), the territorial sea, and the airspace above these areas.
? Internal waters. Comprising saltwater and freshwater areas inside a State's territory, such as rivers and lakes and (exceptionally) archipelagic waters.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. The State has sovereignty over the airspace above its territory. Arts 1-2, Chicago Convention on Civil Aviation (7 December 1944) 15 UNTS 295 Article - 1 The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory. Article - 2 For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State

2. Territory, Sovereignty and Jurisdiction State territory and its appurtenances (airspace and territorial sea), together with the government and population within its boundaries, constitute the physical and social base for the state. The legal competence of states and the rules for their protection depend on and assume the existence of this stable, physically identified base. For example, according to Art 29 VCLT: 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. Territorial sovereignty has a positive and a negative aspect. The former relates to the exclusivity of the competence of the state regarding its own territory, while the latter refers to the obligation to protect the rights of other states.

B.

MARITIME APPURTENANCES

The State possesses certain rights (but not sovereignty) over other adjacent maritime spaces: the Exclusive Economic Zone (EEZ) and the continental shelf.

1. 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.

2. 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).

C.

BOUNDARIES

Boundaries are imaginary lines on the surface of the earth which separate the territory of one State from another, or from unappropriated territory, or from the open sea. Identifying the boundaries of a State's territory is of special importance, since the State's competences extend, in principle, only to its territory. But undefined boundaries are not an impediment to statehood.

II. TITLE TO TERRITORY IN INTERNATIONAL LAW

A.

INTRODUCTION

Acquisition of territory concerns the processes recognised by international law through which a State establishes its sovereignty over a portion of land. A State which has established its sovereignty over land is said to possess 'title' over that territory. The term 'title' is used in (at least) two different senses in international law: (i) as a source of the rights over land; (ii) as the evidence of sovereignty over land.

B.

THE CLASSICAL MODES OF ACQUISITION OF TERRITORY

These modes are frequently divided into 'original' and 'derivative' sources of title. Original title is that acquired over land that is terra nullius. Derivative title is acquired over land that was already under the sovereignty of another State.

1. Occupation Occupation is the act of appropriation of territory by a State, through which it acquires sovereignty over that territory. Occupation must involve an actual, continuous and peaceful display of State authority with the intention to act as sovereign (Island of Palmas)
? Continuous and peaceful display
? 'Continuous' = 'continuing', i.e. 'the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical' (Island of Palmas, 839).
? No fixed period for which state authority must be displayed. o Island of Palmas, 840, 855 o Sovereignty over Pedra Branca/Pulau Batu Puteh, para. 67
? 'Peaceful' = effectivites not the object of protest by other states o Sovereignty over Pedra Branca/Pulau Batu Puteh, para. 68
? Crucial whether other states claim sovereignty, and with what evidence
-> possible to claim with limited effectivities if there is no other state that can point to a better title
? Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 134
? Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 173
? Territorial and Maritime Dispute (Nicaragua v Colombia), para. 80State acquires sovereignty over terra nullius through effectivites- Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, 2007 ICJ Rep 659, para. 172:
? 'A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over given territory.' Decreasing significance because few terra nullius left- Western Sahara, 1975 ICJ Rep 12, para 80
? 'Whatever differences of opinion there may have been among jurists, the State practice of the [colonial] period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius.'
? Ie in the circumstances in quotation fulfilled - not terrae nullius
? Held no qualifying legal ties so no right of self-determination of Western Sahara Two elements: intention and actual exercise
- Legal Status of Eastern Greenland, (1933) PCIJ Ser. A/B No 53, 45-6
? [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.
- Cited approvingly in Sovereignty over Pulau Ligitan and Pulau Sipadan, 2002 ICJ Rep 625, para. 134 and Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 172.
? A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory. To sustain a claim of sovereignty on that basis, a number of conditions must be proven conclusively.State cannot rely on private conduct of its nationals - not acts a titre de souverain:
- Kasikili/Sedudu Island (Botswana/Namibia), 1999 ICJ Rep 1045, para. 98
- Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 140Acts must be public, not clandestine
- Island of Palmas, 868
- Sovereignty over Pedra Branca 2008 ICJ Rep 12, p. 122, para. 17 (joint Diss. Op. Simma and Abraham).What constitutes display of state authority will vary.
- Island of Palmas: '[e]ach case must be appreciated in accordance with (its) particular circumstances' (p 855).
? Manifestations of territorial sovereignty assume ... different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of a right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. (p. 840)
- Frontier Dispute (Burkina Faso/Mali) (1986), para 63.
? [W]here the legal title is not capable of showing exactly the territorial expanse to which it relates ... effectivites can then play an essential role in showing how the title is interpreted in practice

Precisely what acts will be sufficient to found sovereignty is a matter of fact and degree, and may depend on the character of the territory. The bar with respect to remote and sparsely settled areas will be set lower than in the context of more heavily populated territory. A first, decisive act of sovereignty may suffice to create a valid title over uninhabited, inhospitable and remote regions

?

For example, Clipperton Island (Mexico v France) concerned a dispute over an uninhabited island. The arbitrator held that a proclamation of sovereignty by a French naval officer later published in Honolulu was sufficient to create a valid title. The weakness of Mexican claims to the island, as well as the uninhabited and inhospitable nature of the territory were also taken into account.

However, in relation to more populated territory, state activity must satisfy the normal requirements of 'effective occupation'. A prior State act of formal annexation cannot long prevail against an actual and continuous display of sovereignty by another State.In Eastern Greenland (Denmark v Norway), the Danish claim to sovereignty over Greenland, based not on any physical presence in the contested territory but on (a) the long-term presence of colonies in other parts of Greenland, (b) the wording of legislation and treaties so as to render them applicable to Eastern Greenland, and (c) seeking to have the resulting title recognized internationally, was held to be superior to the Norwegian claim, based on the wintering of various expeditions in the territory and the construction of a wireless station.

Terra nullius Only territory which is terra nullius can be acquired by occupation. Terra nullius refers to land which is not under the sovereignty of any State.Island of Palmas -> treaty of protection not an agreement among equals Contentious whether terra nullius includes land inhabited by tribal communities not regarded as States On one view, most of these territories, at least in Africa and Asia, were brought under European control through agreement with local chieftains o Maritime Delimitation and Territorial Questions between Qatar and Bahrain [2001]
ICJ Rep 40, pp. 54-56, paras 38-44, p. 69, para 95 -> ICJ said unanimously that Qatar had title to the territory - Sep Op that court placed great weight on former protecting power ie UK whether UK thought Qatar of Bahrain had better claims to the territory o Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment [2002] ICJ Rep 303, pp. 401-407, paras. 200-209 -> question whether UK had authority to pass title to disputed territory to Germany, turned on who had original title to disputed territory. Treaty of protection by UK and tribe, ICJ took view that treaty of protection as valid treaty as gave up ability to deal with other countries - therefore UK had title, could transfer it to Germany
? Ie can acquire territory dispute presence of tribes so long as entered into treaty of protection o Malaysia/Singapore, 55-56, paras. 135-136

Discovery In the past, occupation was often preceded by discovery. The Permanent Court of Arbitration in Island of Palmas (US v Netherlands) held that discovery confers no more than an 'inchoate title' which the discovering State must complete by effectively occupying the territory within a reasonable period of time.

-Discovery does nothing more than give priority - need occupation - Island of Palmas (US v Netherlands)
? Fact of continuity (ie being close to State) not a basis for title - Island of Palmas (US v Netherlands) (where arbitrator says islands outside state territorial waters do not belong to the closest coastal state) o Eg Western Sahara, para. 92 o Eg North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands), ICJ Rep 1969, p.3, para. 43.

? Rejected USA's argument that Spain had title from discovery and thus when transferred land to USA, USA gained title over Palmas Ie therefore Spain's "discover" of Palmas gave it nothing more than in "inchoate title", did not exercise authority over the island - therefore Netherland's claim to having acquired Palmas valid
? Continuous and peaceful display of sovereignty -> Spain's "continuous and peaceful display of State authority", leading up to the claim of the "critical date" can defeat any other claim whatever its basis
? Ie continuous and peaceful display prevails over Spain's inchoate title

Acquiescence of third parties The acquiescence of other states is not strictly relevant although of useful evidential effect. However, where two or more states have asserted competing claims, the role of consent by third parties is much enhanced. In Eastern Greenland, the Court noted that Denmark was entitled to rely upon treaties made with other states in so far as these were evidence of recognition of Danish sovereignty over all of Greenland.

2. Accretion Accretion is the process of increase of land through new formations. Where new land comes into being within the territory of a state, acquisition of these new formations occurs as a direct consequence of the sovereignty of the State over the land.Eg Natural -> Island of Surtsey off the southern coast of Iceland, which emerged naturally in the 1960s Eg Man made -> 'The Palm' and 'The World' off the coast of Dubai Eg Natural island/man-made -> Spratly/Nansha in the South China Sea

Territory may also increase through the sudden or gradual accumulation of sediment which may have the effect of extending territory (a process known as alluvion). This may happen in a river, in its mouths or deltas, or on the coast. Alluvion in a boundary river may affect the location of the border between the two States. Two scenarios have been traditionally envisaged: (i) if the river changes gradually, the boundary follows the river; (ii) violent shift (avulsion) of the river channel does not affect the boundary, which remains in the deserted river bed.

In Chamizal (Mexico v US), the Rio Grande River forming the border between US and Mexico changed course and a tract of some 600 acres, which had been on the Mexican side was shifted to the US side. The US claimed the ground between the old and new river beds on the basis that it was formed by changes in the river's course resulting from slow and gradual erosion. Mexico argued that the tract was created due to sudden alterations in the river's course. In its decision, the arbitration commission distinguished between two periods of alteration and suggested the division of the tract on the theory that part of it had been moved by avulsion and part by erosion. According to the thalweg principle, if the river is navigable, the boundary will follow the middle line of that channel (Kasikili(Botswana v Namibia)). Where there is no such channel or where the parties so choose, the boundary line will, in general, be the middle line of the river itself. These respective boundary lines would continue as median lines (and so would shift also) if the river itself changed course as a result of gradual accretion on one bank or degradation of the other bank.

3. Prescription Mode of acquisition of territory which is not terra nullius. Prescription refers to the removal of defects in a putative title arising from usurpation of another's sovereignty by the acquiescence of the former sovereign.THOUGH NOTE ICJ HAS NEVER ACKNOWLEDGED ACQUISITIVE PRESCRIPTION ALLOWED FOR TITLE TO PASS ALONE - EG Pedra Branca was decided on acquiesce, not entirely on prescription

This mode of acquisition is controversial, in particular because it conflicts with the principle of stability of boundaries. Moreover, States rarely invoke 'prescription' as the basis of their title and the ICJ has never relied on it to ground title. On the other hand, the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereign reflects the need for stability felt within the international system by recognizing that territory in the possession of a state for a long period of time and uncontested cannot be taken away from that state without serious consequences for the international order. Acquisition by prescription results from (i) effective occupation a titre de souverain (and not a manifestation of purely individual effort) (ii) for a prolonged period; (iii) with the acquiescence of the usurped sovereign. - Malaysia/Singapore 96, para. 276 Effective Occupation The actual, continuous, peaceful and public display of State authority over the territory in question with the intention to act as sovereign amounts to effective occupation. Publicity is essential because acquiescence is essential.

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