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Notes on territorial sovereignty

a) Centrality of title
The basic unit of the international legal system is the state- the space in which the
state occupies
Effectivits- actual administration

The basic principle in modern law stated by the chamber in Frontier dispute (Burkina
faso v Mali):

the effectivits can play an important role in showing how the title is
interpreted in practice ( cases where the legal title does not show exactly the
territorial expanse to which it relates )

If the act corresponds to the law, where the effective administration is an


addition to the uti possidetis, the only role of effectivit is to confirm the
exercise of the right derived from a legal title.
If the act does not correspond to the law- where the territory is the
subject of the dispute, is effectively run by another state different to
the one possessing legal title, the holder of the title should be given
preference.
If the effectivits does not co-exist with any legal title it must be taken
invariably into consideration

The title prevails over possession however if the title is equivocal, possession under
a claim of right matters
Unquestioned title arises from history, general recognition and the absence of
another claimant.
Title may be relevant in different contexts
1) Principle of nemo dat quod non habet ( you cannot pass on more than you
possess) places a restrictive effect on titles dependant on bilateral agreement
Huber in Island of Palmas case:
The title alleged by the USA 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 may have
been evident that Spain could not transfer more rights than she herself possessed.
Effect of the principle is much reduced by the operation of acquiescence and
recognition

2) A judicial decision on issues of title cannot foreclose the rights of third parties
3) The compromis on the basis of which a dispute is submitted to a court or
tribunal may assume that title is to go to one of the two claimants, In
Minquiers and Ecrehos the Court interpreted the compromis as excluding a
finding that the islets were res nullius or subject to condominium. In such a
case, the absence of any other claimants, the result seems to be a title valid
against all, but the parties have not had to come up to any minimum
requirements of effective control.

b) THE CRITICAL DATE

Critical date is an important tool in resolving territorial disputes in


establishing the date at which the dispute has crystallized between two
competing claims.
Function is to determine the legal right that should be given as evidence to
sovereignty
The rationale behind the term is to ensure that the activities of the states
have not embarked upon for the purpose of improving its legal position
through contrived maneuvers.
However where it is relevant the critical date may be useful in confirming or
denying claims
The critical date must not be after legal proceedings have begun
The choice of the critical date can be a decisive issue between the states
In Minquires and Ecrehos France stated that it only needed to
demonstrate title up to 1838 the date immediately preceding the
Anglo- French Fisheries Convention 1839.
The dispute was between the United Kingdom and France regarding
the sovereignty over two island groups (Minquiers and Ecrehos) off the
port city of Saint-Malo in the English Channel, and both countries
argued at considerable length on the critical date for this case. France
contended that the date should be the signing of a bilateral oyster
fishery convention of 1839, subsequent to which acts performed by
each party cannot be set up against the other as manifestations of
territorial sovereignty. The United Kingdom, meanwhile, argued that
the court should take into consideration all acts before 1950, when the
two countries concluded the special agreement to submit the case to
the ICJ.
A dispute as to sovereignty over the groups did not arise before the
years 1886 and 1888, when France for the first time claimed
sovereignty over the Ecrehos and the Minquiers respectively. But in
view of the special circumstances of the present case, subsequent acts
should also be considered by the Court, unless the measure in question
was taken with a view to improving the legal position of the Party
concerned. In many respects activity in regard to these groups had

developed gradually long before the dispute as to sovereignty arose,


and it has since continued without interruption and in a similar manner.
In such circumstances there would be no justification for ruling out all
events which during this continued development occurred after the
years 1886 and 1888 respectively.
In Island of Palmas case the US Claimed as successor to Spain under a treaty
of Paris 10 December 1898. The issue in this case was whether Spain had
sovereignty when it purported to cede the island under the Treaty
In Eastern Greenland case (1933) the significance of the several types of
critical date arose from a Norwegian proclamation of 10 th July 1931
announcing occupation of the area against Denmark.
Court held that as the critical date is 10th July 1931 it is sufficient for
Denmark to establish a valid title in the period immediately preceding
the occupation

The second point regarding the critical date, which relates to the first, is that any actions taken by an occupying
country while a dispute is ongoing--and which are protested by another country--cannot be used to back up a
territorial claim.34 This is because such actions, under the said circumstances, do not constitute a "peaceful and
continuous display of State authority."35 The notion of "protest" becomes a factor in such situations, since the
absence of a protest when a country is placed at a disadvantage is construed, in international relations, as
indicating acquiescence. Protests are usually made to undermine the legitimacy of actions taken by an
occupying country.36

The third point is that protests have no legal meaning, though, if the occupying country is only reinforcing its
original title to a territory through effective occupation.37 Original title here does not necessarily refer to rights
that go back to time immemorial but only to title that was first acquired legitimately. As the title to territory is
already established in this case, protests from another country are not opposable to the occupying country.

c) TERRA NULLIUS
land that is not under sovereignty or authority of any state: occupation
was the mode by which such territory could be acquired (DID FRANCE
DEMONSTRATE EFFECTIVE OCCUPATION). The principle in the modern context
has fallen into disuse.- no true vacant territory remains
In the case of Western Sahara the Court had to decide whether the Western
Sahara was terra nullius at the time of Spanish colonization (1890). It was
held that it was not because of the people of the territory were socially and
politically organised under chiefs with a capacity to represent them. ICJ noted
that: so long as a territory is inhabited by tribes or peoples have a social or
political organization, simply occupying the territory is insufficient for a state
to successfully assert sovereignty over that territory.

MODES OF ACQUISITION
Question relates to additional territory acquired by a state under PIL: title to
territory
Principles of PIL on this matter mainly determined by case lawStart: def. of Territorial sovereignty in the Island of Palmas case
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 the state.
Huber J
The different methods for acquiring terri. in PIL: occupation, conquest, cession
(chain of title transfer of title/succession), prescription. If competing claims, courts
will balance up the different claims (Eritrea v Yemen) In determining title a tribunal
will concern itself with proof of the exercise of sovereignty via titre de souverain
before the critical date(s).
It is clear from the Island of Palmas case that the effective display of state authority
within a territory is to be regarded as the primary means for the acquisition of
territory:

ORIGINAL AND HISTORIC TITLE:


-

International tribunals have recognised the concept of ancient original title


but require evidence in support.

In the early period of European discovery, in the Fifteenth and Sixteenth


Centuries, the mere realization or sighting was sufficient to constitute title to
territory. As time passed, something more was required and this took the form
of symbolic act of taking possession, whether by raising of flags or by formal
declarations. By the Eighteenth Century, the effective control came to be
required together with discovery to constitute title to territory

EFFECTIVE OCCUPATION

Occupation is an original mode of acquisition by a State of a title to a


territory. It implies the establishment of sovereignty over a territory
not under the authority of any other State (terra nullius) whether newly
discovered or abandoned by the State formerly in control (unlikely to
occur).[15]

For the title acquired through occupation to be final and valid under
International Law, the presence and control of a State over the
concerned territory must be effective. In Eastern Greenland case the
PCIJ said a claim to sovereignty based upon some particular act or
title such as a treaty of cession but merely upon continued display of
authority involve to elements each of which must be shown to exist :
the intention and will to act as sovereign and some actual exercise or
display of such authority

In Eritrea v Yemen the point was reiterated as :


The modern international law of the acquisition (or attribution) of
territory generally requires that there be: an intentional display of
power and authority over the territory, by the exercise of jurisdiction
and state functions, on a continuous and peaceful basis. The latter two
criteria are tempered to suit the nature of the territory and size of its
population, if any.
-

An intention or will to act as sovereign:


Referred to as animus occupandi or animus possidendi- is very
important. The activity must be titre de souverain in the sense that
the agency myst be that of the state not of unauthorized persons. In
the clipperton Island Arbitration and Eastern Greenland case and the
Pulau Ligitan and Pulau Sipadan case the court emphasized that the
actual display of sovereignty must be accompanied by animus or
intention or will to act as sovereign. This can be presumed from the
simple fact that the state is exercising such authority in the territory. In
territories such as the clipperton Islands, the islands around Malaysia,
Singapore and Indonesia where extensive display of sovereignty is not
possible- states must make clear its intentions by other meansrelecance of publication of notices of sovereignty in different Journals in
the Clipperton Islands Arbitration, the declared application of national
laws to Greenland by Denmark, in the Eastern Greenland Case, the
environmental protection and navigation measures taken by Malaysia
in the Pulau case and the regulation and shipping by Singapore in the
Pedr Branca v Pulau batu puteh case.
AND

The some actual exercise of sovereignty.:


Intention may be inferred from all the facts, although sometimes it may
be formally expressed in official notifications to other States. Adequate

exercise of sovereignty must be peaceful, real, and continuous. This


element of physical assumption may be manifested by an explicit or
symbolic act by legislative or administrative measures affecting the
claimed territory or by treaties with other States recognizing the
sovereignty of the Claimant State over the particular territory or
demarcating boundaries.
-

Occupation was often preceded by discovery that is the realization


of the existence of a particular piece of land.

Discovery in the 15th and 16th centurys discovery conferred complete


title. But it seems that it gave no more than an inchoate title: an effective act
of appropriation seems to have been necessary. None the less in modern
times it gave no more than an inchoate title- OPTION against the other states,
to proceed to effective occupation within a reasonable time.
In Island of Palmas the US argues that as a successor to Spain, its title
derived from Spanish discovery in the 16th century. HUBER responded that
even if discovery without more gave title at the time, the continued existence
of the right must be determined according to the law prevailing 1898, the
critical date. In his opinion the modern law is that an inchoate title of
discovery must be completed within a reasonable period by the effective
occupation of the region claimed to be discovered. The case of Clipperton
Islands (1931) supports this view.
Title is never inchoate although it may be weak if it rests on the slight
evidence of state activity.

Symbolic annexation discovery used to be accompanied by some


form of symbolic activity by discoverers such as hoisting up or planting
a national flag, firing a salute or erecting a cross or a monument. A
monument will usually bear royal arms or enclose a formal document
stating that possession of the territory had been assumed. The
symbolic acts were seen as representing the actual occupation or
possession. The concept does not give title except in special
circumstances in Clipperton Island where a state representatives duly
authorized proclaimed sovereignty in 1858 and this was notified to the
government of Hawaii by the French consulate. The award og the
arbitrator states that:
If the territory was completely uninhabited when the occupying state
makes its appearance at the absolute and undisputed disposition of

that state then it is to be regarded at that moment the taking of


possession is accomplished and that occupation is complete.

Clipperton Case- related to a small desolate and uninhabited island.


In relation to other territories the preponderance of opinion suggesting that history
did not think that Symbolic annexation and discovery could be enough to satisfy
effective occupation France in respect of North American territory and Great Britain
in relation to North American territories both took further steps to establish effective
occupation of those areas as they themselves did not regard symbolic annexation
and discovery to be the only means of proving title to territory.
So both concepts do not produce more than just inchoate title, an independent
mode of exclusive territorial acquisition.

Effective and continuous display of state sovereignty


In Modern international law the main basis for establishing sovereignty over
territory is by effective occupation
In the Island of Palmas case Judge Huber indicated that title to territory could not be
established by a once and for all display of sovereignty. It had to be continuous.
-

This encompases two ideas:


1. Display of sovereignty must be ongoing and rarely consist only of a single
act. In the Cliperton island case, e.g. an important element was Frances
continued affirmation of sovereignty in the face of claims by Mexiconote:
degree of continuity may vary according to each case.
2. Display of sovereignty must exist up to the critical date noteCRITICAL DATE INFORMATION IS ABOVE: in the case of Pulau Ligitan and
Pulauu Spiadan case the critical date was 1969 the date at which Indonesia
and Malaysia asserted competing claims to the islands. The court held that it
cannot take into account acts having taken place after the date on which the
dispute between the parties crystalized unless its a continuation of ongoing
acts and they are not undertaken for the purpose of improving the legal
position of the Party which relies on them. Therefore the court will look and
analyse the effectivits which date from the period before 1969, the year in
which the Parties asserted conflicting claims to Litgitan and Sipadan #

Peaceful Display
The exercise of state power over territory must be peaceful in the sense that it is
not challenged by other states. this relates to terra nullius as seen in the
Clipperton Island Arbitration.which means that state functions must proceed in
uninterrupted fashion. In the case of Botswana v Namibia the two parties agreed
that acquisitive prescription was recognised in international law and further agreed

on the criteria to be satisfied must be titre de souverain, peaceful and


uninterrupted, public and edure for a certain length of time to which the Court did
not contradict.
OCCUPATION: A display of state sovereignty does not lose its peaceful character
merely because of some other state verbal objection to the claim of sovereignty.
There must some acts by the objecting state, of an extensive nature, because title
based on occupation loses its peaceful character.
PRESCRIPTION: (where another state might be thought to have pre- existing title)
the requirement of peaceful display of sovereignty is much MORE IMPORTANT:
Prescription means the acquisition of sovereignty by one state over territory that
formally belongs to another. This is achieved by effective state functions within the
territory. Therefore objections by the state ousted from the territory are an
important factor and may well prevent the new state; from gaining title by
prescription, a fact accepted by both states in Botswana v Namibia.
In Cameroon v Nigeria the case illustrates that the degree of effective occupation
necessary to oust an existing sovereign must be high and that it is unlikely to be
effective to transfer sovereignty unless the existing sovereign acquices in some
way. In this case Nigeria was unable to demonstrate acquiescence by Cameroon in
the assumption of title by Nigeria even assuming sufficient acts of effective
occupation by the latter.
In Contrast
Pedra Branca/ Pulau batu Puteh, Middle rocks and South ledge ( Malaysia/ Sngapore)
(2008). The lack of objection or acquiescence by the former title holder was vital in
establishing title in Sovereignty of the Islands. Here Malaysias lack of objection to
Singapores assumption of sovereignty over one of the Islands that had previously
been very clearly within the sovereignty of Malaysia meant was determinative of
the matter in Singapores favour. It is a relatively rare example of title being so
clearly established then lost.
In Chamizal Arbitration between the US and Mexico, the Rio Grande River forming
the border between both States, changed course and the US claimed the ground
between the old and new river beds partly on the basis of peace and uninterrupted
possession. This claim was dismissed in view of the constant protests by Mexico and
in light of a Convention signed by both parties that there existed a dispute as to the
boundary which had to be resolved. The fact that Mexico decided not to go to was
over the issue was not itself sufficient to make the passion of the tract of land by
the US peaceful.
Intertemporal law
In Island of Palmas case Judge Huber discussed the doctrine of intertemporal lawmeans that the law is to be applied to a given dispute is the law in existence at the
time of the dispute to be settled- critical date-. So if the critical fate is 1898 the
dispute is to be decided by reference to the rules of international law existing at
that date e.g. use of force legal before 1945-. However whether that title can be

maintained has to be assessed according to the rules of international law as they


now exist.

Discovery in the 15th and 16th centurys discovery conferred complete


title. But it seems that it gave no more than an inchoate title: an effective act
of appropriation seems to have been necessary. None the less in modern
times it gave no more than an inchoate title- OPTION against the other states,
to proceed to effective occupation within a reasonable time.
In Island of Palmas the US argues that as a successor to Spain, its title
derived from Spanish discovery in the 16th century. HUBER responded that
even if discovery without more gave title at the time, the continued existence
of the right must be determined according to the law prevailing 1898, the
critical date. In his opinion the modern law is that an inchoate title of
discovery must be completed within a reasonable period by the effective
occupation of the region claimed to be discovered. The case of Clipperton
Islands (1931) supports this view.
Title is never inchoate although it may be weak if it rests on the slight
evidence of state activity.

Symbolic annexation discovery used to be accompanied by some


form of symbolic activity by discoverers such as hoisting up or planting
a national flag, firing a salute or erecting a cross or a monument. A
monument will usually bear royal arms or enclose a formal document
stating that possession of the territory had been assumed. The
symbolic acts were seen as representing the actual occupation or
possession. The concept does not give title except in special
circumstances in Clipperton Island where a state representatives duly
authorized proclaimed sovereignty in 1858 and this was notified to the
government of Hawaii by the French consulate. The award og the
arbitrator states that:
If the territory was completely uninhabited when the occupying state
makes its appearance at the absolute and undisputed disposition of
that state then it is to be regarded at that moment the taking of
possession is accomplished and that occupation is complete.

Clipperton Case- related to a small desolate and uninhabited island.


In relation to other territories the preponderance of opinion suggesting that history
did not think that Symbolic annexation and discovery could be enough to satisfy

effective occupation France in respect of North American territory and Great Britain
in relation to North American territories both took further steps to establish effective
occupation of those areas as they themselves did not regard symbolic annexation
and discovery to be the only means of proving title to territory.
So both concepts do not produce more than just inchoate title
CESSION AND TREATY
A right to territory may be conferred by territory provided that the transferee takes
in accordance with the treaty. The date on which title changes will normally be the
date on which the treaty comes into force .
The principle of nemo dat quod habet still applies to the transferee
-

Agreements concluded with indigenous rulers

Treaties between indigenious peoples and the state were a feature of the period of
colonization but are of limited relevance since the partition of the world into
independent states. During the era of the European Colonial expansion under which
an immense number of treaties were concluded with various African politiesearly
position of the treaties.
Although this was not classed as being cessions but none the less it gave a form of
derivative title distinguishing the act of acquisition from that of a mere occupation.
Huber J in Island of Palmas:
In substance it is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory on the basis of autonomy of the natives thus
suzerainty over the native states becomes the basis of territorial sovereignty as
towards other members of the community of nations.
In Western Sahara, the Court stated that in the period beginning in 1884,
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 terra nullius, ICJ in this case noted that territories
inhabited by tribes or peoples having social and political organisation
were not to be regarded as terra nullius
In Cameroon v Nigeria, the Court called upon to determine the legal effect of a
1884 Treaty between the UK and the Kings and Chiefs of Old Calabar an area in the
Niger Delta, and its consequent effect on the UKs capacity to deal later with the
territory. Nigeria considered the 1884 Treaty to have created an international
protectorate, which did not therefore result in the transfer of title to the UK; rather it
remained vested in Old Calabar as a sovereign entity. The court disagreed, noting
that
a) At the time, the UK did not regard Old Calabar as a state, a position
consistent with its activity in the rest of the region;
b) The region did not possess a central federal authority sufficient to create a
protectorate

c) British activity in the region was reflective of an intention to administer,


rather than merely protect
d) Nigeria was unable to identify with any degree of precision of the source and
character of Old Calabars international personality either in 1884 or
thereafter.