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TERRITORY

The Concept of Territory


in International Law
State
Sovereignty
Territory
What is State Territory??
State territory has been defined as
portion of globe which is
subjected to the sovereignty of a
State.

It is the space within which the


State exercises its supreme and
normally exclusive authority.
Why study the concept of
Territory in International
1.)
Law??
Composition of a State
Territory
Air Space above land & water territory
Territorial Sovereignty
sovereignty in relation to
a portion of the surface
of the globe is the legal
condition necessary for
the inclusion of such
portion in the territory of
any particular state.
Island of Palmas case
Title
Evidence which may establish the existence of a right
Aspect of territory apart
from sovereignty
Territory that has no sovereign

Terra Nullius Res Communis


New States and Title to
Territory
1.) Factual Requirements of
Statehood
2.) Recognition
3.) Methods by which a new entity
may gain its independence as a
new state:
(i) by constitutional means
(ii) by non-constitutional means
Modes of Acquisition of
Territory
1.) Occupation (of terra nullius)
2.) Prescription
3.) Cession
4.) Accretion
5.) Subjugation (or conquest)

Original modes
Derivative Modes
Boundary Treaties &
Boundary Awards
Boundary Treaties
Boundary treaties, whereby either
additional territory is acquired or lost
or uncertain boundaries are clarified
by agreement between the states
concerned, constitute a root of title in
themselves.

Special kind of treaty in that they


establish an objective territorial
regime valid erga omnes.
Boundary Awards
Occupation
Occupation is the act of
appropriation by a State by which
it intentionally acquires
sovereignty over such territory as
it is at the time not under the
sovereignty of another state.

It is thereby an original mode of


occupation in that the sovereignty
is not derived from another state.
Effective Occupation
Possession

Administration must be established within a


reasonable time after taking the territory into
possession
Eastern Greenland Case
Norway

Eastern Greenland

Denmark
The PCIJ held
Claim of Sovereignty
Prescription
If a state exercises control and
establishes occupation over a
particular territory for a long time
and thus exercises de facto
sovereignty over it, then the
territory concerned becomes a part
of that State.
Peaceable exercise of de facto
sovereignty over a very long period
of time.
Island of Palmas Arbitration
The Main Question
If a dispute arises as to the
sovereignty over a portion
of territory, then what is the
validity of the claim of the
parties if they are clashing
or what is the criteria for
establishing superior claim?
Contention of the US
Treaty of Paris
Contention of the Netherlands

Historic Title
Hence
The Netherlands title of
sovereignty, acquired by
continuous and peaceful
display of State
authority during a long
period of time probably
going back beyond the
year 1700, therefore
So thereby, some other
aspects that emerge
Title by
France v. Mexico (1931)
Clipperton Island Case
History of claims- France
History of claims- Mexico
What is occupation? & Why
does it belong to France here??
Actual Possession But, if a territory, by
virtue of the fact, that it
was completed
uninhabited, is, from the
first moment when the
occupying state makes its
appearance there, at the
absolute and undisputed
disposition of that state,
from that moment the
taking of possession
must be considered as
accomplished & the
occupation is thereby
complete.
Therefore, it was stated
The Clipperton Island was legitimately
acquired by France on Nov17, 1858.

There is no reason to suppose that France


has subsequently lost her right, since she
never had the animus of abandoning the
island.

The fact that she has not exercised her


authority there in a positive manner does not
imply the forfeiture of an acquisition already
definitely perfected.
Prescription requires
fulfillment of certain
conditions
Common features of
Occupation & Prescription
1.)
Distinction between
Occupation and
Prescription
OCCUPATION PRESCRIPTION
Will to exercise sovereignty De facto sovereignty for long
Features distinguishing
Occupation & Prescription
Terra Nullius
OCCUPATION PRESCRIPTION
Critical Date
What is the Critical Date?
A determining moment at which it might be
inferred that the rights of the parties have
crystallized so that acts after that date
cannot alter the legal position.

It is the date when title is said to be


determined.

Such a moment might be the date of a


particular treaty or the date of occupation
of territory etc.
France v. U.K.
Minquiers & Ecrehos Case
1.)
Location of the Isles
Competing Claims to Title
Dukes of Normandy were
FRANCE the
THE vassals of th
UNITED
KINGDOM
Therefore
-Selection of Critical Date -
Special Agreement of Dec.29, 1950
The United France
Kingdom
The Court
Fishery Convention, 1839
The British authorities have
consistently displayed authority
whereas the French government has
not produced evidence of exercise of
title, and loses in the relative
strength of the opposing claims to
sovereignty.

Hence, the sovereignty belongs to the


United Kingdom.
Accretion
The geographical process by which new
land is formed and becomes attached to
existing land.
When there is a change in the course of a
river forming a boundary then two
consequences may follow: -

Violent Shift (avulsion)


Slight shift

Boundary may be shifted


Boundary stays at the same point
along the original river bed
U.S. v. Mexico (1911)
Chamizal Arbitration
Accretion vis--vis The
Chamizal Tract
Treaty of 1848
Prescription vis--vis El
Chamizal
The United States has not
been able to establish their
title by prescription as the
foundational elements of
prescription like
undisturbed, uninterrupted
and unchallenged could not
be met with.
Cession
This involves a peaceful transfer of
territory from one sovereign to another
(with the intention that sovereignty
should pass) and has often taken place
within the framework of a peace treaty
following a war.
The effect of cession
Replacing one sovereign from another
The acquiring state cannot have more rights
than its predecessor
Modes in which cession occur
Conquest & the use of force

Established principle in
Municipal Law: An illegal act
cannot give birth to a right in
law.

In International rule this rule is


modified: The reaction to a
successful (even if illegal)
violation is accepted by virtue of
recognition.
What is conquest?? When
can it be a basis of title??
Conquest
Conquest & the resultant
dimensions
Armed Conflict
Territorial Sovereignty-
The attendant concepts

The exercise of effective control


Inter-temporal Law: Some
considerations
Sovereign Activities:
(effectivites)
The role of subsequent conduct:
Recognition, Acquiescence and
Estoppel
The doctrine of uti possidetis
The exercise of effective control

Effectiveness rather than consolidation


is the appropriate term that has the
effect of attaching a territory or an
expanse of sea to a given state.
Both occupation and prescription rely
primarily upon effective possession
and control.
The element of time is also relevant as
it affects the effectiveness of control.
Inter-temporal law
The Concept
Relevant time period for
ascertaining rights & obligations
E.g. a territorial title may be valid in
the 16th century legal doctrines but
ineffective now.

The general rule is in a dispute the


claim or situation in question has to
be examined according to the
conditions & rules existing at that
time and not at a later date.
Island of Palmas case
However.
The evolution of the right in the
contemporary international law
has to be considered as well.
E.g. the concept of Continental
Shelf which was unheard of in
the 1920s.
Aegean Sea Continental Shelf
Case
Sovereign Activities
(effectivites)
Control even though needing to be
effective, does not necessarily
have to amount to possession and
settlement of all the territory
claimed.
Performance of sovereign activities
depends on the nature of territory
involved, the amount of opposition
& international reaction.
Will of the State to
acquire Sovereignty
Some other not-so relevant
criteria
1.) Geographical Proximity or
contiguity: Sovereignty
exercised over such area will
raise a presumption of title but
nothing more.
2.) If a valid legal title of a state
exists, effectivites may be taken
into consideration in case the
title is not capable of exactly
defining the territorial limits. It
The role of
subsequent conduct:
Recognition,
Acquiescence and
Estoppel
Subsequent Conduct
1stly
Subsequent Conduct
Principles of good faith & equity
The nature of such acts
Recognition
The nature of such acts
Estoppel
Importance of Recognition
& Acquiescence
In case of acquisition of control
contrary to the will of the former
sovereign.

Title of prescription can arise if


there is no protest by the former
sovereign. (acquiescence)

In the long run, recognition can


validate a defective title.
Importance of Recognition
& Acquiescence
These are also relevant where the
prescriptive title is based on what is
called immemorial possession, that is
the origin of the particular situation is
shrouded in doubt.

It becomes lawful in the general


acquiescence of the international
community or particular recognition
by another state.
Importance of Estoppel
A legal technique whereby states
deemed to have consented to a
state of affairs cannot afterwards
alter their position.
It cannot found a title by itself.
It is of evidential effect.
Temple of Preah Vihear- most
important case on estoppel.
The doctrine of uti
possidetis
The parent value:
Territorial Integrity
The normative arrangement
Appear as competing The Principle laid
norms down
Territorial Integrity international law expects
that the right to self
determination will be
exercised within the
framework of existing
sovereign states and
consistently with the
maintenance of the
territorial integrity of those
states.
Reference Re Secession of Quebec
The parent value:
Territorial Integrity
Effectivites
Uti Possidetis

as you possess
The Doctrine
The essence of the principle lies in its primary aim of securing
respect for the territorial boundaries at the moment when
independence is achieved. Such territorial boundaries might be
no more than delimitations between different administrative
divisions or colonies all subject to have the same sovereign. In
that case, the application of the principle of uti possidetis
resulted in administrative boundaries being transformed into
international frontiers in the full sense of the term.
Burkina Faso v. Republic of Mali

settlement of the dispute should be


based upon respect for the principle of
the intangibility of frontiers inherited
from colonization.

The principle has developed into a


general concept of customary
international law and was unaffected
by the emergence of the right of self
determination.
Application beyond Colonial
Context
Yugoslavia Arbitration Commission- Opinion No. 2
Beyond Uti Possidetis

1.) Presence of a Relevant Treaty

2.) Notion of Effectivites**

**defined as the conduct of the administrative authorities as proof of


the effective exercise of territorial jurisdiction in the region during the
colonial period.
Relevant Applicable Treaty

Once defined in a treaty, an


international frontier achieves
permanence so that even if the
treaty itself ceases to be in
force, the continuance of the
boundary would be unaffected
and it would change only with
the consent of the states
directly affected.
Effectivites
Colonial
Burkina Faso/Mali case

Each of them might be relevant in


seeking to determine uti possidetis
pre-independence line
- For example -
1.) Act concerned corresponded to the title comprised in
uti possidetis juris, then the effectivites simply
confirmed the exercise of the right derived from the
title.
2.) Where the territory subject to the dispute was
effectively administered by a state other than the one
possessing legal title, preference would be given to the
holder of the title.
3.) Where no clear legal title, then the effectivites play
an essential role in showing how the title is interpreted
in practice.
Land, Island & Maritime
Frontier Dispute case
If Effectivites are insufficient..
If anyhow, uti
possidetis line could
not be determined,
recourse to EQUITY
might be necessary
Report on the Falkland Islands
The Claims/Dispute- A Timeline
Year Event
1690 First recorded landing by British captain
but no formal possession
1764 1st effective establishment- made by the
French on East Falkland
1767 It was sold to Spain that maintained the
country until 1811
1765 Meanwhile, British landed & occupied
West Falkland
1770 Spanish forces expelled the British
settlers
1771 They returned next year following an
exchange of Declaration between
Spanish and British governments
The timeline continued
Year Event

1811 The Spanish garrison & settlement on East


Falkland was withdrawn
1816 Argentinas independence was formally
declared
1820 Colonel Daniel Jewett took possession of the
Islands in the name of new Government in
Buenos Aires
1821 The above fact was advertised in London
Times
1823- Several attempts to establish government
29 and appointment of Governor by Buenos
Aires
The conflicts, talks, further
Year Event
protests
1831 Due to a conflict with the U.S, the latter
physically destroyed the Argentine settlement
and declared the Island free of all government
1832 Argentina appointed another Governor, who was
murdered by the mutinous soldiers
Dec British Admiralty gave instructions to Captain
1832 Onslow to exercise Britains rights of
sovereignty.
Jan. Captain Onslow peacefully persuaded the
1833 remainder of the Argentine garrison to
leave. Argentina claims they were forcibly
ousted.
April. 2, The Island remained in continuous British
1982 possession from 1833 until 1982
Some 1833, 1834, 1841, 1842 and 1849**
protests (** A note was sent to Britain by Argentina)
The note of 1849
The note of Argentina indicated
that they are not intending to
protest further in view of
Britains inattention to her
protests, and that she is feeling
humiliated by this. Argentinas
silence should not be
interpreted as acquiescence.
The Governors residence in
Stanley
Several Questions Arise
Self-Determination
Situation today in the
Falkland Islands
General recognition by the
international community of the
British claim.

Also, the U.K. has extended to the


Falklands many multilateral treaties
to which large numbers of states, are
parties, without attacking comment.
- COMMON HERITAGE OF
MANKIND -
The Concept
A principle which holds that
defined territorial areas and
elements of humanitys common
heritage (cultural and natural)
should be held in trust for future
generations and be protected
from exploitation by
individualnation-states or
corporations.
Sovereignty is not an
applicable principle
Res Commune
Some Conventions under this
principle
Relating to Deep-sea Sea Bed &
Ocean Floor
GA Declaration of Principles Governing
the Sea-Bed & Ocean Floor, 1970
Convention on the Law of the Sea, 1982
Relating to the Moon
Art.IX of the Moon Treaty, 1979
Outer Space
Outer Space Treaty, 1967
The Antarctica
The Uniqueness of Antarctica

The Antarctic Treaty System


The Antarctic Treaty, 1959