STATE TERRITORRY

• Defined portion of the globe which is subjected to the • State acquiring the territory must formally announce
sovereignty of a State (Oppenheim’s IL). that the territory has been taken possession (intend to
• Defined territory is a legal requirement of statehood. keep under its sovereignty).
• A State without territory is not a State.
• Subject to the limitation imposed by IL. *2 basic requirements of Occupation?
• IL recognises the supreme authority of every State
within its territory. 1. Terra Nullius
2. Effective Occupation (intention+peaceful+continuous)
*The different parts of state territory?
Terra Nullius:
1. Land territory
• Land, subsoil within its boundaries (includes ➢ A territory belonging to no one during the act alleged
internal and national waters). as occupation.
➢ Can be either never being belonged or abandoned by
2. Maritime territory previous sovereign.
• Territorial sea of a state. ➢ What if territories inhabited by native tribe with certain
social and political organization?
3. Territorial airspace
• Airspace above the land (national, internal waters Western Sahara Case
& territorial sea).
- WS inhabited by people (if nomadic), socially &
*Modes of acquiring territory? politically organized in tribes and under chiefs
competent to represent them.
- Terra nullius cannot be applied.
• Court will not specifically refer to any of these
- Morocco was not able to show evidence on actual
traditional modes.
display of sovereign activities over territory.
• Involves the application of various principles of law.
• Necessary to consider all the relevant principles. Effective Occupation:
(eg: recognition, estoppel, right to self-determination)
➢ Occupation to be valid must be “effective”.
1. Occupation ➢ 2 elements:
2. Prescription (i) The intention and will to act as sovereign
3. Cession (animus).
4. Annexation/ conquest (ii) The peaceful and continuous exercise of
5. Accretion sovereign activities (factum).
[OCCUPATION] Island of Palmas (United States v The Netherlands)
• Act of appropriation of state actively acquiring - US claim ownership of the Island of Palmas.
sovereignty over land that was not previously under its - While US maintained that it was part of the
control. Philippines, Netherlands claimed it as their own.
• Establishing sovereignty over a territory not under the - US contended that the islands had been ceded by Spain
authority of any other state either newly discovered or and as successor to the rights of Spain over the
abandoned by the state formally in control. Philippines.
• Whether a state has occupation over a particular - Netherlands argue they have possessed and exercised
territory = whether there is effective occupation of that rights of sovereignty over the island from 1677.
state over the territory concerned. - Held: A title that is inchoate cannot prevail over a
• 2 elements: definite title found on the continuous and peaceful
(i) Possession (intention to act as sovereign). display of sovereignty.
(ii) Administration (peaceful & continuous act of - Discovery alone without subsequent act cannot prove
sovereign activities, must done within sovereignty.
reasonable time). - Island belongs to Netherlands.
Eastern Greenland Case – 2 principles: - Issue: whether Kasikili/ Sedudu Island, belonged to
either Botswana or Namibia.
- There should be intention to establish sovereignty over - Held: falls within territory of Botswana sovereignty.
the territory concerned. - Botswana provided evidence to the ICJ that it had been
- There should be some actual exercise of such exercising effective control of sovereignty.
authority. - Apply principle of uti possidetis juris.
- Dispute concerning the boundary around the island and
*Occupation & IHL under ICRC? the legal status of that island.
- Both governments claimed control over the island,
• A.42 Hague Regulations: territory is considered which sparked the disagreement.
occupied when it is placed under the authority of the - The opinion was issued by the court concerning
hostile army. territorial disputes.
• Legality of any occupation is regulated by the UN - A state may acquire some territory by prescription only
Charter, whether the occupation is considered lawful. when it has not accepted the sovereignty of any other
• Law of occupation is primarily motivated by states over the said territory.
humanitarian considerations.
Frontier Land (Belgium/Netherlands) Case
[PRESCRIPTION]
- Dispute of sovereignty over two plots of land situated
• Result of the peaceable exercise of de facto in an area where the Belgo-Dutch frontier presented
sovereignty for a very long period over territory certain unusual features.
subject to the sovereignty of another. - Netherlands maintained that the Boundary Convention
• Essence: acquiescence of one state in adverse recognized provision by which the two plots were
possession of the other. attributed to Belgium was vitiated by an error, and that
• Essential elements: Netherlands sovereignty over the disputed plots had
1. Possession (intention to act as sovereign) been established by the exercise of various acts of
2. Administration (peaceful & continuous of sovereignty since 1843.
sovereign activities) - Held: sovereignty over the two disputed plots belonged
to Belgium.
*Difference between Occupation & Prescription?
Pedra Branca Case
OCCUPATION PRESCRIPTION
- Territorial dispute between SG & MAS over Pedra
Mode of acquiring: terra Acquire territory belonging Branca (Pulau Batu Puteh), Middle Rocks, and South
nullius to another Ledge.
Peaceful & continuous Same as occupation but - Pedra Branca, a rocky island located in the eastern
exercise of sovereign stricter proof and longer entrance of the SG.
activities for a long period period needed. - The area has maritime importance due to its location
over territory. along a major sea route.
- SG argue that PB was terra nullius and never been the
manifest by any sovereignty country in 1847 until the
• State may acquire a territory by prescription only
lighthouse was built in the island.
when some conditions are fulfilled.
- No evidence PB had ever been under the sovereignty
of the Johor Sultanate.
Kasikili/Sedudu Island (Botswana/Namibia) Case
- MAS had remain silent when SG dominate the area
- British acquired sovereignty over PB by fulfilling 2
- 1. The possession must be exercised (exercise of
conditions (intention and activity that describe having
sovereignty & absence of recognition of sovereignty in
sovereignty).
another state).
- Held: awarded to SG, as there was no evidence that
- 2. Possession peaceful & uninterrupted (no objection
sovereignty had been transferred to MAS.
by former sovereign + must also include acquiescence
- SG established effective administration and control
on the part of losing state).
over the island.
- 3. Possession must be public.
- 4. Possession must be for a certain period.
[CESSION]
1970 GA • Territory of a State shall not be the
• Transfer of territory, usually by treaty, from one State Declaration object of military occupation
to another. on Principles resulting from the use of force
• Results sometimes from a war/ peaceful negotiations/ of IL contra with UN.
gratuitous or for some consideration/ exchange of • Territory of a State shall not be the
territory/ sales of territory. object of acquisition by another
• Eg: voluntary cession (sale of Alaska by Russia to State.
USA for 7,200,000). (France sold Louisiana to USA • Recognised as illegal.
for 60 million francs). Akehurst’s • Significant distinction between
• The ceding state must be legitimate owner of the title. view military occupation and acquisition
• A.52 VCLT: No duress/fraud, treaty is void if procured of territory.
by the threat/force that violate IL embodied in the • MO is unlawful if it results from the
UNC. use of force.
• Any threat or use of force, whether
The Fisheries Jurisdiction (UK/ Iceland) Case contra with UNor not, invalidates
acquisition of territory.
- Iceland extended its fisheries jurisdiction from 4 to 12 Views of • Territory cannot be taken by means
nautical miles around its coast. other eminent of military force even on the ground
- The United Kingdom challenged Iceland's extension, writers of self-defence.
arguing that it violated IL, specifically the principle of
the freedom of the high seas.
- The case involved the interpretation of CIL and the *Israel occupation of Palestinian territories?
rights of coastal states versus those of distant-water ➢ 1948: Israel declared itself an independent State on
fishing states.
part of the Palestinian & War broke out.
- Held: Iceland's extension of its fisheries jurisdiction to
12 nautical miles was valid and recognized principle ➢ 1949: Israel gained more territory.
that coastal states have right to non-discriminatory ➢ 1967: Israel invaded Gaza Strip (Sinai) &West Bank.
regulations for living resources within their exclusive ➢ 1968: SC adopted Resolution 242 demanding the
economic zones. withdrawal of Israel forces from territories occupied in
the conflict.
[ACCRETION] ➢ Israel disregards the SC Resolution 242-continued to
hold much of the territory.
• territory of a state by operation of nature as by the ➢ No Israeli law mentions annexation, its extended by
drying up of a river or the recession of the sea. legislation instead.
• Eg: creation of an island in territorial waters by ➢ The GA and SC declared the above laws invalid.
volcanic action/ deposits from rivers. ➢ Israel remains occupies the Palestinian.
[CONQUEST/ ANNEXATION]
*Determining territorial disputes (based on ICJ’s decision)?
• Taking possession through military force in time of
war.
• Acquisition of the territory of an enemy by its 1. Boundary treaties & boundary awards
complete to defeat. 2. Uti possidetis juris (land,island & maritime dispute)
3. Sovereign activities
• Declaration of the conquering state’s intention to
4. Acquiescence, recognition and estoppel
annex it.
5. The right to self-determination (CIL)
• This mode is illegal (nowadays).
6. Principles of geographical continuity and contiguity
• A.2(4) UN Charter – UN member states cannot
acquire territories of each other by annexation.