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Brownlie, Ch. VI. Territorial Sovereignty.

territorial sea of another state; prescriptive right of passage between territorial homeland
and enclave). Exercise of “owned” rights (sovereign) is not to be confused with TS.
1. Concept of Territory.
4 types of regimes in law: 6. Administration Divorced from State Sovereignty.
i. Territorial sovereignty (TS) – principally over land territory, territorial sea appurtenant to the International organizations not only administer territory as legal representatives but may
land, seabed and subsoil of the territorial sea. Territory includes islands, islets, rocks and also assume legal responsibility for territory in respect of which no state has TS (in 1966,
reefs. UN GA terminated Mandate of South West Africa). Difficulty: historical association of
ii. Territory not subject to sovereignty of any state/s – possesses status of its own. concepts of ‘sovereignty’ and ‘title’ with the patrimony of states with definable sovereigns.
iii. Res nullius – same subject matter legally susceptible to acquisition by states but not as
yet placed under territorial sovereignty. 7. Territory the Sovereignty of which is Indeterminate.
iv. Res communis – the high seas, including exclusive economic zones and the outer space, Such that, a piece of territory not a res nullius has no determinate sovereign. This isn’t the
which is not capable of being placed under state sovereignty. case where 2 states have conflicting legal claims to territory since a settlement of the
Per customary int’l law and dictates of convenience: airspace above an subsoil beneath dispute has retroactive affect (winner deemed sovereign during the period of contention—
state territory, the res nullius, and the res communis are included in each category. territory was the subject-matter of the claim, not the sovereignty).
Sovereignty may also be indeterminate in so far as the process of secession may not be
2. Sovereignty and Jurisdiction. seen to be complete at any precise point in time.
Physical and social manifestations of primary type of int’l legal person, the state: Existing cases usually from renunciation of sovereignty by former holder and coming into
i. Territory and appurtenances (airspace, sea); being of an interregnum with disposition postponed until a certain condition is fulfilled or the
ii. Government; states having power of disposition for various reasons omit to exercise a power or fail to
iii. Population within its frontiers exercise it validly (Japan renounced its rights to Formosa via a peace treaty but there was
Competence of states WRT territory usually described in terms of: no transferee-British Gov’t acknowledged it of indeterminate sovereignty; British Gov’t
i. Sovereignty – legal personality of a certain kind; normal complement of state recognized Taiwan as a province of China).
rights, the typical case of legal competence.
8. Terminable and Reversionary Rights.
ii. Jurisdiction – particular aspects of the substance, especially rights (or claims), TS may be defeasible in some circumstances by operation of law [Ex. Fulfilment of
liberties and powers (like immunities). condition subsequent (Monaco: independent until there is no vacancy in the Crown) or
Criterion of consent is significant: State A has much forces in and has exclusive use of much failure of condition under which sovereignty was transferred where there is an express or
area in State B, but if B consents to this, the derogation from sovereignty does not amount implied condition that title reverts to grantor (mandatories of ex-German territories
to acquisition of sovereignty by A. nominated by Allied powers-they retain on a dormant basis a residual or reversionary
interest in the territories except when they have attained independence).
3. Sovereignty and Ownership. Reversionary interests depend on facts of the case; takes the form of a power of disposition
Legal competence of a state includes considerable liberties in respect of internal or of intervention or veto in any process of disposition.
organization and disposal of territory. Reversion – change of sovereignty
Imperium – general power of government, administration and disposition; capacity ‘Residual sovereignty’ – TS has not lost status as such.
recognized and delineated by int’l law.
Dominium – either in the form of public ownership of property within the state or of private 9. Residual Sovereignty.
ownership recognized as such by the law. Occupation of foreign territory in peacetime may occur on the basis of a treaty with the
territorial sovereign. Grantee may get considerable powers of administration amounting to a
4. Administration and Sovereignty. delegation of the exercise of powers of the TS to the possessor for a particular period (Art.
Process of government over an area, with concomitant privileges and duties, may fall into 3, Treaty of Peace of 1951—US given right to exercise powers of administration, legislation
the hands of another state (Allies’ assumption of supreme powers over Germany after and jurisdiction over the territory, including territorial waters, and inhabitants of the Ryukyu
WWII, but latter’s legal competence continued to exist). This is akin to legal representation Islands. US said that Japan retained ‘residual (de jure) sovereignty’ while US had de facto
or agency of necessity—no transfer of sovereignty (belligerent occupation of enemy territory sovereignty. Restoration of full Japanese sovereignty was the subject of bilateral
in wartime). Important features of sovereignty are the continued existence of a legal agreements, 1968, 69, 70.
personality and attribution of territory to that legal person, not to the current holders. Oppenheim calls this ‘nominal sovereignty’, has practical consequences: continuation of
right of disposition (Lighthouses in Crete and Samos, 1939: Turkey had sovereignty over
5. Sovereignty and Responsibility. The Ownership of Rights. Crete and Samos in 1913, had power to grant or renew concessions WRT the islands.
Confusion: sovereignty is also used as a reference to various types of rights, indefeasible Thus, Turkey was later able to cede to islands to Greece).
except by special grant, in the patrimony of a sovereign state (‘sovereign rights’ of coastal
states over resources of the continental shelf; prescriptive, historic right to fish in an area of 10. International Leases.
Each case depends on facts and terms of the grant. Presumption: grantor retains residual This problem concerns a status in rem; the fact that one state cannot alienate territory
sovereignty (Convention of 1898, China provisionally ceded to Germany for 99 years both without consent of one or the others does not justify application of the general category of
sides of the entrance to the Bay of Kiao-Chau. Art. 3 says China will abstain from exercise joint tenancy, as opposed to tenancy in common.
of rights of sovereignty in the territory during the term of lease—it retains residual
sovereignty and grantee has no right to dispose the territory to a third state). 15. Vasalage, Suzertainty and Protection.
Difficulties over the nature of grantor’s interest are present in amenity providing ‘lease’ of Other types of shared sovereignty have occurred:
railway station or military, naval or air base. Rights conferred by treaty, executive agreement Dominant partner, state A, has acquired a significant role in government of state B,
or intergovernmental agreement are of more limited nature: grantor has right to revoke the especially in making executive decisions relating to conduct of foreign affairs. Legal aspects
‘contractual license’ and after reasonable time, force may be used to evict the trespasser. vary with the facts.
Protected community or ‘state’ is part of state A and as a colonial protectorate, has no int’l
11. Use and Possession Granted in Perpetuity. legal personality, although in internal law, it will have special status. But the protected state
Residual sovereignty remaining with grantor: via Convention of 1903, Panama granted to may retain a measure of externally effective legal personality, although exercise of its legal
the US ‘in perpetuity the use, occupation and control of a zone of land and land under water capacities be delegated to state A. Treaties by state A will not necessarily apply to B. but, for
for the construction…and protection’ of the 10-mile wide Panama Canal. certain purposes, including the law of neutrality and war, B may be regarded as an agent of
But grantor might be seen to have renounced even the right of disposition, along with rights A.
of jurisdiction. A license can be terminated but not a grant in perpetuity. However, grantee’s
rights rests on agreement and would be defeated by a disposition of the residual 16. Mandates and Trust Territories.
sovereignty to a third state in regard to which grant was re inter alios acta. The restriction on The nature of state authority is not describable in terms of sovereignty and legal restraints
disposition consists in an inability to grant similar rights to another state: RS remains on exercise of power in such territories do not in general protect the ordinary legal interests
transferable and grantee has no power of disposition. of other states. This has close relations with the problem of representation in int’l law.

12. Demilitarized and Neutralized Territory. 17. Parts of State Territory.

Restriction on use of territory, accepted by treaty, do not affect TS as a title, even when i. Land permanently above low-water mark and geographical features associated with or
restriction is WRT national security and preparation for defence. analogous to land territory;
ii. Territorial subsoil – to state with sovereignty over the surface.
13. Concept of Territory: Principle of Effective Control Applied by National Courts. iii. Airspace – superjacent to land territory, internal waters and territorial sea; other states
In treaty or statute, ‘territory’ may connote jurisdiction. Courts are very ready to equate nay only use such airspace for navigation or other purposes with the agreement of the
‘territory’ with the actual and effective exercise of jurisdiction even when it is clear that the territorial sovereign. Due to development in aviation and after WWI, customary law
state exercising jurisdiction has no been the beneficiary of any lawful and definitive act of emerged: application of private law maxim cujus est solum est usque and caelum et ad
disposition. In Schtraks (1964), Israel sought extradition of appellant under an agreement inferos was dictated by concern for national security and integrity of neutral states in time of
with UK that the Extradition Act of 1870 be subject to terms of Israel (Extradition) Order, armed conflict, desire to prevent aerial reconnaissance by potential enemies, fear of
1960. Appellant applied for writ of habeas corpus since Jerusalem (site of crime) was not surprise attack and economic value of granting the right to fly to foreign commercial
‘territory’ per the agreement (UK didn’t recognize de jure sovereignty of Israel in Jerusalem, agencies. The law does not permit a right of innocent passage, even through airspace over
only de facto authority). House of Lords said that the instruments were concerned with territorial sea. Aerial trespass may be met with appropriate measures of protection but does
territory in which territorial jurisdiction is exercised—whatever is under the state’s effective not normally justify instant attack with object of destroying trespassed.
jurisdiction. Space exploration by satellites has led to discussions of determining outer limit of state
This avoids a legal vacuum in territories, gives solutions without need for lengthy inquiry into sovereignty. And, airspace is generally assumed to be appurtenant to land and sea territory,
roots of title, or legal quality of a protectorate or trusteeship. It is also theoretically sound to but the principle of appurtenance will not necessarily apply if grantee only possesses and
equate territory and jurisdiction: both refer to legal powers; when concentration of such uses territory which remains under the sovereignty of grantor.
powers occurs, analogy with TS justifies use of ‘territory’ as shorthand. iv. Internal waters – lakes, rivers, waters on landward side of baselines from which the
breadth of the territorial sea is calculated, comprise internal waters. Large bodies of water
14. Condominia like land-locked seas and historic bays are also under state sovereignty. There are special
Condominium – when 2 or more states exercise sovereignty conjointly over a territory questions relating to haring of amenities in cases of ports, rivers and canals (refer to the
(Great Britain and Egypt over Sudan between 1898 and 1956). Convention on the Territorial Sea and Contiguous Zone of 1958, Art. 5: 1. waters on
Theoretical consequences of this regime may be qualified by agreement. National landward side of the baseline of territorial sea as part of internal waters; 2. when straight
legislation and jurisdiction will not automatically extend to territory under condominium (it baseline is established based on Art. 4, enclosing internal waters areas previously part of
has been said that riparian states have condominium over land-locked lakes and bays territorial sea or of high seas, right of innocent passage (Art. 14-23) exists.)
bounded by territory of the states, by operation of law). In int’l law, its important to distinguish between internal waters and territorial sea. No right of
Doubtful but possible for condominium to arise by prescription. innocent passage for foreign vessels exists in internal waters (apart from the above Treaty).
Rules WRT jurisdiction over foreign vessels differ.
WRT lakes and inland seas bounded by territory of 2 or more states, the legal position equivalent to dominium of Roman law. But, in practice, the concept of title used to resolve
depends either on creation of prescriptive rights or on a treaty regime (water boundary disputes approximates the notion of the better right to possess familiar in common law.
through Great Lakes of Ontario, Erie, Huron and Superior rests on Convention of 1909 The operation of doctrines of prescription, acquiescence and recognition makes the
between Canada and US). In absence of agreement, presumption is for a middle line where approach inevitable but tribunals will favor an approach which reckons with the limitations
only 2 states are involved. inherent in a procedure dominated by the presentation of evidence by 2 claimants, where
result is not automatically opposable to third states.
18. Restrictions on Disposition of Territory.
Treaty provisions – states may agree not to alienate certain parcels of territory in any 21. Determination of Frontiers.
circumstances, or they may contract not to transfer to particular state/s. A state may agree In principle, determination of location in detail of the frontier line is distinct from the issue of
not to unite with another (State Treaty of 1955: Austria obliged not not enter into political and title. Considerable dispositions may take place where grantee enjoys benefit of a title
economic union with Germany. Before that, in the Treaty of St. Germain of 1919, Austria’s derived from the grant although no determination of the line is made. But precise
independence was inalienable than with consent of the Council of the League of Nations). determination may be made a suspensive condition in a treaty of cession. The process of
An obligation not to acquire territory may also be undertaken. determination is carried out per a special body of rules, the best known being the thalweg
In case of breach of obligation, it is doubtful if the grantee’s title is affected. It may regard principle, which says that in a navigable river, the middle of the principal channel of
the treaty as res inter alios acta; doubtful whether a claim by a third state for breach can navigation is accepted as the boundary. Such geographical doctrines are presumptions and
result in nullity of transfer. principles of equity, not mandatory rules.
Principle of Appurtenance – state A merges into state B, the present extent of latter includes Practical aspects: agreements as to precise details, enshrined in a written instrument, is
by implication the territorial sea and airspace of A. As a corollary, the territorial sea cannot often followed by separate procedures of demarcation or marking of frontier on the grounds
be alienated without the coast itself, as well as airspace. The legal basis for the corollary is by means of posts, stone pillars, etc. A frontier may be legally definitive for some purposes,
not compelling: Fisheries (1951), “int’l law imposes on maritime State obligations and but remain undemarcated. De facto frontiers (absence of demarcation or presence of
confers rights arising out of sovereignty exercised over its maritime territory. Possession of unsettled territorial dispute) may be accepted as the legal limit of sovereignty for some
territory not optional, not dependent upon the will of the State, but compulsory.” Difficulties: purposes (civil or criminal jurisdiction, national law, prohibition of unpermitted intrusion with
How many of the various territorial extensions are possessed by compulsion of law? Desire or without use of arms).
to invest coastal states with responsibility of maintaining order and navigational facilities is
insufficient to support the above judgment, in essence supporting a doctrine of closed seas. 22. Nemo dat quod non habet (a state cannot transfer what it does not have).
States are permitted to abandon territory as res nullius, whereas the presumable Palmas case: “title alleged by USA as constituting the immediate foundation of its claim is
consequence of disclaiming territorial sea is simply to extend a res communis, the high that of cession, brought about by the Treaty of Paris, which cession transferred all rights of
seas. sovereignty which Spain may have possessed in the region…It is evident that Spain could
not transfer more rights than she herself possessed.”
19. Capacity to Transfer or Acquire Territory The effect of the principle is reduced by operation of the doctrines of prescription,
Capacity of dependent states: when the principal/dominant state opposes the transaction acquisition and recognition.
entered into by the dependency, the effect of transfer will depend on the operation of law Except where there are only 2 claimants, adjudication by a tribunal of territory as between
relating to prescription, acquiescence and recognition. In other cases, the principal will states A and B is not opposable to state C. The decision itself gives title but the tribunal has
tacitly or expressly ratify the transfer. This is similar to an agency, a delegation of power and jurisdiction as before parties before it. That C claims a particular parcel does not deprive the
the question of capacity cannot arise as such. Related issues (powers of mandatory as to power to adjudicate and does not prevent A and B from defining their rights in relation to the
territory) are better considered as to principle of nemo dat quod non habet. parcel mutually.
Special problems: aggressor, having seized territory by force and committed a delict, may
20. Concept of Title. purport to transfer territory to a third state. The validity of cession will depend on the effect of
Legal competence as to territory is a consequence of title and is not coterminous with it. An specific rules relating to use of force. Again, a state may transfer territory which it lacks
important aspect of competence, power of disposition, may be limited by treaty but such capacity to transfer: defects of title may be cured by prescription, acquisition and
restriction is not total, since title is unaffected. recognition. Encumbrances may pass with the territory ceded: Lord McNair’s concept of
Int’l law materials use sovereignty to describe both the concept of title and the legal ‘treaties creating purely local obligations’ illustrated when a ceding state grants to another
competence that flows form it. In the former sense, it explains 1) why competence exists the right of transit or a right of navigation on a river, or a right of fishery in territorial or
and what is its fullest extent; and 2) whether claims may be enforced in respect of internal waters.
interference with territorial aspects of that competence against a particular state. The
second aspect is the essence of title: validity of claims to TS against other states. In
principle, the concept of ownership, opposable to all other states and unititular, can and
does exist in int’l law. Thus, the first and undisputed occupation of land which is res nullius
and immemorial and unchallenged attribution (as England and Wales), may give rise to title