Brownlie, Ch. VI. Territorial Sovereignty. 1. Concept of Territory. 4 types of regimes in law: i.

Territorial sovereignty (TS) – principally over land territory, territorial sea appurtenant to the land, seabed and subsoil of the territorial sea. Territory includes islands, islets, rocks and reefs. ii. Territory not subject to sovereignty of any state/s – possesses status of its own. iii. Res nullius – same subject matter legally susceptible to acquisition by states but not as yet placed under territorial sovereignty. iv. Res communis – the high seas, including exclusive economic zones and the outer space, which is not capable of being placed under state sovereignty. Per customary int’l law and dictates of convenience: airspace above an subsoil beneath state territory, the res nullius, and the res communis are included in each category. 2. Sovereignty and Jurisdiction. Physical and social manifestations of primary type of int’l legal person, the state: i. Territory and appurtenances (airspace, sea); ii. Government; iii. Population within its frontiers Competence of states WRT territory usually described in terms of: i. Sovereignty – legal personality of a certain kind; normal complement of state rights, the typical case of legal competence. ii. Jurisdiction – particular aspects of the substance, especially rights (or claims), liberties and powers (like immunities). Criterion of consent is significant: State A has much forces in and has exclusive use of much area in State B, but if B consents to this, the derogation from sovereignty does not amount to acquisition of sovereignty by A. 3. Sovereignty and Ownership. Legal competence of a state includes considerable liberties in respect of internal organization and disposal of territory. Imperium – general power of government, administration and disposition; capacity recognized and delineated by int’l law. Dominium – either in the form of public ownership of property within the state or of private ownership recognized as such by the law. 4. Administration and Sovereignty. Process of government over an area, with concomitant privileges and duties, may fall into the hands of another state (Allies’ assumption of supreme powers over Germany after WWII, but latter’s legal competence continued to exist). This is akin to legal representation or agency of necessity—no transfer of sovereignty (belligerent occupation of enemy territory in wartime). Important features of sovereignty are the continued existence of a legal personality and attribution of territory to that legal person, not to the current holders. 5. Sovereignty and Responsibility. The Ownership of Rights. Confusion: sovereignty is also used as a reference to various types of rights, indefeasible 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

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. 6. Administration Divorced from State Sovereignty. International organizations not only administer territory as legal representatives but may also assume legal responsibility for territory in respect of which no state has TS (in 1966, UN GA terminated Mandate of South West Africa). Difficulty: historical association of concepts of ‘sovereignty’ and ‘title’ with the patrimony of states with definable sovereigns. 7. Territory the Sovereignty of which is Indeterminate. Such that, a piece of territory not a res nullius has no determinate sovereign. This isn’t the case where 2 states have conflicting legal claims to territory since a settlement of the dispute has retroactive affect (winner deemed sovereign during the period of contention— 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 seen to be complete at any precise point in time. Existing cases usually from renunciation of sovereignty by former holder and coming into being of an interregnum with disposition postponed until a certain condition is fulfilled or the states having power of disposition for various reasons omit to exercise a power or fail to exercise it validly (Japan renounced its rights to Formosa via a peace treaty but there was no transferee-British Gov’t acknowledged it of indeterminate sovereignty; British Gov’t recognized Taiwan as a province of China). 8. Terminable and Reversionary Rights. TS may be defeasible in some circumstances by operation of law [Ex. Fulfilment of condition subsequent (Monaco: independent until there is no vacancy in the Crown) or failure of condition under which sovereignty was transferred where there is an express or implied condition that title reverts to grantor (mandatories of ex-German territories nominated by Allied powers-they retain on a dormant basis a residual or reversionary interest in the territories except when they have attained independence). Reversionary interests depend on facts of the case; takes the form of a power of disposition or of intervention or veto in any process of disposition. Reversion – change of sovereignty ‘Residual sovereignty’ – TS has not lost status as such. 9. Residual Sovereignty. 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 delegation of the exercise of powers of the TS to the possessor for a particular period (Art. 3, Treaty of Peace of 1951—US given right to exercise powers of administration, legislation and jurisdiction over the territory, including territorial waters, and inhabitants of the Ryukyu Islands. US said that Japan retained ‘residual (de jure) sovereignty’ while US had de facto sovereignty. Restoration of full Japanese sovereignty was the subject of bilateral agreements, 1968, 69, 70. Oppenheim calls this ‘nominal sovereignty’, has practical consequences: continuation of right of disposition (Lighthouses in Crete and Samos, 1939: Turkey had sovereignty over Crete and Samos in 1913, had power to grant or renew concessions WRT the islands. Thus, Turkey was later able to cede to islands to Greece). 10. International Leases.

Each case depends on facts and terms of the grant. Presumption: grantor retains residual sovereignty (Convention of 1898, China provisionally ceded to Germany for 99 years both sides of the entrance to the Bay of Kiao-Chau. Art. 3 says China will abstain from exercise 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). Difficulties over the nature of grantor’s interest are present in amenity providing ‘lease’ of railway station or military, naval or air base. Rights conferred by treaty, executive agreement or intergovernmental agreement are of more limited nature: grantor has right to revoke the ‘contractual license’ and after reasonable time, force may be used to evict the trespasser. 11. Use and Possession Granted in Perpetuity. Residual sovereignty remaining with grantor: via Convention of 1903, Panama granted to the US ‘in perpetuity the use, occupation and control of a zone of land and land under water for the construction…and protection’ of the 10-mile wide Panama Canal. But grantor might be seen to have renounced even the right of disposition, along with rights 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 sovereignty to a third state in regard to which grant was re inter alios acta. The restriction on disposition consists in an inability to grant similar rights to another state: RS remains transferable and grantee has no power of disposition. 12. Demilitarized and Neutralized Territory. Restriction on use of territory, accepted by treaty, do not affect TS as a title, even when restriction is WRT national security and preparation for defence. 13. Concept of Territory: Principle of Effective Control Applied by National Courts. In treaty or statute, ‘territory’ may connote jurisdiction. Courts are very ready to equate ‘territory’ with the actual and effective exercise of jurisdiction even when it is clear that the state exercising jurisdiction has no been the beneficiary of any lawful and definitive act of disposition. In Schtraks (1964), Israel sought extradition of appellant under an agreement with UK that the Extradition Act of 1870 be subject to terms of Israel (Extradition) Order, 1960. Appellant applied for writ of habeas corpus since Jerusalem (site of crime) was not ‘territory’ per the agreement (UK didn’t recognize de jure sovereignty of Israel in Jerusalem, only de facto authority). House of Lords said that the instruments were concerned with territory in which territorial jurisdiction is exercised—whatever is under the state’s effective jurisdiction. This avoids a legal vacuum in territories, gives solutions without need for lengthy inquiry into roots of title, or legal quality of a protectorate or trusteeship. It is also theoretically sound to equate territory and jurisdiction: both refer to legal powers; when concentration of such powers occurs, analogy with TS justifies use of ‘territory’ as shorthand. 14. Condominia Condominium – when 2 or more states exercise sovereignty conjointly over a territory (Great Britain and Egypt over Sudan between 1898 and 1956). Theoretical consequences of this regime may be qualified by agreement. National legislation and jurisdiction will not automatically extend to territory under condominium (it has been said that riparian states have condominium over land-locked lakes and bays bounded by territory of the states, by operation of law). Doubtful but possible for condominium to arise by prescription.

This problem concerns a status in rem; the fact that one state cannot alienate territory without consent of one or the others does not justify application of the general category of joint tenancy, as opposed to tenancy in common. 15. Vasalage, Suzertainty and Protection. Other types of shared sovereignty have occurred: Dominant partner, state A, has acquired a significant role in government of state B, especially in making executive decisions relating to conduct of foreign affairs. Legal aspects vary with the facts. Protected community or ‘state’ is part of state A and as a colonial protectorate, has no int’l legal personality, although in internal law, it will have special status. But the protected state may retain a measure of externally effective legal personality, although exercise of its legal capacities be delegated to state A. Treaties by state A will not necessarily apply to B. but, for certain purposes, including the law of neutrality and war, B may be regarded as an agent of A. 16. Mandates and Trust Territories. The nature of state authority is not describable in terms of sovereignty and legal restraints on exercise of power in such territories do not in general protect the ordinary legal interests of other states. This has close relations with the problem of representation in int’l law. 17. Parts of State Territory. i. Land permanently above low-water mark and geographical features associated with or analogous to land territory; ii. Territorial subsoil – to state with sovereignty over the surface. iii. Airspace – superjacent to land territory, internal waters and territorial sea; other states nay only use such airspace for navigation or other purposes with the agreement of the territorial sovereign. Due to development in aviation and after WWI, customary law emerged: application of private law maxim cujus est solum est usque and caelum et ad inferos was dictated by concern for national security and integrity of neutral states in time of armed conflict, desire to prevent aerial reconnaissance by potential enemies, fear of surprise attack and economic value of granting the right to fly to foreign commercial agencies. The law does not permit a right of innocent passage, even through airspace over territorial sea. Aerial trespass may be met with appropriate measures of protection but does not normally justify instant attack with object of destroying trespassed. Space exploration by satellites has led to discussions of determining outer limit of state sovereignty. And, airspace is generally assumed to be appurtenant to land and sea territory, but the principle of appurtenance will not necessarily apply if grantee only possesses and uses territory which remains under the sovereignty of grantor. 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 like land-locked seas and historic bays are also under state sovereignty. There are special questions relating to haring of amenities in cases of ports, rivers and canals (refer to the Convention on the Territorial Sea and Contiguous Zone of 1958, Art. 5: 1. waters on landward side of the baseline of territorial sea as part of internal waters; 2. when straight baseline is established based on Art. 4, enclosing internal waters areas previously part of territorial sea or of high seas, right of innocent passage (Art. 14-23) exists.) In int’l law, its important to distinguish between internal waters and territorial sea. No right of 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 depends either on creation of prescriptive rights or on a treaty regime (water boundary through Great Lakes of Ontario, Erie, Huron and Superior rests on Convention of 1909 between Canada and US). In absence of agreement, presumption is for a middle line where only 2 states are involved. 18. Restrictions on Disposition of Territory. Treaty provisions – states may agree not to alienate certain parcels of territory in any circumstances, or they may contract not to transfer to particular state/s. A state may agree not to unite with another (State Treaty of 1955: Austria obliged not not enter into political and economic union with Germany. Before that, in the Treaty of St. Germain of 1919, Austria’s independence was inalienable than with consent of the Council of the League of Nations). An obligation not to acquire territory may also be undertaken. In case of breach of obligation, it is doubtful if the grantee’s title is affected. It may regard the treaty as res inter alios acta; doubtful whether a claim by a third state for breach can result in nullity of transfer. Principle of Appurtenance – state A merges into state B, the present extent of latter includes by implication the territorial sea and airspace of A. As a corollary, the territorial sea cannot be alienated without the coast itself, as well as airspace. The legal basis for the corollary is not compelling: Fisheries (1951), “int’l law imposes on maritime State obligations and confers rights arising out of sovereignty exercised over its maritime territory. Possession of territory not optional, not dependent upon the will of the State, but compulsory.” Difficulties: How many of the various territorial extensions are possessed by compulsion of law? Desire 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. States are permitted to abandon territory as res nullius, whereas the presumable consequence of disclaiming territorial sea is simply to extend a res communis, the high seas. 19. Capacity to Transfer or Acquire Territory Capacity of dependent states: when the principal/dominant state opposes the transaction entered into by the dependency, the effect of transfer will depend on the operation of law relating to prescription, acquiescence and recognition. In other cases, the principal will tacitly or expressly ratify the transfer. This is similar to an agency, a delegation of power and the question of capacity cannot arise as such. Related issues (powers of mandatory as to territory) are better considered as to principle of nemo dat quod non habet. 20. Concept of Title. Legal competence as to territory is a consequence of title and is not coterminous with it. An important aspect of competence, power of disposition, may be limited by treaty but such restriction is not total, since title is unaffected. Int’l law materials use sovereignty to describe both the concept of title and the legal competence that flows form it. In the former sense, it explains 1) why competence exists and what is its fullest extent; and 2) whether claims may be enforced in respect of 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

equivalent to dominium of Roman law. But, in practice, the concept of title used to resolve disputes approximates the notion of the better right to possess familiar in common law. The operation of doctrines of prescription, acquiescence and recognition makes the approach inevitable but tribunals will favor an approach which reckons with the limitations inherent in a procedure dominated by the presentation of evidence by 2 claimants, where result is not automatically opposable to third states. 21. Determination of Frontiers. In principle, determination of location in detail of the frontier line is distinct from the issue of title. Considerable dispositions may take place where grantee enjoys benefit of a title derived from the grant although no determination of the line is made. But precise determination may be made a suspensive condition in a treaty of cession. The process of determination is carried out per a special body of rules, the best known being the thalweg principle, which says that in a navigable river, the middle of the principal channel of navigation is accepted as the boundary. Such geographical doctrines are presumptions and principles of equity, not mandatory rules. Practical aspects: agreements as to precise details, enshrined in a written instrument, is often followed by separate procedures of demarcation or marking of frontier on the grounds by means of posts, stone pillars, etc. A frontier may be legally definitive for some purposes, but remain undemarcated. De facto frontiers (absence of demarcation or presence of unsettled territorial dispute) may be accepted as the legal limit of sovereignty for some purposes (civil or criminal jurisdiction, national law, prohibition of unpermitted intrusion with or without use of arms). 22. Nemo dat quod non habet (a state cannot transfer what it does not have). Palmas case: “title alleged by 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 is evident that Spain could not transfer more rights than she herself possessed.” The effect of the principle is reduced by operation of the doctrines of prescription, acquisition and recognition. Except where there are only 2 claimants, adjudication by a tribunal of territory as between states A and B is not opposable to state C. The decision itself gives title but the tribunal has jurisdiction as before parties before it. That C claims a particular parcel does not deprive the power to adjudicate and does not prevent A and B from defining their rights in relation to the parcel mutually. Special problems: aggressor, having seized territory by force and committed a delict, may purport to transfer territory to a third state. The validity of cession will depend on the effect of specific rules relating to use of force. Again, a state may transfer territory which it lacks capacity to transfer: defects of title may be cured by prescription, acquisition and recognition. Encumbrances may pass with the territory ceded: Lord McNair’s concept of ‘treaties creating purely local obligations’ illustrated when a ceding state grants to another the right of transit or a right of navigation on a river, or a right of fishery in territorial or internal waters.

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