States and Territory 2

References
Chapter 8, International Law. A South African Perspective, John Dugard Chapter 5, Cases and Materials on International Law, DJ Harris Chapter 9, International Law, Malcolm N. Shaw Western Sahara Advisory Opinion-16 October 1975 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion-9 July 2004 Public International Law, Robert M Maclean Martin Dixon, Textbook on International Law, 6th Edition

The modes of acquisition of territory

Occupation Accretion Cession Conquest Prescription Estoppel

 Territory occupies an important place in the international law The extent of a states sovereignty or jurisdiction will be limited to the extent of its territory Territorial sovereignty was described in the Island of Palmas Arbitration (1928) as being: the right to exercise therein, to the exclusion of any other State, the functions of a Sovereign The territory of a State comprises all land areas, including subterranean areas, waters, including national rivers, lakes, the territorial sea appurtenant to the land and the sea bed and subsoil of the territorial sea and the airspace over the land and the territorial sea.

Introduction

 In previous centuries large portions of the globe were either uninhabited and unclaimed on inhabited by political communities characterised as unorganised or primitive. Such territory was designated as terra nullius Terra nullius means land belonging to no one and legally susceptible to acquisition by States Acquired by means of discover in the 15th and 16th centuries and later by occupation No terra nullius remains today Western Sahara Case 1975

Occupation
Five modes of acquisition of territories

Accretion

Conquest Prescription

Cession

Intertemporal Law
Titles are to be judged by the law in force at the time the title was first asserted and not by the law of today. This is the principle of intertemporal law In the Island of Palmas case, it was decided that a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled

Uti Possidetis (as you possess, so may you possess) Colonial boundaries, however arbitrary drawn by the imperial powers, are to be respected States emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence A principle first developed among the Spanish colonies of Latin America, provides that the old administration boundaries would be recognised as the new borders of the independent states Adopted by the Organisation of the African Unity which provides that all states should respect colonial boundary

 Practice of states during the dissolution of the former Soviet Union, Yugoslavia and Czechoslovakia The function of this principle is to preserve the territorial integrity of newly independent states Case: Frontier Dispute-Burkina Faso v Mali (1986) Case Concerning Land, Island and Maritime Frontier Disputes (1992)

critical date
The display of sovereignty must exist up the critical date Matters arising after that date cannot be taken into account in deciding title to the territory time stops running for the purpose to assess claim made by parties Unless the acts are normal continuation of a prior acts

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge The Court recalls that in the context of a dispute related to sovereignty over land, the date upon which the dispute crystallized is of significance. In the view of the Court, it was on 14 February 1980, the time of Singapores protest in response to Malaysias publication of the 1979 map, that the dispute as to sovereignty over Pedra Branca/Pulau Batu Puteh crystallized. With regard to sovereignty over Middle Rocks and South Ledge, the Court finds that the dispute crystallized on 6 February 1993, when Singapore referred to these maritime features in the context of its claim to Pedra Branca/Pulau Batu Puteh during bilateral discussions between the Parties

Occupation
Original mode of acquisition whereby a State acquires sovereignty over a terra nullius Territory is occupied when it is placed under effective control In the legal Status of Eastern Greenland Case (1933) a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon a continued display of authority, involves two 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.

 The intention to act as sovereign:a. The activity must be that of the State or its authorised agent and not that of a mere individual b. the activity must not be exercised by consent of another State The activity taken as a whole must have no other explanation but the assumption of preexisting sovereignty. State authority should not necessarily be displayed in fact at every moment on every point of a territory, as shown in the Island of Palmas Case (Netherlands/United States of America).

 Effective exercise or continued display of authority o Possession must give the occupying State control over the territory o There must be some display of State activity consistent with sovereignty o Case: Island of Palmas Case: US v Holland (1928) The continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as title.

 Case: Clipperton Island Arbitration: France v Mexico (1931) the actual and not the nominal, taking of possession is a necessary condition of occupation o Taking of possession consisted of an exercise of State Authority sufficient in the circumstances of the territory concerned (inaccessible and uninhabited nature) Case: Eastern Greenland (1933) a. The absence, until 1931 of any competing claim by another state

b. The character of the country- the arctic and inaccessible nature of the uncolonised parts of the territory where it would be unreasonable to demand a continuous exercise of authority. c. The numerous Danish legislative and administrative acts purporting to apply to the whole of Greenland. d. Treaties with other States acquiescing to the Danish claim to the territory e. The granting of trade monopoly and granting of trading, mining and other concessions

 Case: Minquiers and Erechos Islands (1953) attaches, in particular, probative value to the acts which relate to the exercise of jurisdiction and local administration and to legislation Case: Rann of Kutch Arbitration: India v Pakistan (1968)
grazing and other economic activities by private landholders may provide acceptable evidence of title

Prescription
Prescription is the acquisition of territory which belongs to another State Long possession and the exercise of effective control may give rise to a valid title the acquisition of territorial sovereignty through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create, under the influence of historical development, the general conviction that the present condition of things is in conformity with international order

 May operate in three circumstances: a. Immemorial possession-the presumption of title in cases where the legal basis of title is uncertain/the origin is unclear b. Competing acts of sovereignty-when faced with competing claims, international tribunals often decide in favour of the State which can prove a greater degree of effective control over the disputed territory c. Cases of acquiescence- a combination of the passage of time and the implied acquiescence of the dispossessed sovereign

The requirements for acquisitive prescription

There must be a display of State authority/ Sovereign activities-(Sovereignty over Pulau Ligitan and Sepadan case) The possession must be public and persist Possession must be peaceful and uninterrupted (eg. protest) o Effective protests prevent acquisition of title by prescription o Where a state fails to protest over the assertion of sovereignty by another state in a territory that it claims to be its own, it is unlikely to succeed in persuading the court that it has not abandoned its claim to the disputed territory

o In the Island of Palmas Case, Spain failed to protest at the Netherlands assertion of authority over the island and was thereby found to have acquiesced in the rival claim o A state that fails to protest over the exercise of sovereignty by its rival remains silent at its peril-Falklands/Malvinas dispute where Argentina has protested sporadically and irregularly over Britains occupation of the islands.

o In the Pulau Batu Puteh Case, the Court concludes, especially by reference to the conduct of Singapore and its predecessors titre de souverain, taken together with the conduct of Malaysia and its predecessors including their failure to respond to the conduct of Singapore and its predecessors, that by 1980 sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore. o In the Chamizal Arbitration (1911), a claim made by USA of an area of Mexican territory failed due to protests made by Mexico

 Case: Legal Status of Eastern Greenland [i]n most of the cases involving claims to territorial sovereignty . . . there have been two competing claims to the sovereignty, in the case before it up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. o The PCIJ therefore concluded that, considering the inaccessible character of the uncolonized parts of the country, the King of Denmark and Norway displayed . . .in 1721 to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty, and that his rights over Greenland were not limited to the colonized area.

Accretion
A state may acquire sovereignty over territory as a result of natural forces, as occurs when a volcanic island rises within a states territorial sea or the delta of a river mouth expands

Cession
The transfer by treaty of sovereignty over the territory of one state to another state Before 1945 territory was frequently ceded after a war by the vanquished state to the victorious state-eg. The Cape of Good Hope was ceded by the Netherlands to Britain in the Convention of London at the conclusion of the Napoleonic wars Cession of territory has also resulted from a gift, or sale-in 1866, Austria ceded Venice to France as a gift, France ceded Venice to Italy, Russias sale of Alaska to the US in 1867

 If there were defects in the ceding States title, the purported cession from the previous sovereign cannot cure the defect-Island of Palmas Case In order to be valid, there should be both a treaty and an actual transfer of possessionIloilo Case Today, restraints are placed on the cession of territory by the prohibition on the use of force and the right of self determination

 Before the prohibition on the use of force, conquest, annexation, and subjugation were accepted methods of acquiring territory Necessary to demonstrate both animus-the intention to annex the territory (the allies disclaimed the intention to annexed German in 1945)-and the corpus-the physical control of the territory A state did not acquire territory by conquest if it purported to annex territory during the course of war The acquisition of territory by conquest was not lawful until hostilities had come to an end

Conquest

 In the absence of peace treaty evidence was necessary that all resistance by the enemy State and by its allies had ceased so that there were no longer forces in the field to free the occupied territory from the control of the conquering power-German annexation of Poland, annexation of the Orange Free State by British in 1900 In 1928, war was outlawed by the Kellogg- Briand Pact UN Charter prohibited the use of force in international relations against territorial integrity or political independence of another state

 Modern customary international law recognizes a similar prohibition Territory can no longer be acquired by the use of force i.e conquest The GA Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of UN provides that the territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal The invasion of Goa 1961, the invasion of Kuwait 1990, annexation of East Jerusalem and the Golan Heghts

Estoppel
A state which had recognised another States title to particular territory would be estopped from denying the other States title if the other State had taken some action in reliance of the recognition In the Temple of Preah Vihear case, concerning a border dispute between Cambodia and Thailand, the evidence showed that Thailand in its past conduct had accepted that the Temple fell within Cambodia, with the result that it was estopped from later reasserting its claim to that area

Antarctica

 A number of states have made claims to the exclusive sovereignty over different parts of Antarctica (Argentina, Australia, Chile, France, New Zealand, Norway and UK) However, these claims are disputed by rival contenders and not being recognized by US and Russia Antarctica should be used for peaceful scientific research Antarctica is subjected to rigorous conservation measures resulted in the 1959 Antarctica Treaty

 Art. 4 of the Antarctica Treaty freezes all territorial claim no acts or activities taking place while the present treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial integrity in Antarctica shall be asserted while the present treaty is in force.

 The treaty provides for the demilitarization of Antarctica and envisages that the continent will be used for peaceful scientific research, carried out in a spirit of international cooperation with strict regard to ecological protection In 1991 the Antarctic Treaty members adopted the The 1991 Protocol on Environmental Protection to the Antarctic Treaty which prohibits any activity relating to mineral resources other than scientific research