STATE TERRITORY

LAW 229
 Cont…
• Is an expression which sometimes is used in
connection with the term territorial sovereignty.
• Territorial sovereignty is one of the pre requisites
of statehood.
• State territory is a geophysical composition and
extent of state power on the globe including all
lands, rivers, territorial matters etc.
• In other words is an area where the law of the
state can be expressed to the exclusion of other
states.
 Cont…
• Prof Oppenheim asserted that the phrase state
territory expresses internally the supremacy of
governmental institutions and externally the
supremacy of the state as legal person.
• According to customary international law, no
state is empowered to control by exercising its
sovereignty over the territory of another state.
• If state exercises its control beyond its borders
it is called EXTRA TERRITORIALITY.
 Positive Projection of Extraterritoriality
• A good example of positive projection of
extraterritoriality is SHIP FLYING the FLAG of
its state in the HIGH SEAS beside the territorial
sea..
• The concept has also extended to cover the
chancery of their Ambassador in the foreign
state as an exception to the rules that govern
the jurisdiction of the owning state.
Negative projection of Extraterritoliality
• Negative projection of this concept is
associated with the USA in two cases:
1. The Antatlastic laws
Methods of Acquisition of Territory
• The acquisition of territory by a state can be
more correctly referred to as acquisition of
territorial sovereignty, by an existing state and
member of the international community over
another state.
• At the very outset, it needs to be made clear
that the recognition of a new state cannot be
considered as the acquisition of territory.
 Cont…
• There may also be cases where private
individuals or corporations gain certain rights
or even authority over a territory which
wasn’t under the territorial supremacy of any
recognized state.
• Such cases are again not within the scope of
“modes” of acquisition of state territory.
 Cont…
• The modes of acquiring territory have
traditionally been distinguished into discovery,
cession, occupation, accretion, subjugation,
and prescription.
• Before looking into these modes of acquisition
which have been derived from Roman law
rules on private property it is necessary to
understand that they are no longer
appropriate or applicable.
 Cont….
• Classical international law, viewed STATE
SOVEREIGNTY as equivalent to the concept of
OWNERSHIP in private law.
• Hence, decided to use the methods of acquiring
ownership under private law to be used by the
states in acquiring titles of TERRITORIES.
• However, these “modes” of acquisition of
territory still help us explain how countries got
their titles.
 Cont….
• Also, these methods are divided into two categories
namely: original and derivative mode of acquisition.
• This division is on the basis of whether the title
given to the state is derived from a prior owner-
state or not.
• Hence, only cession is a derivative mode.
• Few territorial titles if any are today based on
discovery alone.
• On the other hand a large number are based on
conquest arising out of war or colonial expansion.
 Cont…
• Those 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.
• The principle governing the operation and validity
of such titles is called INTERTEMPORAL LAW.
• The principle was expounded by Max Huber in the
famous Islands of Palmas Case (USA V
Netherlands.
• Max Huber expounded two principles of
intertemporal law such as:
 Cont…
• 1st Principle is 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.”
• Consequently, the effect of discovery of the
Islands by Spain was to be determined by the
rules of law in force in the 16th century.
• The 2nd Principle expounded provided that:
 Cont….
• “as regards the question which of different
legal systems prevailing at successive periods
is to be applied in a particular case. A
distinction must be made between the
creation of rights and the existence of rights.
The same principle which subjects the act
creative of a right to the law in force at the
time the right arises, shall follow the
conditions required by the evolution of law.”
 Cont….
• On the basis of this principle, Huber held that
Spain had failed to maintain or consolidate the
title it had acquired by discovery by the
effective display of state authority.
• Conversely Netherlands exercised state
authority over the Islands peacefully and
continuously since 1700.
• He therefore awarded the Island to the
Netherlands.
 DISCOVERY
• Discovery is no longer accepted as mode of acquisition of
territory.
• The idea that a state might acquire title to territory by
discovery alone, without any subsequent act of effective
occupation was suspect during the fifteenth and sixteenth
centuries.
• Even if it did exist in this form it has long since been
abandoned as a root of title.
• The current position is that, discovery created an inchoate
title only and that it was necessary for the discoverer to
perfect its title by the effective occupation of the territory
within reasonable time.
 CESSION
• Cession of the state territory is the transfer of
sovereignty over state territory by the owner state
to another state.
• It is the voluntary giving of territory by one state
to another state by surrendering its sovereignty.
• Its basis lies in the intention of the concerned
parties to transfer sovereignty over the territory in
question, and it rests on the principle that the
right of transferring its territory is a fundamental
attribute of the sovereignty of a State.
 Cont….
• The cession may comprise a portion of the
territory of the ceding State or the totality of
its territory.
• In the latter case, the ceding State disappears
and merges into the acquiring State.
• To constitute a cession it must be intended
that the sovereignty will pass.
 Cont….
• The only form in which a cession can occur is
an agreement normally in the form of a treaty
between the ceding and the acquiring state;
or between several states including the ceding
and cessionary states.
• A lot of times cession is an outcome of
peaceable negotiation or war, and maybe
without compensation although certain duties
could be imposed in the acquiring state.
 Cont…
• Such cessions are agreed upon by the
interested states for different motives and for
different purposes, like a gift or voluntary
merger.
• An example is when Austria, during its war
with Prussia and Italy in 1866, ceded Venice to
France as a gift. Later France ceded Venice to
Italy.
 OCCUPATION
• Occupation is a state’s intentional claim of
sovereignty over territory treated by the
international community as terra nullius, or
territory that does not belong to any other
state.
• Jennings writes it is “the appropriation by a
state of a territory, which is not at the time
subject to the sovereignty of any other state.
 Cont…
• In other words, occupation implies the act of acquiring
territory which does not belong to any body i.e. state, and
exercising effective occupation in exclusion of other states.
• This method of acquiring territory was among other
subject in the Eastern Greenland Case between Denmark
and Norway.
• To succeed in a claim based on occupation a claimant must
prove that it had “the intention and will to act as
sovereign” (animus occupandi) as well as it exercised
actual authority over the territory (corpus) and that the
territory was terra nullius.
 Cont…
• Animus Occupandi may be proved by the
hoisting of a flag or the placing of a plaque on
the territory or by publication of the
occupation in a widely distributed newspaper.
• Corpus requires proof of the continuous and
effectivedisplay of authority over the territory
• The degree of authority required varies
according to the nature of the territory.
 Cont…
• The Concept of Terra Nullius has undergone immense
changes, thus causing significant difficulties in
contemporary international law.
• During early days of international law, opinions was
divided as to whether international law applied to
indigenous peoples:
• On this naturalists were of the view that, all the
people of the world enjoyed certain inalienable rights.
• Positivists on the other hand denied such rights to
indigenous peoples and claimed that international law
applied to Christian Civilised Nations only.
 Cont….
• During the 19th Century the positivists views
prevailed, hence indigenous peoples, none European
peoples in loosely organised societies were viewed
as having no rights under international law.
• Consequently, their territories were viewed as Terra
Nulius, a designation that gave legal backing to the
colonial expansion of that century.
• Modern international law has seriouslynegatived the
positivists view as was evidence by the decision of
the ICJ in the 1975 Western Sahara Opinion.
 Cont…
• Article 42 of The Hague Regulations of 1907
defines occupation as follows: “Territory is
considered occupied when it is actually placed
under the authority of the hostile army.
• The occupation extends only to the territory
where such authority has been established
and can be exercised.”
 ACCRETION
• Accretion refers to the physical expansion of an
existing territory through the geographical
process.
• It is the name for the increase of land due to
some new formations.
• Such formation may be a modification of the
existing state territory for example, when an
island rises within a river (not increasing the
territory, only the land) or when an island
emerges in the maritime belt.
 Cont….
• It is a customary rule of international law that
enlargement of territories by new formations,
takes place ipso facto by accretion, without
the state concerned taking any special step for
the purpose of extending its sovereignty.
• Hence, accretion too is a direct mode of
acquisition of territory.
 SUBJUGATION
• Subjugation is the acquisition of territory by
conquest followed by annexation.
• This direct mode of acquisition is often called
title by conquest.
• In those days war wasn’t illegal and so making
of war was recognized as a sovereign right.
• There is a very fine distinction between
cession and subjugation.
 Cont…
• Like compulsory cession, conquest followed by annexation
would transfer territory by compulsion, but unlike cession,
it involved no agreement between the concerned parties.
• In most cases, the victors in a war enforced a treaty of
cession. Simple title by subjugation is rare.
• Article 10 of the League of Nations Covenant made it
unlawful to wage war for the purpose of acquiring
territory.
• Similar position was affirmed in 1928 by the General
Treaty for the Renunciation of War known as the Pact of
Paris or Kellogg-Briand Pact.
 Cont…
• The acquisition of territory through the use of
force is also outlawed by the Charter of the
United Nations, which obliged the member
States to refrain from the use of force against
the territorial integrity or political independence
of any State.
• As no right may arise from a wrong (ex injuria
jus non oritur), it follows that titles acquired by
use of force are no longer recognised.
• This was the case when Israel annexed the
Golan Heights and East Jerusalem.
 PRESCRIPTION
• A prescription can be defined as “the
acquisition of sovereignty over a territory
through a 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 the
international order.”
 Cont…
• This method is an extension of Common Law
concept applicable in municipal law, which has
been incorporated in international law.
• This concept is based on the principle of Long
user.
• The principle did work in favour of Norway in
the North Atlantic Fisheries Case between
Norway and Britain.
 Cont…
• There was no rule laid down as regards the
length of time or other circumstances
necessary to create such a title by
prescription.
• The conditions differ from case to case basis.
• As long as other states keep up protests and
claims, the actual exercise of sovereignty is
not disturbed, nor is there the general
conviction that the present condition of things
is in conformity with international order.
 Cont….
• After such protests cease, however, there may
be a situation arising where it becomes in
conformity with the international order.
• The question of what time and under what
circumstances such a condition of things arises
is one of fact merely.
 Loss of State Territory
• Now that we have discussed all modes of
acquiring territory or rather acquiring
sovereignty over territory we can easily point
out the corresponding methods of losing state
territory.
• These are cession, dereliction, operation of
nature, subjugation, prescription and there is
a sixth mode that is Revolt.
 Cont….
• Loss of territory by subjugation, cession, and
prescription is pretty straightforward and
requires no further explanation.
• It’s simply the corresponding loss of territory
due to the gain of that territory by another
state.
• Revolt, on the other hand, has been accepted
as a mode of losing territory to which there is
no corresponding mode of acquisition.
 Cont…
• There is no hard and fast rule regarding the
time when a state which has broken off from
another can be established permanently as
another state.
• A revolt, however, seems to be more of a
political issue than a legal mode of loss of
territorial sovereignty
 Cont…
• Dereliction as a mode of losing territory
corresponds to occupation.
• Dereliction frees a territory from the
sovereignty of the present state possessor.
• When the owner state completely abandons a
territory with the intention of withdrawing
from it permanently and relinquishing
sovereignty over it dereliction is effected.
 Cont…
• Actual abandonment alone cannot amount to
dereliction as it is assumed that the owner will
and can retake possession.
• Hence, just like occupation there has to be an
abandonment of territory (corpus) and an
intention (animus) to withdraw too