PUBLIC INTERNATIONAL

LAW
LECTURE 5: TERRITORY
Mohammad Ata-ur Rahman
Types of Legal Territory
Sovereign Territory
Territory with own status & not subject to any state
(e.g. trust territories)

Res Nullius/ terra nullius: Territory not claimed by

any state yet but legally susceptible
Res Communis
Res Communis
By the law of nature
land that is common to
humankind e.g. high
seas
Rules for use of the
continent Antarctica
were based on res
communis as was
development of space
law.
All 4 forms of territory include:
Territorial sea
Seabed
Subsoil
Airspace
Sovereignty vs jurisdiction
Sovereignty = Legal Personality of Statehood

Jurisdiction refers to rights, liberties & powers

Consent between states is important. Even when

sovereignty is violated jurisdiction of the violated
state remains
 Imperium vs Dominium
Sovereignty vs ownership: Right to govern,
administer dispose of territory aka Imperium
While dominium is the public ownership in the state
Sovereignty vs administration: Administration by
another state may not violate sovereignty of host
state e.g. Germany after World War II
Sovereignty & Administration separated

Terminable & Reversionary Rights: Sovereignty

subject to fulfillment of condition or lack thereof
e.g. Monaco is French protectorate when there is
vacancy in crown

Mandate territories after World War I when allied

powers took over land on a temporary basis from
Germany & Ottoman empire until given back to
their principal owners who retained residual interest
& to whom title reverted
Mandate Territories after World War I
Residual Sovereignty
When foreign territory is given in peace-time on the
basis of treaty
Japan retained residual interest in Ryuku islands after
giving administration to US following Peace Treaty
of 1951
US Courts treated Ryuku as foreign country where
US had de facto & Japan de jure “residual”
sovereignty
International Leases

Lease can be temporary or permanent.

Usually by treaty
Varies from case to case
Grantor / Lessor retains residual sovereignty Hong
Kong 1997, Macao in 1999, Panama Canal in 2000
& title reverts to it
China signs 99-year lease on Sri
Lanka’s Hambantota port
Struggling to pay its
debt to Chinese firms,
the nation of Sri Lanka
formally handed over
the strategic port of
Hambantota to China on
a 99-year lease last
week, in a deal that
government critics have
said threatens the
country’s sovereignty.
Demilitarized Territories
Restrictions on territory by treaty or U N Security
Council do not affect sovereignty
Vassal, Suzerain & Protectorate States:
States with shared sovereignty in variable degrees,
e.g. former colonies
Vassal: any state that is subordinate to another. The
vassal in these cases is the ruler, rather than the
state itself.
Suzerains
Suzerain: a powerful region or people controls the foreign
policy and international relations of a tributary state while
allowing the subservient nation internal autonomy. The
dominant entity in the suzerainty relationship, or the more
powerful entity itself, is called a suzerain
The Princely States of the British Raj (India) which acceded to
Pakistan maintained their sovereignty with the Government
of Pakistan acting as the suzerain until 1956 for Bahawalpur,
Khairpur, and the Balochistan States, 1969 for Chitral and the
Frontier States, and 1974 for Hunza and Nagar. All these
territories have since been merged into Pakistan.
Protectorate
Protectorates arise when the
dominant power threatens or
uses force or when the
subordinate sees advantages
(usually military protection)
in the arrangement. A
protectorate is
distinguishable from the
relation of home country and
colony, for the protected state
retains its sovereignty
Arab world : Gulf Cooperation
Council
Acquisition & Transfer of Sovereignty

Issues about acquisition arise in arbitration / peace

settlements
Acquisition by Occupation or
Acquisition by Treaty including unfair treaties
West Rand Central Gold Mining Company, Limited v. The
King, 2 K.B. 391 [1905]
International law must, be proved by satisfactory evidence,
which must show either that the particular proposition put
forward has been recognized and acted upon by our own
country, or that it is of such a nature, that it can hardly be
supposed that any civilized state would repudiate it
West Rand Central Gold Mining
Co., Ltd. v. R. ([1905] 2 K. B. 391)
Prior to the outbreak of the war between Great
Britain and the South African Republic, gold
belonging to the Company was wrongfully seized by
the Republic. Soon afterwards war broke out and the
Republic was conquered and its territory annexed by
the Crown. The Company claimed by petition of right
that in consequence the obligations of the Republic
with respect to the gold had devolved on the Crown.
 Held:
(1) that the Sovereign of a conquering State was not
liable for the obligations of the conquered, in the
absence of stipulation or convention ; (2)
International law formed part of the law of England
to the extent that it had received the common consent
of civilized nations (Jus Cogens).
(3) That acts of State are not cognizable by the
English Courts
Principles of International Court
a) Nemo dat quod non habet, "no one gives what he doesn't
have"
b) A decision between 2 sides does not prejudice the 3rd side
c) Where physical holding is unimportant, recognition is
important
d) The Court may decide against giving title to either party
e) Court may favour one claimant even though area is terra
nullis
f) Acquiescence & measurement of title may be used by
the court
Types of Titles
A) Original & Historic Title: Particularly in Asia e.g.
India, China, Japan etc
B) Effective Occupation: equivalent to possession in
private law. ICJ: 2 elements of possession are the
intention/ will to act as sovereign & some actual
exercise of that discretion, Eritrea/Yemen -
Sovereignty and Maritime Delimitation in the Red
Sea
Eritrea-Yemen War
Eritrea defeated Yemen
to establish control
over disputed islands
allegedly with Israeli
help.

Both parties then

approached ICJ for
resolution of dispute
Eritrea/Yemen - Sovereignty and Maritime
Delimitation in the Red Sea

Eritrea and Yemen both claimed sovereignty over a group of

islands in the Red Sea, but agreed to settle their dispute on
questions of territorial sovereignty and maritime delimitation
before the Arbitral Tribunal.
The Tribunal found Yemen to be sovereign over the Zuqar-Hanish
group on the balance of the evidence from the Parties regarding
the exercise of the functions of state authority.
The Permanent Court of Arbitration determined that most of the
archipelago belonged to Yemen, while Eritrea was to retain the
right to fish the waters around all the islands and sovereignty
over some small islands close to Eritrea
Possession as Title
Complex scenario for Occupation or Possession

There must be interest worth protecting such as

economic, oil, shipping, strategic to show to the
court
Effective occupation leads to prescription rights
Acquisition & Transfer of Sovereignty

Modes of Acquisition
Occupation (covered above)
Discovery
Annexation
Cession
 Annexation
Forcible transition of one state's territory by another
state. It is generally held to be an illegal act.

Annexation of Kuwait by Iraq

Crimea by Russia &
Jerusalem by Israel
Cession
Acquisition of territory usually by treaty between 2
consenting sovereign states
Agreements with indigenous rulers: with local
Chiefs, Sultans or Rajas who are not sovereign
entities proper especially in Scramble for Africa
Renunciation of Title: Land may be ceded to another
state instead of abandonment following peace
treaties. Recognition that another state has title. Not
same as reversion. Rann of Kutch case
 Rann of Kutch Case
Between Sindh & Gujrat
Dispute between the
British Indian State of
Bombay and the
Princely State of
Kutch in back
in1910s.
Became part of border
dispute
Rann of Kutchh war of 1965
Demilitarized zone until 1960

In April 1965 Pakistan launched pre-emptive strike

into Rann of Kutchh

India retaliated & later cease fire reached

Military & Propaganda victory for Pakistan

Rann of Kutch
Since Sindh could not
prove jurisdiction,
pursuant to court
orders 90% of Rann of
Kutch went back to
India
India and Pakistan: Award in Rann
of Kutch Arbitration
Rann of Kutch Tribunal Award

9,100 square km

Pakistan was awarded 780 square km

No ruling on the demarcation of Sir Creek

(India v. Pakistan) ( 1968 ) 17 R.I.A.A. 553

Rann of Kutch Case: Followed Pakistan’s victory in Rann

of Kutch battle in 1965
“In respect of those sectors of Rann in relation to which no
specific evidence in way of display of Sindh authority or
merely trivial or isolated evidence of such a character,
supports Pakistan’s claim, I pronounce in favour of
India. However, in respect of sectors where a continuous
and for the region intensive Sindh activity, meeting with
no effective opposition from Kutch side, is established, I
am of the opinion that Pakistan has made out a better
and superior title”
Acquisition by Adjudication
Member states usually agree to court’s decisions
a) In disputes over maritime / sea territories where
physical act is not necessary
b) Where both disputants exercise administration & the
award is declaratory
c) Where the loser continues in delegated legislation &
administration
d) where the winning claimant is already in possession
e) Where the dispute is only about boundary / frontier
Displacement of Title
Prescription in land law:
A method of acquiring a non-
possessory interest in land through the long, contin
uous use of the land.
the right to use the property of another. It requires t
he use of the land to have
been open, continuous, exclusive, and under claim
of right for the appropriate statutory period.
Different from Abandonment or Relinquishment
Estoppel
A rule of law that when person A, by act or words,
gives person B reason to believe a certain set of
facts upon which person B takes action, person A
cannot later, to his (or her) benefit, deny those facts
or say that his (or her) earlier act was improper.

Estoppel in international law combines the opposing

party’s actions with a representation by one party
that it is not sovereign, i.e. conduct
 Temple of Preah Vihar
Thailand vs Cambodia
border dispute

French protectorate
awarded sovereignty
over temple to
Cambodia.
Temple of Preah Vihear (Cambodia
v. Thail.), 1962 I.C.J.:
Over 50 years after map
was drawn, the Thai
authorities had not
objected nor did they
object when a French
colonial official received
Prince Damrong at the
temple in 1930
 Estoppel Against Thailand
Thailand had accepted and benefited from other parts
of the border treaty, the court ruled. With these and
other acts, it said, Thailand had accepted the map and
therefore Cambodia was the owner of the temple
Thailand had accepted and benefited from other parts
of the border treaty, the court ruled. With these and
other acts, it said, Thailand had accepted the map and
therefore Cambodia was the owner of the temple
Uti possidetis
"may you continue to possess such as you do
possess“
territory and other property remains with its
possessor at the end of a conflict, unless otherwise
provided for by treaty; if such a treaty does not
include conditions regarding the possession of
property and territory taken during the war, then
the principle of uti possidetis will prevail.
 Agacher Strip War
Frontier Dispute Case
(Burkina Faso/Mali)
2007
“what is the line of the
frontier between the
[former] Republic of
Upper Volta (Burkina
Faso) and the republic
of Mali in the disputed
area?”
Water-boundaries
Thalweg principle of
delimitation. Along
middle of navigable
channel?
What if river changes
course?
Lake boundaries?
Peremptory Norms & Sovereignty
Transfer by Aggressors: Article 2(4) of UN charter
forbids conquest. Loser can still claim title
United Nations Security Council Resolution 242
adopted on November 22, 1967, in the aftermath of
the Six-Day War: inadmissibility of the acquisition
of territory by war and the need to work for a just
and lasting peace
UNGA Resolution 2625 against annexation of Kuwait
in 1991.
Self-Determination
Transfer of territory possible under certain conditions
e.g bilateral cessions
3rd option for Kashmir
Plebiscite sometimes allowed or
Options of Nationality / Repatriation e.g. Hong Kong
 Other Causes of Cession
a) Territory may be ceded due to political reasons or legal
claim or both. May be influenced by plebiscites or
other UN recommendations
b) Joint decision of principal powers: After Treaty of
Lausanne, 1923, Ottoman Empire ceded sovereignty &
no sovereignty remained over Islands in Red Sea which
became subject of Eritrea v Yemen, Award on
Territorial Sovereignty and Scope of the Dispute,
(1998) XXII RIAA 211, (1999) 119 ILR 1, (2001) 40
ILM 900, ICGJ 379 (PCA 1998), 9th October 1998,
Permanent Court of Arbitration [PCA]
Jus cogens
Certain fundamental, overriding principles of
international law, from which no derogation is ever
permitted
Includes the prohibition of genocide, maritime piracy,
slave trade, torture, refoulement and wars of
aggression and territorial aggrandizement
Also known as Peremptory norms
per·emp·to·ry = not open to appeal or challenge; final
while there is near-universal agreement for the
existence of the category of jus cogens norms, there
is far less agreement regarding the actual content of
this category
Assignment
Explain the history & legal issues surrounding
transfer of sovereignty of Tiran Island in Red Sea?
Please email completed assignment to
381asrc@gmail.com