Acquisition and loss of territory PDF

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Shilpa B P SJR College of Law...

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

LESSON-2: STATE, TERRITORY: TERRITORIAL SOVEREIGNTY AND ACQAUISTION AND LOSS OF TERRITORY UNDER INTERNATIONAL LAW

Objectives of the Lesson: • To enable the student community to understand the meaning and concept of territory and territorial sovereignty of states under international law and different methods of acquiring and losses of territory by the States under international law. Scripts: “State Territory” as “a portion of globe which is subjected to the sovereignty of a State 1. “Territorial sovereignty,” it implies the authority and control exercised by a State within its boundaries over individuals and property to the exclusion of the other States. In the case of Island of Palmas Arbitration (1928) 22 Am J Int’l L. 875, Max Huber, the Arbitrator described territorial sovereignty in the following words. “Sovereignty in the relation between the States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State.” 2.

Accretion: Is the name given for the increase or decrease of land through new formations.

Title by accretion occurs when new territory is added mainly through natural causes or calamities (earthquakes, volcanic eruptions, tsunami or even flash floods in international rivers), to territory already under the sovereignty of the acquiring state. 3.

Cession: Is the transfer of sovereignty over the state territory by the state which owns the

territory of another state. The cession of a territory may be voluntary, it may be made under compulsion as a result of war fought successfully by the state to which the territory is to be ceded. 4.

Dereliction: Is described as the abandonment of territory by the state which owns the

territory with the objective of relinquishing sovereignty over such territory. 5.

Legate: Diplomatic agent appointed by the pope.

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

6.

Occupation: Occupation consists in establishing sovereignty over a territory not under the

authority of any other state, whether newly discovered or an unlikely case abandoned by the state formerly in control. 7. Plebiscite: Is the process whereby the people living in a colony , give the right to choose the government of their choice. 8.

Prescription: Where a state establishes occupation and exercises control over a certain

territory for a long duration of time, it is deemed that the state exercises de-facto sovereignty over the territory, then as a consequence the said territory becomes a part of the territory of that state.

1. Introduction: The concept of territory under international law: “State Territory” as “a portion of globe which is subjected to the sovereignty of a State. International law is based on the concept of the state. The state in its turn lies upon the foundation of sovereignty, which expresses internally the supremacy of the governmental institutions and externally the supremacy of the state as a legal person. But sovereignty itself, with its retinue of legal rights and duties, is founded upon the fact of territory. Without territory a legal person cannot be a state. It is undoubtedly the basic characteristic of a state and the one most widely accepted and understood. There are currently some 200 distinct territorial units, each one subject to a different territorial sovereignty and jurisdiction. Since such fundamental legal concepts as sovereignty and only be comprehended in relation to the territory, it follows that the legal nature of territory becomes a vital part in any study of international law. Indeed, the principle whereby a state is deemed to exercise exclusive power over its territory can be regarded as a fundamental axiom of classical international law.

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

The development of international law upon the basis of the exclusive authority of the state within an accepted territorial framework meant that territory became ‘perhaps the fundamental concept of international law’. Most nations, indeed, developed through a close relationship with the land they inhabited. The central role of territory in the scheme of international law may be seen by noting the development of legal rules protecting its inviolability. The principle of respect for the territorial integrity of states is well founded as one of the linchpins of the international system, as is the norm prohibiting interference in the internal affairs of other states. 1. A number of factors, however, have tended to reduce the territorial exclusivity of the state in international law.  Technological and economic changes have had an impact as interdependence becomes more evident and the rise of such transnational concerns.  As a human rights and self-determination have tended to impinge upon this exclusivity.  The growth of international organizations is another relevant factor, as is the development of the ‘common heritage’ concept in the context of the law of the sea and air law. Nevertheless, one should not exaggerate the effects upon international law doctrine today of such trends. Territorial sovereignty remains as a key concept in international law. In international law a change in ownership of a particular territory involves also a change in sovereignty, in the legal authority governing the area. This means that the nationality of the inhabitants is altered, as is the legal system under which they live, work and conduct their relations, whereas in municipal law no such changes are involved in an alteration of legal ownership. Accordingly, international law must deal also with all the various effects of a change in territorial sovereignty and not confine its attentions to the mere mechanism of acquisition or loss of territory. Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”. Some have used the two concepts interchangeably. However, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise its authority and jurisdiction over the 3

Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

territory. Jurisdiction justifies competence to affect peoples, properties and events within a territory.

2. Territorial Sovereignty: Sovereignty in regard to a territory is known as territorial sovereignty. Judge Huber noted in the Island of Palmas case (2 RIAA, pp. 829, 838 (1928) that:  “Territorial sovereignty is the right of a state to exercise over its own territory, to the exclusion of any other state, relating to the functions of a state.” It has a positive and a negative aspect. *The first Positive aspect relates to the exclusivity of the right of the state with regard to its own territory. *While negative aspect refers to the obligation to protect the rights of other States.  In Western Sahara Case, (Advisory Opinion, ICJ Rep 1975, 12.) the International Court of Justice gave a landmark opinion where it pointed out that one of the characteristics of the existence of territorial sovereignty is State activity on an adequate scale showing conclusively the exercise of authority.  Oppenheim has defined the word “State, Territory” as “a portion of globe which is subjected to the sovereignty of a State. A State without territory is not possible, although the necessary territory may be very small as with Vatican City. A wandering tribe, although it has a government and is otherwise organized is not a State until it has settled down in a territory of its own”. The importance of state territory is that it is the space within which the State exercises its supreme and normally exclusive authority. A state exercises its territorial sovereignty within its boundary or territory. Territory is an imaginary line that delineates the territorial limit of a state. Territories are of three dimensions. They include the state land and the maritime domain of its internal waters and territorial sea, and the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or lakes, or imaginary and artificial 4

Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

such as lines of attitude and longitude, surveyor’s lines or posts. Both types have equal legal effects and usually based upon treaties or historical title. The sovereignty of a coastal state extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive economic zone. Moreover, the sovereignty of the state, whether coastal or landlocked extends over its national vessels. The sovereignty of a state extends also to its national aircrafts. 1. Right of Territorial Sovereignty: The right to territorial sovereignty enables a state to exercise the fullest measures of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and adjacent area. In addition, it enables a state to exercise sovereignty over vessels, and aircrafts that fly its flag or carry its nationality, which are treated as its territory. 2. The Duty of Territorial Sovereignty: Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a state.  These duties involve the obligation to protect within its territory the rights of other states, together with the rights that each state may claim for its nationals in foreign territory. 3. The Treaties and Converntions: Many treaties and conventions have been concluded to regulate state sovereignty over land, sea, airspace and outer space.  Over airspace and outer space, there are the 1944 Convention on International Civil Aviation ( The Chicago Converntion),  The 1963 Treaty banning Nuclear weapon Tests in the Atmosphere, in Outer Space and Under Water, and  the 1967 Treaty on principles Governing the Activities in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies ( the outer Space Treaty).

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

 Over the sea, there is the 1982 Convention on the Law of the Sea, which replaced the 1956 Conventions related to the Territorial Sea and the Contiguous Zone, the High seas, the Continental Shelf, and Fishing and Conservation of Living Resources of the High Seas. 

In Addition, there is the 1959 Antarctica Treaty. Since the rights generated from the concept of territorial sovereignty can only be exercised in relation to a territory, it is necessary to know how a territory can be acquired. 2. The Modes of Acquisition of Territory: The international rules related to territorial sovereignty are rooted in the Roman law provisions governing ownership and possession. In addition, the classification of the different modes of acquiring territory is a direct descendant of the Roman rules dealing with property. Territory is the space within which the state exercises sovereign authority. Title to territory is acquired either through the claim of land not previously owned (terra nullius-ocupation) or through the transfer of title form one state to another. There are certain methods of acquiring territory which are traditionally recognized as valid methods under international law. The methods are as follows. 1. • Firstly, Occupation: Oppenheim has defined the term “occupation” as the act of appropriation by a State by which it intentionally acquires sovereignty over such territory as it is at the time not under the sovereignty of any other State. It should be kept in mind that the subject matter of occupation is terra nullius. Hence the territory which is a subject matter of occupation should not belong to any State. Thus occupation consists in establishing sovereignty over a territory not under the authority of any other State whether newly discovered or an unlikely case abandoned by the State formerly in control. Merely occupying territory does not amount to occupation because there should be effective occupation. To determine whether there is effective occupation of a territory by a State it is necessary that two essential conditions must be fulfilled. Firstly, possession and secondly, administration. 6

Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

Once possession is established over a territory, the State possessing the territory must establish some kind of administration over the said territory. In Eastern Greenland case (Denmark Vs Norway), 1933 PCIJ [(Ser. A/B)No. 53]. It was in clear cut terms held by the Permanent Court of International Justice that for occupation of a territory, the occupying State must fulfill two conditions: 1. An intention or will to act as sovereign 2. Adequate exercise of display of sovereignty 1. Intention: The intention of the State occupying the territory to act as sovereign is ascertained from the underlying circumstances. The intention must be to assume permanent control of the occupied territory. To make the occupation look real and as a consequence to transform the inchoate title of the occupying State into a perfect title it is important that the second condition also be fulfilled by the occupying State’s legislative or executive measures affecting the occupied territory i.e. signing treaties with other States concerning sovereignty of the said territory and the fixing of the boundaries in respect of that territory.

In another case i.e. the Island of Palmas (United States Vs Netherlands), and UN Rep Int’l Arb Awards 829 (1928): (1928) 22 Am J Int’l L 875. The dispute was between United States and the Netherlands wherein the United States claimed Sovereignty over the island on the basis of a treaty which it signed with Spain in the year 1898. Netherlands contented that it was in possession of the island over a long period and also established sovereignty over the island. Spain at no point of time had occupied the island although it had discovered the island and since its title was defective, it had no right to transfer the island to the United States. However, both the States decided to refer the matter to arbitration. Arbitrator Huber ruled that a mere act of discovery by one State is not sufficient to confer a title by occupation and gave the decision in favor of Netherlands on the ground that Netherlands not only exercised a long, continuous and

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

effective authority over the island but also established contacts with the inhabitants of the island. •2. Prescription: Another method of acquiring territory is prescription. Where a State establishes occupation and exercise control over a certain territory for a long duration of time, it is deemed that the State exercises de-facto sovereignty over the territory then as a consequence the said territory becomes a part of the territory of that State. In the words of J.G. Starke “Title by prescription i.e. acquisitive prescription is the result of the peaceable exercise of de-facto sovereignty for a long period over a territory subject to the sovereignty of another and this may be as the consequence of immemorial exercise of such sovereignty (i.e., for such period of time as in effect to extinguish memories of the exercise of sovereignty by a predecessor) or as the result of lengthy adverse possession only”. A State may acquire territory by prescription only when some conditions are satisfied such as: 1. A State may acquire some territory by prescription only when it has not accepted the sovereignty of any other State over the said territory. 2. Possession must be peaceful and uninterrupted. 3. Possession should be in public. 4. Possession should be for a definite period of time. Some jurists are of the opinion that international law does not recognize the acquisition of territory through prescription but, another section of jurists are of the opinion that some precedents exist in international law, precedents such as the case of Island of Palmas Arbitration. •3. Annexation: Annexation is another mode of acquisition of territory. It is a mode by which conquest is turned into subjugation. Conquest is the process of taking possession of enemy territory through the use of armed forces. Mere conquest is not sufficient to onstitute acquisition of title. After permanent establishment of conquest, the conquering State must in a formal manner annex the

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Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

conquered territory as annexation not only constitutes acquisition of the conquered territory but also brings a closure to the war. Such an end to the war is termed as subjugation. In the present day scenario the mode of acquiring territory through annexation is totally prohibited in the light of Article 2(4) of the United Nations Charter which provides that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or any other manner inconsistent with the purposes of the United Nations.” • 4.Accretion: Accretion is the name given for the increase or decrease of land through new formations. Title by accretion occurs when new territory is added mainly through natural causes or calamities (such as earthquakes, volcanic eruptions, tsunami or even flash floods in international rivers), to territory already under the sovereignty of the acquiring State. In all such cases there is no need for any formal act or assertion of title. For instance, an island may rise within the territorial waters of a State then the State ipso facto acquires sovereignty over the new formation. It is a customary rule of international law that any enlargement or expansion of territory of a State as a result of new formations, the State takes it ipso facto through accretion without the State concerned taking any special step for the purpose of extending its sovereignty. • 5. Cession: Through cession also territory may be acquired. Cession of State territory is the transfer of sovereignty over State territory by the State which owns the territory to another State. The cession of a territory may be voluntary it may be made under compulsion as a result of war fought successfully by the State to which the territory is to be ceded. Cession is affected through a treaty or agreement between the ceding State and the acquiring State. However, such treaties or agreements could be a result of peaceful negotiations or war. Cession is considered valid only when sovereignty of a territory is transferred to another State. In the case of In re Berubari Union and Exchange of Enclaves (AIR 1960 SC 845). The Supreme Court of India observed: “...it is an essential attribute of sovereignty that a sovereign State can acquire foreign territory and can, in case of necessity, cede a part of its territory in 9

Shilpa B P , Assistant Professor ,SJR College of law, Bangalore

favor of a sovereign State and this can be done in exercise of its treaty making power. Cession of national territory in law amounts to transfer of sovereignty over the said territory by the owner State in favor of another State.... Thispower, it may be added, is of course subject to the limitations which the constitution of the State may either expressly or by implication impose in that behalf.” A similar view was taken by the Supreme Court of India i.e. cession indisputably involves transfer of sovereignty from one sovereign State to another, in the case of Union of India v. Sudhansu Mozumdar, (1971) 3 SCC 265: AIR 1971 SC 1594. In another case i.e. Sugandha Roy v. Union of India, (AIR 1983 Cal 468) the Calcutta High Court had to determine the question whether giving of Teen Bigha (Zameen) to Bangladesh on lease in perpetuity under agreements between India and Banglades...