#14981 - Territory - Public International Law

States have (territorial) sovereignty over their territory. Island of Palmas (1928) 2 RIAA 829, 838-39.

• “Sovereignty in the relations between 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, the functions of a State. […] this principle of the exclusive competence of the State in regard to its own territory [is] the point of departure in settling most questions that concern international relations”

The components of a state’s ‘territory’ include: emerged land, internal waters (such as rivers and lakes), the territorial sea, and the airspace above these areas.

• Internal waters. Comprising saltwater and freshwater areas inside a State’s territory, such as rivers and lakes and (exceptionally) archipelagic waters.

• Territorial sea. The territorial sea is a maritime area adjacent to a State’s coast. Its maximum breadth is of 12 NM from the baselines determined in accordance with the law of the sea (Art 3 UNCLOS); normally, the baseline is the low-water mark along the coast (Art 5 UNCLOS). Sovereignty extends to the bed-soil and airspace above the territorial sea (Art 2(2) UNCLOS).

• Airspace. The State has sovereignty over the airspace above its territory.

Arts 1-2, Chicago Convention on Civil Aviation (7 December 1944) 15 UNTS 295

State territory and its appurtenances (airspace and territorial sea), together with the government and population within its boundaries, constitute the physical and social base for the state. The legal competence of states and the rules for their protection depend on and assume the existence of this stable, physically identified base. For example, according to Art 29 VCLT: Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Territorial sovereignty has a positive and a negative aspect. The former relates to the exclusivity of the competence of the state regarding its own territory, while the latter refers to the obligation to protect the rights of other states.

The State possesses certain rights (but not sovereignty) over other adjacent maritime spaces: the Exclusive Economic Zone (EEZ) and the continental shelf.

A maritime zone beyond and adjacent to the territorial sea (Art 55 UNCLOS), extending up to 200 NM from the baselines (Art 57 UNCLOS). The coastal State has rights of exploration, exploitation, conservation and management of natural resources in the superjacent waters, the seabed and its subsoil.

The continental shelf comprises the seabed and subsoil of the submarine areas beyond the territorial sea. It extends to 200 NM from the baselines or to the outer edge of the continental margin as defined in Art 76 UNCLOS. The coastal State has rights of exploration and exploitation of natural resources (Art 77 UNCLOS).

Boundaries are imaginary lines on the surface of the earth which separate the territory of one State from another, or from unappropriated territory, or from the open sea.

Identifying the boundaries of a State’s territory is of special importance, since the State’s competences extend, in principle, only to its territory. But undefined boundaries are not an impediment to statehood.

II. TITLE TO TERRITORY IN INTERNATIONAL LAW

Acquisition of territory concerns the processes recognised by international law through which a State establishes its sovereignty over a portion of land.

A State which has established its sovereignty over land is said to possess ‘title’ over that territory.

The term ‘title’ is used in (at least) two different senses in international law: (i) as a source of the rights over land; (ii) as the evidence of sovereignty over land.

These modes are frequently divided into ‘original’ and ‘derivative’ sources of title. Original title is that acquired over land that is terra nullius. Derivative title is acquired over land that was already under the sovereignty of another State.

Occupation is the act of appropriation of territory by a State, through which it acquires sovereignty over that territory. Occupation must involve an actual, continuous and peaceful display of State authority with the intention to act as sovereign (Island of Palmas)

• Continuous and peaceful display

• ‘Continuous’ = ‘continuing’, i.e. ‘the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical’ (Island of Palmas, 839).

• No fixed period for which state authority must be displayed.

  • Island of Palmas, 840, 855

  • Sovereignty over Pedra Branca/Pulau Batu Puteh, para. 67

• ‘Peaceful’ = effectivités not the object of protest by other states

  • Sovereignty over Pedra Branca/Pulau Batu Puteh, para. 68

• Crucial whether other states claim sovereignty, and with what evidence -> possible to claim with limited effectivities if there is no other state that can point to a better title

• Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 134

• Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 173

• Territorial and Maritime Dispute (Nicaragua v Colombia), para. 80

• State acquires sovereignty over terra nullius through effectivités

• Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, 2007 ICJ Rep 659, para. 172:

• ‘A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over given territory.’

• Decreasing significance because few terra nullius left

• Western Sahara, 1975 ICJ Rep 12, para 80

• ‘Whatever differences of opinion there may have been among jurists, the State practice of the [colonial] period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius.’

• Ie in the circumstances in quotation fulfilled – not terrae nullius

• Held no qualifying legal ties so no right of self-determination of Western Sahara

• Two elements: intention and actual exercise

• Legal Status of Eastern Greenland, (1933) PCIJ Ser. A/B No 53, 45–6

• [A] claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: [1] the intention and will to act as sovereign, and [2] some actual exercise or display of such authority.

• Cited approvingly in Sovereignty over Pulau Ligitan and Pulau Sipadan, 2002 ICJ Rep 625, para. 134 and Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 172.

• A sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory. To sustain a claim of sovereignty on that basis, a number of conditions must be proven conclusively.

• State cannot rely on private conduct of its nationals – not acts à titre de souverain:

• Kasikili/Sedudu Island (Botswana/Namibia), 1999 ICJ Rep 1045, para. 98

• Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 140

• Acts must be public, not clandestine

• Island of Palmas, 868

• Sovereignty over Pedra Branca 2008 ICJ Rep 12, p. 122, para. 17 (joint Diss. Op. Simma and Abraham).

• What constitutes display of state authority will vary.

• Island of Palmas: ‘[e]ach case must be appreciated in accordance with (its) particular circumstances’ (p 855).

• Manifestations of territorial sovereignty assume … different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of a right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. (p. 840)

• Frontier Dispute (Burkina Faso/Mali) (1986), para 63.

• [W]here the legal title is not capable of showing exactly the territorial expanse to which it relates … effectivités can then play an essential role in showing how the title is interpreted in practice

Precisely what acts will be sufficient to found sovereignty is a matter of fact and degree, and may depend on the character of the territory. The bar with respect to remote and sparsely settled areas will be set lower than in the context of more heavily populated territory. A first, decisive act of sovereignty may suffice to create a valid title over uninhabited, inhospitable and remote regions

• For example, Clipperton Island (Mexico v France) concerned a dispute over an uninhabited island. The arbitrator held that a proclamation of sovereignty by a French naval officer later published in Honolulu was sufficient to create a valid title. The weakness of Mexican claims to the...