state territory

April 15, 2023 Public International Law | State Territory 1

Public International LawSTATE TERRITORY

Professor Md. Zakir HossainFaculty of Law

University of Chittagong.


MEANING OF STATE TERRITORY• State territory means the sphere within which a state enjoys

sovereignty.• The concept of sovereignty is enjoyed within the domain of state

territory. • According to Bodin, Hobbes and Austin sovereignty has three main

characteristics and these are as follows: (1) Sovereignty is essential in the State. (2) Sovereignty is indivisible ( power is given to individual or group as a whole). (3) Sovereignty is unlimited and illimitable. ( But that does not mean that a State has an absolute power to do whatever it wants).


Continued …• State sovereignty over land, • Sea. (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)

• Airspace and outer space. (Over airspace and outer space, there are the 1944 Convention on International Civil Aviation (the Chicago Convention), the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water.)


- Territory is one of the fundamental elements of statehood- Without a territory, an entity cannot be a State- State exercise authority within its territory- The exercise of such a supreme authority by a State over its own territory is known in International Law as “territorial sovereignty”


Now the question, IS HOW TERRITORY CAN BE ACQUIRED ?


Acquisition of Territory • The international laws relating to territorial sovereignty are rooted in the

Roman Law provisions governing ownership and possession• Title to territory is acquired either through the claim of land not previously

owned (terra nullius) or through the transfer of title from one State to another

• Title acquired in the first category is called original title, while in the second category is called derivative title.

• Modes of original acquisition of territory include discovery and occupation, prescription and accretion.

• Derivative modes include cession (voluntary or forcible), assimilation and conquest and annexation.

Discovery and occupation• A state may acquire a territory by discovering a continent, an island or land with no inhabitants or occupied by uncivilized inhabitants, and thereafter, occupying it by placing it under its political administration.

• Discovery will give the state inchoate title over the discovered land that will prevent others from acquiring it for a reasonable period of time until the inchoate title is transformed into a full title by administering it.


Conditions for aneffective occupation1. That the parties occupying the territory must have been

authorized by the state for which they are acting2. That the state must by formal evidence its intention acquire

sovereignty over the new territory3. That there must be established within a reasonable time after

discovery some governmental authority.• Uninhabited lands• Lands inhabited by uncivilized persons• Lands discovered by a state but which it failed to occupy for

unreasonable length of time.April 15, 2023 Public International Law | State Territory 12

Uninhabited lands• The Philippnes acquired the Kalayaan Group of Islands through discovery and occupation. Tomas Cloma, who actually discovered the uninhabited islands, ceded his right in favor of the Philippines. Thereafter, the Philippines occupied the islands by establishing a municipality therein.

• Ferdinand Magellan, in behalf of the Spanish Crown, discovered the archipelago of the Philippines, although at that time the Negritos, Malays and Indones inhabited the islands.

• Spanish authorities occupied the Philippines by establishing a government therein under its control making it a colony of Spain.


Failure to put the discovered land under the administration of the discovering state for an unreasonable length of time will open the land for acquisition of other states through discovery and occupation.• Occupation ( occupying a territory for the very first time that was

not previously occupied by any State)

• Starke has given three elements of occupation and these are: (1) Occupation consists in establishing sovereignty over a territory. (2) that territory is not under the authority of any other State. (3) that territory is whether newly discovered or an unlikely case - abandoned by the State formely in control.April 15, 2023 Public International Law | State Territory 14

• Case laws• Island of Palamas Arbitration (1929) (Award of the PCIJ)• Dispute between America and Netherlands over the Island of

Palamas.• America claimed to have acquired it under a treaty of 1898 with

Spain.• Netherlands claimed to have acquired it since 1700.• It was held that although the said Island was discovered by the

Spaniards they never occupied it and establish contracts with the inhabitants of the Island.



Clipperton Island CaseThe name Île de la Passion (English: Passion Island) was officially given to Clipperton in 1711 by French discoverers Martin de Chassiron and Michel Du Bocage, commanding the French ships La Princesse and La Découverte. They drew up the first map and annexed the island to France. The first scientific expedition took place in 1725 under Frenchman M. Bocage, who lived on the island for several months. In 1858 France formally laid claim.The name comes from John Clipperton, an English pirate and privateer who fought the Spanish during the early 18th century, and who is said to have passed by the island. Some sources say he used it as a base for his raids on shipping, but there is no documentary evidence of this.Other claimants included the United States, whose American Guano Mining Company claimed it under the Guano Islands Act of 1856; Mexico also claimed it due to activities undertaken there as early as 1848–1849. On 17 November 1858 Emperor Napoleon III annexed it as part of the French colony of Tahiti. This did not settle the ownership question. On November 24, 1897, French naval authorities found three Americans working for the American Guano Company, who had raised the American flag. U.S. authorities denounced their act, assuring the French that they did not intend to assert American sovereignty.Mexico reasserted its claim late in the 19th century, and on December 13, 1897 sent the gunboat La Democrata to occupy and annex it. A colony was established, and a series of military governors was posted, the last one being Ramón Arnaud (1906–1916). France insisted on its ownership, and a lengthy diplomatic correspondence between the two nations led to the conclusion of a treaty on March 2, 1909, to seek the arbitration of King Victor Emmanuel III of Italy, with each nation promising to abide by his determination. His decision would not be rendered until 1931, 1933


Guano mining and the tragedy of 1917The British Pacific Island Company acquired the rights to guano deposits in 1906 and built a mining settlement in conjunction with the Mexican government. That same year, a lighthouse was erected under the orders of President Porfirio Díaz. By 1914 around 100 people—men, women, and children—were living there, resupplied every two months by a ship from Acapulco. With the escalation of fighting in the Mexican Revolution, the regular resupply visits ceased and the inhabitants were left to their own devices. The US Navy warship Lexington visited in late 1915 and advised evacuation of all inhabitants, but the governor, Captain Arnaud, declared that evacuation was not necessary.By 1917 all but one of the male inhabitants had died. Many had perished from scurvy, while others (including Captain Arnaud) died during an attempt to sail after a passing ship to fetch help. Lighthouse keeper Victoriano Álvarez was the last man on the island, together with 15 women and children. Álvarez proclaimed himself "king" and began an orgy of rape and murder, before being killed by Tirza Rendon, who was the recipient of his unwanted attention. Almost immediately after Álvarez's death four women and seven children (the last survivors) were picked up by the US Navy gunship Yorktown on July 18, 1917.No more attempts were made to colonize it, though it was briefly occupied during the 1930s and 1940s.


• Final arbitration of ownershipMexico and France signed a compromis on March 2, 1909 (208 C.T.S. 361) in Mexico City, agreeing to submit the dispute over sovereignty over Clipperton Island to binding arbitration by King Victor Emanuel of Italy. On January 28, 1931, Victor Emanuel issued his arbitral decision in the Clipperton Island Case (France v. Mexico) (2 R.I.A.A. 1105), declaring Clipperton to be a French possession. The French rebuilt the lighthouse and settled a military outpost, which remained for seven years before being abandoned.


PRESCRIPTION

• It means right acquired by a State over the territory of other State by Possession.

• Dictionary meaning: laying down authoritatively• According to D.H.N. Johnson, a State may acquire some part of territory

only when the following conditions are fulfilled: (1) When it has not accepted the sovereignty of any other State over the said territory and took the said territory under its possession. (2) possession should be peaceful. (3) possession should be without interruption. (4) Possession should be in public. (5) possession should be for a definite period. (6) Possession should be observed as matter of right.


• Eastern Green Land Case PCIJ Series A/B No. 53: the Permanent Court of International Justice laid down the following two tests: (1) There must be an intention and will to act as sovereign over the concerned territory to occupy a territory. (2) There should be some actual exercise or display of such authority

• Facts of the case: in 1931 Norway declared her sovereignty over the Eastern part of Green Land. On the other hand Denmark also claimed her sovereignty over the said territory. During the second world war the allied forces had declared that the whole Greenland was a part Denmark and even Norway accepted it.


Eastern Greenland Case, 1933Fact of the Case:From 1721, The Sovereignty of Denmark is sustained upon Greenland. The problem was started from 1931 and date was 10th July, when with the Royal Proclamation, Norway declared the East area of Greenland terra nullius and they said that part of Greenland was in Flag of Norway. But Denmark claimed the state as in their sovereign authority because after the First World War, the Victorious states give their consent and give Greenland to Denmark where the Foreign Minister of Norway had also given his consent. They also claimed that, they were ruling this Greenland for many years and the sovereignty of Denmark had retained there for many years, they have the legal status of that Greenland and they showed their reflection of sovereignty over Greenland. Denmark asks for PCIJ to judge the matter.


Fact in Issue:-Which country is in possession?-Which country has the legal status?Judgment:Then Denmark submitted their papers and proving things to PCIJ Denmark give evidence about following matters.1. Up to 1931, no state claimed their share about that part.2. Because of Greenland’s territorial position it is not possible for continuous possession but Denmark has taken many necessary steps related to the executive and legislature, which was applicable to whole Greenland.3. Other states through treaties also recognize Denmark’s sovereignty over Greenland.4. When Norway waved their Flag, Denmark raised their objection at that point,

Judgment was given in favour of Denmark by 10 -2 votes. So, it was accepted that Denmark had the supreme authority over entire Greenland.


The Temple of the Preah Vihear CaseParty of the Case: Cambodia vs. Thailand, ICJ, (1967)Fact of the Case: This Case was being started to fix the border territory of Thailand and Cambodia. Preah Vihear was a very ancient and historical heritage. This Vihear was situated on the border area of Thailand and Cambodia. In 1904, Cambodia (The Upanibesh of France) and Thailand border area were divided by a treaty between France and Thailand. In that treaty, the considered border areas were divided and after that France and Siamij Commission had produced the Map of those countries. There, though, mistakenly, but specifically the Vihear was showed in the territory of Cambodia. Then the copy of that Map was produced to Thailand but they had told no objection about that matter. They approved the Map and asked for some more copies. Thai Prince visited the place within some days and had been watching Flag of France was waving on the top of that Vihear, he said nothing.


The problem started when UNESCO has declared the Vihear as an ancient important and historical heritage, and give huge quantity of dollars for the maintenance of that Vihear. Then Thailand told that, Vihear was belonged to them and it was mistakenly attached in the Map of Cambodia. But Cambodia retained their supreme authority.Fact in Issue:-Was the claim of that Vihear will be applicable to Thailand?Judgment: International Court of Justice (ICJ) held that, for many years, Thailand had not claimed the Vihear and the sovereignty of Cambodia was retained peacefully, then the Vihear will be the state territory of Cambodia.


ACCRETION (Acquiring the property be natural causes)

• According to Starke, “ Title by accretion occurs when new territory is added mainly through natural causes, to territory already under the sovereignty of the acquired State.”

• State Territory + other territory (acquired by natural causes like siltation, flood etc.)

• No formal act or assertion of title is necessary.• ACCRETION is another mode of acquiring territory by addition of portions

of soil, either artificial such as the reclamation area in Manila Bay, or natural by gradual deposition through the operation of natural causes such as the waves of the ocean.


ANNEXATION (After war sovereignty to be established)

• This mode has become obsolete after the commencement of U.N. Charter.

• Article 2(4) of the said authority says that the members of U.N shall respect the territorial integrity and political independence of each other and shall not use force against each other.

• Example: annexation of Kuwait by Iraq. After annexation Iraq declared Kuwait its 19th province but Security Council declared that such annexation was null and void. Subsequently kuwait was freed.


CESSION (Some territory given to other State to have sovereignty over it)

• Cession may be either be a voluntary act or in consequence of a war.• Sovereignty over the territory is transferred to other State to exercise

sovereignty.• Union of India v Sukumar Sengupta AIR 1990 SC 1692. In the year 1974 agreements were

entered into between India and Bangladesh wherein Tin Bigha area was given to Bangladesh to connect Dahagram and Panbari Mouza of Bangladesh. As per the agreement “Lease in perpetuity was given over the said area at the rent of half a rupee per annum. Later on India waived its right to charge rent from the said area. But it was mentioned in the agreement that the sovereignty over the said area shall continue to be vested in India. The court held that this does not amount to cession of the said territory by India.


MODES OF LOSS OF TERRITORY

• CESSION.• OPERATION OF NATURE.• SUBJUGATION. (BY DEFEATING)• PRESCRIPTION.• DERELICTION: WHEN A STATE FAILS TO EXERCISE ITS SOVEREIGNTY OVER

THE SAID TERRITORY.• LOSING A TERRITORY BY GRANTING INDEPENDENCE TO A COLONY

state territory

Education

domain of state territory

continued state sovereignty

state inchoate title

international laws

territorial sovereignty

roman law provisions

international civil

austin sovereignty