Public International Law: Territorial Sovereignty

Public International Law
Territorial Sovereignty
Ayush Jha
Assistant Professor
Territorial Sovereignty
Meaning of Territory
• “A State without territory is not possible”- Oppenhiem.
• State Territory is a space within which the State
exercises its supreme and normally exclusive authority.
• The legal concepts of sovereignty and jurisdiction can
be comprehended only in relation to territory.
• The centrality of territory in IL can be understood by
looking at the rules of its inviolability.
• The change in ownership of territory has legal effects
on the issues of sovereignty and jurisdiction upon the
inhabitants.
Territorial sovereignty
• Max Huber in Island of Palmas Case- “Sovereignty
in relation between States signifies independence.
Independence in regard to a portion of globe is the
right to exercise therein, to the exclusion of any
other state, the functions of State”.
• It has a positive and a negative aspect.
• A State exercises its territorial sovereignty within its
boundary.
• The right to territorial sovereignty enables a State to
exercise the fullest measures of sovereignty powers
over its land territory.
Acquisition of Territory
• Original and Derivative modes.
Occupation
• Establishment of sovereignty over a territory not under the
authority of any other State (terra nullius).
• The occupation must be by state, must be effective, with
intention to claim sovereignty.
• Eastern Greenland Case- Effective occupation requires
1. Intention or will to act as sovereign.
2. Adequate exercise or display of sovereignty.
• Mere discovery doesn’t create territorial sovereignty
unless significant activity is shown.
• Second requirement can be fulfilled by administering the
affairs of the territory via authorities.
Examples:
• State A claims a fishing island in Indian Ocean as
part of its territory because it is close to their shore.
But the island is in occupation of state B for over a
century even though there is no permanent
population.
• State A discovers a new island and displays its flag
there. Subsequently, State B occupies the island.
After some years, State A wants to recover island
from State B.
Prescription
• Prescription is a mode of acquisition of a territory
which is subject to the sovereignty of another State,
(not being terra nullius) through peaceful exercise of
de facto sovereignty over a long period of time.
• Requirements:
– The acquiring state must not have acquiesced to title of
another state.
– length of time must be adequate.
– the exercise of de facto sovereignty must be continuous,
peaceful and uninterrupted.
– Possession must be in public.
• Frontiers Lands Case (Belgium v. Nehterlands), 1959.
Accretion
• Accretion is a geographical process by which new land is
formed mainly through natural causes and becomes
attached to existing land.
• No formal act or assertion on part of the acquiring State is
required.
• Eg: Creation of islands in a rive mouth, the drying up or the
change in the course of a boundary river, or the emerging
of island after the eruption of an under-sea volcano.
• In case of a drying or shifting of a boundary river-
– if the change is gradual and slight, the boundary may be
shifted,
– if the change is violent and excessive, the boundary stays at
the same point along the original riverbed.
Annexation
• Annexation is the extension of sovereignty over a
territory by its inclusion into the State.
• It is resorted to in two circumstances:
1. Conquest or subjugation by annexing State.
2. ‘virtual’ subordination to annexing state at the
time of declaration of intent to annex.
• Conquest, by itself doesn’t grant title to the
victorious State.
• It is no longer a legal mode. However, it does give
the victor certain rights under IL relating to the
occupied territory.
Cession
• It is a transfer of sovereignty from one sovereign to another.
• It rests on the principle that the right of transferring its territory
is a fundamental attribute of the sovereignty of a State.
• It occurs by means of an agreement between the ceding and the
acquiring States.
• Cession of territory may be:
1. Voluntary as a result of a purchase, an exchange, a gift, a voluntary
merger,
2. Made under compulsion as a result of a war or any use of force
against the ceding State.
• Re Berubari Union Case (1960)- cession amounts to transfer of
sovereignty over a territory to by one State to another sovereign
State, and this can be done in exercise of treaty making power.
Leases and Servitudes
• Sovereignty is passed to the lessee state by the lessor
state under a treaty for a certain duration.
• Ex- Panama Canal (US and Panama), Guantanamo Bay
(US and Cuba).
• Servitudes are exceptional restrictions on the territorial
sovereignty of one state to serve interests of another state.
• Ex- right to use ports or rivers in, or a right of way across,
the concerned territory;
• Constantinople Convention 1888.
• Wimbledon Case (1923).
• UOI v. Sukumar Sen Gupta (1990)
• Right to Passage over Indian Territory Case
Modes of loss of territory
• Dereliction- abandonment or relinquishment of
sovereignty. Corresponds with occupation.
• Operations of nature- corresponds with accretion.
• Prescription
• Cession
• Subjugation
• Secession- a state may lose a part of territory either
by revolt or peaceful means. Seceding parts become
independent states.
• Grant of independence by imperial states.
Uti possidetis
“As you possess”
• It is a Roman Law doctrine which was used to maintain
status quo during the pendency of a property dispute.
• In international law this doctrine has been used to
ascertain the boundaries of the newly decolonised states.
• According to the doctrine, the boundaries of the states
must be ascertained on the basis of the demarcation of
the administrative unit by the antecedent colonial power.
• In re Frontier Dispute (Burk. Faso/Mali), 1986- the
doctrine would take precedence in establishing borders
given the paramount importance of ‘stable borders in
maintaining the peace’, notwithstanding the importance
of the principle of self-determination.

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