Territory And Sovereignty - International Law

Sovereignty involves the legitimate exercise over power over something. This includes power exercised over territory. A state may exercise jurisdiction within its territory and over all those found in that territory.

Every state is sovereign and politically independent; states cannot interfere with one another. Art 2(1) of the UN Charter shows that the UN is based on the sovereign equality of all its members.

1. States cannot be compelled to do anything unless they have consented to be bound by a rule

   1. Consenting to be bound involves giving up some part of sovereignty

   2. by becoming part of the United Nations states become bound by the UN Charter

   3. however, new states are generally said to be bound by international law at the time they came into being

2. States are in theory all equal; however in reality more powerful states may exert influence on smaller states.

Only states may acquire territory. [Consider criteria for statehood]

To hold title to particular territory, the state must have acquired sovereignty over it. This may be done in a number of ways.

Occupation

Occupation is a method of acquiring territorial sovereignty by establishing a settlement. Discovery of territory is not sufficient. There needs to be actual possession (eg settlement/administration, coupled with the right to exclude others by force).

1. In the Island of Palmas case it was found that the Netherlands had better title to the Island than the US (who purported to have been ceded it by Spain), as the Dutch had taxed the local citizens and distributed flags on the island, while there was no trace of Spanish activity [though this was very slight evidence].

The PCIJ in the Eastern Greenland case nominated two essential elements of territorial sovereignty (the ‘Huber test’):

1. the intent and will to act as sovereign and

   1. If the intent to occupy is subjective, it depends for evidence on objective manifestations of state authority.

   2. The test emphasises the need to demonstrate that activities have been undertaken on behalf of the state rather than as private acts.

   3. Evidence of this limb includes: enactment of legislation

2. the actual exercise of such authority.

   1. There must be acts referable to sovereignty; these may be virtually infinite

   2. Examples: acts of administration and execution of govt functions, exercise of criminal jurisdiction on a territory

Prescription (similar to adverse possession)

If a state purports to hold title to land, but subsequently another entity is exercising effective control, the latter entity (if it is or becomes a state) is actually in control of the territory and thus has sovereignty over it.

Cession

Cession is the formal transfer for sovereignty from one power to another.

1. Might be by way of peaceful agreement – Russia sold Alaska to the United States via a treaty for 1c an acre.

2. More commonly cession is not a transfer by peaceful agreement but by treaty after a conflict – eg the winner gets territory by a treaty (albeit a coerced treaty).

   1. The court in Cameroon v Nigeria noted that this mode does not reflect current IL. A treaty of cession obtained by force (threat or use) would not be valid today

Accretion (new land created)

If new land is created and a state is exercising effective control over it this is that state’s territory by accretion.

• Eg the eruption of a volcano creates a new island or adds to existing land, or gradual deposit of soil changes the contours of the land.

Boundary treaties

States may also lose or acquire land under treaties and arbitral awards determining a boundary. This becomes binding in the absence of protest on all states.

Conquest

A state historically could acquire territory by conquering it. This is now prohibited by UN Charter Art 2(4) and customary law.

In practice, it is effective occupation/control along with the acquiescence of the international community that will lead to the conclusion that a state has sovereignty over particular territory.

Effective occupation

State practice is to recognise the entity that is in actual possession of territory and exercising effective control as having sovereignty.

1. Actual possession is held more important by states than an abstract right to possess territory

Acquiescence of the international community

States in theory are bound not to recognise the sovereignty of a state that has acquired its territory by conquest/annexation. However, in the interests of peaceful international relations, other states may recognise sovereignty even where states have gained control over territory illegally (see, eg, East Timor case).

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