Territorial Sovereignty
sovereignty.
Territorial sovereignty was described in the
Island of Palmas Arbitration as being the
right to exercise therein, to the exclusion of
any other state, the functions of a
sovereign. Territorial sovereignty has two
aspects:
Internal which concerns the authority
exercised by a State within its borders
over the persons and situations/events
that occur there. It also encompasses
the right to dispose of the territory
External, which entails that a state must
respect the territorial integrity of other
states, i.e. must not interfere in another
states internal and external affairs and
must ensure the safety of foreign
nationals present within its territory.
3 other territorial regimes recognized by
international law
Territory not subject to the
sovereignty of any state or states
and which possesses a status of its
own
Terra nullius, being land legally
susceptible to acquisition by states
but not yet placed under any
territorial sovereignty
Res communis, consisting of the
high seas and also outer spaces,
which is not capable of being placed
under the sovereignty of any State
as it belongs to community of
states.
Different types of Territorial Sovereignty
Titular or residual sovereignty and effective
sovereignty - an entity which has the ultimate
capacity of disposing of a territory may be said
to possess titular or residual sovereignty. The
entity which exercise plenary power over a
territory but lacks the capacity of ultimate
disposal may be said to possess effective
Condominium occurs when two or more states
exercise sovereignty over a piece of territory
and its inhabitants.
Terminable and Reversionary Sovereignty
refers to a situation where sovereignty of a
territory may or will change by operation of law,
for example, when a condition is met or where a
failure to meet an express or implied condition
will result in the title to a territory reverting to
the grantor.
Indeterminate sovereignty it may be that a
piece of territory which is not terra nullius
nevertheless has no determinate sovereign.
The Principles and Rules Applicable to the
Acquisition of Title to Territory
1. Jus cogens rues of international law
Jus cogens rules such as the prohibition on the
use of force, the principle of peaceful
settlements of international disputes and the
principle of self-determination of peoples apply
to all modes of acquisition/loss of territory by a
state.
Thus the validity of and/or effect of any mode of
acquiring territorial title by a state will be tested
by reference to these rules. However, their
application is subject to the limitations imposed
by intertemporal law
2. Specific principles applicable to the
acquisition of title to territory
The principle of effectiveness
It refers to how a factual situation affects the
creation of a right, i.e. the acquisition of legal
title to territory. That situation being the
exercise of effective authority over the relevant
territory, the principle of effectivess is of
relevance to the following modes of acquisition
of territory: occupation, acquisitive prescription
and the acquisition by conquest.
The principle of uti possidetis
The principle provides that the old colonial
boundaries will be recognized as the borders of
the newly independent ex-colonial states. The
principle ensures territorial integrity for newly
independent states, thus allowing them to
survive, consolidate, and develop.
Intertemporal law
Concerns the temporal application of legal
rules, that is whether a judicial fact should be
appreciated in the light of the law
contemporary with it or in the light of the law in
existence when a matter or dispute arose or
failed to be settled.
The general rule is that title should be assessed
according the rules of law that prevailed a the
time of the acquisition of territory.
The critical date rule
This is a procedural rule which refers to the date
on which a territorial dispute crystallized. After
that date, subsequent events will not events will
not be taken into account in the determination
of the rights of the parties.
Evidentiary Rules
Recognition recognition in respect of
land claims mainly refers to the attitude
of third states. This may take the form
of a unilateral express declaration or
may occur in treaty provisions with
third states. However, recognition is
also relevant in respect of competing
claims of two states in a situation where
a state by positive conduct, even if
contrary to an existing treaty,
acknowledges that its opponent has a
valid title to a disputed territory.
Acquiescence this applies to the
attitude of a dispossessed state and is
inferred from its failure to protest in
circumstances where protest might
reasonably have been expected against
the exercise of control by its opponent.
Estoppel the principle operates to
prevent a state contesting before the
court a situation contrary to clear and
unequivocal representation previously
made by it to another state, either
expressly or impliedly, on which
representation on the other state was,
in the circumstances, entitled to rely
and in fact did rely, and as a result the
other state has been prejudiced or the
state making it has secured some
benefit or advantage for itself. The
situation of estoppel arises when a
states conduct is clear, sustained, and
consistent and the other party relying
on such conduct has changed its
position to its own detriment or has
suffered some prejudice.
Modes of Acquisition to Title to Territory
Occupation Only terra nullius can be acquired
by occupation. The condition for acquisition by
occupation is effective possession. Such
possession combines the intention of a State to
act as sovereign and some actual exercise or
display of sovereignty.
Acquisitive Prescription This concerns the
acquisition of a territory through continuous
and undisturbed exercise of sovereignty for a
long period over a territory belonging to
another state during which period the latter
does not protest.
Accretion This refers to slow, gradual increase
of land due to accumulation of soil material
such as sand, silt, clay, gravel resulting from
natural causes. The opposite of accretion is
erosion which occurs when land is gradually
washed away by water or in the natural course
of events.
Cession this consists of the peaceful transfer
of territory from the grantor state to the
grantee usually by a treaty, although the form in
which the states concerned express their
understanding is not important. Both states
must consent.
Conquest this was a historical method of
establishing sovereignty over a territory. The
prohibition on the use of force outlawed this
basis for claiming title to territory.
Novation It consists of the gradual
transformation of a right in territorio alieno, for
example, a lease, or a pledge, or certain
concession of a territorial nature, into full
sovereignty without any formal and unequivocal
instrument to that effect intervening.
Other Circumstances Relevant to the
Acquisition of Territory
Contiguity Under this doctrine a state baes a
claim to an area of land on the ground that it
forms geographical continuation of its territory.
Nowadays contiguity is regarded as a fact which
may influence the decision of an international
tribunal
Discovery In the middle ages, mere discovery
without actual possession was sufficient to
establish a valid title to territory. The modern
view is that discovery merely gives an option to
the discovering state to consolidate its claim by
proceeding to effective occupation within a
reasonable time.
Symbolic annexation a declaration or other act
of sovereignty or an act of private persons duly
authorized or subsequently ratified by a state,
intended to provide unequivocal evidence of
the acquisition of sovereignty over a parcel of
territory or an island.
Boundary treaties treaties defining borers
have a special status in international law.
Borders established by such treaties have a
permanence that exists independently from the
fate of the treaties which set them out.
Adjudication/arbitration only confirms the
existence of title to territory as courts and
arbitral bodies have no power to grant title.
Restrictions on the Transfer of Territory
States may enter in to treaty agreements not to
alienate certain areas of territory under any
circumstances or they may contract not to
transfer territory to a particular state or states.
An obligation not to acquire territory may also
be undertaken.
Loss of Territory
By treaty of cession a transfer of rights
by one state to another
By acquisitive prescription
By creation of a new state which by
definition will cause another state or
states to lose territory
By abandonment otherwise known as
derelict a state may relinquish part of
its territory by:
o Conduct
o Express admission
o A treaty
o Acquiescence in the extension
of another states claim to its
territory
When a state abandons a territory, that territory
becomes either terra nullius or part of another
States territory.
Abandonment requires both physical
abandonment and an intention to abandon
dominion. The intention must be clear and
proven.
For reasons of stability, abandonment is not to
be presumed and certainly in the case of
remote, inhospitable, and uninhabited areas it
would seem that international tribunals require
little evidence of maintenance of sovereignty.

Rights over Parts of Territory of a Foreign State:

International Leases and Servitudes

Leases

One state may lease parts of its

territory, usually for an annual fee or
other considerations.
As there is no general international law
specifically regulating leaseholds, it is
for the lessor state and the lessee state
to agree the terms of each lease.
Such leases being international
agreements are governed by the law of
treaties.

Servitudes

Servitudes occur when a territory of one state is

made to serve the interests of another state. By
treaty or otherwise a state may acquire rights
over the territory of another state. Such rights
may be divided into two categories:

Rights benefitting the international

community: international servitudes
may exist, not for the benefit of a single
state by for the benefit of the
international community.
Rights benefitting only a single state:
these include mining rights, rights to
run a an oil or gas pipeline across a
neighboring state, rights to take water
for irrigation, rights of way, etc.