TERRITORIAL SOVEREIGNTY

Asghar Ali Mayo

The Conception of State Territory
According to Oppenheim, State territory is the portion of
surface of the globe which is subjected to the
sovereignty of the state------land, air, sea, subsoil
A state without a territory is not possible, but very small, as
with the Principality of Monaco, Nauru and Large as
Russia (17,075,200 Sq Km ) Canada (9,984,670 sqkm) and
USA (9,826,630 sqkm) China (9,596,960 sqkm)
A wandering tribe, although it has a government and is
otherwise organized, is not a state until it has settled down
in a territory of its own.

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 State Territory
Territory therefore is a tangible attribute of
the state within which a state enjoys and
exercises sovereignty.
Power of State emanates from Sovereignty
Legislative, Executive and Judicial
jurisdiction
Territories can be acquired or have been
acquired by several means.

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 Occupation
Acquiring a territory that is terra nullius. (No Body s Land)
Occupation is preceded by discovery, but discovery alone is
not enough as there is need for the publication of the
discovery followed by effective occupation i.e. the actual
exercise of authority.
Effective occupation relates to the actual exercise of
sovereignty. In areas that are inhabitable may be minimal-
meaning minimum overt actions may be sufficient.
Cllipperton Island Arbitration case, (France Vs Mexico)
Island of Palmas Case.(1925 USA Vs Netherland)
Date of location of sovereignty is critical- the western Sahara
case, El Salvador vs Honduras case.

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 Prescription
Prescription is the acquisition of a territory by
public, peaceful and continuous control of
territory. It is different from occupation in that
terra nullius is involved.
Length of time required is not stated as it is
dependent on circumstances of each particular
case, the geographical nature of the territory
and the existence or absence of competing
claims.

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 Conquest
Is the taking of territory by force most often
involving war.
Conquest under modern international law is no
longer recognized. Attempts by Iraq over Kuwait
led to resolution 660.
About territories acquired when it was lawful
doctrine of intertemporal law works- the law
applicable when title was allegedly established.

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 Cession
Means the transfer of territory by one sovereign to
another normally done through a treaty-Versailles
treaty 1919, Japan treaty of peace of 1951, cession of
Hong Kong by China to Grat Britain after the opium
war
It may also take the form of exchange (1890 Britain and
German exchange Zanzibar and Heligo land). Sale
(Louisiana from France and Alaska from soviet union).
The emergence of self determination has made cession
of territory between states less likely.

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 Accretion and Avulsion
Through geographical processes. But these are rare
in occurance and of minor importance.
Accretion involves gradual increase of territory
through operation of nature e.g shift in river course
Mississippi vs Louisiana
Avulsion through violent changes alteration of a
river course of volcanic eruption.

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 Self determination and
Independence
The attainment of independence with the principle
of self determination involves the replacement of a
territory by another hence gives title to the
territory.
An entity that comes through unconstitutional
means survival is dependent on recognition.

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 polar regions
There has been contentions to the ownership.
Contiguity principle operates- whereby the
occupying state may claim territory which is
geographically pertinent to its area of lodgement.
A number of conventions have been drafted given the
use of these regions as navigation under frozen water is
possible
For the Antarctica, key article prohibits any activity
relating to mineral resources other than scientific
research.

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TERRITORIAL RIGHTS
. The Significance of State Territory
Territory is a basic requirement of statehood and, within
its territory, a State enjoys and exercises sovereignty.
Territorial sovereignty extends over the designated land
mass, sub-soil, inland waters, territorial sea and the
airspace above the land, internal waters and territorial sea.
Although, historically, States were considered to have
absolute and exclusive sovereignty over their territory,
more recently, there has developed a body of rules,
particularly in the fields of human rights and
environmental protection, which have placed limits on
such sovereignty.

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The Component Parts of State
Territory
. Land territory
. Territorial waters
Internal watersNational or Internal waters consist of
lakes, canals, rivers and their mouths, ports, harbors,
sometimes waters landward of fringing islands, and some
of its gulfs and bays. These different kinds of national water
must be distinguished from territorial sea. Internal waters
are legally equivalent to a states land, and are entirely
subject to its territorial sovereignty.

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 Rivers
General Rule
Theory and practice agree upon the rule that rivers are part
of the territory of the riparian state.
(1) Internal River
If a river lies wholly, that is, from its source to its mouth,
within the boundaries of one and the same state, such state
owns it exclusively, the waters of the river and of its mouth
being national or internal waters. Such rivers may be called
national rivers.

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 Rivers
(2) Boundary River
There are boundary rivers, that is, rivers which separate
different states from each other. Boundary rivers belong to
the territory of the states they separate, the boundary line
usually running either through the middle of the river or
through the middle of the mid-channel of the river.
If such a river is not navigable, the boundary line as a rule
follows the mid-line of the river. If navigable, the boundary
line as a rule follows the middle of the mid-channel line of
the so-called thalweg.

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 River
(3) multinational river, pluri-national river
There are rivers which run successively through two or
more states and may therefore be described as
multinational river or pluri-national river, such rivers
belong successively to the territories of the states drained
by them.

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TERRITORIAL RIGHTS
(4) International River
There are some pluri-national rivers which are navigable
from the open sea and which, though belonging to the
territories of the different states concerned, are
nevertheless named international rivers, because freedom
of navigation on them in time of peace is recognized by
treaty.

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 . The Component Parts of State Territory
. land territory
. territorial waters
rivers
canal
When canals are confined within the territory of a single
state they are integral parts of the territory. Where,
however, a canal is so constructed as to affect an
international waterway system, or an international
drainage area, it may be subject to the rules of
international law. The great interoceanic canals, such as the
Suez and Panama Canals, have been subjected to particular
international treaty regimes.
lakes and land-locked seas

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Case Study
This case is one of the most highly influential precedents
dealing with island territorial conflicts.
Island of Palmas Case, (Scott, Hague Court Reports 2d 83
(1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards
829), was a case involving a territorial dispute over the
Island of Palmas (or Miangas) between the Netherlands
and the United States which was heard by the Permanent
Court of Arbitration. The Island of Palmas (known as Pulau
Miangas in Bahasa Indonesian) is now within Indonesian
sovereignty.

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Case Study
The structure of the case
. Facts of the case
. The Arbitrator's decision
. Right by discovery
. Contiguity
. Continuous and peaceful display of sovereignty
. Conclusion

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Case Study
. Facts of the case
Palmas, also referred to as Miangas, is an island of little
economic value or strategic location. It is two miles in
length, three-quarters of a mile in width, and had a
population of about 750 when the decision of the arbitrator
was handed down. The island is located between
Mindanao, Philippines and the northern most island,
known as Nanusa, of what was the former Netherlands East
Indies. In 1898, Spain ceded the Philippines to the United
States in the Treaty of Paris (1898) and Palmas sat within
the boundaries of that cession to the U.S. In 1906, the
United States discovered that the Netherlands also claimed
sovereignty over the island, and the two parties agreed to
submit to binding arbitration by the Permanent Court of
Arbitration.

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Case Study
. Facts of the case
On January 23, 1925, the two government signed an
agreement to that effect. Ratifications were exchanged in
Washington on April 1, 1925. The agreement was registered
in League of Nations Treaty Series on May 19, 1925. The
arbitrator in the case was Max Huber, a Swiss national.
The question the arbitrator was to resolve was whether the
Island of Palmas (Miangas), in its entirety, was a part of the
territory of the United States or the Netherlands.
The legal issue presented was whether a territory belongs
to the first discoverer, even if they do not exercise authority
over the territory, or whether it belongs to the state which
actually exercises sovereignty over it.

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Case Study
. The Arbitrator's decision
The Arbitrator, Swiss lawyer Max Huber, ruled in favor of
the Netherlands position and stated that the Netherlands
held actual title to Palmas :
For these reasons
The Arbitrator in conformity with Article I of the Special
Agreement of January 23rd, 1925 DECIDES that : THE
ISLAND OF PALMAS (or MIANGAS) forms in its entirety a
part of the Netherlands territory. done at The Hague, this
fourth day of April 1928. Max Huber, Arbitrator Michiels
van Verduynen, Secretary-General.
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Case Study
. Right by discovery
In the first of its two arguments, the United States argued
that it held the island because it had received actual title
through legitimate treaties from the original "discoverer" of
the island, Spain. The United States argued that Spain
acquired title to Palmas when Spain discovered the island
and the island was terra nullius. Spain's title to the island,
because it was a part of the Philippines, was then ceded to
the United States in the Treaty of Paris (1898) after Spain's
defeat in the Spanish-American War. The arbitrator noted
that no new international law invalidated the legal transfer
of territory via cession.

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Case Study
. Right by discovery
However, the arbitrator noted that Spain could not legally
grant what it did not hold and the Treaty of Paris could not
grant to the United States Palmas if Spain had no actual
title to it. The arbitrator concluded that Spain held an
inchoate title when Spain discovered Palmas. However,
for a sovereign to maintain its initial title via discovery, the
arbitrator said that the discoverer had to actually exercise
authority, even if it were as simple an act as planting a flag
on the beach. In this case, Spain did not exercise authority
over the island after making an initial claim after discovery
and so the United States claim was based on relatively
weak grounds.
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Case Study
. Contiguity
The United States also argued that Palmas was United
States territory because the island was closer to the
Philippines than to Indonesia which was then held by the
Netherlands East Indies. The arbitrator said there was no
positive international law which favored the United State's
approach of terra firma, where the nearest continent or
island of considerable size gives title to the land in dispute.
The arbitrator held that mere proximity was not an
adequate claim to land noted that if the international
community followed the proposed United States approach,
it would lead to arbitrary results.

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Case Study
. Continuous and peaceful display of sovereignty
The Netherlands primary contention was that it held
actual title because the Netherlands had exercised
authority on the island since 1677. The arbitrator noted
that the United States had failed to show documentation
proving Spanish sovereignty on the island except those
documents that specifically mentioned the island's
discovery. Additionally, there was no evidence that Palmas
was a part of the judicial or administrative organization of
the Spanish government of the Philippines.

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Case Study
. Continuous and peaceful display of sovereignty
However, the Netherlands showed that the Dutch East
India Company had negotiated treaties with the local
princes of the island since the 17th century and had
exercised sovereignty, including a requirement of
Protestantism and the denial of other nationals on the
island. The arbitrator pointed out that if Spain had actually
exercised authority, than there would have been conflicts
between the two countries but none are provided in the
evidence.

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Case Study
. Conclusion
Under the Palmas decision, three important rules for
resolving island territorial disputes were decided:
Firstly, title based on contiguity has no standing in
international law.
Secondly, title by discovery is only an inchoate title.
Finally, if another sovereign begins to exercise continuous
and actual sovereignty, (and the arbitrator required that
the claim had to be open and public and with good title),
and the discoverer does not contest this claim, the claim by
the sovereign that exercises authority is greater than a title
based on mere discovery.

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 Thank You
&
Questions

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