Territorial Jurisdiction &

sovereignty

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State
Settled population
Definite territory
Capacity to enter into legal relations

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State territory
Essential element of statehood is the occupation of a
territorial area.
It includes geographical area of earth’s surface over
which supreme and exclusive sovereignty of a state
extends.
It not only includes the surface of earth, territorial
waters and air space over the territorial land and water,
subsoil and underneath.
Territory is a fundamental concept of international
law.
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Kelsen
Defined state territory as:
‘a space within which the acts of the state, and
specially its coercive acts, are allowed by general
international law to be carried out, a space within
which the acts of a state may legally be performed.’

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Sovereignty : Max Huber
Arbitrator in Island of Palmas Arbitration
‘sovereignty in the relation between states signifies
independence.
Independence in regard to a portion of the globe is the
right to exercise therein, to the exclusion of any other
state, the function of a State.’

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Acquisition of territory
Cession
Occupation
Annexation
Prescription
conquest
Accretion
Acquiescence, recognition and estoppel
Plebiscite.

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Modes of Acquisition
Cession: Transfer from one state to another, usually by
treaty.
May be voluntary by a treaty.
If any treaty is concluded by use of force or threat is void.
Violation of UN charter and A.52 of the Vienna Convention
of 1969.
Voluntary session – sale of Alaska by Russia to US in 1867.
Exchange of Heligoland for Zanzibar by Germany and
Great Britain in 1860.
Island of Palmas case – US-Holland-
All sovereign rights ceded – transfer of sovereignty.
Occupation
Occupation of terra nullius:
Never belonged to anyone, or
Abandoned (intentionally, not just through neglect)
 Occupied (with intent)when place under effective control
 Look at nature of territory
 Does anyone else claim it

Annexation – display of effective control and authority.

Occupation and annexation are based on an act of
effective apprehension of territory.

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Occupation
Eastern Greenland Case – PCIJ
Two elements required –
1. an intention or will to act as sovereign.
2. the adequate exercise or display of sovereignty.
Dispute by Norway and Denmark – Denmark proved
these criteria.
Physical assumption of control is necessary.
Minquiers and Ecrehos Case – ICJ – actual exercise of
state function.

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Continuity
Island of Palmas Arbitration:
Mere act of discovery by one state without more is not
sufficient to confer a title by occupation.
Continuous and peaceful display of authority can
confer title.
Theory of continuity.
Claim of North pole and South pole.

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Annexation
Two circumstances:
Where the territory annexed has been conquered or
subjugated by the annexing state.
Where the territory annexed is in a position of virtual
subordination to the annexing state at the time the
latter’s intention of annexation is declared.
Annexation of Korea by Japan in 1910.
By force against the UN charter, not recognised by
other states.

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Modes of Acquisition
Prescription
Immemorial exercise of sovereignty or de facto
exercise of sovereignty for a long period of time.
Belonged to another state
Control with intent
Probably requires other state to agree
Operations of Nature
Adjudication: mainly limited to drawing line
Conquest
Use of force legal or illegal.
A.2(4) of the UN Charter prohibits use of force against
any state.
Occupation doesn’t transfer sovereignty.
Conquest of Garmany by Allies in 1945.
S.C. resolution – inadmissibility of force for
acquisition of territory.
S.C. Reslution 662 – Iraqi annexation of Kuwait –
illegal.

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Accretion
Accretion – addition to a portion of territory.
New territory is added through natural causes.
Alluvial deposition
Sudden and abrupt transfer of soil.
River side depositions

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Modes of Acquisition
Conquest: An aggressor cannot acquire territory by
conquest [Stimson Doctrine]
How about the state attacked???
Does not apply to civil wars
Acquiescence, recognition, and Estoppel
Acquiescence requires express statement
Recognition by third parties
Estoppel requires detriment
Acquiescence
The common law doctrine of estoppel by
acquiescence is applied when one party gives legal
notice to a second party of a fact or claim, and the
second party fails to challenge or refute that claim
within a reasonable time. The second party is said to
have acquiesced to the claim, and is estopped from
later challenging it, or making a counterclaim. The
doctrine is similar to, and often applied with, estoppel
by laches.

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Modes of Acquisition
Political Arguments: evidence of presumption of
effective occupation
Geographical contiguity
Historical continuity
Self-determination
Minor Rights
Condominium: agree to joint sovereignty
Lease
Modes of Acquisition
Servitudes: territory belonging to one made to serve
the interests of another
Run with the land, change of sovereign do not affect
Loss of territorial sovereignty
Dereliction: abandonment of all rights
Revolt: cession of territory

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Sovereignty over air space
First World War: airspace over open sea and over
unappropriated territory was absolutely free.
A. 1 of the Paris Convention of 1919 for the Regulation
of aerial Navigation, whereby the parties recognised
that every state has complete and exclusive sovereignty
over the air space above its territory and territorial
waters.
 freedom of innocent passage
Havana Convention on Commercial Aviation - 1928

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Boundaries
Boundary is not only merely a line in a borderland.
Rann of Kutch Arbitration between India and Pakistan –
1965.
Pakistan claimed that Rann had always been a part of
Kutch territory.
India claimed effective authority.
India won most of the claims and the boundary was fixed
on the Northern edge of the Rann.
Read: The Rann of Kutch J. Gillis Wetter The American
Journal of International Law, Vol. 65, No. 2 (Apr., 1971), pp.
346-357.
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Rivers
Passing through one state.
More than one state.
Freedom of navigation:
At the time of peace only.
Countries through which the river passes have the right of
passage.
Freedom of passage is without any limitation.
Treaty of Paris – 1814
Vienna congress: 1815
Peace Treaties – 1919-1920.

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Rivers
1930 – League of Nations convention
1956 – Bangkok Convention
1960 – Geneva Convention
Lake Lanoux Arbitration – France – Spain
There was no duty on a riparian state under customary
international law to consult, or obtain the prior
agreement of a co-riparian, as a condition precedent of
its right to begin new river works, although in carrying
out the project it must take into account, an a
reasonable manner interest of co-reparian.
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RGSOIPL, IIT Kharagpur

Thank you

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