State and teritory 2-continuation.ppt

8/14/2019 State and teritory 2-continuation.ppt

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States and Territory 2


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References Chapter 8, International Law. A South African Perspective,

John Dugard Chapter 5, Cases and Materials on International Law, DJ

Harris

Chapter 9, International Law, Malcolm N. Shaw Western Sahara Advisory Opinion-16 October 1975 Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory Advisory Opinion-9 July 2004 Public International Law, Robert M Maclean Martin Dixon, Textbook on International Law, 6 th Edition


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The modes of acquisition of territory

Occupation Accretion

Cession Conquest Prescription Estoppel


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Introduction Territory occupies an important place in the

international law The extent of a states sovereignty or jurisdiction

will be limited to the extent of its territory Territorial sovereignty was described in the Island

of Palmas Arbitration (1928) as being: the rightto exercise therein, to the exclusion of any otherState, the functions of a Sovereign

The territory of a State comprises all land areas,

including subterranean areas, waters, includingnational rivers, lakes, the territorial seaappurtenant to the land and the sea bed andsubsoil of the territorial sea and the airspace over

the land and the territorial sea.


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Five modesof

acquisitionof territories

Prescription

Cession

Conquest

AccretionOccupation


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Intertemporal Law

Titles are to be judged by the law in force at thetime the title was first asserted and not by thelaw of today. This is the principle of intertemporal

law In the Island of Palmas case, it was decided that

a juridical fact must be appreciated in the light

of the law contemporary with it, and not of thelaw in force at the time when a dispute in regardto it arises or falls to be settled


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Uti Possidetis(as you possess, so may you possess)

Colonial boundaries, however arbitrary drawn by theimperial powers, are to be respected

States emerging from decolonization shallpresumptively inherit the colonial administrativeborders that they held at the time of independence

A principle first developed among the Spanishcolonies of Latin America, provides that the oldadministration boundaries would be recognised asthe new borders of the independent states

Adopted by the Organisation of the African Unitywhich provides that all states should respect colonialboundary


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Practice of states during the dissolution of theformer Soviet Union, Yugoslavia and

CzechoslovakiaThe function of this principle is to preservethe territorial integrity of newly independentstates

Case: Frontier Dispute-Burkina Faso v Mali(1986)

Case Concerning Land, Island and MaritimeFrontier Disputes (1992)


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critical date

The display of sovereignty must exist up thecritical date

Matters arising after that date cannot betaken into account in deciding title to theterritory

time stops running for the purpose to assessclaim made by parties

Unless the acts are normal continuation of aprior acts


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Sovereignty over Pedra Branca/Pulau Batu Puteh,Middle Rocks and South Ledge

The Court recalls that in the context of a disputerelated to sovereignty over land, the date uponwhich the dispute crystallized is of significance. In theview of the Court, it was on 14 February 1980, thetime of Singapores protest in response to Malaysias

publication of the 1979 map, that the dispute as tosovereignty over Pedra Branca/Pulau Batu Putehcrystallized. With regard to sovereignty over MiddleRocks and South Ledge, the Court finds that the

dispute crystallized on 6 February 1993, whenSingapore referred to these maritime features in thecontext of its claim to Pedra Branca/Pulau BatuPuteh during bilateral discussions between theParties


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Occupation Original mode of acquisition whereby a State

acquires sovereignty over a terra nullius Territory is occupied when it is placed under

effective control In the legal Status of Eastern Greenland Case

(1933)a claim to sovereignty based not upon some

particular act or title such as a treaty of cession

but merely upon a continued display of authority,involves two elements each of which must beshown to exist: the intention and will to act assovereign; and some actual exercise or display ofsuch authority.


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The intention to act as sovereign:-a. The activity must be that of the State or its

authorised agent and not that of a mereindividualb. the activity must not be exercised by consent of

another State The activity taken as a whole must have no

other explanation but the assumption of pre-existing sovereignty. State authority should not

necessarily be displayed in fact at everymoment on every point of a territory, as shownin the Island of Palmas Case

(Netherlands/United States of America).


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Effective exercise or continued display ofauthority

o Possession must give the occupying Statecontrol over the territory

o There must be some display of State activity

consistent with sovereigntyo Case: Island of Palmas Case: US v Holland

(1928)

The continuous and peaceful display ofterritorial sovereignty (peaceful in relation toother States) is as good as title.


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Case: Clipperton Island Arbitration: France vMexico (1931)

the actual and not the nominal, taking ofpossession is a necessary condition ofoccupation

o Taking of possession consisted of an exerciseof State Authority sufficient in thecircumstances of the territory concerned(inaccessible and uninhabited nature)

Case: Eastern Greenland (1933)a. The absence, until 1931 of any competing

claim by another state


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b. The character of the country- the arctic andinaccessible nature of the uncolonised parts

of the territory where it would beunreasonable to demand a continuousexercise of authority.

c. The numerous Danish legislative andadministrative acts purporting to apply to thewhole of Greenland.

d. Treaties with other States acquiescing to theDanish claim to the territorye. The granting of trade monopoly and granting

of trading, mining and other concessions


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Case: Minquiers and Erechos Islands (1953)

attaches, in particular, probative value to the

acts which relate to the exercise of jurisdictionand local administration and to legislation

Case: Rann of Kutch Arbitration: India v

Pakistan (1968)grazing and other economic activities by privatelandholders may provide acceptable evidence oftitle


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Prescription Prescription is the acquisition of territory

which belongs to another State Long possession and the exercise of effective

control may give rise to a valid title

the acquisition of territorial sovereigntythrough continuous and undisturbed exerciseof sovereignty over it during such a period asis necessary to create, under the influence ofhistorical development, the general convictionthat the present condition of things is inconformity with international order


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The requirements for acquisitive prescription There must be a display of State authority/ Sovereign

activities-(Sovereignty over Pulau Ligitan andSepadan case)

The possession must be public and persist Possession must be peaceful and uninterrupted (eg.

protest)o Effective protests prevent acquisition of title by

prescriptiono

Where a state fails to protest over the assertion ofsovereignty by another state in a territory that itclaims to be its own, it is unlikely to succeed inpersuading the court that it has not abandoned its

claim to the disputed territory


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o In the Island of Palmas Case, Spain failed toprotest at the Netherlands assertion of

authority over the island and was therebyfound to have acquiesced in the rival claim

o A state that fails to protest over the exercise of

sovereignty by its rival remains silent at itsperil-Falklands/Malvinas dispute whereArgentina has protested sporadically andirregularly over Britains occupation of theislands.


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o In the Pulau Batu Puteh Case, the Courtconcludes, especially by reference to theconduct of Singapore and its predecessors titre de souverain, taken together with theconduct of Malaysia and its predecessorsincluding their failure to respond to theconduct of Singapore and its predecessors,that by 1980 sovereignty over PedraBranca/Pulau Batu Puteh had passed to

Singapore.o In the Chamizal Arbitration (1911), a claim

made by USA of an area of Mexican territory

failed due to protests made by Mexico


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Case: Legal Status of Eastern Greenland

[i]n most of the cases involving claims to territorialsovereignty . . . there have been two competingclaims to the sovereignty, in the case before it upto 1931 there was no claim by any Power other thanDenmark to the sovereignty over Greenland.

o The PCIJ therefore concluded that, considering theinaccessible character of the uncolonized parts ofthe country, the King of Denmark and Norwaydisplayed . . .in 1721 to 1814 his authority to an

extent sufficient to give his country a valid claim tosovereignty, and that his rights over Greenland werenot limited to the colonized area.


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Accretion

A state may acquire sovereignty over territoryas a result of natural forces, as occurs when avolcanic island rises within a states territorialsea or the delta of a river mouth expands


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Cession The transfer by treaty of sovereignty over the

territory of one state to another state Before 1945 territory was frequently ceded

after a war by the vanquished state to thevictorious state-eg. The Cape of Good Hopewas ceded by the Netherlands to Britain in theConvention of London at the conclusion of theNapoleonic wars

Cession of territory has also resulted from agift, or sale-in 1866, Austria ceded Venice toFrance as a gift, France ceded Venice to Italy,

Russias sale of Alaska to the US in 1867


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If there were defects in the ceding States title,the purported cession from the previous

sovereign cannot cure the defect-Island ofPalmas Case In order to be valid, there should be both a

treaty and an actual transfer of possession-Iloilo Case Today, restraints are placed on the cession of

territory by the prohibition on the use of forceand the right of self determination

C t


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Conquest Before the prohibition on the use of force,

conquest, annexation, and subjugation were

accepted methods of acquiring territory Necessary to demonstrate both animus-the

intention to annex the territory (the allies

disclaimed the intention to annexed German in1945)-and the corpus-the physical control of theterritory

A state did not acquire territory by conquest if itpurported to annex territory during the course ofwar

The acquisition of territory by conquest was notlawful until hostilities had come to an end


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In the absence of peace treaty evidence wasnecessary that all resistance by the enemy Stateand by its allies had ceased so that there were nolonger forces in the field to free the occupiedterritory from the control of the conqueringpower-German annexation of Poland, annexation

of the Orange Free State by British in 1900 In 1928, war was outlawed by the Kellogg- Briand

Pact

UN Charter prohibited the use of force ininternational relations against territorial integrityor political independence of another state


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Modern customary international law recognizes asimilar prohibition

Territory can no longer be acquired by the use offorce i.e conquest

The GA Declaration on Principles of International LawConcerning Friendly Relations and Co-operation

among States in Accordance with the Charter of UNprovides that the territory of a state shall not be theobject of acquisition by another state resulting fromthe threat or use of force. No territorial acquisition

resulting from the threat or use of force shall berecognized as legal

The invasion of Goa 1961, the invasion of Kuwait1990, annexation of East Jerusalem and the GolanHeghts


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Estoppel A state which had recognised another States

title to particular territory would be estoppedfrom denying the other States title if theother State had taken some action in relianceof the recognition

In the Temple of Preah Vihear case,concerning a border dispute betweenCambodia and Thailand, the evidence showedthat Thailand in its past conduct had acceptedthat the Temple fell within Cambodia, with theresult that it was estopped from later

reasserting its claim to that area


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Antarctica


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A number of states have made claims to theexclusive sovereignty over different parts of

Antarctica (Argentina, Australia, Chile, France,New Zealand, Norway and UK)

However, these claims are disputed by rival

contenders and not being recognized by USand Russia

Antarctica should be used for peaceful

scientific research Antarctica is subjected to rigorous

conservation measures resulted in the 1959

Antarctica Treaty


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Art. 4 of the Antarctica Treaty freezes allterritorial claim

no acts or activities taking place while the present treaty is in force shall constitute abasis for asserting, supporting or denying a

claim to territorial sovereignty in Antarctica orcreate any rights of sovereignty in Antarctica.No new claim, or enlargement of an existingclaim, to territorial integrity in Antarctica shallbe asserted while the present treaty is in force.


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The treaty provides for the demilitarization ofAntarctica and envisages that the continent

will be used for peaceful scientific research,carried out in a spirit of internationalcooperation with strict regard to ecologicalprotection

In 1991 the Antarctic Treaty members adoptedthe The 1991 Protocol on EnvironmentalProtection to the Antarctic Treaty whichprohibits any activity relating to mineralresources other than scientific research

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