Public International LawTerritorial SovereigntyAyushJhaAssistant Professor
Territorial SovereigntyMeaning of Territory“A State without territory is not possible”-Oppenhiem.State Territory is a space within which the State exercises its supreme and normally exclusive authority.The legal concepts of sovereignty and jurisdiction can be comprehended only in relation to territory.The centrality of territory in IL can be understood by looking at the rules of its inviolability.The change in ownership of territory has legal effects on the issues of sovereignty and jurisdiction upon the inhabitants.
Territorial sovereigntyMax Huber inIsland of Palmas Case-“Sovereignty in relation between States signifies independence. Independence in regard to a portion of globe is the right to exercise therein, to the exclusion of any other state, the functions of State”.It hasa positiveand a negative aspect.A State exercises its territorial sovereignty within its boundary.The right to territorial sovereignty enables a State to exercise the fullest measures of sovereignty powers over its landterritory.
Acquisition of TerritoryOriginal and Derivative modes.OccupationEstablishmentof sovereignty over a territory not under the authority of any other State (terra nullius).The occupation must be by state, must be effective, with intention to claim sovereignty.Eastern Greenland Case-Effective occupation requiresIntention or will to act as sovereign.Adequate exercise or display of sovereignty.Mere discovery doesn’t create territorial sovereignty unless significant activity is shown.Second requirement can be fulfilled by administering the affairs of the territoryvia authorities.
Examples:State A claims a fishing island in Indian Ocean as part of its territory because it is close to their shore. But the island is in occupation of state B for over a century even though there is no permanent population.State A discovers a new island and displays its flag there. Subsequently, State B occupies the island. After some years, State A wants to recover island from State B.
PrescriptionPrescription is a mode ofacquisition of aterritory which is subject to the sovereignty of anotherState,(notbeingterranullius) through peaceful exercise ofde factosovereignty over a long period of time.Requirements:The acquiring state must not have acquiesced to title of another state.lengthof time must beadequate.theexercise ofde factosovereignty must becontinuous, peaceful and uninterrupted.Possession must be in public.Frontiers Lands Case (Belgium v.Nehterlands), 1959.
AccretionAccretionis a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land.Noformal act or assertion on part of the acquiringState is required.Eg: Creationof islands in a rive mouth, the drying up or the change in the course of a boundary river, or the emerging of island after the eruption of an under-sea volcano.Incase of a drying or shifting of a boundaryriver-ifthe change is gradual and slight, the boundary may beshifted,ifthe change is violent and excessive, the boundary stays at the same point along the original riverbed.
AnnexationAnnexation is the extension of sovereignty over a territory by its inclusion into the State.It is resorted to in two circumstances:Conquest or subjugation by annexing State.‘virtual’ subordination to annexing state at the time of declaration of intent to annex.Conquest, by itself doesn’t grant title to the victorious State.Itis no longera legal mode. However,it does give the victor certain rightsunder IL relating to the occupied territory.
CessionIt isa transfer of sovereignty from one sovereign to another.Itrests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State.Itoccurs by means of an agreement between the ceding and the acquiring States.Cession of territory maybe:Voluntaryas a result of a purchase, an exchange, a gift, a voluntary merger,Madeunder compulsion as a result of a war or any use of force against the ceding State.ReBerubariUnion Case(1960)- cession amounts to transfer of sovereignty over a territory to by one State to another sovereign State, and this can be done in exercise of treaty making power.
Leases and ServitudesSovereignty is passed to the lessee state by the lessor state under a treaty for a certain duration.Ex- Panama Canal (US and Panama), Guantanamo Bay (US and Cuba).Servitudes are exceptional restrictions on the territorial sovereignty of one state to serve interests of another state.Ex- right to use ports or rivers in, or a right of way across, the concerned territory;Constantinople Convention 1888.Wimbledon Case(1923).UOI v.SukumarSenGupta(1990)Right to Passage over Indian Territory Case
Modes of loss of territoryDereliction- abandonment or relinquishment of sovereignty. Corresponds with occupation.Operations of nature- corresponds with accretion.PrescriptionCessionSubjugationSecession- a state may lose a part of territory either by revolt or peaceful means. Seceding parts become independent states.Grant of independence by imperial states.
Utipossidetis“As you possess”It is a Roman Law doctrine which was used to maintainstatus quoduring the pendency of a property dispute.In international law this doctrine has been used to ascertain the boundaries of the newlydecolonisedstates.According to the doctrine, the boundaries of the states must be ascertained on the basis of the demarcation of the administrative unit by the antecedent colonial power.In re Frontier Dispute (Burk. Faso/Mali), 1986-the doctrine wouldtake precedence in establishing borders given the paramount importance of‘stableborders in maintaining thepeace’,notwithstanding the importance of the principle ofself-determination.