6.

State Territory and Territorial Sovereignty State Territory and Territorial Sovereignty As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of statehood. Without a territory, an entity cannot be a State.[1] The notion that a State occupies a definite portion of the earth within which it e ercises, sub!ect to the limitations of "nternational #aw, its e clusive authority to the e clusion of other States lies at the basis of "nternational #aw.[$] The e ercise of such a supreme authority by a State over its own territory is %nown in "nternational #aw as &territorial sovereignty'. (otably, the concept &territorial sovereignty' is confused with the concept &!urisdiction'. Some have used the two concepts interchangeably. )owever, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to e ercise its authority and !urisdiction over the territory. *urisdiction !ustifies competence to affect peoples, properties and events within a territory. +ecause &territorial sovereignty' and &!urisdiction' are two legal concepts connected to territory and can only be understood in relation to territory, therefore, in the following two sections &territorial sovereignty' and modes of ac,uiring territory are dealt with. While &!urisdiction' will be the sub!ect of the ne t chapter. Section 1: Territorial Sovereignty Sovereignty in regard to a territory is %nown as territorial sovereignty. Territorial Sovereignty is the right of a State to e ercise over its own territory, to the e clusion of any other States, the functions of a State. [-] "t has a positive and a negative aspect.[.] The first aspect relates to the e clusivity of the right of the State with regard to its own territory, while the second aspect refers to the obligation to protect the rights of other States. A State e ercises its territorial sovereignty within its boundary. +oundary is an imaginary line that delineates the territorial limit of a State.[/] +oundaries are of three dimensions.[0] They include the State land and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or la%es, or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts. +oth types have e,ual legal effects and usually based upon treaties or historical title. The sovereignty of a coastal State e tends, beyond its boundaries, over its contiguous 1one, over its continental shelf and over its e clusive economic 1one. 2oreover, the sovereignty of State whether coastal or land3loc%ed e tends over its national vessels. The sovereignty of a State e tends also to its national aircrafts. The right to territorial sovereignty enables a State to e ercise the fullest measures of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and ad!acent area. "n addition, it enables a State to e ercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its territory. 4orollary to the rights generated from territorial sovereignty, there are duties imposed upon a State. These duties involve the obligation to protect within its territory the rights of other States, together with the rights that each State may claim for its nationals in foreign territory. 2any treaties and conventions have been concluded to regulate State sovereignty over land, sea, airspace and outer space. 5ver airspace and outer space, there are the 16.. 4onvention on "nternational 4ivil Aviation 7the 4hicago 4onvention8,[9] the 160- Treaty +anning (uclear Weapon Tests in the Atmosphere, in 5uter Space and under Water, [:] and the 1609 Treaty on ;rinciples <overning the Activities in the = ploration and >se of 5uter Space including the 2oon and 5ther 4elestial +odies 7the 5uter Space Treaty8. [6] 5ver the sea, there is the 16:$ 4onvention on the #aw of the Sea,[1?] which replaced the 16/0 4onventions related to the Territorial Sea and the 4ontiguous @one, the )igh Seas, the 4ontinental Shelf, and Aishing and 4onservation of living Besources of the )igh Seas. "n Addition, there is the 16/6 Antarctica Treaty.[11]

Since the rights generated from the concept of territorial sovereignty can only be e ercised in relation to a territory, it is necessary to %now how a territory can be ac,uired. Section 2: Acquisition of Territory [12] The international rules related to territorial sovereignty are rooted in the Boman #aw provisions governing ownership and possession. "n addition, the classification of the different modes of ac,uiring territory is a direct descendant of the Boman rules dealing with property.[1-] Territory is the space within which the State e ercises sovereign authority. Title to territory is ac,uired either through the claim of land not previously owned 7terra nullius8 or through the transfer of title from one State to another.[1.] Title ac,uired in the first category is called original title, while in the second category is called derivative title. 2odes of original ac,uisition of territory include occupation, prescription and accretion. Cerivative modes include cession 7voluntary or forcible8, and con,uest and anne ation. All these modes are dealt with in the following. 718 Occupation 5ccupation is an original mode of ac,uisition by a State of a title to a territory. "t implies the establishment of sovereignty over a territory not under the authority of any other State 7 terra nullius8 whether newly discovered or abandoned by the State formerly in control 7unli%ely to occur8.[1/] Aor the title ac,uired through occupation to be final and valid under "nternational #aw, the presence and control of a State over the concerned territory must be effective.[10] =ffectiveness re,uires on the part of the 4laimant State two elementsD an intention or will to act as sovereign, and the ade,uate e ercise of sovereignty. "ntention may be inferred from all the facts, although sometimes it may be formally e pressed in official notifications to other States. Ade,uate e ercise of sovereignty must be peaceful, real, and continuous. This element of physical assumption may be manifested by an e plicit or symbolic act by legislative or administrative measures affecting the claimed territory, or by treaties with other States recogni1ing the sovereignty of the 4laimant State over the particular territory or demarcating boundaries. 5ccupation was often preceded by discovery that is the reali1ation of the e istence of a particular piece of land. "n the early period of =uropean discovery, in the Aifteenth and Si teenth 4enturies, the mere reali1ation or sighting was sufficient to constitute title to territory. As time passed, something more was re,uired and this too% the form of symbolic act of ta%ing possession, whether by raising of flags or by formal declarations. +y the =ighteenth 4entury, the effective control came to be re,uired together with discovery to constitute title to territory.[19] (2) Prescription ;rescription is a mode of establishing title to territory which is sub!ect to the sovereignty of another State 7not terra nullius8 through peaceful e ercise of de facto sovereignty over a long period of time.[1:] "t is the legitimi1ation of a doubtful title by the passage of time and the presumed ac,uiescence of the former sovereignty. "t differs from occupation. "t relates to territory which has previously been under the sovereignty of another State. )owever, both modes are similar since they re,uire evidence of sovereignty acts by a State over a period of time. A title by prescription to be valid under "nternational #aw, it is re,uired that the length of time must be ade,uate, and the public and peaceful e ercise of de facto sovereignty must be continuous. The ;ossession of 4laimant State must be public, in the sense that all interested States can be made aware of it. "t must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign. Such consent may be e press or implied from all the relevant circumstances. This means that protests of whatever means by the former sovereign may completely bloc% any claim of prescription. As the re,uirement of ade,uate length of time for possession is concerned, there is no consensus on this regard. Thus, the ade,uacy of the length of period would be decided on a case by case basis. All the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims will be ta%en into consideration.

7-8 Accretion Accretion is a geographical process by which new land is formed mainly through natural causes and becomes attached to e isting land.[16] = amples of such a process are the creation of 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 under3sea volcano. When the new land comes into being within the territory of a State, it forms part of its territory, and this causes no problem. )owever, in case of a drying or shifting of a boundary river, the general rule of "nternational #aw is that if the change is gradual and slight, the boundary may be shifted, but if the change is violent and e cessive, the boundary stays at the same point along the original riverbed.[$?] Where a new territory is added, mainly through natural causes, to territory already under the sovereignty of the ac,uiring State, the ac,uisition and title to this territory need no formal act or assertion on part of the ac,uiring State.[$1] 7.8 ession

4ession of territory is a transfer of sovereignty from one sovereign to another.[$$] "ts basis lies in the intention of the concerned parties to transfer sovereignty over the territory in ,uestion, and it rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State. "t occurs by means of an agreement between the ceding and the ac,uiring States. The cession may comprise a portion of the territory of the ceding State or the totality of its territory. "n the latter case, the ceding State disappears and merges into the ac,uiring State.[$-] 4ession of territory may be voluntary as a result of a purchase, an e change, a gift, a voluntary merger, or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of force against the ceding State.[$.] )istory provides a great number of e amples of cession.[$/] = amples of voluntary cession are the >nited StatesE purchase of Alas%a from Bussia in 1:09, the e change of a portion of +essarabia by Bomania to Bussia in e change for Cobrud!a in 1:9:, the AranceEs gift of Fenice to "taly in 1:00, and the voluntary merger of the Bepublic of Te as into the >nited States in 196/. = amples of cession as a result of a war are the cession to <ermany by Arance of the region of Alsace3 #orraine in 1:91, and the merger of Gorea into *apan in 161?. (!) onquest and Anne"ation

4on,uest is an act of defeating an opponent State and occupying all or part of its territory.[$0] Anne ation is the e tension of sovereignty over a territory by its inclusion into the State.[$9] >nder traditional "nternational #aw, con,uest did not of itself constitute a basis of title to the land. "t was merely a military occupation. "f followed by a formal anne ation of the con,uered territory, then it was called sub!ugation and could be considered a valid derivative title to territory. Accordingly, con,uest followed by anne ation constituted a mode to transfer the title of the con,uered territory to the con,ueror.[$:] #i%e compulsory cession, con,uest followed by anne ation would transfer territory by compulsion, but unli%e cession, it involved no agreement between the concerned parties. While the ac,uisition of territory through con,uest followed by anne ation was an accepted mode of ac,uiring title to territory under traditional "nternational #aw, it is no longer legal at modern times. The ac,uisition of territory through the use of force is outlawed by paragraph . of article $ of the 4harter of the >nited (ations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State. This same principle is reaffirmed in the 169? <eneral Assembly &Ceclaration on ;rinciples of "nternational #aw 4oncerning Ariendly Belations and 4o3operation among States in Accordance with the 4harter of the >nited (ations'.[$6] This Ceclaration adds that the territory of a State shall not be the ob!ect of ac,uisition by another State resulting from the threat or use of force, and that no territorial ac,uisition resulting from such act shall be recogni1ed as legal.[-?] Although today con,uest is not a legal mode of ac,uiring title to territory, it does give the victor certain rights under "nternational #aw as regards the occupied territory, such as rights of belligerent occupation.[-1] The territory remains the legal possession of the ousted sovereign because sovereignty does not pass by

con,uest to the occupying State, although it may pass in certain cases where the legal status of the territory occupied is in dispute prior to the con,uest. At present times, ac,uisition of territory following a war would re,uire further international action in addition to internal legislation to anne . Such further international action would be either a treaty of cession by the former sovereign or international recognition.[-$] 2odern e amples of anne ation following con,uest are "sraelEs anne ation of the <olan )eights and the =ast *erusalem, and "ra,Es anne ation of Guwait in 166?. "n case of the "ra,i anne ation, the Security 4ouncil adopted the resolution 00$ of 166? declaring that this anne ation &has no legal validity and is considered null and void', and called upon all States not to recogni1e this anne ation and to refrain from actions which might be interpreted as indirect recognition.[--] 4orresponding the modes of ac,uiring territory, there are modes of losing it. Territory may be lost by e press declaration or conduct such as a treaty of cession or acceptance of cession, by con,uest, by erosion or natural geographic activities, by prescription or by abandonment.[-.]