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. 10/3/2016 Asghar Ali Mayo 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. 10/3/2016 Asghar Ali Mayo 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.