UNIT- III

- STATES -
TERRITORY AND
JURISDICTION
 - An Overview -
STATE
Creation of Statehood B.) Jurisdiction
A.) The Concept of The Principle of
Territory in
Territorial
International Law
Jurisdiction
Territorial Sovereignty
Legal or Historic Title, Criminal Jurisdiction
Boundaries Extradition, Asylum
Self Determination Extra-territorial
Succession of States & Jurisdiction
Recognition of States Immunities from
Jurisdiction
 - STATES
the Dramatis
personae
Commencement of
the existence of
States- The Birth!!
 Creation of Statehood
Presupposition of two elements
(i) A central structure capable of
exercising effective control
over a human community living
in a given territory.
(ii) A Territory which does not or
no longer belongs to any other
sovereign state, with a
community whose members do
not owe allegiance to other
Legal Criteria of Statehood
a.) A PERMANENT POPULATION
 (a) Population
This criterion provides
the physical basis for an
organized community.
There is no specific
requirement of an
acceptable minimum.
 (b) Territory
Requirement of a territorial
base upon which to operate.
No precise need for defined
and settled boundaries.
What generally matters is the
presence of a stable
community within a certain
area.
Deutsche Continental Gas-
Gesellschaft v. Polish State
(1929)
In order to say that a state exists
and can be recognized as such
it is enough that [its] territory
has a sufficient consistency, even
though its boundaries have not
yet been accurately delimited.
 (c) Government
State being a political entity needs
some form of central control.
Requirement of some sort of
coherent political structure than the
necessity for a sophisticated
apparatus.
Many times, there is lack of effective
centralized control- it is then
balanced by significant international
recognition.
 Aaland Islands case

**Parliament
 Report of the
International Committee
of the Jurists
In the midst of revolution and anarchy,
certain elements essential to the
existence of a State, were lacking for a
fairly considerable period. Political and
social life was disorganized; the
authorities were not strong enough to
assert themselves; civil war was rife;
further, the Diet, the legality of which
had been disputed by a large section of
the people, had been dispersed by the
revolutionary party, and the
Government had been chased from the
Government: Some
Other dimensions
 Failed States
States in which institutions and
law and order have totally or
partially collapsed under the
pressure and amidst the
confusion of erupting violence,
yet which subsist as a ghostly
presence on the world map, are
now commonly referred to as
failed States.
 Three elements
characterizing failed
states
 (d) Capacity to enter into
relations with other states
Presence of Legal Capacity to enter into relatio
 Capacity to enter into
relations with other states
Austro-German Customs Union
Case
Art.88 Treaty of Saint-
Opinion of the Court
Therefore
French Indemnity of 1831
France compensation to the
US
Loss also suffered due to
Holland.
Is France responsible to pay on
behalf of Holland as well?

Is Holland an independent
sovereignty?
The political realities of Holland
The political realities of
Holland
Independence invokes two
important dimensions
Independence
 Achieving
Independence: Self
Determination
 Self-Determination

If independence is the decis

Self-Determination
Self determination- Some
preliminary
What
understanding
 The International legal
consciousness
Arts.1(2) & 55 of the UN Charter the p
Self-Determination- Application
Non-Governing Territories
 1.) Mandated Territories
Some of the German colonies and
other areas that were to be
administered by the allies under the
supervision of the League of Nations
was known as the mandate system.
Peoples inhabiting the mandated
territories would be allowed to
exercise a right of self-
determination.
 2.) Trust Territories
Leagues Mandate System

United Nations Trusteeship System

One of the challenging cases was the

question of South West Africa
(Namibia)
 Legal Consequences for States of the
continued Presence of
South Africa in Namibia (South-West
Africa)
The status of South-West Africa (Namibia),
a former German colony was administered
by South Africa.

South Africa created Bantustans based on

Apartheid.

The Court decided that South Africas

obligations under the mandate, in so far
as they related to the treatment of S.W.
Africa, had been owed to the League.
Termination of Mandate

In 1966, the G.A. terminated the

mandate.

After a lot of efforts, in March 1990

finally led to the independence of
Namibia on the basis of UN-
supervised elections held in
November 1989.
 3.) Non-Self Governing
Territories
Art.73 of the UN Charter provides:
Members of the United Nations which
have responsibilities for the
administration of territories whose peoples
have not yet attained a full measure of
self-government recognize the principle
that the interests of the inhabitants of
these territories are paramount, and
accept as a sacred trust the obligation to
promote to the utmost the well-being of
the inhabitants of these territories
G.A understanding of Art.73
 The Friendly Relations
Declaration, 1970
Principle of equal rights and
self-determination of peoples
includes the right of all peoples
freely to determine, without
external interference, their
political status and to every
state to respect this right in
accordance with the provisions
of the Charter.
 Means of achieving self
determination
Secession
Self-
determin
ation is
understo
od mainly
in the
colonial
context
Western Sahara Case,
1975
Questions before the Court
1.) Was Western Sahara (Rio de Oro
and Sakiet El Hamra) at the time of
colonisation by Spain, a territory
belonging to no one (terra nullius)?
If the answer to the above is in
negative,
2.) What were the legal ties between
this territory and the Kingdom of
Morocco and the Mauritanian entity?
1.) Question of Terra Nullius
The title was not original but
derivative.
At the time of colonization,
Western Sahara was inhabited by
peoples, which, if nomadic, were
socially and politically organized
in tribes and under chiefs
competent to represent them.
 2.) Moroccos claim to legal
ties
Morocco claimed ties of
sovereignty on the ground of
immemorial possession of the
territory.
Effective display of authority
over Western Sahara.
Moroccos Green March,
Nov.1975
Arrangement in Western Sahara
In 1976, Spain withdrew
from Western Sahara
MOROCCO
 On the right of Self-
Determination
Self determination is a part of
customary international law.
The subsequent development of
international law in regard to
non-self-governing territories as
enshrined in the UN Charter
made the principle of self-
determination applicable to all
of them.
 Therefore

Free association should be

the result of a free and
voluntary choice by the
Peoples of the territory
concerned expressed
through informed and
democratic processes.
Portugal v. Australia
East Timor Case
 East Timor Case
In 1975
East
Shared
Indonesia
At the
East Indonesia
Timor
an island
instance
Timor was
& objectedainvaded
Australia
of G.A with
thus
&
toSec. Eastthat
Portuguese
agreed
this Timor
Indonesia
Council,
solutioncolony
Referendum
East Timor sho
was
& revolution
FRETLIN- Revolution in
Indonesia
 The Court

The right of self-

determination as it
evolved from the Charter
and from the UN practice,
has an erga omnes
character.
 all Peoples
Higgins

Entire people of a state

All persons comprising distinctive

groupings on the basis of race,
ethnicity and perhaps religion
Consequences of
the right of self-
determination
 Creation of new States
The traditional test is effective
control.
If the movement could establish
permanent control over the territory
in question, then a new state could be
created.
A state established in violation of the
right of self-determination; is a nullity
in the eyes of international law.
Title to Territory
Wars of National Liberation
If the people of a particular territory
are regarded by international law as
possessing a legal right of self-
determination but the state
administering that territory refuses
to let them exercise that right, they
may need to fight a war of national
liberation in order to achieve self-
determination in practice.
 To conclude
Self-Determination is a Right
(strictly colonial in character)
based on a territorial basis.

The word peoples means all

peoples in the territory and not
a minority section.