TERRITORIAL SOVEREIGNITY UNDER INTERNATIONAL LAW

 Introduction

The occupation of territory and the exclusive exercise of jurisdiction therein is one of the essential elements of state sovereignty.

Territorial sovereignty was described in the Island of Palmas Arbitration: The Netherlands v US (1928) 2 RIAA 829 as being 'the right to exercise therein, to the exclusion of any other state, the functions of a sovereign'.

The concept of territory

The territory of a state is the foundation of its factual existence and the basis for the exercise of its legal powers. The territory of a state comprises all land areas, including subterranean areas, waters, including national rivers, lakes, the territorial sea appurtenant to the land and the sea-bed and subsoil of the territorial sea and the airspace over the land and the territorial sea. Territorial sovereignty may be exercised over various geographical features analogous to land territory including islands, islets, rocks and reefs.

Other forms of territorial sovereignty

It is sometimes said that territorial sovereignty is indivisible, but there have been numerous instances in international practice both of division of sovereignty and of distribution of the components of sovereignty.

Titular, residual and distributed sovereignty

No territory, unless it be terra nullius, is without sovereignty and some entity must be isolated as sovereign. The entity which has the ultimate capacity of disposing of the territory may be said to possess 'titular' or 'residual' sovereignty: the entity which exercises plenary power over the territory but lacks the capacity of ultimate disposal may be said to possess 'effective' sovereignty. The two together, residual and effective powers, make up the totality of sovereignty.

Similarly, two or more entities may exercise divided functions, and this may give rise to either dual, divided or distributed sovereignty depending upon whether the actors must act jointly or may act separately within defined spheres of competence.

Residual sovereignty

Oppenheim describes this form of sovereignty as 'nominal'. It occurs when a grantor cedes the administrative competence of a territory to a foreign power by treaty during a time of peace. Thus Japan placed the Ryukya Islands under US administration under art 3 of the Treaty of Peace 1951, while retaining residual sovereignty in the islands: R Jennings and A Watts (eds), Oppenheim's International Law, 9th ed, vol I, Harlow: Longman, 1992, pp567 and 568.

Condominium

According to Oppenheim, condominium occurs when two or more states, under the joint tenancy, exercise sovereignty conjointly over a piece of territory and its inhabitants. The best example was the Anglo-French Condominium of the New Hebrides constituted in 1906. This arrangement was said to create 'a region of joint influence ... each of the two Powers retaining sovereignty over its nationals ... and neither exercising a separate authority over the group'.

Indeterminate sovereignty

It may be that a piece of territory which is not a res nullius nevertheless has no determinate sovereign. This would apply for instance in a situation where a sovereign has renounced his sovereignty and the coming into being of a new sovereign or an interregnum is postponed until a certain condition is fulfilled, or there is a dispute as to who the new sovereign is. An example is that of Japan's renunciation of any right to Formosa (now Taiwan) and the subsequent claims of both the Communist regime which controlled mainland China and the Nationalist government installed in Taiwan to represent the whole of China, including Taiwan. Neither government has ever submitted that Taiwan was a separate state. As a result Taiwan appears to be a nonstate territorial entity which is de jure part of China but under separate administration.

Terminable and reversionary sovereignty

Territorial sovereignty may be defeasible by operation of law, for example, by reversion on the failure of a condition under which sovereignty was transferred. This situation could come into being in Monaco where independence is subject to there being no vacancy in the Crown of Monaco. Otherwise Monaco will revert to France.

The notion of reversionary sovereignty was applicable for example to the mandate system established under the League of Nations whereby the principal powers who placed their territories under mandate retained a reversionary interest in the territory until it attained independence.

Other territorial regimes

In addition to territorial sovereignty three other territorial regimes are recognised by international law.

1. Territory not subject to the sovereignty of any state or states and which possesses a status of its own (eg mandate and trust territories).
2. The res nullius, being land legally susceptible to acquisition by states but not as yet placed under territorial sovereignty.
3. The res communis, consisting of the high seas and also outer space, which is not capable of being placed under the sovereignty of any state.

 The acquisition of territory

Traditional international law distinguishes several modes by which sovereignty can be acquired over territory. They were originally based on Roman law rules regarding acquisition of property. The Roman law analogy was well suited to the system of absolute monarchy prevalent in Europe during the formative years of European expansion in the sixteenth and seventeenth centuries where the Prince was regarded as 'owner' of his state's territory. However, with the decline of private law notions in the eighteenth and nineteenth centuries the analogy with the Roman law rules became less distinct and today, under current international law, it can be argued that such an analogy serves no useful purpose and indeed gives a distorted view of current practice.

The five modes by which territory has traditionally said to have been acquired are: occupation; prescription; accretion; cession; and conquest. These modes are not, however, exclusive or exhaustive. In practice it is unlikely that any single mode would be evident in isolation. The modes are interrelated and in complex cases may be used in conjunction to the extent that no one mode appears dominant. In addition, these modes do not adequately describe the acquisition of territory by newly independent states exercising a right to self-determination. It must also be borne in mind that the traditional modes of acquisition of territory found a place in legal reasoning during the formative stages of international law. In a number of cases it will, therefore, still be evident that these modes are based on a Western perception of the status of the territory prior to acquisition. As is illustrated in more detail below, acquisition of territory by occupation, for example, is based on the fundamental perception that the territory was previously terra nullius, ie not under the sovereignty of any state. By terra nullius it was, however, implied that the territory was not under the sovereignty of any other recognised state, ie one of the small club of state entities to which international law was deemed to have application. It would not defeat a claim for acquisition by occupation to show that the territory in question was inhabited.

The historical origins of the traditional modes of acquisition of territory thus makes it important to examine disputed claims to sovereignty in the light, also, of contemporary principles of international law.

Occupation

This is an original mode of acquisition whereby a state acquires sovereignty over a terra nullius (ie territory not under the sovereignty of any state). The territory may be new land having previously never belonged to any state. It may have been abandoned by the former sovereign or it may have been occupied by a people lacking the social and political organisation necessary to constitute a sovereign state under international law. For example, the existence of the Australian aborigines notwithstanding, Australia was regarded as terra nullius at the time of its original settlement by the UK.

What constitutes occupation?

Territory is occupied when it is placed under effective control which is a relative concept varying according to the nature of the territory concerned. For instance, it will be much easier to establish effective control over territory which is uninhabited than over territory which is inhabited albeit by a primitive people.

In the Legal Status of Eastern Greenland Case: Norway v Denmark (1933) PCIJ Rep Ser A/B No 53 the Permanent Court of Justice said:

'... 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 be shown to exist: the intention and will to act as Sovereign; and some actual exercise or display of such authority.'

These two elements are examined below.

The intention and will to act as sovereign

Brownlie argues that the intention and will to act as sovereign is a subjective criterion involving the imputation of a state of mind involving a legal assessment and judgment to those ordering various state activities. He says, therefore, that this approach expects too much and is unrealistic in seeking a particular and coherent intention in a mass of activity by numerous individuals.

This requirement of animus possidendi also leads to problems where there are competing acts of sovereignty. Today all habitable areas of the earth fall under the dominion of some state and, therefore, the importance of acquisition by occupation lies not in the acquisition of new territory but the solving of boundary disputes and competing claims based on past occupation. So in cases where there are competing acts of sovereignty the subjective requirement of the animus possidendi of the competing states may be inconclusive. In such cases the determination of the matter relies on objective elements of state activity, ie the actual manifestations of sovereignty.

The intention to act as sovereign as a requirement of effective occupation is important in three respects.

1. The activity must be that of the state or its authorised agent and not that of a mere individual.
2. The activity must not be exercised by consent of another state.
3. The activity taken as a whole must have no other explanation but the assumption of pre-existing sovereignty.

Effective exercise or continued display of authority

Possession must give the occupying state control over the territory concerned and there must be some display of state activity consistent with sovereignty. The traditional view is one of occupation in terms of settlement and close physical possession. However, under current international law what constitutes the necessary degree of control will vary with the circumstances of the case.

In the Island of Palmas Arbitration: The Netherlands v US (1928) 2 RIAA 829 the US claimed the Island of Palmas which lies half-way between the Philippines and what was then the Dutch East Indies. The US founded its title upon the 1898 Treaty of Paris by which Spain ceded the Philippine Islands to the US. In this Treaty the island of Palmas was described as forming part of the Philippines. However, the island was actually under Dutch control. The issue was therefore whether sovereignty over the island belonged to Spain at the time she purported to cede the island to the US.

The arbitrator held that even if Spain did originally have sovereignty over the island the Dutch had administered it since the early eighteenth century, thereby supplanting Spain as the sovereign. He stated that:

'... the continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is as good as a title ... Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas.'

The learned arbitrator found ample expression of the Dutch arguments based upon peaceful and continuous display of state authority over the island. These included the close link existing since 1677 between the people of the island and The Netherlands via the Dutch East India Company and the unchallenged peaceful display of Dutch sovereignty from at least 1700 to the outbreak of the present dispute in 1906.

In Clipperton Island Arbitration: France v Mexico (1932) 26 AJIL 390 the arbitrator stated that 'the actual and not the nominal, taking of possession is a necessary condition of occupation', and the taking of possession consisted of an exercise of state authority sufficient in the circumstances of the territory concerned, ie the inaccessible and uninhabited nature of the island. So that in the particular case an offshore geographical survey of the uninhabited island, a landing by a small shore party, followed by a declaration of sovereignty published in a Honolulu journal were held to be sufficient to support the French claim.

In the Legal Status of Eastern Greenland Case (above) the dispute arose out of the action of Norway in proclaiming its occupation of parts of East Greenland in 1931. Denmark argued that Danish sovereignty extended to the whole of Greenland. On the evidence submitted the Court was satisfied that Denmark's intention to claim title to the whole of Greenland was established, at least after 1721. It was, therefore, necessary to next discover some actual exercise or display of authority by Denmark over the disputed territory. The following factors were submitted in evidence.

1.    The absence, until 1931, of any competing claim by another state.

2.    The character of the country - the arctic and inaccessible nature of the uncolonised parts of the territory where it would be unreasonable to demand a continuous exercise of authority.

3.    The numerous Danish legislative and administrative acts purporting to apply to the whole of Greenland.

4.    Treaties with other states acquiescing to the Danish claim to the territory.

5.    The granting of a trade monopoly and the granting of trading, mining and other concessions.

6.     

The Court held that this pattern of activity between 1721 and 1931 was sufficient to establish Danish title to the whole of the territory.

An example of this more modern and practical approach to occupation was provided by the Anglo-French dispute involving the Minquiers and Ecrehos Islands Case: France v UK (1953) ICJ Rep 47. In appraising the relative strength of the opposing claims to sovereignty over the Ecrehos the Court stated that it 'attaches, in particular, probative value to the acts which relate to the exercise of jurisdiction and local administration and to legislation'. The Court referred to the exercise of criminal jurisdiction, the holding of inquests, the collection of taxes and to a British Treasury Warrant of 1875 including the 'Ecrehos Rocks' within the Port of Jersey.

A further example of the development of this approach is provided by the Rann of Kutch Arbitration: India v Pakistan (1968) 7 ILM 633. In the case of a traditional agricultural economy the tribunal was able to concede that grazing and other economic activities by private landholders may provide acceptable evidence of title.

The critical date

Bound up with the issue of the continuous display of authority is the question of the date at which sovereignty comes to be assessed. This 'critical date' is the date beyond which further evidence of the exercise of sovereign authority will not be allowed.

This judicial technique is important for two reasons. First, it establishes a point beyond which the parties will not be called upon to provide evidence of authority. Particularly in cases of uninhabited or sparsely inhabited territories it would make little sense to require that the display of authority be constantly in evidence. Second, in the case of disputed territories where the dispute arises in respect of the initial circumstances of acquisition rather than the display of authority thereafter, the critical date will be important in determining which factors are to be taken into account by the court or tribunal. In the Taba Arbitration (1988) 80 ILR 226, for example, involving a boundary dispute between Egypt and Israel in the area of the Sinai along the Gulf of Aqaba, the Tribunal determined that '29 September 1923, the date of the formal entry into force of the Mandate, is the appropriate date in the circumstances'.

While the critical date will invariably be apparent from the facts of the case, its determination by the court or tribunal, particularly in the face of conflicting evidence from the parties, may be of great significance to the merits of dispute. The choice of one or other date may, for example, preclude a party from adducing particular evidence or may alter the case from one of occupation to one of prescription. The choice of the critical date is thus a useful practical tool available to the court to restrict or broaden the scope of the argument.

A state may ratify an act by one of its nationals purporting to appropriate territory on its behalf. The activities of chartered companies and corporations to which powers of acquisition and government may have been delegated by the state will also be regarded as state activity in relation to the acquisition of territory,

7.4 Acquisitive prescription

Prescription

Like occupation this is based on effective control over territory, but whereas occupation is acquisition of terra nullius, prescription is the acquisition of territory which belongs to another state.

Oppenheim describes prescription as:

'The acquisition of territorial sovereignty through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create, under the influence of historical development, the general conviction that the present condition of things is in conformity with international order': R Jennings and A Watts (eds), Oppetiheim's International Law, 9th ed, vol I, Harlow: Longman, 1992, p706.

According to Brownlie:

'The essence of prescription is the removal of defects in a putative title arising from usurpation of another's sovereignty by the consent and acquiescence of the former sovereign': Principles of PublicInternational Lam, 5th ed, Oxford: Oxford University Press, 1998, pl51.

Generally, however, prescription as to title to territory is ill-defined and indeed some writers deny it recognition altogether. Learned writers have, however, described three categories of situations in which the doctrine of prescription may operate: immemorial possession; competing acts of sovereignty; cases of acquiescence.

Immemorial possession

This is the presumption of a legal title in cases where the original basis of title is uncertain. It has been argued, however, that this cannot be a true case of prescription since the origin of the possession is unknown.

Competing acts of sovereignty

In practice the difference between occupation and prescription in claims based upon the nominal exercise of sovereignty may be impossible to ascertain. The very point at issue may be whether the territory was terra nullius or whether it was subject to previous sovereignty. In the Island of Palmas Arbitration (above), for example, the court did not make clear whether the island was under Spanish sovereignty before the Dutch began to exercise control.

When faced with competing claims, international tribunals often decide in favour of the state which can prove a greater degree of effective control over the disputed territory, without basing their judgment on any specific mode of acquisition. Again, therefore, in such cases references to prescription may be misleading.

Acquiescence

A combination of the passage of time and the implied acquiescence of the alleged dispossessed sovereign are the basis of prescriptive rights.

The four requirements for acquisitive prescription

1.    Possession must be exercised a titre de soverain. There must be a display of state authority and the absence of any recognition of sovereignty in another state.

2.    Possession must be peaceful and uninterrupted. What conduct is sufficient to prevent possession from being peaceful and uninterrupted? Any conduct indicating a lack of acquiescence, eg protest. Effective protests prevent acquisition of title by prescription.

In the Chamizal Arbitration: US v Mexico (1911) 5 AJIL 782 the US laid claim to an area of Mexican territory which had become joined to US territory by the movement of the Rio Grande southwards, inter alia, on the ground of uninterrupted possession. The claim failed because Mexico had made a number of protests to the US, and indeed as a result of the protests a convention had been signed in an attempt to settle 'the rights of the two nations with regard to the changes brought about by the action of the waters of the Rio Grande'. Therefore in the opinion of the commissioners, diplomatic protests by Mexico prevented title arising.

However, it is doubtful whether diplomatic protests alone are sufficient to preserve the rights of a dispossessed sovereign. There must be some serious expression of protest, eg the severing of diplomatic relations or the imposition of sanctions as a retaliation. The matter should be raised before the United Nations and reinforced by a bona fide suggestion that the dispute be submitted to arbitration or judicial settlement.

In the Minquiers and Ecrehos Islands Case (above) the UK argued that French protests against British legislation applying to the disputed islands were ineffective, inter alia, on the ground that they should have been reinforced by pressure to have the matter submitted for determination by an international tribunal.

This will be particularly relevant where the parties are bound by treaty providing for the settlement of their legal disputes by the Permanent Court of Arbitration.

However, while some jurists do regard protest as merely effecting a postponement for a reasonable period of the process of prescription while advantage is taken of the available machinery for the settlement of international disputes, this approach can be criticised. Should failure to resort to certain organs be penalised by loss of territorial rights? Is it proper to demand all territorial disputes to be referred to international arbitration? Should procedural requirements be introduced into the concept of acquiescence?

3.    The possession must be public. If there is to be acquiescence then there must bepublicity.

4.    The possession must persist. The effective control necessary to establish title by prescription must last for a longer period of time than the effective control which is necessary in cases of occupation. Unlike the situation under municipal law there is no fixed period in international law. The length of time required, therefore, is a matter of fact depending on the particular case.

Historical consolidation

Whatever limitation may exist in cases of adverse possession there will come a time when there will be created a belief that however wrongful the original taking, or whatever protests have been made, the present condition of things should not be disturbed.

The doctrine was first expressed in the Anglo-Norwegian Fisheries Case: UK v Norway (1951) ICJ Rep 116 with reference to the Norwegian decrees which had the effect of extending the area of internal waters through the use of straight baselines as the base points for the delimitation of the territorial sea. The exercise of sovereignty claimed by Norway was, therefore, over res communis and, therefore, general acquiescence of all foreign states was necessary.

The Court commented:

'Since ... these ... constitute ... the application of a well defined and uniform system, it is indeed this system itself which would reap the benefit of general toleration, the basis of an historic consolidation which would make it enforceable as against all states.'

De Visscher cites the decision as an example of the 'fundamental interest of the stability of territorial situations from the point of view of order and peace'.

According to De Visscher's doctrine, consolidation differs from prescription, occupation and recognition:

'... consolidation differs from acquisitive prescription ... in the fact that it can apply to territories that could not be proved to have belonged to another state. It differs from occupation in that it can be admitted in relation to certain parts of the sea as well as of land. Finally, it is distinguished from international recognition ... by the fact that it can be

held to be accomplished ... by a sufficiently prolonged absence of opposition either, in the case of land, on the part of states interested in disputing possession or, in maritime waters, on the part of the generality of states.'

In addition, historic consolidation also takes cognisance of other special factors including economic interests and resources.

Criticisms of the doctrine of consolidation

Jennings points out that, however important consolidating factors might be, it is still the fact of possession which is the foundation of the process of consolidation. The process cannot begin until actual possession is enjoyed and this is a necessary prerequisite in order to prevent evidence of an alleged political right or claim to have title transferred, being adduced as the foundation of a legal title.

 Accretion

A state has the exclusive right of sovereignty over any additions made to its territory as a result of silting or other deposits or resulting from the formation of islands within its territorial waters. Although not of great importance it can be of significance where a state boundary follows the course of a river. Where a boundary river undergoes a sudden change of course (avulsion) this will not change the boundary line which will remain usually the centre line of the former main channel.

In the Chamizal Arbitration (above) the question arose as to which state had title to the tract of land between the old and the new river beds. The boundary commission held that the part of the tract that had occurred by accretion belonged to the US, ie the US had acquired title by accretion. That part of the land that had resulted from a flood, in contrast, remained with Mexico.

In Louisiana v Mississippi (1940) 282 US 458 the United states Supreme Court applied international law principles to a boundary dispute between the two federal states. The Court held that the gradual erosion of soil from the Mississippi bank and its deposit on the Louisiana bank between 1823 and 1912 passed title to Louisiana.

But when the river suddenly changed course in 1913 across the accretion of the previous 90 years this did not divest Louisiana of the territory already acquired. This change was an avulsion and therefore the pre-1913 boundary remained.

Cession

This is the transfer of territory, usually by treaty, from one state to another, the treaty forming the legal basis of sovereignty. It may be either gratuitous or for some consideration, eg the sale to the US by Denmark of the Danish West Indies in 1916.

Cession is an example of a derivative title. If there were defects in the ceding state's title, the purported cession from the previous sovereign cannot cure the defect.

In the Island of Palmas Arbitration (above) the US claimed that by the Treaty of Paris 1898 it acquired title to the island of Palmas from Spain. However, the Arbitrator found that at the time of the purported transfer of the island in 1898 sovereignty over the island lay not with Spain but with The Netherlands. Spain could not transfer more rights than she herself possessed. Therefore since Spain had no title to the island in 1898, the US could not acquire title from Spain.

In order to effect a valid cession there should normally be both a treaty and an actual transfer of possession: Iloilo Case (1925) 4 RIAA 158. The Treaty of Paris, signed on 10 December 1898, provided that on exchange of ratifications, Spain should evacuate the Philippines in favour of the US. However, on 24 December local insurgents forced the Spanish to withdraw and it was not until 10 February that American troops captured Iloilo from the insurgents. On the following day the insurgents set fire to the town damaging property of British subjects. The British- American tribunal hearing claims for damaged property held that as the treaty did not take effect until ratification on 11 April, the transfer of de jure sovereignty to the US, and its resulting obligations, did not commence until that date.

There is, however, no need for a transfer of possession if the state to which the territory is ceded is already in possession. Similarly, in cases such as Lombard)- which was ceded by Austria to France in 1860 and then immediately retroceded by France to Italy, there was no requirement for France to actually enter into possession.

 Conquest

Under traditional international law conquest was recognised as a means of acquiring territory even in the absence of a treaty of cession, but the acquisition of territory by conquest was not lawful until hostilities had come to an end. Therefore, in the absence of a peace treaty evidence was necessary that all resistance by the enemy state and by its allies had ceased so that there were no longer forces in the field to free the occupied territory from the control of the conquering power. Thus, the German annexation of Poland during World War II was invalid, because Poland's allies continued to struggle against Germany.

Even when a state has been completely subjugated there would be no transfer of sovereignty in the absence of an intention to annex it. Thus, in 1945 the victorious Allies expressly disclaimed the intention of annexing Germany, although they had occupied all German territory and defeated her Axis allies.

While acquisition of territory by conquest may have been acceptable during the period when there was no legal restriction upon the right of a state to wage war, it is now generally accepted that the Covenant of the League of Nations, the Pact of Paris, and, more importantly, art 2(4) of the United Nations Charter restrict the ability of a state to acquire territory by conquest.

The effect of the change

Once the proposition is accepted that an aggressor state cannot acquire territory by conquering another state through the illegal use of force, it follows that an aggressor cannot now acquire territory by conquest alone and that any treaty of cession imposed by the victor on the vanquished will be invalid.

Can an 'innocent party' to a war still acquire territory by conquest?

Can a state acting in self-defence acquire territory by conquest? The Soviet view was that states acting in self-defence may impose sanctions on a defeated aggressor: in particular, they are empowered to take away part of the territory of the aggressor in order to prevent a recurrence of the aggression.

However, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, passed by the General Assembly in 1970, suggests otherwise:

'The territory of a state shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force.'

So any threat of or use of force, whether in contravention of the United Nations Charter or not, invalidates the acquisition of territory. For example, both the General Assembly and the Security Council of the United Nations have repeatedly declared that Israel is not entitled to annex any of the territory it captured following the war of June 1967. The Security Council affirmed in 1968 that the 'acquisition of territory by military conquest is inadmissible' and that all measures taken by Israel in the occupied territories were invalid and ineffective to change the status of that territory.

But it must be remembered that as long as the international community of states is not determined to prevent aggressors from enjoying their spoils the principle that an aggressor cannot acquire a good title to territory is liable to produce serious discrepancy between the law and the facts. It will depend upon political rather than legal circumstances.

The invasion of Goa 1961

Portugal retained this colony on the Indian subcontinent until it was invaded by India and incorporated into its own territory. This illegal use of force by India and the subsequent annexation of Goa received the approval of many members of the United Nations and there was no condemnation of the act by either the Security Council or the General Assembly.

It can be argued that India has obtained a basis of title which, even if there is no express recognition of the fact, will become consolidated over a relatively short period of time, by the acquiescence of the international community into a fully valid title.

Consider the case of Namibia, one of the last instances of conquest. If the ICJ had not declared South Africa's occupation of the territory illegal and if there had been no opposition to this state of affairs, would the international community have eventually acknowledged the reality of South Africa's title?

Similarly with the Falkland Islands. If Britain had not repossessed the islands by force would the illegal Argentinian invasion and occupation have eventually been regarded by the international community as confirming Argentina's claim to sovereignty over the islands?

The invasion of Kuwait 1990

On 2 August 1990 Iraqi armed forces invaded Kuwait and subsequently the Iraqi government announced its intention to establish a 'comprehensive and eternal merger' between the two states. On 8 August, Iraq again declared its intention to annex Kuwait and that it would become the nineteenth province of Iraq and instructed all foreign diplomats to leave Kuwait. Foreign embassies and consulates were closed by the Iraqi authorities.

In response, the UN Security Council adopted Resolution 662 (1990) of 9 August 1990, which declared that the 'annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity and is considered null and void'. The Resolution also called upon all states to refrain from extending recognition to the purported annexation and to abstain from any actions that could be construed as indirect recognition of the annexation.

This Resolution was ignored by Iraq and preparations were made by the Iraqi government to declare Kuwait as its nineteenth province. The Security Council therefore adopted a second Resolution relating to the Iraqi claim to have acquired the territory of Kuwait by means of conquest and annexation. Specifically referring to the obligations of Iraq under international law, Security Council Resolution 664 (1990) reaffirmed that the annexation of Kuwait by Iraq was null and void and demanded that the government of Iraq rescind its orders for the closure of the diplomatic and consular missions in Kuwait and the withdrawal of immunity of their personnel.

Both these Resolutions are evidence that the acquisition of territory by means of annexation and conquest is no longer a valid method of obtaining title under international law.

Other circumstances relevant to the acquisition of territory

Contiguity

Contiguity alone is not a basis of title. However, it is a fact which may influence the decision of an international tribunal in cases, for instance, where sovereignty has not been exercised uniformly in every part of the territory or where only the coast of a barren territory has been occupied or in cases where it is desired to give effect to principles of geographic unity. For example, in the Legal Status of Eastern Greenland Case where Danish sovereignty over the whole of Greenland was conferred, the actual areas of the disputed territory settled by Denmark were few.

Contiguity is also the basis of the law concerning territorial waters, the contiguous zone and the continental shelf.

Recognition, acquiescence and estoppel

Although they are not strictly speaking modes of acquisition they do play an important role in the acquisition of territory in the sense that they may provide evidence of control where there are competing acts of possession.

Recognition

Recognition refers to the attitude of third states. This may take the form of a unilateral express declaration or may occur in treaty provisions with third states. In the Legal Status of Eastern Greenland Case (above) the Court referred to treaties between Denmark and states other than Norway as constituting evidence of recognition of Danish sovereignty over Greenland in general.

Recognition and acquisition by conquest

Although states are no longer permitted to acquire territory by conquest the invalidity of such territorial acquisitions may be cured by recognition, subject to certain conditions.

1. The recognition must take the form of an express statement and cannot be implied.
2. The recognition must be de jure and not merely de facto.
3. The recognition must be acknowledged not only by the victim but also by third states.

Acquiescence

This applies to the attitude of the dispossessed state and is inferred from its failure to protest in circumstances where protest might reasonably be expected against the exercise of control by its opponent. Recognition or acquiescence by one state has little or no effect unless it is accompanied by some measure of control over the territory by the other state. So, for instance, failure to protest against a purely verbal assertion of title unsupported by any degree of control does not constitute acquiescence.

Estoppel

Recognition or acquiescence may give rise to an estoppel. In the context of international disputes over territory the rule would mean that a state which had recognised another state's title to particular territory would be estopped from denying the other state's title if the other state had taken some action in reliance on the recognition.

Novation

This is a distinct mode of acquisition defined by Verzijl as follows:

'It consists in the gradual transformation of a right in territorio alieno, for example a lease, or a pledge, or certain concessions of a territorial nature, into full sovereignty without any formal and unequivocal instrument to that effect intervening': International Law in Historical Perspective, vol 3, Leyden: Sijthoff, 1970, p384.

For example, British claims to British Honduras (Belize) resulting from the Treaty of Paris 1763 allowing British nationals to cut compeachy wood in the Spanish territories bordering the Bay of Honduras.

Discovery

It was believed in the sixteenth century that discovery alone conferred a complete title to territory and such discovery was usually accompanied by symbolic acts such as the planting of a flag. The modern view, however, is that discovery merely gives an option to the discovering state to consolidate its claim by proceeding to effective occupation within a reasonable time. This was the view stated by the arbitrator in the Island of Palmas Arbitration

.

Symbolic annexation

Symbolic annexation has been defined by Brownlie as:

'A declaration or other act of sovereignty or an act of private persons duly authorised or subsequently ratified by a state, intended to provide unequivocal evidence of the acquisition of sovereignty over a parcel of territory or an island': Principles of Public International Lan>, 5th ed, Oxford: Oxford University Press, 1998, pl45.

In the Clipperton Island Arbitration (above) a declaration of French sovereignty was proclaimed and subsequently published by a duly authorised Lieutenant in the French navy, while cruising near the island on 17 November 1858. It was held that in the absence of any effective rival claim and taking into account the inaccessible and uninhabited nature of the island, that France acquired the island when sovereignty was proclaimed and that the purported annexation, though symbolic in form, had legal effect.

Boundary treaties

The vast majority of states have fixed their borders with neighbouring states by means of bilateral treaties which determine the respective territories. Periodically, disputes arise between states over the precise delimitations set down in this type of agreement and states make claims over portions of territory which are considered by adjacent states as their territory. In such circumstances, the treaties establishing the borders must be interpreted and applied by an impartial international body such as the International Court of Justice. For example, in Case Concerning Land, Island and Maritime Frontier Disputes: El Salvador v Honduras, Nicaragua Intervening (1992) ICJ Rep 92 El Salvador and Honduras submitted a long-standing dispute over an area of territory on the border between these states to the International Court for resolution.

Treaties defining borders have a special status in international law. Borders established by such agreements have a permanence that exists independently from the fate of the agreements which sets them out. This principle has been affirmed by the International Court in the Case Concerning the Territorial Dispute: Libyan Arab jamahiriya v Chad (1994) ICJ Rep 6. After an armed conflict caused by competing claims to an area of border territory, Libya and Chad agreed to refer the dispute regarding the location of their mutual border to the Court. A Treaty of Friendship and Good Neighbourliness 1955 had been negotiated between the newly independent state of Libya and France as the colonial administrator of the territory which subsequently became Chad. In the treaty, a border had been set down between the two countries but the treaty was expressed to be of limited duration. The Court considered the matter and concluded that the border was definitively agreed in the 1955 Treaty to which Chad was a party as the successor state to the French administered territory. The subsequent actions of the parties supported this determination. The fact that the treaty was only concluded for a limited period – 20 years - was not relevant because treaties setting down borders create demarcations which endure independently of the agreement establishing them. In the words of the

Court:

'The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the Court.'

Uti possidetis

Uti possidetis, a principle first developed among the Spanish colonies of Latin America, provides that the old colonial boundaries will be recognised as the borders of the newly independent ex-colonial states. This principle was adopted by the Organisation of African Unity in a resolution of 1964 which provides that all states should respect the colonial boundaries. The function of this principle is to preserve the territorial integrity of newly independent states. The principle was followed by the Court in its judgment on the boundary dispute in Burkina Faso v Republic of Mali (1986) ICJ Rep 554.

The principle was again followed in the Case Concerning Land, Island and Maritime Frontier Dispute (above), which involved a dispute between El Salvador and Honduras concerning the land frontiers between their respective territories. Both parties agreed that the matter should be resolved according to the principle of uti possidetis and the Court determined the disputed boundaries by applying this principle. The original colonial boundaries were, therefore, transformed into international frontiers.

 The acquisition of territory in Polar Regions

The Polar Regions create unique problems in the context of territorial acquisition. The Arctic comprises the northern polar region encompassing approximately 20 million square kilometres, half of which consists of ocean almost entirely covered by ice. The remainder is made up of territories and islands belonging to Canada, the US (Alaska), Russia, Norway, Finland, Sweden, Denmark (Greenland) and Iceland.

Initially, these 'Arctic Eight' states claimed their sovereignty over regions beyond their land territories, inter alia, on the basis of a sector theory. According to this theory all land lying within the triangle between the east-west extremities of a state contiguous to the Pole and the Pole itself should be subject to that state's dominion, unless the territory already belongs to another state. The sector theory was examined by the Permanent Court of International Justice (PCIJ) in Legal Status of Eastern Greenland Case: Norway v Denmark (1933) PCIJ Rep Ser A/B No 53. The PCIJ stated that whilst the sector theory does not give title which would not otherwise arise, if necessary state activity occurs in the claimed territory such activity represents a reasonable application of the principle of effective occupation. The international community has never accepted the sector theory, which was finally dismissed by the 1986 UN Convention on the Law of the Sea. The Convention affords coastal countries an economic zone extending 370 kilometres from their shore.

The Arctic has great military importance for the US and Russia. Also, the economic potential of the Arctic shelf areas, which are rich in oil, gas and other natural resources, has prompted territorial claims to the Arctic. Canada alone is facing a number of actual or potential disputes relating to its control of the Arctic region: for example, as regards the status of the Northwest Passage which Canada claims constitutes part of its internal waters but the US, the EU and possibly Japan regard as being an international strait; relating to the delimitation of a maritime boundary between Alaska and Yukon; concerning the delimitation of the northern continental shelf to which Russia and the US may submit their claims; relating to an existing dispute over Hans Island, a small island between northern Greenland and Ellesmere Island, to which Denmark asserts its claim, etc. Further, under the terms of the 1958 Convention on the Law of the Sea, a contracting state must determine the limits of its continental shelf within ten years of its ratification. The claim is submitted to the Commission on the Limits of the Continental Shelf, an international panel, for review. Once this process is completed and provided that there are no counter claims from neighbouring states, the claimant state is granted its claim. At the time of writing, no nation has secured territorial rights to the Arctic in this manner but  Russia has submitted its claim and Denmark must submit its claim in 2005. Canada and the US have not ratified the Convention and as such have not submitted their claims. Global warming has added a new urgency to competition for coastal states' rights to the Arctic. This region is warming twice as fast as the rest of the planet. It is likely that the North Pole could be ice-free in summertime by the end of the century. Apart from the treasure of natural resources, which the thaw may  make accessible, this environmental disaster may create a northwest passage, cutting thousands of miles of the shipping routes between the Atlantic and Pacific Oceans and providing new fishing grounds for the claimant states.

Despite the existing legal controversies the Arctic Eight have been willing to cooperate in respect of environmental matters. The first major development was the conclusion of the 1973 Agreement on the Conservation of Polar Bears, followed in 1991 by the creation of the Arctic Environmental Protection Strategy (AEPS) and the establishment of the Arctic Council in 1996.

Antarctica

Antarctica has a surface area of more than 14 million square kilometres. The UK, Russia and the US all claim to have discovered Antarctica. Explorers reached the continent in the late eighteenth century. The whaling and sealing industry was developed in the nineteenth century. The last uncharted and unclaimed land on earth became a target of scientific explorations around the turn of twentieth century. The first territorial claim was made by the UK. In the Letters Patent of 21 July 1908 the UK claimed a large portion of Antarctica with a view to controlling the whaling industry. Subsequently six nations submitted territorial claims to Antarctica:  Australia, Chile, France, New Zealand and Norway (claimant states including the UK). Their claims were based on various grounds: occupation, contiguity, the sector theory, discovery, exploitation and historic rights. The claimant states recognized each other's claims, whatever the legal basis, except when claims overlapped.

After World War II five countries (non-claimant states) stated that they would neither assert nor recognise any territorial claims to Antarctica. These five were:  Belgium, Japan, South Africa, the US and the USSR.

The above, combined with the claim of the USSR to maintain its bases in Antarctica and numerous territorial disputes by South American countries with the UK, emphasised the need for a more permanent solution at an international level. The Antarctic Treaty of 1959, which entered into force on 23 June 1961, provided such a solution. The 1959 Treaty 'freezes' all claims to territorial sovereignty in Antarctica.  Art IV of the 1959 Treaty states:

'No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim to territorial sovereignty in Antarctica shall be asserted while the present

Treaty is in force.'

The Treaty is of unlimited duration. To ensure compliance with the Treaty, the contracting parties provided for the inspection of 'all areas of Antarctica, including all stations, installations and equipment within those areas'.

Apart from imposing a moratorium on territorial claims, the Treaty ensures that Antarctica is used for peaceful purposes only and that freedom of scientific investigation and co-operation is preserved.

On the basis of the 1959 Treaty a system of management of the continent was set up, often referred to as the Antarctic Treaty System (ATS), which over the years has developed new policies to respond to changing circumstances, in particular, to ensure the protection of the environment in Antarctica. Additional components of the ATS include: The 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources, the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities and the 1991 Protocol on Environmental Protection to the Antarctic Treaty.

Restrictions on the transfer of territory

States may enter into treaty agreements not to alienate certain areas of territory under any circumstances or they may contract not to transfer territory to a particular state or states. An obligation not to acquire territory may also be undertaken. By the State Treaty of 1955 Austria agreed not to enter into political or economic union with Germany. By the Treaty of Utrecht 1713, Great Britain agreed to offer Gibraltar to Spain before attempting to transfer sovereignty over Gibraltar to any other state.

However, it is doubtful whether a breach of such treaty not to alienate or acquire territory will affect the title of the grantee of such territory.

 Intertemporal law

As a result of changes in the law relating to the acquisition of territory, problems have arisen as to which legal regime should be applied when determining title. For example, should title to territory acquired by conquest in the nineteenth century be assessed according to the rules relating to conquest at the time (title would be lawful) or according to the law on conquest today (title would be unlawful)?

The general rule - known as the principle of intertemporal law - is that title should be assessed according to the rules of law that prevailed at the time of the acquisition of territory. In the Island of Palmas Arbitration, however, Arbitrator Huber suggested that title to territory needed to be confirmed against the changing standards of international law, ie he appears to suggest that title should be assessed by reference to current rules rather than by reference to the rules existing at the time of the acquisition. A number of writers have argued that the modified rule developed by Huber would be highly disruptive, as every state would constantly have to review and confirm its title. Huber's interpretation should, therefore, probably best be seen in terms of the facts of the case in issue, ie as discovery only formed an incomplete title, whether or not title had been 'made good' had to be assessed by reference to the law as it applied to subsequent possession.

 The loss of territory

The loss of territory may occur in the following circumstances.

1. By treaty of cession - a transfer of rights by one state to another.
2. By prescription.
3. Where a new state is created which by definition will cause another state or states to lose territory.
4. By abandonment (derelicto) - a state may by its conduct or by express admission acquiesce in the extension of another state's claim to its territory.

 In such cases absence of a reasonable level of state activity may cause loss of title. It has been argued that dereliction requires both a physical abandonment and an intention to abandon dominion. For reasons of stability, however, abandonment is not to be presumed and certainly in the case of remote and uninhabited areas it would seem that international tribunals require little in the way of maintenance of sovereignty.

Such a rule was applied in the Clipperton Island Arbitration and was referred to in the Legal Status of Eastern Greenland Case. In less inhospitable territories it may well be, however, that dominion will only remain if a physical manifestation of sovereignty subsists.

The external territorial rights of a state

A state may have powers to regulate the foreign relations of a protectorate, a trusteeship territory, other colonial possessions, or the territory of another state.

Mandates and trusteeship territories

State authority over mandated or trusteeship territories cannot be described in terms of sovereignty. As was stated in the South West Africa Cases (Second Phase) (1966) ICJ Rep 6, the territory of the non-self-governing community is held on trust by the administering power and cannot be considered as part of the territory of that power.

Colonies

These have usually been considered as under the sovereignty of the colonial power even where, as in the case of the British colonies, they were not incorporated as part of the UK. Thus matters concerning the internal affairs of the territories were regarded by the UK as falling within its domestic jurisdiction.

Leases

Examples include the grants made by China in favour of France, Russia, Germany and Great Britain in 1898, the best known being the 'New Territories' attached to Hong Kong. Such leases amount to a transfer of sovereignty by the grantor for the period of the lease. Such a lease is a right in rem. It attaches to the territory and remains enforceable against the territory even if the territory subsequently passes under the dominion of another state.

Use and possession granted in perpetuity

In 1903 Panama granted to the US 'in perpetuity the use, occupation and control' of the Panama Canal Zone. In such a case residual sovereignty remains with the grantor.

Leases of military bases

The status of such bases is doubtful and would depend upon the terms of the actual treaty which granted the disposition. It is unlikely, however, that they create real rights under international law and are best considered as leases in the municipal sense.

Servitudes

By treaty or otherwise a state may have acquired rights over the territory of a neighbouring state, eg a right to exercise a right of way. Such rights may be divided into two categories.

1. Rights benefitting the international community: international servitudes may exist, not for the benefit of a single state but for the benefit of the international community.

In the Aaland Islands Case (1920) LNOJ Spec Supp No 3, 3 Russia had entered into a treaty obligation in 1856 not to fortify the Aaland Islands. Although the islands lay near Stockholm, Sweden was not a party to this treaty. In 1918 the islands became part of Finland which started fortifying them. Sweden complained to the League of Nations. It was decided that Finland had succeeded to Russia's obligations and that Sweden could claim the benefit of the 1856 Treaty, although she was not a party to it. The treaty was designed to preserve the balance of power in Europe and could, therefore, be invoked by all the states which were 'directly interested', including Sweden.

2. Rights benefitting only a single state: these include mining rights, rights to run an oil or gas pipeline across a neighbouring state, rights to take water for irrigation, rights of way, etc.

In the Right of Passage over Indian Territory Case (Merits): Portugal v India (1960) ICJ Rep 6 it was held that Portugal had a right of passage over Indian territory between the coastal district of Daman and the 'enclaves' in respect of private persons, civil officials and goods in general, and this right was binding on India.

However, international tribunals seem reluctant to find servitudes in favour of a single state where those servitudes are of an economic nature. For example, in the North Atlantic Fisheries Arbitration: US v Great Britain (1910) 11 RIAA 167, it was held that a treaty between the US and Great Britain (the Newfoundland Coast Fishing Treaty 1818), granting the inhabitants of the US the liberty to take fish from the sea off Newfoundland, did not create a servitude preventing Great Britain from limiting the fishing rights of all persons, including US nationals, in the area concerned. However, if evidence of the intention to create such a servitude is found to exist on the part of the state granting it then it will be upheld.

Assessment

At the outset of this discussion relating to acquisition of territory mention was made of the fact that the traditional modes of acquisition of territory are unhelpful in explaining the most significant form of acquisition of territory during the post-war period, ie acquisition by newly independent states.

Although the acquisition of territory by newly independent states can be explained in terms of cession or prescription, such analysis fails to take into account the developments in international law since the late 1950s which have underpinned the independence movement. Most significant among these developments has been the recognition of a right to self-determination which has a specific content going beyond the broad principles outlined in, inter alia, art 1(2) of the United Nations Charter and common art 1 of the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966.

A second important limitation is that the traditional approach gives little mention to the fact that title in international law is a relative rather than absolute concept. In the Legal Status of Eastern Greenland Case, for example, the PCIJ was concerned to assess the strength of the Danish claim relative to that of Norway. This is not to say that a state's control over its own territory will always be open to challenge. Rather, it is a recognition of the fact that disputes over territory arise in the context of competing claims. In these circumstances, the function of the Court is to determine which of the competing claims has greater merit, not which of the claims is good against the world at large.

Given these two substantive limitations regarding the traditional modes of acquisition, any assessment of current entitlement can only take place on the basis of a full analysis of the circumstances of the dispute.