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CHAPTER 5CHAPTER 5
STATE TERRITORYSTATE TERRITORY
PROFESSOR PROFESSOR
DR. ABDUL GHAFUL HAMIDDR. ABDUL GHAFUL HAMID
IntroductionIntroduction [Textbook p. 109][Textbook p. 109]
• Definition: State territory is that defined
portion of the surface of the globe which is
subjected to the sovereignty of a Sate.
• A Sate without a territory is not a Sate at
all.
• International law recognises the supreme
authority of every Sate within its territory.
• This is known as ‘territorial sovereignty’.
Different parts of State territoryDifferent parts of State territory
• Three main parts:
(1) Land territory: all land areas within the boundary of a state (including internal waters: rivers, lakes, canals, ports);
(2) Maritime territory: territorial sea (12 nautical miles from the coast)(International Law of the Sea);
(3) Territorial air space: air space above land territory and TS (to an unlimited height until outer space) (International Air Law).
• However, our emphasis in this course is
how a State acquires sovereignty over its
territory.
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5. 15. 1 THE ACQUISITION OF THE ACQUISITION OF
SOVEREIGNTY OVER TERRITORY SOVEREIGNTY OVER TERRITORY
[TITLE TO TERRITORY][TITLE TO TERRITORY] [pp. 109[pp. 109--110]110]
• There are five traditional modes of
acquisition of sovereignty over territory:
(1) occupation;
(2) prescription;
(3) cession;
(4) conquest; and
(5) accretion.
• Merely a convenient method of exposition.
• In practice, a court will not specifically refer to any of these traditional modes to describe its decision on a territorial dispute.
• The issue of territorial sovereignty is complex and involves the application of various principlesof law to the facts.
• Need to consider complementary principles such as: acquiescence, recognition, estoppel,, utipossidetis juris, and right to self-determination.
• Furthermore, the historical changes in concepts
of law in this area need to be taken into account.
(1) In the 20th century, the principle of self-
determination has become increasingly
important.
(2) According to contemporary IL, the use of force
is prohibited [Art. 2(4)] and territorial acquisition
by the threat or use of force is illegal.
5. 2 OCCUPATION5. 2 OCCUPATION
[pp. 110[pp. 110--125]125]
• ‘Occupation’ is the intentional acquisition by a State of sovereignty over a territory which is at the time not under the sovereignty of another State (terra nullius).
• There are two basic requirements:
(1) The territory in question must be terra nullius;
(2) The occupation must be ‘effective’ in the sense that there must be an intention to occupy(animus occupandi), followed by the actual exercise of State functions over the territory(corpus occupandi).
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5. 2. 1 What is 5. 2. 1 What is terra nulliusterra nullius??
• Terra nullius is a territory belonging to no one at the time of the act alleged to constitute occupation.
• Position of territories inhabited by native tribeswith certain social and political organization:
• This problem was examined by the ICJ in the Western Sahara case.
• Colonized by Spain in 1884 until 1976.
• In 1966, GA decided to decolonize Western Sahara on the basis of self-determination.
• Spain agreed to hold a referendum.
Western SaharaWestern Sahara casecase(1975) ICJ Rep. 12(1975) ICJ Rep. 12
• Morocco claimed the territory on the basis of ‘historic title’.
• The Court found that since Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them, it could not be regarded as a terra nullius (at the time of the Spanish colonization) and further that Morocco was not able to show any evidence of the actual display of authority over the territory.
• Right of self-determination was recognized.
5. 2. 2 Effective occupation5. 2. 2 Effective occupation [p. 112][p. 112]
• Occupation to be valid must be ‘effective’. The
requirements of ‘effective occupation’ have
become increasingly strict in international law.
• In the 16th century, effective occupation was
interpreted very liberally.
• Mere ‘discovery’ gave a State an ‘inchoate title’,
that is, an option to occupy the territory within a
reasonable time, during which time other States
were not allowed to occupy the territory.
• According to the present law, there are two
elements of effective occupation:
(1) The intention and will to act as sovereign
(animus); and
(2) The peaceful and continuous display of State
authority (factum).
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The issue of private personsThe issue of private persons
• Since occupation is a sovereign act, a private person cannot acquire territorial sovereignty by occupation, without the express authorization or subsequent confirmation (or ratification) of his State.
• Anglo-Norwegian Fisheries case: “The independent activity of private individuals is of little value unless it can be shown that they have acted in pursuance of a license or some other authority received from their governments or that in some other way their Governments have asserted jurisdiction through them”.
• At the same time, there can be no
occupation without the acts of private
individuals.
• The ICJ in Minquiers and Ecrehos case
treated the ‘actual and permanent
settlement’ of Englishmen on the islands
as one of the acts indicative of
sovereignty.
(1)(1) Intention to act as sovereignIntention to act as sovereign
• In both the Clipperton Island Arbitration and the Eastern Greenland case, the Court emphasized that the actual display of sovereignty must be accompanied by an animus or intention to act as sovereign.
• Normally, this can be presumed from the simple fact that the State is exercising such authority in the territory.
• In territories such as Clipperton Island and Eastern Greenland, where extensive display of authority is not possible, it is enough that the State makes clear its sovereign intentions by means such as:
• (1) the publication of notices of sovereignty in various journals in the Clipperton IslandArbitration; and
(2) the declarations stating the application of national laws to Greenland by Denmark in the Eastern Greenland case.
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(2) Peaceful and continuous display of (2) Peaceful and continuous display of
State authorityState authority
To be an effective occupation, the exercise
or display of State authority (sovereignty)
must be peaceful and continuous. It is to
be continuous until the critical date.
(a) Peaceful display of State authority (a) Peaceful display of State authority
• The exercise of State authority over a territory must be peaceful in the sense that it is not challenged by other States.
• In the case of ‘occupation’, as distinct from ‘prescription’, a display of State authority does not lose its peaceful character by mere protestsfrom the rival State.
• However, consistency in protestation over a long period, if not rebutted by the claimant State, may disturb the peaceful character of the display of State authority.
(b) Continuous display of State authority and (b) Continuous display of State authority and
the the ‘‘critical datecritical date’’
• Continuity: According to this rule, title to
territory could not be established by a ‘once and
for all’ display of State authority. It had to be
continuous. This seems to encompass two
ideas.
(1) First, the display of State authority must be
ongoing. However, the degree of continuity may
vary with each case.
(2) Secondly, the display of State authority must
exist up to the ‘critical date’.
• The critical date: The critical date in a territorial
dispute is the date on which the location of
territorial sovereignty is decisive.
• Normally, it is the date of the origin of the
dispute (i.e., when two States making rival
claims of sovereignty over the territory).
• The State which can demonstrate an effective
title in the period immediately preceding the
critical date has the superior claim.
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• For example, the dispute between Norway and
Denmark which led to the Eastern Greenland
case arose from a Norwegian proclamation on
10 July 1931 announcing occupation of the area.
• The Court in that case said: “As the critical date
is July 10th, 1931…it is sufficient [for Denmark]
to establish a valid title in the period immediately
preceding the occupation”.
• In the Island of Palmas case, the critical date
was the date of the Peace Treaty between Spain
and the United States (1898), for this was the
time at which the latter’s claim first arose.
• However, the date of origin of the dispute will not
be ‘critical’ in every circumstances, for it is clear
that critical date depends on the facts of each
case.
(c) The concept of Inter(c) The concept of Inter--temporal lawtemporal law
• In many instances the rights of parties to a dispute derive from legally significant acts, or a treaty concluded, very long ago. Sir GerarldFitzmaurice states the rule applicable in these cases:
“It can now be regarded as an established principle of international law that in such cases the situation in question must be appraised, and the treaty interpreted, in the light of the rules of international law as they existed at the time, and not as they exist today.”
• This is known as the ‘inter-temporal law’. In the Island of Palmas case, Judge Huber stated the rule and continued: “The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the 16th century”.
• In that case, Judge Huber had to consider whether Spanish sovereignty over the Island subsisted (continued to exist) at the critical date in 1898.
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• In doing so he gave a new dimension to the ruleunder discussion. He said: “ As regards the question which of legal systems prevailing at successive periods is to be applied in a particular case (the so-called inter-temporal law), a distinction must be made between the creation of rights and the existence of rights…. The existence of the right, in other words its continued manifestation, shall follow the condition required by the evolution of law”.
• His exposition of the inter-temporal law is that the acquisition of territory not only should be consistent with the international law in existence at the time when a particular act was done or alleged right arose but also that the continuing sovereignty should satisfy the requirements of the international law as developed in later periods until the “critical date”.
• This extension of the doctrine has been criticized(esp. by Western States) on the ground that it would threaten many titles to territory and lead to instability.
• Brownlie emphasizes the need for care in applying the rule.
• This ruling has in practice been carefully and flexibly interpreted within the context of all the relevant rules relating to the acquisition of territory including recognition and acquiescence.
5. 2. 3 5. 2. 3 ‘‘Peaceful and continuous display Peaceful and continuous display
of State authorityof State authority’’ is a very important is a very important
decisive factor in determining decisive factor in determining ‘‘original original
titletitle’’• Out of the five traditional modes, ‘occupation’(and arguably ‘prescription’) are the only modes that create the ‘original title’ to territory.
• The other modes (cession, conquest, accretion) are ‘derivative’ only.
• In both occupation and prescription, ‘peaceful and continuous display of State authority’ is a very important decisive factor.
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Decided cases on peaceful and continuous Decided cases on peaceful and continuous
display of State authoritydisplay of State authority
• Although in theory there are modes of acquisition of territory such as occupation and prescription, in practice international tribunals very rarely refer to these modes.
• They simply see which of the two competing States has ‘peaceful and continuous exercise of State authority’ or ‘effective control’ over the disputed territory (also known as ‘effectivites’).
• The most authoritative statement of law is to be found in the arbitral award rendered by Max Huber in the Island of Palmas case.
Island of Palmas caseIsland of Palmas case (US v Netherlands)(US v Netherlands)Sole Arbitrator Max Huber.Sole Arbitrator Max Huber.
• the Island of Palmas is two miles long and less than a mile wide. In 1928, it had a population of less than 1,000.
• The US believed that the island was included in the archipelago known as the Philippines Islandsceded to it as a result of the Treaty of Peace between the United States and Spain in 1898.
• The Netherlands, however, considered the island as forming part of the territory of their possessions in the East Indies.
The awardThe award
The title alleged by the US as constituting
the foundation of its claim is that of
cession, brought about by the Treaty of
Paris…the US bases its claim, as
successor of Spain, in the first place on
discovery…. [D]iscovery alone, without
any subsequent act, cannot, at the present
time suffice to prove sovereignty over the
Island of Palmas…
No display of state authority over the island at all No display of state authority over the island at all
by the USby the US
It is moreover an island permanently
inhabited, occupied by a population
sufficiently numerous for it to be
impossible that acts of administration
could be lacking for very long
periods…The inability in such a case to
indicate any acts of public administration
makes it difficult to imagine the actual
display of sovereignty….
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The Netherlands displayed state authorityThe Netherlands displayed state authority
• The Netherlands found their claim to sovereignty
on the title of peaceful and continuous display of
state authority over the Island…the
manifestations of sovereignty over a small and
distant island, inhabited only by natives, cannot
be expected to be frequent….
• …[T]he display of sovereignty should be
established … at the critical period preceding
the year 1898…
The Netherlands displayed state authorityThe Netherlands displayed state authority
• There were contracts of suzerainty between the East Indian Co. (the Netherlands Government) and the natives States (including Palmas Island). By means of this suzerainty, the Netherlands considered the Island as a part of its territory and sovereign authority was exercised between 1700 and 1898. (There was also evidence of taxation of the local people by the Dutch authorities).
• There was no record of protest against the exercise of sovereign authority by the Netherlands. The peaceful character of the Netherlands’ sovereignty must be admitted.Therefore, the Netherlands title holds good.
• In this case, the Arbitrator accepted the
Netherlands’ “peaceful and continuous display of
State authority” over the Island.
• The case indicates very clearly that the State
that can show a peaceful and continuous display
of State authority in the period leading up to the
‘critical date’ (i.e. the date on which the location
of territorial sovereignty is decisive) can defeat
any other claim whatever its basis.
• It has, however, to be a ‘peaceful’ display of
such authority, i.e. one without protests by
interested states and of sufficient duration to
establish a prescriptive title.
• Thus, a State which exercises peaceful and
continuous display of State authority has a title
by way of ‘occupation’ if the territory was
previously a terra nullius, and by way of
‘prescription’ if it was not.
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Legal Status of Eastern Greenland CaseLegal Status of Eastern Greenland CasePCIJ Rep. Ser. A/B (1933), No. 53PCIJ Rep. Ser. A/B (1933), No. 53
• By Royal Proclamation of July 10th, 1931, Norway declared that they acquired Eastern Greenland by means of occupation, claiming that it was terra nullius.
• Denmark, however, argued that Eastern Green was not terrea nullius because they were exercising sovereign authority over the territory and thus “the declaration of occupation by the Norwegian Government is unlawful and invalid.”
• The Court gave judgment for Denmark.
The JudgmentThe Judgment
• …The first Danish argument is that Denmark has exercised sovereign right over Greenland for a long time and has obtained thereby a valid title to sovereignty…
• The Danish claim is founded on the peaceful and continuous display of State authority over the island…
• A claim to sovereignty based… upon continued display of authority involves two elements: the intention and will to act as sovereign and some actual exercise or display of such authority.
The Judgment (Cont.)The Judgment (Cont.)
(Manifestation of exercise of sovereign authority by Denmark)
(1) Documents granting the trading, hunting and mining concession;
(2) The concessions granted for the erection of telegraph lines; and
(3) The legislation fixing the limits of territorial waters in 1905.
The extent of The extent of EffectivitesEffectivites varies according to the varies according to the
nature of the territorynature of the territory
• In this case, the ICJ has reaffirmed the importance in territorial disputes of the notion of ‘peaceful and continuous exercise of State authority’ (or ‘effectivites’).
• The extent of “effectivites’ varies according to the nature of the territory in dispute. There can be three types of territory:
(1) Densely populated or well settled territory;
(2) Thinly populated or unsettled territory; and
(3) Totally uninhabited.
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The extent of The extent of EffectivitesEffectivites varies according to the varies according to the
nature of the territorynature of the territory
• If the rival State could not make out a superior claim and especially when the area in dispute is thinly populated or an unsettled region, the Court will be satisfied with very little in the way of exercise of State authority.
• Again if the territory concerned is totally uninhabited, the court will take it as an exceptional case and the proof of effective occupation will be much easier. The ClippertonIsland case can best illustrate the point.
ClippertonClipperton Island CaseIsland Case(1931). 26 AJIL (1932)(1931). 26 AJIL (1932)
• In 1858, a French lieutenant on board a
commercial vessel cruising past Clipperton
Island declared the Island (which was
uninhabited) to be French territory.
• The lieutenant notified the French consulate in
Honolulu, which published the declaration of
French sovereignty in a local journal. Very little
was then done in relation to the Island by the
French authorities.
• In 1897, a Mexican gun-boat landed and forced
the three inhabitants to raise the Mexican flag,
claiming that the Island had been discovered by
Spain, to which Mexico was the successor State
from 1836.
• The Arbitrator held that this discovery by Spain
had not been proved, and that France had not
abandoned her claim and so had title to the
Island.
AwardAward
• It has not been proven that this island… had been actually discovered by the Spanish navigators.
• Consequently,…when in 1858, France proclaimed her sovereignty over Clipperton, the island was in the legal situation of territorium nullius, and, therefore, susceptible of occupation. The question remains whether France proceeded to an effective occupation, satisfying the conditions required by international law for the validity of that kind of territorial acquisition….
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• Besides the animus occupandi, the actual taking of possession is a necessary condition of occupation. …That only takes place when the state establishes in the territory itself an organization capable of making its laws respected.
• But a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished and the occupation is thereby completed.
Case Concerning Sovereignty over Case Concerning Sovereignty over PulauPulau
LigitanLigitan and and PulauPulau SipadanSipadan[Indonesia v Malaysia] (2002) ICJ Rep. 625[Indonesia v Malaysia] (2002) ICJ Rep. 625
• On the basis of a special agreement, Indonesia and Malaysia submitted to the ICJ the dispute over Pulau Ligitan and Pulau Sipadan.
• Indonesia’s claim to sovereignty rests primarily on the Convention which Great Britain and the Netherlands concluded in 1891 for the purpose of defining the boundaries.
• Indonesia also relies on a series of ‘effectivites’(effective control or acts of the actual display of State authority).which confirm its conventional title.
• Malaysia argues that it acquired sovereignty over the islands following a series of transmissions of the title originally held by the former sovereign, the Sultan of Sulu. Malaysia claims that the title subsequently passed to Spain, to the United States, to Great Britain and finally to Malaysia itself.
• It contends that it’s title is confirmed by a number of British and Malaysian ‘effectivites’
• It argues in the alternative that if the Court were to conclude that the disputed islands had originally belonged to the Netherlands, it effectivites would have displaced any such Netherlands title.
• Having found that neither of the Parties has a
treaty-based title to Ligitan and Sipadan, the
Court considers the effectivites as an
independent and separate issue.
• In support of its arguments relating to
effectivites, Indonesia cites patrols in the area by
vessels of the Dutch Royal Navy, activities of the
Indonesian Navy, as well as activities of
Indonesian fishermen.
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• Regarding its effectivites, Malaysia mentions control over the taking of turtles and the collection of turtle eggs, the most important economic activity on Sipadan for many years.
• Malaysia also relies on the establishment in 1933 of a bird sanctuary on Sipadan.
• Malaysia further points out that the British Borneo authorities constructed lighthouses on Ligitan and Sipadan Islands in the early 1960s and that these exist to this day and are maintained by the Malaysian authorities.
• The Court refers to the Legal Status of Eastern Greenland case and states that very little in the way of the actual exercise of sovereign rights is required in the case of claims to sovereignty over areas in thinly populated or unsettled territories.
• The Court also states that it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized. The Court mainly analyses the effectivites which date from the period before 1969 (the critical date), the year in which the Parties asserted claims to Ligitan and Sipadan.
• None of the effectivites relied on by Indonesia, is a legislative or regulatory character.
• In respect of a presence of Indonesian navy in the waters around the islands, there is no evidence showing that the naval authorities considered Ligitan and Sipadan to be under the sovereignty of Indonesia.
• Activities by private persons, such as Indonesian fishermen, cannot be seen as effectivites if they do not take place on the basis of official regulation or under government authority.
• The activities relied upon by Indonesia do not constitute actual exercise of sovereigntyreflecting the intention and will to act in that capacity.
• Turning to the effectivites relied upon by Malaysia, the Court first observes that both the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird reserve must be seen as regulatory and administrative assertions of authority over territory which is specified by name.
14
• The construction of lighthouses are not normally considered manifestations of State authority.
• The Court refers, however, to Maritime Delimitation between Qatar and Bahrain (2001) ICJ Rep., where it was stated: “ The construction of navigational aids can be legally relevant in the case of very small islands.
• The Court notes that the activities relied upon by Malaysia are not many but they are diverse in character and include legislative, administrative and quasi-judicial acts.
• At the time when these activities were carried
out neither Indonesia nor its predecessor, the
Netherlands, ever expressed its disagreement or
protests.
• Accordingly, the Court concludes that Malaysia
has title to Ligitan and Sipadan on the basis of
the effectivites referred to above.
•
• It is clear from the above judgement that whether the two islands are terra nullius or not and which State had historic title over the islands appears to be immaterial for the Court.
• In line with its long established jurisprudence, the Court’s reasoning in this case was essentially based on ‘effectivites’ or ‘peaceful and continuous exercise of State authority’ over the disputed territory. The Court finally found that Malaysia successfully proved the required effective control over Pulau Ligitan and PulauSipadan.
Case Concerning Sovereignty over Case Concerning Sovereignty over PedraPedra
BrancaBranca/ / PulauPulau BatuBatu PutehPuteh
(Malaysia v Singapore)(Malaysia v Singapore)
• PBP
- a small granite rocky island
- 137-metre by 60-metre (roughly half the size of a
football field)
- 7.7 nautical miles from Johor and 24 nautical miles
from Singapore.
• The dispute arose on 14 February 1980, when Singapore protested against the 1979 map published by Malaysia placing the island in the Malaysian territory.
• Singapore expanded its claim to the Middle Rocks and South Ledge, two other marine features near the island, in February 1993.
• submitted to the ICJ on 24 July 2003.
15
MalaysianMalaysian’’s contentions contention
• PBP, the two marine features, and other islands in and around Singapore Strait were part of the Johor Sultanate before 1824.
• This situation was confirmed by the Crawfurd Treaty of 1824, which ceded to Great Britain the Island of Singapore and all islets and rocks within 10 geographical miles off Singapore, but otherwise left the territory of Johor unaffected.
• Therefore, Malaysia primarily invoked the ‘original title’over the island and two marine features by the Sultan of Johor from time immemorial.
The main Malaysian standThe main Malaysian stand
• PBP was not a no man’s land (terra nullius) when the British East India Company constructed the Horsburgh Lighthouse on the island and they sought and obtained the permission of the Sultan and Temenggong of Johor to build the lighthouse on the island.
• Singapore’s presence on the island was merely as lighthouse administrator.
• Neither Great Britain nor Singapore ever exercised sovereignty over the three features until the critical date.
(1980 in the case of Pulau Batu Puteh).
The Singaporean contentionThe Singaporean contention
• PBB and two marine features were terra nullius when the British constructed the lighthouse.
• The construction of the lighthouse and the authorization of the British Crown constituted a classic taking of possession of a territory as a sovereign.
• The title acquired in 1851 has been maintained by the British and its lawful successor, Singapore for about 150 years.
• During such a long period Malaysia did not make any protests.
• Singapore primarily relied on the taking of possession of a territory which was not owned by any state and later the continuous, peaceful and effective exercise of State authority over it.
The Judgment (on PBP) The Judgment (on PBP)
Judgment of 23 May 2008 [Judgment of 23 May 2008 [http://www.icjhttp://www.icj--cij.orgcij.org]]
• The Court first of all accepted the Malaysian
contention and concluded that the Sultanate of
Johor had sovereignty over the island by means
of ‘original title’ from time immemorial. (It means
that the Court rejected the Singaporean claim
that the Island was a terra nullius).
• The Court, however, found that the following
acts and omissions of the parties since 1953
had decisively changed the legal position:
16
The Judgment (on PBP) The Judgment (on PBP) [Cont.][Cont.]
(1) The reply by the Acting State Secretary of Johor to the Singaporean Government that “Johor Government does not claim ownership of Pedra Branca”;
(2) The investigation of shipwrecks by Singapore within the island’s territorial waters;
(3) The permission granted or not granted by Singapore to Malaysian officials to survey the waters surrounding the islands;
(4) The absence of protest from Malaysia to the flying of the Singapore ensign on the island, the installation of military communications equipment on the island in 1977 and the proposed plans by Singapore to extend the island as well as a few specific publications and maps.
The Judgment (on PBP) The Judgment (on PBP) [Cont.][Cont.]
• The Court finally concluded that
sovereignty over PBP had passed to
Singapore due to certain acts indicating
sovereignty on the part of Singapore since
1953 and acquiescence on the part of
Malaysia.
• The Judgment was by 12 votes to 4.
The Judgment (On Middle Rocks and South The Judgment (On Middle Rocks and South
Ledge)Ledge)
• Middle Rocks and South Ledge are maritime features located respectively at 0.6 and 2.2 nautical miles from PBP.
• Middle Rocks consist of some rocks that are permanently above water whereas South Ledge is a low-tide elevation.
• In the absence of proof to the effect that the ancient and original title of the Sultan of Johor over Middle Rocks had passed to Singapore like in the case of PBP, the Court adjudged that sovereignty over Middle Rocks remained with Malaysia.
The Judgment (On Middle Rocks and South The Judgment (On Middle Rocks and South
Ledge)Ledge) [Cont.][Cont.]
• Since South Ledge is a low tide elevation and not an island, a specific legal principle applies.
• A low tide elevation is owned by the state in the territorial waters of which it is located.
• South Ledge now falls within the overlapping territorial waters of the main land Malaysia, PBP and Middle Rocks.
• The Court was not asked by the parties to delimit their territorial waters and as there are overlapping territorial waters in the area, the Court left open the question of sovereignty over South Ledge, which is to be determined by the parties themselves in future by delimiting their overlapping territorial waters.
17
Some legal implicationsSome legal implications
(1) How to decide the position of South Ledge:
By delimiting the territorial waters between the two countries [It is an urgent need for the two countries to negotiate the delimitation of territorial waters in the area].
(2) How to delimit the territorial waters:
Art. 15, UNCLOS: (a) by agreement;
(b) Failing agreement – no state can claim beyond equidistance formula.
(3) What is the legal significance of South Ledge?
Art. 13, UNCLOS: A low tide elevation is not an island and cannot have TS of its own. But if it is within the TS of a state, that state can use it as a baseline for measuring its TS (thus increasing its TS limit).
(4) Can Singapore claim for EEZ or Continental Shelf from PBP?
• It depends on what type of island is PBP.
• Art. 121 (INCLOS): An island can have its own TS, EEZ and CS.
But ‘rocks’ which cannot sustain human habitation or economic life of their own shall have no EEZ or CS.
• It is common knowledge that PBP is merely made of granite rock (no land, no trees that can sustain human habitation).
• In the negotiations, therefore, Malaysia should from the very beginning take the stand that PBP is nothing more than a rock.
5.3 PRESCRIPTION5.3 PRESCRIPTION
• ‘Prescription’ can be defined as “the peaceful
and continuous exercise of the State authority
for a long period over territory subject to the
sovereignty of another”.
• Like ‘occupation’, the essential element of
‘prescription’ is the ‘peaceful and continuous
display of State authority’.
• While the two concepts bear some resemblance,
they must also be distinguished.
• The difference between prescription and occupation is that prescription is the acquisition of territory which belonged to another State whereas occupation is acquisition of terra nullius.
• Furthermore, in order to establish a title by prescription both a stricter proof and a longer period of the display of State authority is required, as compared with the establishment of a title by occupation. This is so because the essence of prescription is the ‘acquiescence’ of the one State in the adverse possession of the other.
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Requirements of prescriptionRequirements of prescription
(1) The possession must be exercised in the form of actual exercise of sovereign authority.
(2) The possession must be peaceful and uninterrupted. It means that there must not be any protest or objection by the former sovereign. Display of State authority by the acquiring State is to be accompanied by ‘acquiescence’ on the part of the losing State. Protests or other acts or statements which demonstrate a lack of acquiescence can prevent acquisition of title by prescription.
(3) The possession must be ‘public’. The exercise of peaceful and continuous possession must be open and public (the Island of Palmas case), so that the acquiescing States may have knowledge of it.
(4) The possession must be for a certain length of time. Obviously the legal power of State activity depends in part on its persistence. A few writers have prescribed fixed periods of years. However, the prevailing view is that the length of time required is a matter of fact depending on the particular case.
5.4 CONQUEST AND ANNEXATION5.4 CONQUEST AND ANNEXATION
• Conquest is the taking possession of territory through military force in time of war. The usual practice in the past was that after conquest, the conqueror finally annexed the enemy territory. Conquest followed by annexation was regarded as a mode of acquiring territory.
• However, this is the law in the past. In the 20th
century, as a result of the provisions of the Pact of Paris of 1928 and the UN Charter, international law restricts the right of States to go to war.
• By virtue of Article 2(4) of the Charter, the use of force against the territorial integrity and political independence of a State is now illegal. Conquest is no longer regarded as a lawful mode of acquisition
• The 1970 General Assembly Declaration on Principles of International Law (GA Resolution 2625) states:
“The territory of a State shall not be the object of acquisition by another State resulting from threat or use of force. No territorial acquisition resulting from threat or use of force shall be recognised as legal.”
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Israeli occupation of Palestinian territoriesIsraeli occupation of Palestinian territories
• In 1948 Israel unilaterally declared itself an
independent State on part of the Palestinian
territory. The first Palestinian-Israeli war broke
out. Armistice Agreements were made in 1949
and Israel gained more territory.
• In the “Six Day War” in 1967, Israel again
invaded the Sinai Peninsula (including the Gaza
Strip). It also invaded the West Bank; East
Jerusalem and the Golan Heights.
Security Council Security Council Resolution 242Resolution 242 (1967)(1967)
The Security Council …
Emphasizing the inadmissibility of the acquisition of territory by war…
1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the
application of both the following principles:
• (i)Withdrawal of Israeli forces from territories occupied in the recent conflict;…
• Defying numerous resolutions of the SC and the GA, Israel still occupies the Palestinian and Arab territories and establishes Jewish settlements. Palestinians have been homeless, without any territory and suffering untold hardships in refugee camps for more than 50 years.
• Apart from condemnation, no enforcement measures could be taken against Israel for unlawfully taking territory by military force, due to veto or threatened veto by the sole Super Power of the World.
5.5 CESSION5.5 CESSION
• Cession is the transfer of territory, usually by treaty, from one State to another. The situation is rather like the transfer of property in municipal law. Therefore, there may sometimes be exchange of territory.
• There are a number of sales of territory. France sold Louisiana to the US for 60 million francs in 1803. In 1867, Russia sold her Alaskan territory in America to the US for 7,200,000 dollars. In 1899, Spain sold the Caroline Islands to Germany for 25,000,000 Pesotas.
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• It is clear that the normal rules relating to the formation and validity of treaties apply to ‘treaties of cession’. There must be no duress or fraud in the procurement of the treaty.
• Article 52 of the Vienna Convention on the Law of Treaties, 1969, provides that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of United Nations”.
5. 6 ACCRETION AND AVULSION5. 6 ACCRETION AND AVULSION
• A State may also attain sovereignty over
new land as a result of natural forces. This
may happen slowly (accretion), for
example, by the gradual movement of a
river bed or suddenly (avulsion), for
example, by the creation of an island in
territorial waters by volcanic action.
5.7 OTHER PRINCIPLES SIGNIFICANT IN 5.7 OTHER PRINCIPLES SIGNIFICANT IN
TERRITORIAL DISPUTES TERRITORIAL DISPUTES (1) Acquiescence, recognition and estoppel(1) Acquiescence, recognition and estoppel
• Acquiescence, recognition and estoppel play a
very important role in the acquisition of territory.
• Recognition: In many cases recognition of
territorial sovereignty may occur. Recognition is
usually on the part of third States and not
necessarily the losing state.
• Recognition may take the form of a unilateral
express declaration, or may occur in treaty
provisions.
• In the Eastern Greenland case, the Court referred to treaties between Denmark and other States and observed: “To the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general, Denmark is entitled to rely upon them”.
• Acquiescence: Acquiescence arises from the absence of protest. The term acquiescence is applied to the attitude of the losing State in a dispute, whereas recognition refers to the attitude of third States.
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• Acquisition and recognition are not essential to title in the normal case. However, they are significant in controversial cases where there are competing acts of possession.
• Where each of the rival claimants can show that it has exercised a certain degree of control over the disputed territory, a tribunal is likely to decide the case in favour of the State which can prove that its title has been recognized by other Statesor there has been no protests or acquiescence by the rival State.
• Estoppel: The principle of estoppel also
plays a significant role in territorial
disputes.
• In appropriate conditions acquiescence
will have the effect of estoppel.
• In the Temple of Preah Vihear case, the
Court held that Siamese authorities had
acquiesced for many years by failing to
object to a map that had been drawn up by
a mixed commission in 1908, showing the
temple as being on the Cambodian side.
(This case indicates the importance of
acquiescence as well as estoppel).
UtiUti PossidetisPossidetis jurisjuris
• The principle uti possidetis means that “the frontiers of newly independent States are to follow the frontiers of the old colonial territoriesfrom which they emerged and that they cannot be easily altered by unilateral action”.
• The rationale behind this principle is to maintain “stability” (or status quo) of State boundaries.
• It originated in South America as a consequence of the collapse of the Spanish empire when the former provinces agreed that the limits of their sovereignty should conform to the limits of the old colonial boundaries.
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• The principle was applied in the Frontier
Dispute case (Burkina Faso v Mali) and
the International Court of Justice
confirmed that uti possidetis was a
principle of general application, not
confined solely to South America.
•
Land, Island and Maritime Frontier DisputeLand, Island and Maritime Frontier Dispute
(El Salvador v Honduras)(El Salvador v Honduras)
• In this case, the World Court relied heavily on utipossidetis.
• The Court made it clear that neither effective display of State functions nor the economic inequality generated by old boundaries was sufficient to displace the uti possidetis principle.
• At the same time, the Court observed that frontiers established by uti possidetis may be modified by the acquiescence of one State in the effective exercise of State authority by another over a disputed area.
• In 1992, the European Community (EC)
Arbitration Commission on Yugoslavia decided
that the principle of uti possidetis also applied to
newly independent States formerly part of a
federation.
• This application of uti possidetis beyond the
colonial context is an important development
and one that is necessary if stability among the
international community is to be preserved.
The right of selfThe right of self--determinationdetermination
• The right of self-determination of peoples - an established principle of CIL - a rule of jus cogens.
• In the Palestinian Wall case (2004), the ICJ reiterated that the right of self-determination is a right erga omnes, that is, applicable to all and valid against all.
• Which types of ‘people’ are entitled to exercise the right of self-determination? There is no doubt that a ‘people’ under the colonial rule or foreign domination enjoy this right. The most striking example: ‘Palestinians’.
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• The controversial question is whether self-determination can be exercised by ethnic, racial or religious groups within an already established sovereign State.
• This would encourage secessionist movementsand endanger the stability of existing States.
• The better view is to allow such ‘peoples’ only second level self-determination, that is, their cultural, social or religious preferences should be respected by the State of which they are part.
• Indeed, the principle is more concerned with which ‘people’ are entitled to exercise sovereignty over a piece of territory.
• The normal case is that an exercise of the right of self-determination will result in the territory becoming independent. The independence of East Timorese people is a good example. [An emergence of a new state].
• It is also possible for a people to choose to merge themselves with another State. [Merger with an existing state]
Geographical Continuity and ContiguityGeographical Continuity and Contiguity
• Principle of continuity’ suggests that a State is
entitled to sovereignty over the land adjacent to
and extending from an area of territory already
under its control.
• According to the ‘principle of contiguity’, a State
may claim title over territory not forming part of
its land mass, such as islands, by virtue of being
the nearest sovereign State.
• Some sort of presumption of effective occupation – a presumption that may be rebutted by better evidence of sovereign possession by a rival claimant.
• But not conclusive evidence.
• These principles can be taken into account by international tribunals in borderline cases.
