The University of Dodoma

School of Law
Public International Law
(LW 2202)

Lecture Series
on
Territory In International Law

Introduction

 International law is based on the concept of state,

 But the state cannot acquire its international personality without a territory,
 As such, territory is undoubtedly the basic characteristic of a state,
 Because of its central role in the scheme of international law, there has developed legal
rules protecting the inviolability of territory,
 The principle of respect for the territorial integrity of states is as equally important as is
the norm prohibiting interference in the internal affairs of other states,

 On a negative note, however, technological and economic changes which have resulted to
interdependence have reduced the exclusivity of territory,
 Also the transnational concerns such as human rights and self-determination have tended
to impinge upon the exclusivity of territories,
 The growth of international organizations and development of the concept of ‘common
heritage of mankind’ are also relevant factors for the reducing exclusivity of territory,
 With all such developments, however, “territorial sovereignty” remains a key concept in
international law,

 As is the municipal legal systems, international law has also developed a series of rules
governing the transfer and control of territory,
 Unlike the municipal system, there is a critical difference in the consequences that result
from a change in the legal ownership of land in international law,
 In international law a change in ownership of a particular territory involves also a change
in sovereignty, in the legal authority governing the area,

States and Territorial Sovereignty

 How states acquire territories is both a legal and political question,

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  For older states, the concept of recognition help dismiss the question,
 However, similar traditional approaches, (recognition), has been used to approach the
problem of territories for newer states,
 It is the recognition of title rather than acquisition of titles, that is at play,

 There are basically two methods by which a new entity may gain its independence as a
new state:
 By constitutional means, that is by agreement with the former controlling
administration in an orderly devolution of power, or
 By non-constitutional means, usually by force, against the will of the previous
sovereign
 In both cases, what appears to be involved is a devolution or transfer of sovereignty from
one power to another, in which, the title to the territory also passes from the previous
sovereign to the new administration,
 Other cases where newer entities gains independence, may most likely be contrary to the
wishes of the previous regime,
 These may likely be Secession or Revolution (self-determination),
 The concept of recognition is thus critical, whereby, recognition also denotes acceptance
of the consequences of the new status,
 Other modes of territorial acquisition are:
 Occupation of terra nullius, (No body’s land),
 Prescription, (by passage of time), a person who has enjoyed “quiet and
uninterrupted” possession of land for a long time should be granted a right to it,
 Accretion (Geographical process by which new land is formed and becomes
attached to existing land, or an increasing land by permanent retreat of the high-
water marks of a waterfront property, land reclamations, etc)
 Subjugation (or conquest),
 There are also:
 Boundary treaties, (Treaties through which additional territory is acquired or lost
or uncertain boundaries are clarified by agreement between the states concerned)
 Boundary awards (A decision by the International Court or Arbitral Tribunal
allocating title to a particular territory or determining the boundary line as
between two states,
 These constitute establishment or confirmation of a title that is binding upon the parties,

Some Concepts

Accretion

 This describes the geographical process by which new land is formed and becomes
attached to existing land,
 An example may be the creation of islands in a river mouth or the change in direction of a
boundary river leaving dry land where it had formerly flowed,
 Where new land comes into being within the territory of a state, it forms part of the
territory of the state and there is no problem,

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Cession

 This involves the peaceful transfer of territory from one sovereign to another (with the
intention that sovereignty should pass),
 Cession has often taken place within the framework of a peace treaty following a war,
 The orderly transference of sovereignty by agreement from a colonial or administering
power to representatives of the indigenous population could be seen as a form of cession,

Conquest and the Use of Force

 Conquest denotes the use of force,

 The principle that an illegal act cannot give birth to a right in law is well established in
municipal legal systems,
 However, in international law a title over territory acquired as a result of use of force are
usually accepted by virtual of the act of recognition,
 Conquest, of course, may result from a legal or an illegal use of force,
 It is legal when it is exercised in self-defence,
 Any other cases may likely be illegal, They are illegal under the:
 Kellogg–Briand Pact of 1928, which outlawed wars, and
 Article 2(4) of the United Nations Charter in which all member states must refrain
from the threat or use of force against the territorial integrity or political
independence of any state,
 As already noted acquisition of territory following an armed conflict would require
international recognition to be legitimate,

Occupation

 Occupation is a method of acquiring territory which belongs to no one, (terra nullius) and
which may be acquired by a state in certain situations,
 The occupation must be:
 by a state and not by private individuals,
 must be effective,
 must be intended as a claim of sovereignty over the area,
 must be over a vacant land not the high seas which is regarded as res communis
 must relate primarily to uninhabited territories and islands, but with few
exception, in which it may also apply to certain inhabited lands,
 Occupation is usually preceded by discovery, which is the realisation of the existence of a
particular piece of land,
 However, even in history such a mere realisation or sighting was insufficient to constitute
title to territory,
 Something more such as raising of flags or by a solemn proclamations was required,
 However, in the contemporary international law, a new concept is used, and that is
effective occupation of the territory, following the discovery.

Prescription

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  Prescription is a mode of establishing title to territory which is not terra nullius and
which has been obtained either unlawfully or in circumstances wherein the legality of the
acquisition cannot be demonstrated,
 Prescription is also said to be a legitimisation of a doubtful title by the passage of time,
 The International Court in the Botswana/Namibia case noted that the possession must be:
 Peaceful,
 Uninterrupted,
 Public and
 Endure for a certain length of time
 Prescription differs from occupation in that it relates to territory which has previously
been under the sovereignty of a state,

Critical Date

 The critical date refers to a determining moment at which the rights of the parties are
considered crystallised so that acts after that date cannot alter the earlier legal position,
 The Critical Date can be:
 The date of a particular treaty where a particular treaty provisions are at issue, or
 The date of occupation of territory
 The relevance of the concept of critical date in based on the doctrine of uti posidetis,
 The doctrine of uti posidetis, posits that a new state has the boundaries of the predecessor
entity, so that the moment of independence itself is the critical date,

Territorial Integrity

 The principle is well established and is protected by a series of rules.

 The rule prohibiting interference within the domestic jurisdiction of states, article
2(7) of the United Nations Charter, and
 The rule forbidding the threat or use of force against the territorial integrity and
political independence of states, article 2(4) of the United Nations Charter,
 The principle of territorial integrity much influenced the idea of uti possidetis,
 uti possidetis is originally a Latin American idea whereby the administrative divisions of
the Spanish empire in South America were deemed to constitute the boundaries for the
newly independent successor states,
 uti possidetis is more accurately reflected in the practice of African states, as stated in a
resolution of the Organisation of African Unity in 1964, that colonial frontiers existing as
at the date of independence constituted a tangible reality and that all member states
pledged themselves to respect such borders,
 The application of the principle has the effect of freezing the territorial title existing at the
moment of independence which is also the critical date,
 The purpose of the principle is:
 to protect the independence and
 stability of new states

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Beyond ‘uti possidetis’

 The principle of uti possidetis is not able to resolve all territorial or boundary problems,
 Where there is a relevant applicable treaty, then the matter will be dealt with according to
that treaty,
 Once defined in a treaty, an international frontier achieves permanence even if the treaty
itself is to cease to be in force,
 The continuance of the boundary would be unaffected and may only be changed with the
consent of the states directly concerned,

The Common Heritage of Mankind (res communis)

 In 1970, the UN General Assembly adopted a Declaration of Principles Governing the

Seabed and Ocean Floor and designated them as the common heritage of mankind,
 This was reiterated in articles 136 and 137 of the 1982 Convention on the Law of the Sea,
 The Convention provided that no sovereign or other rights would be recognized with
regard to the area and,
 Further, that exploitation will only take place in accordance with the Convention,

 On the other hand, Article XI of the 1979 Moon Treaty emphasises that the moon and its
natural resources are the common heritage of mankind,
 As such, the moon is also incapable of national appropriation and not subject to a
particular regime of exploitation,
 While a res communis regime permits freedom of access, exploration and exploitation, it
should strictly:
 regulate exploration and exploitation,
 establish management mechanisms, and
 employ the criterion of equity in distributing the benefits of such activity

The Polar Regions

 The polar regions, also called the frigid zones, of the earth are the regions of the planet
that surround its geographical poles (north and South Poles),
 The Polar/Arctic region is also of strategic importance,
 It constitutes a vast expanse/area of inhospitable territory reach in natural
resources,
 In 1959 the Antarctic Treaty was signed by all states concerned with territorial claims or
scientific exploration in the region,
 The major effect of this Treaty, includes the demilitarisation of Antarctica, and the
suspension (not elimination), of territorial claims during the life of the treaty, (Article
IV(2)),
 Accordingly:

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.
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 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 does not also terminate the present regimes over the area, as such, it has
consequently legitimized it, and more importantly, The treaty encourages the freedom of
scientific investigation and the exchange of information,
 Countries with various claims to the polar region are the United States (Alaska), Canada
(Yukon), Denmark (Greenland), Norway, Finland, Sweden, Iceland and Russia,
 Their title are largely based on mere discovery, occupation and the long exploitation of
mineral resources,

Leases and Servitudes

 These are legal rights exercisable by states over the territory of other states,
 By characteristics, they lack absolute sovereignty over them,
 Leases and servitudes are rights attached to the land and so may be enforced even though
the ownership of a particular land passes to another sovereign,
 Rights in this nature are in legal terminology referred to as rights in rem.

Leases

 Leases of land rose into prominence in the nineteenth century as a way of obtaining
control of usually strategic points without the necessity of actually annexing/possessing
the territory,
 Sovereignty over the leased territory is regarded as having passed to the lessee for the
duration of the lease, upon which event it would revert to the original sovereign who
made the grant,

Servitudes

 Servitudes exists where the territory of one state is under a particular restriction in the
interests of the territory of another state,
 Examples of servitudes would include the right to use ports or rivers in, or a right of way
across,
 Or an obligation not to fortify/secure particular towns or areas in the territory,
 Servitudes may exist for the benefit of the international community or a large number of
states,
 The rights attached to territory for the benefit of the world community were created with
respect to the Suez and Panama Canals,
 Article 1 of the Constantinople Convention of 1888 declared that:
 The Suez Maritime Canal shall always be free and open in time of war as in time
of peace, to every vessel of commerce or of war without distinction of flag,
 To show that, these rights are attached to the land, the Egyptian nationalization of the
Canal Company in 1956 did in no way affect the international status of the Suez Canal.

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The Law of Outer Space

 There were a variety of theories prior to the First World War with regard to the status of
the airspace above states and territorial waters,
 The theories were justifiable both from the defence point of view and in the light of
evolving state practice regulating flights over national territory,
 The trend was then reflected in the 1919 Paris Convention for the Regulation of Aerial
Navigation, which recognised the full sovereignty of states over the airspace above their
land and territorial sea,
 It is thus according to this Convention that, the international law rules protecting
sovereignty of states apply to the airspace as they do to the land below,
 Even the International Court in the Nicaragua case, noted that,
 ‘The principle of respect for territorial sovereignty is also directly infringed by the
unauthorised overflight of a state’s territory by aircraft belonging to or under the
control of the government of another state,
 The Court further noted in the Benin/Niger case that:
 ‘a boundary represents the line of separation between areas of state sovereignty,
not only on the earth’s surface but also in the subsoil and in the superjacent
column of air,
 As such, there is no right of innocent passage through the airspace of a state,
 Accordingly, aircrafts may only traverse the airspace of states with the agreement of
those states,
 in occasions where such an agreement has not been obtained, then, that amounts to an
illegal intrusion which will justify interception from the state whose territory is intruded,
 that is however referred to as a principle of complete sovereignty over airspace,
 Worth noting is that, the principle of complete sovereignty over airspace is qualified by
various multilateral and bilateral conventions which permit airliners to cross and land in
the territories of the contracting states,
 Not only that but also, various recognised conditions, accepted regulations and the
development of the law of outer space further qualifies the principle of complete
sovereignty over the airspace,

The Outer Space

 It was soon realized that, states sovereignty over territorial airspace to an unrestricted
extent is not viable,
 Then the states sovereignty was limited in height,
 While it is difficult to say precisely where such a boundary lines is, figures between 50
and 100 miles have been put forward,

The Regime of Outer Space

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  Beyond the point separating air from space, states have agreed to apply the international
law principles of res communis,
 Accordingly, no portion of the outer space may be appropriated to the sovereignty of
individual states,
 There are a number of General Assembly Resolutions to this effect:
 UN General Assembly resolution 1962 (XVII), adopted in 1963, entitled the
Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space,
 This resolution lays down a series of applicable legal principles which include the
provisions that:
 The outer space and celestial bodies were free for exploration and use by all states
on a basis of equality and in accordance with international law, and that,
 The outer space and celestial bodies were not subject to national appropriation by
any means,
 In addition, the Declaration on International Co-operation in the Exploration and Use of
Outer Space was adopted in 1996 in resolution 51/126,
 This latter Declaration called for international co-operation, with particular attention
being given to the benefit for and the interests of developing countries and countries with
incipient space programmes,
 The legal regime of outer space was clarified by the signing of the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies of 1967,
 This Treaty reiterates that:
 The outer space, including the moon and other celestial bodies, is not subject to
national appropriation by any means and emphasises that the exploration and use
of outer space must be carried out for the benefit of all countries,

 The Treaty does not establish a precise boundary between airspace and outer space but it
provides the framework for the international law of outer space,
 Article 6 for instance, provides for international responsibility for national activities in
outer space, including the moon and other celestial bodies,
 The purpose for such an international responsibility provision is to ensure that national
activities in the outer space are carried out in conformity with the Treaty,
 This aspect of space law (state responsibility) was further developed by the Convention
on International Liability for Damage Caused by Space Objects of 1972,
 Accordingly:

 Article XII of which provides for the payment of compensation in

accordance with international law and the principles of justice and equity for
any damage caused by space objects,
 Article II provides for absolute liability to pay such compensation for
damage caused by a space object on the surface of the earth or to aircraft in
flight, and
 Article III provides for fault liability for damage caused elsewhere or to
persons or property on board a space object.

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  In 1979, the Agreement Governing the Activities of States on the Moon and other
Celestial Bodies was adopted,
 This Agreement provides for:
 The demilitarization of the moon and other celestial bodies,
 Article IV, the exploration and the use of the moon shall be the province of all
mankind and should be carried out for the benefit of all,
 Article XI emphasises that the moon and its natural resources are the common
heritage of mankind and are not subject to national appropriation by any means,
 Under article XI(5) and (7) states have agreed to establish an international regime
to govern the exploitation of the resources of the moon, when such exploitation
becomes feasible,
 The main purposes of the international regime to be established are to ensure:
 the orderly and safe development of the natural resources of the moon,
 the rational management of those resources,
 the expansion of opportunities in the use of those resources,
 the equitable sharing by all states parties in the benefits derived from those
resources,
 the taking into consideration of the interests and needs of the developing
countries, as well as the efforts of those countries which have contributed either
directly or indirectly to the exploration of the moon.

 Two important points are worth noting concerning the regime:

 Firstly, the proposed international regime is only to be established when
exploitation becomes feasible,
 Secondly, there is a moratorium on exploitation, although not on ‘exploration, for
scientific purposes.

Assignment Question for Group 1, 2, 3 and 4

With authorities and concrete examples, discuss the application of the concept of res communis.
 In addition to written work, groups shall also do a class presentation of their work

Relevant Instruments

1. The Antarctic Treaty, 1959

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 2. The Convention the Regulation of Antarctic Minerals Resource Activities, 1988
3. The Protocol on Environmental Protection to the Antarctic Treaty, 1991
4. UN General Assembly Resolution 43/83,
5. The Moon Treaty, 1979
6. The Constantinople Convention, 1888
7. The Paris Convention for the Regulation of Aerial Navigation, 1919
8. The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies,1967
9. The Convention on International Liability for Damage Caused by Space Objects, 1972
10. The Convention on the Registration of Objects Launched into Outer Space, 1975
11. The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects, 1968

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