Law 303 – Public
International Law
Territory – Common Spaces
Territory and State Sovereignty
State has (almost) absolute and unchallengeable power over territory
and people therein
(Limitations: diplomatic immunities, human rights law)
How is territory acquired?
1. Occupation and prescription (effective control)
2. Cession (agreement)
3. Conquest (use of force)
4. Accretion and avulsion (land changes)
5. Judgments (solving border disputes) (only some authors mention it)
* Territorial disputes among states:
“Critical date”: date on which a potential title has manifested itself to such an extent
that subsequent acts can not alter the title.
1. Occupation and prescription (effective control)
Effective exercise of state functions on territory without objections
• Occupation -- terra nullius* (no man’s land)
• Prescription -- territory formally belongs to another State
“Continuous and peaceful display of territorial sovereignty… is as good as a title.”
(Island of Palmas, 1928)
*Discovery of terra nullius does not establish title if not followed by occupation.
Criteria for “Effective Control”
Display of Intention/animus Continuous Peaceful
sovereignty
State must exercise Must be public (in Continuous, ongoing Without objections by
the functions of a any form) Until “critical date” other state/s (form of
state (regulatory, objections debated)
administrative,
executive, judicial
etc.)
• Clear intention to • Acts after critical date • If objections, degree
• Degree of control acquire are not considered (!) of control must be
depends on high; even then
circumstances of case unlikely to result in
(value/imp. of territory, sovereignty
objections)
2. Cession
Transfer of territory by agreement (general agreement or boundary treaty)
• Giving State must have sovereignty over territory
• “nemo dat quod non habet” (one cannot give what one does not own)
• Transfer must respect people’s right to self determination
• Treaty rules apply
• Boundary treaties/treaties of cession are valid erga omnes
• VCLT, Art 52: a treaty is void if it is a product of use of force
3. Conquest
Territory acquired by use of force
• Prior to 1945: use of force(war) was allowed
• After 1945: use of force is no longer allowed (jus cogens/peremptory norm)
What law should apply to assess territorial claims based on historical use of
force: contemporary international law or inter-temporal international law?
4. Accretion and Avulsion
Gradual shift Violent Shift
Expansion of territory through gradual Dramatic sudden increase of
increase of land territory (e.g. volcanic eruption)
* When river shifts, only accretion will change the border between states.
5. Judgments
• Can settle disputes and crystallise title.
Relevant Principles
• Principle of continuity: State is entitled to sovereignty over land adjacent
to/extending from territory already under its control
• Principle of contiguity: State is entitled to sovereignty over land in proximity to
territory already under its control
• Uti possedetis: Frontiers of new state must follow borders of colonial territory
and cannot be changed unilaterally; same rule applicable to new states that
were previously part of a federation
• Respect for the right to self-determination
Common areas (res communis) = belong to mankind
(i) Outer Space and other celestial bodies*
1966 Outer Space Treaty (110 ratifications)
1979 Moon Agreement (18 ratifications)
• Open to use by all states for the benefit of mankind
• Not subject to appropriation by any state
• No WMD may be stationed or placed in orbit in outer space
• Outer space may only be used for peaceful purposes
* Outer space is above air space. Air space over territory/territorial sea belongs
to state.
Common areas (res communis)
(ii) Antarctica (frozen land)
7 States have claimed sovereignty (UK, Argentina, Chile, France, Australia, Norway,
N.Zealand)
1959 Antarctica Treaty (54 ratifications)
• Use for peaceful and scientific purposes
• Prohibition of nuclear testing
• Importance of preserving environment
• All sovereignty claims suspended (since 1961)
1991 Protocol on Environmental Protection: prohibits all activity on mineral resources
except for scientific purposes, for 50 years or subject to treaty modification
Common areas (res communis)
(iii) Arctic (frozen sea)
2 States have claimed sovereignty (Russia, Canada)
• Should high seas rule apply?
• Currently no treaty regime like that of Antarctica
