HI - Week IX - Acquisition of Territory
Territory of a State
Sovereignty
Sovereignty over territory the right
to exercise therein, to the exclusion of
any other state, the functions of a state
Territory of a state :
Land areas
Territorial waters
airspace
Cession
Transfer of territory from one state
to another
By treaty
Nemo dat quod non habet
Island of Palmas Case
Island of Palmas Case
(Miangas)
Treaty of Paris 1898 Spain ceded the
Philippine Islands to the U.S. Island
of Palmas as part of the Philippines
Under Dutch control
Max Huber Dutch had administered
it since the early 18th century
Spain had no title to the Island in 1898
Consequently, the U.S. could not
acquire title from Spain
Island of Palmas Case
(Miangas)
Max Huber :
Spain’s discovery would have to be
evaluated according to the law in force
at the time of discovery
Those connected with the rival
claimant’s actual exercise of authority
over Palmas
The later activities were legally more
important acts of sovereignty
Occupation
The acquisition of terra nulius
belonged not to any state
Or, it may have been abandoned by
the previous sovereign fail to
exercise authority over the territory
and an intention to abandon it
Occupation
Effective control
an intention and will to act as
sovereign
Agreement between states to leave
particular territory remains unclaimed :
Article 2 of the 1967 Treaty on Principles
Governing the Activities of States and
Other Celestial Bodies
the 1959 Antartica Treaty
Occupation
Antartica before 1959 :
Several states claim over various areas
sometimes overlapped
None of the areas was subject to effective
control by the states concerned
Treaty ratified by states interested
Provides freedom of movement and scientific
exploration throughout Antartica
Parties agree to cooperate with one another
and not to use Antartica for military purposes
Common heritage of mankind
Prescription
acquisition over territory which
belonged to another state whose rights
had been extinguished for some reason
by the passage of time
needs effective control
an intention and will to act as
sovereign
Conquest
Acquisition over territory by using
military force
Lawful when war had come to an end
peace treaty
In the absence of treaty >> clear
evidence that all resistance had ceased
German annexation of Poland during the
2nd WW was invalid since Poland allies
continued to struggle against Germany
Conquest
In the 19th century CIL allowed no
limit on the right of states to go to war
In the 20th century UN Charter
the use of force is illegal except in the
context of self-defence
Stimson Doctrine no recognition
over situations brought about by
aggression 1931, Puppet State of
Manchukuo in Manchuria set up by
Japanese troops
Conquest
1932, the assembly of the league of
nations passed a resolution it is
incumbent upon the members… not to
recognize any situation, treaty or
agreement which may be brought about
by means contrary to the covenant
1970, the UNGA basic principle of Int’l
Law no territorial acquisition resulting
from the threat or use of force shall be
recognized as legal
Conquest
Stimson Doctrine only to delay the
grant of recognition but not to
prevent the action itself
in 1936 the conquest of the Italian over
Ethiopia was recognized de jure by the
United Kingdom
Conquest
UNSC resolution 662 (1990)
unanimously
declared
the
annexation, of Kuwait by Iraq, null
and void and called upon states and
institutions not to recognize it and to
refrain from any action that might
be
interpreted
as
indirect
recognition
Accretion
The addition of new land to a state’s
territory by the action of natural
forces
The formation of islands within the
state’s territorial waters
Acquiescence, recognition
and estoppel
Dispute between states over territory
int’l tribunal is naturally wish to see
whether either of the parties had actually
admitted the title or claim of the other
Recognition actual open acknowledgement
by one party of the other’s rights in the
territory
Acquiescence tacit acknowledgement that
might be inferred from a failure of one party
to protest at the other’s exercise of
sovereignty in the disputed territory
Acquiescence, recognition
and estoppel
Estoppel or preclusion a party can
not waive his claim by virtue of a
previous act or omission that was
inconsistent with the maintenance of
that claim
Minor rights over
territory
Condominium two states may
agree to exercise sovereignty jointly
over a certain territory
New Hebrides Islands (Vanuatu), in
the pacific, were a Franco – British
condominium before they became
independent in 1980
Minor rights over
territory
Temporary transfer of sovereignty
By leasing part of its territory to
another state
Exercise full sovereignty as long as the
lease remains in force
Hong Kong until the agreement expired in
1997
Portugal agreed in 1987 to return Macau to
China in 1999
Eastern Greenland Case
(1933)
Denmark v. Norway over Eastern Greenland
1931, following expeditions to the area and
the establishment of wireless states, Norway
proclaimed a sovereignty on the basis of terra
nullius
Denmark had never actually established
colonies but had for a long period up to 1931
claimed sovereign rights over the area
accompanied from 1814 by activities mention
in treaties Denmark made with other states
Eastern Greenland Case
(1933)
Danish grants of trading concessions
Apply Danish legislative and
administrative provisions
Attempts to get international
recognition
Court found Danish had demonstrated
acquisition of title by effective control :
The intention and will to act as sovereign
Actual exercise or display of such authority
Western Sahara Case
(1975)
Colonized by Spain in 1884 – 1976
Nomadic Saharan tribesmen
Rich in phosphates an important
competitor of Morocco
1966, GA decolonization on the basis of
self-determination UNGA Res 1514 (XV)
invited Spain and neighboring states,
Mauritania and Morocco to determine the
earliest possible date to hold a referendum
under UN auspices with right to selfdetermination
Western Sahara Case
(1975)
1975, a referendum was hold and
King Hassan of Morocco claimed the
territory on the basis of historic title
Mauritania also made an overlapped
claim
Was Western Sahara at the time of
colonization of Spain a territory
belonging to no one (terra nullius)?
Airspace
The 1944 Chicago Convention on
International Civil Aviation
Article 1 : the contracting states
recognize that every state has
complete and exclusive sovereignty
over the air space above its territory
Sovereignty
Sovereignty over territory the right
to exercise therein, to the exclusion of
any other state, the functions of a state
Territory of a state :
Land areas
Territorial waters
airspace
Cession
Transfer of territory from one state
to another
By treaty
Nemo dat quod non habet
Island of Palmas Case
Island of Palmas Case
(Miangas)
Treaty of Paris 1898 Spain ceded the
Philippine Islands to the U.S. Island
of Palmas as part of the Philippines
Under Dutch control
Max Huber Dutch had administered
it since the early 18th century
Spain had no title to the Island in 1898
Consequently, the U.S. could not
acquire title from Spain
Island of Palmas Case
(Miangas)
Max Huber :
Spain’s discovery would have to be
evaluated according to the law in force
at the time of discovery
Those connected with the rival
claimant’s actual exercise of authority
over Palmas
The later activities were legally more
important acts of sovereignty
Occupation
The acquisition of terra nulius
belonged not to any state
Or, it may have been abandoned by
the previous sovereign fail to
exercise authority over the territory
and an intention to abandon it
Occupation
Effective control
an intention and will to act as
sovereign
Agreement between states to leave
particular territory remains unclaimed :
Article 2 of the 1967 Treaty on Principles
Governing the Activities of States and
Other Celestial Bodies
the 1959 Antartica Treaty
Occupation
Antartica before 1959 :
Several states claim over various areas
sometimes overlapped
None of the areas was subject to effective
control by the states concerned
Treaty ratified by states interested
Provides freedom of movement and scientific
exploration throughout Antartica
Parties agree to cooperate with one another
and not to use Antartica for military purposes
Common heritage of mankind
Prescription
acquisition over territory which
belonged to another state whose rights
had been extinguished for some reason
by the passage of time
needs effective control
an intention and will to act as
sovereign
Conquest
Acquisition over territory by using
military force
Lawful when war had come to an end
peace treaty
In the absence of treaty >> clear
evidence that all resistance had ceased
German annexation of Poland during the
2nd WW was invalid since Poland allies
continued to struggle against Germany
Conquest
In the 19th century CIL allowed no
limit on the right of states to go to war
In the 20th century UN Charter
the use of force is illegal except in the
context of self-defence
Stimson Doctrine no recognition
over situations brought about by
aggression 1931, Puppet State of
Manchukuo in Manchuria set up by
Japanese troops
Conquest
1932, the assembly of the league of
nations passed a resolution it is
incumbent upon the members… not to
recognize any situation, treaty or
agreement which may be brought about
by means contrary to the covenant
1970, the UNGA basic principle of Int’l
Law no territorial acquisition resulting
from the threat or use of force shall be
recognized as legal
Conquest
Stimson Doctrine only to delay the
grant of recognition but not to
prevent the action itself
in 1936 the conquest of the Italian over
Ethiopia was recognized de jure by the
United Kingdom
Conquest
UNSC resolution 662 (1990)
unanimously
declared
the
annexation, of Kuwait by Iraq, null
and void and called upon states and
institutions not to recognize it and to
refrain from any action that might
be
interpreted
as
indirect
recognition
Accretion
The addition of new land to a state’s
territory by the action of natural
forces
The formation of islands within the
state’s territorial waters
Acquiescence, recognition
and estoppel
Dispute between states over territory
int’l tribunal is naturally wish to see
whether either of the parties had actually
admitted the title or claim of the other
Recognition actual open acknowledgement
by one party of the other’s rights in the
territory
Acquiescence tacit acknowledgement that
might be inferred from a failure of one party
to protest at the other’s exercise of
sovereignty in the disputed territory
Acquiescence, recognition
and estoppel
Estoppel or preclusion a party can
not waive his claim by virtue of a
previous act or omission that was
inconsistent with the maintenance of
that claim
Minor rights over
territory
Condominium two states may
agree to exercise sovereignty jointly
over a certain territory
New Hebrides Islands (Vanuatu), in
the pacific, were a Franco – British
condominium before they became
independent in 1980
Minor rights over
territory
Temporary transfer of sovereignty
By leasing part of its territory to
another state
Exercise full sovereignty as long as the
lease remains in force
Hong Kong until the agreement expired in
1997
Portugal agreed in 1987 to return Macau to
China in 1999
Eastern Greenland Case
(1933)
Denmark v. Norway over Eastern Greenland
1931, following expeditions to the area and
the establishment of wireless states, Norway
proclaimed a sovereignty on the basis of terra
nullius
Denmark had never actually established
colonies but had for a long period up to 1931
claimed sovereign rights over the area
accompanied from 1814 by activities mention
in treaties Denmark made with other states
Eastern Greenland Case
(1933)
Danish grants of trading concessions
Apply Danish legislative and
administrative provisions
Attempts to get international
recognition
Court found Danish had demonstrated
acquisition of title by effective control :
The intention and will to act as sovereign
Actual exercise or display of such authority
Western Sahara Case
(1975)
Colonized by Spain in 1884 – 1976
Nomadic Saharan tribesmen
Rich in phosphates an important
competitor of Morocco
1966, GA decolonization on the basis of
self-determination UNGA Res 1514 (XV)
invited Spain and neighboring states,
Mauritania and Morocco to determine the
earliest possible date to hold a referendum
under UN auspices with right to selfdetermination
Western Sahara Case
(1975)
1975, a referendum was hold and
King Hassan of Morocco claimed the
territory on the basis of historic title
Mauritania also made an overlapped
claim
Was Western Sahara at the time of
colonization of Spain a territory
belonging to no one (terra nullius)?
Airspace
The 1944 Chicago Convention on
International Civil Aviation
Article 1 : the contracting states
recognize that every state has
complete and exclusive sovereignty
over the air space above its territory