HI - Week IX - Acquisition of Territory

(1)

Territory of a State

(2)

Sovereignty

 Sovereignty over territory Sovereignty over territory __ the right the right to exercise therein, to the exclusion of to exercise therein, to the exclusion of any other state, the functions of a state any other state, the functions of a state

 Territory of a state :Territory of a state :

 Land areasLand areas

(3)

Cession

 Transfer of territory from one state Transfer of territory from one state to another

to another  By treatyBy treaty

 Nemo dat quod non habet Nemo dat quod non habet

(4)

Island of Palmas Case

(Miangas)

 Treaty of Paris 1898 Treaty of Paris 1898 __ Spain ceded the Spain ceded the Philippine Islands to the U.S.

Philippine Islands to the U.S.  Island Island of Palmas as part of the Philippines

of Palmas as part of the Philippines  Under Dutch controlUnder Dutch control

 Max Huber Max Huber __ Dutch had administered Dutch had administered it since the early 18

it since the early 18thth century century

 Spain had no title to the Island in 1898Spain had no title to the Island in 1898

 Consequently, the U.S. could not Consequently, the U.S. could not acquire title from Spain

(5)

Island of Palmas Case

(Miangas)

 Max Huber :Max Huber :

 Spain’s discovery would have to be Spain’s discovery would have to be

evaluated according to the law in force evaluated according to the law in force

at the time of discovery at the time of discovery

 Those connected with the rival Those connected with the rival

claimant’s actual exercise of authority claimant’s actual exercise of authority

over Palmas over Palmas

 The later activities were legally more The later activities were legally more important

(6)

Occupation

 The acquisition of terra nulius The acquisition of terra nulius _ belonged not to any state

belonged not to any state

 Or, it may have been abandoned by Or, it may have been abandoned by the previous sovereign

the previous sovereign  fail to fail to

exercise authority over the territory exercise authority over the territory

(7)

Occupation

 Effective controlEffective control

 an intention and will to act as an intention and will to act as

sovereign

 Agreement between states to leave Agreement between states to leave

particular territory remains unclaimed :

 Article 2 of the 1967 Treaty on Principles Article 2 of the 1967 Treaty on Principles

Governing the Activities of States and Governing the Activities of States and

Other Celestial Bodies Other Celestial Bodies

(8)

Occupation

 Antartica before 1959 :Antartica before 1959 :

 Several states claim over various areasSeveral states claim over various areas  sometimes overlapped sometimes overlapped

 None of the areas was subject to effective None of the areas was subject to effective

control by the states concerned

 Treaty ratified by states interested Treaty ratified by states interested

 Provides freedom of movement and scientific Provides freedom of movement and scientific

exploration throughout Antartica

 Parties agree to cooperate with one another Parties agree to cooperate with one another

and not to use Antartica for military purposes

(9)

Prescription

 acquisition over territory which acquisition over territory which belonged to another state whose rights belonged to another state whose rights had been extinguished for some reason had been extinguished for some reason

by the passage of time by the passage of time  needs effective controlneeds effective control

 an intention and will to act as an intention and will to act as sovereign

(10)

Conquest

 Acquisition over territory by using Acquisition over territory by using

military force

 Lawful when war had come to an end Lawful when war had come to an end __

peace treaty

 In the absence of treaty >> clear In the absence of treaty >> clear

evidence that all resistance had ceased

 German annexation of Poland during the German annexation of Poland during the

2

2ndnd WW was invalid since Poland allies WW was invalid since Poland allies

continued to struggle against Germany

(11)

Conquest

 In the 19In the 19thth century century _ CIL allowed no CIL allowed no

limit on the right of states to go to war limit on the right of states to go to war  In the 20In the 20thth century century _ UN Charter UN Charter _

the use of force is illegal except in the the use of force is illegal except in the

context of self-defence context of self-defence

 Stimson Doctrine Stimson Doctrine __ no recognition no recognition over situations brought about by over situations brought about by

aggression

aggression  1931, Puppet State of 1931, Puppet State of Manchukuo in Manchuria set up by Manchukuo in Manchuria set up by

(12)

Conquest

 1932, the assembly of the league of 1932, the assembly of the league of

nations passed a resolution

nations passed a resolution  it is it is

incumbent upon the members… not to incumbent upon the members… not to recognize any situation, treaty or recognize any situation, treaty or agreement which may be brought about agreement which may be brought about

by means contrary to the covenant by means contrary to the covenant

 1970, the UNGA 1970, the UNGA __ basic principle of Int’l basic principle of Int’l

Law

Law  no territorial acquisition resulting no territorial acquisition resulting

from the threat or use of force shall be from the threat or use of force shall be

(13)

Conquest

 Stimson Doctrine only to delay the Stimson Doctrine only to delay the grant of recognition but not to

grant of recognition but not to prevent the action itself

prevent the action itself

 in 1936 the conquest of the Italian over in 1936 the conquest of the Italian over Ethiopia was recognized de jure by the Ethiopia was recognized de jure by the

(14)

Conquest

 UNSC resolution 662 (1990) UNSC resolution 662 (1990) _ unanimously declared the unanimously declared the

annexation, of Kuwait by Iraq, null annexation, of Kuwait by Iraq, null and void and called upon states and and void and called upon states and institutions not to recognize it and to institutions not to recognize it and to refrain from any action that might refrain from any action that might be interpreted as indirect be interpreted as indirect

(15)

Accretion

 The addition of new land to a state’s The addition of new land to a state’s territory by the action of natural

territory by the action of natural forces

forces

 The formation of islands within the The formation of islands within the state’s territorial waters

(16)

Acquiescence, recognition

and estoppel

 Dispute between states over territory Dispute between states over territory __

int’l tribunal is naturally wish to see int’l tribunal is naturally wish to see whether either of the parties had actually whether either of the parties had actually

admitted the title or claim of the other admitted the title or claim of the other

 Recognition Recognition __ actual open acknowledgement actual open acknowledgement

by one party of the other’s rights in the

territory

 Acquiescence Acquiescence __ tacit acknowledgement that 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

(17)

Acquiescence, recognition

and estoppel

 Estoppel or preclusion Estoppel or preclusion __ a party can a party can not waive his claim by virtue of a not waive his claim by virtue of a previous act or omission that was previous act or omission that was inconsistent with the maintenance of inconsistent with the maintenance of

(18)

Minor rights over

territory

 Condominium Condominium _ two states may two states may agree to exercise sovereignty jointly agree to exercise sovereignty jointly

over a certain territory over a certain territory

 New Hebrides Islands (Vanuatu), in New Hebrides Islands (Vanuatu), in the pacific, were a Franco – British the pacific, were a Franco – British condominium before they became condominium before they became

(19)

Minor rights over

territory

 Temporary transfer of sovereigntyTemporary transfer of sovereignty

 By leasing part of its territory to By leasing part of its territory to another state

another state

 Exercise full sovereignty as long as the Exercise full sovereignty as long as the lease remains in force

lease remains in force

 Hong Kong until the agreement expired in Hong Kong until the agreement expired in 1997

1997

 Portugal agreed in 1987 to return Macau to Portugal agreed in 1987 to return Macau to China in 1999

(20)

Eastern Greenland Case

(1933)

 Denmark v. Norway over Eastern GreenlandDenmark v. Norway over Eastern Greenland

 1931, following expeditions to the area and 1931, following expeditions to the area and

the establishment of wireless states, Norway the establishment of wireless states, Norway proclaimed a sovereignty on the basis of terra proclaimed a sovereignty on the basis of terra

nullius nullius

 Denmark had never actually established Denmark had never actually established

colonies but had for a long period up to 1931 colonies but had for a long period up to 1931 claimed sovereign rights over the area claimed sovereign rights over the area accompanied from 1814 by activities mention accompanied from 1814 by activities mention

(21)

Eastern Greenland Case

(1933)

 Danish grants of trading concessionsDanish grants of trading concessions  Apply Danish legislative and Apply Danish legislative and

administrative provisions

 Attempts to get international Attempts to get international

recognition

 Court found Danish had demonstrated Court found Danish had demonstrated

acquisition of title by effective control :

(22)

Western Sahara Case

(1975)

 Colonized by Spain in 1884 – 1976Colonized by Spain in 1884 – 1976

 Nomadic Saharan tribesmenNomadic Saharan tribesmen

 Rich in phosphates Rich in phosphates __ an important an important

competitor of Morocco

 1966, GA 1966, GA _ decolonization on the basis of decolonization on the basis of

self-determination

self-determination  UNGA Res 1514 (XV) UNGA Res 1514 (XV)



 invited Spain and neighboring states, invited Spain and neighboring states,

Mauritania and Morocco to determine the

earliest possible date to hold a referendum

under UN auspices with right to

(23)

self-Western Sahara Case

Western Sahara Case

(1975)

 1975, a referendum was hold and 1975, a referendum was hold and

King Hassan of Morocco claimed the King Hassan of Morocco claimed the territory on the basis of historic title territory on the basis of historic title  Mauritania also made an overlapped Mauritania also made an overlapped

claim claim

 Was Western Sahara at the time of Was Western Sahara at the time of colonization of Spain a territory

colonization of Spain a territory

(24)

Airspace

 The 1944 Chicago Convention on The 1944 Chicago Convention on International Civil Aviation

International Civil Aviation

 Article 1 : the contracting states Article 1 : the contracting states recognize that every state has recognize that every state has complete and exclusive sovereignty complete and exclusive sovereignty