UNIT I|

STATES AS ASUBJECT OF
INTERNATIONAL LAW
Chapter 1
STATE
Definition of 'State'
ITo Greeks the term 'State' was not
known. They used the word 'polis'
which istranslated as City State. The term 'State
became current only in the
Sixteenth Century whenthe Italian Politicalthinker, Niccolo
Machiavelli (1469
1527) used it for the first time in his book, *The Prince". The
term
derived from the word 'Status' which was first used by the Tuetons. State' is
The term State has been defined by many thinkers in
different ways:
Aristotle:- State is *a union of families and villages having for itsend a
perfect and self sufficing life by which we mean a happy and
honourable life."
Cicero:-"The State is a numerous society united by a common sense of
right and mutualparticipation in advantages."
Bodin:-State is an association of families and their common possession
governed by a supreme power and by reason.
Woodrow Wilson: "State is people organised for law within definite
territory:"
D.I. Bluntschli:- State is the politically organised national person of a
definite country."
Oppenheim: The State exists when people settle in a country under
its own sovereignty."
H.J. Laski:- State is a territorial society divided into Government and
uOjeCts claiming within allotted physical area, a supremacy over other
associations."
Garner:;-The State is a community of persons more or less numerous
definite portion of territory, independent of external
permanently a
occupying an organised Government to which the great body of
COntrol and pOssessing
inhabiHtants render habitual obedience."
State' is anumerous assemblage
ofhuman beings, generally
Holland:-A whom the will of the majority, or
of an
0ccupying a certain territory, amongst
115
116 [Unit Il, Ch. 1
Public International Law
ascertainable class of persons
Imade to prevail against any is, by the of such a majority or class
strength opposeit,"
any of their number who o
Mac Iver:- State is an association which, acting through lawas
promulgated by a
Government
to this end with coercive power,
endowed demarcated,
to
maintains within a community territorially the universal external
conditionsof social order."
Dephen L. Wasby:- State is a collection of people in acertain territory
having organised Government and possessing autonomy with respect to other
such units."
Chalmers: A State is an indenendent political society occupying a
definite territory or territories, the members of which are united together for the
Purpose of resisting external force and the preservation of internal order."
John Salmond:- State is an assocjation of human beings established
for the attainment of certain ends by certain means, the ends being defence
against external enemies and the maintenance of peaceable and orderly relations
within the community itself."
Lawrence:-A State is a politicalcommunity, the members of which are
bound together by the tie of common subjection to some central authority, whose
commands the bulk of them habitually obey."
Fenwick:-"State is a permanently organised political society occupying
a fixed territory, and enjoying with the borders of that
territory freedom from
control by any other State, so that it is able to be a free agent before the world."
PitCobbett:- State is "a people permanently
bound together by one body politic by common subjection occupying a fixed territory;
to some definite
sOvereign authority,exercising through the medium of organised
Rntrolover allpersons and things within its territory; and aboveGovemment a
all capable of
maintaining relations of peace with other communities >
Phillimore:-The State is people permanently occupying a fixed
hound together by common laws, habits and customs into one body territory
Lennd
nolitic.
exercising through the medium of an organised
sovereignty and control over alIIIpersons Government,
persons and things within its independent
peace and of entering into all
of making war and globe."
boundaries, capable
international relations with the
communities of the
or elements
 Classification of States
I. Territorialand Non-Territorial States: Salmond classified States into:
(a) State without afixed territory- a nomadic
tribe; and (b) territorial
State. He says, "A non-territorial society may be organised
of the essential functions of Government, and if so, it for the fulfilment
will be a true State.
Such a position of things is, however, so rare and
permissible to regard it as abnormal." Salmond thenunimportant that it is
defines a territorial
State as "a society of men established for the
maintenance of order and
justice within a determined territory by way of force."
II. Full sovereign (Independent) and
non-sovereign
States: A sovereign or independent State is one which does(Dependent)
not derive its
authority from any other State or person or body, but has its authority
directlyunder its Constitution. It has a separate existence and is not subject
to any higher or larger whole. There is no third party to intermeddle in its
relations with other States. An independent State exhibits both the internal
and external marks of sovereignty; it does not owe allegiance to any
authority outside. Thus, the USA, the UK, India etc. are sovereign or
independent States.
On the other hand, a dependent or non-sovereign State is one which is
part of a larger whole, which has no separate existence of its own and
which depends for its authority and existence on a larger or higher whole
-to the Government of which it is subject. Sir John Salmondholds that a
dependent State is alsoa State if it possesses the essential organization by
maintaining separate legislature, judicature and executive and fulfils the
primary functions of a State by maintaining order and justice. According
tO him, limitation of its authority by another State does not militate against
its Statehood.
Unitary and Composite States
Salmond classifies States into: (a) unitary or simple; and (b) composite.
Aunitary or simple State iss one which exists by itselfas a single orsimple unit.
 mternati
lt is not divisions. A
made up of several States or territorial unitary
State possesses asingle autonomous exercising dominion
over the
whole
territory comprised withinsovereign
the State.organ
The entirety of sovereign power vests in
n o e in one Central authority i e the supreme legislative body. The
power of law-making can be
exercised in a unitary State only by onelegislative
authority. Great Britain is an example of aunitary State.
Acomposite State is one which is itselfan aggressive or group of constituent
States. Composite States again are various kinds according to Salmond. They
are (a) The Imperial State: (b)
Federal State.
Kinds of States
rolowing are the different kinds of States and non-State entities:
1)
Confederation: Confederation is formed by such States which are not
independent in the international field. Under International Law
"Confederation' has no international personality. The aim and objective of
confederation is to establish a sort of co-ordination among the States,
leaving States independent in their internal and external matters. But
under
International Law, these States are not international persons.
confederation has not been proved a success and the three importantA
unions of confederated States of modern time viz. the
and the Swiss USA, the Germany
Confederation turned into unions of Federal States.
2) Federal State: Generally, a Federal State is
or more than two sovereign formed by the merger of two
States. Under International law, a Federal
State is an international person. The
has rights over not only the Federal State exercises control and
the States. In a Federal State,member-States, but also over the citizens of
the Central authority and the generally there is a division of powers of
States through a Constitution. The States are
generally autononmous in their international matters but the federation or
the Central authority exercises
control over them.United States ofAmerica,
Switzerland and India are good examples of the Federal States. The main
difference between a confederation and a Federal
State that the Federal
is
State is an international person under International lawy while
confederation is not an internationalperson. the
3) Condominium:
tis called
When two or more States exercise
rights over a territory,
condominium. According
over aparticular territory, joint
to Starke, *a condominium exists when
powers". Acondominium is dominion
is exercised bytwo or
a
common rule of two or moremore external
territory. In it ajoint sovereignty over the States in a
population,
governing States has a separate jurisdiction over cach of the jointly
its oWn
subjects. respective
Unit II, Ch. 1]
State 123
The
Anglo-Egyptian
Sudan,the
the common Anglo-American Phoenix Islands in the South Seas under
the common administration and the new Hebrides under
Anglo-French administration furnish examples of a
condominium. In 1939, the Islands of
under the joint controlof Great Britain Canton and Edenbury were
and the United States for a placed
of 50 years. period
4) Vassal States:A vassal State is one which is
Suzerainty of another State:t has no position in thecompletely under the
Suzerain absorbs the functions of the vassal State. International law. The
instances where vassal States have a limited There are, however,
remarked by Starke: "Vassal State is onewhich international personality. As
is completely under the
Suzerainty of another State. Internationally itsindependence is so restricted
as scarcely to exist at all."
In its foreign aftairs,the vassal State
possesses no power
are governed by the State of which it is a vassal State. and allits policies
The examples of
vassal States are Rumania and Serbia before 1878,
Bulgaria between
1878 and 1908. Egypt till October 19S1 when she abrogated the 1936
Treaty by ending the privileges enjoyed by the British troops in the Suez
Canal, the Transvaal, the Orange Free State, and Outer Mongolia.
Tibet occupiesa peculiar position. It had been for centuries avassal State
under the suzerainty of China. The control which China exercised over
Tibet was nominal. In 1911 when China came into the grip of political
revolution it lost all control over Tibet which asserted its fullindependence.
Tothe foreign States its position was that of an autonomous State under
the suzerainty of China. The effective control of China over the external
affairs of Tibet was rendered possible by the Sino-India Treaty of 1951
which provided for the establishment of a Chinese Military and
Administrative Commission in Tibet. The position of Tibet today is that of
a State which is a part of China.
Protectorate According to Starke, 'Although not completely independent,
a Protectorate State may enjoy a sufficient measure of sovereignty to
Clam jurisdictional immunity in the territory of another State. It may also
sallremain a State, under International law. It is clear from this definition
that a Protectorate State can remain a State under International law and
possesses some rights and immunities. Often protectorate State entrusts
matters regarding defence to other States. For example, Sikkim was a
Protectorate State of India before it was made an associate state of India.
Subsequently, it was completely merged in India and became a State in
the Indian Union. Thus it lost all vestiges ofinternational personality and
became a
constituent unit and a t and parcel of India. Presently, Bhutan
1S a protectorate of the Union ofpartIndia by virtue of the treaty concluded
 [Unit ll,Ch. 1
124
Public International Law internal autonomy.
complete
enjoys memberofthe UN. Even
between the two States in 1949, Bhutan enjo
In September 1971, Bhutan was admitted as atreaty, Bhutanese external
Government of India,
the 1949 the
after admission to the UN, under guidance of
affairs are to be conducted with the
 IIISed States dIsU

Kinds or Modes or Methods of Recognition

These are the following kinds of recognition:
1) Express Recognition i.e. formal declaration;
2) Implied Recognition i.e. effected through acts;
3) Individual Recognition i.e. by States Individually;
4) Collective Recognition i.e. by most ofthe States collectively;
5) Conditional Recognition;
6) De facto Recognition;
7) De jure Recognition i.e. recognized State fulfils all the tests of recognition
as required by law.
Modes of recognition
(A) Express or implied (tacit) recognition
1. Express Recognition: When an existing State recognizes the new
State by a notificationor declaration, announcing the intention of recognition,
the recognition issaid to be express. In other words, it is granted in express
Unit Il,Ch. 2] State Recognition 141
terms. The formal declaration may take the form of public
of which is sent to the party recognized as a State. A statement, the text
State may be recognised
alsoby sending diplomatic note, note verbale, personal
of State or Minister of Foreign Affairs, or by a message from the Head
Minister concerned may also, by press statement, Parliamentary declaration. The
otherwise ambiguous Note or Notes verbale constitutes expressly declare that an
formalrecognition.
2. Tacit or Implied
any formal declarationas Recognition: When the existing States donot
to recognition of a new State, but at the samemake
thev indicate their intention to recognise the new time
State by some acts, it amounts
to recognition. The tacit or implied recognition results from
the intention of the recognizing the new State. The any act which implies
implication is made solely
when the circumstances unequivocally indicate the intention to
relations with the new State or new Government. But such establish formal
clear
would naturally be very limited. The following are some modes ofcutimplied cases
recognition:
a) the formal signature of a bilateral treaty by the
recognising State;
recognised and the
b the formal initiationof diplomaticrelations
between the recognized and
recognizing States;
c) the issue of consular exequatur by the
State.
recognized State to the recognising
However, there is no implied recognition in the following cases:
The conclusion of bipartite agreements amounts simply to the
of the treaty-making capacity of the other States and not to recognitionat
recognise
international law in modern practice.
i) Acceding to, or continuing to be a party to a multilateral treaty to which a
recognised State or Government is already a party or subsequently becomes
a party.
i) The retention and continued maintenance of diplomatic
representatives
for an interim period, provided there are no new appointments.
Iv) The forms and nanners of communications with, and address of foreign
authorities.
v) The institution of extradition proceeding.
V) The maintenance of all forms of contractswith the insurgent during acivil
strife.
(B) Recognition by Unilateral Acts and Collective Acts [Bilateral
AcS and Multilateral Acts]: Recognition may be granted either individually
Or collectively by a number of States.
 [Unit II, Ch. 2
PublicInternationalLaw bilateral
142
entersinto a may be treaty
a State
When unrecognised State,it be inferred
3. Individual Recognition:
or establishes diplomatic relations
cannot
exchange
with an thelatter. There theforeign State
to presumptionthat
that the former has granted recognition inferred by
of diplomatic representatives without the also be
may unrecognized State.
sending
independently. Similarly, intention
exists
ceremonial functionsinan
representatives to attend A State may express
(Multilateral Acts): a m
4. Collective Recognition commonparticipationin multilateral treaty
itsintention of recognition through unrecognisedentity. The collective
the
or an international conference along with therecognisedStates as a member
of
recognition paves the way for admission recognition' istreated|by some authors
ofthe family of nations. Such 'collective andthe only collective recognition
as 'simultaneous or general recognition',an international organisation, like the
possible today is recognition ofaStateby Collectiverecognition byitthe UN as
UN; admitting the same to its membership.
membership be treated as if had been
no more than that the entity granted
but not elsewhere.
recognised in dealings inside the UN
(C) De facto and de jure recognition Government to acquire
normal method for a new State or new
The obtain recognition from already
internationalpersonality and authority is to factoor de jure recognition.
de
existing States. Such recognition may be
facto recognition: De facto recognition is a provisional recognition
De facto recognition is granted normally
of existing States to a new State. De
State although has a legitimate
when the recognizing State considers that the new the territory is doubtful.
Government, its effectiveness and continuance to govern
Oppenheim says, *The de facto recognition of a State or Government
authority although
takes placewhen, in the view of therecognizing State the new territory under its
actually independent and wielding effective power in the of
control, has not acquired sufficient stability or does not yield offer prospects
complying other requirements of recognition,such as, willingness or ability to
fulfil international obligations."
Judge PhillipC-Jessup states, "De factorecognition isa term which has
been used without precision when properly used to mean the recognition ot tne
de facto character of a Government, it is objectionable and indeed could be
identical with the practice suggested of extended recognition without resumilE
diplomatic relations."
Prof. G. Schwarzenberger says, "when a State wants to delay thedejur:
recognition."
recognition of any State, it may, in the first stage grant de facto states
s
Regardingthetrue purpose of the defactorecognition, LauterpachtnewState
that the body claiming to be the Government of an establislhed or a conditions
actually wields effective authority without, however, satisfying other
 Unit II, Ch. 2] State Recognition 143
Ffull de jure recognition. Should these remaining conditions be forthcoming
.lrecognition de jure will become a matter of course, should they
remain
permanently absent, recognition will lapse automatically or will be
expressly withdrawn,» finally and
De facto recognition is given to the new State when
that State or
Government though independent and in effective control of the
acquiredIsufficient stabilityso as to be able to fulfil internationalterritory has not
obligation. The
question of,recognition of a Government as the de facto governed only arises
here there are two competing Governments in
nav be regarded as prelude to the permanent type of
existence. De facto recognition
recognition that is de jure
recognition. De facto recognitionis an actual recognition, but may be withdrawn
by recognizing State at any time.
Lord Atkin states, "By exercising de facto
administrative control or
exercising effective administrative control, Iunderstand
functions of aSovereign Government.... It necessarily implies exercising all the
and control of property whether for military or civil the ownership
whether warship or merchant ships. In these purpose, including vessels
that recognition of a Government as possessing circumstances,
it seems to me
all those attributes in a territory
while to subordinate to any other Government in that
territory is to recognise it
as sovereign, and for the purpose of international law as a
foreign State."
In granting de facto recognition, the recognizing States do
establish diplomatic relations.
not usually
For example, incase of Israel, India had given first de facto
In case of Bangladesh, the USA had given first de recognition.
facto recognition. In case of
Taiwan, many States in the World have given de facto
recognition even now.
De jure recognition: When an existing State considers that the
new
State is capable of possessing all the essential attributes of Statehood with
stability and permanency and it commands the general support of the
the recognitiongranted is known as dejure recognition. The de jure population,
is final. It may be given, without or without prior to de facto recognition
a new State comes into existence peacefully and recognition. When
constitutionally, de jure
recognition may be granted directly. However, when it is not so, to say when
the new State is formed through revolt, recognition may be
granted after granting
he de facto recognition. After de jure recognition, diplomatic
are exchanged. representatives
Kegarding the British practice of recognition Prof. H.A. Smith says, "The
normal policy of the country for even ahundred years has been to insist upon
certain conditions as a precedent to the grant of de jure recognition of a new
State or anew Government. We have required, first, areasonable assurance of
stability and
fhe permanence. Secondly, we have demanded evidence to show that
Goverament commands the general support of the population. Thirdly, we
 144 [Unit II, Ch. 2
Public International Law
have insisted that it shall prove itselfboth able and willingtofulfilitsint
international
obligation."
De jure recognition results from an expressedi declarationorfrom a positive
act indicating clearly the intention to grant this recognition such as the
establishment of diplomatic recognition is final, and once
given cannot be withdrawn. For relations.
de jure De jure
recognition, both recognition and the
intention to establish diplomatic relations are
necessaly
De jacto recognition may prelude tode ire recognition. The Soviet
Government in the USSR was recognised defacto by the Great Britain in
1921, de jure recognition was given in 1924.Similarly, the ltalian Conquest or
AOyssinia was de facto recognised in 1936 by Great Britain but it was recognized
de jure in 1938.
 for the purp
5. Conditional recognition: Sometimes States are recognised subject
toa condition to be fulfilled by the State in question. Since recognition is a
politicalI diplomatic function, it depends upon the discretion of the recognizing
State. Recognizing States often impose certain conditions along with their grant
ofrecognition.
For example, Berlin (1878) recognised Bulgaria, Rumania subject to the
condition that these States would not impose any religious disabilities on their
subjects. Such conditional recognition is often given to States but the non
Alilment of the condition does not normally amount to revocation of the
recognition. By breaking the condition, the recognised State may be guilty of
breach of lnternational law. According to international law, recognition denotes
that the recognised State has attained Statehood and has become a member of
the international community. Hence a condition will have no effect.
According to J.G. Starke, It is true, however, that the recognition should
under International lavw become purely and simply the cognitive act of registering
the Statehood or of Government capacity, it could not be subject to any such
extrinsic terms of conditions."
Baty says, ... .he very essence of recognition is that the recognizing
State thereby declares that it has satisfied itself that the recognised authority
possesses the distinguishing marks of a State. To say that one recognises that
has been, subject to its conduct being satisfactory in other particulars, is sheer
nonsense. It is like telling a pupil that her sum is correct if she will promise to be
agood girl."
Legal consequences of recognition
Recognition of a State has twofold consequences, i.e. political and legal.
As far as political consequence is concemed, recognition of a State shows
Willingness of therecognizing State to initiate international interaction with the
new State. Recognition is legally relevant for it proves that the recognising
Dlate considers that in its view the new entity fulfills all the required conditions
forbecoming an international subject. When a State is recognised, it acquires
Certain rights in relation to a State which has granted recognition.
Starke observes that recognition produces legal consequences affecting
the rights, powers and privileges of the recognised State or Government both at
146 Public International Law [Unit l1, Ch. 2

International and Municipal Law of States which have given it recognition,

According to Oppenheim, the following are the consequences of recognition:
1) The newly recognised State acquires the capacity to enter into diplomatic
relations with other States and make treaties with them.
the
2) In the case of a recognition of a newGoyernment to any old State
previous treaties of the predecessor of the new Government are
automatically revived and come into force.
3) The recognized State acquires the right of suing in the Courts of the
recognising State.
4) It acquires for itself and its property immunity from the jurisdiction of the
Courts of Law of the State recognizing it.
5) It also becomes entitled to demand and receive possession of property
situated within the jurisdiction of therecognising State which belonged to
-its predecessor.
6) Where the revolutionary or de facto Government of a country has been
recognised by the Government of a foreign State, a subject of such foreign
State may safely contract with that de facto Government and if by a
subsequent change, the de jure Government once again comes into power,
the restored Government is bound by International Law to treat any such
contract as valid.

7) Recognition being retrospective and dating back to the time when the
newly recognised Government actually came into power, its effect is to
preclude the Courts of the recognising State from questioning the legality
or validity of such legislative and executive acts, past and future of that
Government as are not contrary to International Law. The recognising
State therefore validates, so far as its Courts of Law are concerned transfer
of property and other transactions which were invalid before the
recognition.
8 As the consequences of recognition have a direct bearing on rights and
obligations of the State concerned and their subjects which includes the
right to sue or be sued in the Courts, it becomes necessary for the Courts
to decide as to whether a particular State is at all recognised or not. The
usual method which is followed in England or America is that the Courts
Concerned make a reference to the executive and decides on this point
according to the Governmental information. This avoids the exercise
contliet
hetween judiciary and executive and enables the Court to
jurisdiction in cases arising out as a consequence of recognition.
9) The recognising State becomes subject to various obligations urnder
International Law in connection with the recognized State or ( Governnent.
 State Recognition 147
Unit lI, Ch. 2]
.A The recognized State or Government likewise becomes bound to recnent
10)
termational obligations in general and with respect to the recognizing State
in particular.
the act of recognition removes the disabilities of the unrecognized
Bsstes Arecognised State becomes cpable of being a member of the UN. It
ocguires the full capacity to enter into diplomatic relations with other States.
 Chapter 7
MODES OF ACQUIRING STATE TERRITORY

Eollowing are the recognised modes of acquiring territory by an

existingState.
1)Occupation
Occupation is the first method of acquiring territorial sovereign. According
to Oppenheim, occupation is an act of appropriation by aState through which it
intentionally acquires sovereignty over such territory as is at the time not under
the sovereignty of another State. Thus, the territory to be acquired by any State
must be in the state of res nullius' (things belonging to none) in the sense that
it is either uninhabited or occupied by an uncivilized (people) or by a tribal
organisation which cannot be called a State.
In determining or not an occupation has taken place in accordance with
international law, the principle of effectiveness is applied for the most part. In
order that an occupation may be effective it is necessary that a State must take
possession of a territory and establish its administration over it.
'By possession Oppenheim means that the occupying State must take
the territory under its sway (corpus) with the intention of acquiring sovereignty
over it (animus). This is done by a settlement on the territory, accompanied by
some formal act which announces both that the territory has been taken
possession of and that the possessor intends to keep it under his sovereignty.
This is usually done either by a proclamation of formal appropriation of the
hoisting of a flag, which is the emblem of sovereignty. By administration' he
means that the territory is really governed by the new possessor.
In Eastern Greenland case PCIJ 1933, Series A/B No. 53] it was laid
down that occupation, to be effective, requires two elements, viz. (i) an intention
or will to act as sovereign; and (ii) the adequate exercise or display' of
sovereignty. In thiscase, title to the Eastern Greenland was disputed between
Norway and Denmark. But Denmark was able to prove that it had intentional
will to act as sovereignty and had adequately exercised or displayed its
SOvereignty over the Eastern Greenland.
The Court stated the law on the topic as follows: A claim to sovereignty
based not upon some particular act or title such as treaty, of cession, but merely
- upon continued display of authority involves two elements each of whih
215
216
Public International Law [Unit lI, Ch.7
must be shown to exist: the intention and will to act as soverei¡n and so
claiming State
actual exercise or display of such authority". Thus the
beyond all shadows of doubts and suspicions that it has intention x,St
prove
to act as asovereign on the disputed territory and it must be shown that it has
displayed its effective authority over it. Iftthese tvwo conditions stand fulfilled by
aparticular State then that very particular
State has every right to occunati
absence of the two elemente
otherwise any type of occupation in the
value at all.
above shall be of nolegal
In the case of the Island of Palmas,[(1928). Annual Digest 1927--28, Case
reoardi
90], a dispute arose between the USA and the Netherlands
No. USA contended that the Island n.
sovereignty over the Island of Pal. The
treaty to the USA and hence
discovered by Spain which transferred it under a
every title to that Island. On the
treaty must be respected by alland she had
neither Spain nor the USA could be
other hand the Netherlands claimed that
establish any effective administration over it and it was the Netherlands
able to the Island.
administration on
which established effective
award to the Netherlands and
The Arbitrator, Mr. Huber adjudged the
reasons for his award he laid supreme emphasis on the fact that long
giving the
can confer title at international law.
authority
and continuous exercise of effective
the Minquiers and Ecrehos case [ICJ REPOTS 1953, 47 the
In importanceof actual exercise
InternationalCourt of Justice laid emphasison the
of Statefunctions; e.g. local administration,
local jurisdiction and acts oflegislative
sovereignty necessary to
authority as proving the continuous display of
confirm title.
who first comes to know ofit
An inhabited territory belongs to the person,
possession onetakes is most legal and lawful. Vattel says., All men have
and
possession of any one, and
equalrights to things which have not comeinto the
possession. When, therefore,
these things belong to the person who first takes may lawfully take
a nation finds acountry uninhabited, and without owners, it intention in this
possession of it, and after it has given sufficient signs of its
respect, it may not be deprived of it by another nation".
2) Annexation
By the term 'annexation' is meant the forcible acquisition of territory '
acquiring
one State at the expense of another. Annexation as a mode of where the
sovereignty is resorted to under twosets of circumstances viz., () State:and
territory annexed has been conquered or subjugated by the annexing tothe
(i) where the territory annexed is in a position of virtual subordination
annexing State at the time the latter's intention of annexation is declared.
 Unit II, Ch. 7] Modes of Acquiring State Territory 217
Come writers call conquest as the mode of
acquisition of a
Oppenheim holds that conquest alone is not enough to validate theterritory.
sovereignty over enemy territory. Conquest of title to
enemy territory coupled with
formal annexation gives a validItitle to the conqueror.
intosubjugation. It is the very annexation which makes the
Annexation turns conquest
cease to exist and brings the territory under the vanquished State
conqueror's
it is quiteclear that alegal title by conquest arises when the sovereignty.
Thus
nied and controlled by the military forces of the territory is completely
conqueror and conguering
State annexes by its declaration the conqueredterritory. It
is not.acquired byvictorious States over the
follows that sovereignty
teritory a vanquished State, if
of
they expresslydisclaim an intention to annexit.
3) Accretion
Fdward Colins defines "accretion' thus: A State
gccretion when new land is acquires territory by
formed within itsexisting territorial limits; the sea
recedes, a river dries up an island appears within the territorial sea,
These
acquisitions seldom result in either significant additions of territory or in
controversy".
Starke says that title by accretion occurs where new territory is
mainly through natural causes to the territory under the sovereignty of added,
State. Accretion is a process by means of which the former acquiring
under particular State is increased by new formations. territory already
Oppenheim defines accretion' as increase of land through new
formations'.An island coming out of ariver isan accretion to the territory of a
State which owns the river. Accretion may be either natural or
artificial. If the
increase of land is the result of human efforts, the accretion is artificial. If,on
the other hand, it is through natural formations the accretion is natural.
Embankment, dykes and break-waters which require human efforts for either
formation or artificial accretions while, new-born islands are natural accretions.
New islands are formed on rivers and maritime belt by natural processes and
add to the territory ofa State.The question of accretion by the birth of anew
island arose in the case of the Anna [5C. Rob (373)] relating tothe capture of
a Spanish
vessel by a British privateer. The United States claimed that the
this claim oncaptured within the American maritime belt. Lord Stowell upheld
the ground that the vessel was captured beyond three miles of the
wiContthininthe
ental American maritime belt. The mud islands were held to be accretions
TCoast but within three miles of some mud island which were formed
extWasendimeasured
ng the territory of the USA. This case: also shows that the maritime-belt
from mud islands and not from the Coast.
the
218 Public International Law [Unit ll, Ch.7

The rule regarding accretion may be illustrated as follows: Suppose State A

has aterritory Band some deposits are made to Bby the erosion and corrosion
of river-currents. Since State A is the owner of the main land B the accretion
willgo to the ownership of Aand not to other one.
4) Prescription
Under municipal lavw, title is created by prescription and even the adverse
possession ripened by prescription gives a good title to the possessor. In the
words of Hull, "Title by prescription arises out of the long continued possession,
where no original source of proprietary right can be shown to exist or where
possession in the first instance being wrongful, the legitimate proprietor has
neglected to assert his rights or has been unable to do so". Every country has
the law of prescription which prescribes certain period by the lapse of which
title is created.

Oppenheim describes 'prescription' as the acquisition of sovereignty over

it
a territory through continuous and undisturbed exercise of sovereignty over
historical
during such a period as is necessary to create under the influence of
development the general conviction that the present condition of things is in
conformity with international order". Acquisition of title by prescription is based
hard and
on long possession and user. Under the international law there is no
fast rule of prescription. As to what length of time is necessary for acquisition
of title by prescription depends on the circumstances of each case. Long
possession and user over a territory acquiesced in by other States is enough to
complete title by prescription.
There is no recognised principle of international law fixed in terms of
years the period of time that will constitute a good root of title. The Treaty of
1897 by which the boundary dispute between Great Britain and Venezuela
prescribed aperiod of fifty years for acquisition of title be prescription. But this
is not followed in practice generally by all the States.
Johnson states, Acquisitive prescription is to mean by which, under
international law, legal recognition is given to the right of a State to exercise
sovereígnty over and or sea territory in cases where that State has, in fact,
exercised itsauthority ina continuous, uninterrupted, and peaceful manner over
the area concermed for asufficient period oftime, provided that all other interested
and afected States (ín the case of land territory - the previous possessor, in the
aRe of sea territory - neighbouring States and other States whose maritime
interests are affected. States have failed within a reasonable time to refer the
matter to the appropriate international organisation or international tribunal or
exceptionally in cases where no such action was pOssible - have failed to manifest
 Modes of Acquiring State Territory 219
Unitll, Ch. 7]

their oppositionin a:sufficiently positive manner through the instrumentality of

diplomatic protests. The length of time required for the establishment of a
prescriptivetitle on the one hand, andIthe extent of the action required to prevent
establishment ofa prescriptive title on the other hand, are invariable matters
the
factsto be decided bythe international tribunal before which the matter is
of
eventually brought adjudication". Thus, according to Johnson, the title by
prescription follows if a State's possession of aterritory has been (i) under
claim of sovereign title; (ii) peaceful and uninterrupted; (iii) public; and (iv) for
time.
aconsiderable length of
In Direct United States Cable Co. v. The Anglo-American Telegraph
Company Ltd. [(1877) 2 App Case 394), it was observed that long possession
and user over a territory acquiesced in by other States is sufficient tocomplete
tite by prescription and held that Great Britain acquired title by prescription.
5)Cession
If a Sovereign State surrenders some portionof its territory to another
Sovereign State it is called 'cession'. Oppenheim defines 'cession' as the
transfer of Sovereignty over State territory by the owner State to another State".
Oppenheim is of the viewthat The treaty of cession must be followed by
actual transfer of the territory to the new owner State, unless such territory is
already occupied by the new owner, as in the case where the cession is the
outcome of war and the ceded territory has been during such war in the military
occupation of the State to which it is now ceded".
Cession takes place by agreement and ordinarily the territories added
under the terms of a treaty. Cession may be necessitated by the terms of a
treaty of peace on the conclusion of a war. The owner State can cede the
territory without compensation or by way of gift. Cession is also effected by
sale or exchange which are indicative of the intention of transferring State to
transfer sovereignty to the other. The cession rests on the principle that right of
transferring its territory is a fundamental attribute of the sovereignty of a State.
The sale of Alaska by Russia to the USA in 1897 and Great Britain in
0l are the examples of voluntary cession. Compulsory cession is illustrated
by the cession to Germany by France in 1871 ofAlsace-Lorraine subsequently
returned to France at the end of the First World War. Austria ceded Venice to
France by way of gift in 1866.
Berubari is a small square miles situated in the State of
areawas
West Bengal of India, There having 9
an agreement between India and Pakistanin
 by which India transferred the area of Berubari of India to Pakistan (Now
1958
Bangladesh).
6)Lease of State territory
AState is entitledto lease its territory to another State for aterm of years,
Lease of State territoryis ofarecent origin andI materially differs from lease of
the private law. Apart fromthe element of coercion in their negotiation it would
over the territory was more nonmi
seem that the sovereignty of the lessor State
than real.
on the completios
There is nouniform rule as to what passes to the lessee
the lease. More often the exercise of sovereignty and not the sovereiont.
of those made h.
th1s type were
itself is ceded by means of a lease. Leases of
Wei Hai Wei and the land
China in 1898. She leased Kiaochouto Germany,
Kuang Chon Wan to France
opposite the Island of Hong Kong to Great Britain; jurisdictional rights
and Port Arthur to Russia. Sometimes lease grant certain sovereignty over
of
and do not involve transfer of sovereignty or the exercise
which Great Britain made in
the leased territory. Of this type were the lease operation
for the use of
1941in respect of small pieces of territory to the USA
of Naval air bases in New Foundland, Bermuda, Jamaica,
St. Lucia, Antigua,
Trinidad and British Guians for ninety-nine years.
) Adjudication or Award
Starke mentions an additional mode of acquisition of territorial sovereigntya
where
occurs
namely, adjudication or award by a Conference of State. This
Conference of the victorious powers at the end of a war assigns territory to a
redistribution
particular State in view ofa general peace settlement. The territorial
point.
of Europeat the Versailles Peace Conference 1919 is an instance in
8) Pledge of State Territory
State is also entitled to take a loan on the security of its territory or par
A
of it. History evidences numerous cases of pledges of State territories. In I00
the then Republic of Genoa pledged Corsica to France.
9) Acquisition by newly emerged State whenit
Anewly emerged State can acquire territorial sovereignty only split
becomes independent. For example Bangladesh in 1971, and Yugoslavia
into three countries.
10)Plebiscite
Scitum
The term 'Plebiscite' is formed of two words: Pleb' (the people),
people
or
(a decree). It means an expression of will by direct vote of a whole
Unit Ii, Ch. 7]
Modes of Acquiring State Territory
221
community ona publiciissue, especially one concerning change of Government
orConstitution.

Eorexample, East and West Germany were united by plebiscite

TheIISSR was split into 15 separate States by imeans of
.thstan. Uzbekistan, Byelorussia, Azerbaijan, Georgia, plebiscite namely,
Iativian, Estonian, etc. acquired their territory by Kirghistan, Armenia,
means of plebiscite.
Modes of Loss of State Territory
Territory may be lost through the following modes:
) Cession (cessio) means 'a giving up.,
aright, or property. Through cession onerelinquishment
or abandonment of
cession, the other State loses it'.
party acquires the territory through
2) Subjugation and Prescription: AState may lose territory by its own
annexation by a victorious State with the intention of
its own territory. In the same way incorporating it into
of one State by another undisturbed possession of the territory
during certain period of time causes its loss to
a
the former. According to Kelson, these
are in violation of International Law. two modes of acquisition ofterritory
3) Prescription: When a State occupies a particular territory for a long
period then it is entitled to acquire it through
the State which had occupation over it prescription. On the contrary,
earlier may lose it.
4) Revolt: Revolt followed by succession of a part of
State is a mode of losing territory. The territory of the owner
means of revolt are to be found in example of succession territory by
Netherlands breaking off from Spain
1579, USAfrom Great Britain in 1776,
Brazil from Portugal in 1822 and
Belgium from Netherlands in 1830.
5) Dereliction (Renunciation): The territory may be lost by
which means by renunciation ofa territory. This
means, a
dereliction
its occupation over a territory and in State may slacken
the course of time may lose not only
the occupation over it but also
sovereignty. Dereliction to be
must comprise the actual abandonment of a complete
territory and the intention of
giving up sovereignty.
6) Granting of independence: When
the newly independence is given to a
emerged State acquires territorial sovereignty and thecolony,
which grants independence (independent State) loses that territory. State
) Operation of Nature: A State may lose
territory when its territory,
gencrally, islands, vanishes due to volcanic eruptions, land subsistence,
222 PublicInternational Law [Unit lI, Ch.7

soil erosion and other natural calamities. Theearthquake may also result
in the vanishment of an island. A number of tiny-little islands have
disappeared in last two hundred years due to natural calamities.
8) Plebiscite: Ifthepeople ofa territory are called upon togive their verdict
for either remaining in one country, or the other, then the country in which
they favour to merge is gainer whereas the State from which they wish to
come is loser. We find that Junagarh, a native State of India, at the time of
partition opted for India, by way of plebiscite, now there is no State of
Junagarh. India acquired that territory.