Topic: Title to Territory

Definition of territorial sovereignty:

Judge Huber in Island de Palmas case- “Sovereignty in the relations between States signifies
independence. Independence in regard to a portion of the globe is the right to exercise therein, to
the exclusion of any other State, the functions of a State.”

Island de Palmas case:

The Island of Palmas Case (1928) was a territorial dispute between the Netherlands and the
United States, arbitrated by Max Huber. The case concerned sovereignty over the Island of
Palmas (Miangas), located between the Philippines (then a U.S. territory) and the Dutch East
Indies (now Indonesia).

Key Issues:

1. U.S. Claim – The U.S. argued that it inherited sovereignty over the island from Spain
through the 1898 Treaty of Paris, which ended the Spanish-American War. The U.S.
asserted that Spain had sovereignty before ceding the Philippines.

2. Netherlands' Claim – The Netherlands countered that it had exercised continuous and
peaceful control over the island since the 17th century, despite any prior Spanish claims.

Ruling:

● The arbitrator ruled in favor of the Netherlands, stating that effective control (continuous
and peaceful administration) was more important than historical claims based on
discovery.
● Even if Spain had originally claimed sovereignty, it had not effectively governed the
island, whereas the Dutch had exercised actual control.

Legal Precedents:

● Principle of Effective Occupation – Mere discovery or historical claims are insufficient

without actual governance.
● Continuity of Sovereignty – A state must continuously and effectively exercise authority
over a territory to maintain its sovereignty.

Outcome:

The island remained under Dutch sovereignty (now part of Indonesia), and the ruling reinforced
the principle that effective control outweighs historical discovery in territorial disputes.
Parts of territory:
(notes from Brownlie)
- Apart from land permanently above the low-water mark, territorial sovereignty may be
exercised over various geographical features associated with or analogous to land
territory.
- Territorial subsoil- the rule universally accepted is that the subsoil belongs to the State
which has sovereignty over the surface.
- Airspace- airspace superjacent to land territory, internal waters, and the territorial sea is
in law a part of state territory, and as a consequence other states may only use such
airspace for navigation or other purposes with the agreement of the territorial sovereign.
The law does not permit a right of innocent passage, even though airspace over the
territorial sea. Aerial trespass may be met with appropriate measures of prevention, but
does not normally justify instant attack with the object of destroying the trespasser.
- Internal waters- lakes and rivers included in the land territory of a state, as well as waters
on the landward side of baselines from which the breadth of the territorial sea is
calculated, comprise internal waters subject to state sovereignty. No right of innocent
passage for foreign vessels exists in the case of internal waters.

How far can you claim the territorial sea? 12 miles.

Phases-
Phase 1: 1492- 1493
How to assess land: mere visual confirmation of land. (see it, claim it.)

Mere visual apprehension was sufficient. Least amount of physical action required. This
coincided with the Paper Bull Proclamation by the Pope in 1493 which divided the world in 2,
b/w the 2 strongest Catholic powers at the time: Spain and Portugal. Spain received title to all
undiscovered lands in Western Hemisphere with the exception of lands already claimed i.e.
Canada and Brazil. Portugal received the rest of the unknown world that is everything to the East
not vet discovered
Other states challenged the Papal Bull and claimed that mere visual apprehension was not
sufficient.

Phase 2: 1400-1800 (overlap with phase 1)

How to assess land: symbolic act of planting a flag along with mere visuals.

As part of the factum there need not only be mere visual apprehension but symbolic acts
needed to be present as well. This is because other states were becoming outspoken and held the
belief that more significant actions needed to be done for title to territory to be gained.
Each colonial power would land on the territory and engaged in some form of ceremony, the
English for example used the rod and turf ceremony (pick up a piece of twig of the ground and
claim title on behalf of territory). The Spanish believing in the power of the Pope would nail a
cross into the ground and attach Spanish coin to it.

Phase 3: 1750-present (overlap)

How to assess land: effective occupation (can’t just plant a flag) and it must be established in
political/ religious presence.

This phase required effective occupation. Occupation is a legal term and it is defined by Brownie
as denoting legal possession of land and necessarily settlement. You can have effective
occupation and not have a single national by for example enacting laws or entering into treaties.
It a state can show that it has legal possession and control of a state it would have effective
occupation
Why did states believe that symbolic actions were not enough? It is hard to prove that state
claimed territory at a particular time and in historical evidence it shows that these could be
removed and replaced by another state.
Thus, in the 1st phase seeing the land would be enough if accompanied by the will to own as a
sovereign, in the 2nd phase seeing the land with symbolic act would be enough if accompanied
by the will to own as a sovereign and in the 30 state, effective occupation would be sufficient if
accompanied by requisite intention.

Significance of title to territory and duties of states

- Doctrine of Inter-temporal Law-

The doctrine of inter-temporal law is a principle in international law that governs how legal
rules apply over time. It has two key components:

1. The principle of contemporaneity – A legal situation must be assessed based on the law
that was in force at the time the situation arose. This means that past actions should be
judged by the legal standards that applied at that time, not by later developments in the
law.
2. The principle of evolutionary interpretation – In cases involving treaties or territorial
sovereignty, the law may evolve over time. If an issue persists, it may need to be
interpreted in light of subsequent legal developments and changing international norms.

* The reason for this is that in the historic section of use of force there was a time when force
could be used to acquire territory. However, the use of force became impermissible in 1945
when the enactment of the UN Charter. Thus, if one state claims title to territory by CONQUEST
it is now illegal. (apply the doctrine of inter-temporal law to fix this).
 - Critical Dates
Definition- this is the date chosen by the court as the moment when a dis[ute can be said to have
crystallized (both states realize there is a conflict as to ownership of territory). or come into
being.
This date becomes a date after which the court will significantly restrict evidence.
E.g. if a court fixes a date as Jan 18th 2025, the court will not give much regard to any actions
occurring after this date.

Why?
1- the first relates to the doctrine of inter-temporal law- that date on which the dispute is said to
have crystallized may be crucial to one parties’ case.
2- setting a critical date restricts evidence and therefore states from creating and relying upon
self- serving evidence.

The concept of a critical date is of especial relevance with regard to the doctrine uti possidetis,
which posits that a new state has the boundaries of the predecessor entity, so that the moment of
independence itself is the critical date.

Modes of acquisition of Territory:

1- ORIGINAL AND DERIVATIVE TITLE-

Original title- acquired over terra nullius (land previously vacant), through the methods of
discovery and accretion/ avulsion. Territory not possessed by a community having a social and
political organization

Accretion/ Avulsion:
These describe the ways that nature will contribute or remove territory from your state. The
general rule is that if new land somehow arises within the boundaries of your territory, then you
get it. As happened in 1986 in Japan, if an undersea volcano erupts in your territorial sea and a
new island emerges, then because it is within your territorial boundaries, it can be acquired- e.g.
Japan acquired title over a territory in this manner.

* Accretion describes the geographical process by which new land is formed and becomes
attached to existing land. Where new land comes into being within the territory of a state, it
forms part of the territory of the state. It describes a slow and gradual process of accumulation of
territory.
* Avulsion: refers to title acquired in a dramatic manner such as a dramatic shift in river bed. It
involves a change in the course of a river forming a boundary, resulting in a different situation
being created depending on whether it is imperceptible and slight or a violent shift.

It must be noted that accretion is a more gradual process of accumulation of land whereas
avulsion is a more dramatic process.

General rule: if the shift of the river is dramatic, the boundary will remain where the river used to
flow. When the shift is over a period of time, the boundary may shift within the river.

Discovery/ Occupation- two requirements- (i) Factum- physical control over territory
- (ii) Animus- intention to possess

Derivative title- acquired over land possessed by another sovereign, through the methods of
conquest, cession and prescription.

Conquest- (not used anymore due to article 2.4 UN Charter- use of force)
(“the territory of a State shall not be the object of military occupation resulting from the use of
force in contravention of…the Charter)

Conquest is the act of defeating an opponent and occupying all or part of its territory. It does not,
itself, constitute a basis of title to the land. The territory remains the legal possession of the
ousted sovereign.

Conquest may result from a legal or an illegal use of force. By the Kellog-Briand Pact of 1928,
war was outlawed as an instrument of national policy, and by article 2(4) of the UN Charter all
member states must refrain from the threat or use of force against the territorial integrity or
political independence of any state. However, force will be legitimate when exercised in self-
defence. Whatever the circumstances, it is not the successful use of violence that in international
law constituted the valid method of acquiring territory.

Acquisition of territory following an armed conflict would require further action of an

international nature in addition to domestic legislation to annex. Such further necessary action
would be in the form either of a treaty of cession by the former sovereign or of international
recognition.
Cession- transfer of territory from one sovereign to another, usually by treaty

Cession involves the peaceful transfer of territory from one sovereign to another (with the
intention that sovereignty should pass) and has often taken place within the framework of a
peace treaty following a war. The acquiring state cannot possess more rights over the land than
its predecessor had.

Review: Island of Palmas Case

The claims of the US were based on an 1898 treaty with Spain which involved the cession of the
island.
It was emphasized by the arbitrator and accepted by the parties that Spain could not thereby
convey to the Americans greater rights than itself possessed.
'Nemo dat quad non habet'- a state can transfer only what they own. For instance where a part of
a state's territory has rights vested in an/r state- an international servitude by which an/r state may
have rights over territory that are vested within the territory. Example if a state has right to use
river course as a means of transportation, even if territory sold the 3rd state retains its rights of
way for transportation. Therefore the state can only transfer what it has.

Article 51 and 52 of Vienna Convention:

Article 51- The expression of a State's consent to be bound by a treaty which has been procured
by the coercion of its representative through acts or threats directed against him shall be without
any legal effect.
Article 52- A treaty is void if its conclusion has been procured by the threat or use of force in
violation of the principles of international law embodied in the Charter of the UN.

Prescription- Like discovery BUT involves the acquisition of another sovereign’s territory.
It requires satisfaction of the same two elements (Factum and Animus.)
Test for prescription:
- Peaceful
- Continuous
- Exclusive
- Public
Where a state acquired territory from a previously known sovereign with its consent simply by
means of continuous and peaceful occupation.

The controversial thing about this kind of situation is that it is known by the state whose territory
it is stealing.
Brownlie-disapproves very strongly of acquisition of territory w/o consent and suggests that the
only way a state can acquire title to territory by prescription is not only by doing all the
things you need to do to show prescription but you must have one of two things
occurring.
Either, (1) the acquiescence of the former sovereign or (2) the recognition of
the international community.

Loss of territory:
- Abandonment.
A state may by conduct or by express admission acquiesce in the extension of its competitor's
sovereignty.
Absence of a reasonable level of state activity may cause loss of title (corollary to effective
occupation)

> Case: Clipperton Island Case (France v Mexico) 1931

On November 17, 1858 (phase 3), Lieutenant Victor Le Coat de Kerweguen, of the French Navy,
commissioner of the French Government, drew up on the island of Clipperton, under the orders
of the Minister of Marines and declared the sovereignty of the said island as belonging to
Emperor Napoleon the 3' A boat succeeded on the 20 of November in landing some of its
members the crew on the island. Kerweguen notified the French consulate in Honolulu of his
mission and the Consulate published the journal the Polynesian declaring France's sovereignty
over the island.
Thereafter, until the end of 1887 no positive and apparent act of sovereignty can be recalled
either on the part of France or any other state.
Mexico disputed Frances claim to the territory and asserted her right to the territory. Mexico
claimed that the island had actually been discovered by the Spanish Navy and by virtue of the
law then in force, fixed by the Bull of Alexander the 74, had belonged to Spain and afterwards,
from 1836,to Mexico as the successor state of the Spanish state. Mexico sent La Democrata with
a detachment of marines and officers to the island. The soldiers found three Americans there.
The made the Americans lower the American flag and hoist the Mexican flag in its place.
The question therefore is has the French in doing what it has done displayed effective
occupation. Arbitrator said yes. Intention to own as a sovereign and factum was found to exist.
Arbitrator held that although usually a state would show this factum and animus by establishing
organizations to make laws, he suggests that the terrain and type of territory allows less in the
way of acts indicating possession that might be required elsewhere. Held that France had title to
territory, had notified the world and didn't lose title by abandonment.

Held:
The actual and not the nominal taking of possession is a necessary condition of occupation.
From the first moment of occupation Clipperton was at the absolute and undisputed
disposition of France.
From the moment of occupation of an uninhabited island, sovereignty over that island is
complete.

It follows from these premises that Clipperton Island was legitimately acquired by France on
November 17, 1858. There is no reason to suppose that France had subsequently lost her right by
derelicto, since she never had the animus of abandoning the island. and the fact that she has not
exercised her authority there in a positive manner does not imply the forfeiture of an acquisition
already definitely protected.

Topic: Law of the Sea