The Concept of Territory in International Law
From subjective approach, the concept of territory in
International Law has remained a dubious aspect to be regulated due to several unsteady
circumstances. Based on the book, International law is based on the concept of
the state. The state in its turn lies upon the foundation of sovereignty, which
expresses internally the supremacy of the governmental institutions and
externally the supremacy of the state as a legal person. But sovereignty
itself, with its retinue of legal rights and duties, is founded upon the fact
of territory. From this point of view, the legal theory should be emerged as
following illustration:
Sovereignty + Territory = State --> International
Law
In the simplest way and the most convenient definition
from the previous statement, it can be assumed that the concept of territory shared
similar significance role with its sovereignty. I concluded that the concept
indicated two different aspects which constitute each other and it is Territorial
Sovereignty. Territorial Sovereignty is a collective principal in foundation of
the concept in territory within International Law. Without subjecting to any
particular sovereignty, any territory would be considered invalid to be an
object in International Law. Similarly, any sovereignty without recognition of
territory from other states would be considered invalid as well to be argued in
International Law.
Is there any possibility to alter a fundamental
concept in the conception of territory in International Law? Should the concept
of territory persevered as its already prevailed territory in the past, despite
the fact that world era is constantly changing? Well, these questions regarding
about the possibility of changing the concept in International Law might be
considered possible based on my
perspective because International Law is not a constant and rigid concept.
It is already a fact that technological and
particularly socioeconomic changes have had an impact as interdependence
becomes more evident and the rise of such transnational concerns as human
rights and self-determination have tended to impinge upon the exclusivity of an
authority. On the other hand, since the law reflects political conditions and
evolves, in most cases, in harmony with reality, international law has had to
develop a series of rules governing the transfer and control of territory.
The very nature of human emerged the contingency to
alter the basis concept of territory in International Law. If the
concept of international law reflected its value towards evolvement of politics
and reality, it is more likely to witness legitimatized exercises
of power such as Occupation, Annexation, Cession, and Prescription come
into reality. These are only
a few recognized exercise of power to have legal aspect to acquire another
territory. However, in political term, it is not encouraged to legitimate these
actions because they are either part of military enforcement or act of aggression.
However, some of the exercises of power above have been considered illegal in
International Law since UN Charter was declared.
In conclusion, I keep consider the concept of
territory in International Law has a vagueness in its principle because people
who actually have high authorities are the capable ones on determining the
concept of territory in international law. In one reality case, International
Law is ratified and preserved by United Nations. However, if there is a
violation by a country towards another country, it is United Nations role as
the decisions maker to determine whether the country had violated International
Law.
Accordingly international law must deal also with all
the various effects of a change in territorial sovereignty and not confine its
attentions to the mere mechanism of acquisition or loss of territory.
Territorial sovereignty
The international rules regarding territorial
sovereignty are rooted in the Roman law provisions governing ownership and
possession, and the classification of the
different methods of acquiring territory is a direct descendant of the Roman
rules dealing with property. In other words, the regulation of determining
territory in International Law first issued by Roman method of categorizing the
different methods of acquiring territory. Despite of that, International Law
still faces difficulties in the implementation of its value. Law,
being so attached to contemporary life, cannot be easily transposed into a
different cultural milieu.
This contradiction resulted to the sum up in confusion
to the concept of International Law. Therefore, suppose there is a dispute over
a land, Judiciary will only consider all the relevant arguments and will award
the land to the state which relatively speaking puts forward the better legal
case.
Nonetheless, there is still an affirmation on the term
of Territorial Sovereignty relates to both the factual and legal conditions
under which territory is deemed to belong to one particular authority or
another. In other words, it refers to the existence of those facts required
under international law to entail the legal consequences of a change in the
juridical status of a particular territory.
The disagreement on territory in international law resulted
in different classification on defining its legality. The contention may be occur
to a certain area or over the status of the country itself
particularly all the territory comprised in a particular state, as for example Israel
under Zionist movement claimed that the land of Jerusalem which were under
Palestine authority was their rightly preserved land.
In some cases, International law also recognizes
territory over which there is no sovereign. The term is widely known as Terra Nullius which means ‘Nobody’s
Land’ and derived from Roman law. To be considered as Terra Nullius is when the territory has never been a subject to any
sovereignty or any prior sovereign relinquished the sovereignty. Terra Nullius
is mostly recognized as a grand opportunity for other country to occupy this
territory, for one famous example is when British occupied the land of
Indigenous people of Australia because British consider the natives were not
subject to British Law. In addition, there is a category
of territory called Res Communis which also derived from Roman law and generally means not
capable of being reduced to sovereign control.
New states and title to territory
Under classical international law, until a new state
is created, there is no legal person in existence competent to hold title. Moreover,
a new state can only be a state as long as it is recognized. This conventional
way has been focused on how recognition from other states should be the foundation
to a sovereign territory rather than the legally obtained land.
Furthermore, even until now, the international
community has traditionally approached the problem of new states in terms of
recognition, rather than in terms of acquisition of title to territory. This
was evolved naturally because of human nature. This means that states have
examined the relevant situation and upon
ascertainment of the factual conditions have accorded recognition to the new
entity as a subject of international law.
There has been relatively little discussion of the
method by which the new entity itself acquires the legal rights to its lands.
While the conformist does not seem interest on solving this dilemma, this lack
of discussion resulted in the dubious approach on the urge to comprehend of a
new state under International Law. One famous example from contemporary era is
the eternal conflict between Israel and Palestine. This is the most
undetermined problem to solve.
If the recognition approach in International Law is
implemented, it still would not end the conflict because of the dubious basis
principle. Israel is recognized as a state despite of acquiring the land from
Palestine, whereas Palestine whose land has been acquired was not recognized until
it establish a sovereign government. This point of view indicated that the
territory of a state does not fully matter anymore as long as it is recognized
from other states.
One approach to this problem has been to note that it
is recognition that constitutes the state, and that the territory of the state
is, upon recognition, accepted as the territory of a valid subject of
international law irrespective of how it may have been acquired. This theory
also emphasizes upon recognition of a situation and not upon the method of
obtaining the rights in law to the particular territory.
Although several efforts have been made, the barrier
lies on the main point which is domestic judiciary, a legal prohibition on
interference within the internal mechanisms of an entity and emphasizes the
supremacy of a state within its own frontiers. Because of this, many of the
factual and legal processes leading up to the emergence of a new state are
therefore barred from international legal scrutiny. Furthermore, this has
proved a deterrent to the search for the precise method by which a new entity
obtains title to the territory in question.
There are basically two methods by which a new entity
may gain its independence as a new state: by constitutional means, that is by
agreement with the former controlling administration in an orderly devolution
of power, or by non-constitutional means, usually by force, against the will of
the previous sovereign. The granting of independence according to the
constitutional provisions of the former power may be achieved either by
agreement between the former power and the accepted authorities of the emerging
state, or by a purely internal piece of legislation by the previous sovereign.
In many cases a combination of both procedures is adopted. However, a different
situation arises where the new entity gains its independence contrary to the
wishes of the previous authority, whether by secession or revolution.
The principle of self-determination is also very
relevant here. Where a state gains its sovereignty in opposition to the former
power, new facts are created and the entity may well comply with the
international requirements as to statehood, such as population, government, and
a definable area of land and the capacity to enter into legal relations.
So to discover the process of acquisition of title to
territory, one has first to point to an established state. One theory is to
concentrate upon the factual emergence of the new state and to accept that
since a new state is in existence upon a certain parcel of land, international
law should look no further but accept the reality of possession at the moment
of independence as denoting ownership, that is, legal title. Another approach
is to turn to the constitutive theory of recognition, and declare that by
recognition not only is a new state in the international community created, but
its title to the territory upon which it is based is conclusively determined.
Another approach is the substitution of a provision permitting a people to
acquire sovereignty over the territory pending the establishment of the
particular state. By this method the complicated theoretical issues related to
recognition are avoided.
The acquisition of additional territory
·
Boundary
Treaties and Boundary Awards
Boundary treaties, whereby either additional territory
is acquired or lost or uncertain boundaries are clarified by agreement between
the states concerned, constitute a root of title in themselves. The reason for
this approach is to the stability of boundaries. A treaty should be interpreted
in the light of Articles 31 and 32 of the Vienna Convention on the Law of
Treaties, 1969. Essentially the aim is to find the ‘common will’ of the
parties, a concept which includes consideration of the subsequent conduct of
the parties.
-Accordingly, many boundary disputes in fact revolve
around the question of treaty interpretation. More
generally, the difficulty in seeking to interpret both general concepts and
geographical locations used in early treaties in the light of modern scientific
knowledge has posed difficulties. The
Boundary Commission referred to the principle of contemporaneity, by which it meant
that a treaty should be interpreted by reference to the circumstances
prevailing when the treaty was concluded. If the boundary line as specified in
the pertinent instrument is clear, it cannot be changed by a court in the
process of interpreting delimitation provisions.
Boundary awards are decisions by the International
Court or arbitral tribunal allocating title to a particular territory or
determining the boundary line constitute establishment or confirmation of title
that will be binding upon the parties themselves and for all practical purposes
upon all states in the absence of maintained protest.
·
Accretion
A new territory is added mainly through natural causes
to territory already under the sovereignty of a state, acquisition by accretion
takes place. Accretion refers to the physical expansion of an existing
territory through geographical process.
·
Cession
This 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.
·
Conquest
and the use of force
Conquest, the act of defeating an opponent and
occupying all or part of its territory, does not constitute a basis of title to
the land. It does give the victor certain rights under international law as regards
the territory, the rights of belligerent occupation, but the territory remains
subject to the legal title of the ousted sovereign. It is, however, clear today
that the acquisition of territory by force alone is illegal under international
law. This may be stated in view of article 2(4) of the UN Charter. Acquisition
of territory following an armed conflict would require further action of an
international nature in addition to domestic legislation to annex.
Security Council resolution
242, for example, emphasized the ‘inadmissibility of the acquisition of territory by war’, while
the 1970 Declaration of Principles
of International Law adopted by the UN General Assembly provides
that: “The territory of a state shall
not be the object of acquisition by another state resulting from the threat or
use of force. No territorial acquisition resulting from the threat or use of
force shall be recognized as legal.”
Whatever the circumstances, it is not the successful
use of violence that in international law constituted the valid method of
acquiring territory. Under the classical rules, formal annexation of territory
following upon an act of conquest would operate to pass title. It was a legal
fiction employed to mask the conquest and transform it into a valid method of
obtaining land under international law.
·
The
exercise of effective control
The acquisition of territory by modes of occupation
and prescription are upon the exercise of effective control. Both concepts are
similar in that they may require evidence of sovereign acts by a state over a
period of time. In practice these concepts are
often indistinct since sovereignty over an area may lapse and give rise to
doubts whether abandonment has taken place, rendering the territory terra
nullius.
Occupation is a method of acquiring territory which
belongs to no one (terra nullius) and which may be acquired by a state in certain
situations. The occupation must be by a state and not by private individuals,
it must be effective and it must be intended as a claim of sovereignty over the
area.
Prescription is a mode of establishing title to
territory which is not terra nullius and
which has been obtained either unlawfully or in circumstances wherein the
legality of the acquisition cannot be demonstrated. It is the legitimization of
a fact.
The vital point in prescription rests upon the implied
consent of the former sovereign to the new state of affairs. Thus acquiescence
in the case of prescription, whether express or implied from all the relevant
circumstances, is essential, whereas in the case of occupation it is merely an
evidential point reinforcing the existence of an effective occupation, but not
constituting the essence of the legal claim.
·
Intertemporal
law
The general rule in such circumstances is that in a
dispute the claim or situation in question (or relevant treaty, for example)
has to be examined according to the conditions and rules in existence at the
time it was made and not at a later date.
·
Critical
date
The concept of a critical date is of especial
relevance with regard to the doctrine of uti possidetis,
which posits that a new state has the boundaries of the predecessor entity, so
that the moment of independence is invariably the critical date. The
importance of the critical date concept, thus, is relative and depends entirely
upon the circumstances of the case.
·
Sovereign
activities (effectivit´es)
Acts of sovereignty are necessary to found title will
depend in each instance upon all the relevant circumstances of the case,
including the nature of the territory involved, the amount of opposition (if
any) that such acts on the part of the claimant state have aroused, and
international reaction. In international law many titles will be deemed to
exist not as absolute but as relative concepts.
·
The
role of subsequent conduct: recognition, acquiescence and estoppels
1. Recognition
is a positive act by a state accepting a particular situation and, it is
nevertheless an affirmation of the existence of a specific factual state of
affairs.
2. Acquiescence
occurs in circumstances where a protest is called for and does not happen in
time in the circumstances.
3. Estoppel
is a legal technique whereby states deemed to have consented to a state of
affairs cannot afterwards alter their position.
The various manifestations of the subsequent conduct
of relevant parties have a common foundation in that they all rest to a
stronger or weaker extent upon the notion of consent. Subsequent
conduct may be relevant in a number of ways:
·
First, as a method of determining the true
interpretation of the relevant boundary instrument in the sense of the
intention of the parties.
·
Second, as a method of resolving an uncertain
disposition or situation, for example, whether a particular area did or did not
fall within the colonial territory in question for purposes of determining the uti
possidetis line.
·
Third, as a method of modifying such an instrument or
pre-existing arrangement.
Territorial integrity, self-determination and sundry claims
The principle of the territorial integrity of states
is well established and is protected by a series of consequential rules
prohibiting interference within the domestic jurisdiction of states as article 2(7)
of the UN Charter, and forbidding the threat or use of force against the
territorial integrity and political independence of states, particularly
article 2(4) of the UN Charter. However, it does not apply where the
territorial dispute centre upon uncertain frontier demarcations. The principle
appears to conflict with the self-determination of peoples.
-Practice has not supported its application as a
principle conferring the right to secede upon identifiable groups within
already independent states. The only arguable
exception to this rule that the right to external self-determination applies
only to either colonial or occupation situation might be where the group in
question is subject to ‘extreme and unremitting persecution’ coupled with the
‘lack of any reasonable prospect for reasonable challenge’. Self-determination
cannot be used to further larger territorial claims in defiance of internationally
accepted boundaries of sovereign states, but it may be of some use in resolving
cases of disputed frontier lines on the basis of the wishes of the inhabitants.
The doctrine of uti possidetis lies
in its primary aim of securing respect for the territorial boundaries at the
moment when independence is achieved. In that case, the application of the
principle of uti possidetis resulted in administrative
boundaries being transformed into international frontiers in the full sense of
the term. Once defined in a treaty, an
international frontier achieves permanence so that even if the treaty itself
were to cease to be in force, the continuance of the boundary would be
unaffected and may only be changed with the consent of the states directly
concerned. Thus, uti possidetis must allow for the application of
other principles and rules.
‘The common heritage of mankind’
Kemal
Baslar has stated that the Common Heritage of Mankind principle "is a philosophical
idea that questions the regimes of globally important resources regardless of
their situation, and requires major changes in the world to apply its
provisions. There are certain
common characteristics relating to the concept. Like res
communis, the areas in question are incapable of national
appropriation. Sovereignty is not an applicable principle and the areas in
question would not be ‘owned’, nor would any jurisdictional rights exist
outside the framework of the appropriate common heritage regime institutional
arrangements.
However, while a res communis regime
permits freedom of access, exploration and exploitation, a common heritage
regime would establish management mechanisms and would employ the criterion of
equity in distributing the benefits of such activity. As a legal concept within
the framework of the specific treaties concerned, it provides an interesting
contrast to traditional jus communis rules,
although the extent of the management structures required to operate the regime
may pose considerable problems.
The polar region
The
Arctic is a region that ties together three continents: Asia, Europe and North
America. Claims
have been made by seven nations (Argentina, Australia, Chile, France, New
Zealand, Norway and the United Kingdom) to the Antarctic region, which is an
ice-covered landmass in the form of an island. Such claims have been based on a
variety of grounds, ranging from mere discovery to the sector principle
employed by the South American states, and most of these are of rather dubious
quality.
However, in 1959 the Antarctic Treaty was signed by
all states concerned with territorial claims or scientific exploration in the
region. Its major effect, apart from the demilitarization of Antarctica, is to
suspend, although not to eliminate, territorial claims during the life of the
treaty. Since the treaty does not provide for termination, an ongoing regime
has been created which, because of its inclusion of all interested parties,
appears to have established an international regime binding on all. The obvious problem posed to
international law remains to be its uniform implementation among sovereign
entities. States only abide by rules of law, which they have consented to. Not
all states at all the time give their consent to all the international
agreements or treaties. A common legal
approach is not always there to mitigate a number of identical challenges
facing nation states.
Leases and servitudes
Leases of land rose into prominence in the nineteenth
century as a way of obtaining control of usually strategic points without the
necessity of actually annexing the territory. Sovereignty was regarded as
having passed to the lessee for the duration of the lease, upon which event it
would revert to the original sovereign who made the grant.
Servitude exists where the territory of one state is
under a particular restriction in the interests of the territory of another
state. Such limitations are bound to the land as rights in rem and
thus restrict the sovereignty of the state concerned, even if there is a change
in control of the relevant territory, for instance upon merger with another
state or upon decolonization. Examples of
servitudes would include the right to use ports or rivers in the territory so
bound, or alternatively an obligation not to fortify particular towns or areas
in the territory.
The law of outer space
The
five treaties and agreements of international space law cover
"non-appropriation of outer space by any one country, arms control, the
freedom of exploration, liability for damage caused by space objects, the
safety and rescue of spacecraft and astronauts, the prevention of harmful
interference with space activities and the environment, the notification and
registration of space activities, scientific investigation and the exploitation
of natural resources in outer space and the settlement of disputes."
The United Nations General Assembly adopted five declarations
and legal principles which encourage exercising the international laws, as well
as unified communication between countries. The five declarations and
principles are;
1. The Declaration of Legal Principles Governing the
Activities of States in the Exploration and Uses of Outer Space (1963)
2. The Principles Governing the Use by States of
Artificial Earth Satellites for International Direct Television Broadcasting
(1982)
3. The Principles Relating to Remote Sensing of the Earth
from Outer Space (1986)
4. The Principles Relevant to the Use of Nuclear Power
Sources in Outer Space (1992)
5. The Declaration on International Cooperation in the
Exploration and Use of Outer Space for the Benefit and in the Interest of All
States, Taking into Particular Account the Needs of Developing Countries (1996)
1919 Paris
Convention for the Regulation of Aerial Navigation recognized the full
sovereignty of state over the airspace above their land and territorial sea. Accordingly,
the international law rules protecting sovereignty of states apply to the
airspace as they do to the land below. Furthermore, reaffirming the legal status of aerial in International
Law, the Court noted that ‘a boundary represents the line of separation between
areas of state sovereignty, not only on the earth’s surface but also in the
subsoil and in the superjacent column of air’. Aircraft may only traverse the airspace of states with
the agreement of those states, and where that has not been obtained an illegal
intrusion will be involved which will justify interception, though not actual
attack.
The definition and
delimitation of outer space
Usque ad coelum rule, providing for state sovereignty
over territorial airspace to an unrestricted extent, was not viable where space
exploration was concerned. This means that the sovereignty of states over their
airspace is limited in height at most to the point where the airspace meets
space itself. Precisely where this boundary lays is difficult to say and will
depend upon technological and other factors.
The regime of outer
space
International
Community has agreed to apply the international law principles of res communis, so that no portion of outer space may
be appropriated to the sovereignty of individual states.
UN General
Assembly resolution 1962 (XVII), adopted in 1963 and entitled the Declaration
of Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, lays down a series of applicable legal principles which
include the provisions that outer space and celestial bodies were free for
exploration and use by all states on a basis of equality and in accordance with
international law, and that outer space and celestial bodies were not subject
to national appropriation by any means.
Moreover, the
treaty emphasizes the outer space, including the moon and other celestial
bodies, is not subject to national appropriation by any means and emphasizes
that the exploration and use of outer space must be carried out for the benefit
of all countries.
Telecommunications
The legal framework
for the use of space in the field of telecommunications is provided by the
various INTELSAT (international telecommunications satellites) agreements which
enable the member states of the International Telecommunications Union to help
develop and establish the system, although much of the work is in fact carried
out by American corporations, particularly COMSAT. One key issue relates to
control over the dissemination of information gathered by satellite. Some have
called for the creation of an equitable regime for the sharing of information
and there is concern over the question of access to data about states by those,
and other, states.
Questions about
the control of material broadcast by such satellites and the protection of
minority cultures from ‘swamping’ have yet to be answered, but are being
discussed in various UN organs, for instance UNESCO and the Committee on the
Peaceful Uses of Outer Space. Two principles are relevant in this context:
freedom of information, which is a right enshrined in many international
instruments, and state sovereignty.
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