Anthony Aust. Handbook of International Law

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states formally declare that their ratification does not imply recognition of Israel.

A visit by a high-level official, or a (publicised) meeting with a senior official of the purported

government, should not amount to recognition if the position of the state is well known, though

sometimes it may be prudent to make it clear in advance, and perhaps publicly, that nothing should

be inferred.

Overseas territories

The term ‘overseas territory’ describes a territory which is under the sovereignty of a state (‘parent

state’) but which is not governed as part of its metropolitan territory, unlike French Guiana,

Guadeloupe, Martinique and Reunion which under the French Constitution are départments of

France. Previously, overseas territories were known as colonies or dependent territories. Article 73

of the UN Charter describes overseas territories as ‘non-self-governing’. Today, most overseas

territories that have a permanent population have considerable internal self-government, with mainly

defence and foreign affairs remaining the responsibility of the metropolitan state. With the great

wave of decolonisation that began after the Second World War, over 100 overseas territories have

gained their independence and become Members of the UN, thereby transforming the UN from a

smallish club of mostly developed states into a body truly representative of the world. The UN

organs concerned with non-self-governing territories are no longer so active.

Today, there is not the great variety in overseas territories that there was only thirty years ago. But

Australia, Denmark, France, The Netherlands, New Zealand, Norway, the United Kingdom

and

the United States still have between them some fifty overseas territories.

Quite a few are unlikely

ever to be viable as states, having no permanent population or only a very small one. At the last

count, Pitcairn had about forty-six inhabitants. On the other hand, larger and more affluent ones like

Bermuda and

63. See generally K. Roberts-Wray, Commonwealth and Colonial Law, London, 1966.

64. For details, see Oppenheim, pp. 282–95 or www.un.org.

65. The full name – United Kingdom of Great Britain and Northern Ireland – derives from the uniting in

1801 of the Kingdoms of Great Britain (England, Wales and Scotland) and of Ireland, the reference to

‘Ireland’ being changed in 1922 to ‘Northern Ireland’ on the independence of the rest of the island.

66. For a list, see Aust, pp. 423–4.

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Puerto Rico could well exist as states, but choose to remain as they are. The right of self-

determination means only that a people are free to choose how they should be governed, and for an

overseas territory independence is not the only option.

British territories

The fourteen remaining British overseas territories are the responsibility of the Foreign and

Commonwealth Office, except for the Sovereign Base Areas (see below). There are also three other

British territories: the Channel Islands of Guernsey and Jersey and the Isle of Man. They are thought

by most people, including most British people, to be part of the United Kingdom since at first sight

they appear indistinguishable from the United Kingdom, even if the Channel Islands are

geographically much closer to France. But they are not part of the United Kingdom and in British

law are known as ‘Crown Dependencies’, and are the responsibility of the Department of

Constitutional Affairs.

Although the Crown Dependencies are part of the European Union, not all

EC rules apply to them.

There have been several types of overseas territories.

Colonies

Most overseas territories were, and still are, colonies. A colony is a non-metropolitan territory over

which the parent state (the colonial power) exercises control. The parent state can determine the

extent (if any) to which the colony has control of its internal affairs, though even for the most

advanced colonies the parent state will usually retain responsibility for defence and foreign affairs. A

colony cannot conclude treaties without the authority of the parent state. Nor can it enter into

diplomatic relations, although consular posts may be established in the colony with the permission

of the parent state.

But some colonies have been given such extensive responsibilities in foreign

affairs that some states dealing with them have failed to appreciate that they are not truly

independent. The Cook Islands is in ‘free association’ with New Zealand, its inhabitants retaining

New Zealand nationality.

This has caused such confusion

67. See pp. 21-2 above.

68. See www.dca.gov.uk/constitution.htm.

69. See p. 157 below.

70. See www.mfat.govt.nz/foreign/regions/pacific/cookislandsdeclaration/cooksdec.html. As to Puerto

Rico and the Netherlands Antilles and Aruba, see Oppenheim, p. 280, nn. 21 and 22.

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that the Cook Islands have become a member of some international organisations that are open only

to states,

and have established diplomatic relations with certain states.

The Sovereign Base Areas in Cyprus (Akrotiri and Dkehelia) are the parts of the former colony

that were retained by the United Kingdom when Cyprus became independent. Because of their role

as military bases in accordance with special treaty arrangements with Cyprus,

they are not

administered like a normal colony, being the responsibility of the Ministry of Defence.

Protectorates

This is a term sometimes given to a protected state or colony. It is not a term of art. None are left.

Protected states

A protected state is an entity that has some of the attributes of a state but is under the guardianship

of another state. The status is now largely of historic interest.

Although Andorra is still cited as a

protected state, being under the joint protection of the French President and the Bishop of Urgell in

Spain, since it became a Member of the United Nations the protection would seem to be of a

somewhat formal nature.

Monaco

and San Marino

have special treaty arrangements with

France and Italy, respectively, but are now also UN Members. Bhutan became a UN Member in

1971, but its foreign affairs are supervised by India.

Condominiums

A condominium is a territory over which two or more states exercise sovereignty jointly.

It is now

largely of historical interest, the last one being the (rather improbable) Anglo-French condominium

of the New Hebrides established in 1887,

which resulted from naval and other rivalries in the

Pacific. The two states each retained jurisdiction over their own

71. The Cook Islands became a party to UNCLOS under the special provisions of Arts. 305 and 306.

72. 382 UNTS 8 (No. 5476); UKTS (1961) 4.

73. Oppenheim, pp. 266–74.

74. See www.andorramania.com/constitution_gb.htm or Oppenheim, pp. 271–2.

75. Oppenheim, p. 271, n. 1(1).

76. Oppenheim, p. 272, n. 1(3).

77. Oppenheim, p. 274.

78. Oppenheim, pp. 565–7.

79. 79 BSP 545 and UKTS (1907) 3, (1927) 28 and (1935) 7; and Shaw, pp. 206–7.

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nationals. Third states’ nationals had on arrival the novel and unenviable experience of having to opt

to be either ‘British’ or ‘French’ during their stay, though free to eat where they liked. There were

native courts and a final appeal court, the Joint Court, consisting of one British and one French judge

and a president appointed by the King of Spain. By the end of the Spanish Civil War, the presidency

was vacant and remained so for the next forty years, the two national judges always being able to

reach an amicable agreement. The territory became independent as Vanuatu in 1980.

Mandated and trust territories

Again, these are of mainly historical interest. Article 22 of the Covenant of the League of Nations

provided for overseas territories of Germany and Turkey to be placed under the administration of

certain ‘mandatory states’.

The term derives from the agreements, called ‘mandates’, between the

League and those states entrusted by the League with the administration of the territories on behalf

of the League. A mandate did not cede or transfer territory.

Article 75 of the UN Charter replaced mandated territories by trust territories, although the

purpose was very similar. Alone of the mandatory states, South Africa refused to place the territory

of South West Africa under the trusteeship system (it gained its independence as Namibia eventually

in 1990).

The system was administered by a principal UN organ, the Trusteeship Council, which

suspended operation in 1994 following the independence of the last trust territory, Palau. Although

suggestions have been made that certain states or territories might be placed under the Trusteeship

Council, Article 75 would not be suitable for this purpose. Instead, action has been taken by the

Security Council.

80. Oppenheim, pp. 295–318; Shaw, pp. 201–4.

81. International Status of South West Africa, Advisory Opinion, ICJ Reports (1950), p. 132; 17 ILR 47;

and Namibia (South West Africa) Legal Consequences, ICJ Reports (1971), p. 6, paras. 117–27 and 133;

49 ILR 2. See also Certain Phosphate Lands (Nauru v. Australia), ICJ Reports (1992), pp. 240 and 256;

97 ILR 1; Cameroon v. Nigeria, ICJ Reports (2002), para. 212.

82. For the long, tortuous history of the struggle with South Africa, see Oppenheim, pp. 300–7.

83. See p. 225 below on Kosovo and UNMIK.

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3 Territory

Es ist die letzte territoriale Forderung, die ich Europa zu stellen habe.

Oppenheim, Oppenheim’s International Law, 9th edn, London, 1992, pp. 661–718

Shaw, International Law, 5th edn, Cambridge, 2003, pp. 409–55

Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 105–69

Crawford, The Creation of States in International Law, Oxford, 1979

Jennings, The Acquisition of Territory in International Law, Manchester, 1963

Among other things, to be a state there must be a government in effective control of territory.

Territorial sovereignty covers all land, internal waters, territorial sea and the airspace above them. A

state does not have sovereignty over its continental shelf or exclusive economic zone. Instead, it has

‘sovereign rights’ over the former and sovereign rights and certain other rights and jurisdiction over

the latter.

Most of the international law on territory results from disputes between states as to ownership.

These days, they tend to be more over land or maritime boundaries, or islands or small areas of land.

Although it is not to be found on most maps, Hans Island is a 3 sq km barren, uninhabited island off

the northernmost tip of western Greenland in the Kennedy Channel between Greenland and Canada.

Both Denmark and Canada claim it. Although the island is ice-covered, the predicted effect of global

warming could make the surrounding area more accessible for the exploitation of mineral resources.

As assertions of ownership both states have recently stepped up naval visits to the island. Canada

also has disputes or

1. ‘It is the last territorial claim which I have to make in Europe.’ Hitler’s speech in Berlin on 26

September 1938, referring to the Sudetenland.

2. See p. 16 above for the criteria for statehood.

3. See pp. 308 and 305 below, respectively.

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potential disputes with Russia and the United States over much larger Arctic regions.

For a new state – whether previously an overseas territory or part of the metropolitan territory –

title to its territory is effectively acknowledged by recognition of its statehood. The new state will

inherit any existing disputes as to the extent of the territory or its boundaries. Many of the

boundaries of former overseas territories were not well defined, thus giving rise to many disputes

and proceedings in international courts and tribunals.

Boundary, border or frontier?

To describe the limits of territory, all three terms are used, but boundary is used more often and is

also more suitable for describing maritime limits, and so will be used here.

Delimitation and demarcation

These two terms are often confused, even in treaties. Delimitation is the process of determining the

land or maritime boundaries of a state, including that of any continental shelf or exclusive economic

zone, by means of geographical coordinates of latitude and longitude.

The resulting lines are then

usually drawn on a map or chart. The process is naturally done for adjacent states, though unilateral

delimitation may be necessary for the maritime limits of an isolated territory.

The determination

may be embodied in a treaty or in the judgment of an international court or tribunal. Demarcation is

the further and separate procedure of marking a line of delimitation (usually only on land) with

physical objects, such as concrete posts, stone cairns etc. In practice, demarcation often involves

some degree of delimitation, since a line on map may look rather different on the ground, and

sensible adjustments may need to be made. The task of the UN Iraq–Kuwait Boundary Demarcation

Commission also

4. See, for example, Cameroon v. Nigeria (Merits), ICJ Reports (2002); I. Brownlie, African Boundaries:

A Legal and Diplomatic Encyclopaedia, Oxford, 1969; M. Shaw, Title to Territory in Africa, Oxford,

1986.

5. As to maritime delimitation, see pp. 309-11 below.

6. And see p. 309 below on the Commission on the Limits of the Continental Shelf.

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involved determining certain geographical coordinates, which required new mapping.

Intertemporal principle

In his award in the leading case of the Island of Palmas, the single arbitrator, Max Huber, in

deciding whether a state has established its claim to territory, stated that one must assess the facts in

the light of the international law at the relevant time, not the law at the time the issue falls to be

decided.

He therefore had to decide whether in the early sixteenth century the mere discovery by

Spain of the 2.4 sq km island was sufficient to give it good title then. (See also ‘Discovery’, p. 36

below.)

Critical date

The resolution of all territorial disputes turns on complex facts extending over many years or

centuries. The doctrine of the critical date is by no means easy to apply, and may be something of a

chimera. Depending on the circumstances, in essence it is the date by which the rights of the parties

to a territorial dispute have so crystallised that what they do afterwards does not affect the legal

position. In the Island of Palmas, the arbitrator had to decide also if Spain had title to the island in

1898 so that it could by a treaty of that year pass sovereignty to the United States. So 1898 was the

critical date, and Huber decided that by that date The Netherlands had acquired a better title than

Spain.

Means of acquisition

The traditional classification of the ways in which territory can be validly acquired has been

criticised as simplistic, in that it does not take sufficient

7. See UNSC Res. 678 (1991), paras. 2–4, S/25811 (containing the Commission’s final report of 20 May

1993) and UNSC Res. 833 (1993).

8. See R. Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) ICLQ 501.

9. (1928) 2 RIAA 831; 4 AD 103. For a concise description of the case, see J. Brierly, The Law of Nations,

6th edn, Oxford, 1963, pp. 163–9. An almost complete text of the award is in H. Briggs (ed.), The Law of

Nations, 2nd edn, New York, 1952, pp. 239–47.