Anthony Aust. Handbook of International Law

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10. See Shaw, pp. 431–2; Brownlie, pp. 125–6; Oppenheim, pp. 710–12.

11. N. 9 above.

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account of the interaction of various principles.

Nevertheless, the normal method is good enough

for present purposes. If the reader is ever lucky enough to advise on a territorial dispute, he or she

will soon find that the starting point is an exhaustive collection of all the relevant facts and

documents, territorial disputes being very much fact-driven. Examination and assessment of the

facts will inevitably suggest which legal arguments best support the client’s case. Unlike land

disputes in domestic law, there is no detailed set of rules to decide who has ownership. Instead,

international courts and tribunals study and weigh up all the evidence to decide which of the parties

to the dispute has the better case. Given that so much depends on the particular circumstances, no

attempt will be made to repeat here the lengthy treatment of the subject in the leading textbooks. It is

sufficient to mention some of the main points.

Discovery

For a time in the fifteenth and sixteenth centuries, the mere sighting of a previously unknown

territory may have been enough to give good title to a state, although even this is doubtful. But it

soon became established that a symbolic act, such as the planting of a flag or a formal proclamation,

was also required to confirm title. And, by the mid-sixteenth century, discovery was seen as

conferring no more than an inchoate (provisional) title that needed to be completed by effective

occupation (see below).

Conquest and annexation

In the past, conquest (sometimes called subjugation), followed by annexation, was a means of

acquiring valid title to territory. Whether annexation now provides good title will therefore depend

on (1) the international law at the time (the intertemporal principle), (2) (possibly) whether the

annexing state has established effective control over the territory, and (3) whether other states have

recognised the annexation. Even in the period between the two World Wars, it was not clear if a

state could acquire good title by conquest and annexation. Now Article 2(4) of the UN Charter

prohibits the threat or use of force against the territorial integrity of

12. Brownlie, pp. 126–7.

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another state or the acquisition of territory by force.

The International Court of Justice has found

that the building of the wall by Israel in the occupied Palestinian territory, while professed to be a

temporary security measure, may prejudge the future boundary between Israel and Palestine in that

Israel may seek to integrate into its territory the Israeli settlements, and their means of access. If the

wall were to become permanent, it would be tantamount to annexation.

The so-called Friendly

Relations Declaration 1970

confirmed that territory cannot be validly acquired by force or the

threat of force, although that does not affect any treaty concluded before the UN Charter and valid

under international law (in practice, a treaty of cession). In Resolution 662 (1990), the UN Security

Council rejected Iraq’s purported annexation of Kuwait.

Cession

Even in the past, it was not simply conquest that conferred title, but a subsequent treaty of cession

(sometimes part of a peace treaty). In 1704, Anglo-Dutch forces seized Gibraltar from Spain, the

territory then being ceded by Spain to Great Britain

by the Treaty of Utrecht of 13 July 1713,

although there is a dispute over part of the isthmus linking Gibraltar and Spain. Despite sovereignty

having been validly transferred by the Treaty – which obliges the United Kingdom to offer to return

the territory to Spain were it ever minded to relinquish sovereignty – from the 1960s Spain pressed

for Gibraltar to be returned to it.

Despite the circumstances in which many old treaties of cession were concluded, they remain

good roots of title. Many were entered into quite voluntarily, and several involved payment (Alaska

by Russia to the United States in 1867 for US$7.2 million, and the Danish West Indies to the United

States in 1916 for US$25 million). Territory can also be exchanged, particularly in the realignment

of a boundary.

Cession will include all aspects of territorial sovereignty, including airspace and the territorial sea,

and sovereign rights over the continental shelf and rights and jurisdiction over the exclusive

economic zone.

13. Regarding occupied territory, see Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory Advisory Opinion, ICJ Reports (2004), para. 87; ILM (2004) 1009.

14. Ibid., paras. 119–21.

15. UNGA Res. 2625 ( ), Part 1.

16. See p. 29, n. 65 above for an explanation of the difference between ‘Great Britain’ and ‘United

Kingdom’.

17. 28 CTS 325; 1 BSP 611.

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Cession does not affect the rights of third states, such as state servitudes (see below).

Occupation and prescription

These are more conveniently dealt with together, as they have an important common factor: the

exercise by a state of effective control.

Terra nullius is vacant land that belongs to no state. The clearest case is the unclaimed sector of

Antarctica.

There may also be some uninhabited islands and other territories that are still terrae

nullius. But territory inhabited by peoples with a social or political organisation is not terra

nullius.

Terra nullius can be acquired by any state (not by a private person or company, unless

acting for the state) that has the intention to claim sovereignty and occupies it by exercising effective

and continued control. Occupation is a peaceful means of acquiring territory.

In contrast, prescription is the acquisition of territory that is not terra nullius, but was obtained by

means that were of doubtful legality or patently illegal. Although international law is not keen to

legalise unlawful conduct, the aim of international law is always stability and certainty. Thus,

provided territory has been under the effective control of a state, and has been uninterrupted and

uncontested for a long time, international law will accept that reality. But timely protests by the

‘former’ sovereign will usually bar the claim. How long effective control must last depends entirely

on the circumstances of each case. Often, there will be sovereign activities (effectivités) in relation to

the territory by the disputing states. In the case of remote or uninhabited territory, they may be

physical (visits by military or government officers) or formal (legislation for the territory).

Of course, if territory was acquired by unlawful use of force, prescription may not help to confer a

valid title (see above). Establishing title by prescription usually also involves consideration of

matters such as acquiescence, estoppel and recognition.

Acquiescence, estoppel and recognition

In judging whether a territorial claim is good, especially one based on prescription, the acquiescence

of the former sovereign would obviously be important, as equally would be protests by that state. A

rival claimant

18. Shaw, p. 424.

19. See p. 355 below.

20. Western Sahara Advisory Opinion, ICJ Reports (1975), p. 12, paras. 75–83; 59 ILR 14.

21. See Shaw, pp. 426–9 and 432–6.

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may also be estopped

by its previous conduct.

Recognition by third states, or the former

sovereign, of a claim will also be important. India’s seizure in 1961 of Goa, a Portuguese colony on

the west coast of India, and its incorporation into India in 1962, was not condemned by the United

Nations, there being much bitterness at Portugal’s colonial policy. The incorporation was soon

recognised by most states, and eventually by Portugal.

Boundary treaties

A treaty that establishes or confirms a boundary creates a regime that all other states must

recognise.

A party to the treaty cannot invoke a fundamental change of circumstances as a ground

for terminating it,

except perhaps where the conditions for the legitimate operation of the principle

of self-determination exist.

Leases

Although no longer common, a state can by treaty lease part of its territory to another state. During

the term of the lease, the territory then comes under the sovereignty of the lessee state. Although the

island of Hong Kong, and the lower part of Kowloon on the Chinese mainland, were in the mid-

nineteenth century ceded by China to the United Kingdom in perpetuity,

the much larger New

Territories extending up from Kowloon were leased by China to the United Kingdom in 1898 for 99

years.

During that period, the whole of Hong Kong was regarded by the United Kingdom and

other states as coming under British sovereignty. All of Hong Kong was restored to China at

midnight on 30 June 1997.

The US naval base at Guantanamo Bay was leased by treaty from Cuba in 1903. It gave the

United States the right to ‘exercise complete

22. See p. 9 above.

23. Temple of Preah Vihear, ICJ Reports (1962), p. 6; 33 ILR 48.

24. See Oppenheim, p. 196.

25. See pp. 10 and 354 on objective or erga omnes regimes.

26. Article 62(2)(a) of the VCLT, see p. 104 below.

27. See the ILC Commentary on draft Article 59 (later Article 62 of the Vienna Convention on the Law of

Treaties), para. (11), of the final draft Articles on the Law of Treaties, in A. Watts, The International Law

Commission 1949–1998, Oxford, 1999, pp. 764–5.

28. 30 BSP 389 and 50 BSP 10.

29. 90 BSP 17. See p. 108 below on so-called unequal treaties.

30. Joint Declaration on the Question of Hong Kong 1984,1399 UNTS 33 (No. 23391); ILM (1984) 1366;

UKTS (1985) 26.

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jurisdiction and control’ over the leased land and waters, but recognised the continuance of the

‘ultimate sovereignty of the Republic of Cuba’.

Because such treaties transfer sovereignty, at least de facto, they should be distinguished from

leases granted to foreign states under the domestic law of the grantor state, such as for military

bases,

although today the land may be made merely ‘available’.

Such leases involve no transfer

of sovereignty.

Rivers

If a boundary between two states is a river, and unless a treaty provides otherwise, if the river is not

navigable generally the boundary is the mid-line of the river. If it is navigable, the boundary is

generally the mid-line of the thalweg, the principal channel, but all depends on the particular facts.

State servitudes

A state servitude is a legal right over the whole or part of territory granted by one state to another,

such as a right of passage.

The right is in rem, in that it is not merely personal to the states by and

to which it is granted, but remains in force even if sovereignty over the territory changes.

Res communis

This term refers to territory over which no state has sovereignty and which cannot be appropriated

by any state (cf. terra nullius, p. 38 above).

31. 96 BSP 546–7 and 551–3; (1910) AJIL 4, Suppl. 177; Lazar, ‘“Cession in Lease” of the Guantanamo

Bay Naval Station and Cubais “Ultimate Sovereignty”’ (1969) AJIL 116; Whiteman, vol. 2, p. 1216. The

text is also on the US Navy website of the base (www.nsgtmo.navy.mil), which explains that ‘ultimate

sovereignty’ means that Cuban sovereignty is ‘suspended’ during the period of US occupancy. In Rasul v.

Bush, (542 US _ (2004); ILM (2004) 1207) the US Supreme Court held (6–3) that habeas corpus

extended to aliens in territory over which the US exercises ‘plenary exclusive jurisdiction’, which

included the base.

32. For example, the so-called Lend-Lease Agreements of 1940–1 between the UK and the US, 203 LNTS

201 and 204 LNTS 15; UKTS (1940) 21 and (1941) 2.

33. See the UK–US Exchange of Notes of 30 December 1966 concerning the availability for defence

purposes of the British Indian Ocean Territory (which includes the island of Diego Garcia), 603 UNTS 273

(No. 8737); UKTS (1967) 15; TIAS 6296; 18 UST 28; as amended in 1976, 1032 UNTS 323 (No. 8737);

UKTS (1976) 88; and in 1987, UKTS (1988) 60.

34. Oppenheim, pp. 664–6.

35. See Oppenheim, pp. 673–6.

36. Right of Passage over Indian Territory, ICJ Reports (1960), p. 6; 31 ILR 23.