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A GROUP PRESENTATION BY MEMBERS OF GROUP SIX (6)
ATAKPA, UYOBONG ADAM- 10/LA/1074
ISIKIMA, PAMELA GLORY – 10/LA/1065
EMMANUEL, MICHAEL MATTHEW- 10/LA/1075
GRAHAM, ESTHER MFONABASI- 10/LA/1108
AKPAN, NSIMA NDIFREKE – 10/LA/1129
UDOFIA, DANIEL HANSON-11/LA/1269
EFFIONG, AKANIMO- 10/LA/1140
NKIM, LOUIS- 10/LA/1107
SUBMITTED TO
BARR (MRS) IDORENYIN EYO
LECTURER-IN-CHARGE
JIL516: PUBLIC INTERNATIONAL LAW I
FACULTY OF LAW
UNIVERSITY OF UYO, UYO
MARCH, 2015
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QUESTION:
The United Nations charter clearly uphold the territorial
integrity of member’s states. Analyse this in light of
acquisition of and loss of state territories.
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INTRODUCTION
The state has four essentials namely population territory,
government and sovereignty. Territory is one of the four
elements which a state in order to be an international person
must possess. The state must have a fixed territory. The
territory of the state includes not only land within its
jurisdiction, but also the natural resources, Lakes, rivers and
the marginal sea. The air space above the land is also part of
the territory.
State territory is that definite portion of the surface of the
globe which is subjected to the sovereignty of the state. The
state jurisdiction is exercised by the state over persons and
property within a particular territory.
The territory is recognized as more than just a necessary
requirement of statehood. The territory is the exclusive zone
in which the political independence of a state can find its
expression and where foreign governments may not – as a
matter of principle–interfere. As a consequence of this the
concept of territorial integrity emerged as a general principle
of international law in the middle of the 19th century.
Territorial integrity implies territorial sovereignty, political
independence and equality of states. It is the principle under
international law that postulates that nation-states should not
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attempt to promote secessionist movements or to promote
border changes in other nation-states. Conversely it states that
imposition by force of a border change is an act of aggression.
Territorial integrity requires more than protection against
permanent changes to borders, but demands protection
against all sorts of interventions into a state’s territory from
the outside.
The law connects territorial integrity and political
independence because the territory is recognized as the
spatial framework and necessary condition for the realization
of political independence. Territorial integrity is, as H.
Lauterpacht put it, “especially where coupled with ‘political
independence,’ […] synonymous with territorial inviolability.”
It must be noted that titles of acquisition and loss of territorial
integrity in present day international law are based on acts of
occupation, conquest, cession, prescription, accretion etc.
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MODES OF ACQUISITION OF STATE
TERRITORIES
Following are modes of acquiring territory.
1. Occupation
2. Prescription
3. Accretion
4. Cession
5. Annexation/ conquest
6. Lease
7. Pledge
8. Plebiscite
9. Purchase
10. Newly born states
11. Adjudication
1. OCCUPATION:
Occupation in international law means an act of appropriation
by a state over a territory which does not belong to any other.
It is however worthy to note that this particular mode of
acquisition of state is no longer in vogue, reason being that
there exists no virgin land that is not owned by any person or
state. This is the oldest mode of acquisition of state territory.
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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.
The high seas cannot be occupied in this manner for they are
res communis, but vacant land may be subjected to the
sovereignty of a claimant state.
It relates primarily to uninhabited territories and islands, but
may also apply to certain inhabited lands.
ESSENTIALS ELEMENTS FOR EFFECTIVE OCCUPATION:
There are two essential elements that constitute an effective
occupation of that state over another territory.
(i) Direct evidence of possession.
(ii) An exhibition of actual authority.
In Netherlands v. US (Island of Palmas case)1 - As a result of
the Spanish-American War 1898, Spain ceded the Philippines
to the United States by the treaty of Paris of that year. In 1906,
a united state official visited the island of Palmas (or Miangas),
which the united states believed to be a part of the territory
ceded to it and found, to his surprise a Dutch flag flying there,
1 Island of palmas arbitration (22 AJIL (1928) 374)
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Palmas lies about 50 miles southeast of cape san Augustin on
the island of Mindanao. It is two miles long and less than a mile
wide. In 1928, it had a population of less than 1,000 and was
of negligible economic, military or other importance.
Nonetheless, the Netherlands and the United states referred
the question of sovereignty over the island to arbitration.
It was held that for acquiring sovereign over a particular
territory effective occupation is necessary.
Andamas Island- issue: Here it is stated that the mere
proximity to the land does not give another country to claim
title over it.
See also: Eastern Greenland Case (Norway v. Denmark)2
(2)PRESCRIPTION:
If a state exercises control over a territory continuously for a
long time without any interruption and possess it defacto, the
concerned territory becomes part of that state. This mode is
known as prescription international law does not fix any
certain time so as to a title by prescription. However, length
time required for prescription is a matter which should be
decided by international court of justice or tribunal where the
case is brought for adjudication.
2 PCIJ (1923) series A/B No 53
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CONDITIONS TO BE FULFILLED BEFORE A TERRITORY
CAN BE SAID TO ACQUIRED BY PRESCRIPTION
In the case of U.S.A. V Mexico (Chamizal Arbitration)3 it
was stated that before a state may be said to have acquired
some territory by prescription these four (4) conditions must
be fulfilled:
(i) Where occupying state has not accepted the sovereignty of
any other state over the said territory.
(ii) Possession should be peaceful.
(iii) There should be no interruption.
(iv) Possession should be for a definite period not less than 20
years.
In this case by a treaty of 1848, the Rio Grande was made,
for part of its length, the boundary between the United States
and Mexico. By 1911, the river had changed its course leaving
a tract of land of about 600 acres-the Chamizal tract- between
the old and the new beds of the river. On the United States side
of the bed over which both states claimed sovereignty. The
commission decided that the part of the tract that had resulted
from a gradual process of accretion belonged to the United
States but that the part of it that had resulted from flood in
1864 belonged to the Mexico. The case was decided on the
basis of the relevant treaty provisions; an argument based on
3 (1911) 5 A.J.I.L. 782
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prescription was however put by the United States and
examined by the commission.
(3) ACCRETION:
This is the formation of new lands (islands) because of natural
acts such as volcanoes, floods etc.
Accretion denotes the increase which land bordering on a river
or on the sea undergoes through the silting up of soil, sand or
other substance, or the permanent retiral of the waters. This
increase must be formed by a process so slow and gradual as
to be, in a practical sense, imperceptible, by which is meant
that the addition cannot be observed in its actual progress
from moment to moment or from hour to hour, although, after
a certain period, it can be observed that there has been a fresh
addition to the shore line. The increase must also result from
the action of the water in the ordinary course of the operations
of nature and not from some unusual or unnatural action by
which a considerable quantity of soil is suddenly swept from
the land of one man and deposited on, or annexed to, the land
of another.
The fact that the increase is brought about in whole or in
part by the water, as the result of the employment of artificial
means, does not prevent it from being a true accretion,
provided the artificial means are employed lawfully and not
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with the intention of producing an accretion, for the doctrine
of accretion applies to the result and not to the manner of its
production.
A new territory can be acquired through the process of
accretion.
See: U.S.A. V Mexico (Chamizal Arbitration)4.
FORMS OF ACCRETION:
(i) Artificial.
(ii) Natural.
(5)CESSION:
Cession is the transfer of sovereign over a definite territory by
one state to another state.
It is the surrender of a territory of one country to another.
FORMS OF CESSION:
(i) Voluntary.
(ii) Under compulsion.
Examples: India ceased Berubari and gave it to Pakistan
The Russia-Crimea case is yet another example.
4 (1911) 5 A.J.I.L. 782
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(6)ANNEXATION/CONQUEST:
It is the acquisition of the territory of another. Annexation can
either be voluntary without the use of force or may be through
compulsion by the use of military force.
Examples: - China’s annexation of Tibet
- Iraq’s invasion of Kuwait
- Sikkim an independent country, voted to join
and get annexed to India.
U.N Charter on Annexation:
The forceful acquisition of the territory of another has been
greatly condemned by UN charter by Article 2(4) under which
member state cannot acquire territories by annexation.
(6) LEASE:
A state may give territory to another state under lease for a
certain period.
Example: - China leased Hong Kong to Great Britain for a
period of 99 years.
- Some islands of Cyprus are leased to Great
Britain.
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(6) PLEDGE:
Pledge is also a mode of acquiring state territory. Under some
circumstances a state is compelled to pledge part of its
territory in return of certain amount of money.
A state can pledge a land to another for a loan which should be
repaid to her with interest on a certain date.
Example: Republic of Genoa pledged the island of Corsica to
France.
(7) PLEBISCITE:
A plebiscite is a vote of the people that expresses their choice
for or against a proposed law or enactment, which, if adopted,
will work a change in the constitution that is beyond the
powers of the regular legislative body.
With regards to it being a Mode of acquiring new territory
Plebiscite is a decree of the people to join a territory with
another State
The plebiscite is hailed by many as the most democratic
interpretation of the concept of self-determination. But
plebiscite means subjection, subordination of minority to a
majority.
Example: South Sudan voted to leave Sudan.
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- Maharaja of Kashmir made a treaty to add Kashmir
to India but Pakistan claimed plebiscite.
(8) PURCHASE:
This is the process of paying money to another territory by one
country for the purpose of transferring ownership to that
territory. It is simply the selling of a territory by one to
another.
Example: Soviet Russia sold Alaska to USA
(9) NEWLY BORN STATES:
Territories get separated and they themselves declare
independence.
Example: Soviet Russia split into many individuals countries.
Bangladesh declare its independence from Pakistan.
(10) ADJUDICATION:
The legal process of resolving a dispute. The formal giving or
pronouncing of a judgment or decree in a court proceeding;
also the judgment or decision given. The entry of a decree by a
court in respect to the parties in a case. It implies a hearing by
a court, after notice, of legal evidence on the factual issue(s)
involved. The equivalent of a determination. It indicates that
the claims of all the parties thereto have been considered and
set at rest.
Example: Nigeria-Bakassi case.
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MODES OF LOSING TERRITORY
Following are modes of acquiring territory:
1. Cession
2. Operation of nature(accretion)
3. Subjugation
4. Renunciation
5. Independence to a colony
6. Prescription
7. Occupation
8. Dereliction/Abandonment/Relinquishment
9. Revolt
10. Lease
11. Pledge
12. Plebiscite
13. Disappearance
THE EFFECT OF THE UNITED NATIONS CHARTER ON THE
ACQUISITION AND LOSS OF STATE TERRITORIES.
The United Nations Charter being the foundational treaty of
the inter-governmental organization called the United
Nations, signed at the San Francisco War Memorial and
Performing Arts Center in San Francisco, United States, on 26
June 1945, by 50 of the 51 original member countries
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recognises and provides for the protection of territorial
integrity of every member state under the following
provisions:
i) Article 2(1)
ii) Article 2(4) and
iii) Article 2(7)
ARTICLE 2(1)
‘‘The Organization is based on the principle of the
sovereign equality of all its Members’’
ARTICLE 2(4)
‘‘All Members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of
the United Nations.’’
ARTICLE 2(7)
‘‘ Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters which
are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters
to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement
measures under Chapter VII.’’
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From the foregoing the UN charter clearly frowns at the
use of force i.e conquest which is one of the mode of acquisition
of state territory. However, the UN charter is silent on other
internationally recognised modes of acquisition and loss of
state territories.
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CONCLUSION
The concept of territorial integrity signifies the fact that within
a particular territory, the principle of sovereignty and
inviolability are important element of a state(s).
While, the UN charter clearly upholds the afore-stated
position, it however prohibits the use of force or aggression in
acquiring territories of another state, but tacitly accepts the
various internationally acclaimed modes of acquisition
already discussed in the work.
Thus, states or a state can acquire the territory of another state
as long as it does not contravene the provisions of the charter.